SMITH v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

THERESA S.,

Plaintiff,

Civ. No. 21-19997 (KM)

v.

OPINION

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

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

Plaintiff Theresa S. brings this action to review a final decision of the

Commissioner of Social Security (“Commissioner”) denying her claims for Title

II Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security

Income (“SSI”). She argues that the ALJ’s determination that she is not

disabled as defined by Title II of the Social Security Act was not supported by

substantial evidence. For the reasons stated below, the Commissioner’s

decision is AFFIRMED.

I. BACKGROUND1

Theresa S. applied for DIB pursuant to Sections 216(i) and 223(d) of the

Social Security Act (“SSA”) on February 15, 2019. She claimed a period of

disability beginning on September 27, 2018, based on depression, bipolar

disorder, anxiety, and post-traumatic stress disorder, as well as physical

impairments including diabetes, sleep apnea, high blood pressure, right foot

1 Citations to the record are abbreviated as follows:

DE = docket entry

R. _ = Administrative Record (DE 6)

Pl. Br. = Theresa S.’s corrected moving brief (DE 17-1)

SSA Br. = the Commissioner’s responding brief (DE 18)

Pl. Reply = Theresa S.’s reply brief (DE 21)

and knee pain, and obesity. (R. 16.) Her application was denied initially and

upon reconsideration. (R. 14.) On May 19, 2020, she had a hearing before an

Administrative Law Judge (“ALJ”) to review her application de novo. (R. 28-60.)

ALJ Ricardy Damille heard testimony from the plaintiff, who was represented

by counsel, and from a vocational expert (“VE”). On June 26, 2020,

ALJ Damille issued a decision finding that Theresa S. has the residual

functional capacity to perform a full range of work at all exertional levels

subject to certain nonexertional limitations. (R. 14-23) The Appeals Council

denied Plaintiff’s request for review on October 7, 2021, rendering the ALJ’s

decision a final decision of the Commissioner. (R. 1–6) This appeal followed.

II. DECISION FOR REVIEW

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

To qualify for Title II DIB benefits, a claimant must meet the insured

status requirements of 42 U.S.C. § 423. To qualify, a claimant must show that

she is unable to engage in substantial gainful activity by reason of any

medically determinable physical or mental impairment that can be expected to

result in death or that has lasted (or can be expected to last) for a continuous

period of not less than twelve months. 42 U.S.C. §§ 423(c), 1382(a).

Under the authority of the SSA, the Social Security Administration (the

“Administration”) has established a five-step evaluation process for determining

whether a claimant is 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, which is prescribed by regulation.

The steps may be briefly summarized as follows:

Step 1: Determine whether the claimant has engaged in substantial

gainful activity since the onset date of the alleged disability. 20 CFR §§

404.1520(b), 416.920(b). If not, move to step two.

Step 2: Determine if the claimant’s alleged impairment, or

combination of impairments, is “severe.” Id. §§ 404.1520(c),

416.920(c). If the claimant has a severe impairment, move to step

three.

Step 3: Determine whether the severe impairment meets or equals

the criteria of any impairment found in the Listing of Impairments.

20 CFR Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is

automatically eligible to receive disability benefits (and the analysis

ends); if not, move to step four. Id. §§ 404.1520(d), 416.920(d).

RFC and Step 4: Determine the claimant’s “residual functional

capacity” (“RFC”), meaning “the most [the claimant] can still do

despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). Caraballo v.

Comm’r of Soc. Sec., 2015 WL 457301, at *1 (D.N.J. Feb. 3, 2015).

Decide whether, based on his RFC, the claimant can return to her

prior occupation. 20 C.F.R. § 1520(a) (4)(iv); Id. §§ 404.1520(e)–(f),

416.920(e)–(f). If not, move to step five.

Step 5: At this point, the burden shifts to the Administration to

demonstrate that the claimant, considering his age, education,

work experience, and RFC, is capable of performing jobs that exist

in significant numbers in the national economy. 20 CFR §§

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.

On appeal, the Court conducts a plenary review of the legal issues. See

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

findings are reviewed “only to 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 “less than a

preponderance of the evidence but more than a mere scintilla.” Jones v.

Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted). “It means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. When substantial evidence exists to support the ALJ’s factual

findings, this Court must abide by the ALJ’s determinations. See id. (citing 42

U.S.C. § 405(g)).

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). Outright reversal

with an award of benefits is appropriate only when a fully developed

administrative record contains substantial evidence that the claimant is

disabled and entitled to benefits. Podedworny, 745 F.2d at 221–222; Morales v.

Apfel, 225 F.3d 310, 320 (3d Cir. 2000).

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); Leech v. Barnhart, 111 F. App’x 652,

658 (3d Cir. 2004) (“We will not accept the ALJ's conclusion that Leech was not

disabled during the relevant period, where his decision contains significant

contradictions and is therefore unreliable.”). It is also proper to remand where

the ALJ’s findings are not the product of a complete review which “explicitly

weigh[s] all relevant, probative and available evidence” in the record. Adorno v.

Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).

B. The ALJ’s Decision

ALJ Damille undertook the necessary step-by-step inquiry.

Step 1

The ALJ concluded that Theresa S. had not engaged in substantial

gainful activity from September 27, 2018, the alleged onset date. (R. 16.)

Step 2

The ALJ found that through the date last insured, Theresa S. had the

following severe impairments: depression, bipolar disorder, anxiety, and post-

traumatic stress disorder. (R. 16 (citing 20 CFR 404.1520(c).)

Appropriately citing to the medical evidence and administrative record,

the ALJ found that the following claimed conditions did not impose more than

a slight vocational limitation on the claimant’s ability to perform work related

activity for 12 consecutive months, and hence were not severe: “diabetes, sleep

apnea, high blood pressure, right foot and knee pain, and obesity (BMI 39).”

(R. 16–17.)

Step 3

With respect to the impairments found to be severe, the ALJ determined

that Theresa S. did not have an impairment or combination of impairments

that met or medically equaled the severity of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix 1. (R. 17.) In particular, the ALJ’s

discussion of the evidence focused on Listings 12.04 (depressive, bipolar, and

related disorders), 12.06 (anxiety and obsessive-compulsive disorders), and

12.15 (trauma- and stressor-related disorders).2

2 A claimant's mental disorder meets or medically equals Listings 12.04, 12.06,

or 12.15 when it satisfies “paragraph A” criteria and either “paragraph B” or

“paragraph C” criteria. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.04, 12.06, 12.15.

Acknowledging the presence of paragraph A criteria given Theresa S.’s medical

documentation, the ALJ examined whether paragraph B or paragraph C criteria were

met.

To satisfy Listing 12.04, 12.06, and 12.15’s paragraph B criteria, a claimant

must demonstrate extreme limitation of one, or marked limitation of two, of the

following areas of mental functioning: (1) understand, remember, or apply information;

(2) interact with others, (3) concentrate, persist, or maintain pace; and (4) adapt or

manage oneself. Id.

To satisfy Listing 12.04’s paragraph C criteria, a claimant must demonstrate

that she has a medically documented history of the existence of the disorder over a

period of at least 2 years and that there is evidence of both of the following: (1) medical

treatment, mental health therapy, psychosocial support(s), or a highly structured

setting(s) that is ongoing and diminishes the symptoms and signs of your mental

disorder; and (2) marginal adjustment, that is, the claimant has minimal capacity to

The ALJ found that the criteria matching paragraph B of these listings

are not met because Theresa S.’s mental impairments do not cause at least two

“marked” limitations or one “extreme limitation” as must be found under the

regulation. The ALJ found that Theresa S. has only a “mild” limitation with

respect to understanding, remembering, or applying information because

although Theresa S. testified that she had trouble with memory and focus,

medical evidence from her psychiatric care provider indicated that she had

good memory. (R. 17.) The ALJ found that Theresa S. has only a “mild”

limitation with respect to interacting with people given the evidence in the

record that shows she is able to interact with her friend who is her caretaker,

she is able to communicate with family members and attend her doctor’s

appointments, and she was able to travel to Florida for vacation in October

2018. (R. 17.) Slightly more significant were the limitations ALJ found Theresa

S. has with respect to managing oneself, as well as concentrating, persisting or

maintaining pace. The ALJ found that Theresa S. had a moderate limitation on

her ability to concentrate, persist or maintain pace given her difficulty with

completing tasks, concentrating, and following instructions, as she indicated in

her Function Report. (R. 18.) The ALJ further found that Theresa S. has a

“moderate” limitation on her ability to adapt and manage herself, crediting her

testimony that she receives assistance from her best friend who cleans, goes

grocery shopping, and does laundry for her, as well as Theresa S.’s testimony

that she does not get dressed and has to be told to take a shower. (R. 18.)

adapt to changes in environment or to demands that are not already part of daily life.

Id.

A claimant has an “extreme” limitation in a mental area where she is unable to

“function in this area independently, appropriately, effectively, and on a sustained

basis.” Id. § 12.00. A claimant has a “marked” limitation where such functioning is

“seriously limited.” Id. A claimant has a “moderate limitation” where such functioning

is “fair,” and a “mild limitation” where such functioning is “slightly limited.” Id.

The ALJ also noted that he considered the paragraph C criteria and

found that the evidence also fails to establish that these criteria are met. (R.

18.)

Finding that neither the paragraph B nor the paragraph C criteria were

met, the ALJ moved onto Step 4 and the analysis of Theresa S.’s residual

functional capacity.

RFC and Step 4

Next, ALJ Damille defined the claimant’s RFC:

5. After careful consideration of the entire record, I find that the

claimant has the residual functional capacity to perform a full

range of work at all exertional levels but with the following

nonexertional limitations: She cannot operate a motor vehicle. She

must avoid all exposure to hazards such as machinery and

heights. She is able to understand, remember and carry out simple

instructions. She is restricted to work involving few if any work

place changes and occasional decision making. She would be

absent from work one day per month.

(R. 18.) The ALJ analyzed at length the evidence supporting that RFC

determination. (R. 18–23.)

Based on the RFC, the ALJ concluded at Step 4 that Theresa S. is

unable to perform any past relevant work, specifically her previous work

as a veterinary technician and animal caretaker. (R. 21.) As required, the

ALJ considered Theresa S.’s position both as she actually performed it

and as it is generally performed.

Step 5

Considering Theresa S.’s age, education, work experience, and

RFC, the ALJ concluded at Step 5 that there are jobs available that

Theresa S. can perform. (R. 22.) The ALJ noted that Theresa S.’s ability

to perform work at all exertional levels has been compromised by certain

nonexertional limitations but found that based on the testimony of the

VE and the information contained in the Dictionary of Occupational

Titles, Theresa S. is capable of making a successful adjustment to other

work that exists in significant numbers in the national economy,

directing a finding that she is not disabled. (R. 22-23.)

