holding that “when the claimant seeks to rely on evidence that was not before the ALJ, the district court may remand . . . only if the evidence is new and material and if there was good cause why it was not previously presented to the ALJ (Sentence Six review).”
How later courts described this case
- holding that “when the claimant seeks to rely on evidence that was not before the ALJ, the district court may remand . . . only if the evidence is new and material and if there was good cause why it was not previously presented to the ALJ (Sentence Six review).”
- describing good cause as a “good reason” for failing to timely submit evidence
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOSHUA MCCORMACK, )
)
Plaintiff, )
)
vs. ) CIVIL ACTION NO. 21-1198
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security, )
)
Defendant. )
OPINION
CONTI, Senior District Judge.
I. Introduction
Plaintiff Joshua McCormack (“McCormack” or “plaintiff”) appealed from the final
decision of the Acting Commissioner of Social Security (“Commissioner” or “defendant”) denying
his claim for supplemental security income (“SSI”) under Title XVI of the Social Security Act
(“SSA”), 42 U.S.C. §§ 1381-83. McCormack argues, among other things, that the decision of the
administrative law judge (the “ALJ”) that he is not disabled, and, therefore, not entitled to SSI, is
not supported by substantial evidence. The Commissioner argues that the ALJ’s decision is
supported by substantial evidence and should be affirmed.
The parties filed cross-motions for summary judgment pursuant to Federal Rule of Civil
Procedure 56(c). The court will grant summary judgment in favor of the Commissioner and deny
McCormack’s motion for summary judgment because the ALJ’s decision is supported by
substantial evidence of record and McCormack did not point to any other basis upon which this
court may grant him relief.
II. Procedural History
On November 17, 2016, an application for SSI was filed in McCormack’s name alleging
that as of October 24, 2016, he was disabled because of his autism, anxiety, thyroid, and elevated
triglycerides. (ECF Nos. 6-5 at 3-13; ECF No. 6-6 at 73; 168-177.) On January 1, 2017,
McCormack’s application was denied. (ECF No. 6-3 at 92-104.) On February 11, 2017,
McCormack requested a hearing. (ECF No. 6-4 at 7-8.) McCormack’s claim was forwarded to
the Office of Disability Adjudication and Review. (ECF No. 6-4 at 10-12.) On October 9, 2018,
a hearing was held before an ALJ at which McCormack, McCormack’s mother (Jackie
McCormack), and a vocational expert (Sam Edelman (“Edelman”)) testified. (ECF No. 6-2 at 45-
86.)
On February 5, 2019, the ALJ issued a decision denying McCormack’s claim for SSI
finding that McCormack is not disabled. (ECF No. 6-2 at 25-44.) The ALJ explained that
McCormack is capable of performing unskilled medium occupations, including floor waxer,
hand packager, and industrial cleaner. (Id. at 44.) McCormack appealed the unfavorable decision
to the Appeals Council. (ECF No. 6-2 at 24.)
McCormack submitted to the Appeals Council written argument and evidence with
respect to his alleged disability that was not submitted to the ALJ. (ECF No. 6-2 at 3.) The
Appeals Council denied McCormack’s appeal and explained that some of the additional evidence
was beyond the time properly considered by the ALJ and that, even if the ALJ considered the
additional evidence, the outcome of the case would have been the same. (Id.) The Appeals
Council’s decision rendered the ALJ’s decision the final decision of the Commissioner. (ECF
No. 6-2 at 2.)
On September 8, 2021, McCormack filed the above-captioned case seeking review of the
ALJ’s decision denying him SSI. (ECF No. 1.) On November 12, 2021, the Commissioner filed
an answer to the complaint. (ECF No. 5.) On the same day, a certified copy of the transcript of
the proceedings before the Social Security Administration was filed with this court. (ECF No. 6.)
On January 18, 2022, McCormack filed his motion for summary judgment and brief in support
of the motion. (ECF Nos. 9, 10.) On February 18, 2022, the Commissioner filed its motion for
summary judgment and brief in support of the motion. (ECF Nos. 11,12.) The motions for
summary judgment having been fully briefed are now ripe to be decided by the court.
III. Background
A. Medical Conditions
McCormack claims he is disabled because of his autism, anxiety, thyroid, and elevated
triglycerides. (ECF Nos. 6-5 at 3-13; ECF No. 6-6 at 73; 168-177.) In 2001, McCormack—at the
age of 4 ½ years—was diagnosed with Autistic Disorder. (ECF No. 6-6 at 17, 90.) By June 2013,
McCormack was also diagnosed with, among other things, Generalized Anxiety Disorder and
thyroid disease and was taking various medications.1 (ECF No. 6-6 at 26, 73.) According to
McCormack, he became unable to work because of his disabilities on October 24, 2016. (ECF No.
6-6 at 73.) The ALJ in this case considered McCormack’s alleged disabilities from October 24,
2016, through February 8, 2019. (ECF No. 6-2 at 3.)
B. Personal Characteristics
McCormack’s birthday is July 29, 1996; as of the date of the hearing before the ALJ, he
was twenty-two years old. (ECF Nos. 6-2 at 48; 6-5 at 4.) He loves to encourage other people.
(ECF No. 6-6 at 147.) He prefers environments that are structured, organized, and not chaotic.
(ECF No. 6-6 at 148.) He can carry on a conversation, listen, interact, respond, and ask
1 McCormack takes the following medication for the following reasons: Ativan—anxiety;
Zoloft—anxiety and depression; Lipitor—high cholesterol and triglycerides; Latuda—mood;
Depakote—mood; Levotheyroxine—thyroid; and Prazosin—post-traumatic stress disorder. (ECF
No. 6-6 at 134.)
questions. (ECF No. 6-6 at 148.) With respect to vocational skills, McCormack is, among other
things: a hard worker; reliable; articulate; a good listener; good at following directions; a good
public speaker; empathetic; a good communicator; willing to ask for help; able to problem solve
on his own; and able to take suggestions and apply the suggestions. (ECF No. 6-6 at 148-49,
154.)
C. Home Activities and Hobbies
McCormack wakes up at approximately 10:00 a.m. (ECF No. 6-2 at 51.) He makes his
breakfast, e.g., cereal, toast, eggs, and places his dirty dishes in the sink. (Id.) He “fix[es]” his
bed about an hour before he goes to sleep. (Id.) After breakfast, he plays video games for
approximately three to five hours. (Id. at 50-51.) McCormack has three gaming systems. (Id.)
McCormack can prepare simple meals, e.g., “boiled pasta, box macaroni and cheese, microwave
meals/pizza, toast, yogurt, [and] cereal.” (ECF No. 6-6 at 90.) He can also prepare dishes that
require multiple steps, e.g., spaghetti bread bowls and an Oreo dessert. (ECF No. 6-6 at 146.) He
can follow directions to complete a task, such as building a bookshelf. (ECF No. 6-6 at 147.)
Most days McCormack needs reminders to comb his hair and brush his teeth. (ECF No. 6-6 at
90.)
At home, McCormack does the landscaping, which includes mowing the lawn, trimming,
and leaf maintenance. (ECF No. 6-2 at 60.) He mows the grass approximately once or twice a
week dependent upon how the grass grows and the weather. (Id. at 60.) McCormack also mowed
his neighbors’ lawn for $30.00 per week. (ECF No. 6-6 at 132.)
McCormack is a musician and plays seven instruments. (ECF No. 6-2 at 52.) He took
private music lessons outside high school. (Id. at 55.) He plays his guitar and bass guitar daily.
(Id. at 52-53.) He spends approximately one hour to one hour and thirty minutes each day
playing his instruments. (Id.at 53.) McCormack plays three instruments for the praise band at his
church. (Id. at 53-54.) The praise band practices before church services and plays one to two
church services per month. (Id.at 53-54.) The church services last one hour. (Id. at 54.) In 2016,
McCormack played music for his church’s festival. (Id. at 54-55.) McCormack records his own
music on his computer. (Id. at 59.)
McCormack used to attend a card game with ten to twenty people at a comic bookstore,
but as of the date of the hearing before the ALJ, he had not attended the card game in three to
four months. (Id. at 53.) The card game could last four hours and thirty minutes. (Id. at 53.) His
father dropped him off at the card game and McCormack would use his cellular telephone to call
his father when the game ended and he was ready to go home. (Id. at 53.)
McCormack does not have his driver’s license. (ECF No. 6-2 at 53.) Other than gaming
and recording music, McCormack uses his computer to watch YouTube videos on a variety of
subjects. (Id. at 60.) McCormack testified that he does not have many friends and has extended
family in Philadelphia, Pennsylvania. (Id. at 61.) While McCormack has “very few” friends, he
is close with his friends. (Id. at 64.)
D. Education
McCormack graduated from high school in 2015, but did not receive his diploma until
2017 because he was in “an extended program.” (ECF No. 6-2 at 48.) He had a 4.0 grade point
average. (ECF No. 6-6 at 144.) McCormack did not receive academic support throughout high
school; rather, he received emotional and behavioral support. (ECF No. 6-6 at 25.) In April 2013,
he attended Wesley Spectrum STEP because he required a more structured environment. (ECF
No. 6-6 at 25.) In the summer of 2013, he was transitioned to the “ASD self-contained classroom”
at Wesley Academy for Extended School Year Services. (Id.) He began his eleventh-grade year at
that school. (Id.)
The “extended program” took place at City Connections, which McCormack attended
five days per week from 8:00 a.m. until 3:00 p.m. (ECF No. 6-2 at 48.) McCormack learned
vocational skills, including interview preparation, workplace readiness, and using the transit
system. (Id. at 48-89.) After completing the extended program, McCormack did not pursue
employment because his psychologist, Dr. Marissa Slider (“Dr. Slider”), recommended that he
not pursue employment until he was “emotionally ready” to do so. (Id. at 49-50.) Dr. Slider
works on medication management with McCormack and coping skills. (ECF No. 6-2 at 66.) Dr.
Slider told McCormack that once he progressed further in treatment, he would be ready to pursue
employment. (Id. at 50.) As of the date of the hearing before the ALJ, McCormack was still
seeing Dr. Slider for treatment, but had been cleared to work. (Id. at 50, 56-57.)
E. Employment
McCormack previously provided janitorial service for minimum wage pay at a high school.
He also worked at a nursing home, but that employment did not work out. (ECF No. 6-2 at 65.)
McCormack explained:
It was too stressful. The environment, to me, was depressing. I’m very
emotionally sensitive and seeing the elderly in pain—some of them were in serious
pain, some of them would get confused and upset. It was very difficult seeing
people in a place they didn’t want to be.
(ECF No. 6-2 at 66.)
At the time of the hearing before the ALJ, McCormack had been employed for three
weeks by Snapology, which he described as a small facility and “a place for kids who like
LEGOs and Minecraft and animation, who have social difficulties to interact in a group setting.”
(ECF No. 6-2 at 57-58.) McCormack maintained the computers used by the children. (Id. at 57.)
His mother drove him to work. (Id. at 57.) He worked Wednesdays and Thursdays from 12:00
p.m. to 4:00 p.m. and made $9.50 per hour. (Id. at 57-58.) He worked with five to six other
adults and on about twenty laptop computers. (Id. at 58.) McCormack reported that he did not
have any problems with the adults with whom he worked or the children at Snapology. (Id. at
61.)
McCormack obtained his job with Snapology via “a branch of ODR called the Discovery
Program.” (ECF No. 6-2 at 63.) The Discovery Program is “a customized employment program
where…a representative…spend[s] about six months getting to know…[a person and how the
person] function[s]…at home and in society.” (Id. at 63.) The person is then paired with a job.
(Id.) McCormack testified that he required a job where he is “constantly busy[,]” but not a job
that is “too demanding[;]” otherwise, he will become anxious. (Id.)
McCormack’s mother testified before the ALJ about an incident that occurred when she
was driving McCormack to his second day of work at Snapology:
The first week he did great—came out—he was in a good mood—he liked
the job. The second time he went to work he—as we were driving into work, he
started to escalate in the car and his thinking got distorted and by the time we got
to the—to the place of employment, he was threatening to take the car. He was
demanding that we get out of the car, so he could take the car and just—you know—
cross the lines of the state and get out of the country and he was demanding that we
pay him $50 a day for every—for all the additional turmoil that he’s had. And he
was not—started kicking the back of the seat of the car and we just really try to
deescalate him by sometimes agreeing with him and sometimes supporting him and
saying—you know—you’re going to be late for work. They are expecting you to
come in here. I’ll get out of the car, and then I have to walk in to the building and
call for somebody to give me a ride home if you take our car. Got out of the car—
he was worried that I was going to call the police because he was escalated. I said,
I’m just gonna go in, I’ll walk in with you. And he—he said, okay. And he did walk
in with me and then he said, don’t you say anything about this—that happened in
the car. And I didn’t—I—I walked into the door, and went in and he finished the
shift and he was okay.
(ECF No. 6-2 at 71.)
F. Anxiety, Autism, and Depression
McCormack’s mother testified that McCormack uses a routine “to make his life easier and
feel like he has more control…in his life.” (ECF No. 6-2 at 71.) McCormack’s mother described
McCormack as high functioning, intelligent, and articulate. (Id. at 72.) She testified that
McCormack presents himself as highly functional, but that he has “a very high level of anxiety
that he internalizes, always” and that at home “he escalates and acts out.” (Id.) McCormack’s
mother worked with Dr. Slider and McCormack’s therapist, Daniela Parrish (“Parrish”), and had
McCormack use Ativan to help McCormack manage his anxiety. (Id.) His mother testified that
McCormack cannot easily manage anxiety or recognize his anxiety before it escalates and cannot
be easily managed. (Id.) McCormack has difficulty sleeping. (ECF No. 6-6 at 103.) Medical
records show, however, that McCormack showed “significant improvement” from taking Ativan.
(ECF No. 6-8 at 53.)
According to McCormack, he has crippling anxiety and depression. (ECF No. 6-2 at 51.)
McCormack described his anxiety as follows:
My anxiety is horrible. It – sometimes it’ll reduce me to just laying on the
couch as a nervous wreck. I sometimes will not even be able to do things I enjoy,
because of my anxiety. It can also make me very agitated and makes it hard for me
to sometimes maintain social interactions, for example, with friends.
(ECF No. 6-2 at 64.) McCormack testified as follows with respect to his agitation:
I have learned to control it but I can go into uncontrollable fits of anger. I
will also get incredibly hostel [sic] to even those who are trying to help me[, i.e.,
his parents]. I will swear and use foul language. And I can become physically
aggressive, if provoked.
(ECF No. 6-2 at 64-65.) McCormack testified as follows with respect to his depression:
It—it cripples my self esteem. I have very low self esteem. I’ve—from
bullying—I don’t’ really see myself in the best light and when you’re felling [sic]
like—I kinda [sic] feel like everything it out to—kind of ---not really get me but
everything’s against me—like the cards are never in my favor. Right now, I kinda
[sic] feel hopeless. I feel like I’ll never be able to move out of my parent’s [sic]
place. I want to be independent, but my anxiety makes it very difficult for me to
sometimes, even do the simplest things.
…
Like, sometimes just putting my dishes in the sink. I could become
forgetful—I can even forget to take my meds at times. My anxiety can even—its
even—it even—I can’t even do things for fun when my anxiety is inflated.
Sometimes even doing a hobby or even my video games—that I enjoy—my anxiety
won’t be able to calm me down. It is a very serious problem.
(ECF No. 6-2 at 68-69.)
On “rare occasions” McCormack becomes stressed when he is home by himself.2 (ECF
No. 6-2 at 66.) Typically, however, he finds it to be relaxing to be home by himself. (Id.) He has
“coping skills” that he uses when he is home alone. He learned the coping skills from Dr. Slider
and Parrish. (Id. at 66.) McCormack sees Parrish twice per week. (ECF No. 6-2 at 67.) At the
time of the hearing before the ALJ, Parrish was on maternity leave and McCormack saw another
therapist. (Id.; ECF No. 6-9 at 86.)
McCormack’s mother testified that McCormack’s anxiety was “very high” two months
prior to the hearing before the ALJ his job at Snapology and changes in their family environment.
They increased some of McCormack’s medication, i.e., Zoloft and Ativan. (ECF No. 6-2 at 73.)
She described McCormack’s anxiety escalating when he could not find someone online to play
video games and he “bashed” his head into his bedroom door. (ECF No. 6-2 at 75.)
McCormack’s mother called the Upper St. Clair Police Department numerous times when
McCormack escalated because of his anxiety. McCormack, however, was not arrested and the
2 McCormack’s mother testified about an in incident in which she left McCormack at home
by himself when she and her husband (McCormack’s father) went to an event. McCormack walked
2.5 miles from their home, called them, started making demands, and said he had to move out of
their home. (ECF No. 6-2 at 78.) McCormack’s father was able to deescalate McCormack,
McCormack waited at a nearby donut shop, and his parents left their event to take McCormack
home. (Id. at 78-79.)
police were helpful in those situations. (Id. at 75-76.) Calling the police can further escalate
McCormack. (Id. at 80.) He was restrained for his own safety. (ECF No. 6-2 at 65.)
McCormack was involuntarily committed to a hospital twice. (ECF No. 6-2 at 81.) In late
January 2017, McCormack—due to his anxiety and problems with medications—was hospitalized
on a psychiatric unit for behavior in his family home that posed a threat to himself and others.
McCormack’s medical records provide that McCormack went from “0 to 60 in one minute” and
“[e]scalated very quickly and was very unsafe.” (ECF No. 6-9 at 6.) McCormack was upset
because he was experiencing leg pain, which was a side effect of his medications. He smashed his
mother’s and sister’s cellular telephones and “became physically and verbally aggressive,
threatening to harm himself, [sic] and his family.” (Id.) McCormack’s mother and sister were able
to leave the house, go to their neighbors’ home, and call the police. (Id.) McCormack threatened
to harm or kill himself and others including his mother on a number of occasions. (Id. at 6, 8, 73.)
His behavior resulted in police intervention and property damage in the McCormacks’ home. (ECF
No. 6-6 at 99.) McCormack missed many days of school in January 2017 because of his anxiety.
When he did attend school, he did so for only four hours. (Id.)
February 2017 was the last time McCormack was voluntarily committed. (ECF No. 6-2 at
81.) On or about February 24, 2017, McCormack saw psychiatrist Madhaven Thuppal (“Thuppal”)
who issued a “Physician’s Statement for Homebound Instruction” based upon McCormack’s
diagnoses of Autism, bipolar disorder, and anxiety. (ECF No. 6-6 at 113, 115.) Thuppal opined
that McCormack was not able to attend classes because of his “severe anxiety” and he would
require homebound instruction for 6 months.” (ECF No. 6-6 at 113.) McCormack, however, has
not been hospitalized since working with Dr. Slider. (Id.)
McCormack testified about why he cannot work five days per week, eight hours per day:
I honestly—with putting all resources and accounting for everything that I
have that’s good for me and that’s bad for me—I honestly believe I would be unable
to work eight hours a day, five days a week due to my anxiety and I also do have
depression and those two make it extremely difficult for me to sometimes, even
complete the smallest tasks for more than even four hours at a time. Even this job
right now is incredibly difficult for me.
…
I—my anxiety takes up a lot of energy—dealing with it and keeping it under
control. So, I don’t have as much energy as say, the average worker. I want to work
and I would love to hold a competitive job, but my emotional limitations prevent
me from being able to both, do the job and function properly.
(ECF No. 6-2 at 68.)
Parrish, who was McCormack’s therapist from November 2014 to August 2018, reported
that McCormack’s autism makes it difficult for him to manage his anxiety. He struggles when
faced with new responsibilities. She explained:
When something new is added, he tends to go through a period of anxiety,
regression and he becomes verbally aggressive, at times physically aggressive,
self-destructive and has a difficult time with being able to cope until the
responsibility is significantly modified in some way and he is provided with a
significant amount of emotional support, or the responsibility is ultimately
removed from his life….Historically, Josh has not been able to actually "complete"
a program or responsibility he has begun due to anxiety (including school
programs, previous job trial he has tried in the past, etc.).
…
Josh presents as a very bright and pleasant capable person who is much
more affected by his disability than what appears on the surface. Josh has much
intent to want to complete the tasks he begins and wants to succeed but remains
hindered by the amount of anxiety he has when he attempts new adult
responsibilities and life skill tasks.
(ECF No. 6-9 at 2.) Parrish explained, however, that McCormack has made progress with
managing his anxiety. (Id.)
During the relevant time period, i.e., October 24, 2016, through February 8, 2019,
McCormack reported to healthcare providers that he denied feeling depressed, anxious, having
memory loss, mental disturbance, suicidal ideation, hallucinations, or paranoia. (ECF No. 6-8 at
13 (medical records from McCormack’s endocrinologist dated October 7, 2017)); (ECF No. 6-8
at 25 (medical records from McCormack’s primary care physician dated June 8, 2018)); (ECF No.
6-8 at 31 (medical records from McCormack’s primary care physician dated November 7, 2017));
(ECF No. 6-8 at 61 (medical records from McCormack’s endocrinologist dated October 7, 2017);
(ECF No. 6-8 at 65 (medical records from McCormack’s endocrinologist dated April 24, 2018).)
McCormack’s treatment providers described him as: “polite” and “socialable[,]” (ECF
Nos. 6-7 at 107, 6-9 at 56); a “very pleasant young gentleman[,]” (ECF No. 6-7 at 112); a
“delightful young man[,]” (ECF No. 6-7 at 113); and “cooperative[,]” (ECF No. 6-7 at 202).
By April 2018, Parrish noted that McCormack was “doing very well” and did not engage
in any “unsafe behavior” while under the current plan of care; indeed, he demonstrated “safety in
the home…100% of the time.” (ECF No. 6-9 at 153.) He sometimes became agitated and “a little
aggressive” towards walls or furniture, but used coping strategies and “more often” identified his
triggers and when he felt anxious. He took walks and talked through his feelings rather than
allowing his emotions to escalate into anger. (Id.) McCormack increased his positive-thinking
skills and reported increased self-esteem and independence. (Id.) McCormack continued to receive
the positive support of his family. (Id.) At the same time, McCormack reported that he did not
have any difficulty: concentrating on doing something for ten minutes; remembering to do
important things; analyzing and finding solutions to problems in day-to-day life; learning a new
task; generally understanding what people say; or starting and maintaining a conversation. (ECF
No. 6-9 at 155.)
G. Mental Residual Functional Capacity Assessment form dated December
2016 by Dr. Jon Vigna
Dr. Jon Vigna (“Dr. Vigna”), a psychiatrist, completed a mental residual functional
capacity assessment of McCormack dated December 30, 2016. (ECF No. 6-3 at 3-14.) Dr. Vigna
considered the McCormack’s medical record and opined that McCormack is not disabled. (Id. at
14.) Dr. Vigna wrote:
The claimant’s ability to understand, remember and carry out complex or
detailed instructions is limited, however, the claimant would be expected to
understand and remember simple, one and two-step instructions. The [c]laimant is
able to carry out very short and simple instructions. The claimant is capable of
asking simple questions and accepting instruction. ADL’s and social skills are
functional from a psychiatric standpoint. The claimant would be able to make
simple decisions. Review of the medical evidence reveals that the claimant retrains
the abilities to manage the mental demands of many types of jobs not requiring
complicated tasks.
Based on the evidence of record, the claimant’s statements are found to be
partially consistent.
Due to the ability to understand and remember one and two-step
instructions, the claimant is able to meet the basic mental demands of competitive
work on a sustained basis despite the limitations resulting from the impairment.
THE CLAIMAINT IS CAPABLE OF PERFORMING SIMPLE, ROUTINE
TASKS IN A STABLE ENVIRONMENT.
The most recent GAF was considered and given appropriate weight in this
assessment. A GAF rating is only a snapshot opinion about the level of functioning.
It is one opinion that is considered with all the evidence about a person’s
functioning. Unless the clinician clearly explains the reasons behind a GAF rating,
and the period to which the rating applies, it does not provide a reliable longitudinal
picture of the claimant’s mental functioning for a disability analysis. No such
explanation was provided here.
(ECF No. 6-3 at 12.)
H. Testimony by Vocational Expert
Edelman testified before the ALJ. (ECF No. 6-2 at 83.) Edelman testified that McCormack
could be employed as a floor waxer, hand packager, or in industrial cleaning. (Id. at 84.) He
testified that one absence per month is permissible in those jobs and more than once per month is
unacceptable. (Id.) With respect to arriving at the workplace late or leaving early, Edelman
testified:
It really depends on the employer. It could be either. I would suggest that if
it’s more than an hour, then it could count as an absence—less would probably
count as time off task if it was under 10%[.]
(ECF No. 6-2 at 84.)
IV. The ALJ’s Decision3
The ALJ concluded that McCormack “has not been under a disability within the meaning
of the Social Security Act since October 24, 2016, the date the application was filed.” (ECF No.
6-2 at 28.) The ALJ applied the five-step process set forth in the Social Security Act to determine
whether McCormack is disabled. (Id. at 29 (citing 20 C.F.R. § 416.920(a)).)
With respect to step one, i.e., “whether the claimant is engaging in substantial gainful
activity[,]” the ALJ concluded that McCormack did not engage in substantial gainful activity
since October 24, 2016. McCormack was employed after that date, but his employment did not
rise to the level of substantial gainful activity. (Id. at 30 (citing 20 C.F.R. § 416.971, et seq.).)
With respect to step two, i.e., “whether the claimant has a medically determinable
impairment that is ‘severe’ or a combination of impairments that is ‘severe[,]’” (ECF No. 6-2 at
29 (citing 20 C.F.R. § 416.920(c)), the ALJ opined that McCormack has the following severe
impairments: autism spectrum disorder, major depressive disorder, and anxiety disorder. (ECF
No. 6-2 at 30.) The ALJ opined that these impairments—either singly or in combination—are
severe because “they cause limitations or restrictions having more than a minimal effect on the
claimant’s ability to perform basic work activities[,]” e.g., “physical functions such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling or mental functions
such as understanding, remembering, and carrying our instructions, use of judgment, responding
3 This section sets forth the general conclusions of the ALJ. The evidence relied upon for
those conclusions will be discussed in greater detail in the discussion section of this opinion.
appropriately to supervision, coworkers and usual situations or dealing with changes in a routine
work setting.” (ECF No. 6-2 at 31 (citing 20 C.F.R. § 416.923; SSR 85-28).)
With respect to step three, the ALJ opined that McCormack “does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (ECF No. 6-2 at 32 (citing
20 C.F.R. §§ 416.920(d), 416.925, and 416.926).) The listings in issue are listings 12.06 (anxiety
and obsessive-compulsive disorders), 12.08 (personality and impulse-control disorders), or 12.10
(autism spectrum disorder). A disability is found if the claimant satisfies the criteria set forth in
paragraphs A and B of listings 12.06, 12.08, or 12.10. The ALJ, however, focused upon the
paragraph B criteria for those listings, which are the same for each of those listings. The ALJ
explained that to satisfy the paragraph B criteria, there must be “at least one extreme or two
marked limitations in a broad area of functioning[,]” i.e., “understanding, remembering, or
applying information; interacting with others; concentrating, persisting, or maintaining pace; or
adapting or managing themselves.” (ECF No. 6-2 at 32.) The ALJ found that McCormack did
not have extreme or marked limitations in any of the foregoing four areas, and, therefore, he does
not have an impairment or combination of impairments that meets or medically equals the
severity of listings 12.08 or 12.10.
A disability for anxiety and obsessive-compulsive disorders is found if the claimant
satisfies the criteria set forth in paragraphs A and B or A and C of listing 12.06. The ALJ,
therefore, considered whether McCormack’s impairments satisfied the “paragraph C” criteria of
listing 12.06, which considers whether a claimant’s mental disorder is “serious and persistent[,]”
i.e., whether the claimant attends ongoing mental health treatment and has achieved only
marginal adjustment. 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ focused the discussion on
whether McCormack has achieved marginal adjustment. The ALJ explained that despite
McCormack’s diagnoses, he is able to “bathe and dress himself without help, prepare simple
meals, play multiple instruments, play video games, go grocery shopping, and do chores.” (ECF
No. 6-2 at 34.) McCormack is able to work and participate in social events and attends therapy
and takes walks with his friends. Based upon the foregoing, the ALJ explained that McCormack
“has not achieved only marginal adjustment when changes or increased demands led to
exacerbation of his symptoms and signs and to the deterioration of his functioning.” (ECF No. 6-
2 at 34-35.) The ALJ concluded that McCormack did not satisfy paragraphs B or C of listing
12.06, and, therefore, does not have an impairment or combination of impairments that meets or
medically equals the severity of listing 12.06.
With respect to step four, the ALJ found that McCormack has the residual functional
capacity to perform a full range of work at all exertional levels with nonexertional limitations.
(ECF No. 6-2 at 35.) The ALJ followed a two-step process to reach this conclusion. First, he
considered “whether there is an underlying medically determinable physical or mental
impairment…that can be shown by medically acceptable clinical or laboratory diagnostic
techniques…that could reasonably be expected to produce the claimant’s pain or other
symptoms.” (ECF No. 6-2 at 35.) Second, the ALJ evaluated the extent of McCormack’s
symptoms to determine the extent to which they limit his functional limitations. (Id.)
With respect to the first step, the ALJ found that McCormack and his mother testified that
McCormack’s anxiety, autism, or depression cause the following symptoms: unable to do simple
acts of daily living; laying on the couch; agitation; physical aggression; inability to work a full
workday; unmanageable anxiety from environmental changes and social interactions; and
impaired ability to complete tasks, concentrate, understand, follow instructions, and get along
with others. (ECF No. 6-2 at 36.) The ALJ concluded that McCormack’s medically determinable
impairments could reasonably be expected to cause the foregoing symptoms. (Id.) The ALJ
found, however, that the symptoms “are not entirely consistent with the medical evidence and
other evidence in the record.” (Id.)
The ALJ acknowledged the incidents that resulted in the police being called and
McCormack’s hospitalizations because of his anxiety and that McCormack was anxious and
depressed leading up to the hearing before the ALJ. The ALJ noted that McCormack dropped a
college class and ended a relationship with his significant other. (ECF No. 6-2 at 36.) The ALJ
found, however, after consideration of the entire record that McCormack’s symptoms “are
generally well maintained.” (Id.) The ALJ noted that McCormack’s treatment provider notes
show that McCormack’s symptoms are not disabling. (Id.) McCormack during the relevant time
period denied feeling depressed, anxious, or having suicidal ideation, which is evidence that his
symptoms may not be as persistent as argued on behalf of McCormack. (ECF No. 6-2 at 36.)
Despite a treating psychologist opining that McCormack’s anxiety hinders his ability to complete
new adult tasks, other evidence in the record showed that McCormack engages in a “somewhat
normal level of daily activity[,]” e.g., playing video games, playing multiple instruments,
cooking, mowing the lawn, attending school, and some employment. (Id.) The ALJ noted that
McCormack is high-functioning on the autism spectrum, scored an 8 on the Patient Health
Questionnaire-9, and that having a routine helped his symptoms. (Id. at 36-37.) McCormack’s
symptoms were treated with medication and therapy; indeed, he showed “significant
improvement” when taking Ativan. (Id. at 37.) Treatment notes showed that McCormack made
progress in using coping skills and managing his anxieties. (Id.)
Based upon the foregoing, the ALJ found that the medical evidence did not support a
finding that McCormack’s symptoms were sufficiently intense, persistent, or limiting to support
a finding of disability. (ECF No. 6-2 at 37.) The ALJ explained, however, that McCormack has
“substantial issues” (his anxiety causing aggressive outbursts) that warrant limitations in his
residual functional capacity. The ALJ explained that McCormack’s
ability to work is limited to understanding, remembering, and carrying out simple
instructions and performing simple routine tasks such as those akin to work
requirements at the SVP level of one or two; low stress work environment meaning
no production rate pace work but rather goal oriented work; occasional and routine
changes in the work setting with routine changes defined as that which does not
require alteration in work method; and no short or precision deadlines.
Additionally, the claimant had aggressive outbursts that resulted in police contract;
however, the claimant normally presented as pleasant and polite (Exhibits SF/2;
6F/2, 3; 8F/3; l0F/4; and 13F/55). Therefore, the undersigned finds that the
claimant's ability to work is limited to no work-related interaction with the public,
and occasional and superficial interaction with the coworkers and supervisors.
(ECF No. 6-2 at 37.) The ALJ “gave great weight” to the Mental Residual Functional Capacity
Assessment form dated December 2016 by Dr. Vigna. Dr. Vigna reviewed McCormack’s medical
record, “has an understanding of Social Security disability program policies and their evidentiary
requirements,” and concluded that McCormack “is capable of performing simple, routine tasks, in
a stable environment.” (Id.)
The ALJ gave “little weight” to the testimony by McCormack’s mother because her
testimony was contradicted by the other evidence of record. (Id. at 38.) For similar reasons, the
ALJ gave less weight to McCormack’s Global Assessment of Functioning Score (“GAF’) and
more weight to the other evidence of record discussed in the ALJ’s findings. (Id.)
The ALJ concluded that—in reliance on the testimony of Edelman—jobs exist in the
national economy that are fitting to McCormack’s age, education, work experience, and residual
functional capacity, i.e., floor waxer, industrial cleaner, and hand packager. (ECF No. 6-2 at 39.)
Based on that information, the ALJ concluded that a finding of “not disabled” is appropriate under
the framework of section 204.00 in the Medical-Vocational Guidelines. (Id.) The ALJ found
McCormack is not disabled under § 1614(a)(3)(A) of the Social Security Act. (Id.)
V. Legal Standard
If the Appeals Council denies a request for review of an ALJ’s decision, the decision of
the ALJ becomes the final decision of the Commissioner. Sims v. Apfel, 530 U.S.C. 103, 106–07
(2000). The recipient of an adverse final decision of the Commissioner may seek judicial review
in a district court. 42 U.S.C. § 405(g) (2006). Any finding of fact by the ALJ that is supported by
substantial evidence is conclusive. 42 U.S.C. § 405(g).
Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.... It is more than a mere scintilla but
may be somewhat less than a preponderance of the evidence.... In the process of
reviewing the record for substantial evidence, [the court] may not weigh the
evidence or substitute [its] own conclusions for those of the fact-finder.
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.2005) (internal quotations and citations
omitted).
VI. Discussion
A disability is “the inability to do any substantial gainful activity by reason of any
medically determinable physical ... impairment ... which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 20 C.F.R. § 416.905(a). To receive disability
benefits, a claimant must have a severe impairment that makes him unable to do past relevant work
or other substantial gainful work available in the national economy. Id. A severe impairment is
one which significantly limits one's ability to do basic work activities. Id. § 416.920(c). A
substantial gainful activity is any work that involves significant and productive physical or mental
duties and is done for pay or profit. Id. § 416.910. Past relevant work is any substantial gainful
activity performed within the last fifteen years which lasted long enough for the claimant to learn
how to do it. Id. § 416.960(b)(1).
To evaluate a claim for SSI benefits, the Social Security Administration follows a five-step
sequential evaluation process. Id. § 416.920(a)(1). First, it must be determined whether the
claimant is currently doing any substantial gainful activity. Id. § 416.920(a)(4)(i). If he is currently
doing any substantial gainful activity, then his claim is denied. Id. Otherwise, the inquiry proceeds
to the second step, where the evaluator determines whether the claimant has any severe
impairment. Id. § 416.920(a)(4)(ii). If he does not have a severe impairment, then the claim is
denied. If the evaluator determines the claimant has a severe impairment, the inquiry proceeds to
the third step, where the evaluator determines whether any of the claimant’s impairments is
equivalent to one of the listed impairments. Id. § 416.920(a)(4)(iii). If the claimant has any of the
listed impairments, he is considered disabled, and the inquiry ceases. Id. Otherwise, the inquiry
proceeds to the fourth step, where the evaluator determines the claimant’s residual functional
capacity (“RFC”) and whether the claimant can return to his past relevant work. Id. §
416.920(a)(4)(iv). If the claimant can return to work, he is not disabled, and the inquiry ceases. Id.
Otherwise, the inquiry proceeds to the fifth and final step, where the evaluator determines whether
the claimant can adjust to any other substantial gainful work available in the national economy. Id.
§ 416.920(a)(4)(v). If the claimant can adjust to other work, then he is not disabled. Id. If he is
unable to adjust to other work, he is disabled, and is eligible for benefits. Id. The claimant bears
the burden of proof with respect to the first four steps. Poulos v. Comm'r of Soc. Sec., 474 F.3d
88, 92 (3d Cir.2007). If the claimant meets that burden, the burden shifts to the Commissioner with
respect to the fifth step. Id. at 92.
McCormack argues that this court “should reverse the Commissioner and order the award
of benefits or remand this matter to the ALJ for further and…appropriate consideration of the
evidence and testimony provided.” (ECF No. 10 at 1.) According to McCormack, the ALJ erred
by:
1. finding that McCormack’s severe impairments did not meet or equal a listed
impairment;
2. relying upon an RFC that does not properly assess all McCormack’s impairments; and
3. failing to consider the totality of Edelman’s testimony.
(ECF No. 10.) The Commissioner argues that the ALJ’s determination that McCormack is not
disabled is supported by substantial evidence, and, therefore, this court should enter summary
judgment in favor of the Commissioner. The parties’ arguments and the applicable law are
addressed below.
A. ALJ’s finding that McCormack’s severe impairments did not meet or equal a
listed impairment.
McCormack argues that the ALJ’s decision at step three that McCormack’s severe
impairments do not meet or equal a listed impairment is erroneous. The Commissioner disagrees
and argues that the ALJ’s step-three analysis and conclusions that McCormack’s severe
impairments are not listed impairments and do not equal a listed impairment are supported by
substantial evidence of record.
“In order to qualify for benefits at step three of the sequential evaluation process, a
claimant must match or equal a listed impairment.” Williams v. Sullivan, 970 F.2d 1178, 1186
(3d Cir. 1992). As discussed above, the claimant has the burden at step three to prove his or her
severe impairment matches or equals a listed impairment. Poulos, 474 F.3d at 92. With respect to
listed impairments, a claimant cannot satisfy his or her burden by showing only that he or she has
a diagnosis of the same name as a listing, 20 C.F.R. § 404.1525(d); rather, “[t]o meet the
requirements of a listing, [the person claiming disability] must have a medically determinable
impairment(s) that satisfies all of the criteria in the listing.” Id. In other words, “‘[a]n impairment
that manifests only some of those criteria, no matter how severely, does not qualify.’” Williams
v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992) (quoting Sullivan v. Zebley, 493 U.S. 521, 529
(1990)).
Here, the ALJ concluded that McCormack’s severe impairments, considered singly and
in combination, did not meet or medically equal the criteria of listings 12.06 (anxiety and
obsessive-compulsive disorders), 12.08 (personality and impulse-control disorders), or 12.10
(autism spectrum disorder). A disability for anxiety and obsessive-compulsive disorders is found
if the claimant satisfies the criteria set forth in paragraphs A and B or A and C of listing 12.06. A
disability for personality and impulse-control disorders is found if the claimant satisfies the
criteria set forth in paragraphs A and B of listing 12.08. A disability for autism spectrum disorder
is found if the claimant satisfies the criteria set forth in paragraphs A and B of listing 12.10. The
paragraph B criteria are the same for each of these listings. The ALJ, therefore, focused the
analysis on whether McCormack satisfied the paragraph B criteria for these listings and the
paragraph C criteria for listing 12.06. The ALJ did not set forth an analysis about the paragraph
A criteria for any of these listings.
The B criteria for these listings is as follows:
B. Extreme limitation of one, or marked limitation of two, of the following areas
of mental functioning (see 12.00F):
1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
20 C.F.R. Pt. 404, Subpt. P, App. 1.
The C criteria for 12.06 (anxiety and obsessive-compulsive disorders) is as follows:
C. Your mental disorder in this listing category is “serious and persistent;” that is, you
have a medically documented history of the existence of the disorder over a period of
at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly
structured setting(s) that is ongoing and that diminishes the symptoms and signs
of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in
your environment or to demands that are not already part of your daily life (see
12.00G2c).
20 C.F.R. Pt. 404, Subpt. P, App. 1.
Whether the ALJ’s conclusions with respect to the paragraph B and C criteria are
supported by substantial evidence of record will be addressed below.
1. Paragraph B criteria
a. McCormack’s ability to understand, remember, or apply
information
With respect to McCormack’s ability to understand, remember, or apply information, the
ALJ found that he has a mild limitation in this area. (ECF No. 6-2 at 32-33.) The ALJ reasoned
that although McCormack’s mother testified that McCormack required reminders to take his
medication, the medical evidence did not show any serious deficit in long-term or short-term
memory, insight, or judgment; indeed, McCormack plays multiple instruments, plays video
games, performs household chores, and appeared capable of understanding the hearing process
before the ALJ. (Id.) McCormack also reported to his treatment providers that he did not have
significant difficulty in understanding or remembering. (Id.)
McCormack in his brief in support of his motion for summary judgment argues:
[T]his area of function also considers as significant the ability to recognize
and correct mistakes; sequence multi-step activities; and use reason and judgment
to make decisions. The adaptive parts of this area of function and the ability to
recognize and correct are what would be difficult for Mr. McCormack, as Dr. Slater
[sic] and Ms. Parrish both noted.
(ECF No. 10 at 14.) The ALJ recognized, however, that this area includes “abilities such as
learning and understanding terms, instructions, and procedures, following oral instructions to carry
out a task, describing work activity to someone else, asking and answering questions and providing
explanations, recognizing a mistake and correcting it, identifying and solving problems, …[and]
using one’s judgment to make work-related decisions.” (ECF No. 6-2 at 33.) The ALJ considered
Parrish’s treatment records, which included McCormack’s self-assessments in which he indicated
that he did not have “significant difficulty in generally understanding and remembering.” (Id.)
McCormack in support of his argument also cites to a diagnosis letter by Dr. Slider dated
July 9, 2021 (ECF No. 6-2 at 9-14), that was not provided to the ALJ. Also included in the
record before this court are three other documents that McCormack did not present to the ALJ: a
letter dated July 16, 2021, from Susan Radio, an academic, life skills, and social support coach,
(“Radio’s letter”); a letter dated July 15, 2021, from Parrish (“Parrish’s updated letter”); and an
adaptive behavior assessment dated March 9, 2021 of McCormack by James. D. Petrick, a
clinical neuropsychologist (“Petrick’s assessment”). (ECF No. 6-2 at 15-17, 20-23.) It is
improper for a district court in making its substantial evidence review to consider evidence that
was not presented to the ALJ. In those circumstances, the district court may “remand [the case]
to the Commissioner but only if the evidence is new and material and if there was good cause
why it was not previously presented to the ALJ.” Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir.
2001).
When a claimant proffers new evidence not presented to the ALJ, a reviewing court’s
determination about whether to remand to the Commissioner is governed by Sentence Six of §
405(g) of the SSA. Salem v. Colvin, Civ. Action No. 15-1453, 2017 WL 363011, at *4 (W.D.
Pa. Jan. 24, 2017) (citing Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001)). Sentence Six
provides that the court may order remand “only upon a showing that there is new evidence which
is material and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding.” 42 U.S.C. § 405(g) (emphasis added); see Matthews, 239 F.3d at
593 (holding that “when the claimant seeks to rely on evidence that was not before the ALJ, the
district court may remand . . . only if the evidence is new and material and if there was good
cause why it was not previously presented to the ALJ (Sentence Six review).”). “[A] claimant
must satisfy all three requirements of Sentence Six (new, material and good cause) in order to
justify a remand” under Sentence Six of 42 U.S.C. § 405(g). Matthews, 239 F.3d at 594. The
burden of showing new and material evidence and good cause for delay is on the party seeking
review. Platt v. Berryhill, Civ. Action No. 16-537, 2017 WL 1927721, at *3 (W.D. Pa. May 10,
2017) (stating that “[a]ll three requirements must be satisfied by a plaintiff to justify remand.”).
Sentence Six requires that “the evidence must first be ‘new’ and not merely cumulative of
what is already in the record.” Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831, 833 (3d
Cir. 1984); Haney v. Comm'r of Soc. Sec., Civ. Action No. 13-3033, 2014 WL 2916454, at *14
(D.N.J. June 26, 2014) (“Evidence must raise new issues or clarify existing ones, so as to go
beyond merely reiterating past findings through new sources.”). New evidence must “not [be] in
existence or available to the claimant at the time of the administrative proceeding.” Sullivan v.
Finklestein, 496 U.S. 617, 626 (1990); Chalfant v. Colvin, Civ. Action No. 15-1555, 2016 WL
7104387, at *3 (W.D. Pa. Dec. 6, 2016) (finding a medical report not to be “new” because it was
“merely indicative of [the claimant’s] condition during and based upon records in existence
during the relevant period of time but crafted after the ALJ issued his decision.”).
“[T]he materiality standard requires that there be a reasonable possibility that the new
evidence would have changed the outcome of the [ALJ’s] determination.” Szubak, 745 F.2d at
833. Courts have found this to be “an arguably lax standard.” Shuter, 537 F. Supp. 2d at 757; see
Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir.1985) (holding that the burden of showing
materiality, namely the reasonable possibility standard, “is not great.”). The evidence must relate
to the time period for which benefits were denied. Matos v. Kijakazi, No. CV 21-02024 (FLW),
2022 WL 1134995, at *8 (D.N.J. Apr. 18, 2022). Indeed, the Third Circuit Court of Appeals has
explained: “An implicit materiality requirement is that the new evidence relate to the time period
for which benefits were denied, and that it not concern evidence of a later-acquired disability or
of the subsequent deterioration of the previously non-disabling condition.” Szubak v. Sec'y of
Health & Hum. Servs., 745 F.2d 831, 833 (3d Cir. 1984).
Section 405(g) requires “good cause for failure to incorporate such evidence into the
record in a prior proceeding.” 42 U.S.C. § 405(g). Plaintiff must show “some justification for
the failure to acquire and present such evidence” or else “[a] claimant might be tempted to
withhold medical reports, or refrain from introducing all relevant evidence, with the idea of
‘obtaining another bite of the apple’” as an “end-run method of appealing an adverse ruling by
the Secretary.” Szubak, 745 F.2d at 833, 34; Matthews, 239 F.3d at 595 (describing good cause
as a “good reason” for failing to timely submit evidence). “Congress intended [the good cause]
aspect of § 405(g) to be sparingly applied.” Haney, 2014 WL 2916454, at *15. In Chandler v.
Commissioner of Social Security, the plaintiff failed to satisfy the good cause requirement
“because she [had] not explained ‘why she did not attempt to obtain [the] evaluation[s] at a time
when [they] could be considered by the ALJ.’” 667 F.3d 356, 361 (3d Cir. 2011) (quoting
Matthews, 239 F.3d at 595); Morrow v. Colvin, Civ. Action No. 15-1335, 2017 WL 118405, at
*1 (W.D. Pa. Jan. 12, 2017) (where a “[p]laintiff has not offered any explanation for why the
evidence was not submitted to the ALJ . . . there is no basis for finding the required ‘good cause’
”); Waugaman v. Astrue, Civ. Action No. 08-1548, 2009 WL 2177219, at *6 (W.D. Pa. July 22,
2009) (“[w]ithout an explanation for the delay in obtaining and submitting the report, the court
can only find that the factors indicating the propriety of a remand based on new evidence have
not been met.”).
Here, even if McCormack could show that Dr. Slider’s diagnosis letter, Radio’s letter,
Parrish’s updated letter, and Petrick’s assessment are new evidence, he did not make a showing
that the letters are material or there exists good cause for his failure to submit the evidence to the
ALJ. With respect to materiality, the letters and assessment are not limited to the time period for
which benefits were requested, i.e., October 24, 2016, through February 8, 2019, and it is unclear
which opinions may relate to that time period; indeed, Radio did not begin working with
McCormack until August 2020. (ECF No. 6-2 at 15.) Under those circumstances, McCormack did
not satisfy his burden to show that the letters and assessment are material to his request for benefits
during the time period in issue, i.e., October 24, 2016, through February 8, 2019. McCormack also
did not make any showing that good cause exists for failing to request the letters and assessment
until after the ALJ rendered the decision in this case. Based upon the foregoing, the court cannot
consider the letters or assessment and will not remand this case back to the ALJ for consideration
of that evidence.
The ALJ considered the evidence of record, including the testimony presented at the
hearing and the medical evidence from McCormack’s treatment providers, and analyzed
McCormack’s ability to understand, remember, or apply information. The ALJ’s finding that
McCormack has a mild limitation in this area is based upon substantial evidence of record.
b. McCormack’s ability to interact with others
McCormack in his brief in support of his motion for summary judgment argues that ALJ
erred by concluding that McCormack has only a moderate limitation in this area. McCormack
explained:
Contrary to the ALJ’s assessment of only a moderate impairment, the
records and Mr. McCormack’s history over time make plain that he is at least
markedly, if not extremely, impaired in this area. The evidence available to the ALJ
makes plain that he has significant difficulties in managing himself in response to
criticism and challenges and that he is extremely argumentative. His diagnoses of
intermittent explosive disorder and his run-ins with the police and his aggressive
interactions within his family are specific examples. Mr. McCormack simply is not
able to function in this area independently, appropriately, effectively, and on a
sustained basis. The evidence of record verifies that he has little or no ability to
cooperate or handle conflicts free of excessive irritability, sensitivity,
argumentativeness, or suspiciousness. This is more than a moderate deficit.
(ECF No. 10 at 14.) The ALJ acknowledged the testimony by McCormack’s mother that
McCormack can be unpleasant and has a difficult time getting along with others; indeed,
McCormack was hospitalized prior to March 2017 on two occasions, became overly aggressive,
kicked a hole in the wall, and threatened to set himself on fire. (ECF No. 6-2 at 33.)
McCormack’s treatment providers and teachers, however, noted that he is cooperative, pleasant,
and did not consistently have deficiencies in eye contact or conversation. (Id.) The ALJ
emphasized that McCormack testified that he got along with coworkers at Snapology, played
video games socially online, and participated in the band at his church. (Id.) The ALJ explained
that McCormack’s impairments are treated conservatively with medication and therapy and that
a review of the entire record shows that his symptoms are “generally well maintained” and
Parrish noted that McCormack is progressing in the management of his anxiety. (ECF No. 6-2 at
36.) Based upon the foregoing, the ALJ found that McCormack had a moderate limitation in this
area. (Id.)
The court finds that the ALJ sufficiently discussed McCormack’s ability to interact with
others and supported the conclusion that he has a moderate limitation in this area with substantial
evidence in the record. McCormack asks this court to reweigh the evidence to reach a conclusion
different than that of the ALJ. This court, however, may not reweigh the evidence. Chandler v.
Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). “The presence of evidence in the record
that supports a contrary conclusion[, however,] does not undermine the [ALJ’s] decision so long
as the record provides substantial support for that decision.” Malloy v. Comm'r of Soc. Sec., 306
F. App'x 761, 764 (3d Cir. 2009). McCormack essentially is seeking that this court reweigh the
evidence. The ALJ’s finding that McCormack has a moderate limitation in this area is based
upon substantial evidence of record.
c. McCormack’s ability to concentrate, persist in task
performance, and maintain pace
With respect to McCormack’s ability to concentrate, persist in task performance, and
maintain pace, McCormack in his brief in support of his motion for summary judgment argued
that the evidence about McCormack’s school experience showed that he has “difficulties in this
domain.” (ECF No. 10 at 15.) McCormack explained:
He had special instruction, and needed assistance beyond the regular
classroom, additional time for work, and perhaps as important, continuous and
significant emotional support. Clearly, Josh is capable of playing several musical
instruments and video games, but he testified to the ALJ that after a period—never
more than a couple of hours—he loses focus and interest even in those things. His
work schedule at the time of hearing was two days per week and no more than four
hours, based on the evaluation of his situation by his vocational counselor and after
several years of preparedness.
(ECF No. 10 at 15.) Contrary to McCormack’s arguments, the ALJ considered McCormack’s
school history; indeed, he explained that McCormack’s most recent grades were at the A or B level
and that the evidence showed that McCormack completed his homework and participated in class.
(ECF No. 6-2 at 34.) The ALJ explained that there was no evidence of record that McCormack
“needed redirection during conversations…[or]…had a prescription for or required attention
deficit medication.” (Id.) McCormack’s “Full Scale IQ” was in the average range. The ALJ
considered McCormack’s mother’s testimony, but weighed against that evidence the mental status
examinations that showed McCormack has “intact thought process…[and] full orientation.” (Id.)
The ALJ emphasized that McCormack plays video games, watches videos on the internet, and
makes music on the computer, which requires concentration. (Id.) Based upon the foregoing
evidence, the ALJ concluded that McCormack had a moderate limitation in this area of
functioning. (Id.)
The court finds that the ALJ sufficiently discussed McCormack’s ability to concentrate,
persist in task performance, and maintain pace and supported the conclusion that McCormack has
a moderate limitation in this area with substantial evidence in the record. McCormack again
requests this court to reweigh the evidence. In other words, McCormack asks this court to find that
McCormack’s school performance and need for assistance during that time period outweighs the
evidence that McCormack participates in activities requiring concentration and that he has
motivation, intact thought process, and full orientation. Based upon the record, the ALJ’s
conclusion that McCormack has a moderate limitation in this area is supported by substantial
evidence of record.
d. McCormack’s ability to adapt and manage himself
McCormack argued that the ALJ erred by concluding that McCormack is moderately
impaired in his ability adapt or manage himself. (ECF No. 10 at 15.) McCormack explained:
The medical evidence submitted supports a finding that the ALJ erred in
failing to find…McCormack markedly to extremely impaired in this area. The ALJ
ignored or misapprehended the significant discussion in the record that explains
that when his anxiety is heightened or he is unable to regulate his emotions, he loses
control [of] his behavior and therefore cannot adapt or manage himself. He has
repeated episodes where his psychologically based symptoms have interrupted his
activities of daily living, as well as his family life.
(ECF No. 10 at 15.)
With respect to McCormack’s ability to adapt and manage himself, the ALJ noted that
McCormack’s mother testified that he handles changes in routine and new situations poorly;
indeed, changes increase McCormack’s anxiety, police have been called, and he has been
hospitalized because of his mismanagement of his anxiety. (ECF No. 6-2 at 34.) The ALJ
explained, however, that McCormack denied suicidal and homicidal ideation to his treatment
providers, McCormack was found to have normal behavior (which indicates an ability to manage
himself), and his treatment providers noted that he had a linear and goal-directed thought
process. (Id.) Based upon the foregoing information, the ALJ found McCormack has a moderate
limitation in this area. (Id.)
Contrary to McCormack’s argument, the ALJ considered the medical evidence in the
record, including the events resulting in McCormack’s hospitalization. The ALJ explained,
however, that McCormack’s impairments are treated conservatively with medication and therapy
and a review of the entire record shows that his symptoms are “generally well maintained” and he
is progressing in the management of his anxiety. (ECF No. 6-2 at 36.) Based upon the foregoing,
the court finds that the ALJ sufficiently discussed McCormack’s ability to adapt and manage
himself and supported the conclusion that McCormack has a moderate limitation in this area with
evidence in the record. McCormack again requests this court to reweigh the evidence. The ALJ’s
conclusion that McCormack has a moderate limitation in this area is supported by substantial
evidence of record.
e. Conclusion with respect to the paragraph B criteria
Based upon the foregoing discussion, the ALJ’s conclusion that McCormack does not
have an extreme impairment in one of the foregoing categories or marked impairments in two of
the foregoing categories is supported by substantial evidence of record. Thus, the court cannot
conclude that McCormack’s impairments meet or medically equal the severity of the
impairments listed in 12.08 or 12.10.
2. Paragraph C criteria
As discussed above, the paragraph C criteria for 12.06 (anxiety and obsessive-compulsive
disorders) is as follows:
C. Your mental disorder in this listing category is “serious and persistent;”
that is, you have a medically documented history of the existence of the
disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a
highly structured setting(s) that is ongoing and that diminishes the
symptoms and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to
changes in your environment or to demands that are not already part of
your daily life (see 12.00G2c).
20 C.F.R. Pt. 404, Subpt. P, App. 1. The regulations provide the following with respect to C(1):
b. The criterion in C1 is satisfied when the evidence shows that you rely, on an
ongoing basis, upon medical treatment, mental health therapy, psychosocial
support(s), or a highly structured setting(s), to diminish the symptoms and signs of
your mental disorder (see 12.00D). We consider that you receive ongoing medical
treatment when the medical evidence establishes that you obtain medical treatment
with a frequency consistent with accepted medical practice for the type of treatment
or evaluation required for your medical condition. We will consider periods of
inconsistent treatment or lack of compliance with treatment that may result from
your mental disorder. If the evidence indicates that the inconsistent treatment or
lack of compliance is a feature of your mental disorder, and it has led to an
exacerbation of your symptoms and signs, we will not use it as evidence to support
a finding that you have not received ongoing medical treatment as required by this
paragraph.
20 C.F.R. Pt. 404, Subpt. P, App. 1. The regulations provide the following with respect to C(2):
c. The criterion in C2 is satisfied when the evidence shows that, despite your
diminished symptoms and signs, you have achieved only marginal adjustment.
“Marginal adjustment” means that your adaptation to the requirements of daily life
is fragile; that is, you have minimal capacity to adapt to changes in your
environment or to demands that are not already part of your daily life. We will
consider that you have achieved only marginal adjustment when the evidence
shows that changes or increased demands have led to exacerbation of your
symptoms and signs and to deterioration in your functioning; for example, you have
become unable to function outside of your home or a more restrictive setting,
without substantial psychosocial supports (see 12.00D). Such deterioration may
have necessitated a significant change in medication or other treatment. Similarly,
because of the nature of your mental disorder, evidence may document episodes of
deterioration that have required you to be hospitalized or absent from work, making
it difficult for you to sustain work activity over time.
Id.
McCormack argues that the ALJ erred by concluding that the paragraph C criteria for
listing 12.06 are not satisfied in this case. According to McCormack, he satisfies the “serious and
persistent” requirement of paragraph C because he has “been under consistent medical
treatment” for his autism since he was 11 years old. (ECF No. 10 at 16.) He argues that he
satisfies C(1) because he relies upon “significant psychosocial supports and mental health
treatment…to achieve the levels where” he can participate in society. (Id.) He argues that he
satisfies C(2) because—as evidence by his outburst on the way to his second day of work at
Snapology—he has achieved only marginal adjustment, i.e., his “adaptation to the requirements
of daily life is fragile.” (ECF No. 10 at 17.)
The ALJ did not specifically address the “serious and persistent” requirement of
paragraph C or the requirements of C(1). The ALJ concluded, however, that McCormack did not
satisfy paragraph C(2) because he has achieved greater than “marginal adjustment.” (ECF No. 6-
2 at 34-35.) The ALJ’s conclusion with respect to C(2) is based upon the evidence that
McCormack: dresses and bathes himself without help; prepares simple meals; plays multiple
instruments; plays video games; goes grocery shopping; mows the lawn; works; participates in
social events, e.g., playing cards and performing in the band at church; attends therapy; plays
music; and takes walks with friends. (Id.)
Based upon the foregoing, the ALJ sufficiently discussed the paragraph C(2) criteria and
supported the conclusion that McCormack has achieved more than “marginal adjustment” with
evidence of record. According to McCormack, the court should give more weight to the acute
incidents resulting in McCormack’s hospitalization and the police being called than to the
evidence of record about McCormack’s capabilities inside and outside his home. The court,
however, cannot reweigh the evidence, and is satisfied that substantial evidence supports the
conclusion of the ALJ that McCormack does not satisfy the paragraph C criteria of listing 12.06.
3. Listing 12.04
McCormack argues that along with listings 12.06, 12.08, and 12.10, the ALJ should have
considered listing 12.04 (depressive, bipolar, and related disorders). (ECF No. 10 at 17-18.) To
meet or equal listing 12.04, a claimant must satisfy the criteria set forth in paragraphs A and B or
the criteria set forth in paragraph A and C. The criteria set forth in paragraphs B and C of listing
12.04 are the same criteria set forth above in listings 12.06, 12.08, and 12.10. The court already
concluded that the ALJ’s conclusions with respect to paragraphs B and C are supported by
substantial evidence of record. Under those circumstances, McCormack’s argument that the ALJ
should have also considered listing 12.04 is moot.
4. Conclusion with respect to Step Three
Substantial evidence of record supports the ALJ’s conclusions that McCormack does not
satisfy the paragraph B criteria of listings 12.06, 12.08, and 12.10 or the paragraph C criteria of
listing 12.06. McCormack’s motion for summary judgment with respect to step three will be
denied on that basis.
B. The ALJ’s RFC properly included consideration of McCormack’s severe
impairments.
With respect to step four,4 the ALJ must assess a claimant’s RFC, which is defined as
“‘that which an individual is still able to do despite the limitations caused by his or her
impairment(s).’” Shearn v. Kikakazi, Civ. A. No. 21-584, 2022 WL 591988, at *9 (M.D. Pa. Jan.
25, 2022) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 131 (3d Cir. 2000)). To
determine the claimant’s RFC, 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.” Id. (citing 20 C.F.R. § 404.1545(a)(2)). The ALJ follows a two-step process:
(1) [I]t must first be determined whether there is an underlying medically
determinable physical or mental impairment(s)—i.e., an impairment(s) that can be
shown by medically acceptable clinical and laboratory diagnostic techniques—
that could reasonably be expected to produce the claimant's pain or other
symptoms.
(2) [O]nce an underlying physical or mental impairment(s) that could reasonably
be expected to produce the claimant’s pain or other symptoms has been shown, the
undersigned must evaluate the intensity, persistence, and limiting effects of the
claimant's symptoms to determine the extent to which they limit the claimant's
ability to do basic work activities.
Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual's Statements, 61 Fed.Reg. 34483, 34485 (July 2, 1996); Grant v. Comm'r of Soc. Sec.,
4 The Third Circuit Court of Appeals has recognized that “[t]here is some ambiguity in the
case law as to whether RFC is assessed at step four or at the end of step three.” Hess v. Comm'r
Soc. Sec., 931 F.3d 198, 202 n.2 (3d Cir. 2019). The court of appeals found it “simpler to
consider the RFC assessment with step four” and, therefore, “treat[ed] the RFC assessment [in
Hess] as part of step four.” Id.
No. CIV.A. 09-6296 SDW, 2010 WL 4810702, at *5 (D.N.J. Nov. 17, 2010). The ALJ’s RFC
assessment “will not be set aside if it is supported by substantial evidence.” Shearn, 2022 WL
591988, at *9 (citing Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002)).
One district court has explained:
It is well settled that the final responsibility for determining a claimant's
residual functional capacity is reserved to the Commissioner, and even “treating
source opinions ... are never entitled to controlling weight or special
significance.” Breen v. Comm'r of Soc. Sec., 504 F. App'x 96, 99 (3d Cir. 2012) (
citing SSR 96–5p, 1996 WL 374183 (July 2, 1996)). As noted above, the residual
functional capacity is defined as the most a claimant can do in a work setting despite
the physical and mental limitations resulting from all of her impairments. 20 C.F.R.
§ 404.1545(a)(1). The ALJ must use all relevant evidence in the record to make the
RFC assessment.
In reviewing the record to make the RFC assessment, the ALJ must take
into account all the medical opinion evidence along with all other relevant evidence
in the record, 20 C.F.R. § 404.1527(b), and must allocate weight to each medical
opinion upon which it relies. Weidman v. Colvin, 164 F. Supp. 3d 650, 662 (M.D.
Pa. 2015). The Commissioner’s regulations define medical opinions as “statements
from acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and prognosis,
what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 416.927(a)(1). Only licensed physicians (medical or
osteopathic doctors), licensed or certified psychologists, licensed optometrists,
licensed podiatrists, and qualified speech-language pathologists are considered
“acceptable medical sources.” See 20 C.F.R. §§ 404.1513(a) & 416.913(a).
Any medical opinion from an acceptable medical source, unless it is
designated a controlling treating medical opinion, must be analyzed according to
factors set forth in 20 C.F.R. § 404.1527(c). These factors include the examining
and treating relationship; the length and frequency of the relationship; the extent
and nature of the relationship; the amount of objective medical evidence supporting
the opinion; consistency with the entire record; specialization of the medical
professional; and other factors that tend to support or contradict an opinion. Id.
Smith v. Comm'r of Soc. Sec., No. CV 19-20682, 2020 WL 7396355, at *8 (D.N.J. Dec. 17, 2020).
Here, the ALJ found the following with respect to McCormack’s RFC:
[McCormack] has the residual functional capacity to perform a full range
of work at all exertional levels but with the following nonexertional limitations:
work is limited to understanding, remembering, and carrying out simple
instructions and performing simple routine tasks such as those akin to work
requirements at the Specific Vocational Preparation (SVP) level of one or two; no
work-related interaction with the public; occasional and superficial interaction with
the coworkers and supervisors; low stress work environment meaning no
production rate pace work but rather goal orientated work; occasional and routine
changes in the work setting with routine changes defined as that which does not
require alteration in work method; and no short or precision deadlines.
(ECF No. 6-2 at 35.) At step one with respect to the RFC, the ALJ found that McCormack’s
medically determinable impairments “could reasonably be expected to cause the alleged
symptoms” complained about by McCormack and his mother. (Id. at 36.) The ALJ explained that
McCormack testified that:
- anxiety prevents him from doing even simple acts of daily living;
- his anxiety will reduce him to laying on the couch and can make him
agitated;
- his anxiety can cause him to become physically aggressive;
- he would be unable to work a full workday because of his anxiety and
depression; and
- his depression causes him to feel hopeless.
(ECF No. 6-2 at 35-36.)
The ALJ explained that McCormack’s mother testified that McCormack’s
- autism and anxiety limit his ability to work because he is unable to manage
his anxiety that arises from environmental changes, social interactions and
demands, and processing information;
- concentration becomes impaired when his anxiety is too high; and
- impairments affect his ability to complete tasks, concentrate, understand,
follow instructions, and get along with others.
(Id.) The ALJ concluded that based upon the medical evidence of record, McCormack’s
“statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record….” (Id. at 36.) The
ALJ recognized that “[t]hroughout the adjudicatory period” McCormack had a history of lashing
out verbally or physically when his anxiety was high; indeed, there was law enforcement contact,
he kicked a hole in the wall of his family home, and he destroyed his mother’s and sister’s cellular
telephones. (Id.)
Despite these incidents, however, the ALJ found that the record showed that McCormack’s
symptoms are “generally well maintained.” (Id.) The ALJ cited the following in support of that
conclusion:
- McCormack denied feelings of depression, anxiety, or suicidal ideation to
treating sources;
- he often presented as pleasant to treating sources;
- McCormack engages in many adult responsibilities and life skill tasks,
which require the mental capabilities requisite for obtaining and
maintaining employment, such as, cooking, mowing the lawn, attending
school, some work, playing video games, and playing multiple instruments;
- treating sources opined that McCormack is high-functioning on the autism
spectrum;
- McCormack scored an 8 on the Patient Health Questionaire-9, which
indicates his function is not impaired;
- McCormack reported having a routine helped his symptoms, e.g., he was
comfortable with his routine at City Connections;
- his impairments were treated conservatively with medication and therapy,
and he showed significant improvement with Ativan;
- McCormack showed progress in therapy, e.g., he worked on his ability to
cope with anxiety and reported more confidence and comfort in talking with
his family, increased positive thinking skills, and conquering some
independent skills; and
- Dr. Vigna, who reviewed McCormack’s medical record, opined that
McCormack is capable of performing simple, routine tasks, in a stable
environment.
(ECF No. 6-2 at 36-38.) The ALJ also gave “little weight” to the opinion of McCormack’s
mother because she reiterated McCoramck’s testimony about his symptoms. (Id. at 38.)
The ALJ recognized that McCormack’s GAF were between 45 and 70. (ECF No. 6-2 at
38.) The ALJ explained, however, that “little weight” was given to the GAFs because each one
“represents a particular clinician’s subjective evaluation at a single point in time.” (Id.) The ALJ
could not determine from the GAFs what kind of limitations or abilities were contemplated by
McCormack’s scores or how they “necessarily relate to…[his] ability to hold a job.” (Id.) The ALJ
found the GAF scores in this case were outweighed by other evidence in the case, which the ALJ
found to be “more informative” with respect to the existence of impairments that may interfere
with McCormack’s ability to work. (Id.)
The ALJ concluded, however, that McCormack’s impairments limit his ability to work.
The ALJ described those limitations as follows:
- understanding, remembering, and carrying out simple instructions and
performing simple routine tasks;
- a low stress work environment;
- no production rate pace work
- goal-oriented work;
- occasional and routine changes (which do not require alteration in work
method) in the work setting;
- no short or precision deadlines;
- no work-related interaction with the public; and
- occasional and superficial interaction with the coworkers and supervisors.
(ECF No. 6-2 at 38.)
McCormack in his brief in support of his motion for summary judgment argues that the
ALJ erred in formulating his RFC because the ALJ did not consider the “critical mental abilities”
set forth in Social Security Administration's Program Operations Manual System (“POMS”)
25020.010. (ECF No. 10 at 19.) The Third Circuit Court of Appeals has explained:
We have characterized the POMS as “ ‘the publicly available operating
instructions for processing Social Security claims.’ The Supreme Court has stated
that ‘[w]hile these administrative interpretations are not products of formal
rulemaking, they nevertheless warrant respect.’ ” Kelley v. Comm’r of Soc. Sec.,
566 F.3d 347, 350 n.7 (3d Cir. 2009) (alteration in original) (citations omitted).
The POMS is especially entitled to respect in the present context, where the issue
is whether the limitation chosen by the ALJ captured the claimant’s capabilities and
conveyed them to the vocational expert, given that the POMS establishes the
generally understood meaning of terms within the social security regulatory
framework.
Hess v. Comm'r Soc. Sec., 931 F.3d 198, 213 (3d Cir. 2019).
POMs 25020.010 provides that a person must have the following mental abilities to
performed unskilled work:
a. remember work-like procedures (locations are not critical).
b. understand and remember very short and simple instructions.
c. carry out very short and simple instructions.
d. maintain attention for extended periods of 2-hour segments (concentration is not
critical).
e. maintain regular attendance and be punctual within customary tolerances. (These
tolerances are usually strict.) Maintaining a schedule is not critical.
f. sustain an ordinary routine without special supervision.
g. work in coordination with or proximity to others without being (unduly) distracted by
them.
h. make simple work-related decisions.
i. complete a normal workday and workweek without interruptions from psychologically
based symptoms and perform at a consistent pace without an unreasonable number and
length of rest periods. (These requirements are usually strict.)
j. ask simple questions or request assistance.
k. accept instructions and respond appropriately to criticism from supervisors.
l. get along with coworkers or peers without (unduly) distracting them or exhibiting
behavioral extremes.
m. respond appropriately to changes in a (routine) work setting.
n. be aware of normal hazards and take appropriate precautions.
DI 25020.010 Mental Limitations.
McCormack’s argument that the ALJ failed to address sufficiently the POMs mental
abilities listed above is belied by the record before this court. The ALJ specifically mentioned the
POMs mental abilities listed above when addressing the paragraph B criteria to which those
mental abilities relate and addressed the evidence of record that corresponded with each of those
mental abilities. For example, the ALJ wrote that the first paragraph B criteria of “understanding,
remembering, or applying information” includes abilities
such as learning and understanding terms, instructions, and procedures,
following oral instructions to carry out a task, describing work activity to someone
else, asking and answering questions and providing explanations, recognizing a
mistake and correcting it, identifying and solving problems, or using one’s
judgment to make work-related decisions.
(ECF No. 6-2 at 33.) The foregoing list of abilities includes the mental abilities listed in paragraphs
a, b, c, h, and j of POMs 25020.010.
The ALJ reasoned that despite McCormack’s mother’s testimony that McCormack needs
reminders to take his medication, the medical records before the ALJ did not evidence any “serious
deficits in long-term memory, short-term memory, insight,…[or] judgment.” (Id.) The ALJ
concluded that based upon McCormack’s every-day activities, which included household chores,
playing video games and multiple instruments and McCormack’s representations to his treating
sources that he did not have difficulty in understanding or remembering, that he had only a mild
limitation in this area. (Id.) Under those circumstances, the ALJ’s consideration of the mental
abilities set forth in POMs 25020.010 a, b, c, h, and j was sufficient and supported by substantial
evidence of record.
The ALJ acknowledged that the consideration of the second criteria in paragraph B, i.e.,
the ability to interact with others, included consideration of
abilities such as cooperating with others, asking for help when needed, handling
conflicts, voicing one’s own point of view, initiating or sustaining conversation,
responding to social cues or requests and criticism, and avoiding excessive
sensitivity or argumentativeness.
(ECF No. 6-2 at 33.) The ALJ discussed the evidence that corresponded with the foregoing list of
abilities. The foregoing list of abilities includes the mental abilities listed in paragraph k of POMs
25020.010, i.e., the ability to accept instruction and respond appropriately to criticism from
supervisors. The ALJ acknowledged that McCormack could be unpleasant, have a difficult time
getting along with others, and had been hospitalized for being overly aggressive, kicking a hole in
the wall of his family home, and destroying his mother’s and sister’s cellular telephones. The ALJ
also considered the medical records, which described McCormack as pleasant, polite, and
cooperative, reports from McCormack’s teachers that he was pleasant and cooperative,
McCormack’s ability to get-along with his coworkers at Snapology, and ability to play video
games online and play instruments in a band. The ALJ acknowledged that McCoramck’s limitation
in these areas was moderate; indeed, the RFC provides that McCormack cannot have “work-related
interaction with the public…[and only] occasional and superficial interaction with the coworkers
and supervisors.” (ECF No. 6-2 at 35.) Based upon the foregoing, the ALJ sufficiently considered
the mental ability in paragraph k of POMs 25020.010 in assessing McCormack’s RFC and
supported the RFC with substantial evidence.
The ALJ acknowledged that the third criteria of paragraph B, i.e., McCormack’s ability to
concentrate, persist in task performance, and maintain pace, included consideration of the
following mental abilities:
initiating and performing a task, working at an appropriate and consistent pace,
completing tasks in a timely manner, ignoring or avoiding distractions while
working, changing activities or work settings without being disruptive, working
close to or with others without interrupting or distracting them, sustaining an
ordinary routine and regular work attendance, and working a full day without
excessive breaks.
(ECF No. 6-2 at 33-34.) The foregoing list of mental abilities includes consideration of paragraphs
d, e, f, g, i, l, m of POMs 25020.010. The ALJ recognized that McCormack’s mother testified that
McCormack had difficulty maintaining concentration and completing tasks. The ALJ also
recognized, however, that the treatment records from the treating sources provided that
McCormack had “intact thought process…[and] full orientation.” (ECF No. 6-2 at 34.) Based upon
the foregoing, the ALJ found that McCormack had a moderate limitation in this area; indeed, the
RFC provides that McCormack work must be limited to “low stress work environment meaning
no production rate pace work but rather goal orientated work[,]…occasional and routine changes
in the work setting[,] with routine changes defined as that which does not require alteration in work
method[,]…and no short or precision deadlines.” Based upon the foregoing, the ALJ sufficiently
addressed paragraphs d, e, f, g, i, l, m of POMs 25020.010 and supported the RFC with substantial
evidence.
The ALJ recognized that the four criteria of paragraph B, adapting or maintaining himself,
included consideration of the following mental abilities:
responding to demands, adapting to changes, managing psychiatric symptoms,
distinguishing between acceptable and unacceptable work performance, setting
realistic goals, making plans independently, maintaining basic hygiene and
appropriate attire, and being aware of normal hazards and taking precautions
against them.
(ECF No. 6-2 at 34.) The foregoing mental abilities include consideration of the mental abilities
set forth in paragraphs i, l, m, and n of POMs 25020.010. The ALJ considered the evidence of
record that corresponds with the foregoing mental abilities. The ALJ acknowledged McCormack’s
mother’s testimony that he handles stress poorly and that unknown situations cause fear and
anxiety for him. The ALJ recognized that the police were called when McCormack handled his
anxiety poorly and he was hospitalized for making threats against himself and others. The record,
however, does not support a conclusion that McCormack had any marked deficiencies in hygiene
or wearing appropriate attire. McCormack’s treating sources reported that he had goal-directed
thought process and normal behavior, which supported the ALJ’s conclusion that McCormack can
manage himself. The ALJ concluded that McCormack has a moderate limitation in this area;
indeed, the RFC provides that McCormack’s work must be limited to, among other things,
understanding, remembering, and carrying out simple instructions and performing simple routine
tasks, a low stress work environment, involving goal-oriented work, occasional and routine
changes in the work setting with routine changes, no short or precision deadlines, and minimal
contact with others. Based upon the foregoing discussion, the ALJ provided a sufficient
explanation of the RFC with respect to paragraphs i, l, m, and n of POMs 25020.010 and substantial
evidence of record supports his conclusions with respect to the RFC.
Because the record reflects that the ALJ sufficiently considered POMs 25020.010,
explained the conclusions with respect to the RFC, and supported the conclusions with substantial
evidence, McCormack’s motion for summary judgment with respect to this issue must be denied.
C. The ALJ properly considered the totality of Edelman’s testimony.
McCormack argues that the ALJ ignored Edelman’s testimony that: “even employers of
SVP 1 or 2 level employees” will not tolerate more than one absence per month; being more than
an hour late for work may constitute an absence; and the employees are expected to be
productive 90% of the work day. (ECF No. 10 at 21.) According to McCormack, the ALJ should
have concluded that McCormack could not satisfy these requirements because: (1) there is no
evidence of record that McCormack could satisfy these requirements; (2) Parrish’s report shows
that McCormack could not satisfy these requirements; and (3) McCormack’s experience at
Snapology shows that McCormack could not satisfy these requirements.
With respect to an ALJ’s reliance upon vocational experts and the use of hypothetical
questions, the Third Circuit Court of Appeals has explained:
“Testimony of vocational experts in disability determination proceedings typically
includes, and often centers upon, one or more hypothetical questions posed by
the ALJ to the vocational expert. The ALJ will normally ask the expert whether,
given certain assumptions about the claimant's physical capability, the claimant can
perform certain types of jobs, and the extent to which such jobs exist in the national
economy. While the ALJ may proffer a variety of assumptions to the expert, the
vocational expert's testimony concerning a claimant's ability to perform alternative
employment may only be considered for purposes of determining disability if the
question accurately portrays the claimant's individual physical and mental
impairments. Thus the expert must have evaluated claimant's particular
impairments as contained in the record.”
Rutherford v. Barnhart, 399 F.3d 546, 553–54 (3d Cir. 2005) (quoting Podedworny v.
Harris, 745 F.2d 210, 218 (3d Cir. 1984)). In other words, “‘a hypothetical question posed to a
vocational expert must reflect all of a claimant's impairments[.]’” Id. (quoting Burns v. Barnhart,
312 F.3d 113, 123 (3d Cir. 2002)). “All” impairments, however, means only those “credibly
established limitations.” Id.
The Third Circuit Court of Appeals has explained:
Our cases have established some guidelines as to when a limitation is
credibly established, and the governing regulations have something to say on that
score as well (see especially Regs. §§ 945, 929(c) and 927). Limitations that are
medically supported and otherwise uncontroverted in the record, but that are not
included in the hypothetical question posed to the expert, preclude reliance on the
expert's response (Burns, 312 F.3d at 123). Relatedly, the ALJ may not substitute
his or her own expertise to refute such record evidence (Plummer, 186 F.3d at 429).
Limitations that are medically supported but are also contradicted by other evidence
in the record may or may not be found credible—the ALJ can choose to credit
portions of the existing evidence but “cannot reject evidence for no reason or for
the wrong reason” (a principle repeated in Mason v. Shalala, 994 F.2d 1058, 1066
(3d Cir.1993); Reg. § 929(c)(4)). Finally, limitations that are asserted by the
claimant but that lack objective medical support may possibly be considered
nonetheless credible. In that respect the ALJ can reject such a limitation if there is
conflicting evidence in the record, but should not reject a claimed symptom that is
related to an impairment and is consistent with the medical record simply because
there is no objective medical evidence to support it (Reg. § 929(c)(3)).
Rutherford, 399 F.3d at 554. Here, McCormack essentially argues that the record shows that he
is incapable—because of his severe limitations—of only having one day absence of work each
month. According to McCormack, that limitation should have been presented to Edelman, and,
because the limitation was not presented to Edelman, the ALJ may not rely upon Edelman’s
testimony that jobs exist in the national economy suited to McCormack.
First, McCormack relies upon Parrish’s report to show that McCormack could not satisfy
the attendance requirements presented by Edelman. As discussed above, in August 2018, Parrish
reported that McCormack’s autism makes it more difficult for him to manage his anxiety. He
struggles when faced with new responsibilities. She explained:
When something new is added, he tends to go through a period of anxiety,
regression and he becomes verbally aggressive, at times physically aggressive,
self-destructive and has a difficult time with being able to cope until the
responsibility is significantly modified in some way and he is provided with a
significant amount of emotional support, or the responsibility is ultimately
removed from his life…Historically, Josh has not been able to actually "complete"
a program or responsibility he has begun due to anxiety (including school
programs, previous job trial he has tried in the past, etc.).
…
Josh presents as a very bright and pleasant capable person who is much
more affected by his disability than what appears on the surface. Josh has much
intent to want to complete the tasks he begins and wants to succeed but remains
hindered by the amount of anxiety he has when he attempts new adult
responsibilities and life skill tasks.
(ECF No. 6-9 at 2.) Parrish explained, however, that McCormack has made progress with
managing his anxiety. (Id.) McCormack also relies upon the testimony by his mother with respect
to his second day of work at Snapology in which he threatened to take his mother’s car on the way
to work.
The ALJ, however, considered the foregoing evidence and found that despite the acute
incidents during which McCormack was unable to cope with his anxiety, police were called, and
hospitalization ensued, “a longitudinal review of the medical evidence indicates
that…McCormack’s symptoms are generally well maintained.” (ECF No. 6-2.) The ALJ directly
quoted Parrish’s report. The ALJ wrote: “A treating psychologist described the claimant as having
intent to complete the task he begins and wants to succeed but was hindered by the amount of
anxiety he has when he attempts new adult responsibilities and life skill tasks.” (ECF No. 6-2 at
36.) The ALJ, however, rejected this opinion because the evidence of record showed that
McCormack was involved in a “normal level of daily activity and interaction[,]” the skills for
which “replicate those necessary for obtaining and maintaining employment.” (Id. at 36.) The ALJ
explained that McCormack’s symptoms were conservatively treated with medication and therapy;
indeed, the treating sources reported McCormack’s progress with his ability to cope with his
anxiety. (Id. at 37.) The ALJ also explained that great weight was given to Dr. Vigna’s opinion
that McCormack was capable of work subject to limitations. (Id. at 37-38.)
With respect to the incident the second day of work at Snapology, there is evidence that
McCormack escalated that day, but there is no evidence of record that he was late for work or
missed work because of that incident. Under those circumstances, a limitation with respect to work
attendance was not credibly established before the ALJ.
Based upon the foregoing discussion, the hypothetical posed to Edelman that did not
include a limitation about work attendance was based upon substantial evidence. The ALJ
sufficiently explained the reasons for the hypothetical presented to the ALJ. It was not error for
the ALJ to rely upon Edelman’s testimony as the vocational expert in this case. McCormack’s
motion for summary judgment will be denied with respect to this issue.
VII. Conclusion
As explained in the foregoing opinion, substantial evidence supported the decision by the
ALJ to deny disability benefits to McCormack. McCormack’s motion for summary judgment
will be denied, the Commissioner’s motion for summary judgment will be granted, and the
decision of the ALJ will be affirmed. An appropriate order and judgment follows.
BY THE COURT,
Dated: June 3, 2022 /s/ JOY FLOWERS CONTI
Joy Flowers Conti
Senior United States District Court Judge