Smith v. Colvin et al
MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal is properly denied. An appropriate Order is filed simultaneously with this MemorandumSigned by Honorable Richard P. Conaboy on 5/8/17. (cc)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN A. SMITH,
:CIVIL ACTION NO. 3:16-CV-2085
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 Supplemental Security
Income (“SSI”) under Title XVI.
applications for benefits in February 2013, alleging a disability
onset date of May 22, 2011.
After Plaintiff appealed the
initial denial of the claims, a hearing was held on December 11,
2014, and Administrative Law Judge (“ALJ”) Sharon Zanotto issued
her Decision on May 7, 2015, concluding that Plaintiff had not been
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
under a disability during the relevant time period.2
Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on July 12, 2016.
In doing so, the ALJ’s
decision became the decision of the Acting Commissioner.
Plaintiff filed this action on October 17, 2016.
He asserts in his supporting brief that the Acting Commissioner’s
determination should be reversed or remanded for the following
reasons: 1) the ALJ did not acknowledge and identify how she
evaluated all medically determinable impairments established by the
record; 2) the ALJ did not properly evaluate opinion evidence; and
3) the ALJ did not properly evaluate witness statements.
After careful review of the record and the parties’
filings, the Court concludes this appeal is properly denied.
Plaintiff was born on July 2, 1980, and was thirty years old
on the alleged disability onset date.
He has a high
school education and past relevant work as a wax molder.
Mental Impairment Evidence3
Plaintiff began treating with Psychiatrist Yury Yaroslavsky,
Plaintiff did not appear for the hearing. (R. 14.) In
response to the Notice to Show Cause for Failure to Appear,
Plaintiff responded that he did not have access to transportation.
(R. 14, 133.)
Plaintiff’s claimed errors relate to his mental health
impairments. (See Doc. 9 at 8-21.) Therefore, the Court focuses
on evidence related to Plaintiff’s claimed mental impairments.
M.D., at T.W. Ponessa & Associates Counseling Services, Inc., on
June 20, 2011.
The Psychiatric Evaluation shows that
Plaintiff reported a history of ADHD and behavioral problems as a
teenager, and also
sharp but relatively short periods of
depression, generally lasting for a few days
only. During this period of time, he feels
that he is not well functioning. He forced
himself to go to work but was generally late
and felt very slow during those periods of
time. . . . There is a history of one longer
episode of depression. He was admitted at
the age of 13 when he tried to cut his wrist.
. . . [H]e doesn’t remember details. . . . In
terms of depression, he admitted a history of
“hyperness,” during these periods which
lasted for only a few hours. He can’t sit
still. . . . He denied any changes in sleep,
with increased energy, euphoric mood,
increased and goal oriented activities. He
is concerned that he may have a bipolar
period. He denied any history of psychosis
or violence. . . . He described lately being
quite irritable. He just recently terminated
his job after he almost physically attacked
his boss. According to the patient, it was a
minor argument that shouldn’t have ended up
in such an outburst. The patient remembered
throwing tools around, pushing his boss, etc.
The patient described over the course of his
work with this employer for seven years that
this was the third incident with three
different people there. The patient was
given the option to be laid off, be
terminated or voluntarily resigning. He
chose to resign and is currently at home. He
continues to experience some mood swings.
Just recently, he was playing a game and got
very irritable. He threw his controller into
the wall. He denied any recent suicidal or
Dr. Yaroslavsky found that Plaintiff presented as
pleasant, cooperative and overweight.
His Mental Status
findings included the following: no significant distress; slightly
avoidant eye contact; fluent and coherent speech; minimal
psychomotor slowness and difficulty concentrating and staying on
subject; no delusions or hallucinations of any kind endorsed;
linear thought process; fair insight and judgment; alert and
oriented times three; average “fund of knowledge of intelligence”;
slightly decreased concentration; intact memory; and appropriately
dressed, well groomed and kept.
Dr. Yaroslavsky assessed
Mood Disorder, NOS, and History of Attention Deficit Hyperactivity
Disorder with Axis IV considerations identified as unemployment,
limited access to medical care, and interpersonal difficulties, and
a current GAF of 55.
He started Plaintiff on Celexa for
depressive symptoms and Depakote for mood stabilization and impulse
Plaintiff was to start individual psychotherapy
and return in four weeks for medication management.
Plaintiff saw Dr. Yaroslavsky several times over the summer.
During this period, Dr. Yaroslavsky’s Diagnosis,
including the assessed GAF, remained the same.
(R. 264, 266, 268.)
On September 6, 2011, Plaintiff described himself as doing quite
He told Dr. Yaroslavsky that he had stopped the
Depakote and felt the Celexa alone “alleviated pretty much his
Mental Status examination showed the
following: sufficient eye contact; linear thought process; fair
insight and judgment; and no behavioral problems or impulse control
Dr. Yaroslavsky also found that Plaintiff was
fluent and coherent, and he was alert and oriented times three.
Plaintiff discontinued treatment at T.W. Ponessa because he
lost funding and cancelled appointments.
recommended that he contact Lebanaon County Mental Health/Mental
Retardation/Early Intervention for services and support groups.
Plaintiff resumed treatment at T.W. Ponessa in February 2012.
Plaintiff’s diagnosis was the same as that recorded
during his 2011 visits.
He reported that he was still
somewhat depressed but felt that he was doing much better.
Mental Status findings included the following: euthymic mood;
linear thought process; no delusional thought content; no
hallucinations of any kind; no suicidal or homicidal ideations;
mood described as depressed; constricted affect; no abnormal or
involuntary movements; no impulsivity; and current irritability
Plaintiff declined the need for individual
On March 26, 2012, Plaintiff reported that he was doing well,
he was sleeping well, and his mood was stable.
Yaroslavsky noted that neither Plaintiff nor his girlfriend
complained about him being irritable.
In April, he
described himself as doing well except for multiple stressors.
