Opinion
CASE NO. 3:18-cv-01790-MEM-GBC
09-10-2019
AMANDA CAROLINE CORBETT, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
() REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S APPEAL
This matter is before the undersigned United States Magistrate Judge for a report and recommendation. Amanda Caroline Corbett ("Plaintiff") seeks judicial review of the Commissioner of the Social Security Administration's decision finding of not disabled. As set forth below, the undersigned recommends to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
I. STANDARD OF REVIEW
To receive disability or supplemental security benefits under the Act, a claimant bears the burden to demonstrate an "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); accord 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an individual:
shall be determined to be under a disability 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), 1382c(a)(3)(B). Plaintiff must demonstrate the physical or mental impairment "by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920; Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). The process requires an ALJ to decide whether an applicant (1) is engaged in "substantial gainful activity;" (2) suffers from a "severe medically determinable physical or mental impairment;" (3) suffers from "an impairment(s) that meets or equals one" listed in the regulation's appendix; (4) has a residual functional capacity ("RFC") allowing for performance of "past relevant work;" and (5) can "make an adjustment to other work." Rutherford v. Barnhart, 399 F.3d 546, 551; 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
If at any of the steps a determination exists that a plaintiff is or is not disabled, evaluation under a subsequent step is not necessary. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). If the claimant satisfies this burden, then the Commissioner must show at step five that jobs exist in the national economy that a person with the claimant's abilities, age, education, and work experience can perform. Id.
In reviewing a decision of the Commissioner, the Court is limited to determining whether the Commissioner has applied the correct legal standards and whether the decision is supported by substantial evidence. See e.g., 42 U.S.C. § 405(g) ("court shall review only the question of conformity with such regulations and the validity of such regulations"); Johnson v. Commissioner of Social Sec., 529 F.3d 198, 200 (3d Cir. 2008); Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir. 2003) (plenary review of legal questions in social security cases). Substantial evidence "does not mean a large or considerable amount of evidence, but rather 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); accord Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019). The Court's review is based on the record, and the Court will "meticulously examine the record as a whole, including anything that may undercut or detract from the [Administrative Law Judge's] findings in order to determine if the substantiality test has been met." Id. Substantial evidence is a deferential standard of review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).
The Court may neither re-weigh the evidence nor substitute its judgment for that of the fact-finder. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The Court will not set the Commissioner's decision aside if it is supported by substantial evidence, even if the Court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)).
II. PROCEDURAL HISTORY
On June 10, 2014, Plaintiff filed an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act (Act) (42 U.S.C. §§ 1381-1383(f)) with an alleged disability onset date of November 12, 2013. (Tr. 14, 83). Plaintiff alleged disability due to the following impairments: HIV, major depression, mood disorder, uncontrollable impulse, post-traumatic disorder, and anxiety. (Tr. 83). On July 12, 2017, the ALJ found Plaintiff was not disabled within the meaning of the Act. (Tr. 11-27). Plaintiff sought review of the decision, which the Appeals Council denied on July 13, 2018, thereby affirming the decision of the ALJ as the "final decision" of the Commissioner of the Social Security Administration. (Tr. 1-8).
On September 10, 2018, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. § 405(g) to appeal a decision of Defendant denying social security benefits. (Doc. 1). On November 19, 2018, Defendant filed an answer and an administrative transcript of proceedings. (Doc. 4, 5). On April 30, 2019, Plaintiff filed a brief in support of the appeal. (Doc. 8 ("Pl. Br.")). May 30, 2019, Defendant filed a brief in response. (Doc. 9 ("Def. Br.")).
III. ISSUES
On appeal, Plaintiff alleges the following errors: (1) the ALJ erred by "failing to properly consider the limitations from Plaintiff's post-traumatic stress disorder, major depressive disorder and mood disorder"; (2) the ALJ erred in determining the RFC by not adopting the treating source opinion of Dr. Anne V. Dall; (3) the ALJ erred "in considering Plaintiff's mental-health related disorders under the Listings Under 12.00," and; (4) the ALJ erred "by failing to properly consider the GAF scores assigned to Plaintiff." Pl. Br. at 1-2.
