Wesneski v. Colvin
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal of the Acting Commissioners denial of benefits (Doc. 1) is denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 3/20/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWNA LEE WESNESKI,
:CIVIL ACTION NO. 3:16-CV-1903
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.
filed an application for benefits on February 14, 2013, alleging a
disability onset date of February 13, 2013.
Plaintiff appealed the initial denial of the claim, a hearing was
held on July 22, 2014, and Administrative Law Judge (“ALJ”) Patrick
Cutter issued his Decision on August 6, 2014, concluding that
Plaintiff had not been under a disability at any time from February
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
13, 2013, to the date last insured of March 31, 2014.
Plaintiff requested review of the ALJ’s decision which the Appeals
Council granted on March 16, 2016.
In the Decision of the
Appeals Council dated July 22, 2016, Plaintiff’s date last insured
was extended to December 31, 2014, and the ALJ’s Decision was
otherwise adopted, the Appeals Council concluding that newly
submitted evidence either did not warrant a change in ALJ Cutter’s
determinations or did not relate to the relevant time period.
Plaintiff filed this action on September 16, 2016 (Doc. 1),
asserting in her supporting brief that the Acting Commissioner’s
determination should be reversed for the following reasons: 1) the
ALJ erred when he found that Plaintiff’s impairments or combination
of impairments did not meet or equal one of the listed mental
health impairments (Doc. 11 at 3-12); and 2) based on inadequate
consideration of symptoms related to Plaintiff’s mental health
impairments, the ALJ failed to find Plaintiff disabled under the
Medical-Vocational Rules after improperly determining she was
capable of performing light work (id. at 12-14).
review of the record and the parties’ filings, the Court concludes
this appeal is properly denied.
Plaintiff was born on July 16, 1964, and has at least a high
The ALJ determined that Plaintiff
had past relevant work as an administrative clerk, income tax
return preparer, and account executive.
In a February
20, 2013, Disability Report, Plaintiff reported that the following
physical and mental conditions limited her ability to work:
diabetes; depression; memory lapse/loss; anxiety disorder due to
general medical condition; hypertension; asthma with acute
exacerbation; obesity; panic disorder without agoraphobia;
obstructive sleep apnea; and hyperlipidemia.
said she stopped working on February 13, 2013, because she was
She further indicated that, although she was
fired for other reasons, she believed her conditions became severe
enough to keep her from working as of January 15, 2013.
Because Plaintiff’s claimed errors relate to her mental health
conditions, the Court will focus on medical evidence related to
Although February 13, 2013–-the date Plaintiff
stopped working--is the alleged disability onset date, records from
the preceding six months are reviewed for context.
Plaintiff was seen for a check up at Hanover Family Medicine
by Vernon Preston, M.D., on July 24, 2012.
presented as tearful and stated she had a panic attack all day.
She said she had been without insurance for a while but had
acquired insurance and wanted to have testing done.
Plaintiff reported that she was having memory loss and was feeling
Dr. Preston noted she was willing to see someone
In August 2012, Dr. Preston’s notes show that memory and
depression were still issues and Plaintiff did not feel her
depression was controlled.
At Plaintiff’s September 18,
2012, visit, Plaintiff felt her depression was controlled but her
anxiety was not.
She reported a potential medication
side effect was that she was waking up a lot at night and having
very vivid dreams.
Plaintiff said she was concerned
about an increase in memory loss and anxiety, and she was
experiencing low blood sugars in the middle of the night which
increased her anxiety.
At her visit to Wellspan Endocrinology on October 12, 2012,
Ashok Kuruvilla, M.D., noted that Plaintiff was unable to manage
her insulin pump at the time because of her memory loss.
In addition to history directly related to diabetes, Dr. Kuruvilla
noted that Plaintiff reported panic attacks, anxiety, depression,
sleeping too much, trouble falling asleep, and trouble staying
On physical exam, he noted that Plaintiff
looked anxious and mildly depressed.
On October 22, 2012, Plaintiff had a neurology consultation
with Xi Lin, M.D., at Wellspan Rheumatology.
noted that Plaintiff said over the preceding five years she had
worsening attention and concentration, and she was easily
distracted or overwhelmed.