Dr. Yaroslavsky also noted that Plaintiff was “overall quite
appropriate,” his mood and affect were close to euthymic but his
affect also appeared somewhat blunted, his eye contact was limited,
his thought content showed some poverty, and his insight and
judgment were limited to fair.
need for psychotherapy.
(Id.) Plaintiff again declined the
Periodically, Plaintiff presented to Dr. Yaroslavsky with
increased stress and decreased functioning (see R. 254, 256) but he
continued to decline individual psychotherapy (see R. 255, 257).
However, in October 2012, Plaintiff described himself as “doing
quite well” and said his mood was good.
In October and November 2012, Plaintiff had three visits to
Annville Family Medicine, P.C., where he was seen by George Loose,
(R. 285-86, 287-88, 289-90.)
At each visit he was reported
to be alert and oriented times three with his affect appropriate.
(R. 285, 287, 289.)
On January 14, 2013, Plaintiff had his last visit with Dr.
Yaroslavsky, who was leaving the practice.
complained about an increase of anxiety and insomnia, and he was
bothered by nightmares.
Dr. Yaroslavsky recorded the
following Mental Status: Plaintiff appeared pleasant, cooperative,
and mildly disheveled; eye contact limited; Plaintiff looked
obstinate; he described his mood as somewhat depressed; he showed
some poverty of thought content; he revealed no hallucinations or
delusions of any kind; he denied being homicidal or suicidal; his
insight and judgment were overall fair; his affect appeared
blunted; and he was oriented times three.
noted that Plaintiff declined individual psychotherapy, he was
relatively stable, and he would be seen again by another provider
in three months.
NOS, and a history of ADHD.
His diagnosis remained Mood Disorder,
At Axis IV, he noted unemployment,
limited access to medical care, and interpersonal difficulties.
Axis V, he noted a current GAF of 55.
At Plaintiff’s visit with Dr. Loose on March 27, 2013,
Plaintiff denied psychiatric symptoms.
Dr. Loose found
that Plaintiff appeared healthy and well developed, there were no
signs of acute distress, he was alert and oriented, and his facial
expression appeared appropriate and relaxed.
On May 13, 2013, Plaintiff returned to T.W. Ponessa and had
his first visit with psychiatrist Vassili V. Arkadiev, M.D.
Plaintiff reported worsening mood swings and said they
lasted up to four days, he felt his mind racing, and he felt hyper
and unable to fall asleep.
Plaintiff said he completed
high school but was in special classes for reading and math.
Dr. Arkadiev recorded the following Mental Status: fair to good
grooming; intermittent eye contact; slightly guarded; soft,
monotonous speech; poverty of thought content; good energy; alert
and oriented times three; fair long term memory; and intellect
appeared below average.
Dr. Arkadiev noted that Plaintiff
denied hopelessness or helplessness at the time; he reported that
his mood was hyper; he denied suicidal or homicidal ideations; and
he denied psychotic symptoms.
Dr. Arkadiev changed
Plaintiff’s diagnosis from Dr. Yaroslavsky’s assessed Mood
Disorder, NOS and History of ADHD (see R. 250) to “Bipolar
Disorder, NOS vs. Bipolar II Disorder” and Borderline Intellectual
At Axis IV, Dr. Arkadiev noted poor
support, severe personal difficulties, and severe mental problems.
(Id.) At Axis V, he assessed a current GAF of 50.
In June, Plaintiff reported feeling better because his
girlfriend got some money, but he also reported feeling anxious and
having concentration problems.
Mental Status was
similar to the preceding month, and Dr. Arkadiev’s Axis I diagnosis
and GAF assessment remained the same.
In August, Plaintiff reported increased stressors because his
girlfriend broke her back and he was exhausted trying to take care
Dr. Arkadiev reported that Plaintiff burst into
tears a couple of times during his appointment, he had poor eye
contact, Plaintiff reported his mood was terrible, his thought
process appeared to be “alogia, very concrete,” his affect appeared
constricted, depressed, and anxious, he admitted to low energy as
well as problems with attention and concentration, he was alert and
oriented times three, and his intellect appeared to be below
On October 8, 2013, Plaintiff reported that he felt “all
right” but his affect appeared to be constricted and anxious, and
the Mental Status was similar to that recorded in August except
that Plaintiff admitted to episodes of visual, somatic, and
auditory hallucinations which Dr. Arkadiev assessed to be pseudo
Dr. Arkadiev changed Plaintiff’s
diagnosis to Bipolar Disorder, NOS with psychotic symptoms.
Axis IV factors remained similar to those previously noted, and he
assessed Plaintiff’s current GAF to be 50-55.
Arkadiev planned to re-evaluate Plaintiff in about one month.
Plaintiff did not return to see Dr. Arkadiev until January 24,
2014, at which time he reported that he had been doing well until
he ran out of medication several days before his appointment.
Plaintiff said he was not feeling well, he had been having
trouble sleeping since he stopped his medications, and he was
having episodes of seeing shadows.
Dr. Arkadiev’s Mental
Status findings included the following: poor grooming; monotonous
speech; very concrete, slowed thought process; constricted,
anxious, and ambivalent affect; fair long term memory; fair to good
insight and judgment; and he was alert and oriented times three.
He also noted that Plaintiff denied problems with
concentration and attention; he denied anhedonia, suicidal and
homicidal ideation; he admitted to paranoid ideations; and he
denied auditory hallucinations at the moment.
planned to restart Plaintiff on his medications and see him again
in two months.
Plaintiff complained to Dr. Arkadiev in February 2014 that he
was having more hallucinations and he was still having paranoid
ideations, mostly about his roommates.
reported feeling stressed and anxious, primarily because of
conflict with his girlfriend and roommates.
findings were similar to those recorded in January.
(See R. 307,
Dr. Arkadiev adjusted Plaintiff’s medications and planned to
see him again in one month.
Plaintiff was discharged from treatment at T.W. Ponessa on
July 31, 2014.
The Discharge Summary noted that
Plaintiff was discharged because of non-compliance and he was last
seen on May 31, 2014.4
The Summary reported the following
Discharge Diagnosis: Axis I - Major Depressive Disorder, recurrent,
moderate, Anxiety Disorder, NOS, R/O Post-Traumatic Stress
Disorder, Attention-Deficit/Hyperactivity Disorder NOS; Axis IV
indicates “[n]one reported”; and Axis V indicates a current GAF of
It also stated that Plaintiff was given information
There is no record of this office visit. The last Progress
Notes from T.W. Ponessa in the record are from Plaintiff’s February
21, 2014, visit with Dr. Arkadiev. (R. 309-10.)
about contacting other providers if he was interested in further
On July 23, 2014, Plaintiff had an office visit with Dr. Loose
stating that the primary reason for his visit was that he was
dismissed from T.W. Ponessa for appointment tardiness and he needed
to get depression medication refills.
history included depression, but at the time of the visit he denied
difficulties concentrating, or frequent crying, fatigue, change in
sex pattern, stress, suicidal thoughts, or excessive worry.
Dr. Loose found Plaintiff alert and oriented times three, and found
his memory intact.
He diagnosed Bipolar Disorder NOS.
At his follow up visit with Dr. Loose in October 2014,
Plaintiff’s subjective presentation was similar.
(See R. 314,
Dr. Loose found that Plaintiff appeared healthy and well
developed, he was alert and oriented times three, and his memory
State agency consultant Mark Hite, Ed.D., completed a
Psychiatric Review Technique (“PRT) and Mental Residual Functional
Capacity Assessment for each application on April 16, 2013.
54-55, 57-59, 65-66, 67-69.)
He concluded that Plaintiff’s
medically determinable mental impairments were Organic Mental
Disorders and Affective Disorders and both were severe.
He found the following: Plaintiff had mild restrictions of
activities of daily living; he had moderate difficulties in
maintaining social functioning; he had moderate difficulties in
maintaining concentration, persistence or pace; and he had no
repeated episodes of decompensation, each of extended duration.
Dr. Hite also concluded that Plaintiff could perform simple,
routine, repetitive work in a stable environment.
(R. 59, 69.)
Other opinion evidence consists of various GAF scores assessed
by mental health providers which range from 50 to 55 throughout the
relevant time period.
(See, e.g., R. 271, 250, 300, 306, 309.)
C. Hearing Testimony
As noted above, Plaintiff did not appear at the December 11,
2014, hearing held by ALJ Zanotto and, in response to the Notice to
Show Cause for Failure to Appear, he said he did not have
(R. 14, 133.)
Plaintiff’s attorney stated that he believed Plaintiff’s
affective bipolar disorder was the primary diagnosis and treatment
records from Dr. Yaroslavsky and Dr. Arkadiev document the episodic
mental health issues that reportedly led him to lose his job when
he blew up at his manager over something minor.
Vocational Expert Michael Kibler (“VE”) testified concerning
past relevant work and availability of jobs in the national
ALJ Zanotto asked him to consider whether
Plaintiff would be able to perform his past relevant work as a wax
assuming he were able to perform the full
range of work at all exertional levels except
that he were limited to jobs that required
only occasional interaction with supervisors
and no interaction with co-workers and the
public. And by interaction, I’m talking
about where you have to work in tandem with
others rather than you, . . . pleasantries
walking in and out of the break room or in or
out of the building or into the restroom or
something like that. But no work that would
require tandem work or team work.
The VE stated that he would be able to perform his past
work as a wax molder.
He also said that other work would be
available, such as industrial cleaner, bakery racker, and table
ALJ Zanotto also recognized that one doctor had diagnosed
Plaintiff with Borderline IQ, and she asked Mr. Kibler if the
ability to do past work and the exemplary jobs would still remain
if the individual “were limited to work that could be learned
within one month in addition to the other limitations, repetitive,
short cycle tasks, and occasional decision-making; no jobs that
would require precise limits, tolerances or standards, directing,
controlling, planning activities of others or influencing people’s
attitudes, opinions and judgments.”
that all jobs would remain.
The VE responded
Plaintiff’s attorney asked the VE if the hypothetical included
that the individual threatened to physically attack a supervisor
whether that would be acceptable in the identified jobs.
The VE responded that
it would depend on how often it occurs and if
he ever follows through with it. I mean, I
think if he just had one outburst where he
threatened the supervisor, they might
overlook it. I think if it happened daily,
for sure, weekly or even every month I think
it could be an issue.
Upon further questioning by Plaintiff’s attorney, the VE
said there was the possibility that the individual could lose his
job if the outburst happened only once and were bad enough.
In her May 7, 2015, 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 December 31, 2016.
The claimant has not engaged in
substantial gainful activity since May
22, 2011, the alleged onset date (20 CFR
404.1571 et seq, and 416.971 et seq.).
The claimant has the following severe
impairment: mood 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
but with the following non-exertional
limitations: only occasional interaction
with supervisors; no interaction with
co-workers and the public; no work in
tandem with others or that would require
team work; limited to repetitive, shortcycle tasks; occasional decision-making;
no precise limits, tolerances, or
standards; no directing, controlling or
planning actions of others; and no
influencing people’s opinions, attitudes
The claimant is capable of performing
past relevant work as a wax molder,
D.O.T. #549.685-038, unskilled, SVP 2,
light exertional level (heavy exertional
level as performed by claimant). This
work does not require the performance of
work-related activities precluded by the
claimant’s residual functional capacity
(20 CFR 404.1565 and 416.965).
The claimant has not been under a
disability, as defined in the Social
Security Act, from May 22, 2011, through
the date of this decision (20 CFR
404.1520(f) and 416.920(f)).
ALJ Zanotto alternatively concluded that other jobs
existed in the national economy that Plaintiff was able to perform.
Other relevant portions of the ALJ’s 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.5
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).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
“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).
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 his past relevant work.
Alternatively, she found that jobs existed in significant numbers
in the national economy which Plaintiff could perform.
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 determination
should be reversed or remanded for the following reasons: 1) the
ALJ did not acknowledge and identify how he evaluated all medically
determinable impairments established by the record; 2) the ALJ did
not properly evaluate opinion evidence; and 3) the ALJ did not
properly evaluate witness statements.
(Doc. 9 at 7.)
Medically Determinable Impairments
Plaintiff first asserts that ALJ Zanotto did not acknowledge
and identify how she evaluated all medically determinable
impairments established by the record.
(Doc. 9 at 8.)
responds that the ALJ fully considered Plaintiff’s mental
(Doc. 10 at 13.)
The Court concludes Plaintiff has
not shown that reversal or remand in warranted on the basis
Plaintiff essentially argues that the ALJ erred at step two
because she did not specifically consider all of Plaintiff’s
diagnosed mental health impairments and that the error was not
harmless because the ALJ did not address the impairments as nonsevere, each impairment has accompanying functional limitations,
and if medically determinable impairments are not acknowledged at
step two, the impairments are then not taken into account when the
ALJ must consider all limitations from all medically determinable
impairments, both severe and non-severe, in determining the
(Doc. 9 at 8-12; Doc. 13 at 1-5.)
Plaintiff accurately states that the only mental health
impairment identified by the ALJ was mood disorder which she found
to be severe–-she did not specifically discuss any other mental
health impairment as non-severe or not medically determinable at
(See id.; R. 16-17.)
In explaining her step two
conclusion, ALJ Zanotto stated that she was “cognizant of the
substantial overlap in symptomatology between different mental
impairments, as well as the inherently subjective nature of mental
Accordingly, the undersigned found the claimant’s
mental impairments severe and considered the claimant’s
psychological symptoms and effect on functioning, regardless of the
diagnostic label attached.”
The record evidence reviewed above shows that Plaintiff was
diagnosed with several mental health impairments and that his main
mental health providers attached different diagnoses to his
reported symptoms rather than adding to the diagnosis of the
For example, Plaintiff was not diagnosed as
having bipolar disorder and mood disorder at the same time.
Rather, Dr. Yaroslavsky diagnosed mood disorder after Plaintiff
described periods of depression and periods of “hyperness” and
expressed a concern that he may have a “bipolar period” (R. 270-71)
where Dr. Arkadiev, who followed Plaintiff after Dr. Yaroslavsky
left T.W. Ponessa, diagnosed bipolar disorder at his first
encounter with Plaintiff who reported worsening mood swings (R.
Dr. Arkadiev did not add bipolar disorder to Dr.
Yaroslavsky’s mood disorder, he eliminated the mood disorder
Upon discharge from T.W. Ponessa,
Plaintiff’s diagnosis was neither mood disorder nor bipolar
disorder--Major Depressive Disorder, recurrent, moderate, Anxiety
Disorder, NOS, R/O PTSD, and Atttention-Deficit/Hyperactivity
Disorder NOS were identified.
Given this diagnostic history and ALJ Zanotto’s explanation
for her step two finding, particularly her consideration of
Plaintiff’s “psychological symptoms and their effect on
functioning, regardless of the diagnostic label attached” (R. 17),
the Court cannot conclude that the claimed error is cause for
reversal or remand even if the ALJ did not comply with all
technical aspects of step two determinations.
disability inquiry focuses on the functional limitations associated
with an impairment, the label attached to an impairment becomes
secondary to consideration of the established limitations.
Garcia v. Comm’r of Soc. Sec., 587 F. App’x 367, 370 (9th Cir. 2014)
(citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)); Walker
v. Barnhart, 172 F. App’x 423, 426 (3d Cir. 2006) (not
precedential) (“Mere presence of a disease or impairment is not
enough[;] a claimant must show that his disease or impairment
caused functional limitations that precluded him from engaging in
any substantial gainful activity.”); Burnside v. Colvin, Civ. A.
No. 3:13-CV-2554, 2015 WL 268791, at *13 (M.D. Pa. Jan. 21, 2015);
Lambert v. Astrue, Civ. A. No. 08-657, 2009 WL 425603, at *13 (W.D.
Pa. Feb. 19, 2009).
Therefore, an error may be deemed harmless
where the ALJ considered the established functional limitations
when the inquiry proceeded beyond step two.
See Salles v. Comm’r
of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (not
precedential) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d
In general terms, “[a]n error is ‘harmless’ when, despite the
technical correctness of an appellant’s legal contention, there is
also ‘no set of facts’ upon which the appellant could recover.”
Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (quoting
Rencheski v. Williams, 622 F.3d 315, 341 (3d Cir. 2010)).
“burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination”
556 U.S. 396, 409 (2009) (citations omitted).
Shineski v. Sanders,
exceptions and qualifications not applicable here.
Plaintiff alleges harm because the ALJ did not discuss all
diagnosed mental impairments as either severe or non-severe and,
having not discussed them at all, the harmless error principle does
(Doc. 13 at 4-5.)
Plaintiff does not develop an
argument that the ALJ’s claimed step two error is per se harmful,
and the Court does not find merit in her conclusory assertion.
Though harmless error is most often discussed in terms of
impairments the ALJ considered non-severe at step two, the
principle noted in Salles is not necessarily inapplicable here: if
the established functional limitations associated with the
impairment are accounted for in the RFC, the error may be deemed
See 229 F. App’x at 145 n.2.
Because the ALJ
specifically noted that she considered all psychological symptoms
and effects on functioning regardless of the diagnostic label
attached (R. 17), further consideration is warranted to determine
whether Plaintiff has shown actual harm.
Plaintiff asserts the claimed error is harmful because each
impairment “affects a person differently and causes distinct
(Doc. 9 at 9 (citing Diagnostic and Statistical
Manual of Mental Disorders 123-32, 217-21 (5th ed. 2013)).)
this may be true in the abstract, Plaintiff must show specific harm
in this case on the basis alleged.
In other words, because
Plaintiff alleges that each impairment causes distinct
difficulties, he must show how an impairment not discussed affected
him differently than what was discussed by the ALJ.
especially true given Plaintiff’s diagnostic history, particularly
the change in diagnosis rather than additional diagnosis assigned
by Dr. Arkadiev and the T.W. Ponessa discharge diagnosis which is
almost completely different from that diagnosed by either provider
and is not accompanied by explanation.
(See, e.g., R. 250, 298,
Plaintiff next alleges that the claimed error is harmful
because it affected subsequent steps of the evaluation process,
asserting “the ALJ cannot appreciate limitations a condition causes
if the ALJ does not recognize the condition exists.”
(Doc. 9 at
Plaintiff first points to alleged record support for “extreme
irritability, difficulty sleeping, difficulty controlling his
temper, mood swings, and anxiety.”
He then notes that “as a
result, he had difficulty getting along with others and had lost
his job by physically threatening his boss over a minor incident.”
(Id. (citing R. 186-96, 197-207, 270).)
Plaintiff also states the
record shows he had “difficulty with math, reading and writing,
concentrating, understanding, and had subaverage intellect and
limited thought processes.”
(Id. (citing R. 226-28, 245-72, 298-
Plaintiff does not provide record citation for the claimed
“extreme irritability, difficulty sleeping, difficulty controlling
his temper, mood swings, and anxiety.”
(See Doc. 9 at 11.)
review of evidence set out above shows that records from mental
health providers contain documentation of these alleged symptoms.
However, the record does not show that they are unique to a
diagnosis not specifically discussed by the ALJ.
irritability, difficulty sleeping, difficulty controlling his
temper, mood swings, and anxiety were all symptoms alleged by
Plaintiff and recorded by Dr. Yaroslavasky, the psychiatrist who
diagnosed Mood Disorder, the impairment specifically found and
discussed by the ALJ.
(See, e.g., R. 250, 266, 268, 270.)
these symptoms were associated with the impairment specifically
found severe, Plaintiff has not shown that the ALJ’s failure to
address other mental impairments by name at step two affected later
steps in the sequential evaluation process.
claim that these symptoms resulted in Plaintiff’s difficulty
getting along with others and losing his job (Doc. 9 at 11) does
nothing to support his claimed error because the job loss took
place before Plaintiff’s treatment by Dr. Yaroslavsky and
relationship difficulties also preceded any change in diagnosis.
(See, e.g., R. 264, 270.)
Therefore, Plaintiff has not shown how
later-recorded diagnoses would have warranted different
consideration of the identified symptoms/functional limitations.
Finally, because Plaintiff’s RFC is consistent with an individual
with a Borderline IQ diagnosis (R. 40), Plaintiff has not shown
error in the ALJ’s failure to specifically discuss Dr. Arkadiev’s
diagnosis of Borderline Intellectual Functioning (R. 298)--a
diagnosis not identified by Dr. Yaraslovsky (see, e.g., R. 250,
270) or noted on the T.w. Ponessa Discharge Summary (R. 311).
Plaintiff’s failure to identify functional limitations not
associated with Dr. Yaroslavsky’s Mood Disorder diagnosis and/or
considered by the ALJ in assessing Plaintiff’s RFC also undermines
his assertions of error relating the claimed step two deficiency
with the ALJ’s step three analysis and credibility determination
(Doc. 9 at 12).
In the absence of specific claimed errors and
arguments that Plaintiff met or medically equaled a listing or that
the ALJ’s credibility determination was not supported by
substantial evidence, the Court agrees with Defendant that further
consideration of these issues is not warranted.
(See Doc. 10 at 16
nn. 4, 5.)
Plaintiff contends the ALJ erred because she relied on opinion
evidence which did not support her findings, i.e., the opinion of
Dr. Hite, the State agency psychological reviewer.
(Doc. 9 at 13.)
Defendant responds that substantial evidence supports the weight
afforded the medical opinions of record.
(Doc. 10 at 16.)
Court concludes Plaintiff has not shown the claimed error is cause
for reversal or remand.
Plaintiff first asserts the ALJ erred by rejecting the GAF
scores assessed by Dr. Yaroslavsky and Dr. Arkadiev “indicating
serious symptoms and likely precluded full time work activity and
relying on speculative opinions made after review of an incomplete
(Doc. 9 at 13-14.)
Seeing a conflict between Dr. Hite’s
opinion and the treating specialists’ assessments, Plaintiff
alleges that the ALJ failed to resolve the conflict and the State
agency opinion, as one piece of evidence, was not sufficient to
reject “overwhelming evidence to the contrary.”
(Doc. 9 at 14-15.)
Plaintiff’s basic assertion and related arguments are flawed
for several reasons.
First, he has not shown that the ALJ erred by
rejecting the GAF scores assessed by Dr. Yaroslavsky and Dr.
Arkadiev (Doc. 9 at 13).
Second, he has not shown that the ALJ
relied only on “speculative opinions made after review of an
incomplete record,” i.e, Dr. Hite’s opinion (id. at 13-14).
he has not shown that treating providers contradicted Dr. Hite’s
opinion and provided “overwhelming evidence to the contrary” (id.
Fourth, he has not shown that the ALJ incorrectly accorded
some weight to Dr. Hite’s opinion (id. at 15; Doc. 13 at 8-9).
A review of current thinking on the importance and use of GAF
scores is appropriate here.
A GAF score was traditionally used by
“mental health clinicians and doctors to rate the social,
occupational, and psychological functioning of adults.”
Irizarry v. Barnhart, 233 F. App’x 189, 190 n.1 (3d Cir. 2007).
The GAF scale ranges from 1 to 100, with a score of 1 being the
lowest and 100 being the highest.6
See Debaise v. Astrue, No. 09-
0591, 2010 WL 597488, at *5 n.7 (W.D. Pa. Feb. 16, 2010); see also
Diagnostic and Statistical Manual of Mental Disorders, 32–34 (4th
ed. text rev. 2000) (“DSM–IV”).
