Maxson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

GARY MAXSON,

Plaintiff, CIVIL ACTION NO. 3:21-cv-00214

v. (SAPORITO, M.J.)

KILOLO KIJAKAZI,1 Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM

In this matter, the plaintiff, Gary Maxson, seeks judicial review of

the final decision of the Commissioner of Social Security denying his

claims for disability insurance benefits and supplemental security

income, pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). The

matter has been referred to the undersigned United States magistrate

judge on consent of the parties, pursuant to 28 U.S.C. § 636(c) and Fed.

R. Civ. P. 73.

1 Kilolo Kijakazi became the Acting Commissioner of Social

Security on July 9, 2021. She has been automatically substituted in place

of the original defendant, Commissioner of Social Security. See Fed. R.

Civ. P. 25(d); see also 42 U.S.C. § 405(g) (action survives regardless of any

change in the person occupying the office of Commissioner of Social

Security). The caption in this case is amended to reflect this change.

I. BACKGROUND

On March 23, 2018, Maxson protectively filed a claim for disability

insurance benefits. His claim was initially denied by state agency

reviewers on September 4, 2018. The plaintiff requested an

administrative hearing, which was held as a video hearing on October 23,

2018, before administrative law judge Sharda Singh (the “ALJ”). In

addition to the plaintiff himself, the ALJ received testimony from an

impartial vocational expert, Joseph Atkinson. The plaintiff was

represented by counsel at the hearing. On March 15, 2019, Maxson

protectively filed a claim for supplemental security income. The

supplemental security claim was accelerated. Each claim asserted a

disability onset date of January 30, 2017.

On April 10, 2020, the ALJ denied Maxson’s application for benefits

in a written decision. The ALJ followed the familiar five-step sequential

evaluation process in determining that Maxson was not disabled under

the Social Security Act. See generally Myers v. Berryhill, 373 F. Supp. 3d

528, 534 (M.D. Pa. 2019) (describing the five-step sequential evaluation

process). At step one, the ALJ found that Maxson had not engaged in

substantial gainful activity since his alleged disability onset date. At step

two, the ALJ found that Maxson had the severe impairments of: major

depressive disorder, unspecified bipolar disorder, anxiety disorder,

cannabis use disorder, obesity, and osteoarthritis of the left knee. At step

three, the ALJ found that Maxson did not have an impairment or

combination of impairments that meets or medically equals the severity

of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

Between steps three and four of the sequential evaluation process,

the ALJ assessed Maxson’s residual functional capacity (“RFC”). See

generally id. at 534 n.4 (defining RFC). After evaluating the relevant

evidence of record, the ALJ found that Maxson had the RFC to perform

light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),2 with

the following limitations:

[T]he claimant can never climb ladders, ropes, or

scaffolds. He can occasionally climb ramps and stairs,

balance, stoop, kneel, crouch, and crawl. He is able to

understand, remember, and carry out simple, routine,

repetitive, non-complex work tasks in a low-stress

environment, defined as one with occasional decision-

making, changes in work setting, and use of judgment.

He is limited to only occasional interaction with

2 The Social Security regulations define “light work” as a job that

“involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b);

id. § 416.967(b).

supervisors, coworkers, and the general public.

(Tr. 15.)

In making these factual findings regarding Maxson’s RFC, the ALJ

considered his symptoms and the extent to which they could reasonably

be accepted as consistent with the objective medical evidence and other

evidence of record. See generally 20 C.F.R. §§ 404.1529, 416.929; Soc. Sec.

Ruling 16-3p, 2017 WL 5180304. The ALJ also considered and articulated

how persuasive she found the medical opinions and prior administrative

medical findings of record. See generally 20 C.F.R. §§ 404.1520c,

416.920c.

At step four, based on this RFC and on testimony by the vocational

expert, the ALJ concluded that Maxson was unable to perform his past

relevant work as a bartender (DOT 312.474-010), customer service

representative (DOT 239.362-014), machine operator II (DOT 619.685-

062), construction worker I (DOT 869.664-014), or pipeliner (DOT

899.684-026).

At step five, based on the RFC and on testimony by the vocational

expert, the ALJ concluded that Maxson was capable of performing jobs

that exist in significant numbers in the national economy, including

mail clerk (DOT 209.687-426), a light exertion unskilled job

(SVP 2), with approximately 12,259 jobs in the national

economy[;]

marker II (DOT 920.687-126), a light exertion unskilled job

(SVP 2), with approximately 23,150 jobs in the national

economy[; and]

photocopy machine operator (DOT 207.685-014), a light

exertion unskilled job (SVP 2), with approximately 17,917 jobs

in the national economy.

(Tr. 22.) Based on this finding, the ALJ concluded that Maxson was not

disabled for social security purposes.

The plaintiff sought further administrative review of his claims by

the Appeals Council, but his request was denied on December 15, 2020,

making the ALJ’s April 2020 decision the final decision of the

Commissioner subject to judicial review by this court.

Maxson timely filed his complaint in this court on February 5, 2021.

The Commissioner has filed an answer to the complaint, together with a

certified copy of the administrative record. Both parties have filed their

briefs, and this matter is now ripe for decision.

II. DISCUSSION

Under the Social Security Act, the question before this court is not

whether the claimant is disabled, but whether the Commissioner’s

finding that he or she is not disabled is supported by substantial evidence

and was reached based upon a correct application of the relevant law. See

generally 42 U.S.C. § 405(g)(sentence five); id. § 1383(c)(3); Myers, 373 F.

Supp. 3d at 533 (describing standard of judicial review for social security

disability insurance benefits and supplemental security income

administrative decisions).

Maxson asserts on appeal that the ALJ’s decision is not supported

by substantial evidence because: (1) the ALJ failed to properly evaluate

Maxson’s mental health impairments at step three; and (2) the ALJ failed

to properly evaluate Maxson’s mental and physical impairments in

formulating the residual functional capacity.3

3 We note that the plaintiff’s brief identified three issues on appeal,

stating the third issue as “The ALJ erred in assessing the testimony of

the vocational expert.” In support of this issue, the plaintiff alleges that,

while the ALJ accepted the VE’s testimony regarding past work and

current jobs in the national economy, the ALJ rejected or failed to

consider the VE’s testimony regarding time off-task, absent, or late. (See

Doc. 15, at 14-15.) However, the RFC in the ALJ’s decision—which is

identical to the hypothetical RFC upon which the VE testified regarding

the plaintiff’s past relevant work and other jobs in the national

economy—did not include off-task and absent behavior. (Admin. Tr. 15,

76-77.) When an ALJ formulates an RFC which does not include off-task

behavior or absences, the ALJ is not required to address how off-task

behavior or absences would affect the plaintiff’s employment, even if the

ALJ asked questions of the VE regarding absences and off-task behavior.

Therefore, rather than an issue related to the ALJ’s assessment of the

VE’s testimony, the plaintiff’s third alleged issue will be considered as an

(continued on next page)

A. Evaluation of Mental Health Impairments at Step Three

The plaintiff contends that the ALJ’s decision is not supported by

substantial evidence because the ALJ failed to properly evaluate

Maxson’s mental health impairments at step three.

Appendix 1 of 20 C.F.R. Part 404, Subpart P (“listing of

impairments”), describes, for each major body system, the severity of

impairment that is severe enough to prevent a claimant from doing any

gainful activity regardless of the claimant’s age, education or work

experience. 20 C.F.R. § 404.1525(a), 416.925(a). At step three of the

sequential evaluation process, the ALJ considers whether the

combination of the claimant’s medically determinable impairments

meets the severity of one of the impairments in the listing of

impairments. 20 C.F.R. § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a

claimant has an impairment that meets the twelve-month duration

requirement and meets or equals all the criteria of an impairment in the

listing of impairments, the claimant is found disabled. 20 C.F.R. §

404.1520(a)(4)(iii), 416.920(a)(4)(iii).

allegation that the ALJ erred in failing to find that the plaintiff would be

off-task or absent in the RFC, which is part of the second issue listed

above.

However, to qualify for benefits by showing that an impairment, or

combination of impairments, meets a listed impairment, the claimant

bears the burden of presenting “medical findings equivalent in severity

to all the criteria for the one most similar impairment.” Sullivan v.

Zebley, 493 U.S. 521, 531 (1990). An impairment, no matter how severe,

that meets or equals only some of the criteria for a listed impairment is

not enough. Id.

To be found unable to work due to the mental health impairments

in Listing 12.04, which is the listing under which the plaintiff alleges the

ALJ should have found him disabled, a claimant must provide medical

documentation of the symptoms for depressive disorder or bipolar

disorder and either a serious and persistent impairment, which is rare,

or “extreme limitation of one, or marked limitation of two, of the following

areas of mental functioning: understanding, remembering, or applying

information; interacting with others; concentrating, persisting, or

maintaining pace; and adapting or managing oneself.” Listing 12.04. A

claimant has an “extreme limitation” if he is “not able to function” in one

of the above areas “independently, appropriately, effectively, and on a

sustained basis.” Listing 12.00(F)(2)(e). A claimant has a “marked

limitation” if his functioning in one of the above areas “independently,

appropriately, effectively, and on a sustained basis is seriously limited.”

Listing 12.00(F)(2)(d). A claimant does not meet the listings if his

functioning in an “area independently, appropriately, effectively, and on

a sustained basis” is “fair” (a “moderate limitation”) or is “slightly

limited” (a “mild limitation”) or if he has no limitation. Listing

12.00(F)(2)(a)-(c).

The plaintiff specifically alleges that the ALJ erred in finding that

the plaintiff had a mild limitation in the ability to adapt and manage

himself and a moderate limitation in interacting with others. Adapting

or managing oneself

refers to the abilities to regulate emotions, control

behavior, and maintain well-being in a work setting.

Examples include: responding to demands;

adapting to changes; managing your psychologically

based symptoms; distinguishing between

acceptable and unacceptable work performance;

setting realistic goals; making plans for yourself

independently of others; maintaining personal

hygiene and attire appropriate to a work setting;

and being aware of normal hazards and taking

appropriate precautions.

Listing 12.00(E)(4). Interacting with others

refers to the abilities to relate to and work with

supervisors, co-workers, and the public. Examples

include: cooperating with others; asking for help

when needed; handling conflicts with others; stating

own point of view; initiating or sustaining

conversation; understanding and responding to

social cues (physical, verbal, emotional); responding

to requests, suggestions, criticism, correction, and

challenges; and keeping social interactions free of

excessive irritability, sensitivity,

argumentativeness, or suspiciousness.

Listing 12.00(E)(2). For both areas, the examples are illustrative and not

all examples must be documented to demonstrate a limitation. Listing

12.00(E)(2), (4).

Here, in her decision, the ALJ stated:

In interacting with others, the claimant has a

moderate limitation. The claimant testified that

due to his severe depression, he has had a difficult

time maintaining social relationships with friends

and family. However, the consultative examiner

noted the claimant was cooperative and related

adequately. He was able to maintain appropriate

eye contact. However, he reported limited

socialization aside from his close relationship with

his mother (Exhibit 5F p. 2-3). Indeed, his

treatment records also indicate that the claimant is

generally cooperative on exams with appropriate

social skills. However, the record also reflects some

difficulty in maintaining a relationship with his ex-

girlfriend, the mother of his child, extended

[f]amily members, and past employers. He reported

not responding well to being corrected and working

around others increases his anxiety (Exhibit 9F p.

2-3, 9) . . . .

As for adapting or managing oneself, the claimant

has experienced a mild limitation. The claimant

does have a history of significant depression, mood

instability, and anxiety, with hospitalizations for

suicidal ideation (Exhibits 2F, 7F, and 9F). He has

reported decreased motivation in attending to his

activities of daily living. However, he lives

independently and is able to attend to basic self-

care needs. He can care for his son when he has

visitation. He does chores and shops. He generally

presents well-groomed on exams (Exhibits 5F and

9F).

(Tr. 14-15.)

The plaintiff argues that the ALJ erred in finding the plaintiff’s

limitation was moderate in interaction with others because the plaintiff

testified that he has difficulties dealing with people who are not his

friends, mother, or son. (Doc. 15, at 10-11).

Regarding the ALJ’s finding that the plaintiff’s limitation in

interacting with others was moderate, the plaintiff alleges only that the

ALJ erred because the ALJ disregarded the plaintiff’s testimony.

However, an ALJ may disregard the claimant’s subjective testimony if

the record contains contrary medical evidence. Dieffenbach v. Saul, No.

CV 19-4948, 2020 WL 2793958, at *5 (E.D. Pa. May 29, 2020) (citing

Mason v. Shalala, 994 F.2d 1058, 1068 (3d Cir. 1993)). An ALJ is not

required to accept a claimant’s testimony in full; an ALJ is merely

required to explain his or her reasoning for rejecting part or all of a

claimant’s testimony. Turby v. Barnhart, 54 F. App’x 118, 121 (3d Cir.

2002) (citing Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 120

(3d Cir. 2000)). Here, the ALJ explained that she considered the

plaintiff’s testimony that he “had a difficult time maintaining social

relationships” and had “limited socialization,” difficulty “maintaining a

relationship with his ex-girlfriend,” and issues with correction and

working around others. (Tr. 14.) However, the ALJ provided the following

additional details in her analysis of the plaintiff’s ability to interact with

others: “[T]he consultative examiner noted the claimant was cooperative

and related adequately. He was able to maintain appropriate eye

contact . . . . [H]is treatment records also indicate that the claimant is

generally cooperative on exams with appropriate social skills.” (Tr. 15.)

Because the ALJ cited medical evidence contrary to the plaintiff’s hearing

testimony, the ALJ was entitled to be unpersuaded by the plaintiff’s

testimony. Therefore, we cannot find that the ALJ erred in finding the

plaintiff has only moderate limitations in interacting with others.

The plaintiff also argues that the ALJ erred in finding the plaintiff’s

limitation mild in adapting and managing himself because the plaintiff

“was hospitalized during the relevant period for in-patient psychiatric

treatment,” has “reiterated suicidal feelings since that time despite

medication and therapy,” “lost a job in his family business because he

could not adapt and manage himself,” and the plaintiff on some days

“cries uncontrollably, has panic and anxiety attacks without

provocation[,] and spirals downward into a pit of despair.” (Doc. 15, at

10.)

However, the ALJ explained her reasoning for finding that the

plaintiff had a mild limitation when the ALJ stated: “[The claimant] lives

independently and is able to attend to basic self-care needs. He can care

for his son when he has visitation. He does chores and shops. He

generally presents well-groomed on exams. (Exhibits 5F and 9F).” (Tr.

14-15.) We review the Commissioner’s decision to determine whether it

is supported by substantial evidence. See 42 U.S.C. § 405(g); Biestek v.

Berryhill, 139 S. Ct. 1148, 1152 (2019). Substantial evidence “means—

and means only—‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Biestek, 139 S. Ct. at 1154

(quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229

(1938)). Here, we cannot find that the ALJ erred in finding the plaintiff’s

limitations in adapting and managing himself to be mild in light of the

evidence that the plaintiff lives alone, cares for his son during visitation,

cooks, does his laundry, cares for two dogs and a cat, shops, and performs

other chores, and is appropriately groomed at appointments.

Accordingly, we find that the ALJ’s evaluation of the mental health

impairments is supported by substantial evidence and was reached based

upon a correct application of the relevant law.

B. Evaluation of Mental and Physical Impairments for the

Residual Functional Capacity Determination

The plaintiff also contends that the ALJ’s decision is not supported

by substantial evidence because the ALJ failed to properly evaluate

Maxson’s mental and physical impairments in formulating the residual

functional capacity. Specifically, the plaintiff alleges that the ALJ failed

to consider his back pain, knee pain, migraines, and anxiety with regard

to the plaintiff’s ability to maintain a static posture (such as sitting or

standing), climb ramps and stairs, balance, stoop, kneel, crouch, crawl,

adapt to changes, interact with coworkers and the general public, and

work without time spent off-task, late, or absent. (Doc. 15, at 11-15.) The

plaintiff alleges that his back pain affects his ability to stoop and that the

vocational expert testified that the jobs which the ALJ found the plaintiff

could perform would not be available to a person unable to stoop. (Doc.

15, at 11.) Further, the plaintiff contends that, because the ALJ found

the plaintiff’s back pain and migraines as non-severe at step two, the ALJ

did not account for these impairments in the RFC determination.

As an initial matter, we note that we review the ALJ’s decision to

determine whether it is supported by substantial evidence. Mason v.

Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993) (citing Richardson v. Perales,

402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); 42 U.S.C. § 405(g)).

“Substantial evidence means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Id. (internal

quotation marks omitted). “A single piece of evidence will not satisfy the

substantiality test if the Secretary [or ALJ] ignores, or fails to resolve, a

conflict created by countervailing evidence.” Id. (quoting Kent v.

Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). When “reviewing the record

for substantial evidence, we may not ‘weigh the evidence or substitute

[our own] conclusions for those of the fact-finder.’” Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quoting Williams v. Sullivan,

970 F.2d 1178, 1182 (3d Cir. 1992)).

When completing an RFC assessment, “the ALJ considers all of the

claimant’s impairments, including any medically determinable non-

severe impairments.” Onley v. Colvin, No. 1:13-CV-2833, 2015 WL

1513909, at *5 (M.D. Pa. Mar. 31, 2015) (citing 20 C.F.R. §§

404.1545(a)(2), 416.945(a)(2)). However, at steps one through four and

the RFC determination, the claimant bears the initial burden of

demonstrating the existence of one or more medically determinable

impairments that prevent him or her from 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. Furthermore, a “medically determinable physical . . .

impairment must result from anatomical, physiological, or psychological

abnormalities which can be shown by medically acceptable clinical and

laboratory diagnostic techniques. The impairment must be established

by objective medical evidence (signs, laboratory findings, or both) from

an acceptable medical source, not on an individual’s statement of

symptoms.” Robert E. v. Comm’r of Soc. Sec., No. 1:20-CV-06882-NLH,

2021 WL 5277193, at *5 (D.N.J. Nov. 12, 2021).

Here, the ALJ did not state that the plaintiff’s back pain and

migraine headaches were medically-determinable impairments. Instead,

the ALJ stated: “[T]he record does not reflect any neurological

consultations for [migraines or headaches], with only conservative

treatment at this time . . . . [T]here is no testing, imaging, or other

objective finding to show any such disorder of the back consistent with

symptoms of back pain.” (Tr. 13). Therefore, despite the lack of specific

language in the decision, the ALJ found that the impairments of

migraines and back pain were not medically-determinable. An ALJ is

only required to consider medically-determinable impairments during

the RFC assessment. Therefore, we find that the ALJ’s evaluation of

plaintiff’s back pain and migraines are supported by substantial evidence

and was reached upon correct application of the relevant law.

The plaintiff also argues that the ALJ failed to consider his knee

pain and anxiety regarding his ability to maintain a static posture (such

as sitting or standing), climb ramps and stairs, balance, stoop, kneel,

crouch, crawl, adapt to changes, interact with coworkers and the general

public, and work without time spent off-task, late, or absent. (Doc. 15, at

11-15.) However, the plaintiff fails to explain exactly how his knee pain

and anxiety should result in a more restrictive RFC. The ALJ clearly

considered the plaintiff’s knee pain (Tr. 18) and anxiety (Tr. 16-17).

Accordingly, we find that the ALJ’s evaluation of plaintiff’s knee pain,

anxiety, back pain, and migraines is supported by substantial evidence

and was reached based upon a correct application of the relevant law.

III. CONCLUSION

Based on the foregoing, we conclude that the Commissioner’s

finding that Maxson was not disabled is supported by substantial

evidence and was reached based upon a correct application of the

relevant law. Accordingly, the Commissioner’s decision denying

disability benefits is AFFIRMED.

An appropriate Order follows.

Dated: September 26, 2022 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge