METZGER v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AUDREY METZGER, : CIVIL ACTION

Plaintiff, :

:

v. : NO. 21-cv-1798

:

KILOLO KIJAKAZI,1 :

Acting Commissioner of Social Security, :

Defendant. :

MEMORANDUM OPINION

LYNNE A. SITARSKI

UNITED STATES MAGISTRATE JUDGE November 29, 2022

Plaintiff Audrey Metzger brought this action seeking review of the Acting Commissioner

of Social Security Administration’s (Acting Commissioner) decision denying her claim for

Social Security Disability Insurance (SSDI) benefits and Supplemental Security Income (SSI)

benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401–433, 1381–1383f.

This matter is before me for disposition upon consent of the parties. For the reasons set forth

below, Plaintiff’s Request for Review (ECF No. 10) is GRANTED, and the matter is remanded

for further proceedings consistent with this memorandum.

I. PROCEDURAL HISTORY

Plaintiff filed for SSDI and SSI, alleging disability since May 1, 2017, due to bilateral

carpal tunnel syndrome, herniated discs in the lumbar spine, arthritis, epilepsy, neuropathy,

hypertension, Lynch syndrome, anxiety, depression, and chronic pain. (R. 188-94, 223).

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi has been

substituted for Andrew Saul as the Defendant in this case.

Plaintiff’s applications were denied at the initial level, and Plaintiff requested a hearing before an

Administrative Law Judge (ALJ). (R. 109-11, 126-37). Plaintiff, represented by counsel, and a

vocational expert testified at the January 31, 2020 administrative hearing. (R. 41-76). On

February 20, 2020, the ALJ issued a decision unfavorable to Plaintiff. (R. 14-40). Plaintiff

appealed the ALJ’s decision, and the Appeals Council denied Plaintiff’s request for review on

February 16, 2021, thus making the ALJ’s decision the final decision of the Acting

Commissioner for purposes of judicial review. (R. 1-6).

On April 18, 2021, Plaintiff filed a complaint in the United States District Court for the

Eastern District of Pennsylvania. (Compl., ECF No. 1). On May 10, 2021, Plaintiff consented to

my jurisdiction. (Consent Order, ECF No. 4). On November 30, 2021, Plaintiff filed a Brief and

Statement of Issues in Support of Request for Review. (Pl.’s Br., ECF No. 10). On December

30, 2021, the Acting Commissioner filed a Response, and on January 13, 2021, Plaintiff filed a

Reply. (Resp., ECF No. 11; Reply, ECF No. 12).

II. FACTUAL BACKGROUND2

The Court has considered the administrative record and summarizes the evidence relevant

to the instant request for review. Plaintiff completed high school and has an associate’s degree.

(R. 224, 711). She previously worked as a chef, a café owner and a supervisor at Home Depot.

(R. 225).

2 Because the Court’s ruling in this matter implicates only the ALJ’s analysis at step

three of the five-step sequential evaluation, regarding whether Plaintiff’s mental impairments

meet the criteria for Listing 12.04 (depressive, bipolar and related disorders) or Listing 12.06

(anxiety and obsessive-compulsive disorders), the Court summarizes only the evidence relevant

to these listings.

A. Medical Evidence

In October 2016, Plaintiff was admitted to the intensive care unit (ICU) at Grand View

Hospital in Sellersville, Pennsylvania, after an attempted suicide. (R. 503). On October 18,

2016, she was released to Brooke Glen Behavioral Hospital (Brooke Glen) in Fort Washington,

Pennsylvania. (R. 503). She reported THC use but alcohol sobriety for the last five years. (Id.).

She was diagnosed with bipolar II disorder, depressed, with psychotic features; and attention

deficit hyperactivity disorder. (R. 504). Plaintiff presented as evasive, guarded, sad, depressed,

angry and apathetic with slow speech and limited insight and judgment. (R. 503). She refused

medication and discharged herself on October 22, 2016, to pursue outpatient treatment. (R. 504).

On August 10, 2017, Plaintiff presented to the Horsham Clinic (Horsham) for suicidal

ideation, without a specific plan for self-harm, and worsening symptoms of depression and

anxiety. (R. 523). She was unable to contract for safety outside of the hospital. (Id.). She

claimed she had six prior overdose attempts in the past year, plus two strangulation attempts, and

that many of these attempted suicides required her to be admitted to the ICU. (Id.). She

indicated she was not taking any psychiatric medications except Adderall. (Id.). She further

reported that she was homeless. (Id.). In this record, Plaintiff claimed that she had been sober

since 2011. (Id.). After admission, she was depressed, irritable, labile and anxious with

continued fleeting suicidal ideations and feelings of hopelessness and helplessness. (Id.). In her

mental status examination, Plaintiff was alert and oriented, clean, appropriately dressed, restless,

anxious and cooperative with an inappropriate affect, normal speech and though processes,

average intellect, intact memory, fair judgment, and limited insight. (Id.). She was again

diagnosed with bipolar disorder, type II, as well as borderline personality traits, and prescribed

medications including Neurontin, Topamax and Vistaril. (R. 523, 525). At discharge on August

18, 2017, Plaintiff claimed that she had been sober for only six months. (R. 525). She was

referred to Livengrin Foundation in Levittown, Pennsylvania, for intensive outpatient services

and was to reside at Step By Step Recovery House in Bucks County, Pennsylvania. (Id.).

On August 23, 2017, Plaintiff signed off on a treatment plan with Penndel Mental Health

Center (Penndel). (R. 536-37). In the treatment plan, Plaintiff identified goals of attending

every group therapy session. (R. 536). She also identified life situations involving a high risk of

substance abuse relapse, early warning signs of relapse, and coping skills and support

mechanisms to avoid relapse. (R. 537). At a December 14, 2017, assessment, Plaintiff had

pressured speech, a labile mood, fair judgment, intact language and knowledge, logical thought

processes and content, full orientation, and good insight, attention, and concentration. It was

noted that she had made limited progress. (R. 583-84). On January 25, 2018, Plaintiff was

anxious, depressed, labile and irritable with poor thought processes, suicidal ideation in the form

of a passive death wish, full orientation, intact knowledge and language, fair insight and

judgment, and good attention and concentration. (R. 586-87).

On September 13, 2017, Plaintiff was admitted for psychiatric hospitalization at

Fairmount Behavioral Health (Fairmount) in Philadelphia for anxiety, depression, and “thoughts

of suicide with a plan to jump off a bridge or building,” although she was able to contract for

safety while in the hospital. (R. 578). She claimed to have “over 30 lifetime suicide attempts”

and that she was abused by her father when she was younger. (Id.). She reported that she was

homeless because she “left or was evicted” from the recovery house. (Id.). She admitted to prior

use of Ecstasy, methamphetamines, cocaine and marijuana and alleged that she was exposed to

psychotropic drugs at Horsham. (Id.). However, it was also observed that there were

“inconsistencies in the stories she tells” and that she was a “somewhat convoluted historian.”

(Id.). She further admitted that she was noncompliant with prescribed treatment and

medications. (Id.). Noted stressors included the passing of her father, lack of income and lack of

support. (Id.). She was fidgety, restless, distractible with pressured speech, dysphoric, irritable,

negative, nihilistic/fatalist, long-winded and “difficult to work with,” complained of depression

and anxiety, distorted her interactions and conversations with her treating psychiatrist, and

disparaged staff and other patients. (R 578, 580). Her cognition was grossly intact aside from

distractibility. (R. 578). She denied hallucinations and delusions but referred to “spirits.” (R.

580). She was diagnosed with unspecified mood disorder, major depression versus bipolar

disorder, posttraumatic stress disorder (PTSD), borderline personality disorder, and alcohol,

methamphetamine, MDMA, and cannabis use disorders, all in early remission. (R. 579). A

treatment plan was formulated for her suicidal ideation and depression, history of trauma,

noncompliance with medication, psychosis, and smoking cessation. (Id.).

By September 18, 2017, Plaintiff was still dysphoric and mildly agitated but had calmed

down. (Id.). She continued to complain about staff and her treating psychiatrist and

demonstrated paranoia with a distorted recitation of her interactions with others. (Id.). During

the encounter, she became increasingly enraged and denied psychosis while demonstrating that

she “clearly” was psychotic. (Id.). It was noted that Plaintiff was “psychiatrically unstable.”

(Id.). On September 19, 2017, she was noted as still difficult to work with, yelling, screaming,

making provocative and disruptive statements and criticizing staff. (Id.). She again became

enraged when medications were discussed. (Id.). She submitted a 72-hour discharge notice and

was discharged on September 21, 2017. (R. 581). At that time, she was clinically stable with no

acute psychiatric symptoms. (Id.).

In February 2018, Plaintiff presented to Lenape Valley Foundation (Lenape) in

Doylestown, Pennsylvania, to obtain support services from its Partial Hospitalization Program

and Transitional Outpatient Support (TOPS) program. (R. 705). She stated that she had been

homeless since January, was currently living in a hotel room and had diagnoses for bipolar

disorder and borderline personality disorder. (Id.). She reported having gone to Horsham to

“sober up” and that she was not currently using drugs or alcohol. (Id.). She further reported

hypomania “in the form of fast talking, racing thoughts, lack of sleep, rarely eat[ing], and

constantly being ‘on the go; nonstop’, lasting ‘about a few weeks at a time,’” depression, “not

showering for days, eating a lot, sleeping a lot (emotional eater), isolating, hopelessness, crying

spells.” (R. 705). Her mental status examination revealed a disheveled appearance, psychomotor

agitation, anxiety/nervousness, good judgment, fair insight, a cooperative attitude, goal directed

thoughts, intact cognition, and no hallucinations, delusions, or suicidal thoughts. (R. 711-12).

The evaluator diagnosed Plaintiff with bipolar II disorder, assessed a GAF3 score of 45 and

recommended her for admission to the TOPS program. (R. 713).

On August 29, 2018, Plaintiff presented to the Aldie Foundation (Aldie) in Doylestown,

Pennsylvania, for serious anxiety, tension, inability to relax, and unreasonable worry in the last

30 days and earlier serious thoughts of suicide and trouble controlling violent behavior. (R.

932). She was alert and fully oriented with good eye contact and was “otherwise appropriate

during assessment.” (R. 938). She reported that she “was homeless for almost a year until she

3 A Global Assessment of Functioning (GAF) score is a “numerical summary of a

clinician’s judgment of [an] individual’s overall level of functioning.” Miller v. Colvin, 193 F.

Supp. 3d 467, 476 (E.D. Pa. 2016). The GAF scale is “used by mental health professionals to

‘assess current treatment needs and provide a prognosis.’” Id. A GAF score of 41-50 indicates

serious symptoms; a score of 51-60 indicates moderate symptoms; and a score of 61-70 indicates

mild symptoms. American Psychiatric Association: Diagnostic and Statistical Manual of Mental

Disorders (DSM–IV–TR) 32 (4th ed. 2000).

was set up with housing through Lenape Valley and her case manager.” (Id.). Plaintiff also

received a drug and alcohol evaluation on this date. (R. 1012). She informed the evaluator that

she was presently attending the TOPS program at Lenape and that she required the assessment

for her parole officer even though she was no longer using drugs or alcohol. (Id.). She indicated

that she had told Lenape that she no longer wished to take her psychiatric medications. (Id.).

In September 2018, Plaintiff reported abstaining from drugs and alcohol for the past year

but worrying about relapsing. (R. 1010). She stated that she resides alone in a two-bedroom

apartment. (Id.). In subsequent visits in September, October, and November, the therapist,

Carrie Uzelac, MA, noted that Plaintiff is often tangential and easily frustrated by those she

perceives as insufficiently direct or sensitive. (R. 1006, 1008). She expressed a desire to get her

driver’s license back and to change careers from “culinary/restaurant work to auto mechanic

school.” (R. 1008). Ms. Uzelac also recorded that Plaintiff often talked “at” her for extended

periods without breaking because she “doesn’t like silence” and without actually discussing her

feelings, and that Plaintiff might benefit from revisiting her decision to change from five bipolar

medications to zero. (R. 1002-04). Plaintiff claimed that she was diagnosed with obsessive

compulsive disorder as a child and that when there is silence “she starts thinking of things she

may have forgotten to do . . . .” (R. 1002). However, Plaintiff reported that she benefitted from

therapy. (R. 1003). Plaintiff also reported staying up late and sleeping during the day, which the

therapist further identified as potentially triggering and requiring attention. (R. 1004). Ms.

Uzelac repeatedly recorded during this period that Plaintiff had no observable psychiatric

symptoms. (R. 996, 998-1008).

The notes from this period also indicate that Plaintiff was attempting to lose weight by

exercising and improving her diet. (R. 1003). By December, she had lost 25 pounds. (R. 996).

She reported being stressed surrounding the holidays and that she had hired an attorney to

facilitate the return of her driver’s license. (R. 996, 999). She acknowledged sometimes craving

Adderall but had remained sober. (R. 1001). She also completed her peer certification program

and was looking for relevant work. (R. 996). She adopted a dog but returned it. (R. 1000).

Plaintiff’s treatment notes from Aldie also show relationship difficulties with others.

Observations made by Ms. Uzelac include: “She also seems to have an all-or-nothing attitude

toward relationships - she gets angry when she feels she’s being used and breaks off the

relationship without explanation” (R. 987); “people come to her for advice and she gets annoyed

when they don’t handle things the way she suggests” (R. 989); “She is open about the fact that

she doesn’t believe she received the mothering that she deserved when growing up - and seems

to crave her family’s attention while feeling resentful of them at the same time.” (R. 998). In

January 2019, Plaintiff had a disagreement with her significant other that she worried would end

their relationship, but they were able to work through the matter. (R. 994-95). Plaintiff

acknowledged that she has struggled “with developing meaningful emotional and physical

connections with others.” (R. 971).

In January 2019, Plaintiff reported that she was “continuing to do well in her recovery,”

although Ms. Uzelac noted that she continued to have some interpersonal difficulties. (R. 993).

In March 2019, Ms. Uzelac observed that Plaintiff has unresolved feelings toward her mother but

further stated that in “a positive sign of putting her own needs first” Plaintiff had recognized that

she did not want to be part of a friend’s recovery. (R. 992). Ms. Uzelac also recorded that

Plaintiff’s relationship with her mother was strained due to both women’s substance abuse and

that Plaintiff’s suicide attempts had occurred during periods of heavy drug use. (R. 991-92).

Plaintiff expressed interest in applying for a medical marijuana card, but Ms. Uzelac highlighted

some of the problems associated with this plan. (R. 988). In April 2019, Plaintiff’s son’s friend

briefly resided with her because he had nowhere else to go. (R. 986-87). At the end of the

month, it was noted that Plaintiff had made friends at Aldie and “seem[ed] to be connecting in a

healthy way.” (R. 985).