In this case, moderate limitations
A GAF score of 21–30 represents behavior considerably
influenced by delusions or hallucinations or serious impairment in
communication or judgment or inability to function in almost all
areas. DSM–IV at 34. A GAF score of 31–40 represents some
impairment in reality testing or communication or major impairment
in several areas, such as work or school, family relations,
judgment, thinking or mood. Id. A GAF score of 41–50 indicates
serious symptoms or any serious impairment in social, occupational,
or school functioning. Id. A GAF score of 51-60 represents
moderate symptoms or any moderate difficulty in social,
occupational, or school functioning. Id. A GAF score of 61–70
represents some mild symptoms or some difficulty in social,
occupational, or school functioning, but generally functioning
pretty well with some meaningful interpersonal relationships. Id.
A GAF score of 71–80 represents transient symptoms, if present, and
expectable reactions to psychosocial stressors or no more than
slight impairment in social, occupational, or school functioning.
represented by GAF scores of 51-60 and serious limitations
represented by GAF scores of 41-50 are relevant.
Pursuant to Social Security Administration rules, a claimant's
GAF score is not considered to have a “direct correlation to the
Watson v. Astrue, Civ. A. No. 08-1858,
2009 WL 678717, at *5 (Mar. 13,
2009) (citing 66 Fed. Reg. 50746,
While the significance and use of GAF scores has
been debated since the GAF scale was eliminated from the Diagnostic
and Statistical Manual of Mental Disorders, an ALJ is not precluded
from considering GAF scores as evidence.
As explained in Forster
v. Colvin, Civ. A. No. 3:13-CV-2699, 2015 WL 1608741 (M.D. Pa. Apr.
“[d]ue to concerns about subjectivity in
application and a lack of clarity in the
symptoms to be analyzed, the [American
Psychiatric Association] abandoned the GAF
score in its recently published fifth edition
of the Diagnostic and Statistical Manual [of
Mental Disorders] (“DSM–5”).” Solock ex rel.
F.A.R.P v. Astrue, No. 1:12-CV-1118, 2014 WL
2738632, at *6 (M.D. Pa. June 17, 2014)
(citing Am. Psychiatric Assoc., Diagnostic
and Statistical Manual of Mental Disorders
5d, 16 (2013)). “It was recommended that the
GAF be dropped from DSM–5 for several
reasons, including its conceptual lack of
clarity ... and questionable psychometrics in
routine practice.” See Am. Psychiatric Ass'n,
Diagnostic and Stat. Manual of Mental
Disorders, DSM–516 (5th ed. 2013). In
response, the Social Security Administration
now allows ALJs to use GAF ratings as opinion
evidence when assessing disability claims
involving mental disorders; however, a “GAF
score is never dispositive of impairment
severity,” and thus an ALJ should not “give
controlling weight to a GAF from a treating
source unless it is well supported and not
inconsistent with other evidence.” SSA
AM–13066 at 5 (July 13, 2013).
2015 WL 1608741 at 9 n.2.
The Third Circuit Court of Appeals
concluded an ALJ’s failure to discuss two GAF scores of 50 did not
warrant remand in Rios v. Commissioner of Social Security, 444 F.
App’x 532, 535 (3d Cir. 2011) (not precedential), but the Circuit
Court distinguished the situation from cases where the failure to
discuss relevant GAF scores was deemed error because an ALJ is not
permitted to “cherry pick” GAF scores in support of his decision or
ignore medical evidence that runs counter to his finding.
444 F. App’x at 535 (citing Dougherty v. Barnhart, No. 05-5383,
2006 WL 2433792, at *10 n.4 (E.D. Pa. Aug. 21, 2006) (citations
Under the relevant legal framework, an ALJ has great latitude
in how GAF scores are considered.
Thus, harmful error on the basis
alleged is rare unless an ALJ cherry picks scores and relies on
those supporting a finding of no disability.
App’x at 535.
See Rios, 444 F.
Here ALJ Zanotto did not cherry pick GAF scores, she
referenced the range of scores found by treating providers and
explained why she did not find them more probative than treatment
Specifically, she noted that Plaintiff’s GAF
scores of 50-55 were indicative of serious to moderate symptoms,
stated why GAF scores are of limited evidentiary value, and found
that treatment records show more because they demonstrate
Plaintiff’s improvement and effective response to medication.
This consideration is consistent with the guidance provided
by the Social Security Administration and relevant caselaw.7
Plaintiff has not shown that the ALJ’s erred in reliance on
treatment records rather than GAF scores in that he has not shown
error in her assessment that Plaintiff showed improvement and
effective response to medication (R. 20-21).
The evidence reviewed
in the Background section above shows that Plaintiff at times
needed medication adjustments and experienced exacerbation of
As a factual matter, though Plaintiff states that he had
GAF scores “primarily of 50,” the record shows that he was assessed
with a GAF score of 50 at five visits with a treating provider (R.
298, 300, 302, 307, 309) and a GAF score of 55 at eleven visits (R.
250, 252, 254, 256, 258, 260, 262, 264, 266, 268, 271). At a
Psychiatric Evaluation on October 8, 2013, Dr. Arkadiev assessed
Plaintiff’s current GAF to be 50-55. (R. 305.) The lower GAF
scores were first assessed when Dr. Arkadiev began to treat
Plaintiff in May 2013 (R. 298) and by October 8, 2013, he assessed
a GAF of 50-55. At the October visit, Plaintiff reported that his
sleeping was good, he denied significant mood swings, and he
thought his medications were helping him. (R. 304.) Though
Plaintiff was to return to see Dr. Arkadiev in one month, he did
not return for over three months–-on January 24, 2014, he reported
that he was “doing well until he ran out of medication.” (R. 307.)
At the January and February 2014 visits, Plaintiff’s GAF was again
assessed to be 50. (R. 307, 309.) The February Progress Notes are
the last of record from T.W. Ponessa.
This review of GAF-related record evidence shows that
Plaintiff was assessed to have moderate symptoms more than serious
symptoms and Plaintiff’s assertion that the assessments of Dr.
Yaroslavsky and Dr. Arkadiev “included GAF scores primarily of 50"
(Doc. 9 at 13) is inaccurate. Because Plaintiff was more often
assessed to have moderate symptoms, his statement that his GAF
scores “likely precluded any full time work activity” (id.) is also
symptoms when not taking his medication or when he had additional
stress in his personal life.
(See, e.g., R. 302, 307, 309.)
However, both treating psychiatrists recorded improvement with
medication compliance and Plaintiff himself noted that he was doing
well when he took his medications.8
(See R. 260, 264, 304, 307.)
Thus, Plaintiff has not shown that the ALJ erred in her observation
regarding improvement and effective response to medication.
Plaintiff’s statements that the ALJ relied only on
“speculative opinions made after review of an incomplete record,”
i.e, Dr. Hite’s opinion, and that Dr. Hite’s opinion alone “does
not provide substantial evidence to find that the claimant is not
disabled” (Doc. 9 at 14 (citing Morales, 225 F.3d at 317)) do not
support his claim of error regarding the ALJ’s assessment of opinon
The foregoing discussion and a review of the Decision
show that ALJ Zanotto relied on more than the State agency doctor’s
The Court’s conclusion that the ALJ did not err in her
consideration of GAF scores and her finding that records
demonstrate that Plaintiff showed improvement and effective
response to medication is bolstered by records she did not
specifically discuss, i.e., Plaintiff’s treatment for his mental
health problems after he was discharged from T.W. Ponessa. (See R.
315-317.) As set out in the Background section of this Memorandum,
Plaintiff visited Dr. Loose in July 2014 stating that he had been
dismissed from T.W. Ponessa for appointment tardiness and needed
“depression meds.” (R. 316.) Plaintiff said he had a history of
depression and needed medications but denied associated difficulty
concentrating, frequent crying, change in sex pattern, stress,
suicidal thoughts, and excessive worry. (Id.) He reported the
same in October 2014, and, at both visits, Dr. Loose found
Plaintiff to be alert and oriented times three, with intact memory.
(R. 315, 317.)
opinion to find that Plaintiff was not disabled.
evidence of record and relied on treatment notes and activities of
daily living as well as Dr. Hite’s opinion in assessing Plaintiff’s
She concluded, after consultation with a
Vocational Expert, that Plaintiff had the RFC for a full range of
work at all exertional levels with certain non-exertional
limitations, some of which are consistent with Dr. Hite’s findings
and others which related to his claimed limited intellectual
(R. 18, 39-40, 57-59, 67-69.)
This RFC formed the
basis for the determination at step four that Plaintiff was able to
perform past relevant work as a wax molder or alternatively, at
step five, that he could perform other jobs available in
significant numbers in the national economy.
contrary to Plaintiff’s contention, ALJ Zanotto relied on far more
than the State agency non-examining opinion to determine that
Plaintiff was not disabled.
Though Plaintiff continually asserts that the mental health
professionals believed he was unable to work (see, e.g., Doc. 9 at
14, 15), this is an averment not supported by the record.
Court’s previous review of GAF score considerations shows that GAF
scores alone are not dispositive and, to the extent they would be
considered here, they weigh more in favor of moderate symptoms.
See supra n.7. Furthermore, the record shows that neither treating
psychiatrist opined that Plaintiff was unable to work.
correctly notes that neither Dr. Yaroslavsky nor Dr. Arkadiev
“provided an opinion restricting Plaintiff’s ability to work or
opined as to any mental functional limitations for Plaintiff.”9
(Doc. 10 at 18.)
Therefore, Plaintiff has not shown that treating
mental health professionals contradicted Dr. Hite’s opinion.
Although the Court has concluded that ALJ Zanotto relied on
more than Dr. Hite’s opinion in assessing Plaintiff’s RFC and
ultimately determining that Plaintiff was not disabled, Plaintiff’s
argument in his reply brief that the ALJ’s decision is not
supported by substantial evidence because Dr. Hite did not review
Dr. Arkadiev’s treatment notes and psychiatric evaluation (Doc. 13
at 6) warrants some discussion in that Plaintiff infers that the
ALJ should have accorded the opinion no weight.
This inference is
not supported by fact or law.
Plaintiff recognizes that there is no inherent problem in
crediting a State agency opinion which has not taken into
consideration all evidence of record--a problem only arises when
records not considered show that the claimant’s condition
(Id. at 8 (citing Chandler v. Comm’r
of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)).)
Though not discussed by the ALJ, Dr. Yaroslavsky’s
diagnoses consistently included “unemployment” at Axis IV. (R.
250, 252, 254, 256, 258, 260, 262, 264, 266, 268, 271.) Axis IV
identifies psychosocial and environmental problems,
www.psyweb.com/DSM_IV/jsp/Axis_IV.jsp. To the extent Dr.
Yaroslavsky believed unemployment to be a problem, no inference can
be drawn that he did not consider Plaintiff capable of working.
specifically points to Dr. Hite’s findings that Plaintiff was not
suffering from delusions or hallucinations and that his insight and
judgment were fair (Doc. 13 at 8 (citing R. 55) as evidence of a
significantly changed condition.
Dr. Hite’s PRT explained that Dr. Yaroslavsky reported in his
records that Plaintiff did not have delusions or hallucinations and
his judgment and insight were fair.
After having seen
Plaintiff three times beginning in May 2013, Dr. Arkadiev notes for
the first time in October 2013 that Plaintiff subjectively “admits
to visual hallucinations or probably pseudo hallucinations” and
under “Mental Status,” he again reported that Plaintiff “admits” to
hallucinations “but not at this moment” and he found Plaintiff’s
insight and judgment to be limited.
months later, Plaintiff reported that he had been doing well until
he ran out of medication, he denied auditory hallucinations, and he
reported episodes of seeing shadows but not as frequent as before.