III. DISCUSSION

In her appeal, Theresa S. asserts four arguments challenging the ALJ’s

underlying decision: (a) the ALJ’s mental RFC assessment was not supported

by substantial evidence; (b) the ALJ’s finding that the opinion of Theresa S.’s

treating psychiatrist was unpersuasive was not supported by substantial

evidence; (c) the ALJ erred by improperly evaluating Theresa S.’s allegations

and substantive complaints; and (d) the ALJ’s finding that Theresa S.’s

diabetes is not a severe impairment was not supported by substantial evidence.

A. Whether the ALJ’s RFC assessment was supported by

substantial evidence.

Theresa S. argues that the ALJ’s RFC assessment was flawed in three

ways. She contends that the assessment was not supported by substantial

evidence because it 1) fails to address Theresa S.’s need for a caregiver; 2) fails

to account for the extent of her limitations in interacting with others; and 3)

fails to properly consider the lay evidence from Theresa S.’s husband. (Pl. Br. at

17.) I address each of these issues in turn.

1. Need for a Caretaker

During a disability evaluation, an ALJ considers the support an

individual receives in order to function. The relevant regulation provides the

following explanation as to how the Administration considers such assistance:

How do we consider psychosocial supports, structured settings,

living arrangements, and treatment?

1. General. Psychosocial supports, structured settings, and living

arrangements, including assistance from your family or others, may

help you by reducing the demands made on you. In addition,

treatment you receive may reduce your symptoms and signs and

possibly improve your functioning, or may have side effects that limit

your functioning. Therefore, when we evaluate the effects of your

mental disorder and rate the limitation of your areas of mental

functioning, we will consider the kind and extent of supports you

receive, the characteristics of any structured setting in which you

spend your time, and the effects of any treatment. This evidence may

come from reports about your functioning from you or third parties

who are familiar with you, and other third-party statements or

information. Following are some examples of the supports you may

receive:

. . .

a. You receive help from family members or other people who monitor

your daily activities and help you to function. For example, family

members administer your medications, remind you to eat, shop for you

and pay your bills.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(D)(1).

Theresa S. argues that the ALJ erred by failing to account for

Theresa S.’s need for a caretaker in the residual functional capacity

assessment. (Pl. Br. 18-20.) She argues that her need for a caretaker clearly

shows that she is unable to work independently on a sustained basis. (Id.) Her

argument is undermined both by the ALJ’s decision as well as by the

evidentiary record. It is clear from the underlying decision that ALJ Damille

specifically considered the support Theresa S. receives from her best friend,

who she testified is her caretaker. The ALJ noted in the underlying decision

that Theresa S.’s best friend comes to see her, cleans, goes food shopping for

her, and does laundry. (R. 18.) The ALJ also acknowledged that Theresa S.’s

best friend assists her with taking her medication. (R. 19.) Without more, the

fact that Theresa S. testified that her best friend assists her with household

activities does not require that the ALJ address this in his statement of Theresa

S.’s RFC, nor does it demand a finding that Theresa S. is unable to work

independently. It certainly must be helpful to Theresa S. to have this support

at home, and her friend’s kindness is commendable. There is nothing in the

record, however, that suggests this assistance is medically necessary. The

record does not contain any evidence that Theresa S. raised the need for a

caretaker with her doctor or that a doctor otherwise prescribed or

recommended it.3

3 Indeed, the bulk of the evidence in the record regarding Theresa S.’s purported

need for a caretaker comes from her own subjective allegations. The ALJ is granted

Moreover, there is no other evidence in the record that would warrant a

different conclusion. Granted, the transcript from Theresa S.’s hearing before

the ALJ contains a handful of additional details regarding the help Theresa S.’s

best friend provides that are not explicitly mentioned in the ALJ’s decision—

e.g., preparing and dating meals for Theresa S., taking her to go shopping, and

looking after her dogs (R. 43-48)—but none of these details bear so significantly

on Theresa S.’s ability to work independently that it would be reasonable to

find the ALJ erred by failing to analyze them. In fact, the balance of Theresa

S.’s testimony supports the ALJ’s analysis in that it suggests Theresa S. does

not necessarily require a caretaker. When asked to explain why she needs her

best friend to visit and assist her, Theresa S. stated that it is because her

“husband works and feels more comfortable that she comes in to see me.” (R.

43.) When asked to elaborate on what her best friend does for her, Theresa S.

stated that her best friend “pretty much runs [her] house.” (R. 48.) Theresa S.’s

characterization suggests that the assistance her best friend provides is not so

clearly necessary that it demands a different RFC analysis.4

The ALJ did not commit error in his assessment of the psychosocial

support Theresa S. receives from her best friend.

2. Limitation in Interacting with Others

Theresa S. challenges the ALJ’s finding that she has a mild limitation in

the domain of interacting with others.5 (Pl. Br. 20.) She contends that the ALJ’s

great deference in evaluating such statements (see Section III.C. infra), and that

evaluation here is proper.

4 In considering the psychosocial supports a claimant receives, the

Administration does not strictly view such support as indicative of functional

limitation. The Administration also considers how “assistance from your family or

others may help you by reducing the demands made on you.” 20 C.F.R. Pt. 404,

Subpt. P, App. 1 § 12.00(D)(1).

5 To be clear, Theresa S. characterizes her argument as pertaining to the ALJ’s

RFC assessment, and she eventually raises RFC-related issues, but the ALJ’s finding

that Theresa S. has a mild limitation when it comes to interacting with others

occurred at Step 3 of the five-step analysis, immediately preceding the RFC

assessment.

finding was flawed because it was based on evidence that Theresa S. “is able to

interact with her friend, who is her caretaker; communicate with family

members; attend her doctor’s appointments; and travel to Florida for vacation

in October 2018.” (Id. (quoing R. 17).) According to Theresa S., this finding is

unsustainable given her view that “the record documents that [Theresa] stays

home, only leaving her house when necessary, and has a caretaker with her at

all time,” indicating that the ALJ should have at least found a moderate or

marked limitation.6 (Pl. Br. 22-23.)

That said, Theresa S. cites no substantial medical evidence that suggests

she has any limitation with respect to interacting with others, let alone one

more severe than the mild limitation the ALJ found. Based on the evidence

before him, the ALJ conscientiously identified events, activities, and testimony

that allowed him to draw inferences about the extent of Theresa S.’s functional

limitation. The evidence of Theresa S.’s ability to interact with her best friend

on a regular basis, attend her doctor’s appointments, attend a birthday party,

and travel to Florida on vacation all substantially inform a determination of the

extent of her limitation. Theresa S. makes a valid point that other evidence in

the record suggests some limitation does exist, particularly the evidence of

Theresa S.’s tendency to isolate at home, but that does not alone warrant a

finding that she has a more severe limitation than the one found by the ALJ.7

In fact, considering the absence of medical evidence to support a moderate or

marked limitation, the ALJ’s ultimate determination that she has a mild

6 I note that the statement that Theresa S. “has a caretaker with her at all times”

(Pl. Br. 23) mischaracterizes the evidence. Theresa S. testified that her best friend

comes to see her frequently; she did not state that she has a caretaker with her at all

time. (See R. 43 (“She started coming over after the accident just to be supportive and

then after that, we don’t pay her. She’s my best friend. She started coming over

probably three weeks to a month after the accident, five times a week. And if I have to

go weekends.”).)

7 This is further supported by evidence that suggests the primary reason for

Theresa S. remaining at home is not an inability to interact with other people, but

rather the anxiety she experiences while driving or riding in a car. (See, e.g., R. 240 (“I

stay at home for fear of driving since I was hit by a lady that ran a stop sign.”).)

limitation—as opposed to no functional limitation at all—shows that the ALJ

credited this evidence and weighed it accordingly.8

Theresa S. separately argues that the ALJ’s RFC assessment is

inconsistent with his finding that she requires a low-contact work environment.

(Pl. Br. at 24.) She points out that the need for a low-contact environment is

not accounted for in the RFC. (Id.) To level set, the ALJ’s finding that Theresa

S. requires a low-contact work environment is consistent with his finding at

Step 3 that she has a mild limitation with respect to interacting with other

people, even if he did not reiterate this finding in his RFC statement.

Nevertheless, Theresa S.’s argument betrays her own position. She purports to

have unearthed an erroneous inconsistency in the ALJ’s decision. That

inconsistency, she says, is that the ALJ’s determination at Step 5 that she is

capable of working certain jobs subject to a certain environmental limitation

does not follow from the RFC assessment, which she claims found that Theresa

S. has no such limitations. It would follow, then, that to remedy such an

inconsistency, the ALJ would have had to find that she does not need any

environmental limitations in the workplace. Such a finding would suggest that

there are even more jobs in the national economy that Theresa S. can perform,

weakening her case.

8 Notably, if the ALJ did find that Theresa S.’s limitation with respect to

interacting with people was moderate or marked, it would not have changed the

ultimate outcome of the ALJ’s analysis. At Step 3, the ALJ determined that Theresa S.

had only mild or moderate limitations with respect to the four criteria in paragraph B

of Listing 12.04, 12.06, and 12.15. (R. 17 (mild limitation with respect to

understanding, remembering, or applying information; mild limitation with respect to

interacting with people; moderate limitation on ability to concentrate, persist or

maintain pace; and moderate limitation on ability to adapt and manage oneself).) To

satisfy Listing 12.04, 12.06, and 12.15’s paragraph B criteria, a claimant must

demonstrate extreme limitation of one, or marked limitation of two, of these four areas

of mental functioning. 20 CFR §§ 404.1520(b), 416.920(b). Therefore, even if the ALJ

committed error by failing to find that one limitation was moderate or marked, it

would be harmless error because it would not result in the analysis ending at Step 3

in favor of the claimant.

In sum, I find that the ALJ’s finding that Theresa S. had a mild limitation

with respect to interacting with others, and his incorporation of that finding

into his RFC and Step 5 assessments, were proper and supported by

substantial evidence.

3. Lay Evidence from Spouse

Theresa S. argues that the ALJ erroneously failed to explain how he

considered statements of Theresa S.’s husband in his RFC assessment. (Pl. Br.

at 27-29.) Theresa S. premises her argument on outdated law, under which an

ALJ was previously required to articulate in their decisions how they

considered evidence from a nonmedical source using the same framework that

applies to medical opinions from medical sources. This requirement is no

longer in effect, per subsequent regulation. See 20 C.F.R. § 404.1520c(d); see

also Hildebrandt v. Comm'r of Soc. Sec., No. CV 21-13552, 2022 WL 2980992,

at *5 (D.N.J. July 28, 2022) (“However, the ALJ was not required to reference

[the spouse’s] submissions in constructing Plaintiff's RFC because, as noted

above, a spouse is not a medical source.”).

To reject a medical opinion, the ALJ must point to “contradictory medical

evidence.” Cunningham v. Comm’r of Soc. Sec., 507 Fed. App’x 111, 118 (3d Cir.

2012). Where the ALJ discounts, rather than rejects, medical opinion evidence,

the ALJ must “consider all the evidence and give some reason for discounting

the evidence.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). See

generally 20 C.F.R. § 414.1520c(a)–(c).

