Koger v. Colvin et al

Filing 14

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable William J. Nealon on 10/11/2017. (rm)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
MELISSA KOGER,
Plaintiff
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant

:
:
:
:
:
:
:
:
:
:

No. 3:16-CV-00090
(Judge Nealon)

MEMORANDUM
On January 16, 2016, Plaintiff, Melissa Koger, filed this instant appeal2
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”)3 under Titles

1. Nancy A. Berryhill became the new Acting Commissioner of Social Security on

January 23, 2017. See http://blog.ssa.gov/meet-our-new-acting-commissioner/.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill
should be substituted for prior Acting Commissioner, Carolyn W. Colvin, as the
defendant in this suit. No further action needs to be taken to continue this suit by
reason of the last sentence of Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).
2. 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.
3. Supplemental security income is a needs-based program, and eligibility is not

limited based on an applicant’s date last insured.

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 vacated.
BACKGROUND
Plaintiff protectively filed4 her applications for DIB and SSI on September
23, 2012, alleging disability beginning on August 4, 2012, due to a combination of
“Major Depression, Panic Disorder with Agoraphobia, Diabetes, Hypertension,
Hypothyroidism, allergies, and Polycystic Ovarian Syndrome.” (Tr. 12, 176).5
These claims were initially denied by the Bureau of Disability Determination
(“BDD”)6 on October 25, 2012. (Tr. 12). On December 14, 2012, Plaintiff filed a
written request for a hearing before an administrative law judge. (Tr. 12). On
April 16, 2014, an oral hearing was held before administrative law judge Daniel

4. 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.
5. References to “(Tr. )” are to pages of the administrative record filed by

Defendant as part of the Answer on April 4, 2016. (Doc. 8).
6. 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

Myers, (“ALJ”), at which Plaintiff and vocational expert Andrew Caporale,
(“VE”), testified. (Tr. 12). On July 23, 2014, Plaintiff filed a request for review
with the Appeals Council. (Tr. 8). On December 28, 2015, the Appeals Council
concluded that there was no basis upon which to grant Plaintiff’s request for
review. (Tr. 1-7). Thus, the ALJ’s decision stood as the final decision of the
Commissioner.
Plaintiff filed the instant complaint on January 6, 2016. (Doc. 1). On April
4, 2016, Defendant filed an answer and transcript from the SSA proceedings.
(Docs. 7 and 8). Plaintiff filed a brief in support of her complaint on May 10,
2016. (Doc. 10). Defendant filed a brief in opposition on June 1, 2016. (Doc.
12). On June 9, 2016, Plaintiff filed a reply brief. (Doc. 13).
Plaintiff was born in the United States on June 11, 1967, and at all times
relevant to this matter was considered a “younger individual.”7 (Tr. 173). Plaintiff
completed two (2) years of college and can communicate in English. (Tr. 175,
177). Her employment records indicate that she previously worked as a collection
7. 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

agent, credit analyst, and service representative. (Tr. 177). The records of the
SSA reveal that Plaintiff had earnings in the years 1981 through 2012. (Tr. 170).
Her annual earnings range from a low of two hundred six dollars and sixty cents
($206.60) in 1982 to a high of forty-five thousand one hundred forty-two dollars
and three cents ($45,142.03) in 2009. (Tr. 170).
In a document entitled “Function Report - Adult” filed with the SSA on
October 4, 2012, Plaintiff indicated that she lived in a house with her family. (Tr.
203). She noted that her illnesses, injuries or conditions limited her ability to
work, stating:
I have trouble driving because of head spins and being
lightheaded and panic attacks. I can only stand to be around
people for short periods and when I get home I’m completely
exhausted. I can’t remember things/ words. I forget what I’m
doing and have to concentrate to remember. Other tasks are
hard because I am always shaking . . .
(Tr. 203). She indicated that from the time she woke up until the time she went to
bed, she took her medicine, slept, and separated herself from everyone. (Tr. 204).
She had difficulty with personal care, noting that dressing, caring for her hair, and
shaving were difficulty due to shakiness and lightheadedness. (Tr. 204). She was
able to prepare meals daily, cleaned and did the laundry once a week, and shopped
in stores for groceries and clothing. (Tr. 205-206). When asked to check which

4

items were affected by her illnesses, injuries, or conditions, Plaintiff did not check:
lifting; squatting; bending; standing; reaching; walking; sitting; kneeling; hearing;
stair climbing; or seeing. (Tr. 208).
Regarding concentration and memory, Plaintiff did not need special
reminders to take care of her personal needs, to go places, or to take her medicine.
(Tr. 205, 207). She could pay bills, handle a savings account, count change, and
use a checkbook as long as she “double checked [her]self.” (Tr. 206). She noted
that she could pay attention for about five (5) to ten (10) minutes at a time, did not
finish what she started, had to re-read written instructions, and sometimes jumbled
up spoken instructions. (Tr. 208).
Socially, Plaintiff noted it varied how often she left her home and that she
was able to do so unaccompanied, but felt better when she was with someone she
trusted. (Tr. 206). Her hobbies included reading, crafts, and motorcycle riding,
the latter which she stated she no longer did because of difficulty concentrating
and with hand coordination. (Tr. 207). The places she went on a regular basis
included the doctor’s office, pharmacy, and houses of immediate family members.
(Tr. 207). Plaintiff noted she was able to drive to these places, but that she
experienced panic attacks. (Tr. 206). Regarding spending time with others, she
spent time talking to others daily. (Tr. 207). She had problems getting along with
5

family, friends, neighbors, authority figures, or others, explaining, “I find I can no
longer tolerate negative or hyper people.” (Tr. 208).
On February 18, 2013, Plaintiff completed a form titled “Activities of Daily
Living.” (Tr. 223-226). Plaintiff indicated that she: did the laundry every one (1)
to two (2) weeks, with her husband carrying it for her; did the dishes as necessary;
cleaned only when her husband could not clean due to her allergies and back
problems; shopped for groceries every three (3) weeks when she was having a
“good day” and would go early in the morning to avoid crowds; took care of her
personal needs, but at twice the amount of time due to panic attacks; read books;
drove about thirty-five (35) miles per month; visited family members every one (1)
to two (2) months; did not attend social activities due to “too many people [and]
noise;” slept between five (5) and eleven (11) hours a night; and took naps during
the day. (Tr. 223-226).
During the oral hearing on April 16, 2014, Plaintiff testified that she was
unable to work due to a combination of sleep problems, diabetes, panic attacks,
and back problems. She reported that her panic attack symptoms included
shaking uncontrollably, chest pressure, feelings of a heart attack, and rage. (Tr.
56-57). She stated that, as of late, she had experienced panic attacks and rage a
couple of times a week, describing the rage as wanting to physically hurt someone
6

that was intrusive on her feelings of safety. (Tr. 57-58). She also experienced
crying spells a few times a week. (Tr. 62). She stated that her ability to
concentrate and focus was “all over the place.” (Tr. 59). She also noted she had
to take breaks for a length of time that was dependent on how much she had slept
the night before and on how her back was feeling. (Tr. 59-60). Plaintiff testified
she did very little driving because she was having “sleep issues” that caused her to
fall asleep behind the wheel when her husband was in the car with her a year prior
to the hearing. (Tr. 46-47).
MEDICAL RECORDS
A.

Medical Evidence
1.

Katherine Curci, Ph.D, CRNP

On August 6, 2012, Plaintiff had an appointment with Katherine Curci,
Ph.D, CRNP, after an episode of nausea, lightheadedness, and near fainting. The
medications she was taking at the time of this appointment included AmlodipineBenazepril; Levothyroxine; Montelukast; Sertraline; and Tranexamic Acid. (Tr.
332). Dr. Curci ordered lab work and instructed Plaintiff to take off work until her
follow-up appointment. (Tr. 332).
On August 9, 2012, Plaintiff had a follow-up appointment with Dr. Curci.
(Tr. 327). The medications she was taking at the time of this appointment
7

included Amlodipine-Benazepril; Levothyroxine; Montelukast; Sertraline; and
Tranexamic Acid. (Tr. 327). Dr. Curci ordered more lab work and instructed
Plaintiff to schedule an appointment with Dr. Chambers. (Tr. 330).
On February 14, 2013, Plaintiff had a follow-up appointment with Dr. Curci
for thyroid disease, excessive malaise and fatigue, an enlarged thyroid, diabetes,
hypertension, and “PTSD.” (Tr. 590). Plaintiff reported she had not been sleeping
well at night and felt excessively fatigued. (Tr. 590). An examination revealed a
slightly enlarged thyroid. (Tr. 590). Dr. Curci ordered lab work and a thyroid
ultrasound. (Tr. 590).
2.

Linda Chambers, M.D.

On August 15, 2012, Plaintiff had an appointment with Linda Chambers,
M.D., for follow-up of lab work and complaints of anxiety and not feeling well.
(Tr. 322). It was noted that Plaintiff: had been taking Sertraline for anxiety as
prescribed by Dr. Curci; had panic attacks at work with chest pressure; passed out
at a recent wedding; did not have anxiety attacks at home; and experienced
nervousness, dizziness, depression, tiredness, and headaches. (Tr. 322-323).
Plaintiff’s examination revealed she: was well-developed, well-nourished, and
appropriately dressed; had good eye contact, but was tearful at times; had a regular
heart without murmur or gallop; and had lungs clear to auscultation anteriorly and
8

posteriorly. (Tr. 323). Based on lab work done a few weeks prior, Dr. Chambers
diagnosed Plaintiff with diabetes with a “significantly elevated A1c.” (Tr. 323).
Plaintiff was counseled to quit smoking as she noted she smoked a pack of
cigarettes per day, was given extensive counseling for her diet and exercise
program, was referred to the care coordinator Karen Newman for diabetes
education and support of anxiety, and was prescribed Metformin and aspirin. (Tr.
323).
On December 3, 2012, Plaintiff had an appointment with Dr. Chambers for
follow-up of her anxiety, diabetes, hyperlipidemia, and tobacco use. (Tr. 400).
On December 27, 2012, Plaintiff had an appointment with Dr. Chambers for
Polycystic Ovarian Syndrome. (Tr. 410).
3.

Karen Newman, MS, RN

On August 23, 2012, Plaintiff had an appointment with Karen Newman,
MS, RN, for management of diabetes and anxiety. Plaintiff reported that she
wanted to get her anxiety under control, had been shaky and anxious while getting
ready for her appointment, and that she was unsure whether she was able to
function at work. (Tr. 319-320). Ms. Newman noted that Plaintiff was: tearful;
compliant with her diabetes and anxiety medications; was decreasing her once
“enormous” amount of intake of regular soda and energy drinks; not ready for
9

smoking cessation; and improving her glucose levels. (Tr. 319-320).
4.

Debra Gray-Felty, MS

From August 30, 2012, through October 1, 2012, Plaintiff attended therapy
appointments with Debra Gray-Felty, MS (“Ms. Gray-Felty”). (Tr. 365-368).
Plaintiff’s self-reported symptoms included: an inability to “handle anything;”
shakiness; a pounding heart; shortness of breath; a feeling like she was going to
faint; anxiety when leaving her home; an inability to sleep; agitation; dizziness;
lightheadedness; napping during the day; tiredness; feelings of wanting to be
alone; poor concentration; nightmares; difficulty focusing; and ruminations. (Tr.
365-368). Ms. Gray-Felty noted Plaintiff was tearful and shaky and had a broad
affect appropriate to the discussion. (Tr. 365-368). It was noted that Plaintiff’s
mother drove her to her appointments due to Plaintiff’s poor concentration and
fear of having a panic attack. (Tr. 365-368).
5.

Karen Rizzo, M.D.

On August 7, 2012, Plaintiff had an appointment with Dr. Rizzo for
evaluation of ongoing nasal and sinus congestion. (Tr. 374). Plaintiff reported
she did not breathe well on the right side of her nose, had right ear fullness with
right-sided ostiomeatal complex pressure, and experienced post-nasal drip and a
decreased sense of smell. (Tr. 374). It was noted Plaintiff smoked a pack of
10

cigarettes a day and had numerous allergies. (Tr. 374). She had minimal relief
with decongestants, antibiotics, and nasal sprays. (Tr. 374). Physical examination
revealed: a deviated septum to the right obstructing eighty percent (80%) of the
right side; narrowing of the right middle meatal area; and enlarged turbinates. (Tr.
374). Dr. Rizzo ordered a CT scan of the sinuses, prescribed a Z-Pak and Medrol
dose pack for Plaintiff, and scheduled Plaintiff for a follow-up appointment. (Tr.
374).
On December 28, 2012, Plaintiff had an appointment with Dr. Rizzo for a
recheck of chronic sinusitis. (Tr. 375). Plaintiff reported that it took her months
to get back to Dr. Chambers because of anxiety attacks and trying to get her
diabetes under control. (Tr. 375). It was noted she was still smoking a pack of
cigarettes a day. (Tr. 375). The medications Plaintiff was taking at the time of
this appointment included Amlodipine; aspirin; Benazepril; Clonazepam;
Levothryoxine; Metformin; Montelukast; and Sertraline. (Tr. 377). Her physical
examination revealed Plaintiff: was alert, oriented, and in no acute distress; had
moderate nasal congestion with swollen inferior turbinates, a deviated septum on
the left anterior and right posterior side, and a narrowed right middle meatus; had
a normal mood and appropriate affect; had intact judgment; had good insight; and
was orientated to time, place, and person. (Tr. 379). Plaintiff was diagnosed with
11

a deviated nasal septum, Concha Bullosa, hypertrophy of nasal turbinates, allergic
rhinitis, and sinusitis of the maxillary sinuses of chronic nature. (Tr. 379). Dr.
Rizzo recommended Plaintiff undergo a septoplasty, bilateral inferior
turbinoplasty, bilateral resection of concha bullosa, and bilateral maxillary balloon
sinuplasty. (Tr. 379).
6.

John A. Biever, M.D.

On September 1, 2012, Plaintiff underwent a psychiatric evaluation
performed by John A. Biever, M.D. (Tr. 363). Plaintiff’s self-reported symptoms
included: “reawaking” insomnia; not feeling rested; acrophobia; bouts of
depression; and panic attacks. (Tr. 513). Plaintiff’s mental status examination
revealed she: was appropriately dressed; had a sad and worried facial expression;
had no peculiarities of movement or speech; had a depressed mood and affect
appropriate to this mood; had intact practical judgment; and had perfect recall of
“3 of 3 items after several minutes, intact abstractions, [and] accurate subtraction
of serial 3's.” (Tr. 514). The medications she was taking at this appointment
included: Metformin; Zoloft; Synthroid; allergy shots; Singulair; and Amlodipine.
(Tr. 513). Dr. Biever stated, “[u]ltimately the patient has been experiencing panic
attacks when she knows she has to travel to be somewhere.” (Tr. 513). It was
noted that Plaintiff had “chronic, serious and complicated psychiatric condition[s]
12

including Major Depression and Panic Disorder with Agoraphobia, further
complicated by chronic physical disorders including diabetes mellitus and
hypertension.” (Tr. 363). Dr. Biever stated, “[t]hese conditions cause [Plaintiff]
intolerable anxiety and exacerbation of her physical illnesses when she is exposed
to the stresses she routinely faces at the workplace. At this point she experiences a
significant increase in anxiety upon leaving her house for any reason.” (Tr. 363).
Dr. Biever noted Plaintiff had been attending psychotherapy sessions, and that her
response to medication has been positive, but slow “given the chronic and
complicated nature of her illness.” Dr. Biever opined, “employment is currently
contraindicated for [Plaintiff],” and that he could not predict when she would
become employable again. (Tr. 363).
From September 5, 2012 through July 27, 2013, Plaintiff had follow-up
appointments with Dr. Biever. (Tr. 516-517, 639-640). Her medications included
Zoloft, Clonazepam, and Prazosin. (Tr. 516, 639-640). Her symptoms included:
anticipatory anxiety; nightmares; tremors; a depressed mood; anger; panic;
insomnia; and depression. (Tr. 516-517, 639-640).
7.

Joan L. Brauckmann, M.D.

On July 3, 2013, Plaintiff had an initial appointment with Dr. Brauckmann
to initiate immunotherapy for allergic rhinitis and her allergies to dust mites and
13

mold. (Tr. 631). It was noted that Plaintiff had received immunotherapy from a
previous physician and that this therapy, along with Singulair and Nasonex, helped
to control her allergies. (Tr. 631). Plaintiff’s other self-reported symptoms
included depression and anxiety. (Tr. 633). A physical examination of Plaintiff
revealed a nasal mucosa that was pale and boggy with moderate engorgement of
the turbinates and clear drainage and papular excoriations on the upper arms and
back. (Tr. 633). Plaintiff was tested for allergies, which revealed she was allergic
to mold, dust mites, cockroaches, and mice. (Tr. 634). The plan was for Plaintiff
to continue taking Singulair and Naxonex, to continue on immunotherapy “with
the serum she brought from Pennsylvania,” and to follow-up in six (6) months or
sooner. (Tr. 634).
8.

Barbara J. Trandel, M.D.

On October 3, 2013, Plaintiff had an appointment with Dr. Trandel to
establish herself as a new patient after moving from Pennsylvania. (Tr. 653).
Plaintiff’s self-reported symptoms included daytime fatigue; somnolence; snoring;
a rash; back pain; and allergies. (Tr. 654). A physical examination revealed
Plaintiff had: a well-nourished, well developed appearance; a normal gait and
station; intact recent and remote memory; an appropriate mood and affect; and
widespread erythematous papules. (Tr. 654). It was noted Plaintiff was receiving
14

disability retirement and a federal pension. (Tr. 654). Dr. Trandel prescribed the
following medications: Levothyroid; Glucophage; Prazosin; Lotrel; Clonazepam;
Sertraline; and Bactrim. (Tr. 655).
On October 21, 2013, Plaintiff had an appointment with Dr. Trandel for
follow-up of her Diabetes and recent sinus congestion. (Tr. 650). It was noted
Plaintiff was still smoking a pack of cigarettes a day. (Tr. 650). A physical
examination revealed normal gait and station; intact cranial nerves; and a normal
thyroid without nodules or tenderness. (Tr. 651). Dr. Trandel instructed Plaintiff
to continue on Metformin for Diabetes, to stop smoking, and to schedule an
appointment with a psychiatrist for Depression and Panic Disorder with
Agoraphobia. (Tr. 651).
On March 19, 2014, Plaintiff had an appointment with Dr. Trandel for
diabetes and her other various medical issues. (Tr. 647). Her physical
examination revealed: intact recent and remote memory; an appropriate mood and
affect; orientation to time, place, and person; and a well-developed, wellnourished appearance. (Tr. 648). Plaintiff was assessed as having a sleep
disorder, Diabetes, Hypothyroidism, Sinusitis, Panic Disorder with Agoraphobia,
Post-Traumatic Stress Disorder; Depressive Disorder; Anxiety Disorder;
Hypertension; and Obesity. (Tr. 648). Dr. Trandel ordered a sleep study for
15

Plaintiff’s self-reported insomnia, prescribed Doxycycline for sinusitis, and
instructed Plaintiff to schedule a diabetic eye exam. (Tr. 648).
9.

Sherri L. Wright, DC

From September 17, 2013, through April 7, 2014, Plaintiff had
appointments with chiropractor Dr. Wright for back and neck pain. (Tr. 675-709).
Plaintiff described her pain as a “continuous aching and throbbing discomfort in
the back of the neck” that decreased with movement and was rated at a seven (7)
out of ten (10) on the pain scale approximately eighty percent (80%) of the time.
(Tr. 687). She also described having pain in her upper back that she rated at a four
(4) of ten (10) on the pain scale approximately forty percent (40%) of the time.
(Tr. 687). She additionally had pain in her mid and lower back rated at a six (6) to
seven (7) out of ten (10) on the pain scale approximately seventy percent (70%) of
the time. (Tr. 687). Further, she noted she had pain in her right hip and back of
the her hands. (Tr. 687-688). Physical examination revealed: a head tilt to the
right with a high right shoulder, thoracic hyperhyphosis and rotation of the trunk
to the right; subluxations in the cervical, thoracic, lumbar, and lubosacral region;
edema in the cervical, thoracic, and lumbar regions; spasms in the right cervical
dorsal area, right upper thoracic area, bilateral mid thoracic area and lumbosacral
region; a significant decrease of normal range of motion in the cervical flexion,
16

cervical extension, right lateral cervical flexion, left lateral cervical flexion, left
cervical rotation, lumbodoral extension, lumbodoral flexion, right lateral lumbar
flexion, left lateral lumbar flexion, right lumbodorsal rotation, and left lumbodoral
rotation; active trigger points in the suboccipital, cervical musculature, upper
trapezius, middle trapezius, lower trapezius, scapular, thoracic paraspinal, lumbar
paraspinal, gluteus medius and minimus, prirofrmis, gluteal and hip regions; a
positive test for myofascitis; a positive cervical compression test; a positive
downward pressure test on the top of the head that resulted in radiating spinal
pain; a positive Milgram’s test; a positive Yeoman’s test bilaterally; a positive
bilateral palpation of the sciatic nerve; a positive Kemp’s Test on the right
shoulder indicative of a disc protrusion or prolapse; a positive Shoulder
Depression test bilaterally; and multiple subluxations with spasm, hypomobility,
and end point tenderness at the C3, C4, C5, C6, C7, T4, T5, T6, T7, L4, L5, and
sacrum. (Tr. 688-690). Dr. Wright ordered x-rays of Plaintiff’s cervical and
lumbar spines. (Tr. 684-686). Dr. Wright assessed Plaintiff as having cervicalgia
and lumbalgia with a history of lumbar spine disc herniation and pain in the
bilateral sacroiliac joints. (Tr. 690). Plaintiff received diversified chiropractic
manipulative therapy and myofascial release. (Tr. 699-701, 704, 707, 709).
Plaintiff’s final prognosis was listed as fair. (Tr. 709).
17

10.

Cecil Holliman, M.D.

On April 28, 2013, Plaintiff had an appointment with Dr. Holliman after she
twisted her right foot. (Tr. 718). A physical examination revealed: a scattered
papular erythematous rash; mild tenderness with no significant swelling of the
right foot in the distal area with a normal range of motion; and a normal exam of
the legs bilaterally. (Tr. 720). Dr. Holliman ordered an x-ray of Plaintiff’s right
foot to rule out fracture(s). (Tr. 720).
B.

Medical Opinions
1.

John A. Biever, M.D.- Treating Physician
a.

September 1, 2012

On September 1, 2012, Dr. Biever opined “employment is currently
contraindicated for [Plaintiff],” and that he could not predict when she would
become employable again. (Tr. 363).
b.

February 10, 2013

On February 10, 2013, Dr. Biever completed a “Mental Impairment
Questionnaire” for Plaintiff. (Tr. 524). Dr. Biever identified the following as
Plaintiff’s signs and symptoms resulting from her mental impairments: anhedonia;
decreased energy; a blunt, flat, or inappropriate affect; sleep and mood
disturbances; difficulty thinking or concentrating; recurrent and intrusive
18

recollections of a traumatic experience, which are a source of marked distress;
persistent disturbances of mood or affect; apprehensive expectation; emotional
withdrawal or isolation; autonomic hyperactivity; recurrent severe panic attacks
manifested by a sudden unpredictable onset of intense apprehension, fear, terror,
and sense of impending doom occurring on the average of at least once a week;
and persistent irrational fear of a specific object, activity, or situation which results
in a compelling desire to avoid the dreaded object, activity, or situation. (Tr. 525).
Her Axis I diagnoses included Major Depressive Disorder and Panic Disorder with
Agoraphobia. (Tr. 524). Dr. Biever noted that Plaintiff had a positive response to
treatment, including Sertraline and Clonazepam, but that it was a gradual response
in proportion to the severity of symptoms. (Tr. 524). Dr. Biever noted that
persisting agoraphobia and panic attacks in public places were the clinical findings
that demonstrated the severity of Plaintiff’s mental impairments, and gave Plaintiff
a guarded prognosis. (Tr. 524).
In terms of “B” criteria for Impairment Listings, Dr. Biever opined that
Plaintiff: (1) had moderate restriction of activities of daily living; (2) had marked
difficulties in maintaining social functioning; (3) had moderate difficulties in
maintaining concentration, persistence, or pace; and (4) had experienced four (4)
or more episodes of decomepnsation within a twelve (12) month period, each
19

lasting at least two (2) weeks in duration. (Tr. 528).
Dr. Biever then opined Plaintiff had limited, but satisfactory, ability to:
remember work-like procedures; understand, remember, and carry out simple
instructions; be aware of normal hazards and take appropriate precautions; and
adhere to basic standards of neatness and cleanliness. (Tr. 526-527). Dr. Biever
also opined Plaintiff was seriously limited, but not precluded from: making simple
work-related decisions; asking simple questions or requesting assistance;
responding appropriately to changes in a routine work setting; understanding,
remembering, and carrying out detailed instructions; and setting realistic goals or
making plans independently of others. (Tr. 526-527). Dr. Biever further opined
that Plaintiff was unable to meet competitive standards in the following areas:
maintaining attention for two (2) hour segments; maintaining regular attendance
and punctuality within customary, usually strict tolerances; sustaining an ordinary
routine without special supervision; working in coordination with or proximity to
others without being unduly distracted; completing a normal workday and
workweek without interruptions from psychologically-based symptoms;
performing at a consistent pace without an unreasonable number and length of rest
periods; accepting instructions and responding appropriately to criticism from
supervisors; getting along with co-workers or peers without unduly distracting
20

them or exhibiting behavioral extremes; dealing with normal work stress; and
dealing with stress of semi-skilled and skilled work. (Tr. 526-527). Dr. Biever
additionally opined Plaintiff had no useful ability to function in the following
areas: interacting appropriately with the general public; traveling in unfamiliar
places; and using public transportation. (Tr. 527). Dr. Biever explained that these
limitations are supported by the fact that Plaintiff’s trauma-related anticipatory
anxiety and panic attacks are precipitated by typical daily situational and
interpersonal job stresses. (Tr. 526).
Dr. Biever further opined that Plaintiff: (1) had “[a]n anxiety related
disorder and complete inability to function independently outside the area of one’s
home;” (2) would be absent from work more than four (4) days per month; (3) had
mental health impairments that would be expected to last at least twelve (12)
months; and (4) would have difficulty working at a regular job on a sustained
basis because “[r]ecovery will be slow due to post-traumatic, chronic history of
relationship disturbances.” (Tr. 529).
2.

Katherine M. Curci, Ph.D., CRNP

On March 6, 2013, Dr. Curci completed a “Diabetes Mellitus Residual
Functional Capacity Questionnaire” for Plaintiff. (Tr. 531-534). Dr. Curci noted
that Plaintiff’s diagnoses included Hypothyroidism, Diabetes, Hypertension, and
21

Hyperlipidemia. (Tr. 531). Dr. Curci identified Plaintiff’s symptoms as fatigue,
general malaise, headaches, and hyper/hypoglycemic attacks. (Tr. 531). Dr. Curci
opined: (1) Plaintiff’s impairments would be expected to last at least twelve (12)
months; (2) Plaintiff’s symptoms would rarely be severe enough to interfere with
attention and concentration needed to perform even simple work tasks; (3)
Plaintiff was capable of tolerating low stress jobs; and (4) Plaintiff would be
absent about three (3) days per month. (Tr. 532). Dr. Curci also opined that
Plaintiff: could sit for no more than two (2) hours before needing to get up; could
stand for no more than one (1) hour before needing to change positions or walk
around; could stand and/ or walk for less than two (2) hours in an eight (8) hour
workday; could sit for about two (2) hours in an eight (8) hour work day; would
need periods of walking around every fifteen (15) minutes for five (5) minutes at a
time during an eight (8) hour workday; would need a job that permitted shifting
positions at will from sitting, standing, or walking; would need to take two (2) to
three (3) unscheduled breaks lasting for fifteen (15) to thirty (30) minutes each,
and involving sitting quietly, in an eight (8) hour workday; could rarely lift and/ or
carry up to and including ten (10) pounds and never lift and/ or carry anything
over ten (10) pounds; could occasionally twist and stoop/ bend; could rarely
crouch/ squat; could never climb ladders or stairs; had no limitations with
22

fingering, reaching, or handling; should avoid even moderate exposure to extreme
cold and heat, high humidity, wetness, cigarette smoke, perfumes, and dust; and
should avoid all exposure to soldering fluxes, solvents/ cleaners, fumes, odors,
gases, and chemicals. (Tr. 523-534).
3.

Aroon Suansillppongse, M.D.- Consultative Examiner

On March 6, 2013, Dr. Suansillppongse completed a “Psychiatric Review
Technique” for Plaintiff based on a review of her medical records. (Tr. 535-545).
Dr. Suansillppongse opined that Plaintiff’s mental impairments fell under
Impairment Listings: 12.04, Affective Disorders; 12.06, Anxiety-Related
Disorders; and 12.09, Substance Addiction Disorders. However, Dr.
Suansillppongse noted that Plaintiff did not meet the “B” criteria of these Listings,
opining Plaintiff had: (1) mild restriction of activities of daily living; (2) moderate
difficulties in maintaining social functioning; (3) moderate difficulties in
maintaining concentration, persistence, or pace; and (4) one (1) to two (2) repeated
episodes of decompensation, each of extended duration. (Tr. 543). He further
opined Plaintiff did not meet the “C” criteria for these Listings. (Tr. 544).
On March 6, 2013, Dr. Suansillppongse also completed a “Mental Residual
Functional Capacity Assessement” form for Plaintiff based on the records up to
that date. (Tr. 546-548). Dr. Suansillppongse opined Plaintiff was moderately
23

limited in the ability to: maintain attention and concentration for extended periods
of time; complete a normal workday and workweek without interruptions from
psychologically-based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; interact appropriately with the
general public; accept instructions and respond appropriately to criticism from
supervisors; get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; and set realistic goals or make plans independent
of others. (Tr. 546-547). Dr. Suansillppongse opined Plaintiff was not
significantly limited in all other categories. (Tr. 546-547).
4.

Kristina Jahng, M.D.- Treating Psychiatrist

On March 18, 2014, Dr. Jahng completed a “Mental Impairment
Questionnaire” for Plaintiff. (Tr. 656-661). She noted that Plaintiff: had started
therapy with her on November 6, 2013, and medication management with her on
November 15, 2013; had a minimal response to treatment, including Sertraline and
Klonopin, with the side effect of difficulty sleeping; and had a fair to good
prognosis with these medications. (Tr. 656). Dr. Jahng noted that Plaintiff’s signs
and symptoms included: anhedonia; appetite and sleep disturbances; decreased
energy; generalized persistent anxiety; difficulty thinking or concentrating;
recurrent and intrusive recollections of a traumatic experience, which are a source
24

of marked distress; persistent disturbances of mood or affect; apprehensive
expectation; recurrent obsessions or compulsions which are a source of marked
distress; emotional withdrawal or isolation; emotional lability; deeply ingrained,
maladaptive patterns of behavior; recurrent severe panic attacks manifested by a
sudden unpredictable onset of intense apprehension, fear, terror, and sense of
impending doom occurring on the average of at least once a week; and a persistent
irrational fear of a specific object, activity, or situation which results in a
compelling desire to avoid the dreaded object, activity, or situation. (Tr. 657-658).
Dr. Jahng stated that the clinical findings that demonstrate the severity of
Plaintiff’s mental impairments and symptoms included severe, daily anxiety that
was incapacitating and caused a fear of driving; difficulty sleeping; spontaneously
falling asleep; and panic attacks that occurred without a trigger. (Tr. 656).
In terms of “B” criteria for Impairment Listings, Dr. Jahng opined that
Plaintiff: (1) had moderate restriction of activities of daily living; (2) had marked
difficulties in maintaining social functioning; (3) had marked difficulties in
maintaining concentration, persistence, or pace; and (4) had experienced one (1) or
two (2) episodes of decomepnsation within a twelve (12) month period, each
lasting at least two (2) weeks in duration. (Tr. 660).
Dr. Jahng opined that Plaintiff had a limited but satisfactory ability to:
25

remember work-like procedures; understand, remember, and carry out very short
and simple instructions; sustain an ordinary routine without special supervision;
be aware of normal hazards and take appropriate precautions; understand,
remember, and carry out detailed instructions; interact appropriately with the
general public; maintain socially appropriate behavior; and adhere to basic
standards of neatness and cleanliness. (Tr. 658-659). Dr. Jahng then opined that
Plaintiff was seriously limited, but not precluded in, the ability to: maintain
attention for two (2) hour segments; maintain regular attendance and be punctual
within customary, usually strict tolerances; make simple work-related decisions;
perform at a consistent pace without an unreasonable number and length of rest
periods; ask simple questions or request assistance; get along with co-workers or
peers without unduly distracting them or exhibiting behavioral extremes; respond
appropriately to changes in a routine work setting; set realistic goals or make plans
independently of others; and use public transportation. (Tr. 658-659). Further,
Dr. Jahng opined Plaintiff was unable to meet competitive standards in: working
in coordination with or proximity to others without being unduly distracted;
accepting instructions and responding appropriately to criticism from supervisors;
dealing with stress of semiskilled and skilled work; and traveling in unfamiliar
places. (Tr. 658-659). Additionally, Dr. Jahng opined Plaintiff had no useful
26

ability to function in terms of: completing a normal workday and workweek
without interruptions from psychologically-based symptoms; and dealing with
normal work stress. (Tr. 658-659). Dr. Jahng further opined that Plaintiff: (1) had
a medically documented history of a mental disorder of at least two (2) years’
duration that caused more than a minimal limitation of the ability to do any basic
work activity, with symptoms or signs attenuated by medication or psychosocial
support with a residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate; (2) had
“[a]n anxiety related disorder and complete inability to function independently
outside the area of one’s home” due to panic attacks and spontaneous sleep; (3)
would be absent from work more than four (4) days per month; and (4) had mental
health impairments that would be expected to last at least twelve (12) months. (Tr.
660-661).
5.

Joan Brauckmann, M.D.

On April 7, 2014, Dr. Brauckmann opined Plaintiff had to: (1) avoid
concentrated exposure to wetness, cigarette smoke, perfumes, soldering fluxes,
solvents, cleaners, fumes odors, gases, and chemicals; (2) avoid even moderate
exposure to dust; and (3) avoid all exposure to mold and mildew. (Tr. 668).
27

6.

Barbara Trandel, M.D.

On March 29, 2014, Dr. Trandel completed a Medical Source Statement for
Plaintiff’s Diabetes, Hypothryoidism, Hypertension, Obesity, Trigeminal
Neuralgia, and Hyperlipidemia. (Tr. 710-721). Dr. Trandel opined that Plaintiff
would be unable to perform or be exposed to: public contact; routine, repetitive
tasks at a consistent pace; detailed or complicated tasks; strict deadlines; close
interaction with coworkers/ supervisors; fast-paced tasks; and exposure to work
hazards such as heights or moving machinery. (Tr. 711). Dr. Trandel opined,
based on Plaintiff’s self-reported symptoms, that Plaintiff: could walk four (4) city
blocks without rest or severe pain; could sit for one (1) hour before needing to lie
down; could stand for two (2) hours before needing to lie down; could sit, stand,
and/ or walk for up to about two (2) hours in an eight (8) hour workday; would
require seven (7) breaks lasting up to twenty (20) minutes during an average eight
(8) hour workday; could occasionally lift and carry ten (10) pounds; could rarely
lift and carry twenty (20) pounds; could never lift and carry up fifty (50) pounds;
could grasp, twist, and turn objects for only twenty (20) to thirty (30) percent of
the time with both hands in an eight (8) hour workday; could perform fine
manipulations only fifty (50) percent of the time with both hands in an eight (8)
hour workday; could reach with her arms only forty (40) percent of the time with
28

both hands in an eight (8) hour workday; could occasionally twist, stoop, bend,
crouch, and squat; could rarely climb ladders; could never climb stairs; should
avoid moderate exposure to extreme heat and cold, high humidity, wetness,
cigarette smoke, perfumes, and dust; and should avoid all exposure to soldering
fluxes, solvents, cleaners, fumes, odors, and gases. (Tr. 712-713; 715-717). Dr.
Trandel also opined that Plaintiff’s prognosis for both her Diabetes and
Hypothryoidism was good and that neither would have a significant impact on her
physical abilities. (Tr. 710, 713-714). Finally, Dr. Trandel opined that Plaintiff
would be absent from work more than four (4) days a month. (Tr. 717).
7.

Jonathan Rightmyer, Ph.D.- State Agency Physician

On October 25, 2012, Dr. Rightmyer completed a “Psychiatric Review
Technique” form and a “Mental Residual Functional Capacity” form for Plaintiff
based on a review of Plaintiff’s records up to that date. (Tr. 84-90). Dr.
Rightmyer opined that Plaintiff’s mental health impairments did not meet the “B”
criteria for Impairment Listings 12.04, Anxiety Disorder, or 12.06, Affective
Disorders, because she had: (1) mild restriction of activities of daily living; (2)
moderate difficulties in maintaining social functioning; (3) moderate difficulties in
maintaining concentration, persistence, or pace; and (4) no repeated episodes of
decompensation of extended duration. (Tr. 87). Dr. Rightmyer also opined that
29

Plaintiff’s impairments did not meet the “C” criteria for the aforementioned
Listings. (Tr. 87).
In the Mental Residual Functional Capacity form, Dr. Rightmyer opined
Plaintiff was moderately limited in the ability: to maintain attention and
concentration for extended periods; to work in coordination with or in proximity
to others without being distracted by them; and to interact appropriately with the
general public. (Tr. 89-90).
C.

Tests
1.

Stress Echocardiogram

On October 5, 2012, Plaintiff underwent a stress echocardiogram. (Tr. 344345). The test was negative for ischemia and noted Plaintiff had “average exercise
tolerance for age and gender.” (Tr. 345).
2.

CT Scan of Sinuses

On November 16, 2012, Plaintiff underwent a CT scan of the paranasal
sinuses for right-sided maxillary sinus pain with congestion. (Tr. 372). The test
revealed: some inflammatory changes in the maxillary sinuses bilaterally; patent
ostiormeatal units and nasofrontal passages; bilateral concha bullosa of the middle
turbinate; and mild nasoseptal deviation to the right. (Tr. 372).

30

3.

Ultrasound of the Head and Neck

On February 20, 2013, Plaintiff underwent an ultrasound of her head and
neck for suspicion of an enlarged thyroid with a history of hypothyroidism. (Tr.
583). The impression was that the thyroid was multinodular, most likely reflecting
nodular hyperplasia. (Tr. 583).
4.

Radiology of the Spine

On September 23, 2013, Plaintiff underwent radiology of her spine. (Tr.
669-670). The impression was that Plaintiff had: “moderate productive changes of
the facet joints at L4-5 and L5-S1 [and] [a]ssociated grade 1 anterolisthesis of L4
on L5, which increases in flexions;” mild osteoarthritic changes of the sacroiliac
joints; and mild cervical spondylosis, greatest at C4-5 through C6-7. (Tr. 669670).
5.

X-ray of Right Foot

On April 28, 2013, Plaintiff underwent an x-ray of her right foot. (Tr. 722).
The impression was that Plaintiff had bipartite appearance of the more medial of
the two (2) sesamoid bones underlying the distal first metatarsal bone that
correlated with acute tenderness. (Tr. 722).
STANDARD OF REVIEW
When considering a social security appeal, the court has plenary review of
31

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
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
32

(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
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
33

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).
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,
34

whether a claimant (1) is engaging in substantial gainful activity, (2) has an
impairment that is severe or a combination of impairments that is severe, (3) has
an impairment or combination of impairments that meets or equals the
requirements of a listed 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).”).
35

“At step five, the burden of proof shifts to the Social Security
Administration to show that the claimant is capable of performing other jobs
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, 2017. (Tr. 14). At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful work activity from her alleged onset date of August 4, 2012.
(Tr. 14).
At step two, the ALJ determined that Plaintiff suffered from the severe8
combination of the following impairments: “Cervical and Lumbar Degenerative
8. 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.
36

Disc Disease, Panic Disorder with Agoraphobia, Major Depressive Disorder,
Diabetes, and Allergic Rhinitis (20 C.F.R. 404.1520(c)).” (Tr. 14-15).
At step three of the sequential evaluation process, the ALJ found that
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, and 404.1526). (Tr. 15-17).
At step four, the ALJ determined that Plaintiff had the RFC to less than a
full range of light work with limitations. (Tr. 17-21). Specifically, the ALJ stated
the following:
After careful consideration of the entire record, the undersigned
finds that [Plaintiff] has the [RFC] to perform less than the full
range of light work as defined in 20 CFR 404.1567(b) in that
she must be allowed to alternate positions at will. She is
limited to occasional bending, stooping, crawling, kneeling,
crouching, and climbing stairs. [Plaintiff] must avoid hazards
such as unprotected heights and non-stationary machinery
moving about on the job sit floor, such as forklifts. She should
not be exposed to pulmonary irritants, wetness, humidity,
odors, gases, and fumes. [Plaintiff] is limited to exercising only
simple work-related judgments. She is limited to performing
routine, repetitive work in a stable environment. [Plaintiff]
should have no interactions with members of the public, but
may tolerate occasional interactions with coworkers and
supervisors. [Plaintiff] cannot be expected to work with
coworkers as part of a team, and cannot be expected to engage
in independent planning and goal setting.
(Tr. 17).
37

At Step Five, the ALJ determined that although Plaintiff was not capable of
performing past relevant work, “[c]onsidering the [Plaintiff]’s age, education,
work experience, and [RFC], there are jobs that exist in significant numbers in the
national economy that [Plaintiff] can perform.” (Tr. 21-23).
Thus, the ALJ concluded that Plaintiff was not under a disability as defined
in the Social Security Act at any time between August 4, 2012, the alleged onset
date, and the of the ALJ’s decision. (Tr. 23).
DISCUSSION
On appeal, Plaintiff asserts that: (1) the ALJ erred in finding Plaintiff’s
Panic Disorder with Agoraphobia and Major Depressive Disorder did not meet or
equal Impairment Listings 12.04 and 12.06; (2) substantial evidence does not
support the ALJ’s RFC assessment; (3) substantial evidence does not support the
ALJ’s evaluation of the opinion evidence of Dr. Biever and Dr. Jahng; and (4)
substantial evidence does not support the ALJ’s credibility evaluation. (Doc. 10,
pp. 14-35). Defendant disputes these contentions. (Doc. 12, pp. 10-27).
1.

Residual Functional Capacity Determination

Plaintiff asserts that the ALJ erred in the weight he afforded to the opinions
of Dr. Rightmyer and Dr. Suansillppongse because they were rendered before
Plaintiff treated with both Dr. Biever and Dr. Jahng. (Doc. 10, pp. 24-32).
38

Defendant argues, in part, that these state agency physicians had a chance to
review a complete medical record, and, therefore substantial evidence supports the
weight the ALJ afforded to the opinions of record regarding Plaintiff’s mental
health impairments. (Doc. 12, pp. 13).
The responsibility for deciding a claimant’s RFC rests with the
administrative law judge. See 20 C.F.R. § 404.1546. It is recognized that the
RFC assessment must be based on a consideration of all the evidence in the
record, including the testimony of the Plaintiff regarding activities of daily living,
medical records and opinions, lay evidence, and evidence of pain. See Burnett v.
Commissioner of Social Sec. Admin., 220 F.3d 112, 121-122 (3d Cir. 2000). The
Commissioner's regulations define medical opinions as “statements from
physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of a claimant’s impairment(s), including a
claimant’s symptoms, diagnosis and prognosis, what a claimant can still do despite
impairments(s), and a claimant's physical or mental restrictions.” 20 C.F.R.
§404.1527(a)(2). Regardless of its source, the ALJ is required to evaluate every
medical opinion received. 20 C.F.R. §404.1527(c).
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
39

Third Circuit Court of Appeals and by all of the federal circuits. See, e.g.,
Morales v. Apfel, 225 F.3d 310, 316-18 (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
40

SSR LEXIS 3. This regulation does not define “appropriate circumstances,” but
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).
Regardless of 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).
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.”
41

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).
Furthermore, 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 based on an
opinion from a non-treating, non-examining 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 non-examining physician because the physician testified at
the oral hearing and had a chance to review the entire case record) (emphasis
added); 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
42

record which . . . did not include [two physicians’] reports” and was thus based on
an incomplete medical record).
In the case at hand, regarding the medical opinion evidence involving
Plaintiff’s mental health impairments, the ALJ gave limited weight to the
aforementioned opinion of treating psychiatrist Dr. Jahng, who began treating
Plaintiff in November 2013 and rendered an opinion as to Plaintiff’s limitations
resulting from her mental health impairments in March 2014. (Tr. 20). The ALJ
also gave limited weight to the opinion of Plaintiff’s treating physician, Dr.
Biever. (Tr. 20). Overall, he stated these opinions should be given limited weight
because they are unsupported by the record. (Tr. 20). Instead, the ALJ gave
significant weight to the opinions of Dr. Rightmyer and Dr. Suansillppongse, both
non-examining, consultative examiners, because both “were able to review
[Plaintiff]’s full, available medical records prior to issuing their determinations”
and both were consistent with the record. (Tr. 20).
Upon review of the medical records and the ALJ’s RFC determination and
in accordance with the aforementioned binding Third Circuit precedent, this Court
finds issue with the ALJ’s reliance on the opinions of Dr. Rightmyer and Dr.
Suansillppongse because they were rendered in October 2012 and March 2013,
before Plaintiff completed treatment with both Dr. Biever and Dr. Jahng for her
43

mental health impairments and before Dr. Jahng rendered her opinion regarding
Plaintiff’s limitations resulting from her mental health impairments. (Tr. 516-517,
639-640, 656). Through July 2017, Plaintiff treated with Dr. Biever, who noted
Plaintiff suffered from symptoms such as: anticipatory anxiety; nightmares;
tremors; a depressed mood; anger; panic; insomnia; depression. (Tr. 516-517,
639-640). In March 2014, Dr. Jahng stated that: (1) Plaintiff had a minimal
response to treatment, including Sertraline and Klonopin, with the side effect of
difficulty sleeping; and (2) the clinical findings that demonstrate the severity of
Plaintiff’s mental impairments and symptoms included severe, daily anxiety that
was incapacitating and caused a fear of driving, difficulty sleeping, spontaneous
sleep, and panic attacks that occurred without a trigger. (Tr. 656). The lack of
availability of this medical evidence and opinion to the state agency physicians
who rendered opinions that were relied on by the ALJ in formulating the RFC
renders the RFC determination defective in light of the aforementioned Third
Circuit precedent. As such, it is determined that substantial evidence does not
support the significant weight the ALJ afforded to the opinions of the non-treating,
non-examining physicians, Dr. Rightmyer and Dr. Suansillppongse, in
determining Plaintiff’s mental health RFC because these opinions were based on a
review of a incomplete medical record. Therefore, remand on this basis is
44

necessary.
This Court declines to address Plaintiff’s remaining allegations of error, as
remand may produce a different result on this claim, making discussion of them
moot. Burns v. Colvin, 156 F. Supp. 3d 579, 598 (M.D. Pa. Jan. 13, 2016); see
LaSalle v. Comm'r of Soc. Sec., Civ. No. 10-2011 U.S. Dist. LEXIS 40545, 1096,
2011 WL 1456166, at *7 (W.D. Pa. Apr. 14, 2011).
CONCLUSION
Based upon a thorough review of the evidence of record, it is determined
that the Commissioner’s decision is not supported by substantial evidence.
Therefore, pursuant to 42 U.S.C. § 405(g), the appeal will be granted, the decision
of the Commissioner will be vacated, and the matter will be remanded to the
Commissioner of the Social Security Administration.
A separate Order will be issued.
Date: October 11, 2017
/s/ William J. Nealon
United States District Judge

45