“We examine the ALJ's conclusions as to [the claimant's] residual functional capacity with the deference required of the substantial evidence standard of review.”
How later courts described this case
- “We examine the ALJ's conclusions as to [the claimant's] residual functional capacity with the deference required of the substantial evidence standard of review.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TRISTA L. McMAHON, : CIVIL NO: 1:20-cv-02038
:
Plaintiff, : (Magistrate Judge Schwab)
:
v. :
:
KILOLO KIJIKAZI,1 :
Acting Commissioner of Social :
Security, :
:
Defendant. :
:
MEMORANDUM OPINION
I. Introduction.
This is a social security action brought under 42 U.S.C. §§ 405(g) and
1383(c)(3). Plaintiff Trista McMahon seeks judicial review of the final decision of
the Commissioner of Social Security denying her social security benefits under
Titles II and XVI of the Social Security Act. Because the Commissioner’s
decision is supported by substantial evidence, we will affirm her decision.
1 Kilolo Kijakazi is now the Acting Commissioner of Social Security, and
she is automatically substituted as the defendant in this action. See 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, “[t]he officer’s successor is
automatically substituted as a party”); 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.”).
II. Background and Procedural History.
We refer to the administrative transcript provided by the Commissioner. See
docs. 15-1 to 15-8.2 On January 16, 2018, McMahon filed an application for
child’s insurance benefits (“CIB”). Admin Tr. at 13.3 McMahon also protectively
filed4 a Title XVI application for Supplementary Security Income (“SSI”) on
December 15, 2017. Id. Both claims alleged disability beginning on April 20,
2014. Id. After McMahon’s claims were initially denied, she requested a hearing.
Id. Administrative Law Judge Frank Barletta (“ALJ”) held an administrative
hearing on October 30, 2019, in Wilkes-Barre, Pennsylvania. Id. McMahon and
2 Because the facts of this case are well known to the parties, we do not
repeat them here in detail. Instead, we recite only those facts that bear on
McMahon’s claims.
3 CIB is payable to a child “of an individual entitled to old-age or disability
insurance benefits, or of an individual who dies a fully or currently insured
individual” in several circumstances. 42 U.S.C. § 402(d)(1)(B); see also 20 C.F.R.
§ 404.350(a). Here, McMahon’s application for CIB appears to be based on her
father’s status. See Admin. Tr. at 137.
4 “Protective filing is a term for the first time an individual contacts the
Social Security Administration to file a claim for benefits.” Stitzel v. Berryhill, No.
3:16- CV-0391, 2017 WL 5559918, at *1 n.3 (M.D. Pa. Nov. 9, 2017). “A
protective filing date allows an individual to have an earlier application date than
the date the application is actually signed.” Id. Here, December 15, 2017, is the
date identified by the ALJ as the date that McMahon protectively filed her
application for SSI. Admin. Tr. at 13.
her husband appeared and testified at the hearing; an impartial vocational expert
was also present and testified. Id.
On December 11, 2019, the ALJ determined that McMahon had not been
disabled prior to November 29, 2015, the date she attained the age of 22,5 as
defined in § 223(d) of the Social Security Act, and he denied her CIB accordingly.
Id. at 31. Finding her not disabled under § 1614(a)(3)(A) of the Social Security
Act, the ALJ also denied her application for SSI. Id. McMahon appealed the
ALJ’s decision to the Appeals Council, which denied her request for review on
August 31, 2020. Id. at 9. This makes the ALJ’s decision the final decision of the
Commissioner, subject to judicial review by this court.
McMahon initiated this action on November 3, 2020, by filing a complaint
pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). See doc. 1. McMahon
claims that the Commissioner’s decision “was not supported by substantial
evidence.” Id. ¶ IV (15). She also asserts the Commissioner’s decision “is
erroneous and contrary to settled law.” Id. at ¶ IV (16). In her prayer for relief,
McMahon requests that this court reverse the administrative decision and award
her CIB and SSI benefits, or remand this case to the Commissioner for a new
5 One of the circumstances when an individual is entitled to CIB is when the
individual is over 18 years of age and was disabled before she turned 22 years old.
See 42 U.S.C. § 402(d)(1)(B), 20 C.F.R. § 404.350(a)(5).
hearing, or grant such further relief as the court deems to be justified. Id. ¶ V (1)–
(3).
The Commissioner filed an answer and the administrative transcript on May
17, 2021. See docs. 14, 15. The parties consented to proceed before a magistrate
judge pursuant to 28 U.S.C. § 636(c), and the case was referred to the undersigned.
Doc. 18. McMahon filed her brief in support of her complaint on October 27,
2021. See doc. 19. Defendant filed its brief in opposition on November 16, 2021.
Doc. 20. Thus, the parties have filed their respective briefs, and this matter is ripe
for decision.
III. Legal Standards.
A. Substantial Evidence Review—The Role of This Court.
When reviewing the Commissioner’s final decision denying a claimant’s
application for benefits, “the court has plenary review of all legal issues decided by
the Commissioner.” Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).