Plaintiff began sessions with a different therapist at Aldie, Renee Perrette, MA, in May

2019. (R. 983). Plaintiff informed Ms. Perrette in June 2019 that she had spent the weekend at a

cabin with a friend. (R. 978). She also joined a church where she established connections with

the other members and attended meetings. (R. 975, 1020). By August 2019, Plaintiff was

“stable with moderate motivation.” (R. 963). Plaintiff explained “that she had been able to hold

and set boundaries and appears to recognize the importance of doing so within her relationships

with others.” (R. 963).

Plaintiff also participated in individual and group dialectical behavioral therapy4 at

Lenape between February and November 2019. (R. 788-850). Diagnoses at intake included

borderline personality disorder, bipolar disorder, generalized anxiety disorder and substance

abuse disorders in remission. (R. 788). In her treatment plan, Plaintiff described wanting to

obtain employment and live independently. (Id.). Other long-term goals included addressing her

symptoms of bipolar disorder, developing a wellness routine and maintaining sobriety. (R. 789).

Mental status examination results while attending DBT were generally normal. (See, e.g.,, R.

4 “Dialectical behavior therapy (DBT) is a specific type of cognitive-behavioral

psychotherapy developed in the late 1980s by Marsha M. Linehan to help better treat borderline

personality disorder. Since its development, it has also been used for the treatment of other kinds

of mental health disorders.” Lenape Valley Foundation, Dialectical Behavior Therapy, available

at https://www.lenapevf.org/services/dialectical-behavior-therapy-dbt/ (last visited November

16, 2022).

797-826, 834-849). During therapy sessions, Plaintiff worked on such coping skills as emotional

regulation, mindfulness/orientation, distress tolerance and interpersonal effectiveness. (Id.).

On April 8, 2019, while Plaintiff was at Lenape, Maryam Bickell, D.O. completed a

psychiatric evaluation of her. (R. 827-33). Plaintiff reported that she was not on any psychiatric

medications but was feeling well and sleeping and eating okay and that her mood and anxiety

were stable and controlled. (R. 827). She denied symptoms of depression, mania or psychosis

and any drug or alcohol use since April 2017. (Id.). Mental status examination results were

normal and included appropriate appearance, full orientation, a cooperative demeanor, goal

directed thoughts, no perceptual disturbances, no suicidal thoughts, intact memory and cognition,

and normal speech, mood, and affect. (R. 831-32). Diagnoses consisted of unspecified

bipolar disorder, in remission, borderline personality disorder, generalized anxiety disorders, and

substance abuse disorders in remission. (R. 832). Plaintiff reported living alone. (R. 829). Dr.

Bickell assessed a GAF score of 70. (R. 832). Dr. Bickell concluded the evaluation: “Currently

stable and doing well with active non pharmacological interventions. . . . No need to follow up

unless client needs medication management.” (R. 833). However, it was recommended that

Plaintiff continued with group and individual therapy at Lenape and drug and alcohol counseling

at Aldie. (Id.).

On February 6, 2019, the psychological consultative examiner, Ronald Karpf, Ph.D.,

evaluated Plaintiff. (R. 667-73). Plaintiff traveled to the appointment alone by public

transportation. (R. 667). She reported living alone at the time. (Id.). Plaintiff noted being

hospitalized for psychiatric reasons “a number of times” and that she was currently attending

Lenape for outpatient treatment twice weekly for the last year. (Id.). She reported no alcohol or

drug use since April 2017. (R. 668). Her mental status examination revealed a cooperative

demeanor, satisfactory hygiene, poor posture, normal motor behavior, appropriate eye contact,

normal speech, coherent and goal-directed thoughts, anxious and dysthymic mood, impaired

concentration and attention (although she was able to perform simple calculations and complete

serial sevens), mildly impaired memory, above average intellectual functioning, and good

judgment. (R. 669-70). She reported being able to engage in personal care, cook and prepare

food, do general cleaning and laundry, manage money and budget (albeit with poor spending

skills), socialize with neighbors and community members, watch television, listen to music, talk

on the phone, text, email, and use social media. (R. 670). Dr. Karpf diagnosed bipolar disorder

(most recent episode moderate), PTSD, generalized anxiety disorder, and alcohol, cocaine and

amphetamine abuse disorders in full sustained remission. (R. 670-71). He indicated that

Plaintiff’s prognosis was “[g]ood, given the claimant stays in treatment.” (R. 671).

In the attached Medical Source Statement of Ability to Do Work-Related Activities

(Mental), Dr. Karpf determined that Plaintiff had no restrictions in understanding and

remembering simple instructions or making judgments on simple work-related decisions; mild

restrictions in carrying out simple instructions, understanding and remembering complex

instructions, making judgments on complex work-related decisions, or interacting appropriately

with the public, supervisors or coworkers; and moderate restrictions in carrying out complex

instructions or responding appropriately to usual work situations and to changes in a routine

work setting. (R. 680-81). Dr. Karpf indicated that Plaintiff’s impairments do not her affect her

other capabilities, such as her ability to adapt or manage herself or concentrate, persist, or

maintain pace. (R. 681).

On March 4, 2019, a State agency psychological consultant, John Rohar, Ph.D.,

determined that Plaintiff is moderately limited in her ability to understand, remember and carry

out detailed instructions; to maintain attention and concentration for extended periods; to

complete a workday or workweek without interruption from psychologically based symptoms;

and to respond appropriately to changes in work setting. (R. 88-89). Dr. Rohar determined that

Plaintiff was not significantly limited in any other area of mental functioning. (Id.).

On September 9, 2019, Dr. Bickell completed a Medical Opinion Re: Ability to Do

Work-Related Activities (Mental). (R. 757-59). She opined that Plaintiff had a limited but

satisfactory ability to ask simple questions or request assistance, be aware of normal hazards and

take appropriate precautions, and adhere to basic standards of neatness and cleanliness; a

seriously limited ability to remember work-like procedure and understand, remember and carry

out very short and simple instructions; an inability to meet competitive standards in maintaining

attention for a two hour segment, working in coordination with or proximity to others without

being unduly distracted, making simple work-related decisions, interacting appropriately with the

general public, and responding appropriately to changes in a routine work setting; and no useful

ability to deal with normal work stress, get along with coworkers or peers without unduly

distracting them or exhibiting behavior extremes, accept instructions and respond appropriately

to criticism from supervisors, perform at a consistent pace without an unreasonable number and

length of rest periods, complete a normal workday and workweek without interruptions from

psychologically based symptoms, sustain an ordinary routine without special supervision, and

maintain regular attendance and be punctual within customary, usually strict tolerances. (R.

757). Dr. Bickell predicted that Plaintiff would miss more than three days of work per month.

(R. 758).

In an attached interrogatory response, Dr. Bickell indicated that there was evidence of

ongoing, effective medical treatment in the form of Plaintiff’s group and individual DBT, as well

as her Health Connections nursing services she receives. (R. 759). Dr. Bickell also indicated

that there was evidence of Plaintiff’s “marginal adjustment.” (Id.). She opined that there was

“no room” in Plaintiff’s treatment regimen for “environmental or daily life changes” and that

“[e]ven small changes could result in significant decompensation.” (Id.).

B. Non-medical Evidence

The record also contains non-medical evidence. On December 27, 2018, Plaintiff

completed an Adult Function Report. (R. 241-50). In the report, she indicated that she lives

alone in an apartment. (R. 241). She stated that it was “impossible to function” some days due

to severe depression and that PTSD sometimes caused her overwhelming anxiety, flashbacks, or

triggers. (Id.). She described her normal day as awakening at 8 a.m., attending appointments or

group care, then going to the gym or engaging in another “self-care” activity. (R. 242). She

checked a box indicating that she takes care of others and explained that she helps friends with

emotional support and tasks. (Id.). Plaintiff claimed to sleep too much or too little depending on

her emotional state. (Id.). She needs reminders or alarms for personal care and medication. (R.

