Jackson v. Colvin

Filing 12

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 9/30/14. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SYLVIA SAMUEL JACKSON,
Plaintiff

:

v.

: CIVIL ACTION NO. 3:13-00886

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

:

:

(JUDGE MANNION)

:
:

MEMORANDUM
1.

Introduction

Plaintiff Sylvia Samuel Jackson has filed this action pursuant to 42
U.S.C. §405(g) seeking review of a decision of the Commissioner of Social
Security ("Commissioner") denying Jackson’s claims for social security
disability insurance benefits and supplemental security income benefits.
Disability insurance benefits are paid to an individual if that individual is
disabled and “insured,” that is, the individual has worked long enough and
paid social security taxes. Jackson met the insured status requirements of the
Social Security Act through September 30, 2012. Tr. 18, 198.1
Supplemental security income is a federal income supplement program
designed to help aged, blind or other disabled individuals who have little or no
income. Insured status is irrelevant in determining a claimant’s eligibility for
supplemental security income benefits.
Jackson protectively filed her applications for social security disability
insurance benefits and supplemental security income on November 4, 2009,
1

References to “Tr. ” are to pages of the administrative record filed by the
Defendant as part of the Defendant’s Answer.
1

claiming that she became disabled on July 17, 2008. Tr. 180, 185. Jackson
has been diagnosed with hypertension, obesity, a small plantar calcaneal spur
in the left foot, plantar fasciitis of the left foot, pes planus, and
schizopherniform disorder.2 Tr. 18. On April 28, 2010, Jackson’s applications
were initially denied by the Bureau of Disability Determination. Tr. 82, 94.
On May 12, 2010, Jackson requested a hearing before an administrative
law judge (“ALJ”). Tr. 106. The ALJ conducted a hearing on September 19,
2011, Jackson was not represented by an attorney.3 Tr. 32-75. On February
3, 2012, the ALJ issued a decision denying Jackson’s applications. Tr. 16-25.
On February 14, 2013, the Appeals Council declined to grant review. Tr. 1.
Jackson subsequently filed a complaint before this Court on April 8, 2013.
Supporting and opposing briefs were submitted and this case became ripe for
disposition on August 30, 2013, when Jackson declined to file a reply brief.
Jackson appeals the ALJ’s determination on five grounds: (1) the ALJ
failed to consider the totality of the evidence, (2) the ALJ erred in failing to
give controlling weight to the opinion of Jackson’s treating physician, (3) the
vocational expert’s testimony did not constitute substantial evidence at step
five of the sequential evaluation process, (4) the ALJ failed to fully and fairly
develop the record, and (5) remand is required due to “new and material”
evidence. For the reasons set forth below, the decision of the Commission is
2

Schizopherniform disorder is identical to schizophrenia, except that
schizopherniform disorder lasts or is expected to last from one to six months.
See, Stedman's Medical Dictionary, 570 (28th Ed. 2006).
3

A hearing had initially been scheduled for April 28, 2011. Tr. 126. Jackson’s
attorney was present for the hearing, but Jackson did not arrive because she
was incarcerated at the time in Dauphin County Prison. Tr. 41. At that time,
Jackson’s attorney withdrew from the case because she had been unable to
contact Jackson. Tr. 153.
2

affirmed.

2.

Statement of Relevant Facts4

Jackson is 40 years of age, has an associate’s degree in business
administration, and is able to read, write, speak, and understand the English
language. Tr. 54, 55, 201. Jackson’s past relevant work includes work as a
commercial cleaner, which is classified as heavy, unskilled work, as a security
guard, which is light, semi-skilled work, and as a store laborer, which is
medium, unskilled work. Tr. 68.

A.

Jackson’s Mental Impairments

The first suggestion of Jackson’s mental impairments occurred on July
27, 2009, when Jackson presented to the emergency room with multiple
complaints regarding side-effects of her medications. Tr. 402. Jackson was
examined by Carlo DeAugustine, D.O., who opined that, though Jackson was
alert and in no acute distress, “she [was] quite anxious and appear[ed] to be
having a panic attack.” Id. All physical examinations and tests were negative,
and Dr. DeAugustine diagnosed Jackson with acute anxiety. Tr. 403.
On September 9, 2009, Jackson presented to her primary care
physician, Richard Presner, M.D. Tr. 318. Jackson was alert and oriented
times three, but “refused to answer questions,” “complained of being asked
questions,” and was paranoid about the appointment. Id. Approximately one

4

Jackson suffered from several physical impairments in addition to mental
impairments. Tr. 18. Jackson only challenges the ALJ’s determination
regarding Jackson’s mental impairments; therefore, records of Jackson’s
physical impairments will only be addressed to the extent necessary to
adequately explain her mental impairments.
3

