# Hollinger v. Saul

> District Court, M.D. Pennsylvania · March 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10411383

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 7, 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/10411383

## How later opinions describe it (automated extraction)

- noting that an argument that VE testimony cannot be relied upon where an ALJ failed to recognize credibly established limitations during an RFC Page 39 of 42 assessment is best understood as a challenge to the RFC assessment itself
- noting that an ALJ must include in the RFC those limitations which he finds to be credible
- noting that the scope Page 5 of 42 of review on legal matters is plenary

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JENNIFER K. HOLLINGER, ) CIVIL ACTION NO. 4:20-CV-1133
Plaintiff )
)
v. )
) (ARBUCKLE, M.J.)
KILOLO KIJAKAZI,1 )
Defendant )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Jennifer Hollinger, an adult individual who resides within the Middle
District of Pennsylvania, seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for
disability insurance benefits under Title II of the Social Security Act. Jurisdiction is
conferred on this Court pursuant to 42 U.S.C. §405(g).

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9,
2021. She is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d)
(providing that when a public officer sued in his or her official capacity ceases to
hold office while the action is pending, “the officer’s successor is automatically
substituted as a party.”); see also 42 U.S.C. § 405(g) (“Any action instituted in
accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in
such office.”).

Page 1 of 42
This matter is before me, upon consent of the parties pursuant to 28 U.S.C.
§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. After reviewing the

parties’ briefs, the Commissioner’s final decision, and the relevant portions of the
certified administrative transcript, I find the Commissioner's final decision is
supported by substantial evidence. Accordingly, the Commissioner’s final decision

will be AFFIRMED.
II. BACKGROUND & PROCEDURAL HISTORY
On October 17, 2017, Plaintiff protectively filed an application for disability
insurance benefits under Title II of the Social Security Act. (Admin. Tr. 10; Doc.

13-2, p. 11). In this application, Plaintiff alleged she became disabled as of February
20, 2017, when she was forty-five years old, due to the following conditions: bipolar
I; PTSD; depression; anxiety; HTN; and thyroid condition. (Admin. Tr. 170; Doc.
13-6, p. 11). Plaintiff alleges that the combination of these conditions affects her

ability to walk, remember, and concentrate. (Admin. Tr. 182; Doc. 13-6, p. 23).
Plaintiff has at least a high school education. (Admin. Tr. 22; Doc. 13-2, p. 23).
Before the onset of her impairments, Plaintiff worked as a project coordinator,

customer service manager, customer service representative, accounting clerk, and
service dispatcher. (Admin. Tr. 22; Doc. 13-2, p. 23).

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On January 19, 2018, Plaintiff’s application was denied at the initial level of
administrative review. (Admin. Tr. 10; Doc. 13-2, p. 11). On February 9, 2018,

Plaintiff requested an administrative hearing. Id.
On February 26, 2019, Plaintiff, assisted by her counsel, appeared, and
testified during a hearing before Administrative Law Judge Lawrence J. Neary (the

“ALJ”). Id. On April 17, 2019, the ALJ issued a decision denying Plaintiff’s
application for benefits. (Admin. Tr. 23; Doc. 13-2, p. 24). On April 25, 2019,
Plaintiff requested review of the ALJ’s decision by the Appeals Council of the Office
of Disability Adjudication and Review (“Appeals Council”). (Admin. Tr. 146; Doc.

13-4, p. 74).
On June 1, 2020, the Appeals Council denied Plaintiff’s request for review.
(Admin. Tr. 1; Doc. 13-2, p. 2).

On July 2, 2020, Plaintiff initiated this action by filing a Complaint. (Doc. 1).
In the Complaint, Plaintiff alleges that the ALJ’s decision denying the application is
not supported by substantial evidence, and improperly applies the relevant law and
regulations. Id. As relief, Plaintiff requests that the Court enter an order awarding

benefits. Id.
On January 11, 2021, the Commissioner filed an Answer. (Doc. 12). In the
Answer, the Commissioner maintains that the decision holding that Plaintiff is not

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entitled to disability insurance benefits was made in accordance with the law and
regulations and is supported by substantial evidence. Id. Along with her Answer, the

Commissioner filed a certified transcript of the administrative record. (Doc. 13).
Plaintiff’s Brief (Doc. 14), the Commissioner’s Brief (Doc. 16), and
Plaintiff’s Reply (Doc. 17) have been filed. This matter is now ripe for decision.

III. STANDARDS OF REVIEW
Before looking at the merits of this case, it is helpful to restate the legal
principles governing Social Security Appeals.
A. SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT

When reviewing the Commissioner’s final decision denying a claimant’s
application for benefits, this Court’s review is limited to the question of whether the
findings of the final decision-maker are supported by substantial evidence in the
record. See 42 U.S.C. § 405(g); Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 200

(3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).
Substantial evidence “does not mean a large or considerable amount of evidence, but
rather such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial
evidence is less than a preponderance of the evidence but more than a mere scintilla.
Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not

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substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a
conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.

1993). But in an adequately developed factual record, substantial evidence may be
“something less than the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent [the ALJ’s decision]

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,
383 U.S. 607, 620 (1966).
“In determining if the Commissioner’s decision is supported by substantial
evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.

Supp. 2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not
whether Plaintiff is disabled, but whether the Commissioner’s finding that Plaintiff
is not disabled is supported by substantial evidence and was reached based upon a

correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417,
2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ’s
errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v.
Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary’s determination

as to the status of a claim requires the correct application of the law to the facts.”);
see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope

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of review on legal matters is plenary); Ficca, 901 F. Supp. 2d at 536 (“[T]he court
has plenary review of all legal issues . . . .”).

B. STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVE-STEP
SEQUENTIAL EVALUATION PROCESS
To receive benefits under the Social Security Act by reason of disability, a
claimant must demonstrate an inability to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also
20 C.F.R. § 404.1505(a).2 To satisfy this requirement, a claimant must have a severe
physical or mental impairment that makes it impossible to do his or her previous

work or any other substantial gainful activity that exists in the national economy. 42
U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). To receive benefits under Title II
of the Social Security Act, a claimant must show that he or she contributed to the
insurance program, is under retirement age, and became disabled prior to the date on

which he or she was last insured. 42 U.S.C. § 423(a); 20 C.F.R. § 404.131(a).

2 Throughout this Report, I cite to the version of the administrative rulings and
regulations that were in effect on the date the Commissioner’s final decision was
issued. In this case, the ALJ’s decision, which serves as the final decision of the
Commissioner, was issued on April 17, 2019.
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In making this determination at the administrative level, the ALJ follows a
five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). Under this process,

the ALJ must sequentially determine: (1) whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant has a severe impairment; (3)
whether the claimant’s impairment meets or equals a listed impairment; (4) whether

the claimant is able to do his or her past relevant work; and (5) whether the claimant
is able to do any other work, considering his or her age, education, work experience
and residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4).
Between steps three and four, the ALJ must also assess a claimant’s RFC.

RFC is defined as “that which an individual is still able to do despite the limitations
caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1520(e); 20 C.F.R.

