Gray v. Colvin
MEMORANDUM (Order to follow as separate docket entry)Signed by Magistrate Judge Gerald B. Cohn on 9/11/14. (ts)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CASE NO. 3:13-cv-01944-GBC
(MAGISTRATE JUDGE COHN)
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
Docs. 1, 10, 11, 12, 13, 14
The above-captioned action is one seeking review of a decision of the Commissioner of
Social Security ("Commissioner") denying the application of Plaintiff April Gray for
supplemental security income (“SSI”) and disability insurance benefits (“DIB”) under the Social
Security Act, 42 U.S.C. §§401-433, 1382-1383 (the “Act”). Plaintiff has been diagnosed with
depression, generalized anxiety disorder, bipolar disorder, borderline personality disorder, and
post-traumatic stress disorder. Objective evidence demonstrated impairments in social
functioning and concentration, persistence, and pace. Every medical source opinion in the record
indicated moderate limitations overall in concentration, persistence, and pace, and several
specific categories, such as following instructions, maintaining attention for extended periods of
time, and working without being distracted. The ALJ made specific findings that Plaintiff had
difficulty, inter alia, finishing tasks and concentrating. However, the ALJ did not include any
nonexertional limitations in evaluating Plaintiff’s residual functional capacity (“RFC”) beyond
restricting social interaction and limiting her to unskilled work. The ALJ did not include any
additional limitations in following instructions, simple or routine work, concentration,
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persistence, or pace. The ALJ found that unskilled work sufficiently accounted for Plaintiff’s
other limitations. The only rationale offered by the ALJ were two treatment notes, prior to the
alleged onset date, that Plaintiff had intact memory.
Plaintiff asserts that a limitation to unskilled work is not sufficiently specific to account
for her difficulties in concentration, persistence and pace. Third Circuit precedent requires an
ALJ to include restrictions specific to nonexertional limitations, including concentration,
persistence, and pace, unless the record otherwise suggests that no additional limitations are
necessary. Burns v. Barnhart, 312 F.3d 113 (3d Cir. 2002); Ramirez v. Barnhart, 372 F.3d 546,
(3d Cir. 2004). Here, the record does not otherwise suggest that no additional limitations are
necessary, where the ALJ pointed only to two treatment notes prior to the alleged onset date
despite objective and opinion evidence during the relevant period documenting Plaintiff’s
limitations. Ramirez squarely addressed this issue, and found that an ALJ”s limitation to simple
tasks was insufficient to account for moderate limitations in concentration, persistence, and pace.
Ramirez remanded the case to the ALJ for further findings. Defendant has offered no legitimate
reason to find that Ramirez does not apply in this case. For the foregoing reasons, the Court
concludes that the ALJ’s decision lacks substantial evidence, grants Plaintiff’s appeal, vacates
the decision of the Commissioner, and remands for further proceedings.
On July 14, 2010, Plaintiff filed an application for SSI under Title XVI of the Act and for
DIB under Title II of the Act. (Tr. 204-225). On December 21, 2010, the Bureau of Disability
Determination denied these applications (Tr. 126-135), and Plaintiff filed a request for a hearing
on January 4, 2011. (Tr. 136-37). On July 28, 2011, an ALJ held a hearing at which Plaintiff—
who was represented by an attorney—and a vocational expert (“VE”) appeared and testified. (Tr.
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23-87). On September 21, 2011, the ALJ found that Plaintiff was not disabled and not entitled to
benefits. (Tr. 8-22). On November 25, 2011, Plaintiff filed a request for review with the Appeals
Council (Tr. 7), which the Appeals Council denied on May 17, 2013, thereby affirming the
decision of the ALJ as the “final decision” of the Commissioner. (Tr. 1-6).
On July 17, 2013, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. §
405(g) to appeal the decision of the Commissioner. (Doc. 1). On November 19, 2013, the
Commissioner filed an answer and administrative transcript of proceedings. (Docs. 9, 10). On
January 13, 2014, Plaintiff filed a brief in support of his appeal (“Pl. Brief”). (Doc. 12). On
February 14, 2014, Defendant filed a brief in response (“Def. Brief”). (Doc. 13). On February 24,
2014, Plaintiff filed a brief in reply (“Pl. Reply”). (Doc. 14). On April 29, 2014, the Court
referred this case to the undersigned Magistrate Judge. Both parties consented to the referral of
this case for adjudication to the undersigned on June 9, 2014, and an order referring the case to
the undersigned for adjudication was entered on June 10, 2014. (Doc. 16, 17, 18).
Standard of Review
When reviewing the denial of disability benefits, the Court must determine whether
substantial evidence supports the denial. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988);
Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence
is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
Substantial evidence “does not mean a large or considerable amount of evidence.” Pierce v.
Underwood, 487 U.S. 552, 564 (1988). Substantial evidence requires only “more than a mere
scintilla” of evidence, Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999), and may be less than
a preponderance. Jones, 364 F.3d at 503. If a “reasonable mind might accept the relevant
evidence as adequate” to support a conclusion reached by the Commissioner, then the
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Commissioner’s determination is supported by substantial evidence. Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.
1999); Johnson, 529 F.3d at 200.
Sequential Evaluation Process
To receive disability or supplemental security benefits, a claimant must demonstrate an
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability benefits
show that he has a physical or mental impairment of such a severity that:
He is not only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step evaluation process to determine if a person is eligible
for disability benefits. See 20 C.F.R. § 404.1520; see also Plummer, 186 F.3d at 428. If the
Commissioner finds that a Plaintiff is disabled or not disabled at any point in the sequence,
review does not proceed. See 20 C.F.R. § 404.1520. The Commissioner must sequentially
determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals a listed
impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the claimant’s
impairment prevents the claimant from doing past relevant work; and (5) whether the claimant’s
impairment prevents the claimant from doing any other work. See 20 C.F.R. §§ 404.1520,
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416.920. Before moving on to step four in this process, the ALJ must also determine Plaintiff's
residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e).
The disability determination involves shifting burdens of proof. The claimant bears the
burden of proof at steps one through four.
If the claimant satisfies this burden, then the
Commissioner must show at step five that jobs exist in the national economy that a person with
the claimant’s abilities, age, education, and work experience can perform. Mason v. Shalala, 994
F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of proving disability within the meaning of
the Act lies with the claimant. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a).
V. Relevant Facts in the Record
Plaintiff was born on April 1, 1981 and was classified by the regulations as a younger
individual through the date of the ALJ decision. 20 C.F.R. § 404.1563. (Tr. 29). She has a
limited (tenth grade) education and past relevant work as a shipping/receiving clerk, car
salesperson, and day worker. (Tr. 40). Plaintiff ran away from a dysfunctional family in 1997,
when she was fifteen, and was unable to complete her education. (Tr. 587, 595). She was raped
when she was sixteen by a friend’s cousin, who went to jail. (Tr. 587. 595). In 2000, she entered
into a relationship with her now ex-boyfriend and had her first child. (Tr. 371, 587, 595). She had
two more children with him, but he was severely physically abusive to her, kicking and hitting
her in the head. (Tr. 587, 595). By June of 2008, Plaintiff had left him and was living on her
own, but was incarcerated shortly thereafter for theft by deception. (Tr. 397). Her mental health
diagnoses include major depressive disorder, generalized anxiety disorder (“GAD”), bipolar
disorder, borderline personality disorder, and post-traumatic stress disorder (“PTSD”). She also
has scoliosis, a large disc herniation with significant stenosis that touches her nerve roots,
“minimal” degenerative changes, and obesity. (Tr. 410, 550).
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On March 12, 2007, Plaintiff saw Jannis VanArsdale, CRNP, at Yorktown Family
Medicine for worsening depression and anxiety. (Tr. 387). She had been off her anti-depressant
medication and birth control since the beginning of the year because she could not afford them,
and was ten weeks pregnant. (Tr. 387). Ms. VanArsdale spent forty-five minutes counseling her
on the stresses of her life and “just allowed her to cry and talk.” (Tr. 387). On February 21, 2008,
Plaintiff saw Ms. Van Arsdale. (Tr. 420). She had many stressors, was tired all the time, and had
no energy to do anything. (Tr. 420). Ms. Van Arsdale prescribed Zoloft. (Tr. 420).
On March 10, 2008, Plaintiff had an initial assessment at Wellspan Behavioral Health.
(Tr. 393). She was depressed, anxious, and reported poor relationships, but her appearance,
memory and concentration, and energy were within normal limits. (Tr. 393). Her insight and
judgment were fair. (Tr. 393). She was diagnosed with major depression, recurrent, and assessed
a GAF of 55. (Tr. 394). On March 19, 2008, Plaintiff followed-up at Wellspan. (Tr. 400). She
discussed her poor finances and credit and her desire to eventually live on her own and get away
from the abusive father of her children. (Tr. 400). She had mild impairments in depression,
sadness, energy, motivation, social and family problems, anxiety, activities of daily living, and
job performance. (Tr. 400).
On April 23, 2008, Plaintiff reported that she had been fired that morning. (Tr. 399). She
had been in jail the night before because of theft by deception. (Id.). She explained that she had
been going through hard times financially and “wasn’t thinking.” (Id.). She was extremely upset,
tearful, appeared remorseful, embarrassed, and ashamed. (Id.). She had severe impairments in
depression, anxiety, and job performance. (Id.). She had moderate impairments in social and
family problems. (Id.). She had mild impairments in thinking, memory, or concentration,
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impulsiveness, aggressiveness, recklessness, or self-injurious behavior, appetite, energy,
motivation, and activities of daily living. (Id.).
On May 8, 2008, Plaintiff followed-up at Wellspan. (Tr. 398). She reported “terrible
guilt” for her legal problems. (Id.). She had severe impairments in job performance, moderate
impairments in depression, sadness, anxiety, activities of daily living, sleep, social and family
problems, energy, and motivation. (Id.). She had mild impairments in thinking, memory, or
concentration, impulsiveness, aggressiveness, recklessness, or self-injurious behavior. (Id.).
On June 5, 2008, Plaintiff followed-up at Wellspan Behavioral Health. (Tr. 397). She
discussed the many stresses in her life, including having her car repossessed, her upcoming court
date, and leaving the abusive father of her children. (Tr. 397). She had moderate impairments in
depression, sadness, anxiety, social and family problems, and job performance. (Tr. 397). She
had mild impairments in energy, motivation, thinking, memory, concentration, activities of daily
living, sleep, and appetite. (Tr. 397). She had made no progress in her treatment goals. (Id.).
On June 17, 2008, Plaintiff followed-up at Wellspan. (Tr. 396). She had been to Court
and offered three months in jail, but she was trying to get a better plea. (Id.). She was fearful of
going to jail, losing her job, and being away from her children. (Id.). She had moderate
impairments in depression, sadness, anxiety, and social and family problems. (Id.). She had mild
impairments in energy, motivation, thinking, memory, concentration, activities of daily living,
sleep, and appetite. (Tr. 396). She had made no progress in her treatment goals. (Id.).
On July 17, 2008, Plaintiff followed-up at Wellspan. She discussed her independence,
finances and her relationship with her children’s father. (Tr. 395). She had moderate impairments
in depression, sadness, anxiety, and social and family problems. (Id.). She had mild impairments
in energy and motivation, thinking, memory, concentration, activities of daily living, job
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performance, sleep, and appetite. (Id.). She had made no progress in her treatment goals. (Id.).
On July 13, 2008, Plaintiff was evaluated at Wellspan by Dr. Ramana G. Surya, D.O. (Tr.
369). Plaintiff was still taking Zoloft. (Tr. 369). She complained of depression symptoms,
including trouble concentrating. (Tr. 369). Her boyfriend was in jail with a protective order
against him. (Tr. 369). She had no thought disorder, grossly intact cognition, and fair insight and
judgment. (Tr. 369). She was assessed a GAF of 50. (Tr. 370). Plaintiff followed-up on July 23,
2008. (Tr. 371). She had many stresses-she had broke up with the father of her children, moved,
was sleeping on an air mattress, her baby was sick and teething, and her legal problems
continued. (Tr. 368). She was given a trial of Lamictal. (Tr. 371).
On January 4, 2009, Plaintiff followed up at Wellspan. (Tr. 368). She had been
incarcerated for her retail theft charge and was never able to fill her prescription for Lamictal, so
she was given a new trial. (Tr. 368). She was still on house arrest. (Tr. 368). She had been
struggling to get a job because of her felony, but was working on the weekends. (Tr. 368).
On April 22, 2009, Plaintiff followed up at Wellspan (Tr. 367). She could no longer
afford her prescriptions because she lost her job. (Id.). She was on probation for five years. (Id.).
She reported that she still gets depressed, had mood swings, and her sleep was off and on. (Id.).
She was prescribed Cymbalta. (Id.). On April 28, 2009, Plaintiff was assessed a GAF of 50.
(Id.). Her diagnoses were updated to include PTSD and GAD. (Tr. 435).
On June 17, 2009, Plaintiff followed up at Wellspan. (Tr. 392). She discussed her
relationship with her ex-boyfriend, current boyfriend, children, work, and finances. (Id.). She had
mild impairments of depression, medical conditions, social and family problems, job and school
performance, and sleep disturbance, and moderate impairments of anxiety, but no impairment in
thinking, memory, and concentration. (Id.). On July 17, 2009, Plaintiff followed-up at Wellspan.
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(Tr. 366). She reported that her moods swings were horrible. (Id.). She was desperate for money,
her rent was due, her car needed inspection, and she had no stove, refrigerator, or washer and
dryer. (Id.). She had got in trouble with the law again two days earlier while on probation. (Id.).
On September 18, 2009, a state agency consultant, Dr. Peter Garito, Ph.D, completed a
mental RFC assessment. (Tr. 492). He opined that Plaintiff had moderate limitations in her
ability to carry out detailed instructions, maintain attention and concentration for extended
periods of time, accept instructions and respond appropriately to criticism from supervisors, and
respond appropriately to changes in the work setting. (Tr. 492). He opined that she can make
“simple decisions,” carry out “very short and simple instructions” and do “simple, routine tasks
in work-like settings.” (Tr. 493). On the Psychiatric Review Technique Form (“PRTF”), he
opined that she had mild restriction in activities of daily living, moderate difficulties in
maintaining social function, and moderate difficulties in maintaining concentration, persistence,
and pace. (Tr. 505).
On August 30, 2009, Plaintiff was incarcerated for new charges. She reported depression,
mood swings, irritability, anxiety, and was prescribed Elavil. (Tr. 579). By October 12, 2009, she
was “not doing well” on Elavil. (Tr. 560). She reported that she was “very short fused, on edge
about everything” and that she had been sleeping a lot. (Tr. 560). Her Elavil was increased the
next day. (Tr. 579). She was rechecked on October 20, 2009, and was observed to have
“personality issues” but her mood swings were somewhat better. (Tr. 579). She again reported on
November 26, 2009 that Elavil was not working for her because she was still depressed, anxious,
experiencing mood swings, stays in bed, and does not get up to eat. (Tr. 560). She continued
taking Elavil through December of 2009, but changed to an evening dosage because she was not
waking up in the morning to take it then. (Tr. 560). On December 1, 2009, Plaintiff had been
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noncompliant with Elavil because it was “not doing anything.” (Tr. 578). She complained of
depression, anxiety, and was observed to have “prominent personality issues.” (Tr. 578). The
physician discontinued Elavil and prescribed Celexa. (Tr. 578). On January 26, 2010, she was
compliant with Celexa and reported that everything was fine, but by April 6, 2010, Plaintiff was
noncompliant with Celexa and requested that it be stopped because she was in gym and did not
like the “med line.” (Tr. 578). Plaintiff was released shortly thereafter.
On September 13, 2010, Plaintiff had a psychiatric evaluation with Dr. Leslie Lee, M.D.
(Tr. 587-88). She explained that she ran away from home when she was fifteen because her
mother and father were using marijuana and severely dysfunctional. (Tr. 587). She discussed her
abusive relationship with the father of her children. (Tr. 587). She explained that she was never
able to fully comply with psychotropic medication and treatment because she did not have
insurance and was in and out of jail. (Tr. 587). She was initially withdrawn, but engaged fully
later on. (Tr. 587). Her affect was depressed and mood congruent with normal thought process
and no signs of psychosis. (Tr. 587). She had reserved insight and judgment. (Tr. 588). She had
“full symptoms of depression” so she was prescribed Zoloft and trazodone and was assessed a
GAF of 45 to 50. (Tr. 588). On November 1, 2010, Plaintiff followed-up with Dr. Lee. She had
no complaints, but was still anxious and depressed. (Tr. 643). Dr. Lee increased her Zoloft and
instructed her to continue attending therapy. (Tr. 643).1
On December 7, 2010, Plaintiff was evaluated by Dr. Anthony Fischetto, Ed.D, a state
agency consultant. (Tr. 594). She reported that she was getting counseling at Pennsylvania
Counseling. (Tr. 595). She reported that she had a hard time concentrating in school and dropped
Despite multiple requests by Plaintiff’s counsel and a subpoena by the ALJ, records from
Plaintiff’s counseling were never provided. Given that the Court is remanding, the ALJ may
exercise her discretion if necessary to take further steps to obtain these records.
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out. (Tr. 595). She discussed the abusive father of her children and her rape. (Tr. 595). The father
has been in jail for domestic violence three times. (Tr. 595). She indicated that she raises her
three children with her mother and father. (Tr. 595). Children’s Services was involved when the
children were at the father’s house and the three-year old got out of the house. (Tr. 595).
Dr. Fischetto’s objective findings included slow psychomotor activity, slow and lowvolume speech, flat affect, slow productivity of thought, slow on naming the name of the United
States’ president, and slow information and intelligence for the general fund of knowledge. Her
concentration was “poor for serial sevens.” (Tr. 597). Her memory was “slow for remote
memory, recent past memory, and recent memory. Immediate retention and recall was slow for
Digit Span. She had difficulty spelling ‘world’ backwards.” (Tr. 598). Her social judgment and
test judgment were poor. (Tr. 598). Her thoughts were goal-directed and her abstract thinking
was “good for similarities.” (Tr. 597). Dr. Fischetto diagnosed her with depression, panic
disorder without agoraphobia, and borderline personality disorder “with a lot of anger.” (Tr.
598). He assessed her a GAF of 50. (Tr. 598).
Dr. Fischetto opined that Plaintiff’s concentration, persistence and pace were “poor”
because she “has trouble focusing, paying attention, she gets side-tracked. She appears to have a
limited attention span today during the evaluation.” (Tr. 599). He opined that she had slight
limitations in the ability to understand, remember, and carry out simple instructions and slight to
moderate limitations in the ability to understand, remember and carry out detailed instructions
and make judgments on simple work related decisions. (Tr. 600). He opined that she had slight
limitations in her ability to respond appropriately to work pressures in a usual work setting or to
respond appropriately to changes in a routine work setting. (Tr. 600).
On December 16, 2010, Dr. Sandra Banks, Ph.D, completed a mental RFC assessment.
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She opined that Plaintiff has a moderate limitations in her ability to maintain attention and
concentration for extended periods, work in coordination with or proximity to others without
being distracted by them, complete a normal workday and work week without interruptions from
psychologically based symptoms, perform at a consistent pace without an unreasonable number
and length of rest periods, accept instructions and respond appropriately to criticism from
supervisors and get along with coworkers or peers without distracting them or exhibiting
behavioral extremes. (Tr. 602-03). She opined that Plaintiff could only perform “simple, routine
work in a stable environment.” (Tr. 604). She found that Dr. Fischetto’s opinion was “fairly
consistent with the other evidence in file.” (Tr. 604). On the PRTF form, she opined that Plaintiff
had mild restriction in daily living, moderate difficulties in social functioning, and moderate
difficulties in maintaining concentration, persistence, and pace. (Tr. 615).
On January 3, 2011, Plaintiff followed-up with Dr. Lee. She was still in financial stress,
but seemed to be sleeping and eating “okay” and had no other complaints. (Tr. 642). Dr. Lee
continued her medication and assessed her a GAF of 60. (Tr. 642). On April 18, 2011, Plaintiff
was evaluated by Dr. Lee. (Tr. 641). She still had many stresses, but she was alert and oriented
with coherent, normal and goal directed speech. (Tr. 641). She was cooperative and not in
distress. (Tr. 641). She continued Plaintiff’s Zoloft and increased her trazodone. (Tr. 641). Dr.
Lee assessed her with a GAF of 55 to 60. (Tr. 641).
Plaintiff saw Ms. VanArsdale on February 21, 2008, April 8, 2008, May 27, 2008 and
July 24, 2008, and did not mention back pain. (Tr. 379-83). On March 17, 2009, Plaintiff
reported back pain, muscle spasm, and painful flexion to Ms. VanArsdale, but her straight leg
raise was negative and there was no indication of sensory or reflex loss. (Tr. 377). She was
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assessed “probable scoliosis.” (Tr. 377). May 12, 2009, Plaintiff saw Ms. VanArsdale and denied
having any musculoskeletal problems. (Tr. 375). On May 28, 2009, Plaintiff had back pain,
muscle spasm, and painful flexion, but deep tendon reflexes and strength were normal. (Tr. 374).
On June 22, 2009, Plaintiff was evaluated by Dr. K. Nicholas Pandelidis, M.D. for her
back pain. (Tr. 410). She had a mass that was not tender and evidence lumbar scoliosis with
forward bend. (Tr. 410). However, she had upright stance, “good” gait, no muscle spasm, no
tenderness, no leg weakness, and symmetric reflexes. (Tr. 410). She tolerated hip rotation and
straight leg raise well. (Tr. 410).
Plaintiff had a physical exam at York County Prison on September 11, 2009 after being
incarcerated two weeks earlier. (Tr. 584). She had decreased range of motion, pain, and muscle
spasm. (Tr. 584). She was “unable to stand straight, able to bear [weight] on both legs but reports
pain and numbness of left leg, able to dorsiflex and plantar flex left foot, no foot drop, gait slow
and guarded.” (Tr. 584). On September 16, 2009, Plaintiff was restricted from gym and was to
perform “no work” until cleared by medical staff as a result of chronic low back pain. (Tr. 577).
She indicated that muscle rubs and naproxen were not working, and was prescribed flexeril, but
only for three days. (Tr. 577). She was able to walk and transition easily up to the exam table,
but her range of motion was slightly restricted and she had a small muscle spasm. (Tr. 577). On
September 21, 2009, she reported that her left leg was numb and she was brought to the medical
unit via wheelchair. (Tr. 576). She walked with a limp secondary to pain and was diagnosed with
degenerative disc disease and scolioisis. (Tr. 576). She was prescribed another seven days of
flexeril. (Tr. 576). On October 8, 2009, Plaintiff was complaining of unresolved back pain. (Tr.
576). When she was told to exercise, she became belligerent and was asked to leave the
examination room before an exam was done. (Tr. 576). On April 7, 2010, Plaintiff reported that
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she was “doing well,” was exercising to lose weight, and her back pain had improved. (Tr. 575).
She was released from prison shortly thereafter.
On June 17, 2010, Plaintiff reported pain to Ms. VanArsdale but denied other
musculoskeletal problems (Tr. 524). She had normal grip, strength, range of motion in her back,
and deep tendon reflexes. (Tr. 525). She had negative straight leg raises and could heel and toe
walk. (Tr. 525). On July 6, 2010, Plaintiff saw Dr. Nicholas S. Bower, D.O, at Yorktown Family
Medicine, and reported she had some relief of symptoms with flexeril (Tr. 521). She had pain
and muscle spasm, but no neurological symptoms and normal coordination. (Tr. 523).
On July 14, 2010, Plaintiff was evaluated by Dr. Brenda R. Tomanek. (Tr. 511). Plaintiff
reported pain, numbness, and tingling, but her reflexes were normal. (Tr. 510). On July 15, 2010,
Plaintiff saw Dr. Nivedita Boinapally, MD., at Yorktown Family Medicine. She had no
tenderness to palpation, but her range of motion was severely limited secondary to pain. (Tr.
520). Although Plaintiff self-reported numbness and tingling, Dr. Boinapally did not perform any
objective tests to measure sensory or reflex loss. (Tr. 520). On July 29, 2010, Plaintiff saw Dr.
Nicholas S. Bower, D.O, at Yorktown Family Medicine, and reported that her tramadol and
flexeril “take the pain down to minimal or moderate level.” (Tr. 515). She was going to the gym.
(Tr. 515). She had spasm but no neurological symptoms with normal coordination. (Tr. 517).
On July 23, 2010, an MRI of Plaintiff’s lumbar spine indicated a large disc herniation
that compromises the left lateral recess and touches the left side of the L5 nerve with 10.6 mm
posterior protrusion, along with minimal degenerative changes of the L5-S1 disc. (Tr. 555).
On August 4, 2010, Plaintiff saw Ms. VanArsdale, CRNP. Plaintiff had pain and a
positive straight leg raise, but normal motor, sensory, and reflex testing, muscle tone, gait, and
balance. (Tr. 544-48). Her lower extremity pulses were intact, she had no muscle atrophy and she
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denied symptoms of neuropathy and claudication. (Id.).
Function Report, Testimony, and ALJ Findings
On August 15, 2010, Plaintiff’s mother completed a Function Report. (Tr. 311). On
August 16, 2010, Plaintiff completed a Function Report. Both indicated that her back pain
impacts her ability to care for her children, meal preparation, house and yard work. (Tr. 311-313,
328-330). Plaintiff additionally reported that her back pain impacts her personal care and sleep.
(Tr. 328-30). She reported that she had difficulties getting along with others and had been fired
from jobs as a result. (Tr. 333). She reported that her ability to pay attention “depends,” and that
she can pay attention for “maybe an hour or two.” (Tr. 333). She reported that she could not
finish tasks that she started, and if she did finish them, it was always at a later time. (Tr. 333).
Plaintiff indicated that she does not follow spoken instructions because she forgets what was
said. (Tr. 333). Plaintiff indicated that she follows written instructions “okay” but she always has
to re-read them. (Tr. 333). However, Plaintiff’s mother reported that she follows written and
spoken instructions “very well.” (Tr. 316). Plaintiff and her mother indicated that her pain
limited her from completing tasks. (Tr.316, 333). Plaintiff reported that she does not handle
changes in routine unless they are “her changes.” (Tr. 334). Plaintiff indicated that she has
abnormal fears that people will hurt her mentally “because everyone lies.” (Tr. 334).
Plaintiff appeared and testified at a hearing before the ALJ on July 28, 2011. (Tr. 36). She
testified that she was currently incarcerated for stealing tools. (Tr. 45). She testified that she was
able to read, but had problems concentrating while reading. (Tr. 40). She testified that when she
first arrived at prison, she was put on suicide watch for about five days. (Tr. 41). She testified
that her depression keeps her from getting out of bed and doing household chores. (Tr. 45). She
explained that her depression and anxiety had worsened since being in prison and that she felt
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like a failure. (Tr. 45). She testified that her older children “pretty much fend for themselves”
and help out with her younger son. (Tr. 63). She testified that she has problems with personal
hygiene and has gone four days without taking a shower. (Tr. 65). She testified that she has
mood swings, anger problems, and problems with impulsivity. (Tr. 66). She testified that she has
panic attacks and that her post-traumatic stress disorder causes nightmares and flashbacks. (Tr.
69). She testified that she would have to call off work two to three days a week because of a
combination of her back, bowels, and depression. (Tr. 72).
She testified that she had been self-employed in 2010 cleaning homes but that her back
pain forced her to take breaks, so she charged her clients based on what they wanted her to do,
rather than how long it took her to complete the job. (Tr. 38). She testified that her doctor had
restricted her from lifting more than five pounds and that she had problems sitting or standing for
more than fifteen minutes. (Tr. 46). She testified that a sit/stand option would not enable her to
work because she also needed to be able to stretch and walk away from her station. (Tr. 47).
A VE also appeared and testified. (Tr. 83). The VE testified that, given the ALJ’s RFC
assessment described below, Plaintiff could not perform her past relevant work, but could
perform other work in the national economy, such as a final assembler, a label picker, and a table
worker. (Tr. 78-82). Plaintiff’s counsel was allowed to question the VE, but the ALJ required her
to include all of her limitations in one hypothetical because she was under contract to let the VE
leave at 5:00. (Tr. 84). The vocational expert testified that a GAF score of 50 or below would
preclude an individual from working. (Tr. 84). The VE testified that if a claimant would either
call off work two or three times per week or be off task twenty to thirty percent of the day, there
would be no work in the national economy that could be performed. (Tr. 85).
Page 16 of 29
The ALJ issued her decision on September 21, 2011. At step one, the ALJ found that
Plaintiff was insured through December 31, 2013 and had not engaged in substantial gainful
activity since September 1, 2008, the alleged onset date. (Tr. 13). At step two, the ALJ found that
Plaintiff’s degenerative disc disease of the lumbar spine, scoliosis, sciatica, obesity, generalized
anxiety disorder, major depressive disorder, bipolar disorder, post-traumatic stress disorder,
personality disorder, and irritable bowel syndrome were severe. (Tr. 13). The ALJ found that
Plaintiff’s neck pain and hand numbness were not caused by medically determinable
impairments and that Plaintiff’s gallstones were non-severe. (Tr. 13). At step three, the ALJ
found that Plaintiff did not meet or equal a listing. (Tr. 14-16). The ALJ found that Plaintiff had
the RFC to do a limited range of sedentary work with a sit/stand option, limited to occasionally
climbing ramps, stairs, stooping, and interacting with supervisors, never interacting with
coworkers or the public, and unskilled work. (Tr. 16). She is also limited to positions where she
is within two minutes of a rest room with up to two additional five minute restroom breaks. (Tr.
16). At step four, the ALJ found that Plaintiff could not perform any past relevant work, but at
step five, the ALJ found that Plaintiff could perform other work in the national economy, such as
a final assembler, a label picker, and a table worker. (Tr. 21).
Plaintiff Allegations of Error
The ALJ’s RFC assessment and VE hypothetical
Here, the ALJ found that, despite Plaintiff’s multiple severe impairments, the only
nonexertional limitations she needed were a restriction to unskilled work and limiting her social
interactions. The ALJ did not include any limitations in concentration, understanding, following
instructions, adapting to changes in the workplace, or following instructions. Plaintiff asserts
that the ALJ’s failure to include specific limitations in the RFC assessment regarding her
concentration, persistence, and pace violate Third Circuit precedent. In Burns v. Barnhart, 312
Page 17 of 29
F.3d 113 (3d Cir. 2002), the ALJ had found that the claimant had borderline intellectual
functioning, and accommodated for this limitation by restricting the claimant to simple,
repetitive, one and two-step tasks. The Third Circuit found that the ALJ’s step five
determination, based on a VE hypothetical, lacked substantial evidence:
Here, the ALJ's hypothetical did not refer to any of the type of limitations later outlined
in Dr. Laviolette's report. Instead, it merely referred to “simple repetitive one, two-step
tasks.” This phrase, however, does not specifically convey Burns' intellectual limitations
referenced in Dr. Laviolette's report. Rather, it could refer to a host of physical and
mental limitations, such as a person's mechanical or small motor skills, his lack of
initiative or creativity, or a fear of, or unwillingness to take on, unfamiliar tasks. While
the phrase could encompass a lack of intelligence, it does not necessarily incorporate all
of the borderline aspects of Burns' intellectual functioning or the other deficiencies
identified in Dr. Laviolette's report. For example, it certainly does not incorporate Dr.
Laviolette's finding that Burns is borderline in the areas of reliability, common sense,
ability to function independently, and judgment, or that he manifests flightiness,
disassociation, oppositional tendencies, and difficulties in comprehension. As a result, the
hypothetical did not include all of the limitations suffered by Burns, thus making it
Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002). More importantly, the Third Circuit has
specifically addressed the need to include limitations in concentration, persistence, and pace in
an RFC assessment or VE hypothetical. In Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir.
2004), the Court held that a limitation to simple one or two step tasks was not sufficient to
convey limitations in concentration, persistence, and pace identified on a Psychiatric Review
Technique Form (“PRTF”):
These limitations do not adequately convey all of Ramirez's limitations. The
Commissioner contends that the limitation to one to two step tasks is sufficient, but we
agree with the Magistrate Judge that a “a requirement that a job be limited to one to two
step tasks, as was stated in the hypothetical relied upon by the ALJ, does not adequately
encompass a finding that [Ramirez] ‘often’ has ‘deficiencies in concentration,
persistence, or pace,’ as was noted by the ALJ both in her decision and on the PRTF
attached to the decision.” (Appendix at 72.) Most importantly, this limitation does not
take into account deficiencies in pace. Many employers require a certain output level
from their employees over a given amount of time, and an individual with deficiencies in
pace might be able to perform simple tasks, but not over an extended period of time. If
Ramirez often suffers deficiencies in pace and this had been included in the hypothetical,
Page 18 of 29
vocational expert Stratton may have changed her answer as to whether there were jobs in
the local or national economy that Ramirez could perform. In fact, the vocational expert
testified that each of the jobs suitable for Ramirez (assembler, packer, and inspector)
would have daily production quotas and that Ramirez would have to maintain a certain
degree of pace to maintain those jobs.
This omission from the hypothetical runs afoul of our directive in Chrupcala that a
“hypothetical question posed to a vocational expert ‘must reflect all of a claimant's
impairments,” Chrupcala, 829 F.2d at 1276, as well as our statement in Burns that “great
specificity” is required when an ALJ incorporates a claimant's mental or physical
limitations into a hypothetical. Burns, 312 F.3d at 122. Indeed, the SSA's own ruling
requires a “more detailed assessment” of the claimant's mental limitations at step five of
the disability analysis. See SSR 96–8p (July 2, 1996).
Of course, there may be a valid explanation for this omission from the ALJ's
hypothetical. For example, the ALJ may have concluded that the deficiency in pace was
so minimal or negligible that, even though Ramirez “often” suffered from this deficiency,
it would not limit her ability to perform simple tasks under a production quota. The
record, however, would seem to suggest otherwise. At the second hearing, Dr. Rudnick—
upon whose testimony the ALJ relied—was asked the following question: “What happens
to [Ramirez's] ability to handle pace, for example, in a work situation, where there's a
certain amount of work that has to be done in an eight hours or two hours or whatever
segment?” (A.R. at 451.) Although the ALJ briefly interceded before Dr. Rudnick could
answer, Dr. Rudick eventually replied that Ramirez's ability to maintain a full-time job
depended primarily on “the proximity to where her children would be” because Ramirez's
anxiety-disorder is in large part attributable to her “need to feel that she has to be
reasonably protective of her children.” While this might lead a neutral observer to
conclude that Ramirez's deficiencies in pace could be overcome by finding a job close to
her children, the ALJ did not include this limitation in her hypothetical. Instead, the ALJ
provided only for a reasonable number of personal phone calls. If this accommodation
would not remedy Ramirez's deficiency in concentration and pace, the vocational expert
might have given a different answer to the hypothetical.
Relying on Social Security Ruling 96–8p, which we reproduced in part earlier in this
opinion, the Commissioner contends that the “PRTF does not document specific
functional limitations for RFC purposes, bur rather assesses functional loss from a
claimant's mental impairments only with respect to broad areas of functioning.” In other
words, the Commissioner argues that the PRTF findings are relevant only in steps two
and three of the sequential evaluation process, before any assessment of a claimant's
residual functional capacity is made.
We cannot concur in the Commissioner's evaluation of the PRTF findings. While SSR
96–8p does state that the PRTF findings are “not an RFC assessment” and that step four
requires a “more detailed assessment,” it does not follow that the findings on the PRTF
play no role in steps four and five, and SSR 96–8p contains no such prohibition.
Ramirez v. Barnhart, 372 F.3d 546, 554-55 (3d Cir. 2004).
Page 19 of 29
Defendant correctly notes that, unlike Ramirez, the ALJ here made a specific finding as
to the impact of concentration on Plaintiff’s ability to work, and found that a limitation to
unskilled work was sufficient. Thus, in some ways, this is not a true Ramirez challenge, but
rather a challenge to the ALJ’s finding that her concentration required only a limitation to
unskilled work. However, Plaintiff did not only have problems with concentration. She also had
problems with persistence and pace. The ALJ specifically found that she had difficulty finishing
tasks. Dr. Fischetto, whose opinion was improperly discounted by the ALJ, opined that she was
“slow” in many aspects. However, the ALJ limited his finding regarding unskilled work only to
Plaintiff’s “concentration difficulty.” (Tr. 18). Consequently, with regard to persistence and pace,
this is a true Ramirez challenge, because the ALJ found (and the record supports) specific
problems with persistence and pace, but no limitations regarding persistence and pace were
included. Harris v. Astrue, 4:11-CV-00556, 2012 WL 1902596 at * 10 (M.D. Pa. May 25, 2012)
(moderate limitation in concentration, persistence, and pace is not adequately accounted for by a
limitation to unskilled work because “[t]here are clearly many unskilled jobs that require an
employee to maintain pace.”); Foley v. Barnhart, 432 F. Supp. 2d 465, 482 (M.D. Pa. 2005)
(“Because pace and concentration are different characteristics which could have distinctly
different impacts on performance, the ALJ's hypothetical was not broad enough to include the
limitations she recognized in her decision.”).
Moreover, the ALJ’s conclusion that a limitation to unskilled work sufficiently
accommodates Plaintiff’s concentration difficulties lacks substantial evidence. The only
justification the ALJ gave was that Plaintiff was noted to have an “intact immediate memory,
intact remote memory, intact recent memory, and intact concentration on another occasion” with
intact cognition, no thought disorder, and good abstract thinking. (Tr. 18) (citing Tr. 365-71,
Page 20 of 29
391-405). It is unclear what records the ALJ was citing. The Court notes that, on July 23, 2008,
Dr. Surya noted that Plaintiff had no current thought disorder, and her cognition was “grossly
intact.” (Tr. 369). However, Dr. Surya also noted that Plaintiff had racing thoughts, trouble
concentrating, low energy, and lack of motivation, among other symptoms. (Tr. 369). Dr. Surya
also assessed a GAF of 50, which indicates severe impairments. (Tr. 370). Moreover, this
treatment record was prior to Plaintiff’s alleged onset date. Similarly, the only time intact
immediate memory, remote memory, and recent memory are noted is in a treatment note from
March 10, 2008, which is also before the alleged onset date. (Tr. 393). It does not appear that the
ALJ cited to any evidence during the relevant period that Plaintiff’s concentration, persistence,
and pace would not affect her ability to engage in unskilled work.
Even if the notations from March and July of 2008 had been during the relevant period,
they would not have constituted substantial evidence to conclude that Plaintiff’s concentration,
persistence and pace did not limit her ability to engage in unskilled work. Overall, both state
agency consultants who completed a PRTF (Dr. Garvito and Dr. Banks) opined that Plaintiff had
moderate difficulties in maintaining concentration, persistence, and pace. (Tr. 505, 615). The
ALJ concurred at step three. (Tr. 15). The PRTF and RFC assessments are not coextensive.
However, the ALJ did not limit his step three analysis to the four broad Paragraph B categories.
Instead, the ALJ also made specific findings as to difficulty handling stress and changes in her
routine, finishing tasks, and following spoken and written instructions. (Tr. 15). Moreover, as the
Court in Ramirez noted, “[w]hile SSR 96–8p does state that the PRTF findings are “not an RFC
assessment” and that step four requires a “more detailed assessment,” it does not follow that the
findings on the PRTF play no role in steps four and five, and SSR 96–8p contains no such
prohibition.” Id. at 554-55 (3d Cir. 2004).
Page 21 of 29
Additionally, the ALJ cited to these opinions in the RFC assessment, along with the
opinion of the examining consultant, Dr. Fischetto. Dr. Garito and Dr. Fischetto both specifically
opined that Plaintiff had moderate limitations with detailed instructions. (Tr. 492, 600). Dr.
Garito and Dr. Banks both opined that Plaintiff needed to be limited to simple, routine work. (Tr.
541, 604). Dr. Garito and Dr. Fischetto both specifically opined that Plaintiff had moderate
limitations with responding appropriately to changes in the work setting. (Tr. 492, 600). Dr.
Fischetto opined also opined that Plaintiff had moderate limitations in her ability to respond
appropriately to work pressures in a usual work setting. (Tr. 600). Dr. Banks also opined that
Plaintiff had moderate limitations in her ability to work in coordination with or proximity to
others without being distracted by them, complete a normal workday and work week without
interruptions from psychologically based symptoms, and get along with coworkers or peers
without distracting them or exhibiting behavioral extremes. (Tr. 602-03).
Dr. Garito and Dr. Banks both opined that Plaintiff had moderate limitations in her ability
to maintain attention and concentration for extended periods of time. (Tr. 492, 602). The form
completed by Dr. Fischetto did not specifically ask him to rate her ability to maintain attention
and concentration for extended periods of time, but he did spontaneously opine that her
concentration, persistence and pace were “poor” because she “has trouble focusing, paying
attention, she gets side-tracked. She appears to have a limited attention span today during the
evaluation.” (Tr. 599). This opinion was based on his objective findings that Plaintiff had slow
psychomotor activity, slow and low-volume speech, flat affect, slow productivity of thought, was
slow naming the name of the United States’ president, and slow information and intelligence for
the general fund of knowledge. (Tr. 597). He also found that her concentration was “poor for
serial sevens” and that her memory was “slow for remote memory, recent past memory, and
Page 22 of 29
recent memory. Immediate retention and recall was slow for Digit Span. She had difficulty
spelling ‘world’ backwards.” (Tr. 598). In sum, none of the medical opinions indicated less than
moderate problems with maintaining attention and concentration for extended periods of time.
The ALJ gave “significant weight” to the majority of the opinions of Dr. Banks and Dr.
Garito, including significant weight specifically to Dr. Garito’s opinions “as to sustaining
concentration and persistence…as those opinions are consistent with the evidence of record.”
(Tr. 18). However, Dr. Garito’s limitations regarding concentration and persistence were not
included in the RFC assessment. The ALJ gave limited weight to Dr. Banks opinions regarding
concentration and persistence because of Plaintiff’s “self-employment business and activities of
daily living,” but this was improper. Smith v. Califano, 637 F.2d 968, 971 (3d Cir. 1981)
(“sporadic or transitory activity does not disprove disability”). The ALJ gave limited weight to
the opinion of Dr. Fischetto for only one reason: because he had only examined Plaintiff once.
(Tr. 19). This plainly constitutes rejecting an opinion for “no reason or for the wrong reason,”
Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993), considering she gave significant weight
to the opinions of physicians who had never examined Plaintiff. Consequently, no reasonable
mind could accept the relevant evidence as adequate to justify the ALJ’s exclusion of the
limitations identified by these medical experts.
The non-opinion record evidence similarly contradicts the ALJ’s RFC assessment.
Although Plaintiff was noted to have normal memory, thinking and concentration on March 10,
2008, her treating physicians opined that she had impaired memory, thinking, and concentration
on April 23, 2008, May 8, 2008, June 5, 2008, June 17, 2008, and July 17, 2008. (Tr. 395-399).
She was observed to have impaired energy and motivation on February 21, 2008, March 19,
Page 23 of 29
2008, April 23, 2008, May 8, 2008, June 17, 2008, July 17, 2008, May 28, 2009, throughout her
incarceration, and on September 13, 2010. (Tr. 395-96, 398-400, 420, 438, 560-78, 588).
Defendant cites to Douglas v. Astrue, CIV.A. 09-1535, 2011 WL 482501 (E.D. Pa. Feb.
4, 2011) for the proposition that limiting a claimant to unskilled work adequately accommodates
moderate limitations in concentration, persistence, and pace. However, Douglas relies on a
distinction between “often” and “moderate” to conclude that Ramirez does not apply. The Court
does not find this reasoning to be persuasive. Instead, the Court notes that:
At the time Ramirez was issued, the regulations rated the relevant limitations on a
frequency continuum: “never,” “seldom,” “often,” “frequent,” and “constant.” Revised in
2000, the present system rates mental impairments in terms of severity: “none,” “mild,”
“moderate,” “marked,” and “severe .” See Colon v. Barnhart, 424 F.Supp.2d 805, 811
(E.D.Pa.2006) (explaining the revisions). Various district courts have concluded that a
rating of “often” under the former system is equivalent to “moderate” under the present
system, as both designations fall at the same point on the five-point scales. See, e.g., Id.;
Dynko v. Barnhart, No. 03–cv–3222, 2004 WL 2612260, at *5 n. 34 (E.D.Pa. Nov.16,
Keefer v. Astrue, 3:12-CV-1665, 2014 WL 1095726 n. 10 (M.D. Pa. Mar. 19, 2014). Other
courts have relied on nonprecedential opinions, McDonald v. Astrue, 293 Fed. Appx. 941, 946 &
n. 10 (3d Cir.2008) and Menkes v. Astrue, 262 F. App'x 410, 412 (3d Cir. 2008), to conclude
that Ramirez does not apply to cases after 2000 that use the severity scale instead of the
frequency scale. However, Menkes did not even mention Ramirez, even though it was directly
on point. Another District Court has explained why McDonald is not persuasive:
The Commissioner does not dispute that the ALJ did not include in his hypothetical
question any explicit limitation in line with his finding that Plaintiff had “moderate
difficulties” with concentration, persistence, or pace. Rather, the Commissioner first
argues that Ramirez ‘s holding has been narrowed by the subsequent decision of
McDonald v. Astrue, 293 F. App'x 941, 946–47 (3d Cir.2008). I need not address this
argument in much detail because regardless of McDonald’ s holding, that decision is not
precedential. See Third Circuit Internal Operating Procedure 5.7 (indicating that nonprecedential “opinions are not regarded as precedents that bind the court because they do
not circulate to the full court before filing”); In re: Grand Jury Investigation, 445 F.3d
266, 276 (3d Cir.2006) (explaining that because the Third Circuit's Internal Operating
Page 24 of 29
Procedures do not regard non-precedential opinions as precedent binding upon itself,
these non-precedential opinions “are not precedents for the district courts of this circuit”).
Thus, Ramirez remains the controlling law of this circuit, binding on this Court.
Boyle v. Colvin, 12-4724 FLW, 2014 WL 3556507 at *11 (D.N.J. July 18, 2014). The Court also
finds the following rationale persuasive:
Citing McDonald v. Astrue, 293 Fed. Appx. 941, 946 & n. 10 (3d Cir.2008) (non
precedential), the Commissioner argues that the difference in nomenclature between
“moderate” and “often” means that Ramirez is inapposite. Def.'s Br. at 14–15. However,
Strouse and Weinsteiger provide convincing explanations for why McDonald does not
undermine the Ramirez rule as it is applied in this district. See Strouse, 2010 WL
1047726, at *6 (explaining that McDonald failed to address the change in regulatory
terminology and the nomenclature change was not dispositive, because there was a lack
of record support for McDonald's asserted functional limitations); Weinsteiger, 2010 WL
331903, at *10 & n. 3 (noting that McDonald is not precedential and, as explained in
Bunch v. Astrue, 2008 WL 5055741, *5 & n. 4 (E.D.Pa. Nov.26, 2008), the change in
regulatory terminology does not circumvent Ramirez's requirement that hypothetical
questions accurately convey the limitations the ALJ has found).
Plank v. Colvin, CIV. 12-4144, 2013 WL 6388486 (E.D. Pa. Dec. 6, 2013). Moreover, unlike
Ramirez, there is no indication that the ALJ in Douglas also found a specific limitation in pace.
Here, the ALJ specifically held that Plaintiff had difficulty finishing tasks.
Defendant’s only other argument is that Ramirez is distinguishable here because the ALJ
“found that the only vocationally relevant limitations were the need to avoid” social interactions.
(Def. Brief at 26). Defendant’s assertion is circular logic: because the ALJ found that difficulty
concentrating and finishing tasks do not cause vocationally relevant limitations, the failure to
include concentration, persistence and pace limitations was proper. Moreover, this is exactly
what happened in Ramirez. In Ramirez, the claimant had multiple medical source opinions that
she “often” had problems in concentration, persistence, and pace, and “often” was the middle
category on the PRTF. Here, Plaintiff had multiple medical source opinions that she had
“moderate” limitations in concentration, persistence, and pace, and “moderate” was the middle
category on the revised PRTF. In Ramirez, the consultative psychiatrist opined that the claimant
Page 25 of 29
could not perform complex or complicated work. Here, the ALJ specifically found that Plaintiff
had difficulty finishing tasks and difficulty concentrating and multiple doctors opined she could
not perform complex or complicated work. Thus, Ramirez governs this case.
Ramirez and Burns do not require the ALJ to include a limitation in concentration,
persistence, and pace if the record otherwise supports a finding that no such limitation is
necessary. However, here, the ALJ selectively cited to two treatment records before the alleged
onset date to conclude that Plaintiff’s concentration, persistence, and pace difficulties would not
limit her ability to perform unskilled work. This is insufficient for the Court to conclude that the
record otherwise suggests that no additional limitations were necessary. As another Court in this
District has explained:
In light of Ramirez, which Plaintiff invokes in her brief, we find that the ALJ's
hypothetical failed to sufficiently convey Plaintiff's impairments. We deem it significant
that the ALJ's own factual finding reflected that Plaintiff experienced “moderate”
deficiencies in concentration, persistence, or pace at step three (Tr. 20), but that later,
without expressing a rationale, the ALJ not only failed to mention such deficiency but
affirmatively stated that production or pace work would be acceptable. (Tr. 61). It is
plausible that, as suggested in Ramirez, the ALJ determined Plaintiff's limitations in
concentration, persistence, or pace to be adequately moderated by means of other
accommodation. However, the ALJ did not offer a rationale which would harmonize the
two apparently dissonant statements. We are further compelled by the rulings of other
district courts within our Circuit, which have similarly refused to uphold an ALJ's
decision where the claimant had “moderate” deficiencies in concentration, persistence, or
pace (or “often” experienced such deficiencies), and the ALJ limited the claimant to only
simple and routine and/or low-stress work. See, e.g., Kaumans v. Astrue, No. 11–cv–
01404, 2012 WL 5864436, at *10 (M.D.Pa. Nov.19, 2012).Keiderling v. Astrue, No. 07–
2237, 2008 WL 2120154, at *6–7 (E.D.Pa. May 20, 2008); Barry v. Astrue, No. 05–1825,
2007 WL 2022085, at *4 (E.D.Pa. July 9, 2007); Foley v. Barnhart, 432 F.Supp.2d 465,
481–82 (M.D.Pa.2005). In addition, as observed by Ramirez, we cannot discount that it is
Defendant's burden to demonstrate Plaintiff's capacity to undertake alternative
employment in the national economy. See Ramirez, 372 F.3d at 555 (citing Burns, 312
F.3d at 119).
Keefer v. Astrue, 3:12-CV-1665, 2014 WL 1095726 at *5-6 (M.D. Pa. Mar. 19, 2014) (emphasis
added). Consequently, the ALJ’s decision lacks substantial evidence.
Page 26 of 29
Remaining allegations of error
Although the ALJ, in his discretion, may revisit these issues, the Court finds no merit to
Plaintiff’s remaining allegations of error. First, Plaintiff writes that the ALJ improperly evaluated
the subjective symptoms arising from her physical impairments because “the ALJ only cites to
Grays’ period as a house cleaner to support the assertion that she is not disabled.” (Pl. Brief at
18). Plaintiff proceeds to challenge the ALJ’s reliance on Plaintiff’s ability to work as a
housekeeper and go grocery shopping. (Pl. Brief at 18-19).
However, the ALJ did not “only” cite to Plaintiff’s daily activities. The ALJ relied on two
additional, separate factors to discount Plaintiff’s credibility. First, the ALJ asserted that medical
evidence in the record contradicted her claims. (Tr. 17-18). The ALJ noted that she generally had
a good gait and upright stance, she denied musculoskeletal problems and had no leg weakness,
she generally had normal strength, balance, and coordination, negative straight leg raise except
for one occasions, could heel and toe walk and had no atrophy in her lower extremities. (Id.).
Second, the ALJ rejected Plaintiff’s credibility because of her limited, conservative treatment.
(Tr. 17-18). Plaintiff has not challenged any of these findings, and they are proper bases for
rejecting credibility. SSR 96-7p. Thus, even assuming the ALJ erred in relying on Plaintiff’s
activities, substantial evidence would still support the credibility finding.
Additionally, Plaintiff’s argument that the ALJ erred in failing to find that her back
impairment meets or equals Listing 1.04A fails. Listing 1.04A requires sensory or reflex loss.
Plaintiff does not identify any objective medical evidence to support a claim that she experiences
sensory or reflex loss and Plaintiff’s credibility regarding her subjective statements was properly
discounted. Instead, the examinations revealed that her reflexes were normal and symmetric. (Tr.
374, 410, 525, 548). Thus, there is no merit to this allegation of error.
Page 27 of 29
Third, Plaintiff’s argument that the ALJ erred in assessing her to have only moderate
difficulties in social functioning or concentration, persistence, and pace fails. No physician
opined that Plaintiff had greater than moderate limitations in these areas. With regard to social
functioning, Plaintiff cites to Dr. Fischetto’s consultative opinion and the ALJ’s limitations
regarding social interaction in the RFC assessment. However, Dr. Fischetto opined that, for the
purposes of the Paragraph B criteria, Plaintiff had only moderate limitations. Plaintiff has cited
no authority for the proposition that an ALJ must find a marked limitation in social functioning
at step three if the ALJ subsequently limits a claimant’s social interactions in the RFC
assessment. The RFC assessment is a more detailed evaluation of specific functioning than the
step three assessment. Moreover, Plaintiff does not challenge the ALJ’s justification for finding
that her impairment is no more than moderate. The ALJ wrote that Plaintiff “spends time with
others…does not need to be reminded to go places…does not need to be accompanied when she
goes out…has several friends…[and] was noted to be cooperative during a consultative
examination.” (Tr. 15). A reasonable mind would accept these factors as adequate.
With regard to concentration, persistence, and pace, Plaintiff asserts that it was improper
for the ALJ to rely on Plaintiff’s memory to find that her impairment in concentration,
persistence, and pace were only moderate. (Pl. Brief at 13). Plaintiff selectively cited from
portions of Listing 12.00(C)(3), noting that:
Under 20 C.F.R. Subprt. P. App. 1 12.00(C)(3) concentration, persistence or pace refers
to the ability to sustain focused attention and concentration sufficiently long to permit
timely and appropriate completion of tasks commonly found in the work setting.
Additionally, on mental status examinations, concentration is assessed through tasks such
as serial sevens or serial threes.
(Pl. Brief at 13-14). However, Plaintiff fails to note that next sentence states “[i]n psychological
tests of intelligence or memory, concentration is assessed through tasks requiring short-term
Page 28 of 29
memory or through tasks that must be completed within established time limits.” Id. Thus, the
Listing explicitly allows for memory to be used as a consideration in evaluating concentration,
persistence, and pace. The Court concludes that a reasonable mind would accept this evidence as
adequate. Consequently, substantial evidence supports the ALJ’s step three determination.
The Court finds that the ALJ’s decision lacks substantial evidence because she failed to
include all of Plaintiff’s nonexertional limitations in her RFC assessment or provide adequate
explanation for their omission. Pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner
is vacated, and this case is remanded for further proceedings.
An appropriate Order in accordance with this Memorandum will follow.
Dated: September 11, 2014
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE
Page 29 of 29
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