week later, Jackson returned to Dr. Presner with symptoms of an anxiety
attack. Tr. 316. She complained of a “stressful life being a single mom of 3
boys” and requested medication to calm herself down. Id.
On December 11, 2009, Jackson returned to Dr. Presner. Judith
Schamback, a register nurse, wrote that it was “very difficult getting a history
from [Jackson]. She [has a] very slow, strange affect.” Tr. 312. On December
31, 2009, Dr. Presner opined that Jackson was temporarily unable to work,
but would be able to work again beginning June 1, 2010. Tr. 283-85. On
January 15, 2010, Jackson informed Dr. Presner that she did not want to be
treated for anxiety and did not want medication. Tr. 305, 308. Jackson was
diagnosed with anxiety. Tr. 308.
Thereafter, Jackson did not seek treatment for any mental impairment
until 2011.5 On January 5, 2011, Jackson visited the emergency room with a
variety of complaints. Tr. 400. Jackson was agitated and having “considerable
difficulty with her neighbors being quite loud.” Id. Jackson denied auditory
hallucination, and did not appear to be delusional or hallucinating. Id.
However, she complained that she developed chest pain “when she feels very
stressed by her arguing neighbors.” Id. Jackson was diagnosed with anxiety.
Tr. 401.
On January 25, 2011, Jackson presented to T.W. Ponessa & Associates
(“T.W. Ponessa”) for an initial evaluation related to her mental impairments.
Tr. 407. Jackson was diagnosed with psychotic disorder, not otherwise
5

Jackson had two medical visits relating to her physical condition that
mentioned possible mental impairments. On January 27, 2010, Jackson
mentioned that she believed the pain in her left heel was a “mental pain.” Tr.
297. On February 1, 2010, Jackson presented for an initial evaluation for
physical therapy. R. 339. Jackson “demonstrated clenching of fists/anxiety
throughout” the evaluation. Id.
4

specified, and assessed with a GAF score of 45.6 Id. Although Jackson
resided with three boys, her family and social supports were minimal. Id.
Jackson was “not taking psychotropic medications; however, she [was]
prescribed Buspirone HCL . . . and refused to take the medication.” Id.
Jackson reported that her neighbors are able to control her thoughts and that
when she is thinking that they can hear her thoughts and remind her that they
know what she is thinking. She asserts that she does not take her
psychotropic medication because her neighbor knows when she takes the
med and therefore she (the neighbor) acts out even more. Id.
On April 13, 2011, Jackson presented to Yury Yaroslavsky, M.D.,
a psychologist at T.W. Ponessa, for a psychiatric evaluation. Tr. 395. Dr.
Yaroslavsky observed that Jackson was an “extremely poor historian and in
addition, her thought process is severely disorganized.” Id. Jackson reported
that she had been anxious and overwhelmed over the previous two years, and
“believed the neighbors make different noises intentionally to influence her
thoughts or to affect ‘[her] soul.’” Id. Jackson denied any hallucinations. Dr.
Yaroslavsky wrote that “it is unclear if the noises she hears are real noises
and she just misinterprets the events or those are the product of her own
mind.” Id.
Jackson believed that “she is a businesswoman and her multiple
caregiver responsibilities [were] keeping her from building a successful
career.” Tr. 396. Jackson had no history of psychiatric admissions or

6

A GAF score of 41-50 is indicative of “serious symptoms (e.g. suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders,
34 (4th ed., Text rev., 2000).
5

treatment with medications. Tr. 395. She denied ever feeling significantly
depressed, and denied a history of mania or suicidal or homicidal ideation. Id.
Dr. Yaroslavsky opined that Jackson’s anxiety “tends to be situational.” Id.
Jackson had previously tried individual psychotherapy with T.W. Ponessa, but
“refused to continue.” Tr. 396.
At this appointment, Jackson “showed good eye contact but her
speech was severely disorganized. [Her] [t]hought process was sometimes
incoherent.” Id. Jackson also demonstrated looseness of association and
reference, and “endorsed some paranoid delusions.” Id. She admitted that her
neighbors were trying to read her mind and “influence her by moving her
furniture at home.” Id.
Jackson had an anxious mood, but denied suicidal or homicidal
ideation. Id. Her affect “appeared perplexed and not always appropriate to the
content of thought.” Id. Jackson was oriented times three, but showed
significant difficulties with concentration; her memory seemed intact and she
did not exhibit any abnormal or involuntary movements. Id. Dr. Yaroslavsky
assigned Jackson a GAF score of 45-50. Id. Dr. Yaroslavsky prescribed
Risperdal, an anti-psychotic medication; Jackson refused individual
psychotherapy. Tr. 398.
On July 27, 2011, Jackson returned to Dr. Yaroslavsky for a
medication management appointment. This was the last appointment record
available to the ALJ. Tr. 410. Dr. Yaroslavsky diagnosed Jackson with
schizophrenia, paranoid type, and assigned her a GAF score of 45-50. Id.
Jackson stated that she was “doing quite well” and feeling “mellow. Things are
not bothering me anymore.” Id. Dr. Yaroslavsky inquired about Jackson’s
neighbors bothering her and she replied that she did not “think about this

6

anymore.” Id. Jackson denied changes in her medical condition or any side
effects from her medication. Id. Jackson was taking Risperdal, Celexa, and
Ativan for her mental impairments. Id.
Dr. Yaroslavsky opined that Jackson was pleasant and
cooperative. Id. She was not in acute distress; she was quiet, but maintained
sufficient eye contact. Id. Her thought process was linear, and although she
did not volunteer much information, she was coherent. Id. Jackson denied
suicidal or homicidal thoughts and did not demonstrate any abnormal or
involuntary movements. Id. She was alert and oriented times three, though
her insight appeared to be limited to fair. Id. Jackson had reduced her use of
Ativan. Tr. 411. Jackson requested that her next appointment not be for
another two months. Dr. Yaroslavsky agreed with this request, stating that it
was “a reasonable request since she is doing quite well.” Id.