§ 404.1545(a)(1). In making this assessment, the ALJ considers all the claimant’s
medically determinable impairments, including any non-severe impairments
identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2).
At steps one through four, the claimant bears the initial burden of

demonstrating the existence of a medically determinable impairment that prevents
him or her in engaging in any of his or her past relevant work. 42 U.S.C. § 423(d)(5);
20 C.F.R. § 404.1512; Mason, 994 F.2d at 1064. Once this burden has been met by

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the claimant, it shifts to the Commissioner at step five to show that jobs exist in
significant number in the national economy that the claimant could perform that are

consistent with the claimant’s age, education, work experience and RFC. 20 C.F.R.
§ 404.1512(b)(3); Mason, 994 F.2d at 1064.
The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significant among these legal benchmarks is a requirement that the
ALJ adequately explain the legal and factual basis for this disability determination.
Thus, to facilitate review of the decision under the substantial evidence standard, the
ALJ's decision must be accompanied by “a clear and satisfactory explication of the

basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts
in the evidence must be resolved and the ALJ must indicate which evidence was
accepted, which evidence was rejected, and the reasons for rejecting certain

evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his decision which
evidence he has rejected and which he is relying on as the basis for his finding.”
Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).
IV. DISCUSSION

Plaintiff raises the following issues in her statement of errors:

ERROR 1: The ALJ failed to find very persuasive the opinions of long-
standing psychiatrist, L. Alida Covaci, M.D., as well as that of therapist
Debra L. Francis-Werner, MSW, LCSW.
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ERROR 2: The ALJ incorrectly concluded that Claimant can perform
a full range of work at all exertional levels for the durational period,
and thus can engage in substantial gainful activity because such a
determination lacks substantial evidentiary support in the Record.
(Doc. 14, p. 3).
A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATION
In his April 2019 decision, the ALJ found that Plaintiff would meet the insured
status requirement of Title II of the Social Security Act through December 31, 2022.
(Admin. Tr. 12; Doc. 13-2, p. 3). Then, Plaintiff’s application was evaluated at steps
one through five of the sequential evaluation process.

At step one, the ALJ found that Plaintiff did not engage in substantial gainful
activity at any point between February 20, 2017 (Plaintiff’s alleged onset date) and
April 17, 2019 (the date the ALJ decision was issued) (“the relevant period”). Id. At

step two, the ALJ found that, during the relevant period, Plaintiff had the following
medically determinable severe impairments: post-traumatic stress disorder (PTSD);
depressive disorder; anxiety disorder; and bipolar disorder. (Admin. Tr. 12; Doc. 13-

2, p. 13). The ALJ also identified the following medically determinable non-severe
impairments: hypertension; asthma hypothyroidism; and obesity. (Admin. Tr. 12-
13; Doc. 13-2, pp. 13-14). At step three, the ALJ found that, during the relevant
period, Plaintiff did not have an impairment or combination of impairments that met

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or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Admin. Tr. 13; Doc. 13-2, p. 14).

Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ
found that, during the relevant period, Plaintiff retained the RFC to engage in work
at all exertional levels defined in 20 C.F.R. § 404.1567 except that she is:

limited to simple, routine tasks, with only occasional changes in the
work setting, no interaction with the public and not and only occasional
interaction with the supervisors and co-workers.
(Admin. Tr. 16; Doc. 13-2, p. 17) (typographical errors in original).
At step four, the ALJ found that, during the relevant period, Plaintiff could
not engage in her past relevant work. (Admin. Tr. 21; Doc. 13-2, p. 22). At step five,
the ALJ found that, considering Plaintiff’s age, education and work experience,
Plaintiff could engage in other work that existed in the national economy. (Admin.
Tr. 22-23; Doc. 13-2, pp. 23-24). To support his conclusion, the ALJ relied on

testimony given by a vocational expert during Plaintiff’s administrative hearing and
cited the following four (4) representative occupations: laundry laborer, DOT
#361.687-018; cleaner/housekeeper, DOT #323.687-014; and bakery worker

conveyor line, DOT #524.687-022; and final assembler optical goods, DOT
#713.687-018. Id.

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B. WHETHER THE ALJ PROPERLY EVALUATED PLAINTIFF’S STATEMENTS
RECORDED IN MEDICAL RECORDS ABOUT HER SYMPTOMS & THE
OPINIONS THAT ARE CONSISTENT WITH THOSE STATEMENTS
Plaintiff argues that the ALJ’s decision to discount a medical opinion co-
authored by two mental health providers, and Plaintiff’s statements about her own
symptoms, is not supported by substantial evidence because the ALJ incorrectly
concluded that the opinion and statements were inconsistent with Plaintiff’s

treatment records.
The ALJ provided the following summary of the treatment records at issue in
his decision:

The claimant completed self-reporting Mood Charts from October 2016
through January 2018 as part of her therapy. It was noted at the
beginning of the charts that “Long term monitoring is valuable in
bipolar disorder to facilitate recognition of the variability in the mood
swings associated with the condition, including identification of
symptom-free intervals” (Exhibit 5F/2). Symptoms were reported on a
range of 0 (none) to 3 (high). In June 2017, she reported “low mood” at
a level of 3 on 4 days, with no “high mood” days at level 3. She reported
anxiety at level 3 on 7 days, three of which were days when her husband
was out of town (Exhibit 5F/12). In October 2017, she reported low
mood of 3 on 3 days, but anxiety at a level 3 on 21 days (Exhibit 5F/11).
In December 2017, she reported high mood at level 3 on 4 days, no days
of low mood above level 2, and anxiety at a level 3 on 11 days. Notably,
in September 2018, she reported no days at level three, very few at level
2, and 22 days of anxiety at level 0 (zero). When asked about this at the
hearing, she testified her medication had been increased the month
before.
In March 2017, the claimant presented to a doctor for a mole on her
back that her husband said may have gotten larger (Exhibit 2F/7). She
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was unaccompanied. Review of Systems was all otherwise negative,
including psychiatric. She was alert and fully oriented, with normal
mood and affect. Her behavior was normal, as was her judgment and
thought content. She was in no distress.
On April 5, 2017, it was noted that the claimant had adjusted to the care
and companionship of her therapy dog and had chosen to engage in
more activities outside of her home (Exhibit 9F/53). She had lost her
job but was “currently transitioning to a new role in her husband’s
company.”
On April 29, 2017, the claimant reported, “I’m doing pretty well”
(Exhibit 9F/29). On June 15, 2017, she said she was “Better for the most
part,” On July 11, 2017, she said, “I’m feeling pretty good” (Exhibit
9F/26). She reported depression and anxiety at a level of 3/10, and she
thought things were ok at home. She helped her husband with his work
and had less stress. On July 24, 2017 the claimant reported she was
feeling content staying at home, but her husband was concerned her
mood may deteriorate if she was bored, and they were therefore
considering a plan for her to participate “in a variety of fulfilling
activities” (Exhibit 9F/57). On August 22, 2017, she reported, “for the
most part I am pretty well,” although still with days when she felt sad,
depressed, and crying (Exhibit 9F/24). On September 26, 2017, her
“Chief Complaint” was, “I’m good” and her progress was also “I’m
good. . . I had more good days. . . 3 days in 30 days were bad days.” On
Mental Status Examination, she was dressed appropriately, alert, and
oriented, with speech normal but monotone, reporting overall feeling
much better, laughing joking, and going to yoga saying, “I’m starting
to do things now” (Exhibit 9F/23).
On October 31, 2017, the claimant reported “The last couple days have
been pretty normal,” no crying or extra anxiety (Exhibit 9F/21). She
was dressed appropriately, alter and oriented, and speech was good. She
stated, “I still want less depression and more happy.” She was going for
walks, and taking yoga and bible studies. She complained of “some
scary dreams” (Exhibit 9F/21). It was noted on November 1, 2017, that
the claimant continued to be involved in a weekly yoga class. An 8-
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week bible study course had recently ended and she was pursuing
enrollment in a water fitness class, and considering a cooking class.
On November 15, 2017, the claimant presented to a nurse practitioner
with symptoms of cough and congestion for 2 days. she was noted to
be alert and fully oriented, with normal mood and affect (Exhibit 2F/4).
On December 12, 2017, the claimant reported, “I still do a lot of ups
and downs,” but “The last couple of days have been pretty normal, no
crying, no extra anxiety” (Exhibit 9F/19). On Mental Status
Examination, she was dressed appropriately, alert and fully oriented,
with normal speech. She stated, “I still do a lot of ups and downs . . . .
I had a traumatic week, very active, doing things. Now back to feeling
depressed, withdrawal, stopped medications.”
In February 2018, the claimant reported succeeding in managing
emotional distress associated with trauma narratives shared during
therapy and that goal was removed from her treatment plan. The
addition of Lithium to her medication regimen eliminated the extreme
mania and severe depression, and that objective was also removed from
the treatment plan. There was also a slight improvement in her goal of
increasing self-esteem (Exhibit 9F/65).
On June 19, 2018, the claimant reported feeling better since on Viibryd,
with more energy, improved motivation, and depression at 6-7/10.
Prazocin was helping her anxiety and nightmares. She reported, “I’m
going to Texas tomorrow” (Exhibit 9F/14). On Mental Status
Examination, her affect was appropriate, she was neat, alert, and fully
oriented, with appropriate affect and no suicidal or homicidal ideation.
On August 9, she reported thoughts of hurting herself, although one
week alter said, “I’m better than last Thursday (Exhibit 9F/13). On
September 11, 2018, she reported, “I’m feeling good,” with sleep better,
mood stable, less depression, and less anxiety (Exhibit 9F/7). On
Mental Status Examination, her appearance was neat, speech normal,
affect appropriate, and mood reported as “I’m feeling good.”
On December 8, 2018, the claimant stated, “I’m okay” (Exhibit 9F/5).
Her appearance was neat, speech normal, affect full range, and mood
Page 13 of 42
“Okay.” She still complained of mood swings, with crying and “ups
and downs” a lot. She reported being more anxious, with problems with
concentration. Her Geoden was increased. On January 9, 2019, the
claimant reported slight regression in her progress with increasing
confidence, attributing this to be the “severe periods of depression
experienced during the past 4 months” (Exhibit 8F).
(Admin. Tr. 18-20). Plaintiff also summarized these same records in her brief. (Doc.
14, pp. 8-11).
1. Whether the ALJ Properly Discounted Plaintiff’s Statements
Made to Treatment Providers During Appointments
The Commissioner’s regulations define “symptoms” as the claimant’s own
description of his or her impairment. 20 C.F.R. § 404.1502(i). The ALJ is not only
permitted, but also required, to evaluate the credibility of a claimant’s statements
about all symptoms alleged and must decide whether and to what extent a claimant’s
description of his or her impairments may be deemed credible. In many cases, this
determination has a significant impact upon the outcome of a claimant’s application,