243). She can prepare meals, clean, do laundry, shop in stores and online, maintain a journal,

meditate, listen to music, manage money and bills, socialize with others (approximately five days

per week), use public transportation and ride share apps, walk places, ride in a car, and drive,

although her license is currently suspended. (R. 241-45). Plaintiff has problems getting along

with authority figures due to past negative interaction with the police and problems getting along

with others generally due to disagreements over political, religious, and moral matters. (R. 246-

47). She has been fired or laid off from jobs for her inability to get along with others but her

“attitude at the workplace is manageable with routine and understanding.” (R. 247). She also

checked boxes indicating problems with concentration and understanding and claimed to have

problems handling stress or changes in routine. (R. 246-47).

Plaintiff also submitted a “timeline” describing her personal and medical history from

October 16, 2017, to January 2020. (R. 924-28). According to the timeline, Plaintiff was

hospitalized in mid-October 2016 due to an attempted suicide via Tylenol overdose. (R. 924).

After being in intensive care for 72 hours in Grandview Hospital, she was involuntarily

committed to Brooke Glen, where Plaintiff refused any treatment due to a lack of medical

insurance at the time. (Id.). She was released 72 hours later. (Id.). In mid-April 2017, Plaintiff

again attempted suicide by ingesting large amounts of liquor, Tylenol and Percocet, but

recovered on her own without medical attention. (Id.). Plaintiff claims that she gave up alcohol

and opiates after the incident. (Id.).

In mid-August 2017, Plaintiff “was functionally homeless, crashing anywhere” she could.

(R. 925). After an arrest, she admitted herself to Horsham due to depression, suicidal ideation

and “withdraw symptoms from the stimulants . . . .” (Id.). At the end of the month, Plaintiff

admitted herself into Penndel, an acute partial hospital, which Plaintiff describes as “more than

intensive outpatient; however less than full inpatient.” (Id.). In September 2017, Plaintiff went

to the crisis center at Lower Bucks Hospital after experiencing depression, agitation, loneliness,

suicidal ideation and “feeling very unheard.” (Id.). The hospital placed her inpatient at

Fairmount, which increased her medication dosage and prescribed new medications. (Id.).

Fairmount initially refused to release Plaintiff because she was homeless but in early October

2017 sent her to a prior address where Plaintiff maintained a close relationship with the family

who resides there. (Id.). Plaintiff returned to partial hospitalization at Penndel. (Id.) However,

she remained homeless and began camping in a tent outside of Lenape. (Id.).

On October 26, 2017, Plaintiff was arrested on a bench warrant, allegedly because the

court notice was mailed to an old address. (Id.). Plaintiff was released on November 9, 2017,

with stipulations to seek treatment from the Mobile Crisis Team (Mobile Crisis) at Lenape,

otherwise continue treatment and actively pursue employment. (R. 926). At this time, she also

returned to Penndel and began their TOPS program. (Id.). She was able to sleep on a friend’s

couch from late November to late December, when she moved to a hotel. (Id.). After Mobile

Crisis located Plaintiff in the hotel, in late January 2018 she was reevaluated by a doctor at

Lenape, who recommended a partial hospitalization program. (Id.). Plaintiff alleges that she

was sexually assaulted at the shelter in which she was living, causing her to stop treatment

temporarily other than her medications. (Id.). In February 2018, Plaintiff moved to a hotel, with

assistance from her mother. (Id.).

In March 2018, Plaintiff was arrested on another bench warrant, again allegedly due to a

lack of a permanent address, and spent approximately a week and a half in jail. (Id.). While

incarcerated, Plaintiff “weaned off of the medications” she was taking and refused to restart them

when she returned to Lenape. (R. 927). In April 2018, Plaintiff returned to TOPS. (Id.). Dr.

Bickell allegedly told Plaintiff that as long as she continued to see her a few times per week

Plaintiff could remain off medications “for the time being.” (Id.). Plaintiff only missed two

sessions at TOPS and at the end of September 2018 began DBT at Lenape, a six-month program

for those who have “show[n] willingness to improve, good attendance to previous groups, and

compliance with recommendations.” (R. 927). Around this time, Plaintiff was also evaluated for

drug and alcohol rehabilitation at Aldie. (Id.). The therapists there recommend a mix of

individual and group counseling sessions. (Id.). In December 2018, Plaintiff completed a two-

week program to become a certified peer support specialist. (Id.).

In April 2019, Plaintiff experienced physical pain, irritability, isolation and avoidance but

was able to work through these issues with continuing therapy. (Id.). In September 2019,

Plaintiff graduated from DBT. (Id.). The facilitators assured her that she had made “significant

changes” since starting the program, and Plaintiff agreed that she had improved her mental and

emotional coping skills. (Id.). In September 2019, Plaintiff facilitated a peer group at Aldie at

its request. (Id.).

In January 2020, Plaintiff re-enrolled at TOPS due to seasonal depression and challenges

with family members. (Id.). She explained:

It is because the progress I have made in my self-healing journey

that I am able to find the perspective and strength within myself to

know I am in current need of a higher level of mental health care

and support. . . . Without the self-work I have already done I might

not have gotten through it but because I am able to focus on my

mental health, physical pain and addiction recovery I am able to

assess when I need additional support to prevent relapse of any

kind.

(R. 927-28).

Later in the month, she reported continuing with Aldie and Lenape, as well as running

her own group sessions, which helped with her loneliness and disengagement. (R. 928). She

claimed that her prior drug use was to push through physical pain and that “working is

impossible” now that she is drug-free. (R. 928). She further claimed that her “anxiety and

mental health issues can be absolutely disabling” and affect her sleep, appetite, and hygiene.

(Id.). She stated that when her “depression is at an all time low” she has crying spells and

suicidal emotions and it becomes “challenging to access” the otherwise “enormous amount of

skills” she has built up over the past few years of treatment. (Id.).

Plaintiff closed her timeline with the following summation:

I have managed to get myself to a really good place. I have started

a successful, loving and supportive relationship. I am maintaining

my therapy and group schedule and keeping sober, clean and

optimistic. I have dedicated myself to staying mentally healthy and

to managing my physical body and pain to the best of my ability. I

have finally found a rhythm and routine that keeps me safe, off the

streets, sober and in a good place within myself. I have graduated

DBT and become a Peer Support Specialist and have begun a

group based in an interest of mine to help pay it forward to others.

I have done all of this because of my ability to access the care I

have needed and to maintain that level of care as well as to remove

the pressures of pushing my body through tremendous pain and

mental distress of being overworked in jobs that don’t value me

and in family and personal relationships that bring me down as

well. In order for me to continue to maintain this level of mental

health, recovery, sobriety and tolerable pain management I hope to

remain in the routines and structures I have cultivated for myself

so I can continue to live a life worth living.

(R. 928).