B.

Residual Functional Capacity Assessments

On May 18, 2010, M. Ralph Picciotto, M.D. examined Jackson and
offered a residual functional capacity assessment. Tr. 352-59. She denied
symptoms of mania, hypomania, obsessions, or compulsions. Tr. 356.
Jackson admitted that she believed “people can hear her thoughts and read
her mind.” She also reported sometimes seeing flickering lights. Id. She was
frequently overwhelmed by the feeling that “people are out to get her in some
way.” Tr. 357. At that point in time, Jackson had never been to a psychiatric
hospital, had never seen a psychiatrist, and had never taken any antipsychotic medications. Id.
Though Jackson was dressed in “somewhat unusual garb,” she was
pleasant with a polite mood and somewhat superficial affect. Tr. 358. She was

7

alert and oriented times three, had good long and short term memory, good
concentration, and tended to be concrete. Id. However, Jackson
demonstrated a “marked formal thought disorder” that was “evidenced by
tangentiality and non sequitur responses.” Id. Dr. Picciotto diagnosed Jackson
with schizopherniform disorder. Id. Dr. Picciotto opined that Jackson had
marked limitations in her ability to (1) intact appropriately with the public, and
(2) respond appropriately to work pressures in a usual work setting. Tr. 353.
On April 6, 2010, Richard Small, Ph.D. reviewed Jackson’s medical
records and opined that Jackson was moderately limited in her ability to (1)
maintain attention and concentration for extended periods, and (2) respond
appropriately to changes in the work setting. Tr. 364-65. Dr. Small believed
that Jackson could make simple decisions, carry out very short and simple
instructions, and sustain an ordinary routine without special supervision. Tr.
366. He also believed that there were “no restrictions in [Jackson’s] abilities
in regard to understanding and memory and social interaction.” Id. Dr. Small
concluded that “the limitations resulting from the impairment do not preclude
[Jackson] from performing the basic mental demands of competitive work on
a sustained basis.” Id.

C.

Jackson’s Written Statements

In her functional report from February 2010, Jackson reported that she
fixed dinner for her three children after school and helped them with their
homework.7 Tr. 219. She stated that her impairments did not prevent her from
doing any chores around the house, although she slowed “down some for
7

During the initial interview with Jackson on December 15, 2009, her
interviewer reported that Jackson sounded “like she was on something . . .
speech was a little slurred, and she could not concentrate.” Tr. 199.
8

[her] children [sic] sake.” Tr. 220. Jackson cooked meals five days a week,
was able to shop, pay bills, and go out alone. Tr. 221-22. She had no
problems getting along with others. Tr. 224. However, Jackson did complain
of a “mental problem,” and complained that it was “a long going condition.” Id.
She handled instructions well, got along well with authority figures, and
handled stress well. Tr. 224-25. Although changes in routine aggravated her,
she found it to be “workable.” Tr. 225. Jackson reported that, due to her ankle
and foot issues, she did not believe she would be able to work as hard as she
had in the past. Id.
Jackson later completed a disability report for her appeal to the ALJ. Tr.
234-43. In this report, Jackson stated that she often became mentally and
physically drained, which took her off task professionally. Tr. 237. She
reported that, when she was mentally drained, it was “hard to think clearly.”
Id. Jackson complained that her brain was overly worked and strained from
medications “which will cause me risks with my job proformances [sic] daily.”
Tr. 243. She stated that she must have a job that offers a mental and physical
“balance.” Id.

D.

The Administrative Hearing

On September 19, 2011, Jackson’s administrative hearing was
conducted. Tr. 32-75. At the hearing, Jackson testified that she had been
searching for jobs since 2008 without success. Tr. 50. She stated that she
would have taken a job if she had been offered one. She believed that she
would have been able to go to work every day. Tr. 58. Jackson believed the
only thing that would have affected her ability to perform the job were issues
with her feet and legs. Id. Jackson later reiterated that the primary issue

9

affecting her ability to work was stiffness in her foot. Tr. 61-62. Jackson
testified that she did not have problems being around other people,
supervisors, or the public. Tr. 63-64. She further testified that, if she took her
medication, she “should be okay” to work. Tr. 65.
Jackson was able to care for her personal hygiene, shop for groceries,
cook, clean, do the laundry, mop and sweep. Tr. 55-56. Otherwise, Jackson
stated that she did very little during the day other than meditate and read
mystery books or newspapers. Tr. 56-58.
After Jackson testified, Michael Kibler, an impartial vocational expert,
was called to give testimony. Tr. 65. The ALJ asked Mr. Kibler to assume a
hypothetical individual with Jackson’s age, education, and work experience
who could perform light work8 but was limited to simple, routine, repetitive
tasks. Tr. 68-69. The individual must also be allowed to sit or stand at will
throughout the workday. Tr. 69. Under this hypothetical, Mr. Kibler testified
that the individual would be unable to perform any of Jackson’s past relevant
work. Tr. 68. However, Mr. Kibler testified that the individual would be able to
perform three jobs that exist in significant numbers in the national economy:
a small parts assembler, an electronic accessories assembler, or a table
worker. Tr. 69-70.

8

Light Work is defined by the regulations of the Social Security Administration
as work “with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this category when
it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light work, you must
have the ability to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary work, unless
there are additional limiting factors such as loss of fine dexterity or inability to
sit for long periods of time.” 20 C.F.R. §416.967.
10

Thereafter, Jackson stated that fumes and smells do not “agree with”
her medication. Tr. 72. The ALJ then modified the hypothetical question so
that the hypothetical individual must avoid concentrated exposure to fumes or
odors, with all other restrictions remaining intact. Tr. 73. Under this scenario,
Mr. Kibler testified that the individual would still be able to perform all three
jobs. Id.

E.

Evidence Submitted Post-Decision

Records submitted by Jackson after the ALJ issued her decision include
four letters submitted by Jackson’s physicians, all opining that Jackson was
temporarily unable to work. Tr. 560-69. On June 17, 2010, Dr. Presner stated
that Jackson was unable to work until June 1, 2011 due to anxiety,
depression, hypertension, and obesity. Tr. 560-62. On July 5, 2011, Emily
Williams, M.D., a physician at Dr. Presner’s office, opined that Jackson had
“limited employability” due to hypertension, depression, and anxiety. Tr. 56365. On September 22, 2011, Dr. Yaroslavsky stated that, due to
schizophrenia, Jackson was unable to work until December 22, 2011. Tr. 567.
On December 8, 2011, Dr. Yaroslavsky opined that Jackson would be unable
to work until June 7, 2012. Tr. 569.
On April 16, 2011, Jackson was taken to Dauphin County Prison, where
she was given a “receiving screening” by PrimeCare Medical, Inc. Tr. 509-19.
Jackson did not appear anxious, was coherent, and showed no signs of
mental illness. Tr. 511. She showed no signs of depression and was not a
suicide risk. Tr. 510-11. Jackson was neither acting out nor talking in a
strange manner, her history and physical appearance did not suggest
psychiatric conditions. Tr. 511. She was alert and oriented times three, had

11

an appropriate mood and affect, an appropriate appearance, and appropriate
perception and thought processes. Tr. 515. Jackson did not have
hallucinations. Her conversation was appropriate, her speech was normal,
and her mood was euthymic. Tr. 517. Jackson indicated that her medications,
including Risparadol, were effective.9 Tr. 518.
On April 18, 2011, Enos Martin, M.D. noted that Jackson was “loose in
associations, tangential, pressured, tearful, not suicidal.” Tr. 555. Dr. Martin
recommended that Jackson receive her medication “to control psychosis.” Id.
On April 21, 2011, Jackson reported that she was “more stable since her
medication ha[d] been increased.” Id. At an April 28, 2011 medication check,
Jackson was “doing better” and was “thinking more clearly.” Tr. 556. Jackson
was pleasant and more coherent. She was not suicidal and was not overtly
psychotic. Id. On May 8, 2011, Jackson was assessed as “stable.” Id.
By May 25, 2011, Jackson had a euthymic mood and a mildly blunted
affect. Tr. 557. Dr. Martin noted that Jackson “may still be a bit loose in
associations” when under stress. Id. Consequently, Dr. Martin assessed
Jackson as “stable, but still fragile.” Id. On June 6, 2011, Jackson had no
complaints, was pleasant, and stated that she was feeling better. Id. She was
assessed as being “relatively stable.” Id. On June 15, 2011, Jackson was
doing well and was content with her medications. Tr. 557-58. She had a mildly
blunted affect, but was not suicidal and was not hearing voices. Tr. 558. She
was again assessed as stable, but “fragile.” Id.
On September 21, 2011, Jackson presented to Dr. Yaroslavsky for a
medication check-up. Tr. 570. Jackson had no complaints, although she did

9

The prison records indicate that Jackson received her anti-psychotic
medications throughout her time in Dauphin County Prison. Tr. 528-37.
12

experience some anxiety relating to bills and other matters. Id. On November
16, 2011, Jackson returned to Dr. Yaroslavsky. She presented with no
complaints and “described herself as doing well.” Tr. 572. Jackson had gained
weight due to her medication, as a result, Dr. Yaroslavsky recommended that
she discontinue use of Risparadol. Tr. 573. Jackson insisted on continuing
with Risparadol, and Dr. Yaroslavsky wrote “I believe she is capable to make
an informed decision in this regard and I respect it.” Id.
On January 11, 2012, Jackson was experiencing no psychosis. Tr. 574.
Though she reported that her neighbors were still making noise, she did not
“believe it [was] intentional and only hears them communicating among
themselves.” Id. Dr. Yaroslavsky opined that Jackson did not “seem to have
any ideas of reference but might still have some residual paranoid thoughts
though this does not seem to be a stressor for her.” Id.
At all three appointments, Dr. Yaroslavsky reached the following
findings: Jackson was pleasant and cooperative, although she was quiet, she
demonstrated sufficient eye contact. Tr. 570, 572, 574. Her thought process
was linear, and although she did not offer much information, she was
coherent. Id. She had a slightly constricted affect, but described her mood as
“good” and denied psychosis or suicidal or homicidal ideation. Id. Jackson
was alert and oriented times three, her judgment was limited to fair, and she
had no abnormal or involuntary movements. Id. Dr. Yaroslavsky assigned
Jackson a GAF score of 45-50 at each appointment. Id.
The additional evidence submitted by Jackson included a Guardianship
Agreement and a Temporary Consent Order. Tr. 584-91. Both agreements
were signed while Jackson was in the custody of Dauphin County Prison. Id.
In the Guardianship Agreement, Jackson agreed to release guardianship of

13

one of her sons to his maternal aunt. Tr. 584. A note on the Guardianship
Agreement indicates that on June 18, 2011, after being released from prison,
Jackson revoked this agreement. Id. The Temporary Consent Order granted
sole legal custody over two of Jackson’s sons to their biological father. Tr.
587. Jackson was allowed supervised custody over the children upon release
from prison, the visits would be supervised until Jackson obtained a release
from a psychologist and resolved her outstanding criminal charges. Tr. 588.
Jackson also attached several documents to her initial brief, documents
that were presented for the first time to this Court. (Doc. 10, Ex. A, B). Exhibit
B consists of three EMS reports for 2009 and one EMS report from 2011. In
July 2009, Jackson complained to the paramedics that her medication “gave
her the feeling of having intercourse,” and complained that she was healthy
and thus should not be taking medication. She complained of psychiatric
problem, and was brought to the hospital. In January 2011, Jackson
complained of a cracking feeling in her chest that would come and go, and
was brought to the hospital.

3.

Discussion

In an action under 42 U.S.C. §405(g) to review the Commissioner’s
decision denying a plaintiff’s claim for disability benefits, the district court must
uphold the findings of the Commissioner so long as those findings are
supported by substantial evidence. Substantial evidence “does not mean a
large or considerable amount of evidence, but ‘rather such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’”
Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison
Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence has been

14

described as more than a mere scintilla of evidence but less than a
preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). In an
adequately developed record substantial evidence may be "something less
than the weight of the evidence, and the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency's
finding from being supported by substantial evidence." Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966).
Substantial evidence exists only "in relationship to all the other evidence
in the record," Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981), and "must
take into account whatever in the record fairly detracts from its weight."
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece
of evidence is not substantial evidence if the Commissioner ignores
countervailing evidence or fails to resolve a conflict created by the evidence.
Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The Commissioner
must indicate which evidence was accepted, which evidence was rejected,
and the reasons for rejecting certain evidence. Johnson v. Comm’r of Soc.
Sec., 529 F.3d 198, 203 (3d Cir. 2008). Therefore, a court reviewing the
decision of the Commissioner must scrutinize the record as a whole. Smith v.
Califano, 637 F.2d 968, 970 (3d Cir. 1981).
The Commissioner utilizes a five-step process in evaluating disability
insurance benefits claims. See 20 C.F.R. §404.1520; Poulos v. Comm’r of
Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). This process requires the
Commissioner to consider, in sequence, whether a claimant (1) is engaging
in substantial gainful activity, (2) has an impairment that is severe or a
combination of impairments that is severe, (3) has an impairment or
combination of impairments that meets or equals the requirements of a listed

15

impairment, (4) has the residual functional capacity to return to his or her past
work and (5) if not, whether he or she can perform other work in the national
economy. 20 C.F.R. §404.1520. The initial burden to prove disability and
inability to engage in past relevant work rests on the claimant, If the claimant
meets this burden, the burden then shifts to the Commissioner to show that
a job or jobs exist in the national economy that a person with the claimant’s
abilities, age, education, and work experience can perform. Mason, 994 F.2d
at 1064.

A. Evaluation of Evidence and Weight Given to the Treating
Physician
Jackson argues that the ALJ failed to consider the totality of the
evidence before her, and erred in failing to give controlling weight to the
opinion of Jackson’s treating physician. Much of Jackson’s argument focuses
on evidence submitted after the ALJ rendered her decision cannot be
considered in determining whether the decision was supported by substantial
evidence. See, Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001).
Therefore, only the evidence that was submitted prior to the ALJ’s decision
will be considered in review of the ALJ’s decision.

B.

The ALJ’s Credibility Determination

The ALJ relied upon substantial evidence in determining that Jackson
was not disabled. Contrary to Jackson’s argument, the ALJ did consider all of
the evidence that was available before rendering her decision. The ALJ
considered Jackson’s personal statements relating to her difficulty
“remembering and completing tasks,” as well as her mental health problems.

16

Tr. 20. However, the ALJ noted that Jackson had reported caring for three
children, shopping, and doing household chores without difficulty. Tr. 19. The
ALJ further noted that Jackson was able to handle her finances, follow written
and spoken instructions, and perform activities without reminders. Id. Jackson
was able to get along with others, and consistently presented as cooperative
and pleasant. Id. However, the ALJ believed that Jackson’s schizopherniform
disorder, accompanied by paranoid ideation, was a severe disorder. Tr. 18.
The totality of this evidence led the ALJ to conclude that, though
Jackson’s mental impairment could reasonably be expected to cause the
alleged symptoms, Jackson’s testimony regarding those symptoms was “not
credible . . .” Tr. 21. Although Jackson alleged disabling symptoms, her selfreported activities and abilities contradicted such as finding. Tr. 19.
Additionally, the medical evidence indicated that Jackson’s mental impairment
was not disabling. In January 2011, Jackson’s mental impairment likely
severely impacted her ability to work. Tr. 407. In April 2011, Jackson
continued experiencing paranoid ideation, and believed her thoughts were
being controlled by others. Tr. 395. However, at the April 2011 appointment,
Jackson was prescribed anti-psychotic medications for the first time. Tr. 398.
By July 2011, Jackson reported “doing quite well,” and no longer reported
paranoid ideation. Tr. 410. Jackson was pleasant and cooperative, and
reported using less medication. Tr. 411. Jackson felt so well that she
requested she not be seen for two months, Her treating physician agreed to
this request because Jackson was doing so well. Id.
When viewed in the aggregate, substantial evidence supported the
ALJ’s credibility determination. The evidence indicates that, as of early 2010,
Jackson’s mental impairment had little impact on her day-to-day life. Tr. 219-

