THE HONORABLE JENNIFER L. HALL, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

THE HONORABLE JENNIFER L. HALL, UNITED STATES MAGISTRATE JUDGE

Plaintiff Tracy A. Charlier appeals from an unfavorable decision of the Commissioner of the Social Security Administration denying her application for disability insurance benefits (“DIB”). This Court has jurisdiction under 42 U.S.C. § 405(g).

The parties filed cross-motions for summary judgment. (D.I. 19; D.I. 24.) For the reasons announced from the bench on February 11, 2022, I recommend that the Court DENY Plaintiff's motion and GRANT the Commissioner's cross-motion, as I conclude that the Commissioner's decision is supported by substantial evidence and that there are no reversible errors.

I. LEGAL STANDARDS

Courts review the Commissioner's factual findings for “substantial evidence.” 42 U.S.C. § 405(g). Substantial evidence “means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In reviewing 1 whether substantial evidence supports the Commissioner's findings, courts may not “re-weigh the evidence or impose their own factual determinations.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011); see also Zirsnak v. Colvin, 777 F.3d 607, 610-11 (3d Cir. 2014). In other words, reviewing courts must affirm the Commissioner if substantial evidence supports the Commissioner's decision, even if they would have decided the case differently.

To determine if a claimant is disabled, the Commissioner follows a five-step sequential inquiry. See 20 C.F.R. § 416.920(a)(4)(i)-(v). The Third Circuit has previously explained this sequential analysis, and the shifting burdens that attend each step, in detail:

The first two steps involve threshold determinations. In step one, the Commissioner must determine whether the claimant currently is engaging in substantial gainful activity. If a claimant is found to be engaging in substantial gainful activity, the disability claim will be denied. In step two, the Commissioner must determine whether the claimant has a medically severe impairment or combination of impairments. If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. In step three, the Commissioner compares the medical evidence of the claimant's impairment to a list of impairments presumed severe enough to preclude any gainful work. If the impairment is equivalent to a listed impairment the disability claim is granted without further analysis. If a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps four and five. Step four requires the ALJ to consider whether the claimant retains the residual functional capacity to perform his past relevant work. The claimant bears the burden of demonstrating an inability to return to his past relevant work. If the claimant does not meet the burden the claim is denied.

If the claimant is unable to resume his former occupation, the evaluation moves to the final step. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claimant is capable of performing other available work in order to deny a claim of disability. The Commissioner must show there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with his or her medical impairments, age, education, past work experience, and residual functional capacity. The ALJ must analyze the cumulative effect of

all the claimant's impairments in determining whether he is capable of performing work and is not disabled.

II. DISCUSSION

My Report and Recommendation was announced from the bench on February 11, 2022, as follows:

I'm ready to give you my reports and recommendations on the cross-motions for summary judgment in Hight v. Kijakazi and the cross-motions for summary judgment in Charlier v. Kijakazi.

I will summarize the reasons for my recommendations in a moment. But before I do, I want to be clear that my failure to address a particular argument advanced by a party does not mean that I did not consider it. We have carefully considered the pertinent portions of the administrative record and the parties' briefs in both cases. I am not going to read my understanding of the applicable law into the record today; however, we will incorporate the rulings I am about to state into a separate, written document, and we will include a summary of the applicable law in that document.

. . . .

Now we'll move on to the Charlier matter. I recommend that Plaintiff's motion for summary judgment be denied and that the Commissioner's cross-motion for summary judgment be granted.

Plaintiff Tracy A. Charlier is a woman in her fifties who previously worked as a District Sales Manager for Avon Beauty and as a real estate agent. In 2015, she fell at work and injured her neck and low back. She filed an application for benefits claiming that she has been disabled since September 30, 2016.

The ALJ who ruled on Ms. Charlier's application for disability benefits found at step two that she had three severe impairments: degenerative disc disease of the cervical spine, neuropathy, and obesity. As part of his step two analysis, the ALJ also evaluated whether Charlier had any medically determinable

mental impairments. The ALJ concluded that Charlier had a medically determinable mental impairment of depression, so he went on to rate the degree of her functional limitation resulting from her depression in accordance with the four criteria commonly referred to as the “Paragraph B” criteria. He concluded that Charlier's depression “cause[d] no more than ‘mild' limitation in any of the functional areas and the evidence d[id] not otherwise indicate that there is more than a minimal limitation in [her] ability to do basic work activities.” Accordingly, the ALJ concluded that her depression was not severe.

At step three, the ALJ found that Charlier's impairments did not meet the standards for a listed impairment, so he went on to step four.

At step four, the ALJ found that Charlier had the residual functional capacity (“RFC”) “to perform sedentary work [as defined in 20 C.F.R. § 404.1567(a)] except she can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds; she can occasionally stoop, kneel, crouch, and crawl; she can occasionally push, pull, and reach overhead with the dominant upper right extremity; she can frequently handle and finger with the

dominant right upper extremity; she can have occasional exposure to vibration and hazards, such as moving machinery and unprotected heights.” The ALJ found that, given that RFC, Charlier could not perform her past relevant work.

At the last step, the ALJ found that, notwithstanding Charlier's limitations, a person with her background and prior work experience could work as a telemarketer. Accordingly, the ALJ found that Charlier was not disabled.

Charlier challenges two aspects of the ALJ's decision. Her first argument is that the ALJ's step two finding that her depression was not severe is not supported by substantial evidence. I disagree. The ALJ sufficiently articulated, with specific citations to the evidentiary record, why he found Charlier's impairments did not qualify as severe. Among other things, the ALJ considered Charlier's own statements about depression, but he found them inconsistent with other portions of the record indicating minimal treatment for depression and that medication improved her depression symptoms.

The ALJ also noted that the mental status exams showed appropriate mood and affect, normal judgment and insight, and intact recent and remote memory. The ALJ also considered the fact that Charlier noted worsening depression to her primary care provider in 2019 related to certain life events, but that she had failed to follow up as recommended.

Charlier argues that the ALJ “fail[ed] to consider” evidence from Dr. Romirowsky and Dr. Simon, but the ALJ clearly did

consider that evidence because the ALJ cited to their notes in his step two analysis.

In short, there is no reason to think that the ALJ failed to consider evidence relevant to the question of whether Charlier's depression was “severe” within the meaning of the regulations. It is not the role of this Court to reweigh the evidence. The ALJ's finding that Charlier's depression was not severe is supported by substantial evidence. Accordingly, the Court should reject Charlier's argument that the ALJ erred at step two.

I now turn to Charlier's second challenge to the ALJ's decision. She argues that the ALJ erred at step four by failing to include limitations in the RFC related to her depression. I disagree.

As an initial matter, no one here disputes that the ALJ was required at step four to consider all of Charlier's impairments, even those that he found to be not severe.

The ALJ did that. His lengthy step four analysis included a detailed discussion of Charlier's physical limitations as well as her claimed mental limitations. In particular, the ALJ carefully analyzed evidence relevant to the imposition of limitations stemming from her depression, including, for example, her ability to follow instructions, her ability to sustain work performance and attendance, her ability to understand, remember and apply information, her ability to interact with the public, and her ability to exercise appropriate judgment. He also considered Charlier's testimony that “she is very forgetful with difficulty concentrating on tasks, ” but he nevertheless found that her own “statements concerning the intensity, persistence, and limiting effects of [her] symptoms [were] not entirely consistent” with the other evidence of

record. Thus, while the ALJ did not ultimately include limitations specifically related to Charlier's depression in the RFC, there is no question that the ALJ considered evidence related to Charlier's depression in the RFC assessment.

Charlier's real argument is that, once the ALJ found at step two that Charlier had “mild” limitations with respect to the Paragraph B criteria, the ALJ was required to include those same limitations in the RFC.

I reject that argument. For one thing, “unlike the findings at step[] two . . ., the RFC ‘must be expressed in terms of work-related functions[, ]' such as by describing the claimant's ‘abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting.” In other words, “the findings at step[] two . . . will not necessarily translate to the language used at steps four and five.”

I also reject the proposition that the ALJ was required to include limitations in the RFC related to Charlier's mental functioning simply because the ALJ found at step two that she had “mild” limitations with respect to the four broad mental domains described in the Paragraph B criteria. To be sure, there are decisions from some district courts (including some district courts in this Circuit) that appear to suggest the opposite: that is, if the ALJ finds a non-severe, mild mental limitation at step two, then the ALJ is required to include in the RFC at step four a limitation directed to mental functioning.

But the Third Circuit has never imposed such a categorical rule. And, while it is true that the ALJ is required to consider all of the claimant's limitations when formulating the RFC, Charlier has pointed to nothing in the regulations that would require a limitation to be included in the RFC if the ALJ found at step four that the limitation would not affect a claimant's ability to work. As one court put it, “[t]here is nothing inherently illogical about acknowledging a claimant's mild and non-disabling limitations from the [step two] viewpoint, but then concluding that these limitations do not restrict what a claimant can do at work.” Many other courts have concluded the same.

While it is possible that an ALJ's failure to consider a claimant's non-severe mental impairment at step four may constitute reversible error where the ALJ completely fails to consider limitations stemming from that non-severe impairment, that is not the case here. It is clear that the ALJ considered evidence of Charlier's impairment of depression at step four, and he said enough to demonstrate that he complied with his duty to consider whether Charlier's non-severe depression resulted in any additional limitations that should have been accounted for in the RFC.

III. CONCLUSION

For the reasons set forth above, I recommend that Plaintiff s motion for summary judgment (D.I. 19) be DENIED and the Commissioner's cross-motion (D.I. 24) be GRANTED.

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), (C), Federal Rule of Civil Procedure 72(b)(1), and District of Delaware Local Rule 72.1. Any objections to the Report and Recommendation shall be filed within fourteen days and limited to ten pages. Any response shall be filed within fourteen days thereafter and limited to ten pages. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the district court.

The parties are directed to the Court's “Standing Order for Objections Filed Under Fed.R.Civ.P. 72, ” dated October 9, 2013, a copy of which can be found on the Court's website. 9