But the court’s review of the Commissioner’s factual findings is limited to whether
substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v.
Berryhill, 139 S. Ct. 1148, 1152 (2019). “[T]he threshold for such evidentiary
sufficiency is not high.” Biestek, 139 S. Ct. at 1154. Substantial evidence
“means—and means only—‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. of
New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Substantial evidence “is less than a preponderance of the evidence but more
than a mere scintilla.” Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs.,
48 F.3d 114, 117 (3d Cir. 1995). A single piece of evidence is not 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] finding
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 McMahon is
disabled, but whether substantial evidence supports the Commissioner’s findings
that she is not disabled and whether the Commissioner correctly applied the
relevant law.
B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ.
To receive benefits under Title II6 or Title XVI of the Social Security Act, a
claimant must generally be “unable 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 twelve months.” 42 U.S.C. § 423(d)(1)(A); see
also 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 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
work that exists in the national economy. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A).
The ALJ follows a five-step sequential-evaluation process to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this
6 CIB falls under Title II of the Social Security Act. And the same definition
of disability that applies to disability insurance benefits applies to CIB. See 20
C.F.R. § 404.1505(a) (“We will use this definition of disability if you are applying
for a period of disability, or disability insurance benefits as a disabled worker, or
child's insurance benefits based on disability before age 22 . . . .”). Further, the
same rules, including the same five-step sequential evaluation process, that apply
to disability insurance benefits apply to CIB. See 20 C.F.R. § 404.1520(a)(2)
(“Theses rules apply to you if you file an application for a period of disability or
disability insurance benefits (or both) or for child's insurance benefits based on
disability.”).
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)(i)–(v), 416.920(a)(4)(i)–(v).
The ALJ must also assess a claimant’s RFC at step four. Hess v. Comm’r of
Soc. Sec., 931 F.3d 198, 198 n.2 (3d Cir. 2019). The RFC is ‘“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)
(quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)); see also 20
C.F.R. §§ 404.1520(a)(1), 416.945(a)(1). In making this assessment, the ALJ
considers all the claimant’s medically determinable impairments, including any
non-severe impairment identified by the ALJ at step two of his or her analysis. 20
C.F.R. §§ 404.1520(a)(1), 416.945(a)(2).
“The claimant bears the burden of proof at steps one through four” of the
sequential-evaluation process. Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d
Cir. 2010). But at step five, “the burden of production shifts to the Commissioner,
who must . . . show there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and residual functional
capacity.” Fargnoli v. Massanari, 247 F.3d 34, 39 (3d Cir. 2001).
The ALJ’s disability determination must also meet certain basic substantive
requirements. Most significantly, the ALJ must provide “a clear and satisfactory”
explanation of the basis on which their decision rests. Cotter v. Harris, 642 F.2d
700, 704 (3d Cir. 1981). “The 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. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The “ALJ may
not reject pertinent or probative evidence without explanation.” Johnson v.
Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, ‘“the
reviewing court cannot tell if significant probative evidence was not credited or
simply ignored.’” Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d at 705).
IV. The ALJ’s Decision Denying McMahon’s Claim.
The ALJ determined that McMahon was not disabled as defined in § 223(d)
of the Social Security Act from her alleged onset date, April 20, 2014, through
November 29, 2015, when she reached age 22. Admin. Tr. at 14, 31. Additionally,
the ALJ found that McMahon was not disabled under § 1614(a)(3)(A) of the Social
Security Act. Id. at 31.
The ALJ evaluated McMahon’s claim at each step of the sequential
evaluation process. Admin. Tr. at 15–27. Before beginning the five-step analysis,
the ALJ found that McMahon was born on November 30, 1993, and that she had
not reached the age of 22 as of April 20, 2014, the alleged onset date. Id. at 15. At
step one of the sequential-evaluation process, the ALJ found that McMahon had
not been engaged in substantial gainful activity since the alleged onset date. Id.
At step two, the ALJ found that McMahon had severe impairments
consisting of “generalized anxiety disorder, depressive disorder, bipolar I disorder,
attention deficit hyperactivity disorder (ADHD), learning disorder, and mild
intellectual disorder.” Id. at 16. The ALJ further found that these medically
determinable impairments significantly limited McMahon’s ability to perform
basic work activities. Id.
At step three of the sequential-evaluation process, the ALJ found that
McMahon did not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1. Id. As relevant to this case, the ALJ found that
McMahon did not satisfy the requirements of listing 12.05 because her adaptive
functioning was not at the extreme level of limitation required in one area listed in
listing 12.05 paragraph B, or alternatively at a marked limitation in two of
paragraph B’s areas. Id. at 20.
In this regard, the ALJ determined that McMahon had a moderate limitation
in “understanding, remembering, or applying information.” Id. at 16. The ALJ
acknowledged that “[t]he claimant reported problems with memory, understanding,
following instructions and completing tasks.” Id. McMahon’s husband also
testified that he has to constantly repeat directions in order for her to complete
“daily tasks and household chores.” Id. The ALJ further acknowledged that
McMahon’s educational records revealed an “intervention for learning disorder
and ADHD,” and recent intelligence testing with an IQ score of 67. Id. at 358. She
was able to read at a seventh-grade level, and she graduated high school. Id. And
the ALJ found that “two consultative examinations and current treatment records
did not identify a significant impairment with memory.” Id. at 16. At an
examination in March of 2013, her memory, both recent and remote, was adequate.
Id. She further was able to recall four objects after they were spoken to her, and
two out of the same four after five minutes. Id. at 17. She could also recall six
digits forward and four digits backwards. Id. At the second examination in April
2018, McMahon had “intact recent and remote memory.” Id. Mental status
findings also included in the record indicated “normal recent, remote, and present
memory,” as well as “stable thought, fair attention and concentration, and fair
judgment.” Id. She could also recall three objects immediately and after five
minutes, she could recall two objects. Id. She further could repeat digits forwards
and backwards. Id. The ALJ also considered the fact that when McMahon was
undertaking standardized intelligence testing, she was “observed to be relaxed and
comfortable, able to recall and understand the instructions, and respond in an
appropriate manner and work with reflection.” Id. McMahon also said that she
could operate a cash register in a grocery store with some problems remembering
the categories of food, could follow written instructions, keep things written down
to stay organized, use public transit, and pay some bills. Id. Her husband
mentioned that she could follow directions on a box when cooking. Id. In sum, the
ALJ found that after balancing the objective and clinical evidence and McMahon’s
level of functioning, it supported no greater than a moderate level of impairment.
The ALJ also determined that McMahon had a moderate limitation in
“interacting with others.” Id. at 17. The ALJ began by acknowledging that
McMahon reported having problems getting along with others, sticking to herself,
and freezing up around authority figures. Id. The ALJ noted that despite this,
educational records showed that she could maintain herself in high school classes
“80% of the time.” Id. at 291. At a 2013 medical examination, she was reported to
have a “varied affect,” and maintained that she had periods of depression and
crying and isolating herself. Id. at 17. Despite this, her expressive language was
appropriate for the situation, and she could maintain good eye contact and fluid
speech. Id. At a 2018 medical examination, she was cooperative and her manner
of relating was fair with normal posture, motor behavior, good eye contact and
clear and fluid speech. Id. McMahon also had a coherent and goal-oriented
thought process and fair judgment. Id. The ALJ also noted that while McMahon’s
mental health records revealed issues with anger and frustration, such issues were
mainly within family relationships, and he noted that during treatment she was in a
neutral or good mood. Id. According to the ALJ, McMahon was also able to have
worked in a grocery store part time and “interact with coworkers, supervisors, and
the public.” Id. She was also able to use public transportation and take care of her
three children, as well as her husband, who has health issues. Id. The ALJ decided
that after balancing the objective and diagnostic evidence as well as McMahon’s
level of functioning, the evidence supported no greater than a moderate limitation.
Id.
The ALJ further determined that McMahon had a moderate limitation
regarding her “concentrating, persisting, or maintaining pace.” Id. McMahon
testified that she had problems concentrating, following instructions, and
completing tasks. Id. She also said that her concentration was “lower,” and that
she works at a “slower pace.” Id. McMahon’s husband testified that “she gets off
track and misses the public bus schedule or is late getting ready.” Id. The ALJ also
noted that the record revealed a history of ADHD dating to a young age, and
interventions as well as extra time on school assignments. Id. But the ALJ also
noted that by her senior year of high school, McMahon could write effectively
staying focused on content. Id. at 18. At a 2013 medical examination, her
attention and concentration were adequate. Id. Calculations were difficult for
McMahon, but she could count backwards by series of threes. Id. At a 2018
medical examination, she had a mild impairment to her concentration, and was
unable to divide or to perform serial-7s, but she could do serial-3s and count by 2s.
Id. The ALJ also noted that she had a coherent and goal-directed thought process
and fair judgment. Id. Her treatment records note that she had fair concentration
and attention. Id. Additionally, the ALJ observed that McMahon said she had the
ability to follow written instructions and writes things down to stay organized. Id.
And he noted that her husband also testified that she could follow directions on a
box when cooking. Id. The ALJ further noted that McMahon reported doing
chores and shopping with some difficulties, paying some bills, coloring, and
watching television. Id. The ALJ decided that after balancing the objective and
diagnostic evidence as well as McMahon’s level of functioning, the evidence
supported no more than a moderate limitation. Id.
The ALJ concluded that McMahon also had a moderate limitation in
“adapting or managing oneself.” Id. at 18. He noted that McMahon “did not report
problems with her personal care,” and that despite one report to the contrary, she
was “generally found to be dressed appropriately or casually and neatly groomed.”
Id. McMahon, however, reported problems with handling stress and changes in
routine. Id. At the consultative exam in March 2013, McMahon reported that she
sometimes gets angry to the point where she throws things and yells. Id. And her
educational records revealed that McMahon could become easily frustrated,
negative, and she struggled with changes in her day. Id. But these same records
noted that McMahon would respond to redirection. Id. McMahon’s mental health
records also revealed that she struggled with anger and frustration, but again that
this was mainly constrained to familial relationships. Id. Otherwise, the records
show that McMahon was generally in a good mood when participating in therapy
sessions. Id. At another consultative exam in 2018, McMahon was “cooperative
and her manner of relating was fair with normal posture, motor behavior and eye
contact and clear and fluid speech.” Id. She also displayed a coherent and goal-
directed thought process and fair judgment. Id. Other evidence the ALJ considered
was that she was able to perform at standardized testing under stress while
remaining “relaxed and comfortable,” and that she could “respond to questions in
an appropriate manner, work with reflection, have good attention, and showed no
signs of significant emotional distress.” Id. Finally, the ALJ also considered that
McMahon could take care of her husband and three children, and she could follow
written instructions, use public transit, shop, and work a cash register. Id. The ALJ
determined that after considering and balancing all the objective and clinical
evidence, as well as the McMahon’s level of functioning, no greater than a
moderate impairment was warranted. Id.
Thus, the ALJ concluded that McMahon’s “adaptive functioning is not at an
extreme level of limitation in one or a marked limitation in two of the areas
discussed in the ‘paragraph B’ criteria above.” Id. at 20. McMahon therefore did
not meet or equal one of the listed impairments. Id.
At step four of the sequential-evaluation process, the ALJ found that
McMahon had the RFC to perform a full range of work at all exertional levels but
with some non-exertional limitations. Id.7 He found McMahon to be limited to
“unskilled work involving only simple tasks that are not performed in a fast-paced
production environment,” and “occupations with only occasional, simple, decision-
making and occasional changes in the work duties or work setting,” with the
further limitation that she “can tolerate only occasional interaction with
supervisors, coworkers, and the public.” Id.
7 RFC limitations “can be either exertional or non-exertional.” Morel v.
Colvin, No. 4:16-CV-0476, 2017 WL 1162946, at *2 (M.D. Pa. Mar. 29, 2017).
Exertional limitations are defined as limitations in “sitting, standing, walking,
lifting, carrying, pushing, and pulling.” 20 C.F.R. § 404.1569a(b). “To determine
the physical exertion requirements of work in the national economy, [the ALJ]
classif[ies] jobs as sedentary, light, medium, heavy, and very heavy.” 20 C.F.R.
§ 404.1567. Non-exertional limitations include “manipulative or postural
functions” like “reaching, handling, stooping, climbing, crawling, or crouching,”
along with mental impairments and other limitations. 20 C.F.R. § 404.1569a(c).
The ALJ found the state agency mental assessments of Francis Murphy,
Ph. D. to be “generally persuasive.” Admin. Tr. at 25. Dr. Murphy opined that
McMahon had “mild to moderate levels of impairment that did not prevent her
from engaging in simple, repetitive activities on a sustained basis.” Id. This was
the only medical opinion that the ALJ considered to be generally persuasive in his
RFC determination, as he found the medical opinions of Drs. Cole and Smock to
be “not persuasive” and “only persuasive to an extent,” respectively. See Admin.
Tr. at 23, 24. The ALJ also considered McMahon’s work history, home life,
medical history, and history of dealing with others. Id. at 20–26.
At step five of the sequential-evaluation process, considering McMahon’s
age, education, work experience, and RFC, the ALJ found that there are jobs that
exist in significant numbers in the national economy that she could perform. Id. at
26. The vocational expert testified at the hearing that given the above factors, an
individual with McMahon’s limitations would be able to perform the requirements
of representative occupations such as “an inserter (DOT# 920.687-138, with
58,000 jobs in the national economy), a cleaner/polisher (DOT# 709.687-010, with
31,000 jobs in the national economy) and a bench worker (DOT# 715.684-026,
with 24,000 jobs in the national economy).” Id.
In sum, the ALJ found that McMahon had “not been under a disability, as
defined in the Social Security Act, from April 20, 2014, through the date of this
decision[.]” Id. at 27.
V. Discussion.
McMahon presents three arguments on appeal. First, she argues that the
ALJ’s finding that she did not meet the criteria of paragraph B of the Intellectual
Disorder impairment listing was not supported by substantial evidence. Doc. 19 at
6. Second, she argues that the ALJ erred in his RFC determination, and that it was
not supported by substantial evidence. Doc. 19 at 5. Third and finally, McMahon
argues that her condition should have been evaluated by a medical expert to further
determine whether a listing was met or equaled. Id. at 12.
A. Substantial Evidence Supports the ALJ’s Step Three Evaluation.
The appendices to Part 404, Subpart P, of the Social Security Regulations
(“the listing of impairments”), describe, for each major body system, the severity
of impairment that is considered to be severe enough to prevent a claimant from
doing any gainful activity regardless of the claimant’s age, education, or work
experience. See 20 C.F.R. §§ 404.1520(d), 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).
“The Listings are a regulatory device used to streamline adjudication of
benefits by identifying those claimants whose medical impairments are so severe
that they are considered presumptively disabled, making further inquiry into their
vocational background unnecessary.” Illig v. Comm’r Soc. Sec., 570 F. App’x 262,
264 n.6 (3d Cir. 2014). To qualify for benefits by showing that an impairment, or
combination of impairments, is equivalent to 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). A claimant whose impairment meets or equals one of the listed
impairments is per se disabled and thus should be awarded benefits. See Burnett v.
Comm'r of Soc. Sec. Admin., 220 F.3d 112 (3d Cir. 2000). An impairment, no
matter how severe, that meets or equals only some of the criteria for a listed
impairment is not sufficient. Id.
McMahon argues that the ALJ erred in finding that she did not meet the
requirements of listing 12.05. Doc. 19 at 6. The requirements of listing 12.05 are
satisfied by meeting the conditions listed in either its paragraph A or paragraph B.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, listing 12.05. In this case, McMahon alleges
the ALJ erred by not finding she met the requirements of paragraph B of that
listing. Id. At the time of the ALJ’s decision, listing 12.05, paragraph B required
that three conjunctive elements be met:
1. Significantly subaverage general intellectual functioning
evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an
individually administered standardized test of general
intelligence; or
b. A full scale (or comparable) IQ score of 71–75 accompanied
by a verbal or performance IQ score (or comparable part score)
of 70 or below on an individually administered standardized
test of general intelligence; and
2. Significant deficits in adaptive functioning currently
manifested by extreme limitation of one, or marked limitation
of two, of the following areas of mental functioning:
a. Understand, remember, or apply information (see 12.00E1);
or
b. Interact with others (see 12.00E2); or
c. Concentrate, persist, or maintain pace (see 12.00E3); or
d. Adapt or manage oneself (see 12.00E4); and
3. The evidence about your current intellectual and adaptive
functioning and about the history of your disorder demonstrates
or supports the conclusion that the disorder began prior to your
attainment of age 22.
See 20 C.F.R. Part 404, Subpart P, Appendix 1, listing 12.05, paragraph B.
The ALJ found that the requirements of paragraph B were not met because
McMahon did not have one extreme area of limitation or two areas of marked
limitation. See Admin. Tr. at 20.
McMahon alleges that the ALJ provided no analysis of the requirements of
listing 12.05(B)(1), even though in her words there is “clearly support in the record
to demonstrate” that the requirements are met. Doc. 19 at 7. McMahon also
alleges that the ALJ “did not evaluate” listing 12.05(B)(3), and she argues that
these conditions existed before age 22. Id. at 9. Even assuming arguendo that the
requirements of both listing 12.05(B)(1) and 12.05(B)(3) were met, there must be
“medical findings equal in severity to all the criteria for the one most similar listed
impairment.” Zebley, 493 U.S. at 531. In other words, the requirements of
12.05(B)(2) must be met regardless of whether the other two requirements are met,
and indeed 12.05(B)(2) was at the crux of the ALJ’s decision.
McMahon asserts that the ALJ’s determination that she does not meet the
listing 12.05(B)(2) requirements is not supported by substantial evidence. Doc. 19
at 6. More specifically, she offers that the ALJ was in error because he found that
she suffers from the severe impairments of “generalized anxiety disorder,
depressive disorder, bipolar 1 disorder, attention deficit, hyperactivity disorder
(ADHD), learning disorder and mild intellectual disorder.” Id.; see also Admin. Tr.
at 16. But a finding that McMahon had these severe impairments does not equate
to finding that she met the criteria of listing 12.05(B)(2).
Moreover, as mentioned above, the ALJ found that McMahon had a
moderate limitation in understanding, remembering, or applying information; a
moderate limitation in concentrating, persisting, or maintaining pace; a moderate
limitation in interacting with others; and a moderate limitation in adapting or
managing oneself. Admin. Tr. at 16–20. The ALJ made his decision regarding
McMahon’s level of impairments in all four areas after balancing all of the
objective and clinical diagnostic evidence, as well as her own level of functioning.
Id. This analysis suffices for all four of the criteria of listing 12.05(B)(2).
McMahon further argues that the ALJ erred by failing to ensure that her
impairments were evaluated to investigate whether they met or equaled a listing.
Doc. 19 at 13. To the ALJ’s credit, he correctly concluded that the record did
fairly raise the question of whether McMahon’s impairment met or was equivalent
to a listing. Admin. Tr. at 17–21. Social Security proceedings are inherently
inquisitorial, not adversarial, and “it is the ALJ's duty to investigate the facts and
develop the arguments both for and against granting benefits.” Massey v. Astrue,
No. CIV. A. 07-426, 2008 WL 4425853, at *2 (W.D. Pa. Sept. 30, 2008) (quoting
Sims v. Apfel, 530 U.S. 103, 120 (2000)). An ALJ has a duty to develop a full and
fair record in social security cases. See Smith v. Harris, 644 F.2d 985, 989 (3d
Cir.1981). Sometimes, the ALJ’s duty to develop the record requires the ALJ to
order an additional consultative exam to more fully develop the record.
Robaczewski v. Colvin, No. 4:14-CV-01686, 2015 WL 4930115, at *9 (M.D. Pa.
Aug. 18, 2015). A consultative examination is required when “[a] conflict,
inconsistency, ambiguity or insufficiency in the evidence must be resolved, . . . or
[t]here is an indication of a change in [the claimant's] condition that is likely to
affect [his or her] ability to work, but the current severity of [the] impairment is not
established.” Id.; see also C.F.R. § 404.1519(a)(b)(4)-(5).
McMahon cites with approval Maniaci v. Apfel, a case hailing from the
Eastern District of Pennsylvania. See Maniaci v. Apfel, 27 F. Supp. 2d 554 (E.D.
Pa. 1998). There, the court held that:
The ALJ’s failure to determine the extent of plaintiff's
orthopedic injuries was a failure to fulfill her duty to develop
the record under 20 C.F.R. § 404.1512(d)–(f). Thus, the Court
must vacate the ALJ's decision to deny benefits and remand the
case for further development of the record.
Id. at 559 (internal citations omitted). In that case, however, the court found that
the ALJ did not receive any testimony from an orthopedist on the extent of
McMahon’s orthopedic injuries. Id. at 558. Indeed, the only “medical testimony
presented at the administrative hearing was provided by Dr. Rothkopf, a
cardiologist, who repeatedly limited his testimony to the plaintiff's heart
condition.” Id. “When asked about plaintiff's orthopedic condition, Dr. Rothkopf
gave only a general response without specifically testifying about plaintiff's
orthopedic condition.” Id.
The situation differs in the case presently before us now, when compared to
Maniaci. In that case, the only medical testimony presented regarding the
claimant’s orthopedic problems was the report of one cardiologist. Mariaci, 27 F.
Supp. 2d at 558. In the instant matter, the ALJ allowed into evidence the opinions
of Drs. Cole, Smock, and Murphy, thus meeting his duty to develop the record.
There is no evidence of a conflict, inconsistency, ambiguity, or insufficiency in the
ALJ’s evaluation of consistency for Drs. Cole, Smock, and Murphy, and there has
been no change in McMahon’s condition warranting a further exam. Substantial
evidence thus supports the ALJ’s Step Three evaluation.
B. Substantial Evidence Supports the ALJ’s finding that McMahon had
the RFC to perform unskilled work involving simple tasks not
performed in a fast-paced production environment, occasional,
simple decision-making, and occasional interpersonal interaction.
McMahon’s next argument is that the ALJ erred in his determination of her
RFC. Doc. 19 at 12. As a rule, “[t]he ALJ—not treating or examining physicians
or State agency consultants—must make the ultimate disability and RFC
determinations.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
2011). As mentioned above, a claimant’s RFC is “that which an individual is still
able to do despite the limitations caused by his or her impairment(s).” Burnett, 220
F.3d at 121 (quoting Hartranft, 181 F.3d at 359 n. 1. In assessing a claimant's
RFC, the ALJ must consider all the evidence of record. Burnett, 220 F.3d at 121.
“When a conflict in the evidence exists, the ALJ may choose whom to credit but
‘cannot reject evidence for no reason or for the wrong reason.’” Plummer v. Apfel,
186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason, 994 F.2d at 1066). The court's
“review of the ALJ's assessment of the plaintiff's RFC is deferential, and that RFC
assessment will not be set aside if it is supported by substantial evidence.” Wilder
v. Kijakazi, 1:20-CV-492, 2021 WL 4145056, at *6 (M.D. Pa. Sept. 9, 2021); see
also Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002) (“We examine the ALJ's
conclusions as to [the claimant's] residual functional capacity with the deference
required of the substantial evidence standard of review.”). Applying the above
standard to the present record, the ALJ’s RFC determination is supported by
substantial evidence.
In her brief, McMahon argues that even if she does not meet the
requirements of a listing, it would be error to find that she can perform “any
gainful employment.” Doc. 19 at 12. To support this proposition, she argues that
she “suffers unquestionably from with [sic] ADHD, depression, bipolar-2, anxiety,
and intellectual disability and has since she was at least a teenager.” Id. Again,
though McMahon may have a number of severe impairments, the mere fact of their
existence does not mean that the ALJ erred in his RFC determination.
She also argues she is disabled because she has not been successful in
“many, many employment attempts.” Id. When determining substantial gainful
employment, generally “work that you are forced to stop after a short time because
of your impairment” is “an unsuccessful work attempt.” 20 C.F.R.
§ 404.1574(a)(1). Earnings “from an unsuccessful work attempt will not show that
you are able to do substantial gainful activity.” Id. An unsuccessful work attempt
is when “you . . . [stop] working or reduc[e] your work and earnings below the
substantial gainful activity earnings level because of your impairment,” 20 C.F.R.
§ 404.1574(c)(2). Here, the ALJ acknowledged McMahon’s alleged difficulties in
keeping a job, noting that McMahon “testified that she could not keep up at a
packing job or in the deli department at a grocery store job.” Admin. Tr. at 25.
But the ALJ noted that McMahon “reported that when she was moved to the
cash register job, she had some difficulties with remembering the food categories,
but left that job due to childcare issues.” Id. In sum, McMahon’s failed job
attempts do not support a conclusion that the ALJ’s RFC is not supported by
substantial evidence. The ALJ also considered McMahon’s activities of daily
living and the other evidence in the record.
C. The ALJ did not err in evaluating the opinion evidence.
McMahon also argues that the ALJ erred in dismissing the medical findings
of Drs. Cole and Smock. Doc. 19 at 7, 9.
1. Overview of the Regulations Regarding Opinion Evidence.
Because McMahon’s claim concerns the ALJ’s handling of opinion
evidence, we start with a brief overview of the regulations regarding opinion
evidence. The regulations in this regard are different for claims filed before March
27, 2017, on the one hand, and for claims filed on or after March 27, 2017, like
McMahon’s, on the other hand. Specifically, the regulations applicable to claims
filed on or after March 27, 2017, (“the new regulations”) changed the way the
Commissioner considers medical opinion evidence and eliminated the provision in
the regulations applicable to claims filed before March 27, 2017, (“the old
regulations”) that granted special deference to opinions of treating physicians.
Here, McMahon filed her initial claims on January 16, 2018, and December 15,
2017, and so the new regulations govern in this case. See Admin. Tr. at 13.
The new regulations have been described as a “paradigm shift” in the way
medical opinions are evaluated. Densberger v. Saul, No. 1:20-CV-772, 2021 WL
1172982, at *7 (M.D. Pa. Mar. 29, 2021). Under the old regulations, “ALJs were
required to follow regulations which defined medical opinions narrowly and
created a hierarchy of medical source opinions with treating sources at the apex of
this hierarchy.” Id. But under the new regulations, “[t]he range of opinions that
ALJs were enjoined to consider were broadened substantially and the approach to
evaluating opinions was changed from a hierarchical form of review to a more
holistic analysis.” Id.
Under the old regulations, the ALJ assigns the weight he or she gives to a
medical opinion. 20 C.F.R. §§ 404.1527(c), 416.927(c). And if “a treating
source’s medical opinions on the issue(s) of the nature and severity of [a
claimant’s] impairments is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] case record,” the Commissioner “will give it
controlling weight.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Under the old
regulations, where the Commissioner does not give a treating source’s medical
opinion controlling weight, it analyzes the opinion in accordance with a number of
factors: the “[l]ength of the treatment relationship and the frequency of
examination,” the “[n]ature and extent of the treatment relationship,” the
“[s]upportability” of the opinion, the “[c]onsistency” of the opinion with the record
as whole, the “[s]pecialization” of the treating source, and any other relevant
factors. Id. at §§ 404.1527(c)(2)–(c)(6), 416.927(c)(2)–(c)(6).
Under the new regulations, however, the Commissioner “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 [the
claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Rather
than assigning weight to medical opinions, the Commissioner will articulate “how
persuasive” he or she finds the medical opinions. 20 C.F.R. §§ 404.1520c(b),
416.920c(b). And the Commissioner’s consideration of medical opinions is guided
by the following factors: supportability; consistency; relationship with the claimant
(including the length of the treatment relationship, the frequency of examinations,
the purpose of the treatment relationship, the extent of the treatment relationship,
and the examining relationship); specialization of the medical source; and any
other factors that tend to support or contradict the opinion. 20 C.F.R.
§§ 404.1520c(c), 416.920c(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), 416.920c(b)(2). As to supportability, the new regulations
provide that “[t]he more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s), the more persuasive the
medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R.
§§ 404.1520c(c)(1), 416.920c(c)(1). And as to consistency, those regulations
provide that “[t]he more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and nonmedical
sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2),
416.920c(c)(2).
The ALJ must explain how he or she considered the “supportability” and
“consistency” of a medical source’s opinion. 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2). Generally, the ALJ may, but is not required to, explain his or her
consideration of the other factors. Id. But if there are two equally persuasive
medical opinions about the same issue that are not exactly the same, then the ALJ
must explain how he or she considered the other factors. 20 C.F.R.