IV. BACKGROUND
Plaintiff was born in September 1993, and thus is classified by the regulations as a younger individual through the date of the July 2017 ALJ decision. (Tr. 83); 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff has never engaged in "substantial gainful activity;" (Tr. 21) however, during the alleged period of disability, she worked seasonally at Hershey Park, volunteered at an animal shelter and at church, and taught English as a second language to adults. (Tr. 34, 48, 501, 566, 614, 724, 771, 779, 820, 830). Plaintiff completed the twelfth grade. (Tr. 76).
Substantial gainful activity (SGA) is work activity that involves doing significant physical or mental activities that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(a) - (b), 416.972(a) - (b).
V. ANALYSIS
A. Treating Physician Opinion
Plaintiff argues the ALJ erred in determining the RFC by not adopting the treating source opinion of Dr. Anne V. Dall. Pl. Br. at 1-2. The ALJ detailed the limitations opined by Dr. Dall:
[T]he opinion of Anne Dall, M.D., in July 2016, suggest[ed] that [Plaintiff] has marked limitation in the ability to carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, complete a normal workday and work week without interruptions from psychologically-based symptoms, performing a consistent pace without an unreasonable number and length of rest periods, respond appropriately to changes in the work setting, and tolerate normal levels of stress [Tr. 693-696]. Dr. Dall further suggested that [Plaintiff] would have moderate limitations in the ability to set realistic goals or make plans independently of others, get along with coworkers or peers without distracting them are exhibiting behavioral extremes, accept instructions and respond appropriately to criticism from supervisors, and work in coordination with or proximity to others without being distracted by them, sustain ordinary routine without special supervision.(Tr. 20). A treating physician's opinion does not warrant controlling weight under the regulations unless it is well supported by clinical and laboratory diagnostic findings and consistent with other substantial evidence. 20 C.F.R. § 404.1527(c)(2); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). If a treating source's opinion is not entitled to controlling weight, the factors outlined in 20 C.F.R. § 404.1527(c)(2) are used to determine the weight to give the opinion. 20 C.F.R. § 404.1527(c)(2); Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The ALJ, not the treating or examining physician, must make the disability and residual functional capacity determination. 20 C.F.R. § 404.1527(d)(1)-(2); Chandler v. Comm'r of Soc. Sec., 667 F.3d 356 (3d Cir. 2011). "The law is clear that the opinion of a treating physician does not bind the ALJ on the issue of functional capacity." Chandler, 667 F.3d at 361.
For weighing all medical opinions, the Commissioner considers the factors enumerated in 20 C.F.R. §§ 404.1527(c), 416.927(c). Pursuant to subsection (c)(3), "[t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion" and "[t]he better an explanation a source provides for an opinion, the more weight we will give that opinion." Pursuant to subsection (c)(4), "the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion." Pursuant to subsection (c)(5), more weight may be assigned to specialists, and subsection (c)(6) allows consideration of other factors which "tend to support or contradict the opinion." 20 C.F.R. §§ 404.1527(c), 416.927(c).
Revised guidelines apply to the evaluation of claims filed on or after March 27, 2017. See 20 C.F.R. §§ 404.1520c, 416.920c.
If a non-examining opinion is better supported, more consistent with evidence, or authored by a specialist, then it may be entitled to greater weight than examining or treating opinions. See 20 C.F.R. §§ 404.1527(c), 416.927(c); 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Coleman v. Astrue, 2012 WL 3835403, at *2 (3d Cir. Sept. 5, 2012) (holding that ALJ may choose non-examining physician opinion over treating physician opinion as long as medical evidence is not rejected for wrong reason or no reason); Johnson v. Barnhart, 89 F. App'x 364, 368 (3d Cir. 2004). An ALJ may reject an examining physician's opinion in favor of a non-examining physician opinion based on contradictory evidence. See 20 C.F.R. 404.1527(c); Kanakis v. Comm'r of Soc. Sec., 649 F. App'x 288, 292 (3d Cir. 2016) (affirming ALJ's rejection of treating physician's opinion based on contradictory evidence); Bryson v. Comm'r Soc. Sec., 639 F. App'x 784, 787 (3d Cir. 2016) (affirming ALJ's rejection of treating physician's opinion based on contradictory evidence); Torres v. Barnhart, 139 F. App'x 411, 414 (3d Cir. 2005) (ALJ permissibly rejected treating opinion "in combination with other evidence of record including Claimant's own testimony"); Johnson v. Barnhart, 89 F. App'x 364, 368 (3d Cir. 2004); Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932-01 at 36936 (ALJ may rely on non-medical evidence which is inconsistent with treating physician's opinion). In support for allocating limited weight to Dr. Dall's July 2016 opinion, the ALJ explained:
This opinion is an overestimate of [Plaintiff's] limitations, particularly with regard to [Plaintiff's] ability to maintain attention and concentration of only performing simple, routine tasks, as she consistently shows no impairment in memory or attention/concentration on psychiatric examination. This opinion also appears to underestimate [Plaintiff's] limitation with respect to public interaction in light of her history of anger and physically aggressive behaviors. The opinion is not consistent with treatment notes and is unsupported in the other objective medical evidence of record.(Tr. 20). The ALJ also allocated partial weight to the October 2014 opinion of Dr. Richard Williams for non-exertional limitations. (Tr. 19-20). The ALJ explained:
As for the opinion evidence, partial weight is afforded to the opinion of Richard Williams, Ph.D., a state agency psychological consultant in October 2014, suggesting that [Plaintiff] has no limitation in understanding or memory and only moderate limitations in the ability to carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or proximity to others without being distracted by them, interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, and respond appropriately to changes in a work setting (Exhibit 2A). This opinion accounts for [Plaintiff's] difficulty in processing anger, history of aggressive behaviors and poor impulse control and is consistent with [Claimant's] normal attention, concentration and memory on examination. Nonetheless, the undersigned finds that she would have some difficulty understanding and remembering detailed instructions secondary to her mood instability, anxiety and anger. As such, she is limited to simple and routine tasks.(Tr. 19-20). In this instance, the ALJ was within the bounds of discretion in resolving the conflicting medical opinions of Drs. Dall and Williams and cited evidence in the record to support the allocation of weight. See Dula v. Barnhart, 129 F. App'x 715, 718 (3d Cir. 2005). "[W]hen the medical testimony or conclusions are conflicting, the ALJ is not only entitled but required to choose between them." Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). Substantial evidence supports the ALJ according limited weight to Dr. Dall's July 2016 opinion and the ALJ was not bound to assign controlling weight to Dr. Dall's July 2016 opinion. Substantial evidence supports the ALJ's review of the record and finding Dr. Dall's July 2016 opinion overstated Plaintiff's limitations. See Horst v. Comm'r of Soc. Sec., 551 F. App'x 41, 47 (3d Cir. 2014); Dula v. Barnhart, 129 F. App'x 715, 718 (3d Cir. 2005).
The ALJ's allocating greater weight to Dr. Williams opinion and the ALJ's final determination of disability is supported by substantial evidence. State agency medical consultants "are highly qualified physicians, psychologists, and other medical specialists who are also experts in Social Security disability evaluation." See 20 C.F.R. § 404.1527(e)(2)(i) 20 C.F.R. § 416.927(e)(2)(i); § 404.1527(e)(2)(ii) (ALJ should evaluate a state agency medical consultant's opinion using the factors set forth in 20 C.F.R. § 404.1527(a)-(d)); § 404.1527(c)(4) (ALJ must consider whether an opinion is consistent with the record as a whole); and § 404.1527(c)(3) (opinions receive weight based on their supportability). "Furthermore, the ALJ relied upon the state agency expert opinions in making this disability determination, a course of action that is authorized by law particularly when that state opinion draws significant support from the clinical record, as did the opinion of [the State Agency doctor] in this case." Michael v. Berryhill, No. 3:16-CV-00658, 2018 WL 279095, at *7 (M.D. Pa. Jan. 3, 2018) (citing Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011).
Based on the foregoing, the Court concludes that substantial evidence supports the ALJ's allocation of little weight to the opinion of Dr. Dall and greater weight to the opinion of Dr. Williams. ///
B. Consideration of Psychologically-Based Symptoms
Plaintiff argues the ALJ erred by "failing to properly consider the limitations from Plaintiff's post-traumatic stress disorder, major depressive disorder and mood disorder." Pl. Br. at 1. Plaintiff argues her mental-health related limitations are confirmed throughout her medical records, as they relate to issues with memory, inability to follow instructions, impulse control, anger, mood swings, isolation from others than her mother, sleep disorder (sleeping eighteen hours per day), inability to leave the house, anxiety/panic attacks, trouble with concentration and focus, trouble completing tasks, paranoia, trouble handling stress, crying spells, throwing things when frustrated or angry, periods of homelessness, inability to care for herself, suicidal thoughts and threats, feeling overwhelmed and shutting down. Pl. Br. at 12 (citing to Tr. 273-282, 284, 311-312, 320, 339-344, 364-377, 384, 390-407, 420, 537-542, 554, 559, 593, 623, 636, 653, 760, 796 and 804). The ALJ addressed Plaintiff's mental-health related symptoms as follows:
[Plaintiff's] medical records reveal a history of major depressive disorder, post-traumatic stress disorder, and mood disorder NOS, but [Plaintiff] would be able to perform work activity within the aforementioned residual functional capacity [citing to Tr. 273-282, 338-354, 363-377, 385-407, 759-831. [Plaintiff's] symptoms include mood instability, depressed mood, suicidal ideation, impulsivity, aggressiveness, anxiety, anger and irritability [citing to Tr. 363-377, 759-831]. Although the records show psychiatric admissions from November 12, 2013 until December 31, 2013 and from February 26, 2014 until March 11, 2014 secondary to suicidal ideation and exacerbated symptoms, she has not required hospitalization since that time and her psychiatric progress notes from August 2014 to May 2017 document stabilization in her symptoms with medication [citing to Tr. 363-377, 385-407, 543, 551, 759-831]. [Plaintiff] generally requires use of psychotropic medication and outpatient psychiatric services [citing to Tr. 273-282, 336-377). Her progress notes show improvement and/or resolution in most of her goals [citing to Tr. 814). This evidence suggests that her symptoms can be managed with conservative treatment. From a longitudinal standpoint, [Plaintiff] occasionally presents on mental status with a flat or blunted affect, poor judgment and insight, poor eye contact, uncooperative behavior and depressed mood, but that she typically shows a bright affect, calm mood, cooperative behavior, appropriate grooming, normal speech, intact cognitive functioning, normal attention/concentration, fair judgment and insight, no memory impairment, denial of hallucinations, intact thought association, logical and goal-directed thought
processes [citing to Tr. 281, 354, 539, 544, 547, 552, 555, 560, 563, 567, 570, 573, 578, 626, 761-62, 764, 769, 772, 776, 780, 796, 808). Her treatment records show that [Plaintiff] was able to manage her anger well when dealing with rude customers at work, but she was removed from Job Corps for physical violence with a peer [citing to Tr. 554, 623, 782]. This evidence suggests that she could have limited interaction with others in the workplace.(Tr. 19). The ALJ properly considered Plaintiff's mental impairments and limitations. See (Tr. 19). As explained above, the ALJ's allocation of weight to Dr. Richard Williams's medical opinion and analysis of the record demonstrates the ALJ properly considered the limitations from Plaintiff's post-traumatic stress disorder, major depressive disorder, and mood disorder. The ALJ's reliance on the medical opinions noted above establishes substantial evidence for the findings of psychologically-related limitations. The Court finds no reversible error.
Given [Plaintiff's] problems with mood instability and anger, the undersigned finds that she should be limited to simple routine tasks that are not at a production rate pace with occasional changes in the work setting. The undersigned has accounted for [Plaintiff's] anger outbursts and history of peer altercations in finding that she should only have occasional interaction with coworkers and supervisors and that she should have no public interaction. The evidence does not reflect that [Plaintiff's] symptoms are severe and/or persistent enough to warrant off task behaviors or excessive absences.
C. Listings 12.04, 12.05, 12.06, 1208
Plaintiff argues the ALJ erred in considering Plaintiff's mental-health related disorders under the Listings under 12.04, 12.06, and 12.08. Pl. Br. at 2, 18-24. Plaintiff also argues the ALJ did not properly consider the record as it relates to the Listing Under 12.05 for Intellectual Disorder, despite a record mentioning possible mental retardation. Pl. Br. at 22.
"To meet the requirements of a listing, [a claimant] must have a medically determinable impairment(s) that satisfies all of the criteria in the listing." 20 C.F.R. § 404.1525(d) (emphasis added) (effective March 27, 2017 (section (d) remains the same after new version)). As the Third Circuit has explained:
For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." [Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S. Ct. 885, 891, 107 L. Ed. 2d 967 (1990)] (emphasis in original). "For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is 'equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment." Id. (emphasis in original).Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992). Thus, if there is one element that is not satisfied, the ALJ will have substantial evidence to conclude that a claimant does not meet a Listing. See Williams v. Sullivan, 970 F.2d 1178, 1186. The Listings were revised and effective January 17, 2017. See 81 Fed. Reg. 66138-01, n.1 (Sept. 26, 2016); accord Naples v. Comm'r of Soc. Sec., No. CV 17-267-E, 2019 WL 1434215, at *1 n.1 (W.D. Pa. Mar. 2019). To meet Listings 12.04 ("depressive, bipolar and related disorders") and 12.06 ("anxiety and obsessive-compulsive disorders"), an individual must prove the existence of paragraph A and either the paragraph B or paragraph C criteria. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A)(2). To meet Listing 12.08 ("personality and impulse-control disorders"), the individual must prove the existence of both the paragraph A and paragraph B criteria. Id. at § 12.00(A)(2). Paragraph A of each listing (except 12.05) includes the medical criteria that must be present in the medical evidence. Id. at § 12.00(A)(2)(a). The criteria for paragraph B apply to Listings 12.04, 12.06, and 12.08 and are evaluated in conjunction with a five-point scale (consisting of none, mild, moderate, marked, and extreme limitation) rating the degree of a claimant's limitations for each paragraph B criterion. Id. at § 12.00(A) & (F). To satisfy the paragraph B criteria, the mental disorder must result in extreme limitation of one paragraph B area of mental functioning, or marked limitation of two paragraph B areas of mental functioning. Id. at § 12.00(F). The paragraph B criteria are as follows:
1. Understand, remember, or apply information (paragraph B1). This area of mental functioning refers to the abilities to learn, recall, and use information to perform work activities. Examples include: Understanding and learning terms, instructions,
procedures; following one- or two-step oral instructions to carry out a task; describing work activity to someone else; asking and answering questions and providing explanations; recognizing a mistake and correcting it; identifying and solving problems; sequencing multi-step activities; and using reason and judgment to make work-related decisions. These examples illustrate the nature of this area of mental functioning. We do not require documentation of all of the examples.Id. at § 12.00(G). A marked limitation means "functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited." Id. at § 12.00(F)(2)(d). An extreme limitation means a claimant is "not able to function in this area independently, appropriately, effectively, and on a sustained basis." Id. at § 12.00(F)(2)(e).
2. Interact with others (paragraph B2). This area of mental functioning refers to the abilities to relate to and work with supervisors, co-workers, and the public. Examples include: cooperating with others; asking for help when needed; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness. These examples illustrate the nature of this area of mental functioning. We do not require documentation of all of the examples.
3. Concentrate, persist, or maintain pace (paragraph B3). This area of mental functioning refers to the abilities to focus attention on work activities and stay on task at a sustained rate. Examples include: Initiating and performing a task that you understand and know how to do; working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; changing activities or work settings without being disruptive; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; and working a full day without needing more than the allotted number or length of rest periods during the day. These examples illustrate the nature of this area of mental functioning. We do not require documentation of all of the examples.
4. Adapt or manage oneself (paragraph B4). This area of mental functioning refers to the abilities to regulate emotions, control behavior, and maintain well-being in a work setting. Examples include: Responding to demands; adapting to changes; managing your psychologically based symptoms; distinguishing between acceptable and unacceptable work performance; setting realistic goals; making plans for yourself independently of others; maintaining personal hygiene and attire appropriate to a work setting; and being aware of normal hazards and taking appropriate precautions. These examples illustrate the nature of this area of mental functioning. We do not require documentation of all of the examples.
The paragraph C criteria are an alternative to the paragraph B criteria under listings 12.02, 12.03, 12.04, 12.06, and 12.15 to evaluate mental disorders that are "serious and persistent." Id. at § 12.00(G)(1). A mental disorder is "serious and persistent" when there is a medically documented history of the existence of the mental disorder in the listing category over a period of at least 2 years, and evidence shows that the disorder satisfies both C1 and C2. Id. at § 12.00(G)(2)(a). The criterion in C1 is satisfied when the evidence shows that a claimant relies, on an ongoing basis, upon medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s), to diminish the symptoms and signs of the mental disorder (see 12.00(D)). Id. at § 12.00(G)(2)(b). A claimant must demonstrate documented ongoing medical treatment with a frequency consistent with accepted medical practice for the type of treatment or evaluation required for the medical condition. Id. at § 12.00(G)(2)(b). The agency will take account for periods of inconsistent treatment or lack of compliance with treatment that may result from the mental disorder. Id. at § 12.00(G)(2)(b). If the evidence indicates that the inconsistent treatment or lack of compliance is a feature of the mental disorder, and it has led to an exacerbation of symptoms and signs, it will not be used as evidence to support a finding that a claimant has not received ongoing medical treatment as required by paragraph C1. Id. at § 12.00(G)(2)(b).
The criterion in C2 is satisfied when the evidence shows that, despite a claimant's diminished symptoms and signs, a claimant has achieved only marginal adjustment. Id. at § 12.00(G)(2)(c). "Marginal adjustment" means that a claimant's adaptation to the requirements of daily life is fragile; that is, a claimant has minimal capacity to adapt to changes in the environment or to demands that are not already part of a claimant's daily life. Id. at § 12.00(G)(2)(c). Marginal adjustment is demonstrated when the evidence shows that changes or increased demands have led to exacerbation of a claimant's symptoms and signs and to deterioration in a claimant's functioning; for example, a claimant becomes unable to function outside of his or her home or a more restrictive setting, without substantial psychosocial supports (see 12.00(D)). Id. at § 12.00(G)(2)(c). Such deterioration may have necessitated a significant change in medication or other treatment. Id. at § 12.00(G)(2)(c). Similarly, because of the nature of a claimant's mental disorder, evidence may document episodes of deterioration that have required a claimant to be hospitalized or absent from work, making it difficult for a claimant to sustain work activity over time. Id. at § 12.00(G)(2)(c).
In determining Plaintiff did not meet the criteria for paragraph B the ALJ explained:
In understanding, remembering, or applying information, [Plaintiff] has mild limitations. The record does not document significant memory loss or problems related to cognitive functioning or learning. [Plaintiff] has shown both fair and poor insight and judgment in the clinical setting. She generally shows normal attention/concentration with no abnormalities of thought. [Plaintiff] can hold logical conversations and generally does not require reminders to perform activities of daily living. There are no ongoing reports of delusions, perceptual disturbances, or paranoia.
In interacting with others, [Plaintiff] has moderate limitations. [Plaintiff] experiences mood instability, anger outbursts and anxiety. She generally related well in the clinical setting but has shown uncooperative behavior with providers on one or two occasions. She can adequately converse in the clinical setting with appropriate social skills. [Plaintiff] spends time with others and goes out in public; however, she has a history of altercations and physically aggressive behaviors. There is no evidence of ongoing homicidal ideation, social withdrawal or antisocial behaviors.
With regard to concentrating, persisting, or maintaining pace, [Plaintiff] has moderate limitations. [Plaintiff] generally showed appropriate attention and focus in the clinical setting but has a history of anger outbursts. [Plaintiff] is able to perform simple math calculations and maintain logical conversations. There is no evidence of significant deficits in attention or memory, but she has shown poor insight and judgment on occasion. [Plaintiff] generally has intact thought processes with no delusions, perceptual disturbances, paranoia or suicidal ideation. Nonetheless, there is a history of suicidal ideation.
As for adapting or managing oneself, [Plaintiff] has experienced mild limitations. The evidence suggests that [Plaintiff] has difficulty with frustration tolerance but is generally capable of controlling her behavior and emotions with medication
compliance. [Plaintiff] can perform matters of personal care and get along with medical providers. Since late 2013, she underwent hospitalization on two occasions for suicidal ideation, but she does not require a highly structured living environment due to problems adapting.(Tr. 17). In determining Plaintiff did not meet the criteria for paragraph C the ALJ explained:
In this case, the evidence fails to establish the presence of the "paragraph C" criteria of the applicable listings since there is no evidence that [Plaintiff]'s condition is "serious and persistent" as that listing required coupled with minimal capacity to adapt to changes or demands in the environment that are not part of daily life and ongoing medical treatment or highly structured setting that diminishes the symptoms and signs of the mental disorder.(Tr. 17). Substantial evidence supports the ALJ's conclusion Plaintiff did not demonstrate the severity of symptoms to meet the criteria for either paragraph B or C required to qualify for Listings 12.04, 12.06, and 12.08. (Tr. 17). While Dr. Dall's July 2016 opinion (Tr. 693-96) found Plaintiff to experience marked limitations, as discussed above, substantial evidence supports the ALJ's allocation of limited weight to Dr. Dall's July 2016 opinion, and allocation of greater weight to the opinion of Dr. Williams (Tr. 88-91) with additional limitations based on the record. (Tr. 19-20) (ALJ's allocation of weight to medical opinions).
Regarding Plaintiff's 12.05 Listing argument, the undersigned finds Defendant's argument persuasive. Def. Br. at 21-22. Plaintiff fails to meet her burden to demonstrate she meets the criteria of Listing 12.05 as evidenced by the opinions of Drs. Dall and Williams, who did not indicate Plaintiff had any cognitive impairment. (Tr. 88, 693). Moreover, Plaintiff enjoyed reading and writing, was able to apply for jobs, and was even able to teach English as a second language to adults. (Tr. 224, 522, 580, 584, 604, 632, 794, 813, 820, 825). The undersigned finds no error in the ALJ's omission of a 12.05 Listing analysis, as the evidence does not warrant one.
Given that not all the elements of Listings 12.04, 12.05(C), 12.06, and 12.08 have been satisfied, substantial evidence supports the ALJ's determination that Plaintiff does not meet the Listing. See Williams v. Sullivan, 970 F.2d 1178, 1186.
D. Allocation of Weight to GAF Scores
Plaintiff argues the ALJ erred in allocating limited weight to Plaintiff's GAF scores. Pl. Br. at 2. Plaintiff continues the "ALJ assigned little weight to the GAF scores, does not mention what they were, or offer any analysis on the GAF scores as part of his determination of Claimant's RFC." Pl. Br. at 10. The ALJ correctly explained:
Schwartz v. Colvin, 3:12-CV-01070, 2014 WL 257846 at *5, n. 15 (M.D. Pa. Jan. 23, 2014) ("The GAF score allows a clinician to indicate his judgment of a person's overall psychological, social and occupational functioning, in order to assess the person's mental health illness. Diagnostic and Statistical Manual of Mental Disorders 3-32 (4th ed.1994). A GAF score is set within a particular range if either the symptom severity or the level of functioning falls within that range. Id. The score is useful in planning treatment and predicting outcomes. Id. The GAF rating is the single value that best reflects the individual's overall functioning at the time of examination. The rating, however, has two components: (1) symptom severity and (2) social and occupational functioning. The GAF is within a particular range if either the symptom severity or the social and occupational level of functioning falls within that range. When the individual's symptom severity and functioning level are discordant, the GAF rating reflects the worse of the two. . . . . 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 to 60 represents moderate symptoms or any moderate difficulty in social, occupational, or school functioning. Id.").
[Plaintiff] was assigned Global Assessment of Functioning ("GAF") scores during the relevant time (Exhibits 1F, 3F, 7F, 9F). The undersigned notes GAF ratings are no longer used in the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (See AM-13066 and Diagnostic and Statistical Manual of Mental Disorders (5th ed. Text Revision 2013)). Moreover, a GAF score is a global assessment that can easily vary from one practitioner to the next and generally represent only a "snapshot" of the presentation of information available from the client on the day of the assessment. Further, a GAF score encompasses more than just a claimant's mental functioning and includes additional factors such as a loss of employment, financial difficulties, medical difficulties and other stressors. Accordingly, very little weight is afforded to these scores.(Tr. 21). Plaintiff argues social security administration's Administrative Message 13066 mandates ALJs to "'consider GAF scores as medical opinion evidence.'" Pl. Br. at 24 (quoting Emrich v. Colvin, 90 F. Supp. 3d 480, 492 (M.D.N.C. 2015) (quoting Soc. Sec. Admin., Administrative Message 13066 (July 22, 2013)). However, "there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision." See SSR 06-3p; Phillips v. Barnhart, 91 Fed.Appx. 775, 780 (3d Cir. 2004) ("the ALJ's mere failure to cite specific evidence does not establish that the ALJ failed to consider it") quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998). The Court in Pizarro v. Berryhill thoroughly discussed Plaintiff's argument concluding:
