# SMITH v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · December 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10274460

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10274460

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274460. Public record. Not legal advice.