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Stoyer v. Colvin

United States District Court, M.D. Pennsylvania

August 28, 2014

BARBARA STOYER, Plaintiff
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

MEMORANDUM

WILLIAM J. NEALON, District Judge.

On September 30, 2013, Plaintiff, Barbara Stoyer, filed this appeal[2] under 42 U.S.C. § 405 for review of the decision of the Commissioner of Social Security denying her claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 400-403. (Doc. 1). The parties have fully briefed the appeal. For the reasons set forth below, the decision of the Commissioner denying Plaintiff's application for DIB and SSI will be affirmed.

BACKGROUND

Plaintiff protectively filed[3] her application for DIB on September 8, 2010. (Tr. 12).[4] This claim was initially denied by the Bureau of Disability Determination ("BDD")[5] on January 20, 2011. (Tr. 12). On April 1, 2011, Plaintiff filed a written request for a hearing before an administrative law judge. (Tr. 12). A hearing was held on January 18, 2012 before administrative law judge Therese A. Hardiman ("ALJ"), at which Plaintiff and vocational expert, Karen Kane ("VE"), testified. (Tr. 12). On March 28, 2012, the ALJ issued a decision denying Plaintiff's claims because, as will be explained in more detail infra, Plaintiff's impairments did not meet or medically equal any impairment Listing and Plaintiff could perform a full range of work at all exertional levels with several nonexertional limitations. (Tr. 15-20).

On May 2, 2012, Plaintiff filed a request for review with the Appeals Council. (Tr. 7). On August 7, 2013, the Appeals Council concluded that there was no basis upon which to grant Plaintiff's request for review. (Tr. 2-4). Thus, the ALJ's decision stood as the final decision of the Commissioner.

Plaintiff filed the instant complaint on September 30, 2013. (Doc. 1). On December 16, 2013, Defendant filed an Answer and Transcript from the Social Security Administration ("SSA") proceedings. (Docs. 8 and 9). Plaintiff filed the brief in support of her complaint on April 19, 2014.[6] (Doc. 12). Defendant filed a brief in opposition on July 7, 2014.[7] (Doc. 17). Plaintiff filed a reply brief on July 24, 2014. (Doc. 18). The matter is now ripe for review.

Disability insurance benefits are paid to an individual if that individual is disabled[8] and insured, that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the date last insured. It is undisputed that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2015. (Tr. 14).

Plaintiff was born in the United States on August 13, 1962, and at all times relevant to this matter was considered a "younger individual"[9] whose age would not seriously impact her ability to adjust to other work. 20 C.F.R. §§ 404.1563(c); (Tr. 21).

Plaintiff obtained her high school diploma, and can communicate in English. (Tr. 107, 109). Her employment records indicate that she previously worked as a press machine operator for Tyco Electronics from 1998 to 2010. (Tr. 109).

The records of the SSA reveal that Plaintiff had earnings in the years 1981 through 2010. (Tr. 90). Her annual earnings range from a low of seven hundred fifty dollars and fifty-three cents ($750.53) in 1983 to a high of thirty-four thousand three hundred eighty-seven dollars and twenty-three cents ($34, 387.23) in 2000. (Tr. 91). Her total earnings during those twenty-nine (29) years were four hundred seventy-six thousand one hundred forty-three dollars ($476, 143.00). (Tr. 91).

Plaintiff's alleged disability onset date is August 11, 2010. (Tr. 104). The impetus for her claimed disability is a combination of diabetes, arthritis, high cholesterol, hypothyroidism, and stress. (Tr. 108). In a document entitled "Function Report - Adult" filed with the SSA in November of 2010, Plaintiff indicated that she was single and lived with a friend. (Tr. 123-124). She indicated that she had no problems with personal care, prepared her own meals daily, and took care of her cat. (Tr. 123-125). She also noted that she could wash the dishes and laundry. (Tr. 123, 125). She had someone else do her yard work, help her clean, and shovel snow. (Tr. 125). She would shop for groceries in stores once a week for a half hour to one (1) hour at a time. (Tr. 126). She could pay bills, count change, handle a savings account, and use a checkbook. (Tr. 126). She indicated that she would either walk or ride in a car when traveling, but did not drive because she did not have a vehicle. (Tr. 126).

Regarding her concentration and memory, Plaintiff denied having memory problems or needing special reminders to take care of her personal needs and to take her medicine. (Tr. 125). She also stated that she did not need anyone to accompany her when she left her house. (Tr. 127). She could pay attention for twenty (20) to thirty (30) minutes, usually needed people to repeat spoken instructions, and did "ok" with written instructions after reading them "a couple of times to get it right." (Tr. 128).

Socially, Plaintiff would email, text, and call friends. (Tr. 127). She liked to watch sports and listen to music. (Tr. 127). In the function report, when asked to check items which her "illnesses, injuries, or conditions affect, " Plaintiff did not check talking, hearing, completing tasks, understanding, following instructions, and getting along with others. (Tr. 128).

Regarding medications, Plaintiff reported she needed glasses for eyesight, and knee and hand braces to help with the inflammation from her arthritis, all of which were prescribed by a doctor. (Tr. 129). She was also prescribed Alendronate for osteoporosis, Citalopram for anxiety, Glimepiride for diabetes, Levothyroxine for hypothyroidism, and Simvastatin for high cholesterol. (Tr. 135).

At her hearing, Plaintiff alleged that the following combination of physical problems prevented her from being able to work since August of 2010: (1) arthritis in her left hip and lower back; (2) diabetes; (3) stress; (4) hypothyroidism; and (5) high cholesterol. (Tr. 37-52). In terms of physical limitations, she testified that she could go up and down the stairs about five (5) times a day, extend her legs when seated, and reach overhead "somewhat" because it caused her to lose her balance due to pain in her hip. (Tr. 35). She could only stand for about ten (10) to fifteen (15) minutes before needing to sit or walk, and could sit for about a half hour before needing to stand, again due to pain in her hip. (Tr. 36, 40-41). She could not walk more than one (1) block, and used a non-prescribed cane for walking. (Tr. 37). Plaintiff was able to clean her house, and wash her dishes and laundry. (Tr. 34). She could sleep for about eight (8) hours, but had to change positions frequently during the night. (Tr. 36, 42). She also would elevate her left leg about three (3) times a day to relieve the pain. (Tr. 42).

Plaintiff testified that the more she would do physically, the more her blood sugar levels would drop. (Tr. 39). She testified that she was taking her medications as prescribed, and following a diabetic diet. (Tr. 38-39). At the time of her hearing, she was experiencing one (1) diabetic episode a week, during which she would become fatigued, weak, light-headed, and confused and would experience difficulty breathing. (Tr. 38-39, 44-46). These episodes typically happened when her blood sugar level reached one hundred twenty (120) or higher. (Tr. 44, 46). At times she would become incoherent, with an episode that required an emergency room visit in 2009 that occurred while she was working as a press machine operator. (Tr. 45). She would have to eat and take her Glimepiride to alleviate her symptoms, which would take a half an hour. (Tr. 46-47). She testified that she was not allowed to eat while working in the medical department as a press machine operator, but that even when she was transferred to a different position that allowed her to eat and drink at will, she still experienced episodes because of the physical activity and stress involved that worsened her diabetes symptoms. (Tr. 48).

Plaintiff stated that, after she attempted suicide, her doctor indicated that she should stop working because of her inability to handle stressful situations which in turn worsened her diabetes symptoms. (Tr. 49-50). She explained that while at work, she was too stressed about controlling her sugar and being able to eat and drink. (Tr. 50). She quit her job when she was told that she had to go back to her position as a press machine operator. (Tr. 50).

MEDICAL RECORDS

Before the Court addresses the ALJ's decision and the arguments of counsel, Plaintiff's relevant medical records will be reviewed in detail, beginning with records from his alleged disability onset date of August 11, 2010.

On October 15, 2010, Plaintiff was admitted to the Schuylkill Medical Center for a suicide attempt by prescription drug overdose after receiving a letter from her employer suggesting she go on disability. (Tr. 206, 235-236). Her blood work from this admission revealed high blood glucose levels. (Tr. 207). Her prior diagnoses of diabetes, arthritis, hypothyroidism and hyperlipidemia were noted and affirmed. (Tr. 251). She denied taking the medications that had been prescribed to her, including Actos, Lexapro, Crestor and Synthroid. (Tr. 239). Upon psychiatric evaluation, she was diagnosed with major depressive disorder, single episode, with employment as a psychosocial stressor. (Tr. 235, 248). Upon discharge on October 20, 2010, she was prescribed Lexapro, Crestor, Levothyroxine, Celebrex, Celexa, Amaryl, Zocor, and Actos, and her Global Assessment Function ("GAF")[10] score was between thirty-five (35) and forty (40). (Tr. 235, 265-267, 271). She was also referred to intensive psychological therapy. (Tr. 248).

On December 22, 2010, Plaintiff had an appointment with Dr. Chimahosky for a disability evaluation for left hip pain. (Tr. 272). He stated the following:

The patient is an extremely poor historian with multiple unrelated complaints. Her tangential thought process and incessant talking made it difficult to focus on the reason of her seeking disability benefits. She states she was diagnosed with diabetes in September 2009 and this caused her [a] myriad of problems. She was working full time at an electronics manufacturing plant when issues with blood sugar caused her to have administrative conflicts which ultimately led her to quit her job. Then she described diffuse muscle pain as a result of riding horses throughout her life causing left hip and left knee pain. She also mentioned a history of right shoulder bursitis and a suicide attempt on October 15 of this year by intentionally overdosing on her diabetes medicine. When attempting to focus on one problem for which she seeks disability, she mentioned left hip pain.

(Tr. 272). Her physical exam was normal, and Dr. Chimahosky diagnosed her with osteoarthritis in multiple sites and diabetes mellitus type II. (Tr. 273). An x-ray ordered by Dr. Chimahosky and performed on December 22, 2010, showed mild degenerative changes in Plaintiff's left hip and no acute fracture. (Tr. 281). He prescribed Celebrex for the arthritis, and Actos for the diabetes. (Tr. 273-274).

In the medical source statement of Plaintiff's ability to perform work-related physical activities, Dr. Chimahosky opined that she could frequently lift and carry two (2) to three (3) pounds, but only occasionally lift and carry ten (10) pounds. (Tr. 277). Further, Dr. Chimahosky opined that Plaintiff could stand and walk for less than one (1) hour in an eight (8) hour day, but had no limitations for sitting, pushing and pulling. (Tr. 277). Regarding postural activities, Plaintiff could occasionally bend, kneel, stoop, crouch, balance, and climb. (Tr. 278). There were no other physical function or environmental limitations. (Tr. 278).

Plaintiff had an appointment with Psychologist David F. O'Connell on December 30, 2010. (Tr. 286). Dr. O'Connell remarked that Plaintiff's ability to understand, remember, and carry out instructions was affected by the mental impairments. (Tr. 286-288). Dr. O'Connell also opined that in relation to this impairment, Plaintiff would have no restrictions understanding, remembering and carrying out short, simple instructions, would have slight restrictions understanding and remembering detailed instructions, would have moderate restrictions in carrying out detailed instructions, and would have marked restrictions in making judgments on simple work-related decisions. (Tr. 288). Furthermore, Dr. O'Connell opined that Plaintiff would have moderate restrictions in responding appropriately to work pressures in a usual setting, and marked restriction in responding appropriately to changes in a routine work setting. (Tr. 288). Her GAF score at this visit was a thirty-eight (38). (Tr. 294).

On January 7, 2011, Jonathan Rightmeyer, Ph.D. filled out a Psychiatric Review Technique form. (Tr. 296). It is not clear whether Dr. Rightmeyer examined Plaintiff himself. He indicated that he was filling out this form for a residual functional capacity ("RFC") assessment. (Tr. 296). He opined that Plaintiff's impairments did not meet the criteria for Listing 12.04, Affective Disorders, or 12.06, Anxiety-Related Disorders. (Tr. 299). Under the "Rating of Functional Limitations" section that addressed "B" criteria of the Listings, Dr. Rightmeyer opined that for Listings 12.04 and 12.06, Plaintiff had mild restriction of activities of daily living and difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace, and one (1) or two (2) repeated episodes of decompensation, each of extended duration. (Tr. 306). Regarding "C" criteria of Listings 12.04 and 12.06, Dr. Rightmeyer opined that "evidence does not establish the presence of the "C" criteria." (Tr. 307).

Dr. Rightmeyer also completed a "Mental Residual Functional Capacity Assessment" form. (Tr. 309). Dr. Rightmeyer opined that Plaintiff had moderate limitations only in the ability to maintain attention and concentration for extended periods. (Tr. 309). In every other category, Plaintiff was marked as not being significantly limited. (Tr. 309-310). Dr. Rightmeyer disagreed with the opinion rendered by Dr. O'Connell, stating that his report was inconsistent with the totality of evidence in the file, and that the opinions cited in the report were an overestimate of the severity of Plaintiff's functional restrictions and inconsistent with objective medical and non-medical evidence. (Tr. 331). Ultimately, Dr. Rightmeyer determined that, "[Plaintiff] is able to meet the basic mental demands of competitive work on a sustained basis despite the limitations resulting from her impairment." (Tr. 311).

On January 19, 2011, Erin Austin, M.D. completed a "Physical Residual Functional Capacity Assessment" form. (Tr. 312). She opined that Plaintiff could occasionally lift and carry twenty (20) pounds, frequently lift and carry ten (10) pounds, stand and/or walk for about six (6) hours in an eight (8) hour workday, and engage in unlimited pushing and/or pulling. (Tr. 313). She also opined that Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. (Tr. 313-315). Dr. Austin agreed that the medical evidence established a medically determinable impairment of diabetes type II and mild degenerative joint disease. (Tr. 317). Dr. Austin reviewed prior medical evidence and the record, and determined that Plaintiff was partially credible, but that the earlier reports were inconsistent with the totality of evidence in the file, and were an overestimate of the severity of Plaintiff's functional restriction. (Tr. 317-318).

From January to March of 2011, Plaintiff had approximately six (6) appointments with Dr. Martha Murry and her partner, mental health therapist Tammy Munster. (Tr. 328). Her initial intake summary stated that Plaintiff had depression and anxiety stemming from her unstable financial situation and her health problems. (Tr. 337). The therapist reiterated the original diagnosis of Major Depressive Disorder, but classified it not as single episode, but rather recurrent and severe. (Tr. 334). She also diagnosed Plaintiff with anxiety. (Tr. 334). She recommended that Plaintiff continue on her prescribed medicines. (Tr. 334).