a GAF score does not trigger any unique requirements for the ALJ to fulfill; the failure to invoke the number itself does not require remand. Rather, the question is whether the ALJ conducted a thorough analysis of the medical evidence regarding plaintiff's mental impairments, such that the ALJ properly addressed the issues on which plaintiff's GAF scores were based. In other words, even if the ALJ did not specifically mention an actual GAF number, she has provided "good reasons" for discounting the GAF score if she adequately explained why she discounted the whole of the source's opinion.Pizarro v. Berryhill, No. CV 17-1054, 2018 WL 8223251, at *3-6 (E.D. Pa. July 31, 2018), report and recommendation adopted, No. CV 17-1054, 2019 WL 1994462 (E.D. Pa. May 6, 2019). Plaintiff cites Philhaven records indicating a GAF score of 40 from November 2013, GAF scores of 35 in February 2014, March 2014, and June 2014 (Tr. 274-81). These low GAF scores, if credited, would not require a finding of disability. See Gilroy v. Astrue, 351 F. App'x 714, 715-16 (3d Cir. 2009); see also, Horst v. Comm'r of Soc. Sec., 551 F. App'x 41, 47 (3d Cir. 2014). The Third Circuit in Gilroy v. Astrue affirmed a similar decision where the ALJ did not explicitly address a particular GAF score however, the ALJ referenced the relevant medical record to support finding the plaintiff was not disabled under the Act. See Gilroy v. Astrue, 351 F. App'x 714, 715-16 (3d Cir. 2009). The Court in Gilroy explained:
The ALJ's opinion clearly reflects substantial evidence supporting this conclusion and adequately explains why the evidence relied upon by Gilroy did not persuade him that she had more serious limitations. While it did not make explicit reference to Dr. Wang's one-time rating of GAF 45, it did make repeated references to observations from Dr. Wang's reports. Given the failure of Dr. Wang to "express any opinions regarding specific limitations" or otherwise to explain the basis for his GAF rating, we are at a loss to understand how the ALJ could have responded to that rating in a more satisfactory manner. As we have noted, he did explain his views on the degree of Gilroy's limitations with respect to social and occupational functioning and did conclude that "her social anxiety limits her ability to interact with supervisors and coworkers and precludes interaction with the public." This conclusion is not in conflict with Dr. Wang's GAF rating, and no further comment was required.Gilroy v. Astrue, 351 F. App'x 714, 715-16 (3d Cir. 2009). Moreover, the Philhaven records with the low GAF scores were reviewed by Dr. Richard Williams, (Tr. 86-91) and notwithstanding these low GAF scores, Dr. Williams opined that Plaintiff was capable for work. (Tr. 89-91). The ALJ gave partial weight to Dr. William's October 2014 opinion and reviewed in detail the mental health records encompassing the low GAF scores that Plaintiff highlights in her brief. (Tr. 19-20). In addition to reviewing the medical record and finding improvement with treatment, (Tr. 19) the ALJ's reliance on Dr. William's medical opinion and analysis of the record supports the ALJ's allocation of little weight to Plaintiff's GAF's scores. The record supports the ALJ's findings notwithstanding the ALJ's omission of enumerated GAF scores and explanation for the rejection of each GAF score. See Gilroy v. Astrue, 351 F. App'x 714, 715-16 (3d Cir. 2009); (Tr. 19-20). Plaintiff also argues that the ALJ erred by failing to specifically address the low GAF score within Dr. Dall's opinion, (Tr. 693-96) separately from the discussion allocating little weight to Dr. Dall's opinion. Pl. Br. at 25. The undersigned finds no error. See Gilroy v. Astrue, 351 F. App'x 714, 715-16 (3d Cir. 2009); Pizarro v. Berryhill, No. CV 17-1054, 2018 WL 8223251, at *3-6 (E.D. Pa. July 31, 2018), report and recommendation adopted, No. CV 17-1054, 2019 WL 1994462 (E.D. Pa. May 6, 2019. Based on the foregoing, the ALJ committed no reversible error for allocating little weight to the GAF scores.
VI. RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS to DENY Plaintiff's appeal and AFFIRM the Commissioner's decision in this case.
VII. NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A Judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The Judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.DATED: September 10, 2019
s/Gerald B. Cohn
GERALD B. COHN
UNITED STATES MAGISTRATE JUDGE