He further noted that
Plaintiff reported she could function at home with no significant
On physical exam, Dr. Lin found Plaintiff
alert and oriented to person, place and time, with normal affect
and expression, no aphasia, and good insight with a good fund of
Because of her reported progressive memory
loss, poor concentration, and fatigue, he scheduled MRI of the
brain, EEG, and sleep study.
His differential diagnosis
included obstructive sleep apnea, epilepsy, and cerebrovascular
On November 30, 2012, Dr. Kuruvilla noted that Plaintiff had
not followed directives regarding faxing her blood glucose chart
weekly, she had not yet seen the dietician and she had been very
erratic and infrequent with blood glucose monitoring.
He added that she had symptoms when she had low blood glucose
On February 11, 2013, Plaintiff saw Dr. Preston with the chief
complaint of severe anxiety attacks.
recorded a detailed history.
Patient states her anxiety level has
greatly increased recently with her job. She
states her job is the job from hell. She
does not want to quit but she does need to
get her anxiety under control. Her job is
very hectic and she has had to take some
mental health days to relieve her stress
level. She needs a return to work note. She
states she was hired to help elderly patients
pay for their heat during the winter time.
It has not been as busy as last year. As a
result, she is now answering telephones for
the department of public welfare. She states
[there are] times that she hides underneath
her desk and places a blanket over the back
[of] the desk so that no one can see her and
she takes her headphone off for decompression
time. She states she has panic attacks on a
daily basis now. On reviewing, she has not
been taking citalopram on a regular basis.
She has been using lorazepam for her panic
attacks and often uses one to two per day.
Dr. Preston decided to switch Plaintiff from the pump to
subcutaneous insulin because of her poor memory and lack of
monitoring and he continued her on lorazepam for anxiety.
On March 14, 2013, Plaintiff reported to Dr. Preston that she
had lost her job and was trying for disability.
said she could not keep a job because of her depression and
anxiety–-she was fighting coworkers and having panic attacks at
Plaintiff said she wanted to increase her anxiety
medication and she felt her depression was controlled.
Anthony J. Fischetto, Ed.D., performed a clinical
psychological examination and review of documents on April 9, 2013.
He reported that Plaintiff was crying throughout the
Regarding the history of her illness, Dr.
Fischetto recorded that Plaintiff said “she has diabetes and this
has caused her stress and caused her to have panic attacks which is
hard to distinguish between low blood sugar.
She has depression.”
At the time, Plaintiff was taking lorazepam and Zoloft
prescribed by her family doctor.
She said she had never
seen a psychiatrist and was not getting any therapy for her panic
attacks or sleep problems.
She told Dr. Fischetto that
psychiatrists scared her “because her mother and sister were taken
away in straight jackets by medical personnel.”
Plaintiff said she could not work because of the panic attacks and
asthma as well as arguing and crying.
Examination included the following findings:
Plaintiff was crying
and restless; her speech consisted of crying and she was able to
understand clearly; she was depressed, anxious, and angry, and she
fought with her in-laws and people at work; she had panic attacks
lasting fifteen seconds to fifteen minutes once or twice a day with
fast heart beat, sweating, shaking, trembling, and shortness of
breath; she was having a panic attack at the time; she had sleep
problems including falling asleep, early morning wakening, and
nightmares of getting lost; productivity of thought was
spontaneous; continuity of thought was goal-directed and no
looseness of association; content of thought consisted of fear of
going to work and getting into a fight; she had no delusions; her
abstract thinking was good for similarities; she had average fund
of information; regarding concentration, she was slow for serial
sevens; she was oriented to time, place and person; her remote
memory was limited in that she did not remember much of her
childhood, her recent past memory was average, and her immediate
retention and recall was poor for Digit Span; her test judgment was
good; her insight was limited; and her reliability was average.
Diagnoses included major depressive disorder,
recurrent, moderate; personality disorder, NOS; reported problems
with diabetes, overweight, asthma, hyperlipidemia, OSA, and
hypertension; stress with her physical condition, not working,
arguments with people; and a GAF score of 50.
Fischetto’s prognosis was “[g]uarded and chronic.”
that Plaintiff needed ongoing psychiatric and psychological help.
In April 2013, Dr. Preston stated that the following month he
would consider changing anxiety medication because Plaintiff wanted
to be on a non-controlled substance medication.
hoped that her stress would be decreased, noting that a decision
would be made on her wrongful firing suit.
that Plaintiff had not yet seen Dr. Carlson, she continued to have
issues with depression and confusion as well as life stressors at
home, she was apprehensive about seeing a psychologist, and she was
in the middle of a lawsuit that was causing her a lot of stress.
Plaintiff reported that she felt her depression was
controlled and she was tolerating the depression medication without
On July 22, 2013, Dr. Preston again noted that Plaintiff was
having panic attacks and wanted the change medications so she would
not have to come into the office for medication pickup.
He added that Plaintiff had not been taking the citalopram on a
Plaintiff did not feel that her panic
attacks were controlled, and Dr. Preston noted that she was not
compliant with medications/treatment recommendations.
On examination, he found that psychologically Plaintiff was
oriented and appropriate.
At her October 2013 three-month follow-up appointment, Dr.
Preston reported that Plaintiff felt her depression and anxiety
were not controlled.
He noted that she was compliant
with medications/treatment recommendations, she was tolerating her
medications well, and psychologically Plaintiff was oriented and
Dr. Preston recorded a similar assessment in
November at which time Plaintiff reported that she was seeing a
In March 2014, Dr. Preston noted that Plaintiff said she was
doing well on Strattera, that she was remembering more and focusing
She told Dr. Preston her only concern was that
she was worrying a lot.
Dr. Preston recorded that Plaintiff
felt her depression was controlled but she was having side effects
from her medication concerning libido and wanted to try something
Examination showed that psychologically
Plaintiff was oriented and appropriate.
On April 28, 2014, Dr. Preston recorded Plaintiff was “doing
better with her sugars now that attention deficit is better
Plaintiff felt that her depression was
controlled and she was tolerating related medications without side
Examination showed Plaintiff’s judgment and
mentation were normal.
He made similar findings on May
(R. 343, 345.)
On July 14, 2014, Dr. Preston noted that Plaintiff’s ADHD was
well-controlled on Strattera but she felt her depression was not
(R. 338, 339.)
In addition to the April 9, 2013, evaluation summarized above,
Dr. Fischetto completed a Medical Source Statement of Ability to Do
Work-Related Activities (Mental) on the same date.
Regarding ability to carry out instructions affected by the
impairment, Dr. Fischetto opined that Plaintiff had moderate
difficulties in her ability to understand and remember simple
instructions, carry out simple instructions, and make judgments on
simple work-related decisions, and she had marked difficulties in
her ability to understand and remember complex instructions, carry
out complex instructions, and make judgments on complex workrelated decisions.
He identified the support for his
assessment to be Plaintiff’s panic attacks, crying throughout the
evaluation session, and poor focus.
Dr. Fischetto also
indicated that Plaintiff’s ability to interact appropriately with
supervisors, co-workers and the public, and respond to changes in
the routine work setting was affected by her impairments, but after
checking the “Yes” box, Dr. Fischetto did not evaluate the specific
categories set out in the form.
In the evaluation narrative, Dr. Fischetto included an
assessment of the effects of Plaintiff’s impairments on function.
Regarding activities of daily living, he concluded
that Plaintiff was able to do some cooking and cleaning, and she
was able to drive and shop but, when shopping, she did not bring a
list and bought unneeded items so her husband did not let her shop.
Dr. Fischetto found that Plaintiff’s social
functioning was limited as evidenced by a disorderly conduct charge
and being fired from many jobs because of arguing.
noted that Plaintiff’s concentration, persistence, and pace
appeared to be slow because she had trouble focusing and
concentrating, and she had difficulty remembering her age.
Dr. Fischetto added that Plaintiff was having a panic attack
during the evaluation and “[o]bviously, during the panic attack,
she was going to have greater difficulty focusing, concentrating
and completing tasks.”
State Agency Consultant
On April 24, 2013, state agency consultant Roger Fretz, Ph.D.,
completed a Psychiatric Review Technique (“PRT”) and a
Mental Residual Functional Capacity Assessment based on his review
of the evidence, including Dr. Fischetto’s evaluation.