Dr. Arkadiev found Plaintiff’s judgment and insight to
be fair to good.
(Id.) The following month Plaintiff reported more
hallucinations and his insight and judgment were assessed to be
fair to limited.
Because Plaintiff reported hallucinations for the first time
to Dr. Arkadiev, records from the three office visits cited show
some change in Plaintiff’s reported condition in that he had not
admitted hallucinations to Dr. Yaroslavsky.
(See, e.g., R. 250.)
However, the short-term admission to hallucinations interspersed
with Plaintiff’s report during his hiatus from treatment that he
was doing well until he ran out of medication and followed by his
discharge from treatment for non-compliance (R. 307, 311) cannot be
deemed evidence that Plaintiff’s condition “changed significantly”
after Dr. Hite rendered his opinion.
See supra n.8.
Regarding insight and judgment, a comparison of the objective
assessments of Dr. Yaroslavsky and Dr. Arkadiev do not show the
Dr. Yaroslavsky occasionally assessed
Plaintiff’s insight and judgment to be fair to limited (R. 254,
256, 258) and Dr. Arkadiev on occasion found Plaintiff’s insight
and judgment to be in this range as well as finding them to be fair
to good on another occasion.
(R. 307, 309.)
between the providers’ insight and judgment findings do not show a
significant change in Plaintiff’s condition.
More generally, as discussed above, the record shows
intermittent deterioration in Plaintiff’s condition but it also
contains evidence supporting the ALJ’s assessment that Plaintiff’s
condition improved and he responded to treatment.
Plaintiff has not shown that his condition deteriorated
significantly, he has not provided a basis for the Court to
conclude that the ALJ improperly assigned weight to Dr. Hite’s
In his reply brief, Plaintiff asserts for the first time that
the ALJ’s discussion of Dr. Arkadiev’s treatment records is
deficient because she did not discuss certain observations made by
Dr. Arkadiev and these observations should have been given
(Doc. 13 at 5-8.)
To the extent this is a new
argument raised in a reply brief, it does not warrant
See, e.g., Tursky v. Colvin, Civ. No. 14-03241,
2015 WL 4064707, at *33 (D.N.J. July 2, 2015) (citing United States
v. Boggi, 74 F.3d 470, 478 (3d Cir. 1996); Int’l Raw Materials,
Ltd. v. Stauffer v. Chem Co., 978 F.3d 1318, 1327 n.11 (3d Cir.
1992); Stern v. Halligan, 158 F>3d 729, 731 n.3 (3d Cir. 1990);
Balias v. Tedesco, 41 F. Supp. 2d 531, 533 n.3 (D.N.J. 1999)).10
Plaintiff asserts that the ALJ did not properly evaluate a
witness statement from Plaintiff’s mother, Doris Ramsey.
at 16 (citing R. 186-96).)
weighed this evidence.
Defendant maintains the ALJ properly
(Doc. 10 at 21.)
The Court concludes
Plaintiff has not shown that the claimed error is cause for remand
To the extent the ALJ did not discuss Dr. Arkadiev’s
observations cited by Plaintiff (Doc. 13 at 7), Plaintiff has not
shown that she “does not address the majority of findings from Dr.
Arkadiev, choosing, instead, to discuss only the limited notes that
support the ALJ’s decision” (Doc. 13 at 8). The ALJ specifically
noted treating providers’ findings of poor eye contact, constricted
affect, complaints of auditory hallucinations, soft speech,
impaired sleeping, and low energy–-findings that do not necessarily
support her decision. Furthrmore, as discussed in the text, the
ALJ incorporated into the RFC nonexertional limitations related to
Dr. Arkadiev’s mental functioning observations.
Although, as noted by Defendant, the regulations and Social
Security Rulings speak in permissive terms regarding consideration
of evidence from non-medical sources (Doc. 10 at 22 (citing 20
C.F.R. §§ 404.1513, 416.913; SSR 96-7p, 1996 WL 374186, at *8)),
the Third Circuit Court of Appeals requires an ALJ to consider and
weigh all of the non-medical evidence before her, Burnett, 220 F.3d
at 122 (citation omitted).
ALJ Zanotto considered Ms. Ramsey’s Function Report and stated
the claimant’s mother wrote that the claimant
was bipolar and became upset easily, and the
claimant’s impairments affected hearing,
seeing, memory, completing tasks,
concentration, understanding, following
instructions, and getting along with others.
([R. 186-96].) Such statements are not from
accepted medical experts under Social
Security regulations, but are lay opinions
and observations of a claimant’s functioning
that the undersigned considered (SSR-06-03p).
The undersigned gives little weight to this
exhibit as it consists of casual observation,
rather than objective medical testing.
Ultimately, they are unpersuasive for the
same reasons that claimant’s own allegations
do not fully persuade the undersigned,
observing that they lack substantial support
from objective findings in the record.
However, the undersigned notes that the
claimant’s mother also observed activities of
daily living, as described above, that were
not limited to the extent one would expect,
given the complaints of disabling symptoms
and limitations, as the claimant performed
adequate activities of daily living and
socialized and interacted appropriately.
Plaintiff states the ALJ “accorded the statements limited
weight because ‘it consists of casual observation, rather than
objective medical testing’ (R. 21).
That was the only rationale
the ALJ provided for rejecting the statements.
The ALJ committed
(Doc. 9 at 16-17 (citing Seese v. Astrue, 4:10-cv-
02169 (M.D. Pa. Dec. 13, 2011) (ALJ cannot reject witness statement
due to close relationship with claimant).)
The Decision excerpt quoted above clearly shows that ALJ
Zanotto provided several reasons for assigning little weight to Ms.
Thus, Plaintiff has not shown that the ALJ ran
afoul of the requirements concerning such statements.
For the reasons discussed above, Plaintiff’s appeal is
An appropriate Order is filed simultaneously with
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: May 8, 2017
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