DAVISON v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CHRISTINE M. DAVISON

Civ. No. 18-15840 (KM)

Plaintiff,

OPINION

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Christine M. Davison brings this action pursuant to 42 U.S.C.

§ 1383(c)(3) to review a final decision of the Commissioner of Social Security

(“Commissioner”) denying her claim for Child’s Insurance Benefits and

Supplemental Security Income (“SSI”) under Title XVI of the Social Security

Act, 42 U.S.C. § 1381. Davison seeks to reverse the finding of the

Administrative Law Judge (“ALJ”) that she has not met the Social Security Act’s

definition of disabled since January 31, 2013, the alleged disability-onset

date.1

The question is whether the ALJ’s decision is supported by substantial

evidence. Specifically, Davison contends that the evidence does not support the

ALJ’s findings as to (i) whether she is presumptively disabled and (ii) her

residual functional capacity (“RFC”).

For the reasons stated below, the decision of the ALJ is AFFIRMED.

1 Originally, the alleged disability-onset date was June 29, 2008. However, at her

hearing before the ALJ, Davison amended her onset date to reflect the fact that a

previous adjudication had barred her claims through the period ending January 30,

2013. (R. 831).

I. BACKGROUND2

On June 12, 2014, Davison filed an application for SSI under Title XVI of

the Social Security Act asserting that she was disabled as of June 29, 2008

(later amended to January 31, 2013, see n. 1, supra). (R. 237). Her application

was initially denied on July 28, 2014 (R. 166) and upon reconsideration on

November 13, 2014. (R. 831).

On December 2, 2016, Davison, represented by an attorney, appeared

and testified before the ALJ. (R. 24, 26-52). Testimony was heard from Brian

Daly, a Vocational Expert (“VE”). (R. 48-50) On March 15, 2017, the ALJ issued

a decision finding that Davison was not disabled within the meaning of the

Social Security Act. (R. 831-840). The ALJ determined that Davison had

attained the age of 22 prior to the alleged onset date, and that her

impairments, specifically bipolar disorder and anxiety, were severe, though not

of listing-level severity. (R. 832, 834). He concluded that Davison, given her

RFC, was able to perform work existing in significant numbers in the national

economy. (R. 839).

II. STANDARD

To qualify for child’s insurance benefits, a claimant must be 18 years old

or older and have a disability that began before the claimant attained the age of

22. 20 C.F.R. § 404.350(a)(5). To qualify for SSI, a claimant must meet income

and resource limitations, and show that he or she “is unable 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

2 Citations to the record are abbreviated as follows:

“DE __” = Docket entry in this case;

“DE 22” = Davison’s brief;

“DE 27” = The Commissioner’s brief;

“R. __” = Administrative Record (DE 6, 7) (the ALJ’s decision

was separately filed as DE 7 but consecutively

paginated) (page numbers refer to the page numbers

in the lower-right corner of the page—not the ECF

docket page numbers).

lasted or can be expected to last for a continuous period of not less than twelve

months.” 42 U.S.C. § 1383c(a)(3)(A). A person is deemed unable to engage in

substantial gainful activity

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. For purposes of the preceding sentence (with respect to

any individual), “work which exists in the national economy”

means work which exists in significant numbers either in the

region where such individual lives or in several regions of the

country.

42 U.S.C. § 1382c(a)(3)(B).

A. The Five-Step Process and This Court’s Standard of Review

Under the authority of the Social Security Act, the Administration has

established a five-step evaluation process for determining whether a claimant

is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. This

Court’s review necessarily incorporates a determination of whether the ALJ

properly followed the five-step process prescribed by regulation. The steps may

be briefly summarized as follows:

Step One: Determine whether the claimant has engaged in substantial

gainful activity since the onset date of the alleged disability. 20 C.F.R.

§§ 404.1520(b), 416.920(b). If yes, the claimant is not disabled. If not, move to

step two.

Step Two: Determine if the claimant’s alleged impairment, or

combination of impairments, is “severe.” Id. §§ 404.1520(c), 416.920(c). If not,

the claimant is not disabled. If the claimant has a severe impairment, move to

step three.

Step Three: Determine whether the impairment meets or equals the

criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt.

404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high

level to identify clear cases of disability without further analysis). If so, the

claimant is automatically eligible to receive benefits; if not, move to step four.

Id. §§ 404.1520(d), 416.920(d).

Step Four: Determine whether, despite any severe impairment, the

claimant retains the Residual Functional Capacity (“RFC”) to perform past

relevant work. Id. §§ 404.1520(e)–(f), 416.920(e)–(f). If yes, the claimant is not

disabled. If not, move to step five.

Step Five: At this point, the burden shifts to the Commissioner to

demonstrate that the claimant, considering her age, education, work

experience, and RFC, is capable of performing jobs that exist in significant

numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g); see

Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits

will be denied; if not, they will be awarded.

As to all legal issues, this Court conducts a plenary review. See

Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to

factual findings, this Court adheres to the ALJ’s findings, as long as they are

supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d

Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will

“determine whether the administrative record contains substantial evidence

supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).

“Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Zirnsak v. Colvin, 777 F.3d 607,

610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial

evidence “is more than a mere scintilla but may be somewhat less than a

preponderance of the evidence.” Id. (internal quotation marks and citation

omitted).

When there is substantial evidence to support the ALJ’s factual findings,

this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. §

405(g)); Zirnsak, 777 F.3d at 610-11 (“[W]e are mindful that we must not

substitute our own judgment for that of the fact finder.”). This Court may,

under 42 U.S.C. § 405(g), affirm, modify, or reverse the Commissioner’s

decision, or it may remand the matter to the Commissioner for a rehearing.

Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm’r of

Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir. 2007).

Remand is proper if the record is incomplete, or if there is a lack of

substantial evidence to support a definitive finding on one or more steps of the

five-step inquiry. See Podedworny, 745 F.2d at 221-22. Remand is also proper

if the ALJ’s decision lacks adequate reasoning or support for its conclusions, or

if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.

Sec., 220 F.3d 112, 119-20 (3d Cir. 2000).

B. The ALJ’s Decision

The ALJ followed the five-step process in determining that Davison was

not disabled. The ALJ’s findings may be summarized as follows:

Step One: At step one, the ALJ determined that Davison had not

engaged in substantial gainful activity since January 31, 2013, the amended

alleged onset date.3 (R. 833).

Step Two: At step two, the ALJ determined that Davison had the

following severe impairments: bipolar disorder and anxiety. (R. 834).

Step Three: At step three, the ALJ determined that Davison did not have

an impairment, or combination of impairments, that meet or medically equal

the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P.,

app. 1. (R. 834-836).

Under Listings 12.04 and 12.06 for mental disorders, the ALJ concluded

that Davison’s impairments did not cause at least two “marked” limitations, or

one “extreme” limitation, under the Paragraph B criteria for mental functioning.

(R. 834). To satisfy the Paragraph B criteria, a claimant’s mental disorder must

result in an extreme limitation of one, or a marked limitation of two, of the four

Paragraph B areas of mental functioning.

3 See n. 1, supra.

Of the four areas evaluated for mental functioning, the ALJ found that

Davison had moderate difficulty in three areas: (1) understanding,

remembering, or applying information; (2) interacting with others; and (3)

concentrating, persisting, or maintaining pace. (R. 834-835). He found that she

experienced marked limitations in area four: adapting or managing herself. (R.

835).

The ALJ also considered whether Davison satisfied the Paragraph C

criteria. (R. 835). He concluded that she did not, because the medical evidence

of record did not show that she satisfied Section 2 of the Paragraph C criteria.

(R. 835-836).

Step Four: At step four, the ALJ determined that Davison had the RFC

to perform a full range of work at all exertional levels, but with the following

non-exertional limitations: She could understand, remember, and carry out

simple instructions; have occasional interactions with co-workers, supervisors,

and the general public; and handle changes to essential job functions on an

occasional basis. (R. 836).

The ALJ also determined that Davison did not have past relevant work.

(R. 838).

Step Five: At step five, the ALJ considered Davison’s age, education,

work experience and RFC in conjunction with the Medical-Vocational

Guidelines. (R. 839). Relying on the testimony of the VE, the ALJ identified

several representative jobs that Davison could perform: (1) Counter Clerk

(Director of Occupational Titles (“DOT”) #249.366-010); Parking Lot Attendant

(DOT # 915.478-010); and Cashier II (DOT # 211.462-010). (Id.). The ALJ also

determined, based on the VE’s testimony, that a significant number of these

jobs were available nationally. (Id.).

Accordingly, the ALJ determined that Davison was not under a disability,

as defined in the Social Security Act, since January 31, 2013. (Id.).

III. DISCUSSION

Davison argues that the ALJ erred in determining her limitations at Step

3, ignored critical evidence in establishing her RFC, and failed to consider the

effect of her obesity.,

A. Step 3 Evaluation

Davison argues that the ALJ did not consider the cumulative effect of her

mental impairments in conducting the Step 3 evaluation. Specifically, she

argues that the ALJ did not properly evaluate the Paragraph B and C criteria.

(Pl. Br. at 20).

1. Paragraph B Criteria

First, she claims that the ALJ erred in determining the third Paragraph B

criterion: concentrating, persisting, or maintaining pace. (Pl. Brf. at 15). The

ALJ found that this limitation was “moderate”, whereas Davison believes it

ought to have been “marked.” (R. 834-835). This area of focus “refers to the

abilities to focus attention on work activities and stay on task at a sustained

rate.” See 20 C.F.R., pt. 404, subpt. P, § 12.00(E)(3).4

Davison points to the opinion of Dr. Brown, a consultative psychologist

retained by the Commissioner to examine her in connection with her

application. (R. 741). Dr. Brown, she says, opined that she “appears to be

limited intellectually and has poor focus and concentration and should not be

allowed to manage her own funds.” (R. 739-740). She also references other of

his findings that illustrate marked limitations. (Pl. Brf. at 16).

The ALJ concluded the following regarding Davison’s capacity for

concentrating, persisting or maintaining pace:

4 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.

20 C.F.R., pt. 404, subpt. P, § 12.00(E)(3).

The medical evidence of record shows the claimant generally did

not complain to treating practitioners of serious difficulty

maintaining concentration, persistence, and pace. The claimant

often reported adequate symptom control from psychiatric

medications. Mental status examination results show the claimant

had no serious problems with memory, or simple calculations.

Additionally, treating practitioners did not observe that the

claimant was overly distractible or slow. The claimant has reported

watching TV and reading for pleasure, which requires from

concentration and persistence. She has also reported doing a

variety of daily tasks that require some concentration, persistence,

and pace.

(R. 835).

Substantial evidence supports the determination that Davison’s

limitations were “moderate” rather than “marked.” All of the evidence cited

above points to some level of impairment, but demonstrates that Davison was

not entirely debilitated in terms of concentration. The ALJ did not ignore the

evidence of her limitations altogether. He concluded that limitations did exist

and were moderate.

Moreover, it is not clear that Davison’s reading of Dr. Brown’s report is

correct. As the Commissioner notes, the statement that Davison “has poor

focus and concentration” appears under the heading “Ability to Manage

Funds”; it appears to be limited to that topic, and does not appear to be

intended as a general comment on Davison’s ability to concentrate. (R. 739-

740).

Even if Dr. Brown’s report expressly indicated that Davison had a

marked limitation, which it did not, the ALJ would not have been required to

privilege that conclusion above other evidence. The ALJ was of course required

to consider Dr. Brown’s report. See Chandler v. Comm’r of Soc. Sec., 667 F. 3d

356 (3d Cir. 2011) (“State agent opinions merit significant consideration . . . .”).

It appears that he did so. The ALJ explained the results of mental status

reports, including Dr. Brown’s. True, the ALJ did not cite the report by name,

but in concluding that “mental status exams showed no serious problems with

memory or simple calculations,” the ALJ cited to the exhibit consisting of Dr.

Brown’s report. (R. 835). The ALJ did in fact consider Dr. Brown’s report and

aggregated the information therein into a general pronouncement. Thus this is

not a case where in which the ALJ ignored or failed to explain his rejection of

an expert’s finding of disability. Dr. Brown did not say Davison was disabled,

and the ALJ’s summary of the mental status reports is consistent with his

findings.

The record does not indicate that the Plaintiff had more than moderate

limitations in maintaining concentration, or that the ALJ lacked substantial

evidence for his conclusions. The evidence Davison now cites relates more

specifically to her ability to adapt and manage herself—another Paragraph B

criterion—the ALJ did find she had marked limitations in that area.

Accordingly, I find that the ALJ properly considered the evidence,

including Dr. Brown’s report, in coming to the conclusion that Davison had a

moderate limitation in concentrating, persistence, and maintaining pace.

Substantial evidence also existed for the other Paragraph B criteria, which

Davison does not challenge.

2. Paragraph C Criteria

Davison next argues that the ALJ erred in determining whether she

satisfied the Paragraph C criteria. She claims that the ALJ’s determination was

conclusory and wrongfully put the burden on the Plaintiff to point to specific

evidence supporting the finding. She also argues that the conclusion was made

in the face of uniform evidence to the contrary. (Pl. Brf. at 17-20).

Paragraph C is a component of the listing analysis for certain mental

disorders, including the two that Davison complains of:

Paragraph C of listings 12.02, 12.03, 12.04, 12.06, and 12.15

provides the criteria we use to evaluate “serious and persistent

mental disorders.” To satisfy the paragraph C criteria, your mental

disorder must be “serious and persistent”; that is, there must be a

medically documented history of the existence of the disorder over

a period of at least 2 years, and evidence that satisfies the criteria

in both C1 and C2 (see 12.00G). (When we refer to “paragraph C”

or “the paragraph C criteria” in the introductory text of this body

system, we mean the criteria in paragraph C of listings 12.02,

12.03, 12.04, 12.06, and 12.15.)

20 C.F.R. Pt. 404, subpt. P., app. 1., § 12.00(A)(1)(c).

Section 12.00G describes the two sections in detail:

The criterion in C1 is satisfied when the evidence shows that you

rely, 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 your mental disorder (see

12.00D). We consider that you receive ongoing medical treatment

when the medical evidence establishes that you obtain medical

treatment with a frequency consistent with accepted medical

practice for the type of treatment or evaluation required for your

medical condition. We will consider periods of inconsistent

treatment or lack of compliance with treatment that may result

from your mental disorder. If the evidence indicates that the

inconsistent treatment or lack of compliance is a feature of your

mental disorder, and it has led to an exacerbation of your

symptoms and signs, we will not use it as evidence to support a

finding that you have not received ongoing medical treatment as

required by this paragraph.

The criterion in C2 is satisfied when the evidence shows that,

despite your diminished symptoms and signs, you have achieved

only marginal adjustment. “Marginal adjustment” means that your

adaptation to the requirements of daily life is fragile; that is, you

have minimal capacity to adapt to changes in your environment or

to demands that are not already part of your daily life. We will

consider that you have achieved only marginal adjustment when

the evidence shows that changes or increased demands have led to

exacerbation of your symptoms and signs and to deterioration in

your functioning; for example, you have become unable to function

outside of your home or a more restrictive setting, without

substantial psychosocial supports (see 12.00D). Such deterioration

may have necessitated a significant change in medication or other

treatment. Similarly, because of the nature of your mental

disorder, evidence may document episodes of deterioration that

have required you to be hospitalized or absent from work, making

it difficult for you to sustain work activity over time.

20 C.F.R. Pt. 404, subpt. P., app. 1., § 12.00(G)(2)(b);(c).

Davison is correct that, when discussing Paragraph C, the ALJ stated

simply that the Plaintiff did not satisfy the requirements. (R. 835). However,

Davison does not explain why this was insufficient. The ALJ outlined the

relevant evidence at length when analyzing the Paragraph B criteria in the

preceding paragraphs. He found that the Plaintiff satisfied section C1 but that

there was no evidence to support a finding under C2. (R. 835).

Neither Davison nor the Commissioner points to any authority

articulating the template for analyzing Paragraph C criteria. One possible

template is that deeper analysis is required only when the record reflects some

evidence that the criteria are fulfilled. See Searles v. Comm’r of Soc. Sec., No.

18-cv-15804, 2019 WL 6337890, at *6 (D.N.J. Nov. 27, 2019) (holding that the

ALJ did not adequately support her Paragraph C analysis where the ALJ failed

to explain how strong evidence that the Plaintiff could not function

independently was outweighed by other evidence). But in cases where no such

evidence exists, a brief mention of the criteria can be sufficient. See Lewis v.

Comm’r of Soc. Sec., No. 15-cv-06275, 2017 WL 6329703, at *8 (D.N.J. Dec. 11,

2017) (“Although the ALJ only briefly addressed the matter, no more seemed to

be necessary. Paragraph C deals with criteria related to adapting to work and

being able to live alone, and multiple documents from the record support the

conclusion that there [were] no criteria to examine in this regard.”).

Davison does not point to specific evidence supporting the conclusion

that there were any such criteria to examine. She explains that the “medical

and life-experience evidence overwhelmingly confirms the uncontradicted

reality that plaintiff meets the C criteria and the ALJ’s own paragraph B finding

that plaintiff suffers ‘marked limitations’ denoting ‘serious problems in

adapting and managing oneself’ should be seen as endorsing that conclusion.”

(Pl. Brf. at 18). She argues that she cannot function outside her mother’s

home, cannot attend psychotherapy sessions without her mother sitting in,

and could not tolerate her senior year of high school. (Pl. Brf. at 19).

This hyperbolic survey does not demonstrate that the Plaintiff is unable,

as of 2013, to function outside of her home. As the ALJ noted, she frequently

leaves her house to socialize and engage in activities. (R. 835). She went on a

vacation with her family and her fiancé. (Id.). Her updated treatment records

showed that when she was compliant with her medications, she was stable and

handled typical daily activities on her own. (Id.). The ALJ was not required to

reiterate it when assessing whether she met Paragraph C criteria. Nor does

Davison point to any evidence indicating that she really did meet those criteria.

Davison attempts to throw responsibility back on the ALJ, or this Court.

She contends that it is neither her nor her attorney’s responsibility to “spoon-

feed each element to the ALJ in digestible portions.” (Pl. Brf. at 19). To Davison,

her burden is met when the evidence is “produced,” that is, when she has

submitted the medical reports. In some sense that is true, but on appeal she

must still point to some error by the ALJ.

The burden was on the claimant to establish that she meets the criteria.

She did not meet her burden and does not suggest on appeal how she could or

did do so. Davison points to no medical evidence that she has been unable to

function independently. As discussed above, the record indicates that she can.

No more than a brief mention of the Paragraph C criteria was therefore

required. Accordingly, I find that the ALJ’s determination that the Plaintiff did

not satisfy Paragraph C criteria was supported by substantial evidence.

3. Sufficiency of RFC Analysis

Davison makes a number of arguments that the ALJ did not

appropriately factor in various strands of evidence in determining her RFC. She

claims that “[t]here are no reasons given, there is very little evidence articulated

in support and the majority of the evidence is both omitted and contradictory

to the ALJ’s findings.” (Pl. Brf. at 27). This argument is essentially two-fold: (1)

there was not enough positive evidence to support the ALJ’s RFC determination

and (2) the evidence cited was in fact contradictory to omitted evidence.

As for the first argument, the ALJ surveyed the record evidence

thoroughly. He noted evidence that indicated Davison was able to function at a

relatively normal level, and explained why that outweighed evidence that she

could not. For example, the ALJ mentioned an August 2011 hospital visit

“based upon serious symptomatology[.]” (R. 837). However, the ALJ discounted

the impact of this visit on the Plaintiff’s disability status because it occurred

following non-compliance with treatment and medications, and it appeared to

be anomalous in relation to Davison’s otherwise stable and improved condition.

(Id.). The ALJ summarized the theme of the record by noting that Davison “has

received conservative mental health treatment, has not had any crises, and

appears on balance to be getting better control of her symptoms.” (R. 838).

Davison points to evidence that her situation is worse than the ALJ

accepts. She argues that it cannot be the case that she can occasionally

interact with coworkers and handle changes to essential job functions when

the ALJ himself found that she had marked and moderate limitations in those

abilities. (Pl. Brf. at 24). She also argues that even though the evidence shows

that she has sufficient intellect to perform job duties, she lacks the ability to

control herself, which renders her intellect “entirely irrelevant.” (Pl. Brf. at 25).

A finding that a claimant has marked or moderate limitations does not

automatically require an RFC that she cannot function in those areas at all. It

is the role of the ALJ to craft the RFC. The marked and moderate limitations

were just that—limitations. They were incorporated into the RFC. To support

the theory that she could have “occasional” interactions with others, the ALJ

cited her treatment notes which indicated that “she consistently denied any

mood swings, any feelings of being overwhelmed or sadness. She also denied

any symptoms of mania, crying spells, disturbed sleep or preoccupation.” (R.

837). Davison argues that her personality disorder overrides her average

intelligence, but the ALJ was not required to accept that argument. Instead, he

outlined positive evidence showing Davison could behave within acceptable

limits.

Davison also claims that basing this RFC on the findings of consultative

examinations without specifying the examiners by name somehow runs afoul of

the ALJ’s duties, but she does not provide any legal support for that

contention. Further, a key finding of the ALJ’s opinion is the fact that “[t]here

are no treating physician medical source statements opining that claimant was

disabled.” (R. 837). The ALJ did not need to engage in any deductive reasoning

discounting opinions that the Plaintiff was disabled because there were none. I

disagree with Davison’s contention that the ALJ did not survey enough

evidence to support the RFC determination.

As for the second argument, it is not accurate to say that the majority of

the evidence is both omitted and contradictory. Davison points to a report from

one Dr. Baharlias describing symptoms of bipolar disorder and an older report

from Dr. Brown.5 (Pl. Brf. 26-27). These reports do not represent the majority of

evidence. The ALJ cited to multiple other reports and surveyed a significant

amount of evidence. He was not required to discuss or describe every page of

the record. He did not, as Davison seems to suggest, cherry pick a handful of

positive statements out of a universe of negative statements.

Moreover, the ALJ’s conclusions are not contradicted by these reports,

which date from before the claimed period of disability. Dr. Baharlias

interviewed the Plaintiff on January 26, 2010. (R. 510). He consulted with the

patient in conjunction with a disability benefits application, and was not her

regular treating physician. (Id.). He described her behavior during the visit as

“cooperative and appropriate, and very frank.” (R. 511). Symptoms were typical

of the symptoms described in other reports: she exhibited signs of bipolar

disorder, sometimes became confrontational with her mother, and had an

impaired emotional range. (Id.). He also mentioned that “there is a history of

violence when explosive.” (R. 512). Davison draws attention to the finding that

she had difficulty with serial 7s. (R. 511). However, nothing in this report

contradicts the evidence that the ALJ cited indicating that Davison’s symptoms

had generally been under control following her August 2011 hospitalization.

Nor do the findings indicate that her symptoms were worse than those

described by the ALJ in his RFC analysis.

Dr. Brown’s older report is similar. He interviewed the Plaintiff on March

14, 2011 (prior to her August 2011 hospitalization). (R. 604). Dr. Brown

5 Davison also seems to argue that the ALJ was not permitted to rely on reports

of the patient prior to the amended alleged onset date. She provides no legal support

for that claim, and even if she did, the argument is contradictory. The older reports are

her only evidence that the ALJ ignored indicia of disability.

described Davison as depressed and apathetic. (R. 605). He also reported that

she had a history of agitation, including starting physical altercations with little

provocation. (Id.). He also, however, witnessed her as “pleasant and

cooperative” during the examination. (Id.). In this visit, too, she had difficulty

with serial 7s. (R. 606). However, she also described a relatively ordinary level

of functioning; she had relationships with friends and family, managed her own

money, and spent time watching television and bowling. (Id.). Dr. Brown

diagnosed her with bipolar disorder, and explained that her prognosis was

“fair” contingent on her continuing to benefit from mental health care. (R. 607).

This report, like the report of Dr. Baharlias, demonstrates a patient

profile consistent with the one described by the ALJ. The ALJ acknowledged

her emotional limitations. (R. 836-837). But the ALJ also found that the

evidence supported a conclusion that the Plaintiff had improved since 2011

and generally can function normally when receiving treatment. (R. 837). He

makes numerous citations to the record to support this finding. (Id.). Davison

is therefore incorrect that the ALJ hid the majority of the evidence, which

would show her as disabled. On the contrary, the ALJ cites to substantial

evidence supporting his RFC finding, and that finding is not contradicted by

these older reports or other evidence in the record.

I therefore find that the ALJ’s determination of the RFC was supported

by substantial evidence.

4. Consideration of Plaintiff’s Obesity

Davison argues that the ALJ’s RFC determination was tainted by a

failure to consider the effects of her obesity. (Pl. Brf. at 28-33). She cites a case

suggesting that the ALJ must consider obesity at every step of the analysis. (Pl.

Brf. at 31 (citing Diaz v. Comm’r of Soc. Sec., 577 F. 3d 500, 504 (3d Cir.

2009)). But in that case, the Plaintiff asserted that his obesity impacted his job

performance, and the ALJ had agreed that the impairment was severe. Diaz,

577 F. 3d at 504. True, references to obesity in physician reports are enough to

put the ALJ on notice that obesity could be a factor in the ALJ’s analysis. Id.

But the Plaintiff is still required to argue that her obesity would impact her job

performance. Id. To warrant remand, the Plaintiff would have to explain how

“obesity impacts [her] functioning or ability to work or identif[y] medical

evidence of the same . . . .” Cosme v. Comm’r of Soc. Sec., No. 18-cv-01327,

2020 WL 2079284, at *4 (D.N.J. April 30, 2020). She does not.

Davison’s disability report listed “[b]ipolar disorder, depression, anxiety”

as disabling factors. (R. 286). While she does point to medical evidence

documenting her obesity, she does not point to any evidence showing that her

obesity would impact her ability to perform any job, nor does she even make an

argument that it does. Accordingly, I will not remand on this basis.

IV. CONCLUSION

For the foregoing reasons, the ALJ’s decision is affirmed. An appropriate

order accompanies this Opinion.

Dated: July 2, 2020

/s/ Kevin McNulty

______________________________

Hon. Kevin McNulty

United States District Judge