Plaintiff had an appointments with Dr. Scalia for a check-up on the following dates: February 14, 2011, March 31, 2011, June 30, 2011, and July 14, 2011. (Tr. 345, 348, 354, 357). At all of these appointments, Plaintiff stated that she had chronic left hip pain that she was treating with Tylenol, and refused an orthopedic appointment. (Tr. 345, 348, 354, 357). She indicated that her anxiety was under good control, was compliant with taking her Citalopram, and denied any suicidal ideations. (Tr. 345, 348, 354, 357). She also refused blood work. (Tr. 346, 349, 355). She reported arthralgias and pain, but denied myalgia and numbness. (Tr. 345, 348, 354, 357). She had decreased range of motion in her left hip, but a normal gait. (Tr. 345-346, 348-349, 354-355, 357-358). Dr. Scalia instructed Plaintiff to continue taking the following medications: Fosamax, Citalopram, Amaryl, Synthroid, and Zocor. (Tr. 346, 351, 355, 358). Eventually, on June 30, 2011, Dr. Scalia switched Plaintiff from Zocor to Simvastatin. (Tr. 349).

At her July 14, 2011 appointment, Dr. Scalia completed a disability form titled "Medical Source Statement of Ability to Do Work-Related Activities (Physical)" for Plaintiff. (Tr. 345, 364). In this form, Dr. Scalia opined that Plaintiff's prognosis was poor due to chronic left hip and low back pain. (Tr. 364). In an eight (8) hour work day, he opined that Plaintiff could sit for up to two (2) hours, stand/walk for one (1) hour, and would need to alternate between sitting and standing every ten (10) minutes to relieve discomfort and pain. (Tr. 364). He stated that Plaintiff was medically required to use crutches and one (1) cane for ambulation. (Tr. 364). Dr. Scalia also indicated that Plaintiff could never lift or carry anything of any weight, could never push or pull using her upper or lower extremities, could never climb ramps, ladders, ropes or scaffolding, and could never bend, stoop, kneel or crouch. (Tr. 364). Plaintiff could only rarely climb stairs or balance. (Tr. 364). Regarding manipulative limitations, Dr. Scalia opined that Plaintiff could occasionally reach in all directions and handle objects, and could frequently use fingering and feeling maneuvers. (Tr. 365). Regarding environmental limitations, he indicated that Plaintiff had to avoid the following: temperature extremes, dust, vibration, humidity/wetness, hazards, and fumes. (Tr. 365). In terms of accommodations, Plaintiff would need unscheduled breaks, walking and reclining breaks, and excessive restroom breaks for fifteen (15) minutes every hour. (Tr. 365). He opined that Plaintiff would likely be absent from work for three (3) or more days per month. (Tr. 365).

On October 21, 2011, Plaintiff had an appointment with Dr. Scalia. (Tr. 339). Plaintiff reported that she had not been taking the medicines prescribed to her, but that she would restart them. (Tr. 339). She indicated that she could keep herself "safe, " and that she did not need another psychiatric evaluation at that time. Tr. 340). She denied anxiety, fatigue, and fever. (Tr. 340). However, a nurse noted that Plaintiff stated that her sugar had been in the five hundreds (500's) and that she had been feeling suicidal. (Tr. 343). Her problem list included the following: contusion of the hip, osteoporosis, hypothyroidism, hypercholesterolemia, diabetes type II, major recurrent depressive disorder, and generalized anxiety disorder. (Tr. 340). She had a normal gait, no edema of her extremities, and appeared healthy. (Tr. 341). Her diagnoses from that appointment included hypercholesterolemia, diabetes type II, hypothyroidism, and generalized anxiety disorder. (Tr. 339). As of that visit, Plaintiff was taking the following medications: Simvastatin; Fosamax; Citalopram; Amaryl; and Synthroid. (Tr. 339).

On November 23, 2011, Plaintiff presented to the emergency room at Penn State Milton Hershey Medical Center for a fainting episode. (Tr. 367, 369). Plaintiff's to scan of her brain and x-ray of her lungs were negative. (Tr. 367). She was instructed to follow up with her primary care physician by the following week, and to return to the emergency room with any worsening symptoms. (Tr. 372). On November 28, 2011, Plaintiff had an appointment with Dr. Scalia. (Tr. 374). Dr. Scalia prescribed Glimepiride in addition to Plaintiff's other medications. (Tr. 374).

STANDARD OF REVIEW

When considering a social security appeal, the court has plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security , 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin. , 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater , 55 F.3d 857, 858 (3d Cir. 1995). However, the court's review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id .; Mason v. Shalala , 994 F.2d 1058, 1064 (3d Cir. 1993); Brown v. Bowen , 845 F.2d 1211, 1213 (3d Cir. 1988). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. § 405(g); Fargnoli v. Massanari , 247 F.3d 34, 38 (3d Cir. 2001) ("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris , 642 F.2d 700, 704 (3d Cir. 1981) ("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Mastro v. Apfel , 270 F.3d 171, 176 (4th Cir. 2001); Keefe v. Shalala , 71 F.3d 1060, 1062 (2d Cir. 1995); Martin v. Sullivan , 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood , 487 U.S. 552, 565 (1988) (quoting Consolidated Edison Co. v. N.L.R.B. , 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security , 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown , 845 F.2d at 1213. In an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission , 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record, " Cotter , 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B. , 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason , 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson , 529 F.3d at 203; Cotter , 642 F.2d at 706-07. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano , 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano , 606 F.2d 403, 407 (3d Cir. 1979).

SEQUENTIAL EVALUATION PROCESS

To receive disability benefits, the plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 432(d)(1)(A). Further,

[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. § 423(d)(2)(A).

The Commissioner uses a five-step process in evaluating disability and claims for disability insurance benefits. See 20 C.F.R. § 404.1520; Poulos , 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity, (2) has an impairment that is severe or a combination of impairments that is severe, (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment, (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id . As part of step four, the Commissioner must determine the claimant's residual functional capacity. Id . If the claimant has the residual functional capacity to do his or her past relevant work, the claimant is not disabled. Id . "The claimant bears the ultimate burden of establishing steps one through four." Poulos , 474 F.3d at 92, citing Ramirez v. Barnhart , 372 F.3d 546, 550 (3d Cir. 2004). "At step five, the burden of proof shifts to the Social Security Administration to show that the claimant is capable of performing other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and residual functional capacity." Id.

Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. The residual functional capacity assessment must include a discussion of the individual's abilities. Id .; 20 C.F.R. §§ 404.1545 and 416.945; Hartranft , 181 F.3d at 359 n.1 ("Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").

ALJ DECISION

Initially, the ALJ concluded that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2015. (Tr. 14). The ALJ then proceeded through each step of the sequential evaluation process and determined that Plaintiff was not disabled. (Tr. 22).

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful work activity from her alleged onset date of August 11, 2010. (Tr. 14).

At step two, the ALJ determined that Plaintiff suffered from the severe[11] combination of impairments of the following: "major depressive disorder (MDD) and anxiety (20 C.F.R. 404.1520(c))." (Tr. 14).

At step three of the sequential evaluation process, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). (Tr. 15).

At step four, the ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels. (Tr. 16-18). Specifically, the ALJ stated the following:

After careful consideration of the entire record, the undersigned finds that [Plantiff] has the residual functional capacity to perform a full range of work at all exertional levels[, ] but with the following nonexertional limitations: [s]he can occasionally climb, balance and stoop. [Plaintiff] can never climb on ladders, kneel, crouch or crawl. [Sh]e must avoid hazards, including heights and moving machinery. [Plaintiff] is limited to simple routine tasks, low stress work as defined as only occasional decision-making, and only occasional changes in the work setting.

(Tr. 16).

At step five of the sequential evaluation process, considering the Plaintiff's age, education, work experience, and RFC, the ALJ determined "there are jobs that exist in significant numbers in the national economy that the [Plaintiff] can perform (20 C.F.R. 404.1569, 404.1569(a), 416.969, and 416.969(a))." (Tr. 20).

Thus, the ALJ concluded that Plaintiff was not under a disability as defined in the Social Security Act at any time between the alleged onset date of August 11, 2010, and the date of the ALJ's decision. (Tr. 21).

DISCUSSION

1. Severe Impairments

Plaintiff contends that the ALJ erroneously concluded that she had no severe impairment other than major depressive disorder and anxiety. (Id. at 3). She asserts that the ALJ did not develop the record enough concerning her high glucose levels resulting from diabetes, and that the ALJ should have asked Plaintiff more questions during the hearing. Plaintiff states:

These lame rationalizations notwithstanding, the record in fact demonstrates that Plaintiff's diabetes mellitus is not merely a "severe" impairment, but a major source of limitation of functioning. It led to episodes of syncope or near syncope. R. 195, 144-147, 190, 367-72. These forced her to stop working.

(Id. at 4).

Defendant disputes this claim, arguing that the ALJ's conclusion that Plaintiff's diabetes was not a severe impairment, either singly or in combination with other impairments, was harmless error. Defendant asserts that Plaintiff has failed to meet his burden of proving that the error was not harmless because she failed to provide any evidence that if the ALJ had found that Plaintiff's diabetes was a severe impairment, she would have been found to be disabled. (Doc. 17, pp. 9-10). In her reply brief, Plaintiff asserts that the ALJ's failure to determine that her diabetes was severe is not a harmless error. (Doc. 18, p. 2).

"The step-two inquiry is a de minimis screening device to dispose of groundless claims." Beasich v. Comm'r Soc. Sec. , 66 Fed.Appx. 419, 428, 2003 WL 21299604, *8 (3d Cir. 2003). This portion of the sequential analysis places a burden on the claimant to show that his or her impairment is severe. 20 C.F.R. § 404.1520(c) (2000). An impairment is "severe" when it is "of magnitude sufficient to limit significantly the individual's [ability] to do basic work activities.'" Santise v. Schweiker , 676 F.2d 925, 927 (3d Cir. 1982). cert. dismissed, 461 U.S. 911 , 77 L.Ed.2d 280, (quoting 20 C.F.R. § 404.1520(c)). A non-severe impairment is one that does not significantly limit or has a minimal effect on a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). These basic work activities include: "(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers and usual work situations; and (6) dealing with changes in a routine work setting." 20 C.F.R. § 404.1521(b). "When assessing the severity of whatever impairments an individual may have, the adjudicator must assess the impact of the combination of those impairments on the person's ability to function, rather than assess separately the contribution of each impairment to the restriction of his or her activity as if each impairment existed alone." Social Security Ruling 85-28, 1985 WL 56856, *3 (1985).

Additionally, the Third Circuit Court of Appeals has determined that the Commissioner's determination to deny an applicant's request for benefits at step two (2) should be reviewed with close scrutiny, and the ALJ's decision must be upheld if supported by substantial evidence on the record as a whole. See Williams v. Sullivan , 970 F.2d 1178, 1182 (3d Cir. 1992) ("Neither the district court nor this court is empowered to weigh the evidence or substitute its conclusions for those of the fact-finder."); McCrea v. Comm'r of Soc. Sec. , 370 F.3d 357, 360-361 (3d Cir. 2004); DeShields v. Barnhart, 2003 U.S. Dist. LEXIS 24755, *37-41 (E.D. Pa. Dec. 8, 2003) (holding that substantial evidence supports the ALJ's decision that the plaintiff's multiple impairments, including diabetes, were not severe because the "record [was] devoid of limitations resulting from plaintiff's "non-severe" impairments, even when considered in combination").

At the hearing, the ALJ and counsel asked Plaintiff several questions regarding her diabetes. (Tr. 37-39). She stated that in order to control her sugar levels, she had to eat at least every two (2) hours. (Tr. 40). She described two (2) separate episodes in which she experienced a "sugar drop." (Tr. 33, 44-45). One occurred while she was at work as a press machine operator in March of 2010. (Tr. 44-45). The second occurred in November of 2011. (Tr. 33). In both episodes, Plaintiff convulsed and become incoherent. (Tr. 33, 45). She stated that she experienced diabetic episodes about one (1) time a week that were triggered by physical activity and stress, and that caused her to feel weak, light-headed, confused, and fatigued. (Tr. 46-47, 50). An episode would last about a half an hour until her glucose medicine took effect. (Tr. 47). She explained that her physician wanted her to have more blood work and possibly switch her medication, but she was unable to do so because she was uninsured. (Tr. 39).

Under the step two (2) analysis, the ALJ determined that Plaintiff's Major Depressive Disorder and anxiety were severe, and presumably that the remaining impairments alleged were non-severe, stating the following:

The record showed that [Plaintiff] has been diagnosed with diabetes mellitus - Type II, near syncope, arthritis, hypercholesterol, hypothyroid[ism] and osteoporosis. [Plaintiff] takes medications for her diabetes, thyroid, cholesterol and osteoporosis. [Plaintiff] had one emergency room visit for a near syncope spell since her alleged onset date (Exhibit 17F). Actual objective examination findings are all reported to be within normal range, including those at Geisinger/Dr. Scalia through November 2011, except there is tenderness and reduced range of motion of the hip noted from February 2011 to July 2011. By October 2011[, ] the physical findings are normal. [Plaintiff] did not complain of uncontrolled blood sugars or hypoglycemic events. She did not have recent lab reports of blood work to check her HgA1C[, ] which would show if her blood sugars were uncontrolled[, ] and she failed to submit any blood sugar diaries to establish the swing in her blood sugars (Exhibits 15F and 18F)... Th evidence of record failed to show that any of these conditions actually cause [Plaintiff] any functional limitations to her ability to perform work-related functions[, ] and that actually meets the durational requirements of this program. The undersigned has reviewed and considered all severe and nonsevere impairments when formulating the following [RFC] and, where appropriate, has included limitations to address the non[-]severe impairments and [Plaintiff's] subjective complaints.

(Tr. 14-15). In reviewing the evidence, it is determined that there is substantial evidence to support the ALJ's decision that Plaintiff's diabetes was not severe due to the lack of evidence that her diabetes was more than a slight abnormality that affected her ability to perform basic functions. Plaintiff refused blood work on several occasions, and did not complain of experiencing diabetic symptoms at the majority of her doctor appointments. (Tr. 207, 312, 340-341, 343, 345-346, 348-349, 354-355, 357-358). She also was able to perform basic functions on a daily basis, including attending to her personal care needs, preparing meals, taking care of her cat, cleaning the dishes and laundry, shopping for groceries, walking, sitting, comprehending and remembering instructions, getting along well with others, talking, hearing, seeing, and completing tasks. (Tr. 123-126, 128). Furthermore, the ALJ did not outright reject Plaintiff's application for benefits at step two (2), and considered Plaintiff's diabetic symptoms when determining her RFC. (Tr. 14, 17-19). Therefore, substantial evidence supports the ALJ's decision that Plaintiff's diabetes was not severe.

2. Impairment Listing Rationale

Plaintiff contends that the ALJ's finding that Plaintiff did not meet or medically equal the impairment Listing is not adequately explained or supported by substantial evidence. (Doc. 12, p. 4). In referring to the mental impairment Listing, Plaintiff states that the ALJ's discussion of the first three (3) "B" criteria is "patently inadequate" and does not reference the record. (Id.). Plaintiff also states that the ALJ's step three (3) analysis is flawed because it fails to address Plaintiff's physical impairments. (Id. at 5). Plaintiff states that "[e]ven if no physical impairment is itself of listings-level or near listing-level severity, they further compromise Plaintiff's functioning and are relevant to the question of whether all of Plaintiff's impairments in combination are equal to a listed impairment." (Id.).

Defendant asserts that Plaintiff's argument is flawed because it does not cite to evidence in support of her contention that she has more than moderate limitations in the "B" criteria for mental impairments Listings. (Doc. 17, p. 10). In her reply brief, Plaintiff responds by arguing that the record contains "a great deal of evidence of more than moderate limitations." (Doc. 18, p. 2).

Furthermore, Plaintiff asserts that Defendant has ignored her argument that challenges the ALJ's "failure to consider physical impairment in combination with mental impairment." (Id. at 3).

When evidence documents a severe medically determinable mental health impairment, and the administrative law judge so found at step two (2) of the sequential evaluation process, as in the present case, the ALJ must comply with the evaluation technique outlined in 20 C.F.R. § 416.920a ("Evaluation of mental impairments"). The ALJ found that Plaintiff has severe Major Depressive Disorder and anxiety. Section 416.920a states in pertinent part as follows:

(a) General... when we evaluate the severity of mental impairments for adults... we must follow a special technique... We describe this special technique in paragraph (b) through (e) of this section...
(b) Use of technique...
(2) We must... rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c) of this section and record our findings as set out in paragraph (e) of this section.
(c) Rating the degree of functional limitation...
(3) We have identified four broad functional areas in which we will rate the degree of your functional limitation: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation...
(4) When we rate the degree of limitation in the first three functional areas... we use the following five-point scale. None, mild, moderate, marked, and extreme....
(d) Use of the technique to evaluate mental impairments...
(3) If we find that you have a severe impairment(s) that neither meets nor is equivalent in severity to any listing, we will then assess your residual functional capacity.
(e) Documenting application of technique...
(4) At the administrative law judge hearing and Appeals Council level, the written decision must incorporate the pertinent findings and conclusions based on the technique... The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section.

20 C.F.R. § 416.920a (emphasis added). At step four (4) of the sequential evaluation process, a more detailed assessment of the broad mental functional categories found in paragraph (c)(3) is conducted. An ALJ's failure to comply with section 416.920a makes the decision at step four (4) defective. SSR 96-8p ("The RFC assessment must first identify the individual functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. 404.1545 and 416.945.").[12]

In the present case, the ALJ determined that Plaintiff's Major Depressive Disorder and anxiety did not meet criteria "B" of Listings 12.04 or 12.06, stating the following:

In activities of daily living, [Plaintiff] has mild restriction. [Plaintiff] is able to live on her own, care for her own personal needs, and perform light household chores.
In social functioning, [Plaintiff] has mild difficulties. [Plaintiff] has a good relationship with her family and friends[, ] and she was socially appropriate with her treating and examining medical sources.
With regard to concentration, persistence, or pace, [Plaintiff] has moderate difficulties. [Plaintiff] has mental impairments which by their nature are likely to interfere with an individual's ability to concentrate.
As for episodes of decompensation, [Plaintiff] has experienced one to two episodes of decompensation, each of extended duration. [Plaintiff] was hospitalized in October 2010 for about six days (Exhibit 3F).

(Tr. 15). Thus, the ALJ complied with Section 416.920a. In evaluating the degree of functional limitations Plaintiff's Major Depressive Disorder and anxiety caused, the ALJ identified the specific degree of limitations in each area, i.e., none, mild, moderate, marked, and extreme. (Tr. 15). The ALJ then appropriately carried out a more detailed analysis of these categories under step four (4) of the evaluation. (Tr. 17, 19). Moreover, a review of the objective medical evidence supports the ALJ's decision that the "B" criteria were not met because Plaintiff stated her anxiety was under control with Citalopram, and her examinations with Dr. O'Connell and Dr. Rightmeyer revealed that Plaintiff retained the capacity to perform simple tasks, had no problems socially speaking, and retained the ability to shop, cook, clean, and take care of her personal care needs and her home. (Tr. 38-39, 273, 294-295, 311, 345, 348). Therefore, there is substantial evidence to support the ALJ's determination that Plaintiff's mental health impairments did not meet the requisite Listings because her symptoms did not meet the "B" criteria.

3. RFC Rationale

Plaintiff contends that the ALJ's RFC finding is not adequately explained and is not supported by substantial evidence because the ALJ failed "to identify satisfactory evidence affirmatively supporting her findings." (Doc. 12, p. 5). She argues that the evidence relied on by the ALJ involved state agency consultant opinions, and, therefore, was not evidence the ALJ could permissibly use to support her RFC determination. (Id. at 6-7).

Furthermore, Plaintiff argues that not only did the ALJ fail to support her findings with evidence of the record, but she also failed to properly assess and reject the medical evidence and opinions relating to both her physical and mental impairments. (Id. at 7-14). Regarding her physical impairments, Plaintiff asserts that the ALJ failed to properly reject the medical opinions of her treating physician, Dr. Robert Scalia, and Dr. Chimahosky because the ALJ's reasoning that these opinions were not supported by the medical record was inadequate and inaccurate. (Id. at 7-8).

Regarding her mental impairments, Plaintiff argues that the ALJ erred in relying solely on Dr. Rightmeyer's opinion because he was not her treating physician, and his opinion was thus entitled to less weight. (Doc. 12, pp. 6-7). Plaintiff also asserts that the ALJ failed to properly reject the opinions of Dr. O'Connell and Dr. Martha Murry. (Id. at 9-11, 13). Furthermore, she asserts that the ALJ erred in not taking her Global Assessment of Functioning ("GAF") score into account when determining her RFC because "GAF scores are expressions of medical opinion which need to be addressed." (Id. at 12). She argues that the ALJ's rejection of the GAF scores provided by Dr. O'Connell and Dr. Murry was inaccurate because they were supported by evidence in the record, and because the ALJ was attempting to "play doctor" in rejecting them. (Id. at 13-14).

Defendant disputes these claims on the following grounds: (1) the ALJ's assessment and rejection of the opinions of Dr. Scalia, Dr. Chimahosky, Dr. O'Connell and Dr. Murry based on inconsistency and lack of support from the record as a whole was adequate and supported by substantial evidence; and (2) the GAF score is not dispositive in a disability determination, and exclusion of the GAF score in the discussion is harmless error. (Doc. 17, pp. 12-14, 21-22).

In her reply brief, Plaintiff re-asserts that the rationale provided by the ALJ to give great weight only to the state agency physician was a conclusory statement, not an explanation. (Doc. 18, p. 4). Plaintiff also re-asserts her original argument that the ALJ failed to appropriately address her GAF scores. (Id. at 5).

Concerning Plaintiff's physical impairments, the ALJ reviewed the medical records provided by Plaintiff one physician at a time. (Tr. 16-17). The ALJ noted that Dr. Scalia's records indicated that Plaintiff had refused orthopedic referrals, reported that her anxiety was under control with Citalopram, denied visual changes, walked with a normal gait, denied numbness, and was treated with Fosamax for osteoporosis in her left hip that caused tenderness and decreased range of motion. (Tr. 16). He noted Dr. Chimahosky's records that indicated that Plaintiff walked with a normal gait, and had a full range of motion of her back and extremities. (Tr. 16).

He referred to Dr. O'Connell's treatment notes that indicated that Plaintiff had moderate depression and anxiety, but that her memory was intact, and she had no difficulties with activities of daily living, no problems functioning socially, and no attentional problems. (Tr. 16-17). The ALJ also discussed Dr. O'Connell's opinion that Plaintiff had moderate restrictions regarding detailed instructions and responding appropriately to work pressure, and marked restrictions in making judgments regarding simple work decisions and responding appropriately to changes in routine work settings. (Tr. 17). The ALJ then noted Dr. Murry's treatment records, which noted that Plaintiff denied suicidal ideation, complained of insomnia, had an exaggerated startle response, and that her GAF was fifty (50), which "indicate[d] serious symptoms or any serious impairment in social, occupational, or school functioning." (Tr. 17).

Ultimately, the ALJ stated:

As for the opinion evidence, the undersigned considered Dr. Chimahosky and Dr. Scalia sources opinions and gives them little weight as they are clearly not well[-] supported by their objective physical examination findings nor the record as a whole (Exhibits 4F and 16F).
The undersigned considered Dr. O'Connell's opinion and gives little weight to his marked limitations in the medical source statement because clearly the opinion is not well[-]supported by his objective mental status examination findings nor the record as whole[, ] and there is no explanation in opinion setting forth any signs or laboratory findings to support each of the marked limitations (Exhibit 8F).

(Tr. 19-20). The ALJ also gave little weight to Ms. Muster's opinion. (Tr. 20). Because Ms. Munster is a therapist in practice with Dr. Murry, this Court will presume that the ALJ also accorded little weight to Dr. Murry's opinion. Instead, the ALJ gave great weight to the state agency opinions because they were "well[-]supported by the objective medical evidence. (Exhibits 9F-11F and 13F)." (Tr. 20).

In turning to these exhibits, it is evident that the ALJ relied on the opinions of Dr. Rightmeyer and Dr. Austin, both of whom were consultative physicians for the SSA that filled out residual function forms to be utilized in deciding Plaintiff's claim. (Tr. 296-318). The preference for the treating physician's opinion has been recognized by the Third Circuit Court of Appeals and by all of the federal circuits. See, e.g., Morales v. Apfel , 225 F.3d 310, 316-18 (3d Cir. 2000). This is especially true when the treating physician's opinion "reflects expert judgment based on a continuing observation of the patient's condition over a prolonged time." Morales , 225 F.3d at 317; Plummer v. Apfel , 186 F.3d 422, 429 (3d Cir. 1999); see also 20 CFR § 416.927(d)(2)(i)(1999) ("Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion.").

In Morris v. Barnhart, the Third Circuit Court of Appeals held that because the plaintiff's treating physician had only seen the plaintiff on three (3) or four (4) occasions over a two (2) to three (3) month period, the continuing treatment element was not present, and the ALJ was not obligated to give the physician's opinion any presumption of controlling weight. 78 F.Appx. 820, 823 (3d Cir. 2003). In this case, all of Plaintiff's treating physicians, namely Dr. Scalia, Dr. O'Connell, Dr. Cimahosky and Dr. Murry had limited interactions with Plaintiff over a short period of time. (Tr. 272, 286, 328, 345, 348, 354, 357). Therefore, in accordance with Morris, the ALJ had no obligation to give these physicians' opinion the presumption of controlling weight.

Furthermore, the ALJ properly afforded great weight to the state agency physicians, namely Dr. Rightmeyer and Dr. Austin, because their opinions were consistent with and supported by the objective medical evidence. (Tr. 20). When the treating physician's opinion conflicts with a non-treating, non-examining physician's opinion, the ALJ may choose whom to credit in his or her analysis, but "cannot reject evidence for no reason or for the wrong reason." Morales , 225 F.3d at 316-18. In choosing to reject the evaluation of a treating physician, an ALJ may not make speculative inferences from medical reports and may reject the treating physician's opinions outright only on the basis of contradictory medical evidence. Id . An ALJ may not reject a written medical opinion of a treating physician based on his or her own credibility judgments, speculation or lay opinion. Morales , 225 F.3d at 316-18. An ALJ may not disregard the medical opinion of a treating physician based solely on his or her own "amorphous impressions, gleaned from the record and from his evaluation of the [claimant]'s credibility." Id . As one court has stated, "Judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor" because "lay intuitions about medical phenomena are often wrong." Schmidt v. Sullivan , 914 F.2d 117, 118 (7th Cir 1990).

In this case, in rejecting the opinions of the treating physicians, including Dr. Scalia, Dr. Cimahosky, Dr. O'Connell, and Dr. Murry, the ALJ reasoned that great weight had instead been given to the opinions of the state agency physicians, namely Dr. Rightmeyer and Dr. Austin, because these opinions were consistent with and supported by the record. Dr. Rightmeyer's opinion stated that Plaintiff was cooperative with normal affect, and no apparent anxiety, depression or agitation. (Tr. 273). Her thought processes were normal, with no perseverative or tangenital thinking and no flight of ideas. (Tr. 273). Dr. Austin's treatment notes state that Plaintiff had almost no functional limitations because she was noted to have only mild degenerative changes in her left hip for which Plaintiff refused further treatment and that did not affect her range of motion, strength, muscle tone, stability, or mobility, and because her diabetes was noted to be stable with medication and there was no evidence of organ damage or diabetic retinopathy. (Tr. 317). Furthermore, Dr. Austin noted that Plaintiff stated she was able to participate in daily activities such as "caring for personal needs and performing routine household activities." (Tr. 317).

In reviewing the record, it is determined that the treatment notes provided by both state agency physicians were supported by the record as a whole. Plaintiff stated at several appointments that her anxiety and depression were under control with the Citalopram, and did not complain of symptoms other than pain in her left hip. (Tr. 272, 340-341, 345-346, 348-349, 354-355, 357-358). Dr. Scalia opined that Plaintiff walked with normal gait, and that she had refused orthopedic referrals. (Tr. 341, 346, 349, 355, 358). Dr. Cimahosky's treatment notes stated, "No significant findings on clinical examination, " and that Plaintiff had normal gait, intact strength, no instability, normal muscle tone, no tenderness, full range of motion with some pain with straight leg raising to seventy-five (75) degrees, and good mobility in all extremities. (Tr. 273). Similarly, the treatment notes from Plaintiff's visits with Dr. O'Connell and Dr. Murry present medical evidence in alignment with the opinions provided by the state agency physicians. (Tr. 294-295, 326-338). Therefore, it is determined that the there is substantial evidence to support the ALJ's decision to give great weight to the opinions of the state agency physicians because they were consistent with and supported by the record.

Additionally, this Court agrees with the ALJ's assessment of Plaintiff's GAF in determining her RFC. Recently, the American Psychiatric Association no longer uses the GAF score for assessment of mental disorders due to concerns about subjectivity in application and a lack of clarity in the symptoms to be analyzed. Solock v. Astrue, 2014 U.S. Dist. LEXIS 81809, *14-16 (M.D. Pa. June 17, 2014) (citing Ladd v. Astrue, 2014 U.S. Dist. LEXIS 67781 (E.D. Pa. May 16, 2014)); See Am. Psychiatric Assoc., Diagnostic and Statistic Manual of Mental Disorders 5d, 16 (2013). As a result, the SSA permits ALJs to use the GAF score as opinion evidence when analyzing disability claims involving mental disorders; however, a "GAF score is never dispositive of impairment severity, " and the ALJ, therefore, should not "give controlling weight to a GAF from a treating source unless it is well[-]supported and not inconsistent with other evidence." SSA AM-13066 at 5 (July 13, 2013); see also Gilroy v. Astrue , 351 F.Appx. 714, 715 (3d Cir. 2009).

In this case, the ALJ addresses the GAF scores provided by Dr. O'Connell and Dr. Murry, stating the following:

The undersigned gives the [GAF] scores under 50 assessed by Dr. O'Connell and [Dr. Murry] little weight as they are inconsistent with and not well[-]supported by the objective examination findings of the doctor which evidences no adverse mental status examination findings nor sets forth any psychological limitations to function. GAF scores are the one time personalized snap shot of the provider. They are not evidence of longitudinal function and are not capable of empirical verification, such as with IQ scores. GAF scores often include consideration of matters outside of one's psychological functioning. One would expect someone with a significant limitation[] as contemplated by this GAF score to have observable functional limitations that would be noted in the objective findings, no such findings are found in the mental status examination findings. Likewise, one would anticipate someone with such functional limitation would require more intensive treatment or a referral for the same, no such evidence can be found in this record. Thus, little weight is afforded these GAF scores as they are clearly not well supported in the evidence of record.

(Tr. 20). It is determined that the ALJ was correct that the GAF scores and resulting limitations described by Dr. O'Connell and Dr. Murry were inconsistent with and not supported by objective medical evidence. At her December 30, 2010 appointment, Dr. O'Connell gave Plaintiff a GAF score of thirty-eight (38). (Tr. 294). However, Dr. O'Connell's examination revealed Plaintiff was cooperative, had an appropriate affect, had a grossly intact recent, immediate and remote memory, had sound judgment and clear sensorium, had intact comprehension abilities, was able to do simple calculations, had sound impulse control, and was able to perform various daily living activities without a problem. (Tr. 294-295). She also had no problems conducting herself appropriately in social situations, and had no attentional problems, as she could listen to the radio, read the newspaper, cook a light meal, and watch television. (Tr. 295). Likewise, Plaintiff's appointment on February 12, 2011 with Dr. Murry's therapist, Ms. Munster, lacked objective medical evidence to support the resulting GAF score of fifty (50). (Tr. 326-338). Therefore, it is determined that the ALJ was correct that the GAF scores provided by Dr. O'Connell and Dr. Murry were inconsistent with and not well-supported by the objective medical findings.

Furthermore, while Plaintiff argues that the ALJ erred in her GAF assessment because she failed to mention the GAF scores from Plaintiff's hospitalization at Schuylkill Medical Center in September of 2010, it has been held that an ALJ's failure to include a GAF score in his or her discussion is harmless error where the claimant has not explained how the GAF score would have itself satisfied the requirements for disability in light of potentially contradictory evidence. Rios v. Astrue, 2010 WL 3860458, *8 (E.D. Pa. 2010) (citing Purnell v. Astrue , 662 F.Supp.2d 402, 415 (E.D. Pa. 2009)). In the case at hand, Plaintiff has failed to explain how her GAF scores would have satisfied the disability requirements. Therefore, it was harmless error for the ALJ to neglect to mention the GAF scores from her hospitalization in September of 2010, especially in light of the recent changes to the Fifth Edition of the Diagnostic and Statistic Manual of Mental Disorders regarding GAF scores as discussed.

As such, it is held that the ALJ's RFC analysis, including the weight given to the state agency physicians and the assessment of Plaintiff's GAF scores, is supported by substantial evidence.

4. Plaintiff's Credibility

Plaintiff also challenges the ALJ's credibility determination because "[l]ack of substantiation, by itself, is not an adequate reason for rejecting a claimant's testimony regarding symptoms and limitations." (Doc. 12, p. 15). She argues that her receipt of unemployment compensation ("UC") benefits does not preclude her from obtaining DIB. (Id. at 15-16). She also contends that her ability to perform daily activities, including shopping, cleaning, walking, and lifting, does not equate to the ability to perform a full range of work. (Id. at 16).

Defendant argues that the ALJ's credibility determination is supported by substantial evidence because Plaintiff's partial credibility was consistent with the record. (Doc. 17, pp. 17-21). Defendant argues the evidence regarding Plaintiff's uncontrolled diabetes claim was lacking, thus negating Plaintiff's credibility regarding her description of her diabetes symptoms. (Id. at 19). Defendant also asserts that Plaintiff's ability to support her smoking habit of one (1) pack a day, but alleged inability to afford her medication also undermined her credibility. (Doc. 17, p. 19). Defendant further contends that "it was not improper for the ALJ to consider Plaintiff's receipt of [UC] benefits in assessing her credibility" because to collect unemployment, she had to certify that she was "ready, willing and able" to work, and in doing so, she certified that she was capable of working. (Id. at 20); See 43 Pa. C. S. A. § 801(d)(1) (1998).

In her reply brief, Plaintiff challenges Defendant's "suggestion that an ALJ's credibility determination is virtually unreviewable on appeal." (Doc. 18, p. 5). Plaintiff also asserts that Defendant's reasoning that she was only partially credible due to her smoking habits was inappropriate because the ALJ did not rely on this fact when determining her credibility. (Id. at 6). Furthermore, she argues that even if her credibility were undermined due to her smoking habits, this would have been "unreasonable and unfair." (Id. at 7).

"[A]n ALJ's findings based on the credibility of the applicant are to be accorded great weight and deference, particularly since an ALJ is charged with the duty of observing a witness's demeanor and credibility." Frazier v. Apfel , 2000 WL 288246 (E.D. Pa. 2000) (citing Walters v. Commissioner of Social Sec. , 127 F.3d 525, 531 (6th Cir. 1997)); see also Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 801 (10th Cir. 1991) ("We defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility."). The Social Security Regulations provide a framework under which a claimant's subjective complaints are to be considered. 20 C.F.R. § 404.1529. First, symptoms, such as pain, shortness of breath, fatigue, etcetera, will only be considered to affect a claimant's ability to perform work activities if such symptoms result from an underlying physical or mental impairment that has been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R. § 404.1529(b). Once a medically determinable impairment that results in such symptoms is found to exist, the Commissioner must evaluate the intensity and persistence of such symptoms to determine their impact on the claimant's ability to work. 20 C.F.R. § 404.1529(b). In so doing, the medical evidence of record is considered along with the claimant's statements. 20 C.F.R. § 404.1529(b). Social Security Ruling 96-7p gives the following instructions in evaluating the credibility of the claimant's statements:

In general, the extent to which an individual's statements about symptoms can be relied upon as probative evidence in determining whether the individual is disabled depends on the credibility of the statements. In basic terms, the credibility of an individual's statements about pain or other symptoms and their functional effects is the degree to which the statements can be believed and accepted as true. When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements.

SSR 96-7p.

After review, it is determined that the ALJ considered Plaintiff's subjective complaints, including becoming light-headed, weak, and incoherent as a result of alleged blood sugar drops. (Tr. 18). The ALJ also noted Plaintiff's testimony that she could do household chores, use the computer, shop and attend appointments alone, read, go up and down the stairs five (5) times a day, extend her legs, carry a gallon of milk, and reach overhead. (Tr. 17-18). The ALJ commented that Plaintiff also stated she was limited in her ability to walk more than one (1) city block, and had to elevate her leg due to the pain in her left hip. (Tr. 17-18).

Additionally, the ALJ considered the medical evidence of record. The ALJ determined that the medical evidence does not substantiate "the lack of control of her diabetes alleged by [Plaintiff]" because only one treatment note indicated uncontrolled diabetes, and this note also stated that Plaintiff was not taking her medication. (Tr. 18). Further, Plaintiff did not submit any evidence regarding the alleged drastic swings in her sugar levels and the resulting symptoms. (Tr. 18). Her physical examinations were normal except for left hip tenderness, and Plaintiff admitted that the cane she brought to her hearing was not prescribed by a physician. (Tr. 19). Regarding her mental health, the ALJ discussed that the record indicates that Plaintiff herself testified that her anxiety was under control until she stopped taking her medication in October of 2011. (Tr. 19). Additionally, the ALJ found that Plaintiff's receipt of UC benefits was an indication that she was able to work, thereby further undermining her credibility. (Tr. 19).

Ultimately, based on review of Plaintiff's subjective complaints and the medical evidence of record, the ALJ concluded that Plaintiff was only partially credible because her statements concerning the intensity, duration and limiting effects of her symptoms were not entirely credible due to the reasons discussed. (Tr. 18-19). The ALJ determined that Plaintiff is capable of performing a full range of work at all exertional levels, with the following nonexertional limitations: "[s]he can occasionally climb, balance and stoop. [Plaintiff] can never climb on ladders, kneel, crouch or crawl. [Sh]e must avoid hazards, including heights and moving machinery. [Plaintiff] is limited to simple routine tasks, low stress work as defined as only occasional decision-making, and only occasional changes in the work setting." (Tr. 16).

By evaluating the extent to which Plaintiff's subjective complaints were reasonably consistent with the objective medical evidence, the credibility analysis was proper. See Blue Ridge Erectors v. Occupational Safety & Health Review Com'n, 261 Fed.Appx. 408, 410 (3d Cir. 2008) (quoting St. George Warehouse, Inc. v. NLRB , 420 F.3d 294, 298 (3d Cir. 2005) ("[T]he ALJ's credibility determinations should not be reversed unless inherently incredible or patently unreasonable.")). Additionally, "it was entirely proper for the ALJ to consider that [Plaintiff's] receipt of unemployment benefits was inconsistent with a claim of disability during the same period." Myers v. Barnhart , 57 Fed.Appx. 990, 997 (3d Cir. 2003). Therefore, the credibility analysis was proper, and this assessment is supported by substantial evidence and will not be disturbed on appeal.

5. Written Statement by Michelle Smith

Plaintiff alleges that the ALJ erred in rejecting a written statement provided by Michelle Smith. (Doc. 12, pp. 17-18). Defendant has no response to this argument. However, there is substantial evidence that supports the ALJ's decision to reject this Ms. Smith's statement. The ALJ stated:

The undersigned considered the Third Party Function Report of Michelle Smith (Exhibit 3E). By her own statement, Ms. Smith only speaks with [Plaintiff] on the telephone and is not an actual witness to her daily life. She would only know what [Plaintiff] tells her about her life. The undesigned gives no weight to this statement because it is not offered from Ms. Smith's objective observations and she is not a[n] acceptable medical source.

(Tr. 19). The ALJ must consider and weigh all of the non-medical evidence presented. See Burnett v. Comm'r of SSA , 220 F.3d 112, 122 (3d Cir. 2000); Van Horn v. Schweiker , 717 F.2d 871, 873 (3d Cir. 1983). "Although allegations of pain and other subjective symptoms must be consistent with objective medical evidence, [] the ALJ must still explain why he is rejecting the testimony." Burnett , 220 F.3d at 122 (citations omitted); See 2006 SSR LEXIS 5, *9 (S.S.A. Aug. 9, 2006) ("Consistent with 20 C.F.R. §§ 404.1513(d)(4) and 416.913(d)(4), we also consider evidence provided by other "non-medical sources" such as spouses, other relatives, friends, employers, and neighbors."). This Social Security Ruling also states:

In considering evidence from "non-medical sources" who have not seen an individual in a professional capacity in connection with their impairments, such as spouses, parents, friends, and neighbors, it would be appropriate to consider such factors as the nature and extent of the relationship, whether the evidence is consistent with other evidence, and any other factors that tend to support the evidence.

2006 SSR LEXIS 5, *15. The ALJ properly considered Ms. Smith's statements because while she did witness one (1) diabetic episode in which Plaintiff fainted at work, the recent nature and extent of her relationship with Plaintiff was one consisting of telephone calls and text messages, not direct observation of Plaintiff's alleged weekly "sugar drops." (Tr. 116). Ms. Smith written statement relates to Plaintiff's daily activities, and because she admittedly does not see Plaintiff in person, it is determined that the ALJ is correct in affording her statement little weight. For example, she stated, "Since she lost her job, she really doesn't do very much. She watches TV on [the] computer, [does] laundry, and takes a nap because the diabetes has her so tired that [her] sugar is low, [and she] sit[s] on [the] porch for a little bit." (Tr. 115). She also stated, "she has to take her time, [can] only do so[] much at a time because her sugar drops right away when she does the simplest chore." (Tr. 117). Given that the nature of these statements relate to daily activities, and the fact that Ms. Smith only spoke with Plaintiff on the phone and via text message and did not directly observe her, it is determined that there is substantial evidence to support the ALJ's decision to give little weight to Ms. Smith's statement.

CONCLUSION

Based upon a thorough review of the evidence of record, the Court finds that the Commissioner's decision is supported by substantial evidence. Therefore, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner will be affirmed and the appeal will be denied. A separate order will be issued.


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