As to evidence from nonmedical sources, however, under the rules

amended effective March 27, 2017, an ALJ is not required to apply that

analytical framework:

§ 404.1520c How we consider and articulate medical opinions and

prior administrative medical findings for claims filed on or after

March 27, 2017.

. . .

(d) Evidence from nonmedical sources. We are not required to articulate

how we considered evidence from nonmedical sources using the

requirements in paragraphs (a) through (c) in this section.

20 C.F.R. § 414.1520c(d). In particular, an ALJ is not required to “weigh” or

“assess” such nonmedical evidence, articulating reasons for assigning it

specific persuasive value, as in the case of medical evidence. Of course, the

amended regulation’s non-articulation principle does not permit an ALJ to

decline to consider nonmedical evidence:

While the Court agrees that the new regulations do not authorize

an ALJ to disregard all relevant evidence from third parties all

together, under those regulations, the ALJs need not articulate

how they considered such evidence with the same type of

requirements for medical opinions and prior administrative

medical findings.

Aguiar v. Kijakazi, No. CV 20-18551 (FLW), 2022 WL 462093, at *9 (D.N.J. Feb.

15, 2022). “While the new rules relieve ALJs from the burden of articulating

their consideration of nonmedical source statements using the same standards

that apply to medical opinions and prior administrative medical findings, 20

C.F.R. § 416.920c(d), that does not constitute permission to ignore relevant

evidence.” Fisher v. Comm'r of Soc. Sec., No. 20-1467, 2021 WL 4288313, at *5

(W.D. Pa. Sept. 21, 2021).

Here, it is clear from the underlying decision that the ALJ did consider

the evidence from Theresa S’s husband:

On March 31, 2019, the claimant's husband [] completed a third

party function report and stated that the claimant has difficulty

with talking, hearing, stair climbing, memory, completing tasks,

concentration, understanding, following instructions and getting

along with others. However, she is able to do minimal chores with

help; rarely drive as needed; and shop in stores. [He] stated that

the claimant uses a cane when feeling dizzy.

(R. 21.) The ALJ committed no error by declining to articulate how persuasive

he found these statements.

* * *

In sum, I affirm the ALJ’s RFC assessment and find that it is supported

by substantial evidence in the record.

B. Whether the ALJ’s finding that the opinion of Dr. Kloupar,

Theresa S.’s treating psychiatrist, is “not persuasive” was

supported by substantial evidence.

Theresa S. contends that the ALJ’s finding that the opinion of Dr.

Kloupar, Theresa S.’s treating psychiatrist, was “not persuasive” was not

supported by substantial evidence. (Pl. Br. at 32.) The opinion, in a letter dated

January 17, 2019, reads as follows:

Theresa [S.] is a patient under my care. She was first seen

December 21, 1999, and is seen for Medication Management every

2-4 months, most recently on January 17, 2019. She carries the

diagnosis of F31.4 Bipolar disorder, current episode depressed,

severe. On September 27, 2018 Theresa was involved in a Motor

Vehicle Accident. Due to the accident Theresa is experiencing an

increase in her symptoms and her condition is worsening. Since

the accident her depression affects her daily, she feels hopeless

and has lost interest in most things she previously enjoyed.

[Theresa S.] feels fatigued daily but is unable to sleep. She has

been experiencing anxiety and severe panic attacks, especially

when she attempts to drive. Due to her condition and severe panic

attacks she is unable to work.

(R. 235.) The ALJ stated in his decision that “This opinion is not persuasive. I

note less than significant mental examinations, functional [activities of daily

living] and evidence of stable mood on several medical visits.” (R. 21.)

The Commissioner’s consideration of medical opinions is guided by the

following factors: 1) supportability; 2) consistency; 3) relationship with the

claimant; 4) specialization of the medical source; and 5) any other factors that

tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(c)(1)-(5),

416.920c(c)(1)-(5). However, the “supportability” and “consistency” of the

opinion are considered the most important factors for the Commissioner’s

consideration. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Indeed, while the

ALJ may explain his or her consideration of the other factors, the ALJ must

explain how he or she considered the “supportability” and “consistency” of a

medical source’s opinion. Id. Nevertheless, the ALJ need not rely on a specific

medical opinion, as the ALJ makes the ultimate disability and RFC

determinations.

As an initial matter, the ALJ’s consideration of a medical opinion, by

definition, pertains to how that opinion bears on the claimant’s functional

abilities. See 20 C.F.R. § 404.1513(a)(2). Critically, Dr. Kloupar’s opinion offers

no evaluation of Theresa S.’s functional ability, save for his statement that “she

is unable to work.” (R. 235.) And the ALJ need not credit such statements by

medical professionals that opine on issues reserved for the determination of the

Commissioner. A statement by a medical professional that a claimant is unable

to work is “inherently neither valuable nor persuasive.” 20 C.F.R. §

404.1520b(c)(3)(i). The ALJ therefore had no obligation to analyze or adopt Dr.

Kloupar’s conclusion. The ALJ’s finding that this statement was not persuasive

is perfectly consistent with his responsibility under the regulation.

More broadly, I find that the ALJ Damille’s explanation of the

“supportability” and “consistency” of Dr. Kloupar’s opinion both 1) complied

with the governing regulations and 2) is supported by substantial evidence.9

The ALJ noted “less than significant mental examinations” and “evidence of

stable mood on several medical visits.” (R. 21.) This is an accurate description

of the body of treatment notes in the record. As the Administration identifies in

its responsive brief, the record contains evidence of at least 20 mental

examinations of Theresa S. that were “unremarkable with stable findings.”

(SSA Br. at 20.) Several of Dr. Kloupar’s treatment notes document Theresa S.

presenting with good mood and good mental function. See, e.g., R. 410 (noting

healthy appearance, cooperative demeanor, appropriate behavior, good eye

contact, appropriate affect, normal speech, good impulse control, good

memory, good concentration, good judgment, good attention span, good

9 Granted, the ALJ did not explicitly segregate the evidence of “supportability”

from that of “inconsistency.” Nevertheless, the evidence noted by the ALJ clearly

addressed both factors.

insight, and a thought process that was goal oriented, coherent, relevant and

logical); 413 (same); 414 (same).

So far, so good. In her appeal brief, however, Theresa S. stresses the

episodic nature of her bipolar disorder. Ehe “has good days and bad days,” she

says, and her periodic displays of good mental function are not inconsistent

with a severely impairing bipolar disorder. (Pl. Br. 36-37.) But the ALJ

acknowledged Theresa S.’s bipolar disorder and identified it as one of her

“severe impairments” at Step 2 of his five-step analysis pursuant to 20 CFR

404.1520(c). After doing so, the ALJ was required to consider all the record

evidence to determine the severity of her impairment, and there is a significant

number of mental health examinations that show Theresa S. frequently

presented with good mood and good mental function, weighing against the

supportability and consistency of Dr. Kloupar’s opinion. See, e.g., R. 513

(finding normal behavior, normal mood, normal cognition, and no danger to

self or others); R. 513 (same); R. 514 (same); R. 515 (same); R. 517 (same); R.

518 (same); R. 519 (same); R. 520 (same); R. 522 (same); R. 524 (same); R. 525

(same); R. 527 (same); R. 528 (same); R. 529 (same); R. 531 (same); R. 533

(same); R. 534 (same); R. 535 (same); R. 536 (same); R. 514 (same aside from

notation of pleasant behavior as opposed to normal behavior).

The ALJ also cited evidence of “functional [activities of daily living]” as a

reason for his finding that Dr. Kloupar’s opinion was unpersuasive. (R. 21.)

This is also supported by substantial evidence and weighs against the

supportability and consistency of Dr. Kloupar’s opinion. The record contains

evidence of many activities of daily living. For instance, there is evidence that

Theresa S. traveled to Florida for vacation (R. 316); attended a birthday party

(Id.); regularly walked around her seven-acre yard (R. 45, 48); and did some

work around her house, including taking care of her dogs (R. 45). Moreover,

her husband’s statements shed additional light on the daily activities Theresa

S. is capable of doing. In his third party function report, he indicated that

Theresa S. can shop in stores, do some physical chores with help, and even

drive occasionally when necessary. (R. 21, 198-200.) While these activities do

not themselves prove that Theresa S. is capable of performing all jobs at all

exertion levels in all settings, they provide substantial evidence to support the

ALJ’s evaluation of Dr. Kloupar’s opinion, as well as his RFC assessment more

broadly.

Accordingly, based on the evidence in the record and the ALJ’s stated

reasons, I find that the ALJ’s determination that Dr. Kloupar’s opinion is not

persuasive was supported by substantial evidence in the record.

C. Whether the ALJ’s assessment of Theresa S.’s subjective

complaints was supported by substantial evidence.

Theresa S. argues that the ALJ erred in finding that Theresa S.’s

subjective complaints “concerning the intensity, persistence and limiting effects

of [the alleged] symptoms are not entirely consistent with the medical evidence

and other evidence in the record.” (R. 19.) As I explain further infra, I find that

the ALJ fulfilled his obligation to evaluate Theresa S.’s allegations in the

context of the record evidence and afford him due deference in determining the

extent to which Theresa S.’s complaints were consistent with the record before

him.

The Social Security Act is clear that “[a]n individual’s statement as to

pain or other symptoms shall not alone be conclusive evidence of disability[.]”

42 U.S.C. § 423(d)(5)(A); see also 20 C.F.R. § 404.1529(a) (same). In evaluating

a claimant’s subjective complaints, the ALJ considers evidence from

physicians; the claimant’s daily activities; and descriptions of symptoms,

medication, and other treatment. 20 C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL

1119029, at *2-4. The ALJ also considers “whether there are any

inconsistencies in the evidence and the extent to which there are any conflicts

between [the claimant’s] statements and the rest of the evidence.” 20 C.F.R. §

404.1529(c)(4). The ALJ is given great discretion in evaluating a claimant’s

subjective complaints, and such findings are entitled to great deference.

Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014).

As an initial matter, the ALJ did credit Theresa S.’s allegations where

they were consistent with the medical evidence in the record. The ALJ found

that “the claimant’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms.” (R. 19.) However, the ALJ

appropriately considered the entire body of evidence before him and noted

where he found inconsistencies between the medical record and the “intensity,

persistence and limiting effects” of Theresa S.’s alleged symptoms. (Id.) Theresa

S. points to five of the inconsistencies the ALJ identified and argues that the

ALJ’s reasoning and findings were not supported by substantial evidence. For

the following reasons, and affording the ALJ due deference in making these

determinations, I find that they were supported by substantial evidence.

First, Theresa S. takes issue with the ALJ’s observation that “the

claimant testified that she has taken psychotropic medications for many years

[but] has been able to engage in substantial gainful activity for many years

through 2017, when she lost her job.” (R. 20.) She argues that this conclusion

fails to address the worsening of her condition after a traumatizing car accident

in September 2018. I find that the ALJ’s analysis was reasonable. Theresa S.

seems to imply by her argument that given the current state of her condition,

she would no longer be able to work while medicated in the same way she did

in previous years. But there is nothing in the medical record to support such a

conclusion. Moreover, the ALJ accounted for the effects of Theresa S.’s

medication when he incorporated environmental limitations in his RFC

assessment. (R. 18 (“She must avoid all exposure to hazards such as

machinery and heights.”); R. 21 (“I also incorporated environmental limitations,

with respect to exposure to heights and dangerous machinery, due to panic

attacks and the sedating side effects of her medications.”)) I find that the ALJ

properly considered the effects of Theresa S.’s medications and accordingly

incorporated his findings into the RFC assessment.

Second, Theresa S. challenges the ALJ’s finding that “her complaints of

increased symptoms did not prevent her going on vacation in Florida in

October 2018.” (R. 20.) She contends that the record is not clear whether the

trip to Florida was before or after her accident, and that in any event, feeling

good enough to travel on one occasion is consistent with the episodic nature of

bipolar disorder. (Pl. Br. 41-42.) It appears that Theresa S.’s vacation took

place less than two months after her accident. (See R. 316 (Treatment notes

from Newton Medical Center on December 4, 2018, stating that Theresa S.

reported feeling traumatized by her motor vehicle accident that occurred on

September 27, 2018, and that she had “since been having a hard time with a

bad vacation to Florida and a ruined birthday by her brother’s girlfriend.”)

(emphasis added).) To be sure, evidence of a single vacation is not powerful.

Nonetheless, I find that it was reasonable for the ALJ to consider it as part of

the larger picture when evaluating the persistence and extent of Theresa S.’s

alleged symptoms, particularly the severe anxiety she reported.

Third, Theresa S. challenges the ALJ’s finding that “[w]hile the claimant

testified that she continued to experience daily panic attacks, as well as well as

difficulty with concentration and focus, subsequent records from the Dr.

Klouper of the Highland Psychiatric Associates failed to support her assertions

to the degree alleged.” (Pl. Br. 41-42.) To support her argument, Theresa S.

points to several treatment notes, nearly all of which simply memorialize her

own subjective complaints and do not constitute medical evidence.10 See Morris

v. Barnhart, 78 F. App’x 820, 824-25 (3d Cir. 2003) (“[t]he mere

memorialization of a claimant’s subjective statements in a medical report does

not elevate those statements to a medical opinion”) (citing Craig v. Chater, 76

F.3d 585, 590 n.2 (4th Cir. 1996)). The only treatment note on which Theresa

S. relies that does not necessarily just memorialize her subjective complaints is

10 Theresa S. relied on the following treatment notes that merely memorialize her

subjective complaints:

“On February 27, 2019, a therapy note states she reported three

panic attacks the day before. (Tr. 445). On August 1, 2019,

[Theresa S.] sent her therapist a text that she almost got into

another car accident and her “panic attacks are back in ‘full

force.’” (Tr. 537). On August 21, 2019, [she] reported to her

therapist that she was afraid to drive for fear of having a panic

attack. (Tr. 538).

(Pl. Br. 42 (emphasis added).)

the October 29, 2019 note that states she “continues to have panic attacks and

high anxiety especially when driving.” (Pl. Br. at 42 (citing R. 540).) Setting

aside the fact that this may in fact be yet another memorialization of Theresa

S.’s own allegations, it is wholly consistent with the ALJ’s reasoning and

ultimate determination. In his decision, the ALJ noted that Theresa S. suffers

from panic attacks and found that these panic attacks are severe when driving.

(R. 21.) The ALJ accordingly took these findings into account when conducting

the RFC assessment. (R. 18 (“After careful consideration of the entire record, I

find that the claimant has . . . the following nonexertional limitations: She

cannot operate a motor vehicle.”).) I find that the ALJ properly evaluated

Theresa S.’s allegations of severe panic attacks within the context of the

medical record before him.

Fourth, Theresa S. challenges the ALJ’s finding that the notes from her

therapist are inconsistent with her complaints of difficulty focusing. (Pl. Br. 41,

43.) In his decision, the ALJ notes that Theresa S.’s alleged difficulty is

contradicted by an October 29, 2019 treatment note that states the claimant

reported that “while she felt manic, it helped her to accomplish the things she

needed to do,” and that “she was more productive when she made a list a night

and crossed them off the next day after she completed them.” (R. 20 (citing R.

540).) I find that the ALJ reasonably concluded that this an inconsistency, as

there is clear conflict between what Theresa S. testified to at the hearing and

what she reported to her therapist.

Fifth, Theresa S. challenges the ALJ’s finding that “[w]hile the evidence

notes a history of anxiety, bipolar disorder and panic attacks, there is no

evidence in this record of recurrent emergency room visits, inpatient

hospitalization admissions, or participation in a partial hospitalization program

due to exacerbation of her psychiatric symptoms.” (R. 20-21). Theresa S.

argues that this finding is not supported by substantial evidence, but I find

that it is an accurate description of the record. Theresa S. attempts to rebut

the ALJ’s characterization of her treatment regimen by pointing to 1) a single

emergency room visit in December 4, 2018, and 2) a visit with a licensed

clinical social worker 0n June 19, 2019 during which “possible hospitalization

was discussed due to [Theresa S.]’s depression. (Pl. Br. 43-44.) The occurrence

of these two events in no way contradicts the ALJ’s finding. I find that the ALJ

properly considered Theresa S.’s treatment regimen when determining the

severity of her alleged symptoms.

* * *

I find that the ALJ properly assessed Theresa S.’s subjective complaints

and his findings are supported by substantial evidence in the record.

D. Whether the ALJ’s finding that Theresa S.’s diabetes does

not significantly limit her ability to perform basic work

activities was supported by substantial evidence.

At Step 2, the ALJ found that Theresa S.’s severe impairments included

depression, bipolar disorder, anxiety, and post-traumatic stress disorder. (R.

16 (citing 20 CFR 404.1520(c).) Theresa S. argues that the ALJ erred in Step 2

by finding that her diabetes was not a severe impairment. (Pl. Br. 45-49.)

The ALJ noted that “the claimant has a history of diabetes and high

blood pressure currently treated with medication.” (R. 16.) Nonetheless, the

ALJ found that Theresa S.’s diabetes was not severe. (R. 16.) “The evidence fails

to establish an impairment(S) involving diabetes . . . that imposed more than a

slight vocational limitation on the claimant’s ability to perform work related

activity for 12 consecutive months and is not ‘severe’ as defined in the

Regulations.” (R. 16.) Alternatively, the ALJ stated that “there is no evidence of

recurrent emergency room visits, inpatient hospital admissions or end organ

damage due to uncontrolled diabetes or hypertension.” (R. 17.)

Theresa S. argues that the ALJ did not properly consider her

uncontrolled diabetes at this stage. (Pl. Br. at 45.) She cites a Social Security

interpretation rule providing the limited circumstances under which the ALJ

can find a claimant to have no functional limitations:

When there is no allegation of physical or mental limitation or

restriction of a specific functional capacity, and no information in

the case record that there is such a limitation or restriction, the

adjudicator must consider the individual to have no limitation or

restriction with respect to that functional capacity.

Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional

Capacity in Initial Claims, SSR 96-8p (S.S.A. 1996). She argues that the ALJ

cannot make such a finding because “the medical evidence documents that her

diabetes and hypertension are uncontrolled despite compliance with

medications.” (Pl. Br. at 46.)

Theresa S.’s arguments regarding the ALJ’s step-two analysis are

unavailing. First, the claimant has the burden of proof at Step 2 to prove that a

disability is severe. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); see

also 20 C.F.R. § 404.1512(a) (stating that the claimant must furnish medical

and other evidence that the adjudicator can use to reach conclusions about the

claimant’s medical impairments). Theresa S. did not furnish evidence to show

that her diabetes is severe—i.e., that it “significantly limits [her] physical or

mental ability to do basic work activities.” See 20 C.F.R. § 404.1520(c). No

treating or examining medical professional suggested that her diabetes resulted

in any functional limitation. Moreover, the record shows that prior to the

relevant period, Theresa S. was able to perform the medium exertional work of

a pet caretaker despite being diagnosed with uncontrolled diabetes at the time.

Compare R. 347, 348, 349 (noting diagnosis of uncontrolled diabetes), with R.

56, 187 (showing Theresa S. performing job duties of pet caretaker during

same time period). Theresa S.’s diabetes does not appear to significantly limit

her basic work activities and she does not meet her burden of proving that this

impairment is severe.11

11 Theresa S. makes an additional argument that the ALJ erred by basing his

finding that her diabetes is not severe in part on the fact that the record reflects she

did not follow her diet. She suggests that, in so doing, the ALJ failed to comply with

SSR 18-3p and SSE 16-3p, which she purports prohibits the ALJ from relying on a

claimant’s failure to follow treatment as a basis to find her impairment not to be

severe. (Pl. Br. at 47.) Given the complete absence in the record of any evidence

suggesting that Theresa S.’s diabetes affected her basic work functions, I decline to

Second, even if the ALJ’s determination that Theresa S.’s diabetes is not

severe was in error, it would be a harmless error because the ALJ did not

decide against Theresa S. at Step 2. When an ALJ finds that the claimant has

at least one severe impairment, omission of another at Step 2 may be harmless

error as long as the impairment would not affect the outcome of the case.

Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007); see

Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005). Any error here

would be harmless because the medical record is devoid of any evidence that

indicates the omitted impairment impacts her ability to perform basic work

functions.

In the end, the ALJ’s determination that Theresa S.’s diabetes was not a

severe impairment was supported by substantial evidence. Even if his Step 2

analysis was not fully developed, any error was harmless. Substantial evidence

establishes that the claimant did not meet her burden to show that her

diabetes significantly impacted her basic work functions. Given the standard of

review, I will uphold the ALJ’s finding at Step 2 that Theresa S.’s diabetes is

not severe.12

address whether such reliance was erroneous. Moreover, I note that even if such

reliance was improper, it would be harmless error for the reasons expressed infra.

12 I note that by the end of Theresa S.’s discussion of her claim that the ALJ erred

at Step 2 by finding her diabetes not to be severe, her position morphs into an

RFC/Step 4 argument, asserting that the ALJ failed “to consider both severe and

nonsevere impairments in assessing a claimant’s RFC.” (Pl. Br. at 47-48 (citing 20

C.F.R. § 404.1545(e)). This argument is meritless given the sheer lack of evidence to

support Theresa S.’s claim that her diabetes affects her functional capacity in any

meaningful way. To the extent Theresa S. covertly reasserts her RFC argument in the

final paragraphs of her brief, I again affirm the ALJ’s RFC assessment as I did in

Section III.A., supra.

IV. CONCLUSION

For the reasons set forth above, the Commissioner’s decision is

AFFIRMED.

A separate order will issue.

Dated: December 27, 2022

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge