Sachs v. Colvin

Filing 19

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable William J. Nealon on 3/27/17. (ep)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
CRISTAL A. SACHS,
Plaintiff
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant

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No. 3:15-CV-1725
(Judge Nealon)

MEMORANDUM
On September 2, 2016, Plaintiff, Cristal A. Sachs, filed this instant appeal1
under 42 U.S.C. § 405(g) for review of the decision of the Commissioner of the
Social Security Administration (“SSA”) denying her applications for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”)2 under
Titles II and XVI of the Social Security Act,42 U.S.C. § 1461 et seq. and 42
U.S.C. § 1381 et seq., respectively. (Doc. 1). The parties have fully briefed the
appeal. For the reasons set forth below, the decision of the Commissioner denying
Plaintiff’s applications for DIB and SSI will be affirmed.
1. Under the Local Rules of Court “[a] civil action brought to review a decision of

the Social Security Administration denying a claim for social security disability
benefits” is “adjudicated as an appeal.” M.D. Pa. Local Rule 83.40.1.
2. Supplemental security income is a needs-based program, and eligibility is not

limited based on an applicant’s date last insured.

BACKGROUND
Plaintiff protectively filed3 her application for DIB on November 9, 2012,
and her application for SSI on December 19, 2012, alleging disability beginning
on April 15, 2012, due to a combination of Asthma, Chronic Obstructive
Pulmonary Disease (“COPD”), high blood pressure, depression, anxiety, and PostTraumatic Stress Disorder (“PTSD”). (Tr. 19, 173).4 The claim was initially
denied by the Bureau of Disability Determination (“BDD”)5 on March 15, 2013.
(Tr. 19). On March 19, 2013, Plaintiff filed a written request for a hearing before
an administrative law judge. (Tr. 19). An oral hearing was held on March 6,
2014, before administrative law judge Therese Hardiman, (“ALJ”), at which
Plaintiff and an impartial vocational expert, Nadine Henzes, (“VE”), testified. (Tr.
19). On May 16, 2014, the ALJ issued a decision denying Plaintiff’s claims
because, as will be explained in more detail infra, Plaintiff was capable of

3. Protective filing is a term for the first time an individual contacts the Social

Security Administration to file a claim for benefits. A protective filing date allows
an individual to have an earlier application date than the date the application is
actually signed.
4. References to “(Tr. )” are to pages of the administrative record filed by

Defendant as part of the Answer on November 18, 2015. (Doc. 11).
5. The Bureau of Disability Determination is an agency of the state which initially

evaluates applications for disability insurance benefits on behalf of the Social
Security Administration.
2

performing full range of light work. (Tr. 16).
On June 30, 2014, Plaintiff filed a request for review with the Appeals
Council. (Tr. 13-14). On July 2, 2015, the Appeals Council concluded that there
was no basis upon which to grant Plaintiff’s request for review. (Tr. 1-6). Thus,
the ALJ’s decision stood as the final decision of the Commissioner.
Plaintiff filed the instant complaint on September 2, 2015. (Doc. 1). On
November 18, 2015, Defendant filed an answer and transcript from the SSA
proceedings. (Docs. 10 and 11). Plaintiff filed a brief in support of her complaint
on February 25, 2016. (Doc. 15). Defendant filed a brief in opposition on March
28, 2016. (Doc. 17). Plaintiff filed a reply brief on April 15, 2016. (Doc. 18).
Plaintiff was born in the United States on September 2, 1969, and at all
times relevant to this matter was considered a “younger individual.”6 (Tr. 161).
Plaintiff obtained her GED, and can communicate in English. (Tr. 41, 172). Her
employment records indicate that she previously worked as a clerk in the post
office, a customer service representative, and a switchboard operator. (Tr. 163).
6. The Social Security regulations state that “[t]he term younger individual is used

to denote an individual 18 through 49.” 20 C.F.R., Part 404, Subpart P, Appendix
2, § 201(h)(1). “Younger person. If you are a younger person (under age 50), we
generally do not consider that your age will seriously affect your ability to adjust
to other work. However, in some circumstances, we consider that persons age 4549 are more limited in their ability to adjust to other work than persons who have
not attained age 45. See Rule 201.17 in appendix 2.” 20 C.F.R. §§ 404.1563(c).
3

In a document entitled “Function Report - Adult” filed with the SSA on
December 2, 2012, Plaintiff indicated that she lived in a house with her children.
(Tr. 198). When asked to describe how her illnesses, injuries or conditions limited
her ability to work, Plaintiff stated:
Can’t do basic activities like walking, cooking, most of the
time taking care of myself. I have constant, chronic worry that
causes significant distress, it disturbs my life with any and
everyone. I have random panic attacks and persistent worry of
another panic attack and also I have feelings of terror. I have
ongoing and recurring nightmares, flashbacks, or emotional
numbing relating to traumatic events that happened in my life.
Childhood physical, emotional, and sexual abuse. Flashbacks,
hallucinations and nightmares. I was molested by 4 of my
uncles over and over and over and over and over from the age
of 8 to 16. At 16 my cousin raped me. I watched my father
beat my mother for years. I seen so much blood. I then became
a victim of domestic violence for nearly 20 years. In and out of
domestic violence shelters. I then watched and became
involved with my daughter’s abusive relationship. All of this
led me to have extreme homicidal thoughts which I was
hospitalized for. Soon after I was discharged from the hospital,
my Don started abusing me. So, I am now at the age of 43,
mentally and physically suffering which prevents me from
working. Wheezing and shortness of breath, I feel like I’m
trying to breath through a straw and always trying to catch my
breath.
(Tr. 198-199). From the time she woke up to the time she went to bed, Plaintiff
took her medicine and took care of her children. (Tr. 200). She was able to make
meals with the aid of a chair with wheels, could take care of her personal needs

4

while experiencing shortness of breath, iron, and perform household chores with
the help of her children. (Tr. 201). She was able to walk for up to six (6) steps
before needing to rest for up to a half hour. (Tr. 204). When asked to check items
which her “illnesses, injuries, or conditions affect,” Plaintiff did not check hearing,
seeing, or using hands. (Tr. 204).
Regarding her concentration and memory, Plaintiff did not need special
reminders to take care of her personal needs, take her medicine, and attend
appointments. (Tr. 203, 205). She could count change, use a checkbook, pay
bills, and handle a savings account. (Tr. 202). She could pay attention for “not
long at all,” she did not follow written or spoken instructions well, and she was
not able to finish what she started. (Tr. 204). She could not handle stress or
changes in routine at all. (Tr. 205).
Socially, Plaintiff did not go outside often, but when she did, she could do
so unaccompanied, but did not prefer to due to anxiety and the fear of shortness of
breath. (Tr. 202). Her hobbies included reading the Bible and listening to Gospel
music. (Tr. 203). In response to the question regarding whether she had problems
getting along with family, friends, neighbors, or others, Plaintiff responded, “I
seem to be self-conscious in the face of an uncomfortable social situation. Fear
and anxieties arise.” (Tr. 204). When asked how she got along with authority
5

figures, she responded, “I stay to myself so I don’t come in contact with them or
anyone else.” (Tr. 205).
At her hearing on March 6, 2014, Plaintiff testified that, regarding her
mental health impairments, including Major Depressive Disorder, anxiety, and
PTSD, she saw a psychiatrist every four (4) or five (5) months and a therapist
every Friday. (Tr. 43-44, 51). She also attends group therapy once a week. (Tr.
44). She testified that television aggravated her psychological symptoms. (Tr.
51). She stated that she experienced psychological symptoms such as depression,
anxiety, panic attacks, crying, flashbacks, and hallucinations very frequently every
day, sometimes all day, and that the symptoms made it hard for her to concentrate
or focus. (Tr. 51-52). She stated that these symptoms made it difficult for her to
hold a job and get along with others because she had difficulty trusting anyone.
(Tr. 54).
Regarding pulmonary issues, Plaintiff testified that she was hospitalized for
five days for asthma and COPD two (2) to three (3) weeks before the hearing. (Tr.
45). She stated that allergies, extreme temperatures, perfume, and dust triggered
her asthma. (Tr. 50-51).
In regards to activities of daily living, Plaintiff stated that she did not
perform personal care tasks; did not do household chores such as cooking,
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cleaning, or laundry; was able to pay her bills; and had no hobbies whatsoever.
(Tr. 46). She stated that she was in bed until her children came home, at which
point she would help the with homework and spend time with them talking and
sitting. (Tr. 46).
In terms of physical limitations, Plaintiff stated that the heaviest thing she
could pickup was her shoe; that from a seated position, she could raise her leg
straight out and then put them down; that she could extend her arms forward and
bring them back and reach overhead; that she could stand for about a minute, sit
for long periods of time, and walk from her bed to her bathroom. (Tr. 46-47). She
was able to sleep for ten (10) hours on average, but stated that her sleep was
interrupted by dreams and anxiety. (Tr. 47).
In terms of medications, Plaintiff testified that, at the time of the hearing,
she was taking Fluoxetine, Prozac, Neurontin, Risperdal, Singulair, Advair,
Norvasc, Hydrochlothyazide, Trazadone, Lisinopril, Meloxicam, and Albuterol.
(Tr. 48-49). She stated that her medications helped, but that they caused side
effects. (Tr. 50).
MEDICAL RECORDS
A.

Mental Health Impairments
Before the relevant time period for the ALJ’s decision, which was from
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April 15, 2012 through May 16, 2014, on the dates of March 29 to April 4, 2012,
Plaintiff was voluntarily admitted to the Wilkes-Barre Behavioral Hospital due to
complaints of PTSD, hallucinations, and homicidal ideations. (Tr. 530-31). At
discharge, after being placed of medication undergoing therapy, “all of her
problems [were] adequately resolved,” and her global assessment of functioning
(“GAF”) increased to fifty (50) to fifty-five (55). 530-31, 534). Her last
examination revealed she was alert, had an appropriate mood and affect, was fully
oriented, had an intact memory with no intellectual limitations, and had no
hallucinations, delusions, or ideations of suicide or homicide. (Tr. 531-534).
In May and July of 2012, Plaintiff failed to attend scheduled therapy
session. (Tr. 381-382). Psychiatric examinations during two separate, unrelated
Emergency Room (“ER”) visits in 2012 showed normal affect, judgment, insight,
recent memory, concentration, and mentation. (Tr. 252, 265, 395, 397).
On January 8, 2013, Plaintiff began treatment with Community Counseling
Services of Northeastern Pennsylvania (“CCS”) due to increased depression and
anxiety related to medical issues. (Tr. 487, 490). Her mental status examination
revealed she had: a neat appearance; good hygiene; appropriate psychomotor
activity; normal speech; good eye contact; a logical thought process; a cooperative
manner; good memory, insight, and judgment; and an average intellectual ability.
8

(Tr. 490-492). She was diagnosed with recurrent Major Depressive Disorder. (Tr.
494).
On January 22, 2013, Plaintiff had another appointment at CCS, and
reported she was “doing better” with medication. (Tr. 487). It was noted that she:
was calm, cooperative, and fully oriented; displayed normal motor activity; was in
a better mood; and had a linear thought process, good memory, average
intellectual functioning, intact insight, and improving judgment. (Tr. 487).
On January 30, 2013, Plaintiff presented to Stephen Timchak, Psy.D., for a
consultative psychological examination. (Tr. 463-68). She described a history of
anxiety, depression, and sexual abuse by family members. (Tr. 463-65). Plaintiff
was noted as being anxious, hyper-vigilant, and fidgety. (Tr. 466). Her
examination revealed she: was alert and oriented; had intact memory; had logical
and goal-directed speech; denied any hallucinations; had impaired attention and
concentration; had a hypervigilant mental trend; had fair insight; and had an
average to low average IQ. (Tr. 466-467). Her diagnoses included PTSD and
Depressive Disorder, NOS, and Dr. Timchack opined that Plaintiff’s prognosis
was poor. (Tr. 467).
On February 11, 2013, Plaintiff had an appointment at CCS. (Tr. 475). Her
mental status examination revealed she had a: neatly groomed appearance; good
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rapport; a depressed mood; a related affect; controlled, cooperative, and tearful
behavior; normal speech; average intellect; a normal thought process and thought
content; intact memory; fair insight, judgment, and motivation for treatment; and
no homicidal or suicidal ideations. (Tr. 482-483). Her diagnosis was Major
Depressive Disorder, recurrent and unspecified. (Tr. 475, 483). Her medications
included Seroquel, Ambien, Neurontin, and Celexa. (Tr. 484).
On March 8, 2013, Dr. Timchak completed a check-box form, where he
checked boxes to indicate that Plaintiff had no impairment in handling simple
instructions; a slight impairment in remembering details instructions; a moderate
impairment in carrying out detailed instructions; a marked impairment in making
judgments on simple work-related decisions; and marked restrictions in every
category relating to social interaction and workplace adaptation. (Tr. 461-462).
On September 20, 2013, Plaintiff underwent an initial psychiatric evaluation
at Northeast Counseling Services (“NCS”) due to complaints of depression and
anxiety. (Tr. 681). Her mental status examination revealed she: was alert,
ambulatory, cooperative, tearful, coherent, relevant, and oriented in three (3)
spheres; and had speech of normal rate, rhythm, and volume, affect appropriate to
content of thought, clear sensorium, intact memory, average intelligence, and good
impulse control, judgment, and insight. (Tr. 682). Her Axis I diagnoses were
10