At the administrative hearing on January 31, 2020, Plaintiff testified that she lives alone

in an apartment and that she receives financial assistance from her mother, SNAP food benefits,

and health insurance from Keystone First. (R. 50). She has a driver’s license suspended due to

prior convictions for driving under the influence. (R. 51). She has extensive restaurant work

experience, primarily cooking. (R. 52). She explained that she returned to the TOPS program

for “added support” due to self-destructive thoughts, without action, brought on by dealing with

her sister who was going through similar issues as Plaintiff had experienced. (R. 54). She also

runs a weekly astrology group at Aldie. (R. 55). Plaintiff reported applying for several jobs

based on her peer support person certification. (R. 56). She indicated that she has been sober

since April 15, 2017. (R. 57). She testified that she had done a partial hospitalization, followed

by TOPS, then DBT for the past year. (Id.). She explained that she has sessions at Lenape two

mornings per week, one therapy visit per week, visits with Dr. Bickell “every couple of months,”

and weekly treatments at Aldie. (R. 63). On Friday, when Plaintiff normally has no

appointments, she prepares meals, catches up on tasks like laundry, and engages in “self-care.”

(R. 64). She described symptoms including depression, anxiety, racing thoughts progressing “to

a more self-destructive manner if I’m in a really bad or depressed place,” paranoia and loss of

motivation. (R. 65-66, 68). She stated that Latuda “really benefited” her, but she stopped it due

to gaining 60 pounds in two months. (R. 66). She has been off all medication since April 2018.

(R. 67).

III. ALJ’S DECISION

Following the administrative hearing held on January 31, 2020, the ALJ issued a decision

in which she made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act

through December 31, 2019.

2. The claimant has not engaged in substantial gainful activity since February 1,

2018, the amended alleged onset date.

3. The claimant has the following severe impairments: carpel tunnel syndrome,

degenerative disc disease of the lumbar spine, bipolar disorder, borderline

personality disorder and generalized anxiety disorder.

4. The claimant does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

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

residual functional capacity to perform light work as defined in 20 CFR

404.1567(b) and 416.967(b) except that she is limited to occasional reaching

overhead, but otherwise frequently reaching, handling, fingering, or feeling; to

being able to shift positions from sitting to standing while continuing to perform

tasks at the work station; to no climbing ladders, ropes and scaffolds or crawling

but occasionally engaging in all other postural maneuvers; and to avoiding

concentrated exposure to extreme temperatures, humidity, and vibration, but no

exposure to workplace hazards. She is further limited to occupations that are

typically self-paced, with no tandem or teamwork with coworkers on the same

task and no rapid production rate work; to occasional interaction with supervisors,

coworkers, or the general public; and to work in occupations where the work

setting and work assignments are typically very similar from day to day.

6. The claimant is unable to perform any past relevant work.

7. The claimant was born on November 10, 1985 and was 32 years old, which is

defined as a younger individual age 18-49, on the alleged disability onset date.

8. The claimant has at least a high school education and is able to communicate in

English.

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding

that the claimant is “not disabled,” whether or not the claimant has transferable

job skills.

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that the claimant can perform.

11. The claimant has not been under a disability, as defined in the Social Security

Act, from February 1, 2018, through the date of this decision.

(R. 14-40). Accordingly, the ALJ found Plaintiff was not disabled. (R. 34).

IV. LEGAL STANDARD

To be eligible for benefits under the Social Security Act, a claimant must demonstrate to

the Commissioner that he cannot engage in substantial gainful activity because of a medically

determinable physical or mental impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period of at least 12 months. 42 U.S.C. §

1382c(a)(3)(A). A five-step sequential analysis is used to evaluate a disability claim:

First, the Commissioner considers whether the claimant is currently

engaged in substantial gainful activity. If she is not, then the

Commissioner considers in the second step whether the claimant has

a “severe impairment” that significantly limits her physical or

mental ability to perform basic work activities. If the claimant

suffers a severe impairment, the third inquiry is whether, based on

the medical evidence, the impairment meets the criteria of the

impairment listed in the “listing of impairments,” . . . which result

in a presumption of disability, or whether the claimant retains the

capacity to work. If the impairment does not meet the criteria for a

listed impairment, then the Commissioner assesses in the fourth step

whether, despite the severe impairment, the claimant has the

residual functional capacity to perform her past work. If the

claimant cannot perform her past work, then the final step is to

determine whether there is other work in the national economy that

the claimant can perform.

Sykes v. Apfel, 228 F.3d 259, 262-63 (3d Cir. 2000); see also 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). The disability claimant bears the burden of establishing steps one through four.

If the claimant is determined to be unable to resume previous employment, the burden shifts to

the Commissioner at step five to establish that, given the claimant’s age, education, work

experience, and mental and physical limitations, he is able to perform substantial gainful

activities in jobs existing in the national economy. Poulos v. Comm’r. of Soc. Sec., 474 F.3d 88,

92 (3d Cir. 2007).

Judicial review of a final decision of the Commissioner is limited. A district court is

bound by the factual findings of the Commissioner if they are supported by substantial evidence

and decided according to correct legal standards. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.

1999). Substantial evidence is “more than a mere scintilla” and “such relevant evidence as a

reasonable mind might accept as adequate.” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 118

(3d Cir. 2000) (citations omitted). Even if the record could support a contrary conclusion, the

decision of the ALJ will not be overruled as long as there is substantial evidence to support it.

Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986). The court has plenary review of legal

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

V. DISCUSSION

In her request for review, Plaintiff raises five claims5:

I. The Commissioner under whom the ALJ issued the final

decision served a longer term than the President and was

removable only for cause, in violation of the separation of powers;

therefore, the decision is constitutionally defective and should be

reversed.

II. The ALJ inexplicably disregarded the opinion of the treating

psychiatrist that Ms. Metzger fulfilled the “C” criteria of 12.04 and

12.06.

III. The ALJ rejected the opinions of the treating psychiatrist for

erroneous reasons, in violation of the regulations and law of this

circuit.

IV. The ALJ expressly credited the opinion of the state agency

physician, but inexplicably failed to include the limitations she

assessed in Plaintiff’s RFC.

5 The Court sets forth and considers Plaintiff’s arguments in the order corresponding to

the five-step sequential analysis.

V. The ALJ failed to include all of Plaintiff’s credibly established

limitations in her RFC and hypothetical question to the vocational

expert.

(Pl.’s Br., ECF No. 10, at 4-29).

A. Separation of Powers Argument

Relying upon the Supreme Court’s ruling in Seila Law LLC v. CFPB, Plaintiff submits

that the structure of the Social Security Administration (SSA) is an unconstitutional violation of

the separation of powers because its head serves for a longer term than the President (six years)

but can only be removed by the President for cause (“neglect of duty or malfeasance in office”).

(Pl.’s Br., ECF No. 10, at 4-6 (citing __ U.S. __, 140 S. Ct. 2183 (2020); 42 U.S.C. § 902(a)(3))).

She contends that she was deprived of a valid administrative proceeding because former

Commissioner Andrew Saul’s promulgation of controlling regulations under which the case was

decided, as well as his delegation of authority to the presiding ALJ, were constitutionally

defective. (Id. at 5-6). She therefore requests that the ALJ’s decision be reversed. (Id. at 6).

In response, the Acting Commissioner agrees that Section 902(a)(3) violates the

separation of powers but insists that that fact alone does not warrant setting aside a denial of

disability benefits. (Resp., ECF No. 11, at 4). Citing the Supreme Court case of Collins v.

Yellen, she asserts that Plaintiff cannot show the required nexus between the provision and the

denial of her claim for two reasons. (Id. at 5 (citing 141 S. Ct. 1761 (2021))). First, she

maintains that “the deciding ALJ served under a ratification of her appointment by an Acting

Commissioner not subject to Tenure Protection, thus severing any nexus between the removal

restriction and Plaintiff’s alleged harm.” (Id. at 6-8). Second, she submits that Plaintiff is unable

to show that Section 902(a)(3) caused the denial of her benefits claim as required by Collins.

(Id. at 8-12). On this point, she observes that unlike instances in which an agency official lacks

proper authority to occupy an office due to a violation of the Appointments Clause, agency

action is not per se invalid simply because it can be traced back to an official subject to an

unconstitutional removal protection. (Id. at 8-9 (citing Lucia, 138 S. Ct. 2044 (emphasis in

original))). Instead, she argues that under Collins there can be no argument that the official

exercised power he or she did not lawfully possess as long as the official was properly appointed.

(Id. at 9). Thus, in the Acting Commissioner’s view, Plaintiff can succeed on her removal

challenge only if the injuries were caused by an official subject to the removal restrictions and

the restrictions themselves “inflict[ed] compensable harm” upon Plaintiff. (Id. (quoting Collins,

141 S. Ct. at 1789)). This showing, the Acting Commissioner insists, Plaintiff has not made.

(Id. at 8-12).

As a separate argument, the Acting Commissioner posits that Plaintiff’s request for a new

administrative hearing should be denied under the harmless error doctrine, the de facto officer

doctrine, the rule of necessity and “broad prudential considerations.” (Resp., ECF No. 11, at 12-

16). In her reply, Plaintiff counters that these “other arguments” are not persuasive. (Reply,

ECF No. 12, at 15-16).

Plaintiff further replies that she does not challenge the validity of the ALJ’s appointment

but rather the delegation of authority by Commissioner Saul because she “was subject to the

unconstitutional removal protection at the time of th[e] decision.” (Reply, ECF No. 12, at 9).

She insists that notwithstanding the Acting Commissioner’s subsequent ratification of the ALJ’s

appointment, she derived her authority to issue her decision from Commissioner Saul, rendering

it constitutionally defective. (Id. at 9-10). Next, she counters that “harm is presumed” because

the matter involves government officials exercising authority that they did not lawfully possess

in violation of the separation of powers. (Id. at 10-12 (citing Collins, 141 S.Ct. at 1788; Carr,

141 S. Ct. at 1356-62; Cirko v. Comm’r of Soc. Sec., 948 F.3d 148, 153-54 (3d Cir. 2020))). She

continues that even if a causal connection is not presumed, she has satisfied this requirement

because without the illegal delegation of authority the ALJ and Appeals Council could not have

issued their unfavorable determinations. (Id. at 12). In fact, she argues that the ALJ and

Commissioner Saul share “an identity relationship” such that the decision of the ALJ is the

decision of the Commissioner pursuant to 42 U.S.C. § 405(b)(1). (Id. at 13).

In Seila Law, the United States Supreme Court found that a violation of the constitutional

separation of powers occurs when an executive agency is led by a single head who serves for a

longer term than the president and can only be removed from that position for cause. 140 S. Ct.

2183. The Acting Commissioner agrees that the relevant provision of the Social Security Act, 42

§ U.S.C. § 902(a)(3), violates the separation of powers to the extent that it limits the President’s

authority to remove the Commissioner without cause. (Resp., ECF No. 11, at 4). However, the

Acting Commissioner argues that this alone does not support setting aside Plaintiff’s unfavorable

disability determination because Plaintiff cannot show that the restriction actually caused her

harm. (Id.).

In 2021, the Supreme Court clarified its holding in Seila in Collins v. Yellen, 141 S. Ct.

1761. In Collins, the Court held that an unconstitutional removal provision does not

automatically render all actions taken by individuals subject to that provision void. Id. at 1787.

The court explained:

Although the statute unconstitutionally limited the President’s

authority to remove the [individual], there was no constitutional

defect in the statutorily prescribed method of appointment to that

office. As a result, there is no reason to regard any of the actions

taken by the [agency] as void.

Id. (emphasis in original). However, the court also found that “it is still possible for an

unconstitutional provision to inflict compensable harm.” Id. at 1789. In such a case, the plaintiff

must show that the removal restriction was the cause of the harm he suffered. Id. In the context

of Social Security appeals, “Collins requires [the plaintiff] to demonstrate a nexus between the

decision denying [his] disability benefits and 42 U.S.C. § 902(a)(3).” Andino v. Kijakazi, No.

21-2852, 2022 WL 1135010, at *7 (E.D. Pa. 2022).

Notably, post-Collins, all the courts in this circuit that have considered such separation of

powers arguments as the one raised here by Plaintiff have agreed, citing Collins, that they do not

warrant remand. See, e.g., Andino, 2022 WL 1135010; Adams v. Kijakazi, No. 20-3591, 2022

WL 767806, at *9-11 (E.D. Pa. Apr. 18, 2022); High v. Kijakazi, No. 20-3528, 2022 WL

394750, at *6 (E.D. Pa. Feb. 9, 2022); Wicker v. Kijakazi, No. 20-4771, 2022 WL 267896, at *8-

10 (E.D. Pa. Jan. 28, 2022); Mor v. Kijakazi, No. 21-1730, 2022 WL 73510 (D.N.J. Jan. 7,

2022); Crossley v. Kijakazi, No. 20-2298, 2021 WL 6197783, at *8 (M.D. Pa. Dec. 31, 2021).

Courts in other circuits have also reached the same conclusion. See, e.g. Shannon R. v. Comm’r

of Soc. Sec., 572 F. Supp. 3d 1028, 1037-39 (W.D. Wash. 2021); Alice T. v. Kijakazi, No.

8:21CV14, 2021 WL 5302141, at *18 (D. Neb. Nov. 15, 2021); Webb v. Kijakazi, No.

1:20CV714, 2021 WL 5206498, at *15 at n. 12 (M.D.N.C. Nov. 9, 2021) (Report and

Recommendation); Lisa Y. v. Comm’r of Soc. Sec., 570 F. Supp. 3d 993 (W.D. Wash. 2021);

Robinson v. Kijakazi, No. 1:20-CV-00358-KDB, 2021 WL 4998397, at *2-3 (W.D.N.C. Oct. 27,

2021); Tracey Ann. P. v. Kijakazi, No. 20CV1163-LAB(RBB), 2021 WL 4993021, at *18 (S.D.

Cal. Oct. 27, 2021) (Report and Recommendation); Robles v. Comm’r of Soc. Sec., No.

220CV01069JDPSS, 2021 WL 4285170, at *4 n. 6 (E.D. Cal. Sept. 21, 2021); Angelita O. v.

Kijakazi, No. 1:20-CV-00034-AJB, 2021 WL 4146085, at *18 at n. 13 (N.D. Ga. Sept. 13,

2021).

Here, Plaintiff has not shown a nexus between the decision denying her disability benefits

and Section 902(a)(3). Citing cases involving violations of the Appointments Clause, she argues

the ALJ lacked authority to preside over her case and that she is entitled to a new hearing with a

constitutionally appointed ALJ. (Reply, ECF No. 19, at 11-12). However, as explained in

Collins, an unconstitutional restriction upon the President’s authority to remove an agency

officer does not create a constitutional defect in the officer’s appointment such that his or her

actions are rendered void, unlike with a violation of the Appointments Clause. 141 S. Ct. at

1787; cf. Lucia, 138 S. Ct. at 2055 (“the appropriate remedy for an adjudication tainted with an

appointments violation is a new hearing before a properly appointed official”) (citing Ryder v.

United States, 515 U.S. 177, 183, 188, 115 S. Ct. 2031, 132 L.Ed.2d 136 (1995)) (quotations

omitted).

Plaintiff further argues that the adjudication of her claim by an ALJ delegated authority

by a constitutionally defective Commissioner establishes a presumption of harm and that the ALJ

and Appeals Council could not have issued the adverse determination in her case “but for” the

Commissioner’s unlawful delegation of authority to them. (Reply, ECF No. 19, at 12, 14).