17

25. While Jackson later experienced significant issues related to her mental
impairment, these issues were mostly resolved by July 2011. Consequently,
there is no basis upon which to disturb the ALJ’s determination, particularly
in light of the deference that is properly owed to the ALJ’s credibility
determinations. See, Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003).

C.

Treatment of the Treating Physician’s Opinion

The preference for the treating physician’s opinion has been recognized
by the United States Court of Appeals for the Third Circuit and by all of the
federal circuits. See, e.g., Morales v. Apfel, 225 F.3d 310, 316-18 (3d Cir.
2000). When the treating physician's opinion conflicts with a non-treating, nonexamining physician's opinion, the administrative law judge may choose
whom to credit in his or her analysis, but “cannot reject evidence for no reason
or for the wrong reason.” Id. at 317 (quoting Plummer v. Apfel, 186 F.3d 422,
427 (3d Cir. 1999). In choosing to reject the evaluation of a treating physician,
an administrative law judge may not make speculative inferences from
medical reports and may reject treating physician's opinions outright only on
the basis of contradictory medical evidence. Id. A treating physician’s opinion
must be given controlling weight where that opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the] case record.” 20 CFR
§404.1527 (d)(2).
The ALJ was presented with two assessments of Jackson’s residual
functional capacity; one assessment was provided by a non-examining
physician, and one was provided by a non-treating, examining physician. Tr.
352-59, 364-66. Dr. Picciotto examined Jackson prior to Jackson receiving

18

any treatment for her mental impairment. Tr. 353. Dr. Picciotto opined that
Jackson had marked difficulties in dealing with the public and responding
appropriately to pressures in a usual work setting. Id. The ALJ gave “little
weight” to this opinion, reasoning that the restrictions were overstated in
comparison with the objective findings. Tr. 23. Additionally, the ALJ found it
noteworthy that Jackson was not receiving treatment at the time of the
examination, and had declined psychological counseling. Id. These limitations
were also undermined by Jackson’s own testimony, such as her statement
that she had no issues with the public or being around other people. Tr. 63-64.
In April 2010, Dr. Small reviewed Jackson’s medical records and opined
that she was moderately limited in her ability to maintain attention and
concentration for extended periods, and in her ability to respond appropriately
to changes in a work setting. Tr. 364-65. Despite these issues, Dr. Small
believed that Jackson was able to meet the basic mental demands of
competitive work on a sustained basis. Tr. 367. In reaching this conclusion,
Dr. Small opined that Dr. Picciotto’s assessment was inconsistent with the
medical and non-medical evidence contained within the record. Tr. 366. Dr.
Small believed that Dr. Picciotto’s assessment was based on a snapshot of
Jackson’s functioning, and was an overestimate of the severity of her
limitations. Id. The ALJ gave great weight to Dr. Small’s opinion, reasoning
that it was consistent with Jackson’s clinical history, her self-reported activities
of daily living, and her “improvement with medication.” Tr. 22.
An ALJ may reject the opinion of an examining or treating physician if
a state agency consultant proffered a contradicting opinion, even if the
consultant neither treated nor examined the claimant. Morales, 225 F.3d at
317. Having been presented with differing opinions, one pointing to marked

19

mental limitations, and one indicating that Jackson would be able to meet the
demands of competitive work on a sustained basis, the ALJ was required to
credit one opinion over the other. The ALJ properly rejected the opinion of the
examining physician and credited the evidence presented by the
psychological consultant. This decision was supported by substantial
evidence, particularly in light of Jackson’s improvement with medication. See,
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011) (a state
agency physician opinion may constitute substantial evidence where that
opinion “was properly considered by the ALJ”).
Jackson also argues that the ALJ erred in failing to give controlling
weight to the opinion of Dr. Yaroslavsky, her treating physician. As an initial
matter, the ALJ only rejected Dr. Yaroslavsky’s GAF scores, not his objective
findings. Tr. 22. The ALJ rejected the GAF scores because they were “not
supported by the clinical evidence and the claimant’s own representations of
feeling better,” as well as her request to be seen only once every two months.
Id. Additionally, the ALJ noted that the GAF scores were a snapshot of
Jackson’s functioning, and did not reflect her longitudinal functioning. Id.
The reasoning provided by the ALJ for rejecting Dr. Yaroslavsky’s
conclusory GAF scores was sufficient. While the GAF scores indicate some
moderate to severe symptoms, Dr. Yaroslavsky did not elaborate further on
what those symptoms may be. Dr. Yaroslavsky did not detail any limitations
that Jackson may have faced had she attempted to re-enter the workforce,
and did not offer any assessment of Jackson’s residual functional capacity.
Furthermore, even if the ALJ had credited the GAF scores, they would not
have mandated a finding that Jackson was disabled. See, Gilroy v. Astrue,
351 F.App’x 714, 715-16 (3d Cir. 2009).

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D.

Hypothetical Question Posed to the Vocational Expert

Jackson argues that the questions posed by the ALJ to the vocational
expert were flawed because they did not include the limitations expressed by
Dr. Picciotto. A “vocational expert's testimony concerning a claimant's ability
to perform alternative employment may only be considered for purposes of
determining disability if the [ALJ's hypothetical] question accurately portrays
the claimant's individual physical and mental” limitations. Podedworny v.
Harris, 745 F.2d 210, 218 (3d Cir. 1984). However, the hypothetical question
need not convey every alleged impairment. The hypothetical question must
convey only “a claimant’s credibly established limitations.” Rutherford v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (emphasis in original).
Here, the ALJ’s hypothetical question did not include any limitations in
Jackson’s ability to deal appropriately with the public, as Dr. Picciotto had
opined. Tr. 68-71. Thus, if the ALJ had accepted Dr. Picciotto’s assessment,
the hypothetical questions would have been flawed. However, the ALJ
properly rejected the opinion of Dr. Picciotto, consequently, the limitations
contained within Dr. Picciotto’s opinion were not credibly established. Thus,
the ALJ was not required to present these limitations to the vocational expert,
Rutherford, 399 F.3d at 552, and the vocational expert’s testimony constituted
substantial evidence at step five of the sequential evaluation process.
A. The ALJ’s Development of the Record
Jackson argues that the ALJ failed to fully and fairly develop the record,
particularly in light of the fact that Jackson was unrepresented at the
administrative hearing.10 An ALJ “owes a duty to a pro se claimant to help him

10

Jackson also argues that there was a possibility that she had “borderline
intellectual functioning” and therefore, it is “possible” that she may not have
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or her develop the administration record,” Reefer v. Barnhart, 326 F.3d 376,
380 (3d Cir. 2003), and must “assume a more active role” in developing the
record in such instances. Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
1979). Where a claimant is unrepresented at the administrative hearing, “the
ALJ must scrupulously and conscientiously probe in, inquire of, and explore
for all the relevant facts.” Reefer, 326 F.3d at 380 (quoting Key v. Heckler, 754
F.2d 1545, 1551 (9th Cir. 1985)).
The ALJ fulfilled her duty to develop the administrative record. During
her testimony, Jackson stated that she had continued to receive mental health
treatment from T.W. Ponessa. At this point, the ALJ asked Jackson to sign a
release form so that the ALJ could obtain records from T.W. Ponessa. Tr. 45.
The ALJ then asked Jackson if all of her visits to medical facilities, with the
exception of T.W. Ponessa, were contained within the medical records
available at the administrative hearing. Jackson replied that they were. Id.
Moments later, the ALJ asked if Jackson had been treated anywhere
other than T.W. Ponessa. Jackson replied that she had been treated at
Hamilton Health. Tr. 46. The ALJ then asked if there were any other places
where Jackson had received mental health treatment. Id. Jackson stated that
she had been treated while in Dauphin County Prison. Id. After further inquiry,
Jackson stated that she had also been to the Harrisburg Hospital emergency
room. Tr. 47. Jackson testified that there were no other medical records that
the ALJ would need to seek out. Tr. 47-48. The ALJ reiterated that the Social
knowingly and intelligently waived her right to counsel. Such a conclusory and
equivocal argument is insufficient to sustain Jackson’s burden of proof.
Additionally, this argument is undermined by the fact that Jackson was never
diagnosed with borderline intellectual functioning, she completed high school
while taking regular classes, and she obtained an associate’s degree in
business management. Tr. 54, 203, 358.
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Security Administration was “trying to do the best we can for you in the
hearing and I can’t do the best job I can for you in the hearing if your medical
records aren’t here.” Tr. 48.
The ALJ then walked through the medical records step by step to
ensure that there were no missing records. Tr. 49-50. The ALJ asked if there
were any additional medical records from Paxtonia Foot Center after January
2010. Jackson stated that there were not. Tr. 49. The ALJ the inquired about
Kline Health Center. Jackson stated that she had stopped treatment there. Tr.
49-50. The ALJ then reiterated that she would seek medical records from
T.W. Ponessa, Harrisburg Hospital, and Hamilton Health Center. Tr. 50. The
ALJ once again asked Jackson if there was anywhere else that she needed
to seek medical records from. Id. Jackson replied “no.” Id. Prior to the end of
the administrative hearing, the ALJ again asked Jackson if there was
“[a]nything else that you, any other places you think we should get medical
records from or anything else that we need?” Tr. 74. Jackson again stated that
there was not. Id.
While the Third Circuit had not “prescribe[d] any particular procedures
that an ALJ must follow” in developing the record, Reefer, 326 F.3d at 380, it
is hard to imagine that the ALJ could have been more thorough or diligent in
her efforts to secure all relevant medical record. The ALJ asked Jackson eight
separate times if there were any further medical records that should be
obtained. Tr. 45-50, 74. During the final five inquiries, Jackson unequivocally
stated that there were no other medical records that the ALJ should obtain. Tr.
47-50, 74. The ALJ thoroughly inquired as to the existence of any additional
medical records and, short of mailing forms to every medical provider in the
nation, there was nothing further the ALJ could have done to develop the

23

medical record.11 Therefore, the ALJ did fully and fairly develop the medical
record.
In addition to the medical evidence, Jackson argues that the ALJ failed
to obtain non-medical evidence relating to Jackson’s school records, a job
development program, and Jackson’s Case Management Unit records. In
making this argument, Jackson has not detailed what this evidence may
show, nor has Jackson made any argument that this evidence would have
affected the outcome of the case. Consequently, failure to obtain these nonmedical records constitutes, at most, harmless error. See, Rutherford, 399
F.3d at 553 (holding that remand was not required where an error “would not
affect the outcome of the case”); Shinskei v. Sanders, 556 U.S. 396, 409
(2009) (“This Court had said that the party that seeks to have a judgment set
aside because of an erroneous ruling carries the burden of showing that
prejudice resulted”) (internal quotations omitted).

E. Newly Submitted Evidence
Sentence six remand is warranted “only upon a showing that there is
new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.” Milano v.
Comm’r of Soc. Sec., 152 F.App’x 166, 171 (3d Cir. 2005) (quoting 42 U.S.C.

11

The ALJ had indicated that she would seek records from PrimeCare Medical,
Inc. Tr. 46-47. These records were not contained within the administrative
record. It is unclear if the ALJ failed to request these records, or whether they
were requested and never provided. Due to the ambiguity of this situation, this
Court cannot hold that the ALJ erred in failing to obtain these records. In any
event, as detailed in subsection C, these records demonstrate that Jackson’s
condition improved with medication, and therefore if any error occurred, it
would have been harmless. Rutherford, 399 F.3d at 553.
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§ 405(g)). Evidence is new if it was “not in existence or available to the
claimant at the time of the administrative proceeding." Sullivan v. Finkelstein,
496 U.S. 617, 626 (1990). “The materiality standard requires that there be a
reasonable possibility that the new evidence would have changed the
outcome of the Secretary’s determination.” Szubak v. Sec’y of Health &
Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Furthermore, “an implicit
materiality requirement is that the new evidence relate to the time period for
which benefits were denied, and that it not concern evidence of a lateracquired disability or of the subsequent deterioration of the previously nondisabling condition.” Id.
Here, remand is not warranted based on the evidence submitted after
the ALJ’s decision for two reasons: first, the evidence is not “new” and
second, the evidence is not material. Nearly all of the evidence submitted by
Jackson was in existence prior to the ALJ’s decision and was available to
Jackson. Tr. 421-618; Doc. 10, Ex. B. The only evidence was not in existence
at the time the ALJ issued her decision was a single “progress note” dated
November 27, 2012. Tr. 502-03. Other than that note, none of the evidence
was “new,” and thus remand is not warranted based on that evidence.
Sullivan, 496 U.S. at 626.
Second, the evidence that Jackson presented is not material. The
appointment notes from Dr. Yaroslavsky document that Jackson’s condition
improved throughout 2011, thereby confirming the evidence that was already
contained within the administrative record. Tr. 570-75. This evidence does
establish that Jackson continued to receive treatment for her mental health
issues, however, the ALJ never suggested that Jackson was not receiving
ongoing treatment. Tr. 22. Medical records from PrimeCare Medical, Inc.,

25

during Jackson’s incarceration, likewise confirm that Jackson’s condition
improved after she was provided with anti-psychotic medications. Tr. 509-37,
555-58.
The Guardianship Agreement and Temporary Consent Order are
unrelated to Jackson’s impairments, and are only useful in determining
Jackson’s ability to care for her children. Tr. 584-91. However, both
agreements were executed while Jackson was in prison, and do not bear
directly on her ability to care for her children. Id. Additionally, the Guardianship
Agreement shows that, after being released from prison, Jackson reasserted
her parental rights over one of her children. Tr. 584.
The evidence presented by Jackson also consists of three opinions
stating that Jackson was temporarily disabled; no doctor ever opined that
Jackson would be disabled for longer than one year. Tr. 560-62, 567-69.
Furthermore, none of the opinions were supported by an assessment of
specific functional restrictions, nor were they supported by reference to any
objective medical evidence or findings. Id. As an initial matter, Jackson has
not demonstrated how these documents would have impacted the ALJ’s
decision.
Additionally, the ALJ had already considered one document stating that
Jackson was temporarily disabled for a period of six months. Tr. 22. The ALJ
gave little weight to this opinion, reasoning that it: (1) only established a brief
period of disability, (2) was not supported by an assessment of specific
functional restrictions, and (3) was “rendered for the sole purpose of obtaining
medical assistance benefits.” Id. All three reasons apply with equal force to
the opinions that Jackson submitted after the ALJ rendered her decision, and
the ALJ likely would have rejected such evidence for the same reasons. Thus,

26

there is no indication that this evidence would have affected the outcome of
the ALJ’s determination. Consequently, the evidence submitted by Jackson
was neither new nor material, and remand based on this evidence is not
warranted.

4.

Conclusion

A review of the administrative record reveals that the decision of the
Commissioner is supported by substantial evidence. Pursuant to 42 U.S.C.
§405(g), the decision of the Commissioner affirmed.
An appropriate Order will be entered.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: September 30, 2014
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