Stoddard v. Colvin
MEMORANDUM (Order to follow as separate docket entry)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:CIVIL ACTION NO. 3:16-CV-1591
NANCY A. BERRYHILL,1
Acting Commissioner of
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act and Social Security
Income (“SSI”) under Title XVI.
applications for these benefits on January 30, 2009, alleging a
disability onset date of March 13, 2007.
(Doc. 16. at 1.)
Administrative Law Judge (“ALJ”) Sharon Zanotto issued her original
unfavorable decision on November 16, 2010, and following
Plaintiff’s appeal of the decision, the Appeals Council remanded
Nancy A. Berryhill is now the Acting Commissioner of Social
Security. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure which addresses the substitution of parties when a public
officer is replaced, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin as the defendant in this
suit. Fed. R. Civ. P. 25(d). 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), which states
that “[a]ny action instituted in accordance with this subsection
shall survive notwithstanding any change in the person occupying
the office of Commissioner of Social Security or any vacancy in
the case to ALJ Zanotto in an Order dated June 26, 2012.
1-2 (citing R. 207).)
The Appeals Council specifically directed
the ALJ regarding certain issues deemed inadequate in her decision
(which will be discussed below) and generally directed her to do
anything else necessary to complete the claim.
Following two additional hearings (R. 82-188) and another
unfavorable Decision on March 1, 2013 (R. 11-27), Plaintiff again
sought Appeals Council review (R. 7-10) which was denied on July 1,
2016 (R. 1-6).
With the Appeals Council denial, the ALJ’s decision
became that of the Acting Commissioner.
Plaintiff filed this action on August 1, 2016 (Doc. 1),
asserting in her supporting brief that the ALJ erred on the
following bases: 1) the ALJ made the same findings in her second
decision as she made in her first decision and failed to follow the
instructions of the Appeals Council; 2) the ALJ failed to follow
the treating physician rule regarding the opinion of Gene Huang,
M.D.; and 3) the ALJ erred in finding that Plaintiff and her
husband were not credible (Doc. 16 at 12-13).
After careful review
of the record and the parties’ filings, the Court concludes this
appeal is properly denied.
Plaintiff was forty-seven years old as of her disability onset
She has a high school education (GED) and past
relevant work as a mail clerk.
(R. 74, 426-27, 540.)
reported that her panic attacks/anxiety, depression, and fear of
going out in public limited her ability to work because she had
difficulty concentrating, medicine made her sleepy, she got nervous
around a lot of people, and she was afraid to go out in public.
Records show that Plaintiff was referred to Eugene Huang,
M.D., of York Health Behavioral Health Services because of panic
attacks in 2000.
Many Progress Notes presumably from
Dr. Huang/Wellspan Behavioral Health are difficult to decipher
and/or do not indicate the year the note was generated.
Relying in some instances on the parties’ interpretations of
relevant records, it appears that within the year before the
alleged onset date, Plaintiff reported to an Adams-Cumberland
Family Medicine provider that she was doing well despite taking
care of her ailing parents and husband who had chronic back pain.
She said she was under a lot of stress dealing with her
children’s problems and Paxil “really decreased her anxiety
Defendant points to evidence which shows that
Plaintiff continued to take Trazadone, Paxil, and Klonopin between
March 2007 and April 2011 and Dr. Huang increased and decreased the
dosages as needed.2
(Doc. 19 at 5 (citing R. 554-57, 600-05, 611-
In her reply brief, Plaintiff asserts that Defendant’s
brief contains errors of fact and law. (Doc. 21 at 1.) Evidence
cited in the Background section of the Memorandum has not been
Defendant adds that
[m]edications generlly controlled her
symptoms of anxiety, panic attacks,
agoraphobia, periodic depression, and
sleeping difficulties (Tr. 493, 556-57, 60203, 611, 614). Dr. Huang’s treatment notes
indicate that Plaintiff last reported a panic
attack in July 2007 (Tr. 490-94, 554-57, 60005, 611-14). Thereafter, Plaintiff
repeatedly reported no panic attacks or
agoraphobia (Tr. 490-92, 556-57, 602, 611),
was able to go out in public alone or
accompanied (Tr. 603, 611), attended a large
gathering for her daughter’s wedding (Tr.
557), and was able to travel (Tr. 611). Dr.
Huang also recommended therapy, but Plaintiff
never pursued that option (Tr. 492).
On examination, Plaintiff’s mood and
affect varied between depressed, nervous, or
irritable (Tr. 490, 556, 601, 605, 613), and
“ok,” even, or brighter (Tr. 491, 555-57,
600, 603, 611). Plaintiff was angry once,
but otherwise was noted as having a
cooperative attitude (Tr. 600-01, 611-13).
(Doc. 19 at 6.)
Plaintiff points to June 2009 office notes from AdamsCumberland Family Medicine where Plaintiff reported to Orville G.
McBeth, M.D., that she had two significant panic attacks the
(Doc. 16 at 10 (citing R. 615).)
At the time,
Plaintiff said she did not know what caused the attacks where she
had shaking, crying, and could not sit still, and, although
medication helped with minor attacks, she just had to “ride it out”
for major attacks.
specifically challenged in Plaintiff’s reply brief.
June 14, 2011, Adams-Cumberland office visit notes indicate
Plaintiff felt her anxiety problem was controlled, she was
compliant with medication and treatment recommendations, and she
was tolerating the medications well without side effects.
Provider David L. Wampler, M.D., noted that Plaintiff’s
psychiatrist was leaving and she wanted him to assume control of
The next office visit of record was June
20, 2012, at which time Plaintiff continued to report to Dr.
Wampler that her anxiety problem was controlled, she was following
her treatment regimen, and she had no medication side effects.
On January 11, 2013, Plaintiff was see by Linda Miller,
CRNP, of Adams-Cumberland and was diagnosed with pneumonia.
Plaintiff’s mental health problems were not addressed at the
(See R. 664-65.)
On June 6, 2009, Thomas G. Bowers, Ph.D., evaluated
Plaintiff’s mental status and completed a Medical Source Statement.
He noted that Plaintiff’s chief complaints were panic
attacks and depression; she said the last panic attack she had on
May 25, 2009, resulted in crying, shaking, and similar
Plaintiff told Dr. Bowers she had been
fired in part “because of her mental illness,” she had difficulty
being around other people in the city because she “often becomes
confused and cannot think clearly,” and she felt depressed “from
time to time.”
Dr. Bowers noted that Plaintiff’s mood “seems to be
problematic in terms of her sleep,” describing a sleep pattern
where she got about seven hours of sleep per night, but she often
had nightmare and tossed and turned in her sleep.
found her intellect to be reasonable, her approach to abstract
thinking fair with a very good response to proverbs, and she was
oriented in all spheres though she admitted that she got confused
about days from time to time.
Plaintiff described her
memory as being “not good” and it appeared “quite weak” on formal
He explained that
her working short-term memory was quite
limited, and she only repeated five digits
forwards and four digits backwards, which is
very low, even allowing for her limited
education. On the other hand, she managed to
acquire a short list of eight words over
three trials, and retain it for a time, which
at least indicates some reasonable abilities
for acquisition, retention and retrieval.
She recalled six the words [sic] on the first
trial, seven of the words on the second
trial, and eight of the words on the third
and final trial. On the recall trial,
administered after a short period of
additional interviewing, she managed to
recall all eight of the words.
Dr. Bowers assessed that Plaintiff’s long term memory seemed
to be adequate and that she appeared to be a reasonable historian.
Regarding “Diagnosis, Prognosis, and Capacity,” Dr. Bowers
noted that Plaintiff’s difficulties dated back at least ten or
eleven years, she had Panic Disorder, Depressive Disorder NOS, Rule
Out Posttraumatic Stress Disorder, and a GAF of 45.
He found Plaintiff’s prognosis difficult to determine, but not
promising because of her limited educational exposure and limited
development of life skills.
He recommended psychiatric
follow-up, psychotherapy, and possible behavior therapy services,
commenting “[e]ven with this assistance, it’s uncertain if these
problems can be fully resolved.”
Dr. Bowers also noted that
Plaintiff appeared to have reasonable social judgment and at least
average abilities in calculation, it was uncertain if she would be
able to manage funds in her own best interest.
In his Medical Source Statement of Ability to Do Work-Related
Activities (Mental), Dr. Bowers found moderate difficulties in all
categories except he found marked difficulties in Plaintiff’s
ability to make judgments on simple work-related decisions.
His assessment was based on Plaintiff’s poor memory and
State Agency Consultant
On June 30, 2009, Jonathan Rightmyer, Ph.D., completed two
Psychiatric Review Techniques after reviewing the records which
included Dr. Bower’s consultative examination.
covered the time period “to Present” (R. 566-78) and the other to
the date last insured of March 31, 2008 (R. 582-94).
latter, Dr. Rightmyer concluded there was “insufficient evidence.”
(R. 582, 594.)
Dr. Rightmyer completed a Mental Residual
Functional Capacity Assessment on the same date.
In the “to Present” Psychiatric Review Technique (“PRT”), Dr.
Rightmyer concluded that Plaintiff had the following medically
determinable impairments: Depressive Disorder, NOS; Anxiety
Disorder, NOS; and Panic Disorder.
(R. 569, 571.)
that Plaintiff had the following functional limitations found in
paragraph B of listing 12.02-12.04, 12.06-12.08 and 12.10: mild
restrictions of activities of daily living; moderate difficulties
in maintaining social functioning; and moderate difficulties in
maintaining concentration, persistence, or pace.
Rightmyer noted that Plaintiff had no repeated episodes of
decompensation, each of extended duration.
Plaintiff had activities of daily living “good for simple routine
Dr. Rightmyer’s Mental Residual Functional Capacity Assessment
found that Plaintiff was moderately limited in the following areas:
the ability to understand and remember detailed instructions; the
ability to carry out detailed instructions, the ability to maintain
concentration for extended periods; the ability to work in
coordination with or proximity to others without being destracted
by them; and the ability to interact appropriately with the general
In the accompanying narrative, Dr. Rightmyer
opined that Plaintiff could
perform simple, routine, repetitive work in a
stable environment. She has difficulty
working with or near other employees without
being distracted by them. She can make
simple decisions. She is able to carry out
very short and simple instructions. Also,
she would not require special supervision in
order to sustain a work routine. She
experiences social anxiety and discomfort
around strangers. Furthermore, she can
function in production oriented jobs
requiring little independent decision making.
She evidences some limitations in dealing
with work stresses and public contact.
Moreover, she retains the ability to perform
repetitive work activities without constant
Dr. Rightmyer provided a detailed analysis of Dr.
Bower’s opinion, summarizing that “the evidence provided by the
examining source reveals only a snapshot of the claimant’s
functioning and is an overestimate of the severity of her
limitations. . . . The psychologist’s opinion is without
substantial support from the other evidence of record, which
renders it less persuasive.”
On this basis, Dr. Rightmyer
concluded Dr. Bower’s opinion could not be given great weight.
Treating Psychiatrist Medical Source Statement
On February 23, 2010, Dr. Huang completed a Medical Source
He opined that Plaintiff had no
limitations in her ability to understand, remember, and carry out
short, simple instructions; she was slightly limited in her ability
to understand and remember detailed instructions; she was
moderately limited in her ability to carry out detailed
instructions; and she had a marked limitation in her ability to
make judgments on simple work-related decisions.
limitations were based on “periods of intermittent severe panic and
He also found that Plaintiff was moderately
limited in her abilities to interact appropriately with the public
and supervisors and to respond appropriately to changes in a
routine work setting, and she had marked limitations in her ability
to interact appropriately with coworkers and respond appropriately
to work pressures in a usual work setting.
noted support for these assessments was that Plaintiff was
“susceptible to anxiety with public interaction.
worked in 10 years.”
She has not
Dr. Huang added that Plaintiff’s
ability to shop was also affected (“must be accompanied”) as was
her ability to attend indoor events (“severe anxiety”).
Huang noted that the medical/clinical findings which supported the
assessment: “Mostly withdrawn to household and shops at odd hours.
Cannot attend church, sports events, etc.”
Plaintiff testified at the October 22, 2012, hearing that she
was employed for many years at Knouse Foods where she worked as a
forklift driver until she had a panic event and then worked in a
variety of jobs including picking apples on a conveyor line, and
She said that she was self-
employed in 2005 and 2006, cleaning and refurbishing apartments
between tenants, a job she could do on an “as needed” basis when
she “had good days.”
Though the timeframe is not clear, Plaintiff testified that
her daughter lived in an upstairs apartment with her three children
and “significant other” and Plaintiff helped with the children
because her daughter had postpartum depression and a bad back.
Plaintiff said her daughter would lie around most of the
day and her boyfriend was not much help so Plaintiff would get the
oldest child off to school and have the toddler downstairs with
Regarding care of her infant grandson,
Plaintiff said she had a monitor and would go upstairs to get him
if her daughter did not take care of him, which was most of the
Plaintiff noted that she was doing this in
July 2009 and in February 2010 her daughter was getting more ill
and was admitted to a psychiatric ward because she attempted
Plaintiff said her husband helped take care of
the children and had most of the responsibility if she had a bad
day, which was about half the time.
that her husband was disabled in a 1992 fall off a crane truck
which damaged his right side and back and he had not worked since
Plaintiff further testified that about a year and a half
before the hearing, her daughter had gotten mad at her and would
not allow her to see the children because she thought Plaintiff had
reported her to child services.
During this time
Plaintiff said the children would sneak down to see her and
sometimes they were with her most of the day.
Eventually Plaintiff’s daughter moved out and, with the help of
medication, became a more responsible parent.
Plaintiff said that her family has picnics about three times a
year with about fifteen to eighteen people.
that she sometimes goes into the house to get away from the crowd
for “sometimes a half hour.”
When asked if her condition had worsened since her previous
hearing in 2010, Plaintiff responded that her memory had gotten
much worse and she easily forgets things.
examples, Plaintiff noted that she had left the water running in
the sink, she could not find the TV remote when it is right where
it should be, and she had gone to the market about three miles from
her house and called her husband to come get her because she was
afraid to drive home.
Plaintiff said she generally
went to the store about three or four times a month and her
grandchildren sometimes had to help her pay the bill because she
could not figure out the right amount.
She also said
she could no longer focus enough to read and her husband had been
doing most of the cooking for almost a year because she could not
make a decent meal anymore.
Upon questioning by her attorney, Plaintiff explained that she
was afraid to get in the shower because it was too small and made
her feel closed in and this type of feeling had been getting worse
over the preceding couple of years.
She said that
some days she did not get dressed and just watched TV in the dark
without knowing what she was watching.
Plaintiff confirmed that she had not seen a psychiatrist for
almost two years because her doctor left the Wellspan practice and
she could not afford to see somebody else due to lack of insurance.
She also confirmed that her family doctor continued to
prescribe medications which helped a little, allowing her to “maybe
get up and do a few things during the day.”
At the supplemental hearing held on February 20, 2013, ALJ
Zanotto explained at the outset that she did not see medical
evidence sufficient to support Plaintiff’s testimony regarding her
limitations and hoped the second hearing could focus on the noted
ALJ Zanotto also noted that she
struggled to read Dr. Huang’s notes and tried to put the undated
notes in chronological order.
Plaintiff confirmed that she continued to be without insurance
and she had only seen her family doctor once since June of 2012
because she had to pay out of pocket.
She said she
had not had medical insurance at any time since March 13, 2007, and
had paid her psychiatrist and primary care doctor herself.
Plaintiff’s attorney questioned her about her work history but
the chronology is far from clear.
Plaintiff said that in 2001
when she worked at Knouse Foods about fifteen days a month she
would say she could not do the job they wanted her to do because
she was having a bad day and she would call off sick more than five
days per month.
When asked by the ALJ to focus on
what Plaintiff was like from 2007 when she was alleging disability,
Plaintiff said she was reduced to part-time by Dr. Huang and her
employer let her go.
Plaintiff added that Dr. Huang
did not want her to work at all.
When asked by her attorney if she had any days that she felt
better from that point on, Plaintiff responded that she had what
she called “good days” where she could think a bit more clearly.
She said she could not estimate how many good days she
had in a month.
Plaintiff said she stayed in her
pajamas a lot and her husband had to encourage her to bathe.
Plaintiff reported that Dr. Wampler continued to prescribe the
medications first prescribed by Dr. Huang but the medications just
kept her from crying or hiding all day.
Plaintiff’s husband, Mark Stoddard, also testified at the
February 20, 2013, supplemental hearing.
that Plaintiff had not worked outside the home since 2007 and she
did not like to leave the house.
He said she does very
little during the day, adding that “she tries, but she messes
everything up,” including doing dishes and laundry.
Stoddard testified that Plaintiff had a “big problem” being around
people other than family.
By way of example, he noted that
she would not go into a store if there were a lot of cars, she
would rarely go to ball games or things like that, and that she did
not go to church anymore.
Mr. Stoddard’s testimony
indicated that Plaintiff did not take care of personal hygiene and
it was sometimes as long as three weeks that she would go without a
shower or bath–-she would “wash up” and change her clothes but not
2005 or 2006.
He estimated that had been going on since
When asked by Plaintiff’s attorney if there was anything else,
Mr. Stoddard responded that Plaintiff needed to get back to going
to a doctor.
Regarding care of the grandchildren, he
said that his wife thought she was taking care of them but “they
were basically taking care of her and they still do to this day.”
He confirmed that she would get them something to eat
and get them on the bus some days.
chores, Mr. Stoddard said she did not do much of anything except
watch TV and she would watch the same show several times without
He added that she helped with outside
chores and put wood in the wood stove in the basement when needed.
Mr. Stoddard testified that the biggest problem his wife would
have if she had a job was her medicine and the way it affects her,
“like the sleeping or the forgetting stuff or . . . doing things[,]
. . . taking care of her body.”
He questioned whether
it was the disease or the medicine, but he did not think she could
work without somebody helping her with hygiene and transportation
issues, confirming that it would have to be a job where she did not
have to interact with people and she would need help staying on
Mr. Stoddard also said Plaintiff’s condition
had deteriorated since Dr. Huang moved away.
In her March 1, 2013, Decision, ALJ Zanotto made the following
Findings of Fact and Conclusions of Law:
The claimant meets the insured status
requirements of the Social Security Act
through March 31, 2008.
The claimant has not engaged in
substantial gainful activity since March
13, 2007, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).
The claimant has the following severe
impairments: panic disorder with
agoraphobia and depressive disorder (20
CFR 404.1520(c) and 416.920(c)).
The claimant does not have an impairment
or combination of impairments that meets
or medically equals the severity of one
of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform a full
range of work at all exertional levels.
In addition, the claimant retains the
mental capacity for simple unskilled
work tasks requiring only occasional
judgment, and no contact with the
The claimant is capable of performing
past relevant work as a mall worker II.
This work does not require the
performance of work-related activities
precluded by the claimant’s residual
functional capacity (20 CFR 404.1565 and
The claimant has not been under a
disability, as defined in the Social
Security Act, from March 13, 2007,
through the date of this decision (20
CFR 404.1520(f) and (g) and 416.920(f)
Under her step four analysis, ALJ Zanotto found “in the
alternative,” that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform.
The ALJ noted that her findings on this matter were based on
the testimony of a vocational expert.
Other relevant portions of the Decision will be referenced in
the Discussion section of this Memorandum.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.3
It is necessary for the
Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.
20 C.F.R. §§
404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
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.
42 U.S.C. § 423(d)(2)(A).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.
20 C.F.R. § 404.1520(e); 416.920(e).
The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.
The disability determination involves shifting burdens of
The initial burden rests with the claimant to demonstrate
that he or she is unable to engage in his or her past relevant
If the claimant satisfies this burden, then the Commissioner
must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).
As set out above, the instant decision was decided at step
four of the sequential evaluation process when the ALJ found that
Plaintiff could perform past relevant work as a mail worker II.
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.
42 U.S.C. § 405(g); Hartranft
v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
Richardson v. Perales, 402 U.S. 389, 401 (1971); see
also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.
If she has not done so and has not
sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
In Cotter, the Circuit Court clarified that the ALJ must
not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.
However, the ALJ need not undertake an
exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
See, e.g., Knepp v.
“There is no requirement
that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Hur v. Barnhart, 94 F. App’x 130, 133 (3d
“[W]here [a reviewing court] can determine that there
is substantial evidence supporting the Commissioner’s decision, . .
the Cotter doctrine is not implicated.”
Hernandez v. Comm’f of
Soc. Sec., 89 Fed. Appx. 771, 774 (3d Cir. 2004) (not
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.
181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).
even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983) (internal quotation omitted).
Where the ALJ’s decision
is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.
Albury v. Comm’r of Soc.
Sec., 116 F. App’x 328, 330 (3d Cir. 2004) (not precedential)
(citing Burnett v. Commissioner, 220 F.3d 112 (3d Cir. 2000)
(“[O]ur primary concern has always been the ability to conduct
meaningful judicial review.”); see also Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005) (a remand is not required where it
would not affect the outcome of the case.).
An ALJ’s decision can
only be reviewed by a court based on the evidence that was before
the ALJ at the time he or she made his or her decision.
v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
Plaintiff asserts that the Acting Commissioner’s decision
should be reversed or remanded for the following reasons: 1) the
ALJ made the same findings in her second decision as she made in
her first decision and failed to follow the instructions of the
Appeals Council; 2) the ALJ failed to follow the treating physician
rule regarding the opinion of Gene Huang, M.D.; and 3) the ALJ
erred in finding that Plaintiff and her husband were not credible
(Doc. 16 at 12-13).
Compliance with Appeals Council’s Order
Plaintiff first argues the ALJ erred when she made the same
findings in her second decision as she did in her first decision
and failed to completely follow the Appeals Council Order.
16 at 15.)
Defendant responds that the ALJ complied with the
Appeals Council’s Order.
(Doc. 19 at 13.)
The Court concludes
Plaintiff has not shown error on the basis alleged.
The Appeals Council directed the following:
Upon remand, the Administrative Law Judge
Give further consideration to the
claimant’s [RFC] and provide appropriate
rationale with specific references to
evidence of record in support of the
assessed limitations. . . . In so doing,
[g]ive further consideration to the
nontreating source opinion of Thomas
Bowers, Ph.D. (Exhibit 7F), and the
treating source opinion of Gene Huang,
M.D. (Exhibit 13F), . . . and explain
the weight given to such opinion
evidence. . . .
Adhere to the standards set out in 20
CFR 404.1565 and 416.965 and Social
Security Ruling 82-61, 82-62 and 96-8p
for any conclusions reached about past
relevant work. The record must reflect
that the claimant’s past work activity
meets the duration and substantial
gainful activity guidelines to be
considered past relevant work.
If warranted by the expanded record,
obtain supplemental evidence from a
vocational expert to clarify the effect
of the assessed limitations on the
claimant’s occupational base (Social
Security Ruling 85-15). . . .
In compliance with above, the Administrative
Law Judge will offer the claimant an
opportunity for a hearing, take any further
action needed to complete the administrative
record and issue a new decision.
Plaintiff specifically asserts the following: 1) the ALJ
“simply changed the weight she gave to Dr. Huang’s opinion but made
no further effort to explain why she rejected the opinion”; 2) the
ALJ “still found the Plaintiff could perform her past relevant work
only this time identified the work as a mail sorter”; and 3) the
ALJ failed to express why she rejected the marked limitations
expressed by Dr. Huang.
(Doc. 16 at 16-17.)
Treating Psychiatrist Opinion
Plaintiff contends the ALJ only changed the weight assigned to
Dr. Huang’s opinion without making an effort to explain why she
rejected the opinion.
(Doc. 16 at 16.)
However, a review of the
Decision shows that ALJ Zanotto complied with the Appeals Council’s
directive to give further consideration to his opinion and correct
her original errors of not indicating what “appropriate weight”
meant and not explaining why the limitations assessed by Dr. Huang
were not adopted (R. 208-09).
ALJ Zanotto provided a detailed review of Dr. Huang’s February
2010 Medical Source Statement and specifically addressed the
limitations indicated by Dr. Huang.
explained why she found certain restrictions inconsistent with the
[T]he undersigned finds that these
restrictions are inconsistent with
psychiatric progress notes showing that the
claimant denied panic attacks in April 2011,
reported being able to travel, and had fair
sleep pattern. She also reported being able
to go out when accompanied, presented with
cooperative attitude, normal speech and motor
activity, organized thought process, and good
insight and judgment (Exhibit 14). In
addition, a June 2011 progress note from
Adams-Cumberland Family Medicine shows that
the claimant reported controlled anxiety,
denied suicidal ideation, was tolerating
medications without side effects and
requested that her primary care physician,
Dr. Wampler, to assume control of her
medication since her psychiatrist was
leaving. The claimant also reported that her
symptoms of anxiety were well controlled in
June 2012, at which time she also denied
medication side effects. The claimant also
reported exercising daily and trying to cut
back on her smoking (Exhibit 15F).
After further discussion of discrepancies between
Plaintiff’s reported limitations and evidence of record, ALJ
Zanotto summarized her findings in explaining the weight attributed
to the opinion, concluding that
the marked restrictions are somewhat
overstated in comparison to the psychiatric
records showing that the claimant denied
frequent panic attacks, presented as
cooperative and with normal speech, motor
activity and mood, and denied suicidal
ideation, delusions or hallucinations
(Exhibit 14F). As previously discussed in
this Decision, the undersigned has restricted
the claimant to occupations requiring no more
than occasional judgments and no contact with
the public. The claimant’s mental health
symptoms are managed by her primary care
physician who basically prescribes
medication. The claimant reports that her
anxiety is well controlled (Exhibit 15F).
Therefore, the opinion of Dr. Huang is
accorded little weight.
The foregoing excerpts from the March 1, 2013, Decision
clearly show that, as directed by the Appeals Council (R. 208-09),
ALJ Zanotto provided a detailed explanation, including citation to
the record, for her reasons why all the limitations indicated by
Dr. Huang were not included in the RFC.
With the broad statement that the ALJ “simply changed the
weight she gave to Dr. Huang’s opinion but made no further effort
to explain why she rejected that opinion” (Doc. 16 at 16),
Plaintiff does not undermine the ALJ’s analysis.
However, in her
somewhat disjointed discussion of the propriety of the RFC
assessment, Plaintiff notes that “Dr. Huang’s opinion suggests that
the Plaintiff’s marked limitations were during her ‘periods of
intermittent severe panic and agoraphobia.’
to Dr. Huang, the Plaintiff may have an acceptable level of
functioning at times but would have the marked limitations when she
had panic attacks.”
(Doc. 16 at 17.)
This statement neither shows
that the ALJ did not comply with the Appeals Court’s Order nor does
it point to error in the ALJ’s analysis of Dr. Huang’s opinion.
Regarding the latter, assuming Plaintiff had “intermittent severe
panic and agoraphobia” at some time when she was treated by Dr.
Huang prior to his February 2010 opinion, the medical evidence
supports a conclusion that Plaintiff did not thereafter exhibit or
report such events to her medical providers.
For example, the
record indicates, and Plaintiff recognized, that her last severe
panic attack was in May 2009 (Doc. 16 at 10 (citing R. 615)) and
her primary care physician, Dr. Wampler, reported at both
Plaintiff’s 2011 and 2012 annual visits that Plaintiff felt her
anxiety problem was controlled and she was tolerating the
medications well with no side effects.
(R. 623, 630.)
if Plaintiff is correct that “Plaintiff would not necessarily have
abnormal findings all the time . . . and marked limitations may
only be when she has panic attacks and she may be able to function
satisfactorily at other times” (Doc. 21 at 2), it does not follow
that findings of marked limitations are entitled to controlling or
significant weight when medical evidence does not show that
Plaintiff had experienced such an event for several years prior to
Past Relevant Work
Plaintiff also asserts that the ALJ did not comply with the
Appeals Council’s Order regarding her past relevant work.
Defendant maintains that, even if the ALJ erred on the
basis alleged, the error would be harmless because the ALJ made an
alternative step five finding and identified other jobs which
existed in significant numbers that Plaintiff could perform.
19 at 17.)
In her reply brief (Doc. 21), Plaintiff does not argue
The Supreme Court explained the operation of the harmless
error doctrine in Shineski v. Sanders, 556 U.S. 396, 409 (2009), a
case which concerned review of a governmental agency determination.
The Court stated: “the burden of showing that an error is harmful
normally falls upon the party attacking the agency’s
In such a case, “the claimant has the
‘burden’ of showing that an error was harmful.”
Id. at 410.
The Third Circuit Court of Appeals applied Shineski to a Social
Security case in Woodson v. Comm’r of Soc. Sec., 661 F. App’x 762,
766 (3d Cir. 2016) (not precedential), quoting Shineski for the
proposition that “the burden of showing that an error is harmful
normally falls upon the party attacking the agency’s
Woodson also relied on Rutherford, 399 F.3d at 553
for the proposition that a remand is not required where it would
not affect the outcome of the case.
661 F. App’x at 766.
Here the record supports Defendant’s argument that the alleged
step four error would be harmless because ALJ Zanotto made an
alternative step five finding which Plaintiff does not refute.
(Doc. 19 at 17; R. 22-23.)
Because Plaintiff has the burden of
showing harm and has not done so, the Court need not further
address this basis for reversal or remand.
Residual Functional Capacity
In the Appeals Council Order section of her supporting brief,
Plaintiff seems to generally assert that the ALJ has not corrected
flaws noted in the Appeals Council’s Order, including that the RFC
findings were deficient.
(Doc. 16 at 18-19.)
Though the brief is
not a model of clarity or organization, the Court will briefly
review assertions made.
Plaintiff states that the RFC findings are inconsistent with
the medical evidence accepted by the ALJ.
(Doc. 16 at 18.)
the Court rejects Plaintiff’s conclusions based on the premise that
Dr. Rightmyer’s moderate limitations are similar to Dr. Huang’s
marked limitations because the definition of these terms is
significantly different: with a moderate limitation, “the
individual is still able to function satisfactorily”; with a marked
limitation the “ability to function is severely limited but not
(See R. 608.)
Second, Plaintiff’s argument that the
RFC did not account for the moderate limitations in concentration,
persistence and pace assessed in the opinion of Dr. Rightmyer which
was given significant weight by the ALJ (id. at 19), is not
Plaintiff’s blanket statement that failure to include
moderate limitations in concentration, persistence and pace in the
RFC and hypothetical questions to the vocational expert requires
remand (Doc. 16 at 19-20 (citing Johnson v. Commissioner of Soc.
Sec., 529 F.3d 198, 206 (3d Cir. 2008)), suggests that there is a
bright-line rule on this issue.
As argued by Defendant (Doc. 19 at
19-20), Third Circuit caselaw and decisions of this Court clearly
Holley v. Comm’r of Soc. Sec., 590 F. App’x
167, 168-69 (3d Cir. 2014); McDonald v. Astrue, 293 F. App’x 941,
946 n.10 (3d Cir. 2008); Menkes v. Astrue, 262 F. App’x 410, 412
(3d Cir. 2008); Wright v. Colvin, Civ. A. No. 3:15-CV-102, 2015 WL
4530384, at *16 (M.D. Pa. July 27, 2015)).
Plaintiff does not
further develop this argument in her reply brief.
(See Doc. 21.)
Therefore, the Court concludes Plaintiff has not shown error on the
Treating Physician Rule
Plaintiff maintains the ALJ failed to follow the treating
physician rule in assessing Dr. Huang’s opinion.
(Doc. 16 at 20.)
Defendant responds that the ALJ articulated valid reasons for
discounting the opinion.
(Doc. 19 at 23.)
The Court concludes
Plaintiff has not shown that this alleged error is cause for
reversal or remand.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.
Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d
This principal is codified at 20 C.F.R. §§
404.1527(c)(2) and 416.927(c)(2), and is widely accepted in the
Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see
also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).
address the weight to be given a treating source’s opinion: “If we
find that a treating source’s opinion on the issue(s) of the nature
and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case, we
will give it controlling weight.”
20 C.F.R. §§ 404.1527(c)(2),
“A cardinal principle guiding disability
20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2) state in
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
eligibility determinations is that the ALJ accord treating
physicians’ reports great weight, especially when their opinions
reflect expert judgment based on continuing observation of the
patient’s condition over a prolonged period of time.”
Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citations omitted); see
also Brownawell v. Commissioner of Social Security, 554 F.3d 352,
355 (3d Cir. 2008).
In choosing to reject the treating physician’s
assessment, an ALJ may not make “speculative inferences from
medical reports and may reject a treating physician’s opinion
outright only on the basis of contradictory medical evidence and
not due to his or her own credibility judgments, speculation or lay
Morales, 225 F.3d at 317 (citing Plummer v. Apfel, 186
F.3d 422, 429 (3d Cir. 1999); Frankenfield v. Bowen, 861 F.2d 405,
408 (3d Cir. 1988)).
As discussed in the Appeals Court Order section of this
Memorandum, ALJ Zanotto thoroughly analyzed Dr. Huang’s opinion and
provided a reasoned basis for assigning it little weight.
to Plaintiff’s assertion that the ALJ did not comply with 20 C.F.R.
§ 404.1527, ALJ Zanotto found that Dr. Huang’s restrictions were
not consistent with other medical evidence, specifically citing
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
numerous bases for the conclusion.5
To the extent
Plaintiff points to support from Dr. Bower’s opinion regarding a
marked limitation in the ability to make judgments on simple workrelated decisions (Doc. 16 at 21), ALJ Zanotto explained her
assessment of that opinion (R. 21) and Plaintiff’s series of
conclusory statements do not show error.
Importantly, no rule
suggests that the assignment of “little weight” to an opinion means
that the opinion is totally devoid of support.
Further, the point on which the opinions agree does not show
error in the overall weight assigned Dr. Huang’s opinion or the
ALJ’s RFC finding.
On the contrary, in another section of her
opinion, Plaintiff asserted that a marked limitation in the ability
to make judgments on simple work related decisions “limited [her]
to making accurate, appropriate and correct judgments only one
third of the workday at most” (Doc. 16 at 19), and Plaintiff
acknowledged the ALJ’s RFC finding that she could occasionally make
judgments in the work setting by definition meant that the ALJ
found she could make judgments up to one third of the workday (id.
(citing HA 1151-BK)).
Thus, Plaintiff concedes that there is no
inconsistency between the limitations in making judgments on work-
To the extent Plaintiff suggest an ALJ must discuss all
factors set out in relevant regulations, there is no such
requirement. Rather, an ALJ should analyze applicable factors in
order to provide sufficient findings for judicial review. Centano
v. Comm’r of Soc. Sec., Civ. No. 09-6023, 2010 WL 5068141, at *8
(D.N.J. Dec. 6, 2010). The Court concludes the ALJ has done so
related decisions opined by Dr. Huang and Dr. Bowers and the ALJ’s
finding that Plaintiff could perform simple unskilled work tasks
requiring only occasional judgment.
(R. 18, 564, 608.)
The foregoing analysis undermines other assertions made by
Plaintiff in support of her claimed error regarding the treating
Her statement that “it appears that the
Administrative Law Judge rejected the opinion of Dr. Huang and
other treating sources simply because Plaintiff allegedly cared for
her grandchildren” (Doc. 16 at 22), ignores the many reasons ALJ
Zanotto cited as the bases for her assessment of the opinion.
Plaintiff’s statements that “the only medical evidence
cited as inconsistent with the opinion of Dr. Huang was the opinion
of the nonexamining state agency physician that the Plaintiff’s
impairments would not preclude her from meeting the basic mental
demands of competitive work on a sustained basis” and “opinions
from nonexamining state agency doctors are not a sufficient basis
to reject the opinion of a treating physician (Doc. 16 at 22, 23)
are similarly deficient in that, as discussed above, the ALJ
pointed to many reasons for assigning Dr. Huang’s opinion less than
Plaintiff notes that Dr. Rightmyer completed two PRTs on
the same date (one with the conclusion set out in the text and the
other finding insufficient evidence to evaluate the the claim) and
the ALJ failed to explain why this was so. (Doc. 16 at 22.) The
Court finds no inconsistency in that one PRT addressed the period
to the date of the PRT, June 30, 2009 (R. 566) and a fair inference
is that the other addressed the period to the date last insured of
Plaintiff’s final claimed error is the ALJ’s finding that she
and her husband were not credible.
(Doc. 16 at 23.)
responds the ALJ reasonably discounted their subjective statements.
(Doc. 19 at 31.)
The Court concludes Plaintiff has not shown the
alleged error is cause for reversal or remand.
The Third Circuit Court of Appeals has stated that “[w]e
‘ordinarily defer to an ALJ’s credibility determination because he
or she has the opportunity at a hearing to assess a witness’s
Coleman v. Commissioner of Social Security, 440 F.
App’x 252, 253 (3d Cir. 2012) (not precedential) (quoting Reefer v.
Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)).
determinations are the province of the ALJ and should only be
disturbed on review if not supported by substantial evidence.”
Pysher v. Apfel, Civ. A. No. 00-1309, 2001 WL 793305, at *3 (E.D.
Pa. July 11, 2001) (citing Van Horn v. Schwieker, 717 F.2d 871, 873
(3d Cir. 1983)).
The Social Security Regulations provide a framework within
which a claimant’s subjective complaints are to be considered.
C.F.R. §§ 404.1529, 416.929.
First, symptoms such as pain,
shortness of breath, and fatigue will only be considered to affect
March 31, 2008 (R. 582). The inference is based on the last page
of the PRTs: in the former Dr. Rightmyer stated in part “Currently:
ADLs good for simple routine tasks” (R. 578); in the latter, he
stated “DLI 3/31/08: insufficient evidence” (R. 594).
a claimant’s ability to perform work activities if such symptoms
result from an underlying physical or mental impairment that has
been demonstrated to exist by medical signs or laboratory findings.
20 C.F.R. §§ 404.1529(b), 416.929(b).
Once a medically
determinable impairment which results in such symptoms is found to
exist, the Commissioner must evaluate the intensity and persistence
of such symptoms to determine their impact on the claimant’s
ability to work.
In so doing, the medical evidence of record
is considered along with the claimant’s statements.
At the time of the ALJ Decision in this case, Social Security
Ruling 96-7p provided guidance regarding the evaluation of a
claimant’s statements about his or her symptoms:7
SSR 96-7p was superseded by SSR 16-3p effective March 16,
2016. SSR 16-3p, 2016 WL 1119029, at *1 (S.S.A.). SSR 16-3p
eliminates the word “credibility” from the sub-regulatory policy
because the regulations do not use the term. Id. The Seventh
Circuit explained the change in Cole v. Colvin, 831 F.3d 411, 412
(7th Cir. 2016):
Recently the Social Security Administration
announced that it would no longer assess the
“credibility” of an applicant’s statements,
but would instead focus on determining the
“intensity and persistence of [the
applicant’s] symptoms.” . . . The change in
wording is meant to clarify that
administrative law judges aren’t in the
business of impeaching claimants’ character;
obviously administrative law judges will
continue to assess the credibility of pain
assertions by applicants, especially as such
assertions often cannot be either credited or
rejected on the basis of medical evidence.
Substantively, SSR 16-3p’s guidance concerning the evaluation
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
SSR 96-7p, 1996 WL 374186, at *4 (S.S.A.).
The ruling adds that
“[o]ne strong indication of the credibility of an individual’s
statements is their consistency, both internally and with other
information in the case record.”8
SSR 96-7p, 1996 WL 374186, at
of subjective symptoms in disability claims is largely consistent
with the policies set out in SSR 96-7p regarding the assessment of
the credibility of an individual’s statements. See, e.g.,
Sponheimer v. Comm’r of Soc. Sec., Civ. No. 15-4180, 2016 WL
4743630, at *6 n.2 (D.N.J. Sept. 8, 2016). In this case, ALJ
Zanotto issued her Decision prior to the effective date of SSR 163p so her obligation was to follow the guidance set out in SSR 967p. Therefore, the Court references the standards set out in SSR
96-7p in this Memorandum.
Factors which may be relevant in the evaluation of symptoms
include: 1) activities of daily living; 2) the location, duration,
frequency and intensity of the pain or other symptoms; 3)
precipitating and aggravating factors; 4) the type, dosage,
effectiveness and side effects of medications taken to alleviate
symptoms; 5) treatment received other than medication intended to
relieve pain or other symptoms; 6) other measures used for
pain/symptom relief; and 7) other factors concerning functional
limitations and restrictions due to pain or other symptoms. 20
C.F.R. §§ 404.1529(c)(3)(i-vii), 416.929(c)(3)(i-vii); SSR 96-7,
1996 WL 374186, at *3; SSR 16-3p, 2016 WL 1119029, at *7.
Relevant guidance regarding the ALJ’s obligation to make a
specific credibility finding is quite detailed:
The finding on the credibility of the
individual’s statements cannot be based on an
intangible or intuitive notion about an
individual’s credibility. The reasons for
the credibility finding must be grounded in
the evidence and articulated in the
determination or decision. It is not
sufficient to make a conclusory statement
that “the individual’s allegations have been
considered” or that “the allegations are (or
are not) credible.” It is also not enough
for the adjudicator simply to recite the
factors that are described in the regulations
for evaluating symptoms. The determination
or decision must contain specific reasons for
the finding on credibility, supported by the
evidence in the case record, and must be
sufficiently specific to make clear to the
individual and to any subsequent reviewers
the weight the adjudicator gave the
individual’s statements and the reasons for
that weight. The documentation is necessary
in order to give the individual a full and
fair review of his or her claim, and in order
to ensure a well-reasoned determination or
SSR 96-7p, 1996 WL 374186, at *4.
Here ALJ Zanotto supported her determination that Plaintiff
and her husband were not entirely credible with citation to
evidence of record and sufficient specificity for the Court to
review the reasons for the weight attributed.
(See R. 19-21.)
Following her summary of Plaintiff’s testimony and that of her
husband regarding limitations caused by her impairments, ALJ
Zanotto found that the statements were “not entirely credible for
the reasons explained in this decision.”
In the next
paragraph, the ALJ began her assessment of the symptoms.
In terms of the claimant’s alleged
symptoms, psychiatric progress notes show
that while the claimant reported not doing
any better and feeling irritable and anxious,
she also reported only “periodic” depression
and denied panic or agoraphobia. It was also
noted that the claimant’s affect seemed
brighter, that she continued to deny
agoraphobia or panic, was coping well,
appeared to have an even mood, was sleeping
“okay” and reported enjoying spending time
with her grandchildren (Exhibits 3F and 5F).
Subsequently, the claimant reported ongoing
stress and anxiety secondary to issues
involving her daughter (Exhibit 5F). . . .
Also, progress notes from November 2009 and
February 2010 show that the claimant reported
increased stress with her husband’s
disability and with caring for her
grandchildren. She reported tolerating
public places with no symptoms of panic
(Exhibit 12F). The claimant appears to be
well-maintained on her medication regimen as
no specific changes were made with the
exception of a decrease in her Paxil dosage.
In May 2010, the claimant was described as
having normal motor activity and speech, a
euthymic mood, organized and logical thought
process, denied delusions, hallucinations and
suicidal ideations, demonstrated good insight
and judgment, and had a cooperative attitude
. . . .
The undersigned also notes for the
record that while the claimant reports that
she spends her day lying around and watching
television, the record indicates that the
claimant cared for her grandchildren and her
disabled husband. In addition, the
claimant’s symptoms appear to be wellcontrolled with medication as the claimant
presents with rather limited symptomatology.
She was also able to keep appointments with
her treating psychiatrist and was compliant
with her medications (Exhibit 15F). As for
the alleged medication-induced side effects,
recent progress notes fail to establish that
the claimant made related complaints to Dr.
Huang, her treating psychiatrist or to Dr.
Wampler, who was managing the claimant’s
psychotropic medications (Exhibit 15F). The
record shows that the claimant’s medications
were previously adjusted to alleviate
reported side effects, but there is no
indication that she has recently made related
Importantly, with the claimed credibility error, Plaintiff
does not refute evidence cited by the ALJ.
Rather, Plaintiff first
repeats statements made by her and her husband concerning her
limitations, focusing on issues related to poor memory, poor
concentration, fear of going out in public and social phobia, and
loss of interest in taking care of herself.
(Doc. 16 at 23-24.)
Included are Mr. Stoddard’s assessment that one of Plaintiff’s
biggest problems was the side effects of medications which caused
her to sleep a lot and forgetfulness and the problems he thought
would be associated with potential jobs.
Plaintiff then asserts that subjective testimony is supported
by the opinions of record, including marked limitations found by
Dr. Huang and Dr. Bowers and the moderate limitations found in
their opinions as well as that of Dr. Rightmyer.
(Id. at 25-26.)
As discussed previously, the ALJ properly discounted the opinion of
To the extent the Court concluded that marked
limitations in making judgments on simple work-related decisions
found in the opinions of Dr. Huang and Dr. Bowers do not conflict
with an ability to perform simple unskilled work requiring only
occasional judgment and no contact with the public, see supra pp.
33-34, such limitations do not support statements which suggest
that Plaintiff is unable to engage in substantial gainful activity.
Plaintiff’s similar argument regarding the moderate restrictions
found in all opinions is also unavailing in that, as noted
previously, “moderate” means “still able to function
satisfactorily” (R. 608) and, therefore, moderate limitations do
not support subjective statements indicating that Plaintiff is
unable to do so.
Plaintiff’s argument that the ALJ did not specifically comply
with the requirements of SSR 96-7p is not persuasive in that the
ALJ looked at Plaintiff’s activities of daily living, subjective
allegations made to treating physicians and during testimony,
treatment received, the effectiveness and side effects of
medications taken to alleviate symptoms, and opinions from treating
and examining physicians (R. 19-21).
SSR 96-7, 1996 WL 374186, at
*3; see also 20 C.F.R. §§ 404.1529(c)(3)(i-vii), 416.929(c)(3)(ivii); SSR 16-3p, 2016 WL 1119029, at *7.
In sum, Plaintiff’s conclusion that the ALJ “simply rejected
the Plaintiff’s testimony and that of her husband as not consistent
with the record as a whole” (Doc. 16 at 28) is not an accurate
portrayal of the record review and analysis conducted by ALJ
While there is certainly a disconnect between the
limitations alleged by Plaintiff and her husband during their
hearing testimony and medical findings made by treating doctors,
which at least in part were based on Plaintiff’s subjective
complaints to the providers, such a disconnect does not point to
error on the part of the ALJ.
Rather, the Decision is supported by
substantial evidence and, therefore, must be affirmed.
For the reasons discussed above, we have found all claimed
errors to be without merit.
Therefore, Plaintiff’s appeal of the
Acting Commissioner’s denial of benefits (Doc. 1) is denied.
appropriate Order is filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: March 9, 2017
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