Nonetheless, the mere delegation of authority by the Commissioner does not constitute a

sufficient nexus to satisfy the requirements of Collins or Seila Law. In Collins, the injury

suffered by the plaintiffs was directly traceable to an amendment adopted by the directors of the

Federal Housing Finance Agency (FHFA) that materially changed the nature of certain financial

agreements. 141 S. Ct. at 1774, 1779. As a result, the plaintiffs in Collins had “an identifiable

basis to contend that but for the unconstitutional removal provision, the President may have

removed and appointed a different Director who would have disapproved of the adoption (or

implementation) of the [amendment.]” Lisa Y., 2021 WL 5177363, at *7. But it is not enough

for Plaintiff to trace her injury to the Commissioner’s ability to delegate power to ALJs and to

promulgate applicable rules and regulations; rather, she must be able to trace that injury to the

actual unlawful conduct in this matter, which is the unconstitutional removal clause. See Wicker,

2022 WL 267896, at *10 (citing Collins, 141 S. Ct. at 1779). Unlike the FHFA Director in

Collins, the Commissioner did not promulgate a new action affecting or injuring Plaintiff, and

there is nothing to indicate that but for the unconstitutional removal clause the President would

have removed the Commissioner and appointed a new Commissioner who would have decided

Plaintiff’s disability claim differently. See id. (finding Commissioner’s delegation of authority to

ALJs and Appeals Council did not constitute sufficient nexus to demonstrate standing under

Collins). As a result, Plaintiff has failed to show that the unconstitutional removal clause caused

her harm.6

Accordingly, remand on this basis is denied.

B. Listings at Step Three

Plaintiff contends that substantial evidence does not support the ALJ’s step three

determination that her mental impairments did not meet or equal Listing 12.04 (depressive,

bipolar and related disorders) or Listing 12.06 (anxiety and obsessive-compulsive disorders).

(Pl.’s Br., ECF No. 10, at 12-14; Reply, ECF No. 12, at 3-4). The Acting Commissioner

counters that the ALJ properly concluded that Plaintiff did not meet the criteria for Listings

12.04 and 12.06. (Resp., ECF No. 11, at 22-24). The Court agrees with Plaintiff that the ALJ’s

decision is not fully supported by substantial evidence.

6 Because this Court agrees with the Acting Commissioner that Plaintiff’s separation of

powers argument fails due to Plaintiff’s inability to show that the offending removal provision

caused the denial of her claim, this Court does not address the Acting Commissioner’s remaining

arguments or Plaintiff’s responses thereto.

At step three, the ALJ analyzes whether a claimant’s impairments or combination of

impairments meet or medically equal one of the listings that prevent an adult, regardless of age,

education, or work experience, from performing any gainful activity. 20 C.F.R. §§ 404.1525(a),

416.925(a). This inquiry functions to identify those claimants whose medical impairments are so

severe they would be found disabled regardless of their vocational background, making further

inquiry unnecessary. Sullivan v. Zebley, 493 U.S. 521, 532 (1990). The claimant bears the

burden of producing medical findings showing her impairments meet or medically equal a listed

impairment. See Burnett, 220 F.3d at 120 n.2. To meet this burden, the claimant must establish

all the requirements of the relevant listing. Sullivan, 493 U.S. at 530 (claimant who meets only

some of the listing requirements, “no matter how severely, does not qualify”); see also Hartung

v. Colvin, No. 12-6155, 2016 WL 2910096, at *5 (E.D. Pa. May 19, 2016). Meeting a listing

cannot be based on diagnoses alone. 20 C.F.R. §§ 404.1525(d) and 416.925(d). Because

matching or equaling a listing at step three results in an automatic finding of disability, the

listings are strictly construed against claimants. See Sullivan, 493 U.S. at 530-32.

Here, the ALJ identified Listings 12.04 (depressive, bipolar and related disorders) and

12.06 (anxiety and obsessive-compulsive disorders)7 as relevant to Plaintiff’s mental health

impairments, but found her impairments were not severe enough to meet the listing pursuant to

the criteria of paragraph “B” because they did not cause “at least two ‘marked’ limitations or one

‘extreme’ limitation” in the relevant areas of mental functioning.8 (R. 21). The ALJ also found

7 The ALJ also identified Listing 12.08, relating to personality disorders, as relevant to

Plaintiff’s mental health impairments, Plaintiff’s arguments do not concern this listing.

8 Specifically, the ALJ determined that Plaintiff had: (1) a mild limitation in

understanding, remembering, or applying information; (2) a moderate limitation in interacting

with others; (3) a moderate limitation in concentrating, persisting or maintaining pace; and (4) a

moderate limitation in adapting or managing herself. (R. 20-21).

that the paragraph “C” criteria were not satisfied. (R. 21-22). A claimant may satisfy the “C”

criteria of Listings 12.04 or 12.06 by showing that the claimant’s mental disorder is “serious and

persistent;” that is, that the claimant has a medically documented history of the existence of the

disorder over a period of two years, and there is evidence of both: (1) medical treatment, mental

health therapy, psychosocial support, or a highly structured setting that is ongoing and that

diminishes the symptoms and signs of the mental disorder, and (2) marginal adjustment; that is,

minimal capacity to adapt to changes in the environment or to demands that are not already part

of the claimant’s daily life. 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.04(C), 12.06(C). As set

forth in Section 12.00(G)(2)(c):

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

despite your diminished symptoms and signs, you have achieved

only marginal adjustment. “Marginal adjustment” means that your

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

have minimal capacity to adapt to changes in your environment or

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

consider that you have achieved only marginal adjustment when

the evidence shows that changes or increased demands have led to

exacerbation of your symptoms and signs and to deterioration in

your functioning; for example, you have become unable to

function outside of your home or a more restrictive setting, without

substantial psychosocial supports (see 12.00D). Such deterioration

may have necessitated a significant change in medication or other

treatment. Similarly, because of the nature of your mental disorder,

evidence may document episodes of deterioration that have

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

difficult for you to sustain work activity over time.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00G(2)(c).

Here, the ALJ’s paragraph “C” analysis was as follows:

I have also considered whether the “paragraph C” criteria are

satisfied. In this case, the evidence fails to establish the presence of

the “paragraph C” criteria because there is no medically

documented history of a chronic depressive, bipolar or anxiety-

related disorder accompanied by extreme limitations in one, or

marked limitations in two, of the areas of mental functioning listed

in paragraph B. There is no evidence that despite at least two years

of medically documented treatment, the claimant has only

marginal adjustment, that is, a minimal capacity to adapt to

changes in the claimant’s environment or to demands that are not

already part of the claimant’s daily life.

(R. 21-22).

Plaintiff first asserts that the ALJ failed to consider the opinions of Plaintiff’s treating

psychiatrist, Dr. Bickell, regarding whether the severity of Plaintiff’s impairments meet the

paragraph “C” criteria of Listings 12.04 and 12.06. (Pl.’s Br., ECF No. 10, at 13). Plaintiff is

incorrect on this point. After summarizing Dr. Bickell’s findings, which, as Plaintiff notes,

would have fulfilled these listings’ paragraph “C” criteria if credited, the ALJ explained:

Dr. Bickell’s assessment is not significantly persuasive, because it

is not substantiated by course of treatment or symptoms described

in the contemporaneous treatment notes. Furthermore, Dr. Bickell

assessed GAF score ranging between 55 and 70 between March

and April 2019 (Exhibits 23F, 30F, 40F), which would indicate no

more than moderate symptoms. However, I have considered the

areas of limitation cited by Dr. Bickell in assessing claimant’s

residual functional capacity, though the degree of limitation to

which she opines is not supported by the record.

(R. 30-31).

The ALJ discussed these treatment notes in considerable detail, highlighting that even

without psychotropic medications Plaintiff had repeatedly normal mental status examinations

showing stable mood, anxiety under control, appropriate appearance, cooperative demeanor,

normal speech and affect, goal-directed thoughts, intact memory and cognition, abstinence from

drugs and alcohol, and lack of depression, mania, psychosis, perceptual disturbances, or suicidal

thoughts; that individual therapy notes reflected Plaintiff “continu[ing] to work on finding a job

and improving relationships” such as by submitting applications and working through a

disagreement with her significant other, showing insight regarding the negative effects of her

prior substance abuse, and participating in social activities like spending the weekend at a

mountain cabin with a friend, going to an amusement park, and joining a church and attending

meetings there; and that group therapy notes indicated that Plaintiff participated in and believed

that she benefited from the sessions. (R. 29-30 (citing R. 788-850, 913-17, 930-1143)).

Regarding Plaintiff’s GAF scores assessed by Dr. Bickel, the ALJ observed: “Dr. Bickell

assessed GAF score ranging between 55 and 70 between March and April 2019, which would

indicate no more than moderate symptoms.” (R. 31 (citing R. 694-715, 788-850, 1144-84)).

These generally positive treatment notes and mild-to-moderate level GAF scores cited by the

ALJ constitute substantial evidence for her conclusion that “the degree of limitation to which

[Dr. Bickell] opine[d] is not supported by the record.” (R. 31; see Burnett, 220 F.3d at 118

(substantial evidence is “more than a mere scintilla” and “such relevant evidence as a reasonable

mind might accept as adequate”)).

Plaintiff further argues that “there was no good reason for the ALJ to disregard [her]

history of homelessness or her homelessness which occurred during the relevant period.”

(Reply, ECF No. 12, at 3). She submits that Plaintiff’s homelessness was an “obvious example

of marginal adjustment,” contrary to the ALJ’s determination that “no evidence” of marginal

adjustment existed. (Id.). The Acting Commissioner contends: “Notwithstanding a history of

homelessness, much of which predated the relevant period and which the ALJ acknowledged, the

ALJ discussed that for most of the period at issue here Plaintiff was not homeless and—rather—

lived alone (Tr. 21, 5-0, 241; see also Tr. 26, referencing Tr. 705 (explaining that Plaintiff

referenced a period of homelessness shortly following her alleged onset date)).”

The ALJ’s decision is internally inconsistent regarding Plaintiff’s homelessness. As the

Acting Commissioner notes, the ALJ acknowledged Plaintiff’s history of homelessness,

including a period occurring after the February 1, 2018 alleged onset date: “In February 2018,

shortly after the amended alleged onset date of disability, the claimant was evaluated at Lenape

where she presented to obtain services and expressed an interest in their transitional outpatient

support . . . program related to substance abuse rehabilitation. She stated that she was homeless

since January . . . .”9 (Id. at 26 (citing R. 694-715) (emphasis added); see also R. 23, 25, 32

(noting earlier periods of homelessness (citing R. 523-27, 578-82, 924-28))). Nonetheless,

despite this acknowledgement of Plaintiff’s homelessness during the alleged disability period,

the ALJ inexplicably found that “there is no evidence of homelessness after the amended alleged

onset date.” (R. 21). Based on the ALJ’s own summary of the evidence in this matter, this

finding was erroneous.

This error implicates the ALJ’s analysis of both the paragraph “B” and “C” criteria. The

ALJ stated her incorrect finding regarding the absence of evidence of homelessness during the

alleged disability period in her paragraph “B” evaluation of Plaintiff’s ability to adapt and

manage herself. (R. 21). She specifically referenced Plaintiff’s lack of homelessness since

alleged disability onset as a reason that Plaintiff had only a “moderate limitation” in this area of

functioning. (Id.). However, if the ALJ had not overlooked evidence of Plaintiff’s homelessness

during the relevant period, she might have found Plaintiff’s limitation in adapting and managing

herself sufficiently severe to render her disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§

12.04(B), 12.06(B) (one “extreme” limitation in this or another listed area would meet the

9 The underlying record cited by the ALJ is dated February 15, 2022. (R. 705). Plaintiff

was living in a hotel room at that time. (Id.). It is unclear how long Plaintiff remained homeless,

although the timeline she submitted indicates that in March 2022 she did “not hav[e] an address,”

which allegedly resulted in her missing a court date and being arrested and jailed for

approximately a week and a half. (R. 926). After her release, she started at the TOPs program at

Lenape in April 2018. (Id.). An August 29, 2018 assessment performed by Aldie and states that

Plaintiff reported that she “was homeless for almost a year until she was set up with housing

through Lenape Valley and her case manager.” (R. 938). As of December 27, 2018, according

to her Adult Function Report, Plaintiff was living in an apartment. (R. 241, 248).

relevant listing). Further, as noted, the ALJ found that Plaintiff did not meet the paragraph “C”

criteria because she lacked evidence of “marginal adjustment,” but if the ALJ had not

disregarded her most recent episode of homelessness beginning in January 2018 she might have

reached a different conclusion on this point. See Pierce v. Comm’r of Soc. Sec., No. 15-01956,

2016 WL 1643408, at *7 (D.N.J. Apr. 26, 2016) (remanding for “further step three analysis” for

Listing 12.04, in part because “the ALJ did not sufficiently contradict” evidence that Plaintiff

“was homeless” and “had unstable housing issues”).

For these reasons, this matter is remanded for the ALJ to consider the impact, if any,10 of

Plaintiff’s homelessness during the period of alleged disability on the evaluation of the paragraph

“B” and “C” criteria of Listings 12.04 and 12.06.

C. Plaintiff’s Remaining Arguments

In Plaintiff’s remaining issues raised, she makes three arguments potentially affecting the

determination of her RFC: that the ALJ erroneously rejected the opinions of the treating

psychiatrist; that the ALJ credited the opinion of the state agency physician but inexplicably

failed to include the limitations she assessed in Plaintiff’s RFC; and that the ALJ did not include

all her credibly established limitations in her RFC (or in the hypothetical posed to the VE).

However, the Court need not decide at this time whether any of these issues – which would be

addressed later in the five-step analysis – constitute a basis for remand. If the ALJ determines on

remand that the Plaintiff has met a listing at step three, no further analysis will be required.

Milliman v. Berryhill, No. 16–1279–LPS–MPT, 2017 WL 3912830, at *8 (D. Del. Sept. 7, 2017)

(“Analysis stops at this step where the objectively determinable impairment meets or medically

10 The Court offers no opinion on whether Plaintiff has in fact met the criteria of the

relevant listings.

equals one listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, because the claimant is

considered disabled per se.”); see also Steininger v. Barnhart, No. 04-5383, 2005 WL 2077375,

at *4 (E.D. Pa. Aug. 24, 2005) (not addressing additional arguments because the ALJ may

reverse his findings after remand).

VI. CONCLUSION

For the foregoing reasons, I find that the ALJ erred by failing to consider evidence of

Plaintiff’s homelessness during the alleged disability period. Accordingly, Plaintiff’s request for

review is GRANTED to the extent that it requests remand. This matter is remanded to the

Acting Commissioner for further proceedings consistent with this memorandum.

BY THE COURT:

/s/ Lynne A. Sitarski .

LYNNE A. SITARSKI

United States Magistrate Judge