§§ 404.1520c(b)(3), 416.920c(b)(3).
2. The ALJ’s Handling of the Opinion Evidence in this case.
McMahon asserts that the ALJ wrongly dismissed the findings of Andrew
Cole, PhD (“Dr. Cole”). Doc. 19 at 7. The ALJ found that the opinions of Dr. Cole
were “not persuasive.” Admin. Tr. at 25. The ALJ stated:
Dr. Cole opined the claimant would have only a mild
limitation with understanding, remembering and carrying out
simple instructions and making simple work-related decisions,
but that she would have a marked degree of limitation with
understanding, remembering and carrying our complex
instructions and making simple work-related decisions. Dr.
Cole opined the claimant would have a moderate to marked
level of impairment with interacting appropriately with
coworkers, supervisors and the public and a marked level of
impairment responding appropriately to usual work situations
and to changes in a routine work setting.
Id. at 24–25. The ALJ went on to say that Dr. Cole’s opinion that McMahon had a
marked limitation was “based more on subjective reports of the claimant during a
one-time examination than any objective findings.” Id. at 24. He also concluded
Dr. Cole’s opinion was inconsistent with McMahon’s levels of daily activity,
“including childcare and chores, which show greater ability to adapt and manage
herself.” Id. The ALJ also found inconsistency in that McMahon had been able to
work in a “public setting as a cashier in a grocery store, which involves significant
interaction with coworkers, supervisors, and the public, and thus shows a greater
ability to interact appropriately with others.” Id. Finally, the ALJ noted that Dr.
Cole’s conclusions were inconsistent with his own findings, namely that McMahon
was cooperative, relaxed, and comfortable during testing, worked deliberately and
with good attention, and did not evidence significant emotional distress even under
the stimulus of stressful testing conditions. Id. at 23–24. Because the ALJ clearly
articulated what he found to be persuasive about Dr. Cole’s opinion and how it was
consistent with the record as a whole as well as the opinion’s internal consistency,
the ALJ’s findings are supported by substantial evidence.
McMahon also alleges that the ALJ erred in finding that the opinions of
David Smock, PhD. (“Dr. Smock”) were persuasive “only to an extent.” Doc. 19 at
9. McMahon had previously gone to Dr. Smock as part of a prior application for
Social Security benefits. Admin. Tr. at 23. The ALJ found that the opinions of Dr.
Smock were “persuasive only to an extent.” Id. at 23–24. In his disability
evaluation of McMahon on March 21, 2013, Dr. Smock noted that she “would
have some mild to moderate attention problems.” Id. at 312. Additionally, Dr.
Smock noted that she “would have some moderate difficulty following or
understanding directions [and] in making appropriate decision[s] in a job setting.”
Id. Dr. Smock further opined that:
[McMahon] would have difficulty dealing with the stress
at the workplace, so she probably would become overwhelmed
cognitively, fairly quickly. She would have some difficulty
doing simple task[s] independently and would be likely
overwhelmed by complex tasks. She would have problems
learning new tasks. She would have some difficulty relating
effectively to peers, supervisors and customers because of her
limited cognitive ability.
Id. McMahon asserts that the fact that the ALJ’s decision “dismisses this aspect of
the report is a further indication the decision is not supported by substantial
evidence.” Doc. 19 at 10. Regarding Dr. Smock’s opinions, the ALJ found that the
determination of a mild to moderate level of impairment regarding attention was
persuasive because it was “well supported by his clinical findings and results done
during the investigation.” Id. at 22. Other than the findings regarding attention,
however, Dr. Smock’s opinion was not persuasive as a whole. Id. at 23. Indeed,
the ALJ also found that Dr. Smock did not “quantify many of the areas he
identified.” Id. at 22–23. Because the ALJ articulated what he found to be
persuasive about Dr. Smock’s opinion and how it was consistent with clinical
findings and investigative results as well as the record as a whole, the ALJ’s
findings are supported by substantial evidence.
As mentioned above, the ALJ also considered the state agency medical
assessments of Francis Murphy, PhD. (“Dr. Murphy”). Id. at 25. The assessments
found that McMahon had mild to moderate levels of impairment that did not
prevent her from engaging in simple and repetitive activities on a sustained basis.
Id. The ALJ found this opinion persuasive because it was supported by
explanations of evidence available at the time of the opinions. Id. Dr. Murphy’s
opinion was supported by and consistent with objective clinical findings from
treatment records and consultative exam findings, including intellectual testing and
educational records. Id. The ALJ also observed that the clinical medical records
consistent with Dr. Murphy’s assessments were mainly conservative with no
significant abnormal clinical findings regarding mental status. Id. Because the ALJ
clearly articulated the bases for his findings of consistency, his findings are
supported by substantial evidence.
VI. Conclusion.
For the foregoing reasons, we will affirm the Commissioner’s decision and
deny McMahon’s appeal for social security benefits. An appropriate order follows.
S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge