Fleetwood v. Berryhill

Filing 11

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes Plaintiffs appeal of the Acting Commissioners decision is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 6/1/18. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL ROBERT FLEETWOOD,

:
:CIVIL ACTION NO. 3:17-CV-1796
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the Acting
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”).

(Doc. 1.)

Plaintiff protectively filed an application on February 19, 2014,
alleging disability beginning on February 9, 2014.

(R. 18.)

After

Plaintiff appealed the initial April 22, 2014, denial of the
claims, a hearing was held by Administrative Law Judge (“ALJ”)
Sharon Zanotto on April 19, 2016.

(Id.)

ALJ Zanotto issued her

Decision on May 24, 2016, concluding that Plaintiff had not been
under a disability, as defined in the Social Security Act (“Act”)
from February 9, 2014, through the date of the Decision.

(R. 27.)

Plaintiff requested review of the ALJ’s decision which the Appeals
Council denied on August 2, 2017.

(R. 1-7.)

In doing so, the

ALJ’s decision became the decision of the Acting Commissioner.

(R.

1.)
Plaintiff filed this action on October 4, 2017.

(Doc. 1.)

He

asserts in his supporting brief that the Acting Commissioner’s
determination should be reversed for the following reasons: 1) the
ALJ erred at step three in finding Plaintiff did not meet listing
12.04 and 12.06; 2) the ALJ erred in concluding that Plantiff has
the residual functional capacity (“RFC”) to perform light-duty
work; and 3) the ALJ erred when she concluded that other work
existed in the national economy which Plaintiff could perform.
(Doc. 9 at 4.)

For the reasons discussed below, the Court

concludes Plaintiff’s appeal is properly denied.
I. Background
Plaintiff was born on September 16, 1980, and was thirty-three
years old on the alleged disability onset date.

(R. 26.)

He has a

high school education and past relevant work as a merchandise
deliverer, laborer, lubrication technician, auto parts counter
person, and kitchen helper.

(Id.)

Plaintiff alleged that his

inability to work was limited by major depression, anxiety
disorder, ADHD (predominantly inattentive type), and OCD.

(R.

172.)
A.

Medical Evidence
In his supporting brief (Doc. 9), Plaintiff does not provide a

factual background with citation to medical evidence of record.
Rather, he provides citation to the record in the Argument section
of his brief.

(Doc. 11 at 2-4.)

Defendant adopts the facts set

out in the hearing decision and those stated in Defendant’s

2

Argument context.

(Doc. 10 at 4.)

Thus, the Court will provide a

general background derived from the record as relevant to the
parties’ arguments and ALJ’s Decision.
Plaintiff testified that he became disabled on the alleged
onset date of February 9, 2014, because he was hospitalized.
24.)

(R.

Hospital records show Plaintiff’s girlfriend and sister

sought involuntary inpatient psychiatric hospitalization on the
alleged onset date.

(Id. (citing R. 350-54).)

Plaintiff threatened his child.

They alleged

(Id.) Involuntary hospitalization

was denied because there were no identifiable features requiring
inpatient hospitalization.

(Id.)

Two weeks later, Plaintiff presented to Wellspan Behavioral
Health where he had been going for medication management.
(citing R. 328-41).)

(Id.

At the February 27, 2014, visit, with Todd

Muneses, M.D., Plaintiff did not mention the February 9th hospital
visit.

Having previously been seen on January 28, 2014 (R. 334),

Plaintiff reported that the increase in Wellbutrin had helped with
energy and motivation and his outlook was slightly better though he
continued to struggle with getting his days going.

(R. 332.)

Other than a depressed and anxious mood, Plaintiff’s physical and
mental status examination was normal.

(Id.)

Plaintiff was

directed to increase Wellbutrin SR to 150 milligrams twice a day.
(Id.)
At his March 11, 2014, Wellspan visit, Plaintiff reported

3

improvement with the Wellbutrin increase, stating that he felt
calmer and more patient.

(R. 330.)

He also reported that he

noticed improved energy and motivation, he was doing more
activities of daily living and chores around the house, and he was
eating and sleeping well.

(Id.)

Plaintiff denied any medication

side effects or new medical problems.

(Id.)

At his July 18, 2014, visit with Dr. Muneses, Plaintiff
reported worsening symptoms Plaintiff noted that a therapist had
recommended DBT treatment.

(R. 373.)

Plaintiff also said he would

like to go back to work and was welcome by his employer, but he
felt that his symptoms were continuing to interfere with his
ability to work.

(Id.)

Other than depressed mood and distracted

attention span, mental status exam was normal.

(R. 374.)

Dr.

Muneses noted that Plaintiff was to return in two months to see a
nurse for medication management and Dr. Muneses would see him in
four months.

(Id.)

In September 2014, Plaintiff reported no change in symptoms,
he was having good days and bad days, he continued to want to try
DBT but his appointment had been bumped, and he was working at
Sam’s Club.

(R. 370.)

Although Plaintiff also noted worsening

anxiety symptoms, he reported his attention symptoms were overall
improved, his energy was improved, and he was functioning ok at his
job.

(R. 371.)

The provider recorded that Plaintiff was “not yet

at baseline and does feel the current treatment is helping

4

somewhat.

Depression and anxiety remain a problem, but he is ‘more

functional than I’ve been in a long time.’

He is active with usual

interests and functioning and further intervention is necessary to
address his anxiety, he believes.”

(Id.)

Plaintiff was seen for an acute visit on December 19, 2014, at
which time he reported that his symptoms had worsened.

(R. 368.)

Other than depressed mood, his mental status exam was normal.

(R.

367.)
In February 2015, Dr. Muneses noted that he had last seen
Plaintiff over the summer.

(R. 366.)

Dr. Muneses recorded that

Plaintiff stated his depression was significant in December but
then he started a DBT program which resulted in significant
improvement in his mood and outlook.

(Id.)

Dr. Muneses noted that

Plaintiff felt that the DBT program had helped him deal with
stressors in a much healthier way, he continued to feel the benefit
of Adderall for his ADD, he had been able to reduce his need for
Alprazalom for anxiety or panic symptoms, and he had been eating
and sleeping better.

(R. 366.)

normal, including euthymic mood.

Plaintiff’s mental status exam was
(R. 366-67.)

Plaintiff was to

return for a medication management appointment in four months.

(R.

366.)
On April 24, 2015, Plaintiff was seen earlier than his
scheduled appointment due to worsening depression and anxiety and
an increase in irritability and agitation.

5

(R. 362.)

He reported

that he felt a significant reduction in energy and motivation and
he had been isolating himself in bed.

(Id.)

Plaintiff’s mood was

recorded to be depressed, anxious, and irritable, and the mental
status exam was otherwise normal.

(Id.)

Dr. Muneses adjusted

Plaintiff’s medication regimen and directed him to return in a
month for his medication appointment.

(R. 362.)

In May 2015, Plaintiff reported some benefit from the change
in medication and denied side effects.

(R 359.)

He also reported

that he had done fairly well over the preceding month with the
exception of a brief four-day period of increased depression.
(Id.)

Plaintiff said he was looking forward to an evaluation by

vocational rehabilitation services “in order to possibly land a job
or go back to school.”

(Id.)

Other than a depressed and anxious

mood, Plaintiff’ mental status exam was normal.

(R. 360.)

In July Plaintiff reported that his depression had worsened,
he had panic attacks that occurred about twice a week with a twohour duration, and he continued with stressors including problems
with an ex-girlfriend and child custody.

(R. 356.)

Plaintiff said

that he had met with vocational rehabilitation services but he told
them that he was “not dependable in that if his depression symptoms
are severe he would not show up for work.”

(R. 356.)

In August 2015, Plaintiff continued to report feeling
depressed and anxious with no motivation and extremely low energy
level.

(R. 353.)

Plaintiff reported that he had gotten calls from

6

two prior employers who wanted him to come back to work.
Mental status exam was normal, including euthymic mood.

(Id.)
(Id.)

Plaintiff was to return for medication management in six weeks.
(R. 352.)
A Wellspan Health record certification form dated January 18,
2016, completed in response to an attorney’s request for records
from October 7, 2015, to the present indicates that no records
existed for Plaintiff for that time period.

(R. 377.)

Plaintiff was seen by Brian J. Taylor, M.D., of Spring Valley
Medicine, on January 19, 2016.

(R. 379.)

Dr. Taylor recorded that

Plaintiff’s blood pressure was high and his triglycerides were
extremely high which worried Plaintiff.

(Id.)

Dr. Taylor noted

that Plaintiff’s “anxiety . . . is obviously very high right now.”
(R. 379.)

Plaintiff reported that he was so anxious that he

thought his depression was worsening.

(R. 380.)

Plaintiff was to

let his psychiatrist know about medication changes and return in
one month for lab and progress checks.

(R. 379.)

Wellspan BH notes dated February 4, 2016, indicate an
adjustment in Plaintiff’s medication regimen.

(R. 433.)

At his February 26, 2016, office visit with Dr. Taylor,
Plaintiff reported that he was doing much better and was very happy
with the changes his psychiatrist had made to his medication
regimen.

(R. 442.)

Dr. Taylor noted that Plaintiff had “some

definite issues with his anxiety over the last couple months” and

7

medication changes had helped.

(R. 443.)

On physical exam, Dr.

Taylor noted that Plaintiff was alert and in no acute distress.
B.

Opinion Evidence

1.

Neuropsychosocial Evaluation
On February 23, 2013, Daniel Aikins, Psy.D., conducted a

Neuropsychosocial Evaluation on referral of the York Pennsylvania
Office of Vocational Rehabilitation (OVR).

(R. 274-84.)

Plaintiff’s mental impairment symptoms were reviewed and Dr. Aikin
noted that Plaintiff evidenced severe depression, “crying mark[ed]
his behavior,” and “[a]nhedonia, agitation, irritability,
indecisiveness, and fatigue all mark Michael’s existence these
days.”
(Id.)

(R.

285.)

Plaintiff also endorsed anxiety symptoms.

Dr. Aikin questioned whether there may have been an over-

endorsement of symptoms which was possibly a “cry for help.”

(Id.)

His diagnosis included Depressive Disorder NOS, Anxiety Disorder
NOS (possibly generalized anxiety disorder), and Cognitive Disorder
NOS (memory problems, non-verbal deficits).
assessed a GAF of 55.

(Id.)

(R. 287.)

Dr. Aikin

He also provided job recommendations

including that Plaintiff should avoid jobs that were fast-paced and
those that required attention to detail or multi-tasking.

(R.

288.)
2.

State Agency Consultant
John Gavazzi, Psy.D., a State agency reviewing consultant,

completed a Psychiatric Review Technique (“PRT”) and Mental
8

Residual Functional Capacity Assessment on April 16, 2014.
69.)

(R. 66-

After concluding that Plaintiff’s diagnoses of affective

disorders and anxiety disorders were severe, Dr. Gavazzi determined
that Plaintiff had no restrictions of activities of daily living,
mild difficulties of maintaining social functioning, moderate
difficulties in maintaining concentration, persistence, or pace,
and no repeated episodes of decompensation, each of extended
duration.

(R. 66.)

He assessed that plaintiff was not

significantly limited in most areas but concluded he had moderate
limitations in his ability to understand and remember detailed
instructions, and his ability to carry out detailed instructions.
(R. 68.)

In narrative form, Dr. Gavazzi explained that, based on

Plaintiff’s understanding and memory limitations,

he found

Plaintiff could “understand, retain, and follow simple job
instructions, i.e., perform one- and two-step tasks.

The claimant

can perform simple, routine, repetitive tasks in a stable
environment.”

(Id.)

Based on Plaintiff’s concentration and

persistence limitations, Dr. Gavazzi opined that Plaintiff could
“make simple decisions.

The claimant would be able to maintain

regular attendance and be punctual.

The claimant is able to carry

out very short and simple instructions.”
3.

(Id.)

Treating Psychiatrist
Todd Muneses, M.D., Plaintiff’s treating psychiatrist,

completed a Medical Source Statement of Ability to Do Work-Related

9

Activities (Mental) on April 25, 2015.

(R. 343-45.)

Dr. Muneses

concluded that Plaintiff’s ability to understand, remember, and
carry out instructions were affected by his impairments: he had
moderate limitations in his ability to understand and remember
simple instructions, and his ability to carry out simple
instructions; he had marked limitations in his ability to make
judgments on simple work-related decisions, his ability to
understand and remember complex instructions, his ability to carry
out simple instructions, and his ability to make judgments on
complex work-related decisions.

(R. 343.)

These assessments were

based on Dr. Muneses findings that Plaintiff had “severe problems
with depressed mood, anxiety, poor attention & focus that all
interfere with his ability to carry out tasks in a work setting.”
(Id.)

Regarding his ability to interact appropriately with others

and respond to changes in a routine work setting, Dr. Muneses
opined that Plaintiff had moderate restrictions in his ability to
interact with the public, supervisors, and co-workers, and he had a
marked restriction in his ability to respond appropriately in a
routine work setting.

(R. 344.)

These assessments were based on

Plaintiff’s “difficulty interacting in social settings whether at
work or at home.

He has mood swings that cause irritability when

talking to a family member.”

(Id.)

The form noted that the

identified limitations “are assumed to be your opinion regarding
current limitations only.

However, if you have sufficient

10

information to form an opinion within a reasonable degree of
medical or psychological probability as to past limitations, on
what date were the limitations you found above first present?”
(Id.)

Dr. Muneses did not fill in a date in the space provided.

(Id.)
C.

ALJ Decision
In her May 24, 2016, Decision, ALJ Zanotto concluded that

Plaintiff had the following severe impairments: depressive
disorder, anxiety disorder, and attention deficit hyperactivity
disorder.

(R. 20.)

She found that Plaintiff did not have an

impairment or combination of impairments that met or equaled the
severity of a listed impairment.

(R. 21.)

ALJ Zanotto then

assessed that Plaintiff had the residual functional capacity
(“RFC”) to perform light work
except he can perform work involving only
repetitive, short cycle tasks with occasional
decision making and occasional interaction
with supervisors, co-workers and the public;
but no jobs with precise limits, tolerances
or standards; and no jobs involving
directing, controlling or planning the
activities of others or influencing other
peoples’ opinions, attitudes or judgments.
(R. 23.)

On the basis of this RFC, ALJ Zanotto determined that

Plaintiff could not perform his past relevant work but jobs existed
in significant numbers in the national economy that he could
perform.

(R. 26.)

With this finding, ALJ Zanotto concluded

Plaintiff had not been under a disability from February 9, 2014,

11

through the date of the decision.

(R. 27.)

II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.1

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.

1

“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
disabled
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).
12

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
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.

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

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
can perform.

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
jobs existed in significant numbers in the national economy which
Plaintiff could perform.

(R. 26.)

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.

13

Substantial evidence

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

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 ALJ to
analyze all probative evidence and set out the reasons for his
decision.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d

Cir. 2000) (citations omitted).

If he 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
14

approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

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.

See, e.g., Knepp v.

Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
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.

Hartranft,

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 . . .”).

“However,

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
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
15

Cir. 1983) (internal quotation omitted).

Where a claimed error

would not affect the outcome of a case, remand is not required.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).

Finally,

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.

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion

As set out above, Plaintiff asserts the Acting Commissioner’s
determination should be reversed for the following reasons: 1) the
ALJ erred at step three in finding Plaintiff did not meet listing
12.04 and 12.06; 2) the ALJ erred in concluding that Plantiff has
the residual functional capacity (“RFC”) to perform light-duty
work; and 3) the ALJ erred when she concluded that other work
existed in the national economy which Plaintiff could perform.
(Doc. 9 at 4.)
“The burden of showing that an error is harmful normally falls
upon the party attacking the agency’s determination.”

Shineski v,

Sanders, 556 U.S. 396, 409 (1969); Woodson v. Comm’r of Social
Security, 661 F. App’x 762, 766 (3d Cir. 2016) (citing Shineski,
556 U.S. at 409) (a plaintiff must point to specific evidence that
demonstrates his claimed error caused harm); Holloman v. Comm’r of
Social Security, 639 F. App’x 810, 814 (3d Cir. 2016) (citing
Shineski, 556 U.S. At 409) (a plaintiff must show how the claimed
error made a difference beyond a mere assertion that it did so).
16

A.

Step Three
Plaintiff alleges that he had an impairment or combination of

impairments that met or equaled one of the listed impairments under
the “B” criteria in sections 12.04 and 12.06.

(Doc. 9 at 5.)

Defendant responds that the ALJ properly determined that Plaintiff
did not have an impairment or combination of impairments that met
or equaled Paragraph B of listings 12.06 and 12.06.
5.)

(Doc. 10 at

The Court concludes Plaintiff has not satisfied his burden of

showing that the claimed error is cause for reversal or remand.
A claimant bears the burden of establishing that his
impairment meets or equals a listed impairment.

Poulos v. Comm’r

of Social Security, 474 F.3d 88, 92 (3d Cir. 2007).

Listing 12.04

(Affective Disorders) and listing 12.06 (Anxiety-Related Disorders)
have A, B, and C criteria.

Listing 12.04 is met if both the A and

B criteria are met or the C criteria are met.

Listing 12.06 is met

if both the A and B criteria are met or both the A and C criteria
are met.

The issue here is whether the B criteria have been met.

The paragraph B criteria are the same for both listings and a
plaintiff must show that he satisfies at least two of the following
criteria: 1) Marked restriction of activities of daily living; 2)
Marked difficulties in maintaining social functioning; 3) Marked
difficulties in maintaining concentration, persistence, or pace; or
4) Repeated episodes of decompensation.
P, App. 1 §§ 12.04(B), 12.06(B).

20 C.F.R. pt. 404, subpt.

“A ‘marked’ restriction or

17

difficulty is one that is more than moderate but less than extreme
and that ‘interfere[s] seriously with [the] ability to function
independently, appropriately, effectively, and on a sustained
basis.’”

Cunningham v. Comm’r of Social Security, 507 F. App’x

111, 116 (3d Cir. 2012) (quoting 20 C.F.R. pt. 404, subpt. P, app.
1, § 12.00(C)).
ALJ Zanotto explained her step three determination as follows:
In making the above determination, the
undersigned considered the opinion of the
State Agency consultant at Exhibit 1A. The
consultant stated the claimant has the
following limitations: no limitations in
activities of daily living, mild limitations
in social functioning and moderate
limitations in concentration, persistence or
pace. The undersigned assigns some weight to
the opinion of the consultant; however, finds
the claimant to be more limited in terms of
activities of daily living and social
functioning based on subsequent evidence
received at the hearing level and the
claimant’s subjective complaints.
In activities of daily living, the
claimant has mild restriction. Records
reflect subjective complaints of decreased
energy and motivation. Exhibit 7F. However,
there was reported improvement with
medication including that the claimant “is
doing more ADLs and chores around the house.”
Exhibit 3F/8. Additionally, the claimant
reported having shared 50% custody of his two
small children who he cares for, spends time
with, takes to school and makes sure they are
fed and bathed. Exhibit 5E. This shows he
has only mild restriction in activities of
daily living.
In social functioning, the claimant has
moderate difficulties. The claimant reported
that he does not socialize and only goes out
18

for medical appointments. Exhibit 5E. He
and his mother reported the claimant suspects
that people talk about him. Exhibits 4-5E.
Records reflect that upon mental status
examination he intermittently appeared
depressed and anxious. Exhibits 3F, 7F.
However, records also reflect he was
cooperative upon examination (Exhibits 1F,
6F, 9F) and largely presented with goal
directed thought process, normal thought
content and cognition, no suicidal ideation,
hallucinations or delusions and appropriate
insight and judgment. Exhibits 3F, 7F, 10F.
Accordingly, based on the claimant’s
subjective reports and objective evidence in
the record, the claimant has moderate
limitations in social functioning.
With regard to concentration,
persistence or pace, the claimant has
moderate difficulties. The claimant and his
mother reported that he has difficulty
following instructions and cannot pay
attention for long. Exhibits 4-5E. Upon
evaluation, it was noted that the claimant’s
anxiety and depression did impact
functioning. Exhibit 1F. However, objective
findings revealed the claimant had intact
associations, normal insight and memory and
focused attention span. Exhibits 3F,7F.
Accordingly, the claimant has no more than
moderate limitations in concentration,
persistence or pace.
As for episodes of decompensation, the
claimant has experienced no episodes of
decompensation, which have been of extended
duration. Specifically, there appears to be
no prolonged hospitalization or other forms
of treatment to support the existence of
episodes of decompensation.
Because the claimant’s mental
impairments do not cause at least two
“marked” limitations or one “marked”
limitation and “repeated” episodes of
decompensation, each of extended duration,
the “paragraph B” criteria are not satisfied.
19

(R. 21-22.)
Plaintiff contends that his mental health impairments meet or
medically equal the paragraph B requirements when his “overall
lifestyle is taken into consideration.”

(Doc. 9 at 6.)

Plaintiff

finds fault with the ALJ’s determination that he had mild
restrictions in activities of daily living, stating that the record
“clearly demonstrates” that he suffers from marked restrictions in
this category.

(Doc. 9 at 7.)

In support of this assertion,

Plaintiff points to ALJ Zanotto’s finding that he “has a decrease
in energy and motivation, as well as a continuation of depression
and anxiety.”

(Id. (citing R. 21).)

Plaintiff adds that “[t]he

ALJ heard from Claimant’s testimony that Claimant has trouble
shopping for himself and performing household chores due to the
depression and anxiety.”

(Id. (citing R. 47).)

Plaintiff contends

the ALJ relied “solely on a small selection of [his] medical
records” to reach her conclusion regarding activities of daily
living.

(Id.)

He cites the following as evidence that the ALJ

“oversimplified” his activities: July 28, 2015, office records from
YH BHS/Edgar Square where Plaintiff reported he had difficulty
leaving his home and leaving his bed, he had panic attacks that
left him unable to function, and he was exhausted following each
attack; and his testimony that he often stays in bed for days at a
time because of his depressive disorder, leaving his mother to take
care of the children when visiting.
20

(Doc. 9 at 8 (citing R. 50,

356).)
Contrary to Plaintiff’s assertion, the cited records do not
demonstrate that Plaintiff had marked limitations in his activities
of daily living.

To show a “marked” restriction, Plaintiff must

show that his depression and/or anxiety seriously interfered with
his “ability to function independently, appropriately, effectively,
and on a sustained basis” in his activities of daily living.
C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)).

20

July 28, 2015,

office records indicate that Plaintiff reported that his depression
had worsened and he described difficulties he was having at the
time.

(R. 356.)

Symptoms described at an isolated office visit do

not establish the claimed limitations affected his ability to
function “on a sustained basis.”
1, § 12.00(C)).

20 C.F.R. pt. 404, subpt. P, app.

Similarly, Plaintiff’s cited hearing testimony

does not show that he was unable to get out of bed and care for his
children “on a sustained basis” in that the records reviewed above
show periods of improvement throughout the relevant time period.
Thus, the Court concludes Plaintiff has not demonstrated that the
ALJ erred in not finding Plaintiff had marked limitations in
activities of daily living.
In support of his claim that his “records clearly demonstrate”
that he suffers from marked restrictions in his ability to maintain
social functioning, Plaintiff cites only his own testimony that he
has tried to relieve symptoms of social withdrawal and antisocial

21

behavior “by shopping after busy hours to avoid contact with
people, yet even with his best efforts he becomes overwhelmed when
performing these activities.”

(Doc. 9 at 8-9 (citing R. 47).)

Plaintiff does not refute the ALJ’s reliance on medical records
which reflected that Plaintiff was cooperative upon examination and
largely presented with goal directed though process, normal thought
content and cognition, and appropriate insight and judgment.
21 (citations omitted).)

(R.

Therefore, he does not show that the

ALJ’s conclusion regarding moderate difficulties in social
functioning is not based on substantial evidence.

Moreover,

Plaintiff’s citation to his own testimony, uncorroborated by mental
status examination findings or other evidence of record, cannot
satisfy his burden of demonstrating marked limitations in social
functioning.

Thus, the Court concludes Plaintiff has not

demonstrated that the ALJ erred in not finding Plaintiff had marked
difficulties in social functioning.
Plaintiff’s assertion that the record demonstrates that he
suffers from marked difficulties in maintaining concentration,
persistence, or pace (Doc. 9 at 9) is similarly deficient.
Plaintiff does not refute the ALJ’s reliance on objective findings
which revealed that Plaintiff had intact associations, normal
insight and memory, and focused attention span.
omitted).)

(R. 22 (citations

As found previously, Plaintiff’s citation only to his

own testimony is insufficient to satisfy his burden of showing that

22

the ALJ erred in finding moderate difficulties in this area rather
than marked limitations.
In order to show the ALJ erred at step three, Plaintiff had to
show that the ALJ erred by not finding that Plaintiff had marked
limitations in two of the categories reviewed above.2

As discussed

above, Plaintiff has not satisfied his burden of showing that the
claimed error is cause for reversal or remand.
B.

Residual Functional Capacity
Plaintiff maintains that the ALJ erred when she found that he

had the RFC to perform light work.

(Doc. 9 at 10.)

responds that this argument is without merit.

Defendant

(Doc. 10 at 12.)

The Court concludes Plaintiff has not satisfied his burden of
showing the claimed error is cause for reversal or remand.
Plaintiff first states that “the ALJ erred when she determined
that Claimant has the residual functional capacity to perform
light-duty work, as there was no RFC in the file.”

(Doc. 9 at 10.)

As noted by Defendant, this claimed error is without merit in that
it is the ALJ’s burden to assess a plaintiff’s residual functional
capacity based on all the relevant evidence of record.

(Doc. 10 at

12 (citing 20 C.F.R. § 404.1545(a)(1)).)
After stating that major depressive disorder, anxiety
disorder, attention deficit hyperactivity disorder and obsessive

2

Plaintiff does not allege that he had repeated episodes of
decompensation, each of extended duration.
23

compulsive disorder preclude him from doing any level of exertional
work, Plaintiff asserts that the “ALJ failed to consider numerous
medical records indicating [his] inability to handle communication
between supervisor’s [sic], co-workers and customers.

Moreover,

there is a lack of medical evidence countering [his] testimony as
to his physical limitations.”

(Doc. 9 at 10.)

On this basis,

Plaintiff concludes the ALJ’s RFC determination is not supported by
substantial evidence.

(Id.)

This type of general averment does

not satisfy Plaintiff’s burden of demonstrating error.

Shineski,

556 U.S. at 409; Woodson, 661 F. App’x at 766; Holloman, 639 F.
App’x at 814.

Further, Plaintiff does not identify any physical

limitations which should be included in the RFC.
Plaintiff next points to August 20, 2015, office records as
supportive of his symptoms and physical limitations.
11.)

(Doc. 9 at

Specifically, Plaintiff states the “medical examination” of

that date “showed Claimant remained to have serious signs of
depression, and anxiety despite the use of medication.

R. at 353.

The examination also indicated that Claimant had been in isolation,
with limited motivation to perform work because of the exhaustion
brought on from having multiple anxiety attacks.
11.)

Id.”

(Doc. 9 at

Plaintiff contends the ALJ ignored these records and instead

relied on “subjective facts within the medical records favoring her
decision to deny the Claimant benefits,” ignoring the “history of
present illness (HPI) section within medical records.”

24

(Id. at 11-

12.)
The Court’s review of the ALJ’s Decision shows that the ALJ
did not ignore Plaintiff’s subjective complaints contained in the
August 2015 records.

Rather, ALJ Zanotto specifically acknowledged

worsening symptoms in July and August 2015.

(R. 24.)

She noted

that “
during these periods of reported worsening
symptoms, and upon review of the period of
alleged disability as a whole, mental status
examination findings largely reveal the
claimant presented with goal directed thought
process, normal thought content and
cognition, no suicidal ideation,
hallucinations or delusions and appropriate
insight and judgment. Exhibits 3F, 7F, 10F.
These objective findings are consistent with
the ability to perform work within the
parameters of the residual functional
capacity above.
(R. 24.)

Thus, contrary to Plaintiff’s assertion, the ALJ did not

rely on “subjective facts” (Doc. 9 at 11) but on examination
findings made by Dr. Muneses which are listed as “Objective” in the
record (see R. 353).

Plaintiff provides no basis to discount the

mental “Objective” findings recorded and relied upon by the ALJ.
Therefore, Plaintiff has not shown that the ALJ improperly
considered the August 2015 records.
Regarding his claim that medications started in April 2015 and
taken through August 2015 did not show a substantial effect on
Plaintiff’s subjective complaints (Doc. 9 at 11), the alleged lack
of improvement over a five-month period is without legal

25

significance.

First, Plaintiff does not address the objective

mental status findings discussed by the ALJ which were recorded
during the same period and which the ALJ found indicative of the
ability to perform work within the RFC assessed (see R. 24).

A

review of the record related to office visits from April 2015
through August 2015 shows that objective mental status findings
were within normal limits and appropriate with the exception of
Plaintiff’s mood which was generally recorded as depressed or
depressed and anxious (R. 356 360, 362) and on one occasion his
affect was noted to be flat (R. 356).

Further, even if Plaintiff’s

alleged symptoms were adequately supported and precluded gainful
employment for the five-month period cited, Plaintiff would not
satisfy the longitudinal requirements for finding disability under
the Act.

42 U.S.C. § 423(d)(1)(A).

Plaintiff’s broader claim that records taken from July 28,
2014, through January 9, 2016, “clearly indicated that [his]
depression had remained the same throughout treatment” (Doc. 9 at
12) does not point to error.

First, such a conclusory statement

does not satisfy Plaintiff’s burden of showing error on the basis
alleged.

Shineski, 556 U.S. at 409; Woodson, 661 F. App’x at 766;

Holloman, 639 F. App’x at 814.

Further, as evidenced by the

Court’s medical evidence review above, Plaintiff’s statement
mischaracterizes findings set out in the relevant records.

The

following are examples of improvement reported through the relevant

26

period: in September 2014 Plaintiff noted improvement in attention
and energy and stated he was generally more functional and
specifically functioning ok at his job despite reporting increased
anxiety symptoms (R. 371); following the report of significant
depression in December 2014, Plaintiff reported significant
improvement in his mood and outlook in February 2015 following
commencing a DBT progrem; after experiencing increased symptoms in
April 2015, Plaintiff reported in May 2015 that he had done fairly
well since then and found some benefit from the earlier change in
medication (R. 359); after reporting increased problems in July and
August 2015 (R. 353, 356), Plaintiff did not see a mental health
provider for the remainder of the year (see R. 377); when he saw a
primary care doctor in January 2016 for blood pressure and
triglyceride problems, the provider correlated Plaintiff’s extreme
anxiety with the medical problems (R. 379-80); after a February 4,
2016, medication adjustment by a mental health provider (R. 433),
Plaintiff reported that he was doing much better at his February
26, 2016, visit with his primary care provider, attributing the
improvement to medication changes (R. 442).

This review of the

record shows that Plaintiff’s claim that his depression remained
the same from July 2014 through January 2016 is not an accurate
reflection of record evidence during the relevant time period.
Plaintiff next states that Dr. Muneses’ Medical Source
Statement, which included findings of marked limitations in some
categories, should have been given significant weight.

27

(Doc. 9 at

12.)

However, Plaintiff does not address ALJ Zanotto’s reasons for

assigning the opinion in general partial weight and the marked
limitations little weight (see R. 25) or otherwise elaborate on why
the opinion was entitled to more weight than that assigned by the
ALJ.

(Doc. 9 at 12.)

Plaintiff’s allegations related to Dr.

Muneses’ opinion are unsupported and conclusory.

Therefore, they

are insufficient to satisfy Plaintiff’s burden of demonstrating
error.

Shineski, 556 U.S. at 409; Woodson, 661 F. App’x at 766;

Holloman, 639 F. App’x at 814.

This conclusion is buttressed by

the fact that the ALJ’s reasons for assigning the opinion partial
weight included her determination that the opinion generally
presented only a snapshot of the particular time-period which was
not a reliable long-term picture of Plaintiff’s mental functioning.
(R. 25.)

As set out in the Court’s review of Dr. Muneses’ opinion

above, Dr. Muneses had the opportunity to indicate that the opinion
was for a more extended period than “current limitations only” but
he did not do so.

(R. 344.)

Thus, even if properly supported,

Plaintiff’s reliance on the opinion to establish marked limitations
for the required durational period under the Act would be
unavailing.
Turning to Plaintiff’s assertion that the ALJ “placed into her
decision only the records that supported her conclusions to deny
benefits” (Doc. 9 at 12), a review of the Decision clearly belies
Plaintiff characterization of the evidence reviewed by ALJ Zanotto
(see R. 21-25).
28

Finally, Plaintiff asserts that the ALJ needed contrary
medical evidence to discount his testimony regarding the limiting
effects of his medically determinable impairments.
13.)

(Doc. 12 at

With this statement Plaintiff overlooks the fact that the ALJ

cited to evidence which she found inconsistent with Plaintiff’s
allegations and the establishment of limitations meeting the Act’s
durational requirements.

(See R. 21-25.)

Because Plaintiff does

not develop this aspect of his opposition to the ALJ’s decision,
further discussion is not warranted.
C.

Step Five
Pointing to Dr. Muneses’ findings that he had marked

limitations and the VE’s testimony that such limitations indicated
that Plaintiff would be unemployable, Plaintiff contends the ALJ
erred when she determined that other work existed in the national
economy that he could perform.

(Doc. 9 at 13-14.)

Defendant

responds that the ALJ’s step five determination was proper.
10 at 19.)

(Doc.

The Court concludes Plaintiff has not satisfied his

burden of showing the claimed error is cause for reversal or
remand.
An ALJ may err at step five if she failed to include credibly
established limitations in her hypothetical question to the
vocational expert.

Rutherford clarifies that an ALJ is not

required to submit to the vocational expert every impairment or
limitation alleged by a claimant.

399 F.3d at 554.

Rather, the

hypothetical posed must “accurately convey to the vocational expert
29

all of a claimant’s credibly established limitations.”
Plummer, 186 F.3d at 431.)

Id. (citing

Whether a limitation is credibly

established is thus the crux of the issue, the next question being
whether the ALJ properly discredited the claimed limitation.
Case law and regulations3 address when a limitation is
credibly established. Rutherford, 399 F.3d at 554.
Limitations that are medically supported and
otherwise uncontroverted in the record, but
that are not included in the hypothetical
question posed to the expert, preclude
reliance on the expert’s response (Burns, 312
F.3d at 123). Relatedly, the ALJ may not
substitute his or her own expertise to refute
such record evidence (Plummer, 186 F.3d at
429). 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)).
399 F.3d at 554.
Although, in response to a question from Plaintiff’s attorney,
the VE opined that a hypothetical individual with a marked
limitation in his ability to “respond[] appropriately to usual work
situations and changes and routine work setting” would be
unemployable (R. 61), he rendered no opinion regarding whether
Plaintiff had this specific limitation.

Rather, this is a

limitation which Dr. Muneses found to be a “current limitation[]”

3

Rutherford specifically identifies 20 C.F.R. §§ 416.945,
929(c) and 927) as relevant to the inquiry. 399 F.3d at 554.
30

for Plaintiff as of April 24, 2015 (R. 345) and the ALJ assigned
little weight to that finding (R. 25).

The Court concluded above

that Plaintiff had not shown error in the ALJ’s assessment that Dr.
Muneses’ marked-limitation findings were entitled to little weight
and Plaintiff does not otherwise support his step-five argument.
Thus, this is a case where the claimed limitation has some support
but is also contradicted by other evidence and the ALJ did not
improperly discount the evidence upon which Plaintiff relies.
F.3d at 554.

399

In this scenario, the marked limitation in

Plaintiff’s ability to “respond[] appropriately to usual work
situations and changes and routine work setting” (R. 61) was not a
credibly established limitation and Plaintiff has not shown the ALJ
erred in not crediting the VE’s related testimony.

Thus, Plaintiff

has not satisfied his burden of showing that the claimed error is
cause for reversal or remand.
V. Conclusion
For the reasons discussed above, the Court concludes
Plaintiff’s appeal of the Acting Commissioner’s decision is
properly denied.

An appropriate Order is filed simultaneously with

this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: June 1, 2018

31