In the PRT, he reviewed the listing criteria for 12.04-Affective
Disorders, 12.06-Axiety-Related Disorders, and 12.08-Personality
Disorders and concluded Plaintiff did not satisfy the “paragraph B”
or paragraph “C” criteria of the listings.
the “B” criteria, Dr. Fretz concluded that Plaintiff had mild
restrictions in activities of daily living, moderate difficulties
in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence or pace, and no repeated
periods of decompensation each of extended duration.
Dr. Fretz opined that Plaintiff was moderately limited in her
abilities to carry out detailed instructions, maintain attention
and concentration for extended periods, and work in coordination
with or proximity to others without being distracted by them.
He also opined that Plaintiff was moderately limited in
her abilities to accept instructions and respond appropriately to
criticism from supervisors, and get along with coworkers or peers
without distracating them or exhibiting behavioral extremes.
Dr. Fretz provided the following narrative explanation for
The claimant is capable of selfcare/hygiene. She is able to perform ADLs,
able to drive, shop. She has recently been
employed. Treatment is limited to being
prescribed psychoactive medication by PCP, no
inpatient care. She was cooperative with the
CE examiner, manifesting no evidence of a
thought disorder, no evidence, as per
narrative, of severe dysfunction in any area.
She described a troubled adolescence, not
currently manifesting a similar behavior
pattern however does admit to having
difficulty with others, can be argumentative.
She is however able to engage in social
settings, attends church services with a
friend. She was somewhat slow for serial
7's, [s]ome difficulty with concentration and
attention. Able to understand and complete
simple instructions. No problems with
The M.S.O. statement is that of A.
Fischetto, Ed.D. His statement is consistent
with the MER given appropriate weight of
The claimant’s allegations are partially
The claimant would be capable of
understanding and performing simple tasks.
Third Party Function Report
Plaintiff’s husband, Carl A. Wesneski, III, completed a
Function Report - Adult - Third Party on March 5, 2013.
He indicated Plaintiff’s conditions limited her ability to
work because she was unable to concentrate or focus on completing
tasks, and she had difficulty getting along with others which
caused her to lose jobs.
He noted that Plaintiff
frequently awakened due to drops in blood sugar and her anxiety
attacks often coincided with the hypoglycemic episodes.
Mr. Wesneski noted that he had to remind his wife to take insulin,
that her anxiety and lack of concentration/focus interfered with
her ability to cook and prepare meals, that she could clean, do
laundry and iron with difficulty, she did other housework with
difficulty, she drove and shopped as needed, she did some sewing
and gardening and watched TV, and she talked with a good friend and
went to church with her family once a week.
Wesneski identified argumentativeness as a problem regarding
Plaintiff’s relationships with others which resulted in her
inability to hold a job.
Mr. Wesneski averred that Plaintiff’s abilities regarding
talking, hearing, memory, completing tasks, concentration,
understanding, following instructions, and getting along with
others were all affected by her conditions.
that hypoglycemic episodes and anxiety affected all of these areas.
Mr. Wesneski also indicated that Plaintiff could follow written
instructions moderately well (“often with assistance”) and had a
similar ability to follow spoken instructions.
He noted that she was taking Apidra at the time and side effects
were hypoglycemia if she took too much and anxiety if she did not
At the July 25, 2014, Hearing, Plaintiff, who was represented
by counsel, testified that she was supposed to go for a sleep study
and forgot to, and she does not always give herself insulin
Regarding symptoms related to depression,
anxiety, and ADHD, Plaintiff stated that the main issue was
memory–-she sometimes forgot where she was going while driving and
had to stop or pull over.
Depression and anxiety
symptoms included sadness and a feeling that she was going to fall
Plaintiff noted that she thought the memory issue was
causing a lot of anxiety.
She said anxiety and depression
medications helped and Strattera had initially provided significant
help for her ADHD including the driving issues.
asked by the ALJ whether she had any counseling or treatment from a
mental health specialist, Plaintiff responded that she had one
Plaintiff said she regularly went to church, she did gardening
and she spent time with a good friend.
She noted that
her daily activities included cleaning, watching TV, and activities
with her children.
Plaintiff testified further about memory issues and forgetting
to take her insulin, adding that she had to quit a job at Target
after two or three days because she forgot her insulin.
Her attorney questioned her further about the Target job and
Plaintiff explained that she was stocking shelves during the
training process and the job was more difficult than she expected
because she had to use a computer and scan things.
also testified about the stress she experienced at the Department
of Public Welfare where she answered phones, stating that her
supervisor told her not to answer so many calls and that everyone
was stressed out.
Springer in that place.”
Plaintiff said it was “like Jerry
When reviewing work history, Plaintiff noted that her problems
seem to have started since she had diabetes.
The ALJ asked Vocational Expert (“VE”) Michael Kibler to
consider a hypothetical person of Plaintiff’s vocational profile
who has the residual functional capacity (“RFC”) to perform a range
of light work, and the
work should be such that it could be
performed either sitting or standing.
There’s a need to avoid concentrated exposure
to temperature extremes, high humidity,
fumes, gases or dust. The work should
involve routine, repetitive, one to two-step
type tasks; only occasional interaction with
supervisors, co-workers or the public; only
occasional changes and occasional decisionmaking. In addition, there should be no
judgments on complex work decisions involved
in the work.
VE Kibler testified that such an individual could not
perform Plaintiff’s past relevant work but could perform other
unskilled jobs that existed in the national economy such as small
products assembler, electrical accessories assembler, and conveyor
line bakery worker.
ALJ Cutter asked if the hypothetical
individual could perform the jobs identified if she were to be
absent from work twenty percent of the time, and the VE responded
that she could not.
In his August 6, 2014, Decision, ALJ Cutter made the following
Findings of Fact and Conclusions of Law:
The claimant last met the insured status
requirements of the Social Security Act
on March 31, 2014.
The claimant did not engage in
substantial gainful activity during the
period from her alleged onset date of
February 13, 2013 through her date last
insured of March 31, 2014 (20 CFR
404.1571 et seq.).
Through the date last insured, the
claimant had the following severe
impairments: depression; anxiety;
attention deficit disorder; personality
disorder; asthma; and obesity (20 CFR
Through the date last insured, the
claimant did not have an impairment or
combination of impairments that met or
medically equaled the severity of one of
the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
After careful consideration of the
entire record, the undersigned finds
that, through the date last insured, the
claimant had the residual functional
capacity to perform light work as
defined in 20 CFR 404.1567(b) except sit
and stand alternative at will, avoid
concentrated exposure to temperature
extremes, humidity, fumes, gases and
dust; routine, repetitive one to two
step tasks; occasional interaction with
supervisors, coworkers, and the public;
occasional changes in the workplace
setting; occasional decision-making; and
no judgements on complex work decisions.
The claimant was born on July 16, 1964
and was 49 years old, which is defined
as a younger individual age 18-49, on
the date last insured (20 CFR 404.1563).
The claimant has at least a high school
education and is able to communicate in
English (20 CFR 404.1564).
Transferability of job skills is not
material to the determination of
disability because using the MedicalVocational Rules as a framework supports
a finding that the claimant is “not
disabled,” whether or not the claimant
has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P,
Through the date last insured,
considering the claimant’s age,
education, work experience, and residual
functional capacity, there were jobs
that existed in significant numbers in
the national economy that the claimant
could have performed (20 CFR 404.1569
Through the date last insured, the
claimant was unable to perform any past
relevant work (20 CFR 404.1565).
The claimant was not under a disability,
as defined in the Social Security Act,
at any time from February 13, 2013, the
alleged onset date, through March 31,
2014, the date last insured (20 CFR
As noted previously, the Appeals Council extended the
date last insured to December 31, 2014, and otherwise adopted the
(See R. 4-6.)
Other relevant portions of the
ALJ’s Decision will be referenced in the Discussion section of this
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2
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
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs which existed in significant numbers
in the national economy.
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 for the following reasons: 1) the ALJ erred when
he found that Plaintiff’s impairments or combination of impairments
did not meet or equal one of the listed mental health impairments
(Doc. 11 at 3-12); and 2) based on inadequate consideration of
symptoms related to Plaintiff’s mental health impairments, the ALJ
failed to find Plaintiff disabled under the Medical-Vocational
Rules after improperly determining she was capable of performing
light work (id. at 12-14).
Step Three Determination
Plaintiff first asserts that the ALJ erred when he found that
Plaintiff’s impairments alone or in combination did not meet or
equal a listed impairment.
(Doc. 11 at 3.)
that Plaintiff failed to establish that she meets or medically
equals all the criteria of the relevant mental listings.
The Court concludes that Plaintiff has not shown that the
alleged error is cause for reversal or remand.
Plaintiff argues that she satisfies the paragraph B criteria
for all relevant mental listings.
(Doc. 11 at 4-12.)
the paragraph B criteria, a claimant’s impairments must result in
at least two of the following: marked restrictions in activities of
daily living; marked difficulties in maintaining social
functioning; marked difficulties in maintaining concentration,
persistence or pace; or repeated episodes of decompensation, each
of extended duration.
12.02B, 12.04B, 12.06B.
20 C.F.R. pt. 404, subpt. P. app. 1, §§
A marked limitation is one that seriously
interferes with a claimant’s ability to function independently,
appropriately, and effectively on a sustained basis.
20 C.F.R. pt.
404, subpt. P. app. 1, § 12.00(C).
ALJ Cutter agreed with Dr. Fretz that Plaintiff had mild
restrictions in activities of daily living, moderate difficulties
in social functioning, and moderate difficulties in maintaining
concentration, persistence or pace.
ALJ Cutter noted
that his agreement was based on the consistency of the opinion with
the longitudinal record, the doctor’s specialization, his
familiarity with the regulations, and his explanation showing a
thorough review of the record.
Regarding activities of daily living, the ALJ pointed to Dr.
Fretz’s findings that Plaintiff was capable of self-care and
hygiene, activities of daily living, driving and shopping, and the
ALJ concluded the assessment was supported by evidence in the file.
Plaintiff points to difficulties with activities of daily
(See, e.g., Doc. 11 at 6-7.)
However, the record in
general, including her testimony and her husband’s statements, does
not support her statement that she “is limited to watching
television daily . . . and is limited to activities that require
minimal to zero thinking” (id. at 6).
For example, Plaintiff
testified that she still spends time with a good friend, does
gardening, goes shopping, regularly goes to church, and her daily
activities include cleaning and doing activities with her children
Plaintiff’s husband indicated that Plaintiff does
housework with diffulty, does gardening, talks with a good friend,
and she drove and shopped as needed.
There is no
doubt that Plaintiff’s impairments have an effect on her daily life
(id. at 7), but she has not shown that the limitation is marked and
has not shown that the ALJ’s determination on this issue is not
supported by substantial evidence.
Similarly, Plaintiff’s averment that she “has met the
requirements” regarding social functioning relies on her testimony
and the Function Reports in the record (Doc. 11 at 7) which the ALJ
considered but did not find dispositive (R. 43).
that Plaintiff had moderate difficulties in the area of social
functioning, ALJ Cutter explained that
[a]lthough the claimant alleged that memory
loss and anxiety attacks precluded her
ability to work and interact with others, the
claimant interacted appropriately with all
sources of record. The claimant submitted
into evidence a termination letter from a
prior employer for inappropriate behavior,
however there is no documentation of any
incident when memory loss interfered with the
claimant’s ability to function or interact
with others (Exhibit 5E). Dr. Fretz observed
that the claimant was cooperative with the
examining consultant and manifested no
evidence of a thought disorder or sever
dysfunction in any area (Id.). Although
alleged difficulty with others and being
argumentative, the doctor found that the
claimant engaged in social settings and
attended church services with a friend (Id.).
The claimant testified to visiting family on
weekends. Therefore, the undersigned finds
that although the claimant’s [sic] do not
rise to the level of marked as she does
demonstrate the ability to interact
appropriately, the claimant demonstrates
While Plaintiff’s testimony and averments as well as
information provided by her husband indicate that her anxiety and
panic attacks at times make it difficult to get along with others
(Doc. 11 at 7), isolated incidents of more extreme behavior like
putting a blanket over her desk (id. (citing R. 204)), do not
establish the presence of marked difficulties in this area of
Importantly, Plaintiff’s characterization of some
limitations are not supported by the record cited.
Plaintiff states that she “becomes extremely annoyed and agitated
if there are authority figures present.”
(Doc. 11 at 7 (citing R.
However, the cited record shows that, in answer to the
question of how well she got along with authority figures,
Plaintiff said “apparently not very well.
disciplined & fired.
I keep getting
I think they are wrong and I’m right.”
This response indicates a disconnect between the averment
made in Plaintiff’s brief and the record evidence relied upon to
Moreover, Plaintiff has not provided evidence which
directly refutes that ALJ’s detailed analysis.
Court concludes she has not shown that his conclusion is not based
on substantial evidence.
Finally, Plaintiff’s allegations concerning her inability to
concentrate suffer from a similar failure, conflating documented
memory and concentration “difficulties” with a marked impairment in
(See Doc. 11 at 8.)
persistence or pace, ALJ Cutter concluded that Plaintiff had
moderate difficulties and referenced his discussion of social
functioning problems, reiterating his finding that
there is no documentation of any incident
when memory loss interfered with the
claimant’s ability to function. Dr. Fretz
noted that the claimant was somewhat slow
with serial sevens and had some difficulty
with attention and concentration, the
claimant was able to understand and complete
simple instructions and demonstrated no
problems with adaptation (Exhibit 2A).
In support of her claimed error, Plaintiff does not directly
refute ALJ Cutter’s analysis but, in addition to relying on her
subjective testimony, she provides numerous citations to the record
in support of the statements that she “has severe complications
with her memory and concentrating,” and “doctors have stated that
Claimant’s memory loss is progressively getting worse, which
affects her ability to concentrate.”
(Doc. 11 at 8 (citing R. 33,
278, 281, 284, 288, 289, 291, 296, 299, 302, 303, 306, 322-33).)
Several citations are outside the relevant time period which began
on February 13, 2013, and ended on December 31, 2014.
review of the cited pages indicates that most precede the relevant
time period and thus reflect Plaintiff’s condition while she was
(R. 278, 281, 284, 288, 289, 291, 302, 303, 306.)
Another citation relates to a September 2015 office visit.
In general, records
verify that Plaintiff informed her
medical providers of her memory concerns, use of an insulin pump
was deemed inappropriate due to memory lapses or loss, and
Plaintiff was assessed to have memory lapse or loss.
Plaintiff had a neurology consultation in October 2012
because of her reported memory loss, poor concentration, and
However, Plaintiff does not appear to have
followed up on the recommended testing and she did not return to
the neurologist until September 2015.
Thus, records from
the relevant time period do not support Plaintiff’s statements:
objective evidence does not show “severe complications with her
memory and concentrating” and doctors have recorded Plaintiff’s
reports of worsening memory but the record does not support the
statement that doctors have objectively stated this.
(See Doc. 11
Because Plaintiff has not shown that ALJ Cutter’s
determination regarding paragraph B requirements is not supported
by substantial evidence, she has not shown error at step three.
Therefore, the claimed step three error is not cause for reversal
B. Residual Functional Capacity
With her second claimed error, Plaintiff asserts that the
determination that Plaintiff could perform light work is error and
should be reversed.
(Doc. 11 at 12.)
assertion is without merit.
Defendant responds that the
(Doc. 14 at 19.)
The Court concludes
that Plaintiff has not shown that the claimed error is cause for
reversal or remand.
Whether a claimant is disabled is a decision reserved to the
20 C.F.R. § 404.1527(d)(1).
An ALJ is not
required to include all claimed limitations in the RFC assessment,
it is only “credibly established” limitations that must be
Rutherford, 399 F.3d at 554.
Limitations that are medically supported but
are also contradicted by other evidence in
the record may or may not be found
credible–the ALJ can choose to credit
portions of the existing evidence but “cannot
reject evidence for no reason or for the
wrong reason” (a principle repeated in Mason
v. Shalala, 994 F.2d 1058, 1066 (3d Cir.
1993); [20 C.F.R. § 416.]929(c)(4)). . . .
[L]imitations that are asserted by the
claimant but lack objective medical support
may possibly be considered nonetheless
credible. In that respect the ALJ can reject
such limitation if there is conflicting
evidence in the record, but should not reject
a claimed symptom that is related to an
impairment and is consistent with the medical
record simply because there is no objective
medical evidence to support it. ([20 C.F.R. §
399 F.3d at 554.
Here Plaintiff relies primarily on her subjective complaints
(Doc. 11 at 12-13) which the ALJ did not find entirely credible (R.
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)).
Plaintiff’s discussion of this issue suffers from shortcomings
similar to those discussed above–-conclusory statements accompanied
by citation to the record do not satisfy her burden of showing the
ALJ’s determination is not supported by substantial evidence.
Doc. 11 at 12-14.)
The ALJ concluded that the severity of
Plaintiff’s subjectively expressed limitations and those of her
husband as well as some aspects of the examining source statement
are not supported by the longitudinal evidence of record.
ALJ Cutter stated
[i]n terms of the claimant’s alleged
disabling symptoms, the objective clinical
findings do not corroborate the allegation to
the disabling extent asserted. Treatment
notes show that although the claimant
received sparse treatment for the allegedly
disabling impairments, the treatment was
routine and conservative in nature. . . .
The claimant’s main complaint of disabling
symptoms was that of memory loss, which the
undersigned finds not persuasive. There was
no diagnosis of an etiology for cognitive
deficits, such as organic disease or
dementia. Although the claimant sometimes
presents as anxious, medical records reveal
the claimant as alert, oriented, with normal
affect and expression, normal memory, normal
attention span, normal speech and volume, no
aphasia, and good insight with good fund of
knowledge (Exhibits 1F, 2F, 7F). The
claimant alleged worsening attention,
concentration and easily distracted or
overwhelmed to a neurologist, but
acknowledged that she could still function at
home with no significant difficulties
(Exhibit 7F, page 3). The neurologist’s
examination of the claimant was basically
within normal limits (Id. at 5).
The ALJ reviewed pharmacy records concerning medications
prescribed for anxiety, depression, and ADHD, finding that the
records reveal noncompliance in the form of delay refilling
prescriptions and usage patterns inconsistent with the severity of
ALJ Cutter’s RFC analysis also
included a review of Plaintiff’s activities of daily living which
he found “were not limited to the extent one would expect, given
the complaints of disabling symptoms and limitations.”
Plaintiff’s hearing presentation factored into the analysis--ALJ
Cutter observing that Plaintiff did not appear to have memory loss
during the hearing, she remembered sufficiently to recall
information necessary to answer questions and, although on a couple
of occasions she would state “‘now what was that question,’” she
always remembered the answer to every question.
As with her previous claimed error, Plaintiff does not
directly address the ALJ’s support for his RFC but, as noted above,
she primarily sets out citations which she contends are supportive
of her inability to perform light work.
(Doc. 11 at 13.)
points to the VE’s testimony that there would not be any jobs
Plaintiff could perform if she could only remain on task eighty
percent of workday because of memory complications, but Plaintiff
does not show that such a limitation was credibly established.
Therefore she has not shown that it was error not to include it in
Rutherford, 399 F.3d at 554.
Because Plaintiff has not shown that the ALJ’s RFC assessment
is not supported by substantial evidence, she has not shown that
the claimed RFC error is cause for reversal or remand.3
For the reasons discussed above, 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 21, 2017
In the Conclusion section of her supporting brief,
Plaintiff points to errors not identified as such in the body of
her brief and not discussed in the Argument section of her brief.
For example, Plaintiff takes issue with ALJ Cutter’s consideration
of Dr. Fischetto’s findings, her testimony, and her husband’s Third
Party Function Report, stating that the ALJ “did not give any
weight” to this evidence. (R. 14.) Although the Court need not
address such conclusory assertions, it is noteworthy that
Plaintiff’s assertions are not accurate–-ALJ Cutter did not find
Plaintiff entirely credible, he found her husband’s statements
entitled to little weight, and he found Dr. Fischetto’s opinion
entiteld to limited weight. (R. 45-47.) Importantly, he included
limitations related to her mental health impairments in his RFC.
(R. 44-47.) Similarly, Plaintiff’s allegation that ALJ Cutter did
not appropriately assess her credibility is not consistent with a
review of the ALJ’s explanation of his RFC assessment. (Id.)
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