Gorby v. Colvin
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 1/11/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
: (Magistrate Judge Cohn)
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
Before the court for disposition is Plaintiff Brandy Gorby’s appeal of
the defendant’s denial of her application for supplemental security income
benefits. Plaintiff suffers from depression, anxiety, attention deficithyperactivity disorder and oppositional defiant disorder, which render her
completely unable to function outside of her home according to her treating
psychiatrist. Magistrate Judge Gerald B. Cohn issued a report and
recommendation (hereinafter “R&R”) suggesting that the appeal be denied.
Plaintiff has filed objections to the R&R, bringing the case to its present
This background section addresses only the procedural background
of the case. The factual background is addressed where appropriate
Plaintiff applied for supplemental security income2 (hereinafter “SSI”)
under the Social Security Act, 42 U.S.C. §§ 401-433 on May 3, 2013.
(Doc. 11, Administrative Record (hereinafter “R.”) at 18). The Bureau of
Disability Determination denied the application on July 12, 2013. (R. at
58-74). Plaintiff then requested a hearing before an Administrative Law
Judge (hereinafter “ALJ”). (R. at 77-79). ALJ Patrick Cutter held a hearing
on June 4, 2014 and issued a decision on June 12, 2014 finding that
plaintiff is not disabled and not entitled to benefits. (R. at 11-36). Plaintiff
requested review by the Appeals Council. (R. at 8-10). The Appeals
Council denied review on September 16, 2014. (R. at 1-6). Thus, the
decision of the ALJ became the “final decision” of the Social Security
Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).
On November 17, 2014, plaintiff instituted the instant action pursuant
to 42 U.S.C. § 405(g) appealing the decision of the Commissioner. (Doc.
1). The Commissioner answered the complaint and filed the administrative
transcript of proceedings on January 21, 2015. (Doc. 10, 11). The parties
Supplemental security income (hereinafter “SSI”) is a federal income
supplement program funded by general tax revenues (not social security
taxes). 42 U.S.C. § 1381. It is designed to help the aged, blind or disabled
individuals who have little or no income. 42 U.S.C. § 1381a. Insured
status is irrelevant in determining a claimant’s eligibility for supplemental
security income benefits. 42 U.S.C. § 1382.
briefed their respective positions, and the court referred the matter to
Magistrate Judge Cohn for the issuance of an R&R.
On March 3, 2016, Magistrate Judge Cohn issued his R&R,
recommending the denial of plaintiff’s appeal. (Doc. 17). Plaintiff then filed
objections to the report and recommendation. (Doc. 18). The government
waived the opportunity to respond to the objections. (Doc. 19). The case
is thus ripe for disposition.
The court has federal question jurisdiction over this Social Security
Administration appeal. See 42 U.S.C. § 1383(c)(3) (“The final
determination of the Commissioner of Social Security after a hearing under
paragraph (1) shall be subject to judicial review as provided in section
405(g) of this title to the same extent as the Commissioner’s final
determinations under section 405 of this title.”); see also 42 U.S.C. §
405(g) (“Any individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party, irrespective
of the amount in controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice
of such decision or within such further time as the Commissioner of Social
Security may allow. Such action shall be brought in the district court of the
United States for the judicial district in which the plaintiff resides, or has his
principal place of business . . . .”).
Standard of Review
This case is before the court on objections to the magistrate judge’s
R&R. To dispose of such objections, the district court must make a de
novo determination of those portions of the report against which objections
are made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d
1077, 1085 (3d Cir. 1983). The court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate
judge. Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). The
district court judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions. Id.
In reviewing a Social Security appeal, this court must determine
whether “substantial evidence” supports the ALJ’s decision. See 42 U.S.C.
§ 405(g); Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir.
2012); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). The United
States Supreme Court has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).
The Third Circuit Court of Appeals has explained that “substantial evidence
has been defined as ‘more than a mere scintilla;’ it means ‘such relevant
evidence as a reasonable mind might accept as adequate.’” Hagans, 694
F.3d at 292 (quoting Plummer, 186 F.3d at 427).
The court should not reverse the Commissioner’s findings merely
because evidence may exist to support the opposite conclusion. See 42
U.S.C. § 405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)
(stating that courts may not weigh the evidence or substitute its own
conclusion for those of the fact-finder); Fargnoli v. Massanari, 247 F.3d
34, 38 (3d Cir. 2001)(indicating that when the ALJ’s findings of fact are
supported by substantial evidence, courts are bound by those findings,
even if they would have decided the factual inquiry differently). In an
adequately developed factual 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, 383 U.S. at 620.
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).
“When a conflict in the evidence exists, the ALJ may choose whom to
credit but ‘cannot reject evidence for no reason or for the wrong reason.”
Plummer, 186 F.3d at 429 (quoting Mason v. Shalala, 994 F.2d 1058,
1066 (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, 204 (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).
Sequential Evaluation Process
To receive disability benefits, the plaintiff 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) (emphasis added). An individual is incapable of engaging in
“substantial gainful activity” when “his physical or mental impairment or
impairments are of such 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[.]” 42 U.S.C. § 423(d)(2)(A).
The Commissioner evaluates supplemental security income claims
with a five-step sequential analysis. 20 C.F.R. § 416.920(a)(4). This
analysis requires the Commissioner to consider, in sequence, whether a
claimant (1) is engaging in substantial gainful activity,3 (2) has an
impairment, or combination of impairments, that is severe,4 (3) has an
“Substantial gainful activity” is work that “involves doing significant
and productive physical or mental duties” and “is done (or intended) for pay
or profit.” 20 C.F.R. § 416.910. If the claimant is engaging in “substantial
gainful activity”, the claimant is not disabled and the sequential evaluation
proceeds no further.
The determination of whether a claimant has any severe
impairments that has lasted or is expected to last for a continuous period of
at least twelve (12) months, at step two of the sequential evaluation
process, is a threshold test. 20 C.F.R. § 416.920(c). If a claimant does not
have an impairment or combination of impairments which significantly limits
his physical or mental abilities to perform basic work activities that has
lasted or is expected to last for a continuous period of at least twelve (12)
months, the claimant is “not disabled” and the evaluation process ends at
step two. Id. If a claimant has any severe impairments, the evaluation
process continues. 20 C.F.R. § 416.920(d)-(g). Furthermore, all medically
impairment or combination of impairments that meets or equals the
requirements of a “listed impairment,”5 (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. §
416.920(a)(4)(i)-(v). As part of step four, the administrative law judge must
determine the claimant’s residual functional capacity.6 20 C.F.R.
determinable impairments, severe and non-severe, are considered in the
subsequent steps of the sequential evaluation process. 20 C.F.R. §§
416.923 and 416.945(a)(2). An impairment significantly limits a claimant’s
physical or mental abilities when its effect on the claimant to perform basic
work activities is more than slight or minimal. Basic work activities include
the ability to walk, stand, sit, lift, carry, push, pull, reach, climb, crawl and
handle. 20 C.F.R. § 404.1545(b). An individual’s basic mental or
non-exertional abilities include the ability to understand, carry out and
remember simple instructions, and respond appropriately to supervision,
coworkers and work pressures. 20 C.F.R.
A “listed impairment” is one that appears on the Commissioner’s
Listing of Impairments, which is “a list of impairments presumed severe
enough to preclude any gainful work.” Sullivan v. Zebley, 493 U.S. 521,
525 (1990). If the claimant has an impairment, or combination of
impairments, that meets or equals a listed impairment, the claimant is
disabled. If the claimant does not have an impairment or combination of
impairments that meets or equals a listed impairment, the sequential
evaluation process proceeds to the next step.
If the claimant has the residual functional capacity to do his or her
past relevant work, the claimant is not disabled.
Residual functional capacity is the individual’s maximum remaining
ability to do sustained work activities in an ordinary work setting on a
regular and continuing basis. See SSR 96-8p, 1996 WL 374184. A
regular and continuing basis contemplates full-time employment and is
defined as eight hours a day, five days per week or other similar schedule.
Id. The residual functional capacity assessment must include a discussion
of the individual’s abilities. Id.; 20 C.F.R. § 416.945; Fargnoli, 247 F.3d at
40 (defining residual functional capacity as that which an individual is still
able to do despite the limitations caused by his or her impairment(s)).
In the instant case, the ALJ found at step one that plaintiff has not
engaged in substantial gainful activity since the date the application was
filed. (R .at 19). In fact, plaintiff had only reached seventeen years of age
at the time that she filed her application. (R. at 18). The ALJ found that
the plaintiff had severe impairments of depression, anxiety, attention
deficit-hyperactivity disorder and oppositional defiant disorder. (R. at 19,
26). Plaintiff does not, however, have an impairment or combination of
impairments that meets or medically equals a listed impairment according
to the ALJ. (R. at 26). The ALJ found that plaintiff has the residual
functional capacity to perform routine, repetitive one and two-step tasks,
with a toleration of occasional changes to the work environment. Further,
the ALJ found that plaintiff is capable of occasional decisionmaking and
occasional interaction with the public, co-workers and supervisors. (R. at
The ALJ found that plaintiff had “past relevant work” as a “cook’s
helper”, a job that plaintiff performed for two weeks. (R. at 30). She is
currently able to perform this past relevant work according to the ALJ. (Id.)
Further, the vocational expert at the plaintiff’s hearing found that someone
with plaintiff’s residual functional capacity could perform other work in the
national economy such as laundry laborer, bakery worker-conveyor line,
and cleaner-housekeeper. (R. at 30-31). Thus, the ALJ concluded that
plaintiff is not disabled as defined by the Social Security Act. (R. at 32).
As explained above, the ALJ’s decision became the final decision of the
Commissioner. Plaintiff then appealed to this court. The Magistrate Judge
suggests that substantial evidence supports the ALJ’s decision, and
therefore, the instant appeal should be denied. Plaintiff then filed the
Plaintiff objects to the following three conclusions of the R&R: 1) the
finding that substantial evidence supports the ALJ’s assignment of weight
to the medical opinions and the Listing assessment; 2) the finding that
substantial evidence supports the ALJ’s credibility evaluation with regard to
Global Assessment of Functioning (“GAF”) scores; and 3) the finding that
substantial evidence supports the ALJ’s Step Two finding with regard to
obesity. We will address these issues in seriatim.
1. Assignment of weight to the medical opinions and the Listing
The first issue raised by the plaintiff involves the manner in which the
ALJ weighed the medical opinions. The record in this case contains only
two medical opinions, one from Michael Suminski, PhD, who reviewed
plaintiff’s file and authored an opinion. (R. at 60-64). The second opinion
is very different and comes from Muhtaz Jameel, M.D., plaintiff’s treating
In his decision, the ALJ accorded little weight to the opinion of Dr.
Jameel, the treating physician and significant weight to the opinion of
Suminski a State Agency Psychological Consultant. (R. at 29-30). The
significance of this weighing of the medical opinions is that Dr. Jameel
indicated that plaintiff is unable to engage in substantial gainful activity. He
noted plaintiff’s symptoms as bipolar syndrome; recurrent severe panic
attacks; intense and unstable interpersonal relationships; generalized
persistent anxiety; mood disturbance; difficulty thinking or concentrating;
psychomotor anhedonia; appetite disturbance; decreased energy; suicidal
thoughts; blunt, flat or inappropriate affect; and impulse control impairment.
Specifically, Dr. Jameel noted in a medical source statement dated
September 18, 2013, the following: (R. at 481).
Plaintiff suffers from symptoms of anhedonia,
appetite disturbance, decreased energy, thoughts
of suicide (sometimes); blunt, flat or inappropriate
affect; impairment in impulse control; generalized
persistent anxiety; mood disturbance; difficulty
thinking or concentrating; psychomotor agitation or
retardation; persistent disturbances of mood or
affect; change in personality; bipolar syndrome with
a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive
syndromes; intense and unstable interpersonal
relationships; emotional lability; pressures of
speech; easy distractiblity; autonomic hyperactivity;
sleep disturbance and recurrent severe panic
attacks manifested by a sudden unpredictable
onset of intense apprehension, fear, terror and a
sense of impending doom, occurring on the
average of at least once a week.
(R. at 477). He further noted that while she had no restrictions of activities
of daily living, she had “marked” difficulties in maintaining social functioning
and a complete inability to function independently outside the area of her
home. (R. at 480). The treating psychiatrist further noted that the
plaintiff’s impairment lasted or could be expected to last at least twelve (12)
months, and that she is not a malingerer. (R. at 481).
Despite the treating psychiatrist’s opinion regarding these serious
psychiatric symptoms and disorders and the opinion that plaintiff had a
complete inability to function independently outside the area of her home,
the ALJ concluded that she is not disabled. Rather than relying upon the
medical doctor/psychiatrist who treated plaintiff in determining the plaintiff’s
residual functional capacity, the ALJ relied upon the psychological opinions
of the state agency psychological consultant who neither treated nor
examined plaintiff. Thus, we must determine whether the ALJ’s decision to
credit a psychologist who never examined the plaintiff over a psychiatrist
who treated the plaintiff for several years is supported by substantial
evidence. We find that it is not.
The law provides that we should accord treating physicians’ reports
great and possibly controlling weight. Specifically, the Third Circuit has
Treating physicians’ reports should be accorded
great weight, especially “when their opinions reflect
expert judgment based on a continuing observation
of the patient’s condition over a prolonged period of
time.” Rocco v. Heckler, 826 F.2d 1348, 1350 (3d
Cir. 1987); 20 C.F.R. § 404.1527(d)(2) (providing
for controlling weight where treating physician
opinion is well-supported by medical evidence and
not inconsistent with other substantial evidence in
the record.) An ALJ may reject a treating
physician’s opinion outright only on the basis of
contradictory medical evidence, but may afford a
treating physician’s opinion more or less weight
depending upon the extent to which supporting
explanations are provided.
Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir.
Plummer, 186 F.3d at 429.
The Third Circuit has further explained the importance of treating
physicians’ opinions as follow:
Under applicable regulations and the law of [the
Third Circuit], opinions of a claimant’s treating
physician are entitled to substantial and at times
even controlling weight. . . . The regulations explain
that more weight is given to a claimant’s treating
physician because these sources are likely to be
medical professionals most able to provide a
detailed, longitudinal picture of [the claimant’s]
medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be
obtained from the objective medical findings alone
or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.
Fargnoli, 247 F.3d at 43 (internal quotation marks and citations omitted).
“Where, as here, the opinion of a treating physician conflicts with that
of a non-treating, non-examining physician, the ALJ may choose whom to
credit but cannot reject evidence for no reason or for the wrong reason.”
Morales v. Apfel, 186 F.3d 310, 317 (internal quotation marks omitted). “In
choosing to reject the treating physician’s assessment, an ALJ may not
make speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of contradictory
medical evidence and not due to his or her own credibility judgments,
speculation or lay opinion.” Id. (internal quotation marks omitted).
In the instant case, the conclusion with regard to the treating
physician is set forth in the ALJ’s decision as follows:
“I give little weight to the medical source statement submitted by Dr.
Jameel. Despite his medical source statement indicating marked
impairments, his longitudinal treatment notes indicate only mild symptoms
and consistent Global Assessment of Functioning scores of 70 during the
period after the claimant’s 18th birthday.” (R. at 30). The ALJ then notes
that “the claimant reported significant benefit from her prescribed
medications prior to her pregnancy. This report remained true throughout
the claimant’s reported continued stability as recently as March 2014,
when she was not taking her medications due to pregnancy.” Id.
Next, the ALJ asserts that plaintiff’s claims of extreme disabling
mental impairments are not supported by the medical evidence of record
and that by her own admission she is able to perform a wide variety of the
activities of daily living such as cleaning, laundry, meal preparation,
shopping, caring for animals and handling money. Id.
Basically the ALJ disagreed with the treating physician because he
(the ALJ) deemed the claimant’s symptoms mild, she (the claimant) had a
GAF score of 70, and the plaintiff’s medicine benefitted her.7 Substantial
evidence does not support these findings. The ALJ’s lay opinion that the
doctor’s “longitudinal treatment notes” only show mild symptoms is an
inappropriate ground to disregard the treating psychiatrist’s opinion. An
ALJ may not evaluate medical evidence based on his own lay opinion.
Plummer v. Apfel, 186 F.3d at 429. That, however, appears to be what the
ALJ did here when he concluded that Dr. Jameel’s medical source
statement is worthy of only little weight because his treatment notes
indicate only mild symptoms and a good response to medicines. (R. at
Additionally, the opinion of the treating physician is so different from
the opinion of the non-examining, non-treating, consultative psychologist
that we find that the consultative psychologist’s opinion does not provide
We will explain the “GAF” score more fully in the next section.
substantial evidence for the ALJ’s opinion. The treating psychiatrist
concludes that the plaintiff is quite severely impaired and unable to function
independently outside of the home. The consultative psychologist
reviewed the psychiatrist’s records and concluded that the treating
psychiatrist is wrong in his assessment and that the plaintiff is not disabled
and does not have any marked limitations.
The treating physician did not provide his opinion in a vacuum.
Medical records from the treating physician are also presented to support
his conclusions. The consulting psychologist, who is not a psychiatrist as
the treating physician is, reviewed those records and disagrees with the
treating physician. We find the decision to credit the consulting
psychologist over the treating psychiatrist is not supported by substantial
evidence in this instance. See, e.g., Kelley v. Callahan, 133 F.3d 583, 589
(8th Cir.1998) (“The opinion of a consulting physician who examines a
claimant once or not at all does not generally constitute substantial
Lastly, the ALJ bases his opinion on the fact that plaintiff indicates
that she can perform activities of daily living. We do not agree with the
ALJ. Performing functions in the home and performing function at the
workplace are two separate activities, especially when a potential
employee suffers from psychiatric disorders. Thus, merely because
plaintiff can perform her activities of daily living does not mean that she can
be gainfully employed in a workplace setting.
Based upon all of these factors, we find that the ALJ’s decision is not
supported by substantial evidence, and we will remand this matter to the
commissioner for review and proper analysis of the record.
2. The finding that substantial evidence supports the ALJ’s credibility
evaluation with regard to Global Assessment of Functioning (“GAF”)
The second issue raised by plaintiff also deals with the manner in
which the ALJ weighed the treating physician’s opinion. The ALJ
discredited the treating physician’s opinion because of the plaintiff’s GAF
score. We find that the ALJ erred in his analysis of the GAF score.
A GAF score is a subjective scale that was set forth in the American
Psychiatric Associations’ Diagnostic and Statistical Manual of Mental
Health (hereinafter “DSM”). The score “assesses how well an individual
can function according to psychological, social, and occupational
parameters, with the lowest scores assigned to individuals who are unable
[to] care for themselves.” Pounds v. Astrue, 772 F. Supp. 2d 713, 716, n. 2
(W.D. Pa.2011); DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS
The GAF score allows a clinician to indicate his judgment of a
person’s overall psychological, social and occupational functioning, in
order to assess the person's mental health illness. DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 3–32 (FOURTH). A GAF score is
set within a particular range if either the symptom severity or the level of
functioning falls within that range. Id. In the past, the score was seen as
useful in planning treatment and predicting outcomes. Id.
A GAF score of 31–40 represents some impairment in reality testing
or communication or major impairment in several areas, such as work or
school, family relations, judgment, thinking or mood. Id. A GAF score of
41–50 indicates serious symptoms or any serious impairment in social,
occupational or school functioning. Id. A GAF score of 51 to 60
represents moderate symptoms or any moderate difficulty in social,
occupational, or school functioning. Id. A GAF score of 61-70 indicates
some mild symptoms (e.g. depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning (e.g. occasional
truancy, or theft within the household) but generally functioning pretty well,
has some meaningful interpersonal relationships. Id.
The law, however, provides that “[a] GAF score does not have a
direct correlation to the severity requirements of the Social Security mental
disorder listings.” Id. at 723 (see also Gilroy v. Astrue, 351 F. App’x 714,
715 (3d Cir. 2009) (citing 66 Fed. Reg. 50764-5 (2000)).
Moreover, the latest edition of the DSM recommended that the GAF
scoring scale be discontinued. It explained that the GAF scale has a
conceptual lack of clarity and “questionable psychometrics in routine
practice.” DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
(FIFTH) at 16. Thus, the latest edition of the American Psychiatric
Association’s DSM does not contain the GAF scale. It is apparent that
GAF scores are of limited value in determining whether an individual is
disabled. Accordingly, we find that the GAF score does not provide
substantial evidence for the ALJ. to discredit plaintiff’s treating physician.
3. Step Two severe impairment analysis with regard to obesity
Lastly, plaintiff contends that the ALJ’s failure to determine that her
obesity is a medically determinable severe mental or physical impairment
at step two of the five-step sequential evaluation process is erroneous.8
Step two requires the plaintiff to establish that she has an impairment, or
combination of impairments, that is severe, and these impairments
The ALJ, however, failed to reflect any obesity-based limitation in her RFC.
Thus, according to the plaintiff, the ALJ’s decision was improper. After a
careful review, we agree with plaintiff, and we will order the ALJ to consider
plaintiff’s obesity on remand.
The ALJ did not take the plaintiff’s obesity into consideration when
reviewing the claim. Plaintiff is 5' 2" tall and weighs between 210-245
pounds. (R. at 353, 218, 484). Her body mass index ranges from 31.5 to
45.1. (R. at 218, 264, 353, 484). Step II of the Social Security review
requires the ALJ to determine whether the claimant has a severe
impairment or a combination of impairments that is severe. As noted
above, in Step II the ALJ concluded that plaintiff has the following severe
impairments: depression, anxiety , attention deficit-hyperactivity disorder,
and oppositional defiant disorder. (R. at 19). Plaintiff argues that the ALJ
erred in not considering the effect of plaintiff’s obesity, individually and in
combination with her impairments on her workplace function at Step II and
the subsequent steps.
Social Security regulations instruct on the manner in which obesity is
significantly limit her mental or physical ability to do basic work activities.
20 C.F.R. §§ 404.1520(a)(4)(ii) and 404.1520(c).
to be evaluated. It indicates that persons with a BMI of 30.0 or above are
obese. The regulations explain further: “The Clinical Guidelines recognize
three levels of obesity. Level I includes BMIs of 30.0-34.9. Level II
includes BMIs of 35.0-39.9. Level III, termed “extreme” obesity and
representing the greatest risk for developing obesity-related impairments,
includes BMIs greater than or equal to 40.” Plaintiff fluctuated between
Level I obesity and Level III, extreme, obesity with a BMI of 31.5 to 45.1.
In determining the proper weight to be given to a medical opinion, the ALJ
is required to weigh all the evidence and resolve any material conflicts.
See Richardson v. Perales, 402 U.S. 389, 399 (1971).
At step two, the claimant must have a severe impairment “which
significantly limits [the claimant’s] physical or mental ability to do basic
work activities[.]” 20 C.F.R. § 404.1520(c). “The step-two inquiry is a de
minimis screening device to dispose of groundless claims.” Newell v.
Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). Thus, “[a]n
impairment or combination of impairments can be found ‘not severe’ only if
the evidence establishes a slight abnormality or a combination of slight
abnormalities which have ‘no more than a minimal effect on an individual’s
ability to work.’” Id. (quoting SSR 85-28, 1985 WL 56856, at *4).9
“Only those claimants with slight abnormalities that do not
significantly limit any ‘basic work activity’ can be denied benefits at step
two.” Id. (quoting Bowen v. Yuckert, 482 U.S. 137, 158, (1987)
(O’Connor, J., concurring)). If the claimant can present evidence
establishing more than a “slight abnormality,” the severity requirement is
met. Id. Further, any reasonable doubts in step two should be resolved in
the claimant’s favor. Id. A reviewing court, however, should not apply a
more stringent standard of review. McCrea v. Comm’r of Soc. Sec., 370
F.3d 357, 360 (3d Cir. 2004). The Commissioner’s denial at step two, like
one made at any other step in the sequential analysis, is to be upheld if
supported by substantial evidence. Id. (citation omitted).
In McCrea, the Third Circuit Court of Appeals reiterated that the
“burden placed on an applicant at step two is not an exacting one.” Id.
Although the social security regulations speak in terms of “severity,” the
SSR 85-28 states that “[g]reat care should be exercised in applying the
not severe impairment concept. If an adjudicator is unable to determine
clearly the effect of an impairment or combination of impairments on the
individual’s ability to do basic work activities, the sequential evaluation
process should not end with the not severe evaluation step. Rather, it
should be continued.” 1985 WL 56856, at *4.
Commissioner has clarified that an applicant need only demonstrate
something beyond “a slight abnormality or a combination of slight
abnormalities which would have no more than a minimal effect on an
individual’s ability to work.” Id. (citing SSR 85-28, 1985 WL 56856, at *3).
McCrea instructs that the determination of whether an applicant has
met her burden at step two in the sequential analysis should focus upon
her evidence. If such evidence demonstrates that the applicant has “more
than a ‘slight abnormality,’ the step-two requirement of ‘severe’ is met, and
the sequential evaluation process should continue.” Id. at 362; 20 C.F.R.
Here, it appears that plaintiff did not raise the issue of her obesity
initially before the ALJ. Upon remand, however, the Commissioner will be
instructed to examine whether plaintiff’s obesity is a severe impairment.
We will remand this case to the Commissioner because substantial
evidence does not support the ALJ’s opinion. The ALJ improperly relied
upon the GAF score, gave controlling weight to the consulting psychologist
and failed to determine whether plaintiff’s obesity is a severe impairment.
An appropriate order follows.
Date: Jan. 11, 2017
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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