because the ALJ need only account for those symptoms – and the resulting
limitations – that are credibly established when formulating his or her RFC
assessment. Rutherford, 399 F.3d at 554. To facilitate this difficult analysis, the

Commissioner has devised a two-step process that must be undertaken by the ALJ
to evaluate a claimant’s statements about his or her symptoms.

Page 14 of 42
First, the ALJ must consider whether there is an underlying medically
determinable impairment that can be shown by medically acceptable clinical and

laboratory diagnostic techniques that could reasonably be expected to produce the
symptom alleged. 20 C.F.R. § 404.1529(b). If there is no medically determinable
impairment that could reasonably produce the symptom alleged, the symptom

cannot be found to affect the claimant’s ability to do basic work activities. 20 C.F.R.
§ 404.1529(b); SSR 16-3p, 2016 WL 1119029.
Second, the ALJ must evaluate the intensity, persistence, and limiting effects
of the symptoms which can be reasonably attributed to a medically determinable

impairment. 20 C.F.R. § 404.1529(c)(1). Symptoms will be determined to reduce a
claimant’s functional capacity only to the extent that the alleged limitations and
restrictions can reasonably be accepted as consistent with objective medical

evidence and other evidence of record. 20 C.F.R. § 404.1529(c)(4). However, an
ALJ will not reject statements about the intensity, persistence, or limiting effects of
a symptom solely because it is not substantiated by objective evidence. 20 C.F.R.
§ 404.1529(c)(3). Instead, the ALJ will evaluate the extent to which any

unsubstantiated symptoms can be credited based on the following factors: the
claimant’s daily activities; the location, duration, frequency, and intensity of the
claimant’s pain or other symptoms; any factor that precipitates or aggravates the

Page 15 of 42
claimant’s pain or other symptoms; the type, dosage, effectiveness, and side effects
of any medication the claimant takes or has taken to alleviate his or her pain or other

symptoms; any treatment, other than medication, the claimant receives or has
received for relief of his or her pain or other symptoms; any measures the claimant
uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on your

back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and any
other factors concerning functional limitations and restrictions due to pain or other
symptoms. 20 C.F.R. § 404.1529(c)(3);.
An ALJ’s findings based on the credibility of a claimant are to be accorded

great weight and deference, since an ALJ is charged with the duty of observing a
witness’s demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL
288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm’r of Soc. Sec., 127

F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant’s statements
about his or her symptoms or limitations for no reason or for the wrong reason.
Rutherford, 399 F.3d at 554.
The ALJ provided the following summary of Plaintiff’s statements in his