Depressive Disorder, Not Otherwise Specified, and PTSD. (Tr. 682). It was
recommended that Plaintiff start Prozac and Trazodone. (Tr. 683).
On October 7, 2013, Plaintiff had another appointment at NCS. (Tr. 680).
Her mental status examination revealed she had: appropriate appearance; good
hygiene; cooperative attitude; calm motor activity; spontaneous speech; a
euthymic mood; an appropriate affect; relevant thought process; intact judgment;
good eye contact; and no delusions, hallucinations, or suicidal or homicidal
ideations. (Tr. 680). Plaintiff was instructed to continue taking Trazodone and to
increase her Prozac dosage. (Tr. 680).
On November 1, 2013, Plaintiff had an appointment at NCS. (Tr. 679). She
reported that the Prozac was “helping some,” but that her anxiety continued to be
an issue, that she started attending group therapy, and that she continued to have
many stressors. (Tr. 679). Her mental status examination revealed she had:
appropriate appearance; good hygiene; cooperative attitude; calm motor activity;
spontaneous speech; a euthymic mood; an appropriate affect; relevant thought
process; intact judgment; good eye contact; and no delusions, hallucinations, or
suicidal or homicidal ideations. (Tr. 679). Plaintiff was instructed to continue
taking Trazodone and to increase her Prozac dosage. (Tr. 679).
On December 13, 2013, Plaintiff had an appointment at NCS. (Tr. 678).
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She reported that she continued to have anxiety when she left her house, but that
she did so when she needed to and that she felt group therapy was beneficial. (Tr.
678). Her mental status examination revealed she had: appropriate appearance;
good hygiene; cooperative attitude; calm motor activity; spontaneous speech; a
euthymic mood; an appropriate affect; relevant thought process; intact judgment;
good eye contact; and no delusions, hallucinations, or suicidal or homicidal
ideations. (Tr. 678). Plaintiff was instructed to continue taking her medications.
(Tr. 678).
On January 20, 2014, Plaintiff had an appointment at NCS. (Tr. 677). She
reported that she had run out of medication, that she was experiencing auditory
hallucinations, and that she was having flashbacks and nightmares. (Tr. 677). Her
mental status examination revealed she had: appropriate appearance; good
hygiene; cooperative attitude; calm motor activity; spontaneous speech; a
euthymic mood; an appropriate affect; relevant thought process; intact judgment;
good eye contact; and no delusions, hallucinations, or suicidal or homicidal
ideations. (Tr. 677). Plaintiff was instructed to decrease her Prozac in substitution
of Risperdal. (Tr. 677).

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B.

Physical Impairments
1.

Neck Condition

On August 4, 2012, Plaintiff presented to the ER with complaints of neck
and back pain after a motor vehicle accident. (Tr. 422). Plaintiff described her
pain as dull and aching in nature and associated it with range of motion. (Tr. 422).
On physical examination, Plaintiff’ had a normal range of motion in her back and
neck with tenderness, and a normal range of motions in her extremities without
tenderness, swelling, or deformities. (Tr. 423). Plaintiff was discharged with
medication and with a diagnosis of neck strain and muscle spasms. (Tr. 425).
On October 3, 2012, during a visit to the ER for unrelated shortness of
breath, it was noted that Plaintiff denied back or neck injury, pain, and weakness.
(Tr. 397). A physical examination revealed a normal range of motion in her neck,
no tenderness, and normal motor function. (Tr. 397-398).
On November 18, 2012, Plaintiff presented to the ER after a fall with
complaints of low back and hip pain. (Tr. 437). Plaintiff underwent a CT scan of
her cervical spine which revealed moderate to severe narrowing of the C5-C6
intervertebral disc space with disc osteophyte complex with no fracture,
subluxation, or prevertebral soft tissue swelling. (Tr. 443, 454). It was noted that
her complaints of pain were disproportionate to the radiographic findings. (Tr.
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444).
On March 6, 2013, Plaintiff presented to the ER after she fell on the stairs,
complaining of foot and back pain, but not neck pain. (Tr. 651). A physical
examination revealed that her neck and extremities were normal, but that her back
was tender. (Tr. 655-656). An x-ray of her back revealed no abnormalities. (Tr.
660). She was diagnosed with a lumbar strain and discharged. (Tr. 653).
2.

Pulmonary Impairment

On June 20, 2012, Plaintiff presented to the ER of Wilkes Barre General
Hospital due to complaints of shortness of breath. (Tr. 251). Her chest x-ray was
normal. (Tr. 262). A physical examination revealed diffuse wheezing. (Tr. 255).
Medication resolved Plaintiff’s pulmonary symptoms, and Plaintiff was discharged
with a diagnosis of asthma. (Tr. 253, 255).
On October 3, 2012, Plaintiff presented to the ER at Temple University
Hospital with shortness of breath. (Tr. 395). Her physical examination revealed
Plaintiff had wheezing, a steady gait, and normal speech, and was oriented to time,
person, and place and was awake and alert. (Tr. 395). Plaintiff received Albuterol
for her shortness of breath, and was discharged the same day. (Tr. 396).
On January 4, 2013, Plaintiff had an appointment with Tiwaah Millicent,
D.O., due to complaints of asthma and COPD exacerbation. (Tr. 507). A physical
14

examination revealed no shortness of breath, and percussion with no dullness,
flatness, or hyperresonance. (Tr. 509).
On January 30, 2013, Plaintiff presented to the ER for shortness of breath.
(Tr. 663). Plaintiff underwent a CT scan for shortness of breath. (Tr. 511). The
impression was that Plaintiff’s lungs were unremarkable. (Tr. 511). Her discharge
diagnosis was “COPD exacerbation,’ and she was prescribed Prednisone. (Tr.
668).
On April 26, 2013, Plaintiff presented to the ER due to shortness of breath.
(Tr. 643). Her physical examination revealed scattered wheezing with no
respiratory distress, no egophony, and equal chest expansion; symmetrical chest
movement; and equal chest expansion with no tenderness. (Tr. 645). Plaintiff was
given Prednisone in the ER for her symptoms. (Tr. 648).
On October 4, 2013, Plaintiff had an appointment with Dr. Sherin for
shortness of breath upon ambulation. (Tr. 606). She reported that she had been
using her Albuterol inhaler four (4) times a day. (Tr. 606). A physical
examination revealed that Plaintiff’s respiratory effort was tachypneic; that she
had no rales or crackles, but did have diminished air movement and expiratory
wheezing; and that she had good air entry after a nebulizer treatment. (Tr. 608).
Plaintiff’s Advair dosage was increased, and she was prescribed a five (5) day
15

course of Prednisone. (Tr. 609).
On October 18, 2013, Plaintiff had an appointment with Dr. Sherin after a
recent asthma attack. (Tr. 602). Plaintiff reported that she felt much better after a
recent course of Prednisone and an increased Advair dosage. (Tr. 602). A
physical examination revealed normal breath sounds; good air movement; no
wheezing; and no shortness of breath. (Tr. 604).
On December 13, 2013 Plaintiff had an appointment with Dr. Sherin for
asthma exacerbation, including shortness of breath. (Tr. 594). Upon examination,
she had: no shortness of breath; normal breath sounds; good air movement; and no
wheezing. (Tr. 596). Pulmonary Function Tests were ordered to check her lung
function. (Tr. 596).
On January 31, 2014, Plaintiff had an appointment with Dr. Sherin for her
pulmonary symptoms. (Tr. 590). Plaintiff reported she had “good relief” with
albuterol and that she had cut back her smoking. (Tr. 590). Pulmonary functioning
tests revealed “mild restrictive lung disease with moderate decrease in DLCO.”
(Tr. 590, 626). Upon examination, Plaintiff had: normal breath sounds; no
shortness of breath; good air movement; and no wheezing. (Tr. 592).
On February 2, 2014, Plaintiff presented to the ER due to shortness of
breath and wheezing. (Tr. 695). Physical examination revealed an expiratory
16

wheeze, unequal chest expansion, and asymmetrical chest movement. (Tr. 697,
707). Plaintiff received a dual nebulizer treatments and other medications
throughout her hospital stay. (Tr. 696). Plaintiff was discharged on February 7,
2014, after treatment, with a diagnosis of asthma exacerbation, asthmatic
bronchitis, and an upper respiratory infection. (Tr. 697, 700). At discharge, her
physical examination revealed equal expansion and air entry in the bilateral lungs
with intermittent expiratory wheezing in the right upper lobe and right lower lobe.
(Tr. 702). Plaintiff was instructed to follow-up with her primary care physician on
February 17, 2014. (Tr. 702).
C.

State Agency Physician Opinions
1.

Dr. Patel

On January 7, 2013, Harshadkumar Patel, M.D., a state agency physician,
performed a consultative examination of Plaintiff. (Tr. 90-94). He stated that
Plaintiff “has asthma which is mild and intermittent” and that she had uncontrolled
hypertension, and that her neck condition was “mild.” (Tr. 91-92). which was not
controlled optimally, but there was no evidence of any end organ damage. (Tr.
92). He also observed that, following her CT scan, treatment notes found that
Plaintiff’s complaints of pain were disproportionate to the clinical findings. (Tr.
91).
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2.

Dr. Banks

On March 11, 2013, Sandra Banks, Ph.D., a state agency psychologist,
completed a Psychiatric Review Technique and a Mental Residual Functional
Capacity Assessment. (Tr. 92-96). In the Psychiatric Review Technique, she
opined that Plaintiff had: (1) mild restrictions in activities of daily living; (2)
moderate limitations in maintaining social functioning and in maintaining
concentration, persistence, or pace; and (3) no episodes of decompensation, each
of extended duration. (Tr. 92-93). In the Mental Residual Functional Capacity
Assessment, she opined Plaintiff: (1) had moderate limitations in her ability to
carry out detailed instructions, to maintain attention and concentration for
extended periods of time, to make simple work-related decisions, to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes, to
interact appropriately with the general public, and to respond appropriately to
changes in the work setting. (Tr. 94-95).
STANDARD OF REVIEW
When considering a social security appeal, the court has plenary review of
all legal issues decided by the Commissioner. See Poulos v. Commissioner of
Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of
Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55
18

F.3d 857, 858 (3d Cir. 1995). However, the court’s review of the Commissioner’s
findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those
findings are supported by “substantial evidence.” Id.; Mason v. Shalala, 994 F.2d
1058, 1064 (3d Cir. 1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
Factual findings which are supported by substantial evidence must be upheld. 42
U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where
the ALJ’s findings of fact are supported by substantial evidence, we are bound by
those findings, even if we would have decided the factual inquiry differently.”);
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981) (“Findings of fact by the
Secretary must be accepted as conclusive by a reviewing court if supported by
substantial evidence.”); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Keefe
v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Martin v. Sullivan, 894 F.2d 1520,
1529 & 1529 n.11 (11th Cir. 1990).
Substantial evidence “does not mean a large or considerable amount of
evidence, but ‘rather such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565
(1988) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938));
Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008);
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has
19

been described as more than a mere scintilla of evidence but less than a
preponderance. Brown, 845 F.2d at 1213. 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 v. Federal Maritime Commission,
383 U.S. 607, 620 (1966).
Substantial evidence exists only “in relationship to all the other evidence in
the record,” Cotter, 642 F.2d at 706, and “must take into account whatever in the
record fairly detracts from its weight.” Universal Camera Corp. v. N.L.R.B., 340
U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the
Commissioner ignores countervailing evidence or fails to resolve a conflict
created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must
indicate which evidence was accepted, which evidence was rejected, and the
reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d
at 706-07. 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); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).

20

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. § 432(d)(1)(A). Further,
[a]n individual shall be determined to be under a disability only
if 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, 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. For purposes of the preceding
sentence (with respect to any individual), “work which exists in
the national economy” means work which exists in significant
numbers either in the region where such individual lives or in
several regions of the country.
42 U.S.C. § 423(d)(2)(A).
The Commissioner uses a five-step process in evaluating disability and
claims for disability insurance benefits. See 20 C.F.R. § 404.1520; Poulos, 474
F.3d at 91-92. This process requires the Commissioner to consider, in sequence,
whether a claimant (1) is engaging in substantial gainful activity, (2) has an
impairment that is severe or a combination of impairments that is severe, (3) has
21

an impairment or combination of impairments that meets or equals the
requirements of a listed impairment, (4) has the residual functional capacity to
return to his or her past work and (5) if not, whether he or she can perform other
work in the national economy. Id. As part of step four, the Commissioner must
determine the claimant’s residual functional capacity. Id. If the claimant has the
residual functional capacity to do his or her past relevant work, the claimant is not
disabled. Id. “The claimant bears the ultimate burden of establishing steps one
through four.” 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 Social Security Ruling 96-8p, 61 Fed. Reg.
34475 (July 2, 1996). 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. The residual functional capacity assessment must include a
discussion of the individual’s abilities. Id.; 20 C.F.R. §§ 404.1545 and 416.945;
Hartranft, 181 F.3d at 359 n.1 (“‘Residual functional capacity’ is defined as that
which an individual is still able to do despite the limitations caused by his or her
impairment(s).”).
“At step five, the burden of proof shifts to the Social Security
Administration to show that the claimant is capable of performing other jobs
22

existing in significant numbers in the national economy, considering the
claimant’s age, education, work experience, and residual functional capacity. ”
Poulos, 474 F.3d at 92, citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir.
2004).
ALJ DECISION
Initially, the ALJ determined that Plaintiff met the insured status
requirements of the Social Security Act through the date last insured of December
31, 2016. (Tr. 21). At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful work activity from her alleged onset date of April 15, 2012.
(Tr. 21).
At step two, the ALJ determined that Plaintiff suffered from the severe7
combination of impairments of the following: “MDD, depressive disorder, PTSD
(404.1520(c)) and 416.920(c)).” (Tr. 22-23).
At step three of the sequential evaluation process, the ALJ found that
7. An impairment is “severe” if it significantly limits an individual’s ability to

perform basic work activities. 20 C.F.R. § 404.921. Basic work activities are the
abilities and aptitudes necessary to do most jobs, such as walking, standing,
sitting, lifting, pushing, seeing, hearing, speaking, and remembering. Id. An
impairment or combination of impairments is “not severe” when medical and other
evidence establish only a slight abnormality or a combination of slight
abnormalities that would have no more than a minimal effect on an individual’s
ability to work. 20 C.F.R. § 416.921; Social Security Rulings 85-28, 96-3p and
96-4p.
23

Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926). (Tr. 24-26).
At step four, the ALJ determined that Plaintiff had the RFC to perform a full
range of work at all exertional levels with limitations. (Tr. 51-55). Specifically,
the ALJ stated the following:
After careful consideration of the entire record, the undersigned
finds that [Plaintiff] has the [RFC] to perform a full range of
work at all exertional levels but with the following
nonexertional limitations: occasional climbing but never on
ladders; avoid temperature extremes, humidity and fumes; is
limited to simple routine tasks, low stress as defined as only
occasional decision making and only occasional changes in the
work setting; and no interaction with the public and only
occasional interaction with co-workers.
(Tr. 26).
At step five of the sequential evaluation process, because Plaintiff could not
perform any past relevant work, and considering the her age, education, work
experience, and RFC, the ALJ determined “there are jobs that exist in significant
numbers in the national economy that the [Plaintiff] can perform (20 C.F.R.
404.1569 and 404.1569(a)).” (Tr. 30-32).
Thus, the ALJ concluded that Plaintiff was not under a disability as defined
24

in the Social Security Act at any time between April 15, 2012, the alleged onset
date, and the date of the ALJ’s decision. (Tr. 32).
DISCUSSION
On appeal, Plaintiff asserts that: (1) the ALJ erroneously found Plaintiff’s
degenerative disc disease of the cervical spine, asthma, and obesity non-severe,
and thus overestimated her RFC; (2) The ALJ erroneously assigned little weight to
the assessment of the examining psychologist which, if credited, would have
compelled a finding of disability; (3) the ALJ failed to present a hypothetical
question containing all of Plaintiff’s credibly established limitations to the VE;
and (4) the ALJ erred in his credibility determination of Plaintiff. (Doc. 15, pp. 3,
5-15) . Defendant disputes these contentions. (Doc. 17, pp. ).
1.

Step Two- Neck Impairment, Asthma, and Obesity

Plaintiff asserts that the ALJ erred in finding Plaintiff’s neck impairment,
asthma, and obesity to be non-severe in violation of Social Security Regulation
(“SSR”) 96-3p because this impairment was more than a slight abnormality that
had more than a minimal effect on his ability to do basic work activities. (Doc. 15,
pp. 5-9).
Step Two “‘is a threshold analysis that requires [a claimant] to show that he
has one severe impairment.’” Traver v. Colvin, 2016 U.S. Dist. LEXIS 136708, at
25

*29 (M.D. Pa. Oct. 3, 2016) (Conaboy, J.) (citing Bradley v. Barnhart, 175
F.App’x 87 (7th Cir. 2006)). SSR 96-3p states that an impairment is considered
severe if it “significantly limits an individual’s physical or mental abilities to do
basic work activities.” SSR 96-3p. An impairment is not severe if it is a slight
abnormality that has no more than a minimal effect on the Plaintiff’s ability to do
basic work activities. Id. The United States Court of Appeals for the Third
Circuit has held that as long as the ALJ finds at least one (1) impairment to be
severe at Step Two, that step is resolved in Plaintiff’s favor, the sequential
evaluation process continues, and any impairment that is found to non-severe is
harmless error because the ALJ still has to consider all impairments, both severe
and non-severe, in the RFC analysis. See 20 C.F.R. §§ 404.1545(a)(2),
416.945(a)(2); see also Salles v. Commissioner of Social Security, 229 F. App’x
140, 145 n.2 (3d Cir. 2007) (“Because the ALJ found in [the plaintiff’s] favor at
Step Two, even if he had erroneously concluded that some of her other
impairments were non-severe, any error was harmless.” (citing Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005))); Popp v. Astrue, 2009 U.S. Dist.
LEXIS, *4 (W.D. Pa. April 7, 2009) (“The Step Two determination as to whether
Plaintiff is suffering from a severe impairment is a threshold analysis requiring the
showing of only one severe impairment . . . In other words, as long as a claim is
26

not denied at Step Two, it is not generally necessary for the ALJ to have
specifically found any additional alleged impairment to be severe.”) (citations
omitted).
In the case at hand, the ALJ found several of Plaintiff’s impairments to be
severe at Step Two, and thus resolved this step in Plaintiff’s favor and continued
the sequential evaluation process. (Tr. 22-23). The ALJ completed all five (5)
steps of the sequential evaluation process, and in the RFC section, accounted for
the opined limitations caused by Plaintiff’s asthma and obesity as the ALJ limited
Plaintiff to occupations that involved “occasional climbing but never on ladders;
avoid temperature extremes, humidity and fumes; is limited to simple routine
tasks, low stress as defined as only occasional decision making and only
occasional changes in the work setting; and no interaction with the public and only
occasional interaction with co-workers.” (Tr. 26). Regarding Plaintiff’s neck
impairment, there was nothing in the record by way of medical evidence or
opinion that Plaintiff had resulting limitations. In fact, as discussed by the ALJ in
his opinion, Plaintiff’s physical examinations consistently revealed a normal range
of motion and motor function without tenderness, swelling, or deformities in her
neck, and that Plaintiffs’s “complaints [about her neck were] disproportionate to
the radiographic findings.” (Tr. 23, 397-398, 423, 425, 444).
27

As such, because the sequential evaluation process continued past Step Two
and because the ALJ took all of Plaintiff’s impairments, both severe and nonsevere, into account when determining the RFC, substantial evidence supports the
ALJ’s decision at Step Two, and the decision will not be disturbed on appeal
based on this assertion.
2.

Opinion Evidence

Next, Plaintiff asserts that the ALJ erroneously assigned little weight to the
assessment of the examining psychologist, Dr. Timchack, which, if credited,
would have compelled a finding of disability. (Doc. 15, pp. 9-12). In support of
this argument, she states that the ALJ gave erroneous reasons for giving this
opinion little weight, and that Dr. Timchack was correct that she had marked
limitations.8 (Id.).
The responsibility for deciding a claimant’s RFC rests with the
administrative law judge. See 20 C.F.R. § 404.1546. In arriving at the RFC, an
administrative law judge should be mindful that the preference for the treating
physician’s opinion has been recognized by the Third Circuit Court of Appeals

8. Regarding the portion of Plaintiff’s argument that she was hospitalized for her

mental health impairments, this Court finds that the ALJ did not err in not taking
the hospitalization(s) into account because they did not occur during the relevant
time period.
28

and by all of the federal circuits. See, e.g., Morales v. Apfel, 225 F.3d 310, 31618 (3d Cir. 2000). This is especially true when the treating physician’s opinion
“reflects expert judgment based on a continuing observation of the patient’s
condition over a prolonged time.” Morales, 225 F.3d at 317; Plummer, 186 F.3d
at 429; see also 20 CFR § 416.927(d)(2)(i)(1999) (“Generally, the longer a treating
source has treated you and the more times you have been seen by a treating source,
the more weight we will give to the source’s medical opinion.”).
However, when the treating physician’s opinion conflicts with a nontreating, non-examining physician’s opinion, the ALJ may choose whom to credit
in his or her analysis, but “cannot reject evidence for no reason or for the wrong
reason.” Morales, 225 F.3d 316-18. It is within the ALJ’s authority to determine
which medical opinions he rejects and accepts, and the weight to be given to each
opinion. 20 C.F.R. § 416.927. The ALJ is permitted to give great weight to a
medical expert’s opinion if the assessment is well-supported by the medical
evidence of record.
Pursuant to Social Security Regulation 96-6p, an administrative law judge
may only assign less weight to a treating source opinion based on a non-treating,
non-examining medical opinion in “appropriate circumstances.” SSR 96-6p, 1996
SSR LEXIS 3. This regulation does not define “appropriate circumstances,” but
29

gives an example that “appropriate circumstances” exist when a non-treating, nonexamining source had a chance to review “a complete case record . . . which
provides more detailed and comprehensive information than what was available to
the individual’s treating source.” Id. (emphasis added). The Third Circuit has not
upheld any instance, in any precedential opinion, in which an administrative law
judge has assigned less than controlling weight to an opinion rendered by a
treating physician and more weight to an opinion from a non-treating, nonexamining examiner who did not review a complete case record. See Brown v.
Astrue, 649 F.3d 193 (3d Cir. 2011) (holding that the administrative law judge did
not err in affording more weight to a medical opinion rendered by a nonexamining physician because the physician testified at the oral hearing and had a
chance to review the entire case record); Brownawell v. Commissioner of Social
Security, 554 F.3d 352 (3d Cir. 2008) (holding that three (3) non-treating opinions
were not sufficient to reject a treating source medical opinion because they were
“perfunctory’ and omitted significant objective findings promulgated after the
non-treating opinions were issued); Morales, 225 F.3d at 314 (holding that remand
was proper because the claimant’s residual functional capacity was based on an
opinion rendered by a non-treating, non-examining physician who “review[ed]
[claimant’s] medical record which . . . did not include [two physicians’] reports”
30

and was thus based on an incomplete medical record).
Additionally, in choosing to reject the evaluation of a treating physician, an
ALJ may not make speculative inferences from medical reports and may reject the
treating physician’s opinions outright only on the basis of contradictory medical
evidence. Morales, 225 F.3d at 316-18. An ALJ may not reject a written medical
opinion of a treating physician based on his or her own credibility judgments,
speculation or lay opinion. Id. An ALJ may not disregard the medical opinion of
a treating physician based solely on his or her own “amorphous impressions,
gleaned from the record and from his evaluation of the [claimant]’s credibility.”
Id. As one court has stated, “Judges, including administrative law judges of the
Social Security Administration, must be careful not to succumb to the temptation
to play doctor” because “lay intuitions about medical phenomena are often
wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir 1990).
Regardless of what the weight an administrative law judge affords to
medical opinions, the administrative law judge has the duty to adequately explain
the evidence that he or she rejects or affords lesser weight. Diaz v. Comm’r of
Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009). “The ALJ’s explanation must be
sufficient enough to permit the court to conduct a meaningful review.” Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d Cir. 2000).
31

On January 30, 2013, Plaintiff presented to Stephen Timchak, Psy.D., for a
consultative psychological examination. (Tr. 463-68). Her mental status
examination revealed she: was alert and oriented; had intact memory; had logical
and goal-directed speech; denied any hallucinations; had impaired attention and
concentration; had a hypervigilant mental trend; had fair insight; and had an
average to low average IQ. (Tr. 466-467). Her diagnoses included PTSD and
Depressive Disorder, NOS, and Dr. Timchack opined that Plaintiff’s prognosis
was poor. (Tr. 467).
On March 8, 2013, Dr. Timchak completed a check-box form, where he
checked boxes to indicate that Plaintiff had no impairment in handling simple
instructions; a slight impairment in remembering details instructions; a moderate
impairment in carrying out detailed instructions; a marked impairment in making
judgments on simple work-related decisions; and marked restrictions in every
category relating to social interaction and workplace adaptation. (Tr. 461-462).
In the case at hand, the ALJ gave some weight to the portion of Dr.
Timchack’s opinion that Plaintiff had no to moderate limitations in her ability to
understand, remember, and carry out instructions, and little weight to the portion
of the opinion that Plaintiff had marked limitations in her ability to respond
appropriately to supervision, co-workers, and work pressures in a work setting.
32

(Tr. 29). The ALJ’s reasoning was that these latter portions should be given little
weight because Dr. Timchack was not a treating physician and because his
findings were not supported by the medical evidence, but rather Plaintiff’s selfreported symptoms. (Tr. 29). Instead, the ALJ gave great weight to the opinion of
Dr. Banks because it was more consistent with the record.
Upon review of the record and the ALJ’s reasoning, it is determined that
substantial evidence supports the ALJ’s decision to give little weight to a portion
of Dr. Timchack’s opinion because the ALJ provided sound reasoning supported
by the medical evidence. As such, the ALJ’s decision will not be disturbed on
appeal based on this assertion.
3.

Hypothetical Question Presented to the Vocational Expert

Plaintiff asserts that the hypothetical questions posed to the VE were flawed
because they did not include limitations relating to her neck impairment, asthma,
obesity, and some of her mental health impairments. (Doc. 15, pp. 12-13).
The United States Court of Appeals for the Third Circuit has held in that a
hypothetical question must include all of a claimant’s functional limitations which
are supported by the record. Ramirez v. Barnhart, 372 F.3d 546, 553-55 (3d Cir.
2004); Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987); Podedworny v.
Harris, 745 F.2d 210, 218 (3d Cir. 1984). A hypothetical that omits limitations is
33

defective, and the answer thereto cannot constitute substantial evidence to support
denial of a claim. Ramirez, 372 F.3d at 553-55. However, “[w]e do not require an
ALJ to submit to the vocational expert every impairment alleged by a claimant.”
Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (emphasis in original).
When an ALJ’s hypothetical question to a vocational expert sets forth the
Plaintiff’s limitations, as supported by the record, the vocational expert’s response
may be accepted as substantial evidence in support of the ALJ’s determination that
the Plaintiff is not disabled. See Chrupcala, 829 F.2d at 1276.
As discussed, ALJ took these aforementioned impairments and the
limitations they caused as opined in the medical record into account when
determining the RFC. To reiterate, the ALJ accounted for the limitaitons caused
by Plaintiff’s asthma, obesity, and mental health impairments as the ALJ limited
Plaintiff to occupations that involved “occasional climbing but never on ladders;
avoid temperature extremes, humidity and fumes; is limited to simple routine
tasks, low stress as defined as only occasional decision making and only
occasional changes in the work setting; and no interaction with the public and only
occasional interaction with co-workers.” (Tr. 26). Regarding Plaintiff’s neck
impairment, there was nothing in the record by way of medical evidence or
opinion that Plaintiff had resulting limitations. In fact, as discussed by the ALJ in
34

his opinion, Plaintiff’s physical examinations consistently revealed a normal range
of motion and motor function without tenderness, swelling, or deformities in her
neck, and that Plaintiffs’s “complaints [about her neck were] disproportionate to
the radiographic findings.” (Tr. 23, 397-398, 423, 425, 444).
The ALJ then presented a supported RFC determination to the VE, and the
VE provided a response. As such, because the ALJ presented a proper RFC
determination to the VE, substantial evidence supports the hypothetical questions
posed to the VE, and the ALJ’s determination will not be disturbed on appeal
based on this assertion.
4.

Credibility Determination

Plaintiff asserts the ALJ erred in determining Plaintiff was not fully credible
in violation of 20 C.F.R. § 404.1529 ( c) and SSR 96-7p. (Doc. 15, pp. 13-16).
She asserts that the ALJ’s credibility assessment was improper because it was
based on the ALJ’s perception of Plaintiff’s tearfulness at the hearing and the fact
that Plaintiff received unemployment compensation benefits. (Id.).
As part of Step Four of the sequential evaluation process, once an ALJ
concludes that there is a medical impairment that could reasonably cause the
alleged symptoms, “he or she must evaluate the intensity and persistence of the
pain or symptom, and the extent to which it affects the individual’s ability to
35

work.” Hartranft, 181 F.3d at 362 (citing 20 C.F.R. § 404.1529(c)). This
“requires the ALJ to determine the extent to which a claimant is accurately stating
the degree of pain or the extent to which he or she is disabled by it.” Id. In
evaluating the intensity and persistence of a claimant’s symptoms, an ALJ should
consider: (1) the claimant’s history; (2) medical signs and laboratory findings; (3)
medical opinions; and (4) statements from the claimant, treating and non-treating
sources, and other persons about how the claimant’s symptoms affect him/her.
See 20 C.F.R. § 404.1529. Importantly, “[a]n individual’s statements about the
intensity and persistence of pain or other symptoms or about the effect the
symptoms have on his or her ability to work may not be disregarded solely
because they are not substantiated by objective medical evidence.” 1996 SSR
LEXIS 4 (1996); 20 C.F.R. § 404.1529(c)(2).
“Generally, ‘an ALJ’s findings based on the credibility of the applicant are
to be accorded great weight and deference, particularly since an ALJ is charged
with the duty of observing a witness’s demeanor and credibility.’” Fell v. Astrue,
2013 U.S. Dist. LEXIS 167100, *29 (M.D. Pa. 2013) (Conaboy, J.) (quoting
Walters v. Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir. 1997));
Frazier v. Apfel, 2000 U.S. Dist. LEXIS 3105 (E.D. Pa. Mar. 6, 2000). “‘The
credibility determinations of an administrative judge are virtually unreviewable on
36

appeal.” Hoyman v. Colvin, 606 Fed. App’x 678, 681 (3d Cir. 2015) (citing
Beiber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002)).
Social Security Ruling 96-7p gives the following instructions in evaluating
the credibility of the claimant’s statements:
In general, the extent to which an individual’s statements about
symptoms can be relied upon as probative evidence in
determining whether the individual is disabled depends on the
credibility of the statements. In basic terms, the credibility of
an individual’s statements about pain or other symptoms and
their functional effects is the degree to which the statements
can be believed and accepted as true. When evaluating the
credibility of an individual’s statements, the adjudicator must
consider the entire case record and give specific reasons for the
weight given to the individual’s statements.

SSR 96-7p. “In particular, an ALJ should consider the following factors: (1) the
plaintiff’s daily activities; (2) the duration, frequency and intensity of the
plaintiff’s symptoms; (3) precipitating and aggravating factors; (4) the type,
dosage, effectiveness, and side effects of any medication taken to alleviate the
symptoms; (5) treatment, other than medication for relief of the symptoms; (6) any
measures the plaintiff uses or has used to relieve the symptoms; (7) the plaintiff’s
prior work record; and (8) the plaintiff’s demeanor during the hearing.” Jury v.
Colvin, 2014 U.S. Dist. LEXIS 33067, *33 (M.D. Pa. 2014) (Conner, J.) (citing 20
C.F.R. § 404.1529(c)(3)).
37

In assessing Plaintiff’s credibility in this case, the ALJ stated:
[Plaintiff]’s lack of candor, her application and receipt of
unemployment benefits, her level of activity, her benign
findings and routine conservative care are not consistent with a
find of disability and undermine her credibility.
.......................................................................................................
After careful consideration of the evidence, the undersigned
finds that [Plaintiff]’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms;
however, [Plaintiff]’s statements concerning the intensity,
persistence, and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision. The
record evidence simply fails to support [Plaintiff]’s alleged
degree of incapacity.
(Tr. 27-28). The ALJ discussed the medical record highlights in support of her
credibility determination, including, but not limited to, Plaintiff’s scant treatment
with a treating physician and the largely normal mental status and physical
examination findings. (Tr. 26-30). In terms of Plaintiff’s activities of daily living,
the ALJ noted that Plaintiff testified in her Adult Function Report that she was
able to perform some household chores, take care of her children, handle money,
and read. (Tr. 26-27). Thus, aside from mentioning Plaintiff’s lack of candor at
the hearing, it is evidence that the ALJ considered the aforementioned Jury factors
in his analysis, including daily activities, treatment and measures used to relieve
symptoms, and the duration, frequency and intensity of Plaintiff’s symptoms,
38

which is evident in the resulting restrictive RFC finding. Additionally, contrary to
Plaintiff’s assertion, “it was entirely proper for the ALJ to consider that
[Plaintiff’s] receipt of unemployment benefits was inconsistent with a claim of
disability during the same period.” Myers v. Barnhart, 57 Fed. Appx. 990, 997 (3d
Cir. 2003).
Upon review of the record and the ALJ’s credibility determination, it is
determined that there is substantial evidence to support the ALJ’s credibility
finding of Plaintiff. The ALJ is correct that there were enough inconsistencies in
the record regarding Plaintiff’s self-reported limitations that weakened her
credibility, including the benign examination findings and Plaintiff’s self-reported
activities of daily living. Furthermore, the ALJ did not find Plaintiff to be not
credible, but only not entirely credible. (Tr. 20). The RFC finding is evidence
that ALJ found Plaintiff credible to some degree, albeit not completely, as the ALJ
concluded Plaintiff could perform work with only “occasional climbing but never
on ladders; avoid temperature extremes, humidity and fumes; is limited to simple
routine tasks, low stress as defined as only occasional decision making and only
occasional changes in the work setting; and no interaction with the public and only
occasional interaction with co-workers.” (Tr. 26). By evaluating the extent to
which Plaintiff’s subjective complaints were reasonably consistent with the
39

objective medical evidence, the credibility analysis was proper. See Blue Ridge
Erectors v. Occupational Safety & Health Review Com’n, 261 Fed. Appx. 408,
410 (3d Cir. 2008) (quoting St. George Warehouse, Inc. v. NLRB, 420 F.3d 294,
298 (3d Cir. 2005) (“[T]he ALJ’s credibility determinations should not be reversed
unless inherently incredible or patently unreasonable.”)). As such, because the
ALJ’s credibility determination is to be accorded great deference and is supported
by substantial evidence, the ALJ’s decision will not be disturbed on appeal based
on Plaintiff’s assertion.
CONCLUSION
Based upon a thorough review of the evidence of record, it is determined
that the Commissioner’s decision is supported by substantial evidence. Therefore,
pursuant to 42 U.S.C. § 405(g), the appeal will be denied, the decision of the
Commissioner will be affirmed, judgment will be entered in favor of Defendant
and against Plaintiff, and the Clerk of Court will be directed to close this matter.
A separate Order will be issued.

Date: March 26, 2017
/s/ William J. Nealon
United States District Judge

40