decision:
The claimant alleges disability due to bipolar I, PTSD, depression,
anxiety, hypertension, and thyroid condition, and states that she stopped
working on February 20, 2017 because of her conditions and because
of other reasons, saying she was let go due to inconsistent/missing work
Page 16 of 42
(Exhibit 3E/2-3). She completed the 12th grade in regular education
classes. She performed work the vocational expert classified as skilled
and semi-skilled. In her Function Report, she alleged trouble going out
in public and interacting with people, uncontrollable crying, and no
drive/desire (Exhibit 4E). She takes care of pets, feeding them and
taking them outside, noting that one dog is her service dog. No one
helps her take care of the animals. She has no problem with personal
care and does not need help or reminders to take her medication, except
using a daily container to make sure she takes them.
The claimant prepares simple meals daily “when she feels up to it,”
stating she sometimes would rather not cook. She cleans, does laundry,
weeds and washes dishes again “only when [she] feel[s] up to it, a few
hours a week and weekly.” She goes outside on her property daily. She
drives or rides in a car. When asked if she goes out alone, she answered,
“no,” explaining she takes her service dog with her due to crowds,
anxiety, and PTSD. She shops by computer so she does not need to
leave her house, or goes to stores very quickly. She is able to pay bills,
count change, handles a savings account, and use a checkbook/money
orders. She state she does not spend time with others, but goes to church
and the grocery store regularly. She reports her impairments affect her
ability to concentrate and remember and says she can pay attention for
only 10 minutes and does not finish what she starts.
The claimant appears at the hearing with her service dog, which she
testified was prescribed by her psychiatrist Alida Covaci, M.D. for
PTSD in November 2016. She testified she cannot work, because she
was diagnosed with PTSD and bipolar disorder and has “episodes” and
panic attacks that do not allow her to leave her home or last away from
home for long periods of time. She did not have these prior to the
alleged onset date. She has a driver’s license with no limitations, and
drives to the doctor weekly, but said she cannot drive wherever she
would like or for a long time, due to fear and the PTSD. She testified
lost [sic] her last job because she could not show up on a regular basis,
due to episodes that would sometimes last a week, testifying the
episodes include uncontrollable crying, panic, and fear.
Page 17 of 42
The claimant testified she can follow movies, but does not get on the
internet much because she heard Facebook can cause depression. She
spends time with her grandchildren 3-4 times a month, but always with
her husband or their parent present. She goes to the store with her dog,
taking about 20-30 minutes, and goes to church about 3 times a month
with her husband. When asked if she could do a simple job, such as a
greeter-type job, she replied, “no, because of the public,” which puts in
her “an immediate panic attack.” when asked if she could do a job with
no public contact and little interaction otherwise, she responded that
she could not because she would have her panic attacks, which would
not allow her to show up.
(Admin. Tr. 16-17). Plaintiff does not identify which statements were improperly
discounted by the ALJ. The primary limitations established by this testimony,
however, appear to be social interaction limitations, and concentration problems.
In his decision, the ALJ found that based on the medical records summarized
in his decision (reproduced in section IV.B. of this opinion):
the claimant does have severe mental impairments, which have been
variously diagnosed as post-traumatic stress disorder (PTSD);
depressive disorder; anxiety disorder; and bipolar disorder. However,
her treatment has been rather conservative, with medication and therapy
only. She has not been hospitalized for any mental condition, or be in
intensive inpatient or outpatient treatment. Further, this conservative
treatment appears to have been effective, although there have been
times of greater symptoms, with trying different medications. Even
during the times of greatest reported distress, however, the claimant
was consistently alert and fully oriented (Exhibits 9F/2, 19, 21); dressed
and appropriately and well groomed (Exhibits 9F/2, 19, 21), with
normal speech (Exhibits 9F/5, 7, 19, 21, 23). Her mood was reported as
normal, stable, good, and okay (Exhibits 2F/4, 7; 9F/13; 9F/7; and 9F/5,
7, respectively). In the only mention of memory in the record, the
claimant’s cognitive memory was described as “good,” by her
psychiatrist, with insight and judgment “fair” (Exhibit 9F/4).
Page 18 of 42
On two occasions, where the claimant needed to see a less familiar
provider for a medical problem, there were no mental symptoms noted.
In March 2017, she was alert and fully oriented, with normal mood and
affect. Her behavior was normal, as was her judgment and thought
content. She was in no distress (Exhibit 2F/7). On November 15 2017,
she was noted to be alert and fully oriented, with normal mood and
affect (Exhibit 2F/4). During the relevant time, the claimant was able
to drive, go to the store, and attend church, bible study, and yoga
classes. In April 2017, she was “currently transitioning to a new role in
her husband’s company,” later reporting helping her husband with his
work.
(Doc. 20, p. 20).
Plaintiff argues:
While the ALJ partially details the Claimant’s testimony and evidence
filed of-record, he nevertheless, essentially found her to be less than
credible. (See e.g., R. 17) (where the ALJ states that Claimant’s
allegation of her symptoms “are not entirely consistent with the medical
evidence and other evidence in the record . . . .” In light of the above
record analysis and medical opinions, this finding is unsupported.
Instead, the Claimant’s statements due to her mental health conditions
are well supported.
(Doc. 14, pp. 11-12).
Despite discounting the extent of the limitations attested to by Plaintiff, the
ALJ did incorporate restrictions to address a deficit in concentration (a limitation to
simple, routine tasks, with only occasional changes in the work setting), and social
limitations (no interaction with the public and only occasional interaction with co-
workers and supervisors). Assuming that Plaintiff is arguing that the ALJ’s erred by
Page 19 of 42
discounting the extent of the social and concentration limitations attested to by
Plaintiff, I am not persuaded.

After reviewing the ALJ’s summary of the records, Plaintiff’s summary of the
records, and the records themselves, I find that the ALJ’s decision that Plaintiff
would be able to tolerate occasional (two hours per day or less) contact with co-

workers and supervisors, and would be able to maintain enough concentration to
perform simple routine tasks is supported by the record.
2. Whether the ALJ Properly Discounted Dr. Covaci and LCSW
Francis-Werner’s Co-Authored Opinion
On October 4, 2017 and November 27, 2018, treating Licensed Clinical Social
Worker Debra L. Francis-Werner wrote letters. (Admin. Tr. 268-69, 287). Treating

psychiatrist, Dr. Covaci, signed the second letter. Also on November 27, 2018, these
two treating sources co-authored a check-box evaluation of whether Plaintiff met
listing 12.15, and a check-box medical source statement. (Admin. Tr. 287-292; Doc.
13-7, pp. 54-59).

In the listing-type assessment, Dr. Covaci and LCSW Francis-Werner
evaluated whether Plaintiff met listing 12.15 of the listing of impairments. 20 C.F.R.
Part 404, Subpart P, Appendix 1. In that assessment, Dr. Covaci and LCSW Francis-

Werner assessed that Plaintiff met the paragraph A, B, and C criteria of that listing.
(Admin. Tr. 291-292; Doc. 13-7, pp. 58-59).
Page 20 of 42
In their check-box medical source statement, Dr. Covaci and LCSW Francis-
Werner responded to questions asking them to rate Plaintiff’s ability to perform

certain activities based on the following scale: excellent (ability is not limited); good
(can function satisfactorily 2/3 of the time); fair (can function satisfactorily 1/3 of
the time); and poor (no useful ability to function). Dr. Covaci and LCSW Francis-

Werner did not rate Plaintiff’s ability to perform any activity as “excellent.” Dr.
Covaci and LCSW Francis-Werner assessed that Plaintiff had “good” ability to
engage in the following activity: adhere to basic standards of neatness and
cleanliness. Dr. Covaci and LCSW Francis-Werner assessed that Plaintiff had “fair”

ability to engage in the following activities: remember locations and work like
procedures; understand and remember short, simple instructions; carry out short,
simple instructions; work with, or near others without being distracted by them;

interact appropriately with the public; get along with co-workers and peers; and be
aware of normal hazards and take appropriate precautions. Dr. Covaci and LCSW
Francis-Werner assessed that Plaintiff had “poor” ability to engage in the following
activities: understand and remember detailed instructions; carry out detailed

instructions; maintain attention and concentration for extended periods; perform
activities within a schedule, maintain regular attendance, and be punctual; sustain an
ordinary routine without special supervision; make simple work-related decisions;

Page 21 of 42
complete a normal workday or workweek; perform at a consistent pace; ask simple
questions and request assistance; accept instructions and respond appropriately to

criticism and supervisors; maintain socially appropriate behavior; respond
appropriately to changes in the work setting; and travel in unfamiliar places or use
public transportation. In the same opinion, Dr. Covaci and LCSW Francis-Werner

wrote: “at this time Jennifer seems to struggle with everyday living demands. Her
residual functioning has been increasingly poor and has begun to impact her daily
life with even simple life decisions related to grocery shopping or going to a
restaurant that is unfamiliar. She sometimes cries all day and cannot seem to manage

her emotions regularly.” (Admin. Tr. 290; Doc. 13-7, p. 57).
In his decision, the ALJ found that this opinion was not persuasive.
Specifically he explained:

the extreme limitations [in the listing assessment] are not supported by
these providers’ own treatment records and are inconsistent with the
other medical evidence of record (Exhibit 7F). The sole area in which
the providers found the claimant had a good ability was in the ability to
adhere to basic standards of neatness and cleanliness. The many
“poors” are inconsistent with the observations that the claimant was
consistently alert and fully oriented (Exhibits 2F/4, 7; 9F/2, 14, 19, 21);
with normal speech (Exhibits 9F/5, 7, 19, 21, 23); and mood reported
as normal, stable, good, and okay (Exhibits 2F/4, 7; 9F/7; and 9F/5, 7
respectively).
Other inconsistencies include (but are not limited to) the providers’
opinion that the claimant would have an extreme limitation in
understanding, remembering or applying information, which is
Page 22 of 42
inconsistent with the only mention of cognitive memory in the record,
where it was described as “good,” by her psychiatrist, with insight and
judgment “fair” (Exhibit 9F/4). This limitation as well as the opinion
that the claimant has a poor ability to make simple work-related
decisions, also appears inconsistent with providers’ own opinion that
the claimant would be able to manage benefits in her own best interest.
Their opinion that the claimant has a poor ability to ask simple
questions or request assistance is inconsistent with her visits to two less
familiar providers, once for a mole on her back, and once for URI
symptoms (Exhibits 2F/7 and 2F/4).
(Admin. Tr. 21; Doc. 13-2, pp. 22-23). The ALJ also found that the letters did not
qualify as medical opinions and did not evaluate them for persuasiveness, but did
consider them as evidence. Id.
The Commissioner’s regulations define a medical opinion as “a statement
from a medical source about what [a claimant] can still do despite [his or her]
impairment(s) and whether [he or she has] one or more impairment-related
limitations or restrictions in the following abilities:”
(i) [The] ability to perform physical demands of work activities,
such as sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or
postural functions, such as reaching, handling, stooping, or
crouching);
(ii) [The] ability to perform mental demands of work activities, such
as understanding; remembering; maintaining concentration,
persistence, or pace; carrying out instructions; or responding
appropriately to supervision, co-workers, or work pressures in a
work setting;
Page 23 of 42
(iii) [The] ability to perform other demands of work, such as seeing,
hearing, or using other senses; and
(iv) [The] ability to adapt to environmental conditions, such as
temperature extremes or fumes.
20 C.F.R. § 404.1513(a)(2). A “medical source” is “an individual who is licensed
as a healthcare worker by a State and working within the scope of practice permitted
under State of Federal Law, or an individual who is certified by a States as a speech-

language pathologist or a school psychologist and acting within the scope of practice
permitted under State or Federal law. 20 C.F.R. § 404.1502(d). If one medical source
submits multiple medical opinions, and ALJ will articulate how he or she considered

the medical opinions from that medical source in a single analysis. 20 C.F.R.
§ 404.1520c(b)(1).
An ALJ’s consideration of competing medical opinions is guided by the
following factors: the extent to which the medical source’s opinion is supported by

relevant objective medical evidence and explanations presented by the medical
source (supportability); the extent to which the medical source’s opinion is
consistent with the record as a whole (consistency); length of the treatment

relationship between the claimant and the medical source; the frequency of
examination; the purpose of the treatment relationship; the extent of the treatment
relationship; the examining relationship; the specialization of the medical source and

Page 24 of 42
any other factors that tend to support or contradict the opinion. 20 C.F.R.
§ 404.1520c(c).

The most important of these factors are the “supportability” of the opinion and
the “consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2). The ALJ will explain
how he or she considered the “supportability” and “consistency” of a medical

source’s opinion. The ALJ may, but is not required to, explain his or her
consideration of the other factors unless there are two equally persuasive medical
opinions about the same issue that are not exactly the same. 20 C.F.R.
§ 404.1520c(b)(3). Unlike prior regulations, under the current regulatory scheme,

when considering medical opinions, an ALJ “will not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from your medical sources.” 20

C.F.R. § 404.1520c(a).
Plaintiff argues:
[T]he ALJ found that the statements on their opinion forms were “not
supported by these providers’ own treatment records.” (Id. at 21.) To
support this rationale, the ALJ merely sites to sporadic notes here and
there that suggest that the Claimant is doing well or making progress.
The ALJ points to a handful of records which show that the Claimant’s
“mood reported as normal, stable, good, and okay.” (Id. a[t] 21.)
Indeed, the Third Circuit has repeatedly rejected ALJs’ denial decisions
where such decisions are based upon more routine medical notes and
comments. Routine medical findings, in light of other more significant
Page 25 of 42
findings, do not constitute substantial evidence supporting a denial. So,
too, a finding that a claimant is “fine” or “normal” in an office setting
may be and often is not reflective of a person’s ability to engage in the
rigors of full time employment on a regular and consistent basis. This
is particularly true in mental health-based claims. Thus, the Third
Circuit observed that, “For a person, such as [claimant], who suffers
from an affective or personality disorder marked by anxiety, the work
environment is completely different from home or a mental health
clinic. [The doctor’s] observations that [claimant] is “stable and well
controlled with medication” during treatment does not support the
medical conclusion that [claimant] can return to work.” Morales v.
Apfel, 225, F.3d 310, 319 (3d Cir. 2000). Likewise, for similar reasons,
the Third Circuit again found that the ALJ improperly discredited a
longtime treating physician’s opinion merely “because of notations that
[claimant’s] condition was “stable” and “controlled.” Brownawell v.
Comm’r of Soc. Sec., 554 F.3d 352, 357 (3d Cir. 2008). Hence, the
Court found that “the ALJ’s decision to discredit [the doctor] was not
supported by substantial evidence.” Id. While there are undoubtedly
notes that show Claimant is better at times, there are also notes that
show how she continues to struggle. For every step she may take
forward, she may then take 1 or 2 steps back. This is the nature of her
bipolar condition. The question is whether she is well enough to
regularly and consistently engage in SGA. A proper understanding of
the records in their entirety shows that this is not the case.
(Doc. 14, pp. 7-8).
In response, the Commissioner argues:
The ALJ correctly observed that Dr. Covaci and Ms. Francis-Werner’s
conclusory check-mark opinion was not supported by their own
treatment records (Tr. 21). Conversely, inconsistent with the numerous
checkmarks indicating that Plaintiff had “poor” i.e., no useful ability to
function, in many work-related areas, the ALJ explained that Dr.
Covaci and Ms. Francis-Werner generally documented unremarkable
mental status examinations (Tr. 21, 288-90). The ALJ cited, for
example, Dr. Covaci and Ms. Francis-Werner’s findings that Plaintiff
was consistently alter and fully oriented, displayed normal speech,
Page 26 of 42
appropriate affect, and mood ranged from okay to good. (Tr. 21, 299-
301, 303, 309-11, 315, 317, 320).
Not only was the opinion not well supported, the ALJ explained that
Dr. Covaci and Ms. Francis-Werner’s opinion was inconsistent with
other substantial evidence of record (Tr. 21). The ALJ cited, for
example, that their unduly restrictive assessed limitations in Plaintiff’s
ability to understand, remember, or apply information was inconsistent
with Plaintiff’s cognitive examination, demonstrating good memory
and fair insight and judgment, without deficiencies noted in these areas
on examination elsewhere in the record (Tr. 21, 300). Further, the ALJ
explained that their opinion that Plaintiff had poor ability to ask simple
questions or seek assistance was inconsistent with Plaintiff’s ability to
seek help from less familiar providers for medical issues (including for
supper respiratory symptoms and a problematic mole) (Tr. 21, 245,
248). In fact, at these appointments, Plaintiff’s providers documented
normal mental status examinations (Tr. 245, 248).
The regulatory emphasis on an opinion’s consistency also implicates
the degree to which the opinion is internally consistent with itself. The
ALJ explained that Dr. Covaci and Ms. Francis-Werner’s proffered
limitations that Plaintiff had “poor” ability to make simple work-related
decisions was inconsistent with their indication that Plaintiff was
capable of managing her benefits in her own best interest (Tr. 21, 289-
90[)].
The ALJ also noted inconsistency of Dr. Covaci and Ms. Francis-
Werner’s opinion with the prior administrative medical findings, which
opined that Plaintiff was capable of meeting the basic mental demands
of simple, routine tasks on a sustained basis (Tr. 21, 66-70). The ALJ
appropriately found Dr. Small’s opinion “supported by the overall
record,” including for example, Plaintiff’s mental status examinations,
conservative treatment history and improvement with treatment, and
her daily activities such as handling her own finances and
appointments, helping her husband with his work, and attending
church, bible study, and yoga classes (Tr. 21, 237, 299-301, 303, 309-
11, 313, 315, 317-20, 322-23, 325, 350, 361).
Page 27 of 42
. . . .
Plaintiff also points to various subjective complaints she reported to Dr.
Covaci and Ms. Francis-Werner documented in their treatment notes as
support for their opinion. However, the ALJ addressed this evidence.
Addressing Plaintiff’s subjective complaints, the ALJ explained,
“[T]here have been times of greater symptoms, with trying different
medications. Even during the time of greatest reported distress[;]
however, [Plaintiff] was consistently alert and fully oriented [ ]; dressed
appropriately and well groomed [ ] with normal speech [ ]. Her mood
was reported as normal, stable, good, and okay [ ]. In the only mention
of memory in the record, [Plaintiff]’s cognitive memory was described
as ‘good,’ by her psychiatrist, with insight and judgment ;fair’” (Tr. 20,
299-301, 303, 309-11, 315, 317, 320). Stated differently, the ALJ
considered Plaintiff’s variable subjective complaints and found that
they were not entirely substantiated by Plaintiff’s mental status
examinations, which consistently showed unremarkable findings (Tr.
16-20).
In any event, the fact that Plaintiff can point to select complaints does
not override the substantial evidence cited by the ALJ discussed above.
To override the agency’s factual finding, it is not enough that Plaintiff
points to evidence that “supports” a contrary conclusion: the evidence
must “compel[ ]” it. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992) (emphasis original). These isolated complaints, considered by
the ALJ, do not compel reversal here. Accordingly, the Court should
affirm.
(Doc. 16, pp. 22-24).
In support of her position, Plaintiff relies on two cases Morales v. Apfel, 225
F.3d 310 (3d Cir. 2000) and Brownawell v. Comm’r, 554 F.3d 352 (3d Cir. 2008).
In Morales, the Third Circuit held that an ALJ improperly discounted treating source
Page 28 of 42
opinions based on his own speculation, and notations in treatment records that the
claimant was “stable” with medication. In doing so, the Circuit explained:

Nor was is proper for the ALJ to reject Dr. Erro’s opinion based on Dr.
Erro’s notation that Morales was stable with medication. The relevant
inquiry with regard to disability determination is whether the claimant’s
condition prevents him from engaging in substantial gainful activity.
See 42 U.S.C. § 423(d)(1)(A). For a person, such as Morales, who
suffers from an affective or personality disorder, marked by anxiety,
the work environment is completely different from home or a mental
health clinic. Dr. Erro’s observations that Morales is “stable and well
controlled with medication” during treatment does not support the
medical conclusion that Morales can return to work. Dr. Erro, despite
his notation, opined that Morale’s mental impairment rendered him
markedly limited in a number of relevant work-related activities. Other
information in the treatment records supports this opinion. Thus, Dr.
Erro’s opinion that Morales’s ability to function is seriously impaired
or nonexistent in every area related to work shall not be supplanted by
an inference gleaned from treatment records reporting on the claimant
in an environment absent the stresses that accompany the work setting.
Morales, 225 F.3d at 319.
In Brownawell, the Circuit concluded that an ALJ’s decision to discount a
treating source’s assessment of a claimant’s headaches based on notes that the
headaches were stable, under control, and responded to medications. The Court
concluded that the ALJ’s rationale was not supported by the record because:
The ALJ asserts that “Dr. Grem specifically stated in the treatment
notes dated March 29, 2004 that the claimant’s headaches alone are not
enough for disability . . . . Grem [later refused to complete disability
forms because the] headaches were not debilitating and the claimant
needed to get a psychiatric opinion for her depression impairment
which had been reported as stable.” A.R. at 303. This reasoning is
Page 29 of 42
wholly unsupported by the record, which shows that Brownawell did
not visit Dr. Grem after 2003. The treatment notes to which the ALJ
refers were made while Brownawell was visiting another doctor and,
with respect to the “headaches alone are not enough for disability”
notation, appear to have been taken by a nurse, not a doctor. A.R. at
544.
In rejecting Dr. Grem’s opinion, the ALJ also claims that Brownawell’s
“longitudinal treatment records document either mild symptoms when
at their worst or no symptoms at all when on medication . . . [and]
contain no indication . . . of inability to function.” The evidence does
not support this proposition. In addition to the previously discussed
statements from Dr. Grem, including the letter stating that Brownawell
is bedridden about four days a week, medical records reflect that
Brownawell’s migraines were of such a severity that she twice had to
visit the emergency room—once on November 14, 2000 and again on
May 13, 2001—to receive intravenous medication. A.R. at 208-215
(records from first ER visit), 222-228 (records from second ER visit).
Brownawell, 554 F.3d at 356 (internal footnote omitted).
I am not persuaded that the Third Circuit’s holdings in Morales or Brownawell
compel remand in this case. In her argument, Plaintiff does not specify which
limitations were improperly discounted. However, in another section of her brief,
she suggests that additional limitations should be imposed for the following
activities: understanding and remembering simple instructions; making simple
work-related decisions; need for special supervision; inability to complete a normal
workday or perform at a consistent pace; inability to adapt to changes; and inability
to interact with the public, coworkers, supervisors, or maintain socially appropriate
behavior. In these areas, the ALJ limited Plaintiff to: simple, routine tasks;
Page 30 of 42
occasional (from very little to 1/3 of the time) changes in the work setting; no
interaction with the public; and only occasional (from very little to 1/3 of the time)

interaction with supervisors and coworkers.
In support of the rejection of aspects of the opinion related to social limitations
and ability to adapt to changes, the ALJ noted that Plaintiff was attending weekly

yoga classes, weekly bible study, church, and was considering additional social
activities. This appears to support the ALJ’s assessment of Plaintiff’s social and
adaptive limitations. Similarly, Plaintiff’s social activities outside the home do not
appear to be consistent with the treating sources’ limitation and Plaintiff’s testimony

that any work would trigger panic attacks. Although the record does suggest that
there was a two week period in August 2018 where Plaintiff experienced significant
symptoms, and that her husband felt it was necessary to stay home with her, the ALJ

specifically considered this evidence. This one-time exacerbation does not support
the treating sources’ assessment that Plaintiff would always require special
supervision. The ALJ supported his assessment by citing to a treatment record
suggesting that Plaintiff’s memory was “good.” Neither Plaintiff nor the

Commissioner mention any treatment record that discusses any clinical observation
of distractibility or lack of focus. Thus, the ALJ’s assessment appears to be
supported by some evidence.

Page 31 of 42
C. WHETHER THE ALJ PROPERLY EVALUATED THE TREATMENT
RELATIONSHIP FACTORS WHEN CHOOSING BETWEEN THE COMPETING
MEDICAL OPINION FROM DR. SMALL AND DR. COVACI/ LCSW FRANCIS-
WERNER
On January 3, 2018, psychologist Richard Small (“Dr. Small”) issued a
psychiatric review technique (“PRT”) assessment, and mental RFC assessment as
part of the initial review of Plaintiff’s application. (Admin. Tr. 66-70; Doc. 13-3, pp.
pp. 5-9). In the PRT assessment, Dr. Small assessed that Plaintiff had medically
determinable impairments that did not meet the diagnostic criteria of listing 12.04

(depressive, bipolar, and related disorders) or 12.15 (trauma and stressor-related
disorders). When he evaluated the paragraph B criteria of these listings, Dr. Small
found that Plaintiff’s mental impairments resulted in: mild difficulty understanding,

remembering or applying information; moderate difficulty interacting with others;
mild difficulty concentrating, persisting or maintaining pace, and moderate difficulty
adapting or managing oneself. Id.
In the check-box mental RFC assessment, Dr. Small assessed that that

Plaintiff was “moderately” limited in the following areas: interacting appropriately
with the general public; accepting instructions and responding appropriately to
criticism from supervisors; and responding appropriately to changes in the work

setting. Id. Dr. Small assessed that Plaintiff had no understanding and memory

Page 32 of 42
limitations, and no sustained concentration and persistence limitations. Id. In support
of this assessment, Dr. Small explained:

The claimant is a 46-year old woman with a high school degree who
has worked as a manager, clerk and project coordinator. She receives
medication and counseling for longstanding issues, which are
improving. She has a service dog which has allowed her to engage
increasingly in the community.
She is in a positive marital relationship but is still prone to depression.
There is no [medical source opinion]
She did not provide [activities of daily living], but clinical record does
not suggest limits in doing basic tasks. Based on the evidence of record,
the claimant’s statement are found to be partially consistent with the
evidence.
The claimant is able to meet the basic mental demands of simple,
routine tasks on a sustained basis despite the limitations resulting from
the impairment.
These findings complete the medical portion of the disability
determination.
(Admin. Tr. 69; Doc. 13-3, p. 8).
In his decision the ALJ found that Dr. Small’s opinion was “persuasive.” In
doing so, the ALJ explained:
The undersigned finds the mental residual functional capacity
submitted by State agency consultative psychologist Richard Small,
Ph.D. persuasive (Exhibit 1A). Sr. Small’s opinion is supported by the
overall record. He had access to the case file, as it was comprised on
the day he reviewed it, and his report indicates a full review of that file.
Information received after his review appears quite consistent. In
particular, his opinion that the claimant is capable of meeting the basic
Page 33 of 42
mental demands of simple, routines tasks on a sustained basis is
consistent with the claimant’s rather conservative treatment, with
medication and therapy only and no intensive inpatient or outpatient
treatment; her apparent improvement with that conservative treatment;
her ability to handle her own finances, help her husband with his work,
and go to appointments as well as church, bible study, and yoga classes.
Nevertheless, the undersigned has included a limitation on interaction
with the public. This does not reflect any fallacy with the State agency
consultant’s reasoning, but rather is a function of according the
claimant the utmost benefit of the doubt.
(Admin. Tr. 21; Doc. 13-2, p. 22).
The co-authored opinion of Dr. Covaci and LCSW Francis-Werner, and the
ALJ’s evaluation of that opinion, is summarized in Section IV. B. 2. of this opinion.
supra pp. 20-32.
Plaintiff argues:
In determining the persuasiveness of medical opinions, the ALJ must
consider both the supportability and consistency of the medical
evidence as well as the treating source’s relationship with the Claimant
and their area of specialization, if any. (20 C.F.R. § 404.1520c(c).) For
the “relationship with the claimant” analysis, the regulations require
that the following be given due consideration: (i) length of treatment
relationship, (ii) frequency of examinations, (iii) purpose of treatment
relationship, (iv) extent of the treatment relationship, and (v) examining
relationship. (20 C.F.R. § 404.1520c(c)(3).) In looking at each of these
5 factors, it is evidence that Dr. Covaci’s opinions are well-supported,
consistent and, therefore, very persuasive. First, Dr. Covaci’s practice,
New Horizons Counseling Services, Inc., saw Claimant over a long
period of time. Treatment at New Horizons Counseling Services, Inc.
began well before the AOD and continued until the time of the hearing.
The record shows that the Claimant was treating at New Horizons as of
at least August 29, 2016 and had regular and continuous treatment right
up to January 9, 2019, just a few weeks before the February 2019
Page 34 of 42
hearing. (Id. at 297-384.) Second, as to frequency, the record shows that
Claimant has seen Dr. Covaci at least 23 times between September 26,
2016 and December 8, 2018, at the rate of about one visit every month.
(Id. 297-384.) The Claimant has also seen a therapist MSW, LCSW,
Ms. Francis-Werner, at New Horizons for counseling for at least 10
visits during the same period. Hence, in total, the Claimant has had no
fewer than 33 visits with the mental health professionals at New
Horizons. Third, the purpose of the relationship was mainly for mental
health care. Dr. Covaci is a mental health specialist as is therapist Ms.
Francis-Werner. Therefore, Dr. Covaci has a higher level of knowledge
than, say, a family physician. Fourth, the extent of the treating
relationship is such that Dr. Covaci had the opportunity to become
intimately familiar with the Claimant as a person. Dr. Covaci was able
to, and did, manage Claimant’s mental health medication for over 2
years. Dr. Covaci directly saw the effects of Claimant’s progress (or
lack thereof) and response to medication, therapy, coping skills and the
like. Fifth, Dr. Covaci had an examining relationship with the Claimant.
In this way, Dr. Covaci had a “better understanding of [her]
impairment(s)” than a “medical source [who] only reviews evidence,”
such Richard Small, Ph.D., discussed below. (20 C.F.R.
§ 404.1520c(c)(3).)
Then, in terms of the “specialization” factor, Dr. Covaci, as noted, was
a mental health specialist, thus helping to make her opinion “more
persuasive about medical issues . . . than” the medical opinion of
someone “who is not a specialist in the relevant specialty.” (20 C.F.R.
§ 404.1520c(c)(4).) Here, the ALJ found “persuasive” (though not
“very persuasive”) the opinion of Richard Small, Ph.D. (Id. at 21.) His
opinion was provided on January 3, 2018. (Id. at 67.) When reviewing
the factors regarding to which opinions a persuasive finding should be
made (20 C.F.R. § 404.1520c(c)), these factors mitigate against the
opinion of Dr. Small. This is particularly the case in the area of
“relationship with the claimant.” (20 C.F.R. § 404.[1520]c(c)(3).)
Indeed, in looking at the 5 factors of § 404.1520c(c)(3), Dr. Small: (i)
had no relationship with the Claimant, (ii) did not conduct frequent
exams, (iii) had no treating relationship based on mental health
specifically, (iv) did not order any tests, prescribe medication and/or
observe the effectiveness of lack thereof upon the claimant over time,
Page 35 of 42
and (v) did not conduct any exam. Additionally, because his opinion
occurred more than a year before the hearing, he only conducted a very
limited records’ review. Indeed, it appears Dr. Small only saw 1 of 33
mental health visit notes (i.e., 3% of the total record). He only
reviewed one medical record received from New Horizons Counseling
at the time he rendered his opinion. (Id. at 65.) When he rendered his
opinion, only Exhibits 1F (R. 235-241) and 2F (R. 242-265) were a part
of the record. Of these two, only Exhibit 1F is from New Horizons
Counseling and that, as indicated, only contained one note of mental
health treatment for a visit on 11/1/17, of the 33 total visits that
eventually became part of this final record. Indeed, Exhibit 9F (R. 297-
396), which reflects the mental health records from August 29, 2016
through January 9, 2019, was not added into the record until on or about
February 21, 2019, when it was electronically filed by the Claimant.
Hence, it is extremely difficult to understand how a non-treating
records’ reviewer could form a reasonable opinion, let alone one that is
found to be persuasive, after looking at only one record, over and
against a treating source that saw the individual 33 times over a two
year period.
(Doc. 14, pp. 3-6).
In response, the Commissioner argues:
[T]he revised regulations have eliminated any deference to the source
of an opinion (e.g., he “treating source rule”) and further explain that
ALJs will not provide any specific evidentiary weight to any medical
opinion. 82 Fed. Reg. at 5853; 20 C.F.R. § 404.1520c(a). As the agency
explained, since the medical opinion regulations were last revised in
1991, healthcare delivery has changed in significant ways, and the
agency’s adjudicative experience has shown that the source of an
opinion is not the most important factor for determining the
persuasiveness of the opinion. Id.
In evaluating claims filed March 27, 2017 or later, the agency “will not
defer of give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) or prior administrative medical
finding(s), including those from [the claimant’s own] medical sources.”
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20 C.F.R. § 404.1520c(a). Instead, the ALJ will evaluate the
persuasiveness of a medical opinion or prior administrative medical
finding using several factors. The ALJ must explain how he considered
the factors of supportability and consistency, which are the two most
important factors in determining the persuasiveness of a medical
source’s medical opinion or a prior administrative medical finding. 20
C.F.R. § 404.1520c(b)(2). The ALJ is not required to explain how he
considered the other factors. Id..
Thus, contrary to Plaintiff’s argument, the opinion of Dr. Covaci and
Ms. Francis-Werner did not warrant enhanced deference under
regulations applicable to this case. Moreover, Plaintiff focuses on the
sources’ relationship to her, the length and frequency of treatment, and
specialization. However, the revised regulations are clear “[t]he factors
of supportability and consistency are the most important factors we
consider when we determine how persuasive we find a medical source’s
medical opinion or prior administrative medical findings to be.” 20
C.F.R. § 404.1520c(b)(2).
(Doc. 16, pp. 17-19) (internal footnotes).
In her reply brief, Plaintiff clarifies that it is not a lack of explanation, but
rather a lack of consideration of the treatment relationship factors that requires
remand. There appears to be no dispute that the ALJ did not provide any explanation
as to whether the “treatment relationship” factors weighed in favor or against the
persuasiveness of any opinion, and that under the applicable regulation the ALJ was
not required to do so. Although the 2017 change in regulation relieved the
Commissioner of her obligation to explain how the treatment relationship factors are
weighed in some circumstances, it did not relieve the more general obligation to
provide enough information to permit judicial review.
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In Cotter v. Harris, the Third Circuit recognized that there is “a particularly
acute need for some explanation by the ALJ when s/he has rejected relevant evidence

or when there is conflicting probative evidence in the record.” 642 F.2d 700, 706 (3d
Cir. 1981). In defining the parameters of this obligation, the Circuit explained:
[i]n our view and examiner’s findings should be as comprehensive and
analytical as feasible and, where appropriate, should include a
statement of subordinate factual foundations on which ultimate factual
conclusions are based, so that a reviewing court may know the basis for
the decision. This is necessary so that the court may properly exercise
its responsibility under 42 U.S.C. § 405(g) to determine if the
Secretary’s decision is supported by substantial evidence.
Id. at 705 (quoting Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974). In its
opinion denying a rehearing in Cotter, the Circuit further elaborated that “in most
cases, a sentence or short paragraph would probably suffice.” Cotter v. Harris, 650
F.2d 481 (3d Cir. 1981).
To the extent Plaintiff suggests that more explanation is required in this case
to demonstrate that the ALJ considered the treatment relationship factors, as he is
required to do (even if he is not required to explain it), I am not persuaded. In his
decision, the ALJ’s provides enough information to show that the treatment

relationship factors were considered. In his opinion the ALJ states that he
“considered the medical opinion(s) and prior administrative findings in accordance
with the requirements of 20 CFR 404.1520c.” (Admin. Tr. 16). The ALJ also refers

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to Dr. Covaci as “her [claimant’s] psychiatrist” and provided a detailed summary of
the treatment records from LCSW Francis-Werner and Dr. Covaci. Furthermore, the

ALJ’s decision includes enough explanation for the Court to discern why the treating
source opinion was found less persuasive. Accordingly, I find that remand is not
required for the ALJ to explain his evaluation of the treatment relationship factors

in this case.
D. WHETHER THE ALJ INCORPORATED ALL OF PLAINTIFF’S CREDIBLY
ESTABLISHED LIMITATIONS IN THE RFC ASSESSMENT
One oft-contested issue in this setting relates to the claimant’s residual
capacity for work in the national economy. As discussed above, a claimant’s RFC is
defined as “the most [a claimant’ can still do despite [his or her] limitations,” taking

into account all of a claimant’s medically determinable impairments. 20 C.F.R.
§ 404.1545. In making this assessment, the ALJ is required to consider the combined
effect of all medically determinable impairments, both severe and non-severe. 20
C.F.R. § 404.1545. Although such challenges most often arise in the context of

challenges to the sufficiency of vocational expert testimony, the law is clear that an
RFC assessment that fails to take all of a claimant’s credibly established limitations
into account is defective. See Rutherford v. Barnhart, 399 F.3d 546, 554 n. 8 (3d

Cir. 2005) (noting that an argument that VE testimony cannot be relied upon where
an ALJ failed to recognize credibly established limitations during an RFC
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assessment is best understood as a challenge to the RFC assessment itself); Salles v.
Comm’r of Soc. Sec., 229 F. App’x 140, 147 (3d Cir. 2007) (noting that an ALJ must

include in the RFC those limitations which he finds to be credible).
Moreover, because an ALJ’s RFC assessment is an integral component of his
or her findings at steps four and five of the sequential evaluation process, an

erroneous or unsupported RFC assessment undermines the ALJ’s conclusions at
those steps and is generally a basis for remand.
Plaintiff argues:
Based on the opinions of the vocational expert, if any one of the
following are true with respect to the Claimant’s ability to function, all
employment is precluded: unable to understand, remember and carry
out short, simple instructions, and make simple work-related decisions;
needs special supervision; unable to complete a normal workday or
perform at a consistent pace; unable to interact with the public or
supervisors or coworkers; unable to maintain socially appropriate
behavior; and have changes in the work setting. (R. 60-61) (vocational
expert testimony). Both Dr. Covaci and therapist Francis-Werner
opined that all of these restrictions were true of the Claimant. (R. 288-
290.) Hence, if their opinion is correct as to any one of these issues, the
Claimant is unable to sustained SGA. The Claimant maintains here, of
course, that all of their opinions on these issues are accurate.
(Doc. 14, p. 13).
In response, the Commissioner argues:
As discussed above, the ALJ was not bound by the opinion of Dr.
Covaci and Ms. Francis-Werner, and the ALJ explained why he found
the opinion not persuasive. See supra p. 16-24. Accordingly, the ALJ
was not required to incorporate the unpersuasive proffered limitations
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from that opinion when formulating Plaintiff’s RFC and hypothetical
question.
Rather, as required, the ALJ incorporated Plaintiff’s work-related
limitations that he found supported by the record as a whole (Tr. 16-
21). In particular, the ALJ limited Plaintiff to mentally restrictive work
that involved only simple, routine tasks performed in an environment
with only occasional changes, no interaction with the public, and only
occasional interaction with coworkers and supervisors (Tr. 16). The
ALJ conveyed these RFC findings in the hypothetical question to the
VE (Tr. 59). In response to the hypothetical question that fairly set forth
Plaintiff’s mental functional limitations supported by the record, the VE
proffered jobs Plaintiff could perform in the national economy (Tr. 59-
60). See Plummer v. Apfel, 186, F.3d 422, 431 (3d Cir. 1999) (the
vocational expert’s testimony in response to hypothetical question that
fairly set forth every credible limitation established by the evidence was
substantial evidence of non-disability). Accordingly, substantial
evidence supports the ALJ’s determination. This court should defer to
the ALJ’s fact-finding and affirm.
(Doc. 16, p. 25-26).
I am not persuaded by Plaintiff’s argument that remand is required so that the
discounted limitations set forth in the treating sources’ opinion may be included in
the ALJ’s RFC assessment. For the reasons explained in Sections IV. B. & C. of this
opinion, I find that those limitations were permissibly discounted by the ALJ. See
Sections IV. B & C, supra.

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V. CONCLUSION
Accordingly, for the forging reasons:

(1) The final decision of the Commissioner will be AFFIRMED.
(2) Final judgment will be issued in favor of the Commissioner.
(3) An appropriate order will be issued.
Date: March 7, 2022 BY THE COURT
s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411383. Public record. Not legal advice.