United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
E. SCHWAB, CHIEF UNITED STATES MAGISTRATE JUDGE.
Jonathan Lepperd (“Mr. Lepperd”), an adult
individual who resides within the Middle District of
Pennsylvania, seeks judicial review of the final decision of
the Commissioner of Social Security
(“Commissioner”) denying his application for
Disability Insurance Benefits under Title II of the Social
Security Act. Jurisdiction is conferred on this Court
pursuant to 42 U.S.C. §405(g).
matter has been referred to the undersigned United States
Magistrate Judge to prepare a report and recommended
disposition pursuant to the provisions of 28 U.S.C.
§636(b) and Rule 72(b) of the Federal Rules of Civil
Procedure. For the reasons expressed herein, we recommend
that the final decision of the Commissioner denying Mr.
Lepperd's claim of disability under Title II of the
Social Security Act be AFFIRMED, and that
Mr. Lepperd's request for the award of benefits or a new
administrative hearing be DENIED.
Statement of Facts and of the Case
Lepperd alleges he is disabled as a result of the following
conditions: mood disorder (not otherwise specified), autism,
pervasive development disorder (not otherwise specified),
obsessive compulsive disorder, oppositional defiant disorder,
attention deficit hyperactivity disorder, impulse control
disorder, below average IQ, and deficit in social skills.
Tr. 268. Mr. Lepperd was born on January 31, 1995,
and is an adult individual who resides within the Middle
District of Pennsylvania. Tr. 265; 267.
Lepperd has been undergoing therapy and medication management
since the third grade. Tr. 353. On January 14, 2010,
Mr. Lepperd was seen by Freeman M. Chakara, PsyD (“Dr.
Chakara”) for a neuropsychological assessment in
relation to concerns of cognitive compromise. Tr.
352. During this evaluation, Mr. Lepperd was subject to a
battery of tests and it was determined that his intellectual
function fell within the below average range. Tr.
355. Dr. Chakara assessed that Mr. Lepperd's difficulties
encompassed mild cognitive compromise. Tr. 356.
January 25, 2010, Mr. Lepperd underwent a psychological
re-evaluation with Erik Miller, MS, to gauge treatment
progress and determine the ongoing necessity of intervention.
Tr. 359. Mr. Lepperd presented with autistic traits,
inadequate emotional expression, poor impulse control,
infrequent non-compliances, and ADHD symptomology.
Id. It was recommended Mr. Lepperd continue with
intensive behavioral health rehabilitation services.
December 29, 2010, Mr. Lepperd underwent a psychiatric
evaluation with Pon Lion Tsou, M.D. (“Dr. Tsou”).
Tr. 415-416. He reported to Dr. Tsou that he was
restless, forgetful, and disorganized. Tr. 415. Dr.
Tsou indicated his Global Assessment of Functioning
(“GAF”) score was 55. Tr. 416.
March 1, 2011, Mr. Lepperd was admitted to The Meadows
Psychiatric Center because he wanted to have sex with his
transition coordinator and when she declined, he revealed a
knife. Tr. 367; 380. While at The Meadows, he
reported to the doctor that he stopped taking his medication
one year prior. Id. During his stay at The Meadows,
Mr. Lepperd cooperated with treatment and his mental health
systems were controlled with medication. Tr. 370. At
discharge, on March 8, 2011, Mr. Lepperd exhibited mild to
moderate improvement. Id.
12, 2012, George A. Wiswesser, M.D. (“Dr.
Wiswesser”) conducted a psychiatric evaluation.
Tr. 380. Dr. Wiswesser observed no overt psychotic
thought process but opined that Mr. Lepperd's cognitive
process appeared very simplistic with limited introspection.
Tr. 382. Dr. Wiswesser indicated a current GAF score
of 59. Tr. 383. Dr. Wisswesser assessed that Mr.
Lepperd has a perversion with dolls and purses. Tr.
December 5, 2012, William D. Thomas, M.S. (“Dr.
Thomas”) conducted a psychiatric evaluation.
Tr. 386. Dr. Thomas administered several IQ tests
including the Wechsler Adult Intelligence Scale -
3rd Edition (WAIS-III). Tr. 386. Overall,
Mr. Lepperd scored a Full Scale IQ of 84, functioning at the
Low Average range. Tr. 388. Dr. Thomas opined that
in sum, Mr. Lepperd had no indication of attention deficit
hyperactivity disorder, learning disabilities, and/or
neuropsychological dysfunction. Tr. 389.
January 24, 2013, Mr. Lepperd protectively filed for Title II
disability insurance benefits alleging disability beginning
January 31, 2013. Tr. 112. The claim was initially
denied on March 19, 2013. Tr. 123. On May 7, 2013
Mr. Lepperd requested an administrative hearing. Tr.
February 5, 2013, Dr. Thomas issued an addendum to his
December 2012 psychological evaluation of Mr. Lepperd, noting
that Mr. Lepperd's medication appeared to be reasonably
effective in controlling and managing his angry outbursts.
Tr. 428. However, Mr. Lepperd remained chronically
agitated and irritated and Dr. Thomas recommended that
another mood stabilizer medication could be effective in not
only stabilizing his anger, but also decreasing his
March 18, 2013, State agency psychologist John Gavazzi, PsyD
(“Dr. Gavazzi”) reviewed the evidence available
on that date and completed a psychiatric review technique
(“PRT”) assessment and mental residual functional
capacity (“RFC”) assessment. Tr.
116-122. In his PRT assessment, Dr. Gavazzi assessed that Mr.
Lepperd has an affective disorder, a personality disorder, an
anxiety disorder, and an organic mental disorder that
resulted in a moderate restriction of activities of daily
living, moderate difficulties maintaining social functioning,
moderate difficulties maintaining concentration, persistence
or pace, and no repeated episodes of decompensation.
Tr. 116-117. In his mental RFC assessment Dr.
Gavazzi assessed that although Mr. Lepperd is moderately
limited in his ability to understand and remember detailed
instructions, he can understand, retain, and follow simple
job instructions, such as one-and two-step tasks.
Tr. 119. Per Dr. Gavazzi, Mr. Lepperd is moderately
limited in his ability to carry out detailed instructions but
he can make simple decisions, maintain regular attendance,
and carry out very short and simple instructions.
Id. Dr. Gavazzi further assessed that although Mr.
Lepperd is moderately limited in his ability to interact
appropriately with the general public and ability to accept
instructions and respond appropriately to criticism from a
supervisor, he is able to maintain socially appropriate
behavior, relates appropriately to others, and behaves
predictable in most social situations. Tr. 119-120.
Dr. Gavazzi determined that although Mr. Lepperd is
moderately limited in his ability to respond appropriately to
changes in the work situation, he possesses adequate ability
to take appropriate precautions in hazardous situations,
utilize transportation, and has adequate ability to organize
and set simple goals. Dr. Gavazzi opined that despite these
limitations, Mr. Lepperd is able to perform simple, routine,
repetitive work in a stable environment. Tr. 120.
of 2013, Mr. Lepperd successfully graduated from River Rock
Academy, an alternative high school. Tr. 70; 353.
Throughout his time in school, Mr. Lepperd was an A-B
student. Tr. 360. When Mr. Lepperd wanted to, he
would do well in the classroom setting. Id. Mr.
Lepperd's teachers reported he became easily distracted
and often had to be redirected, which he accepted
appropriately and cooperated with classroom expectations.
Tr. 246. Penny Greyhosky, Mr. Lepperd's
counselor through Vista Outreach Services, observed that Mr.
Lepperd independently completed job applications, was
motivated to get a job, and expressed an interest in
attending college after graduation. Tr. 247.
November 17, 2014, Mr. Lepperd, assisted by counsel, appeared
and testified before Administrative Law Judge Sharon Zanotto
(“ALJ”) in Harrisburg, Pennsylvania. Meredith
Little (“Ms. Little”), Mr. Lepperd's
transitional coordinator, appeared and testified. Impartial
vocational expert Sheryl Bustin (“VE Bustin”)
also appeared but did not testify. At the time of his
hearing, Mr. Lepperd was engaged to his fiancé and
lived with her and her immediate family. Tr. 68.
Lepperd's past relevant work experience included
positions as a cook and a cleaner/porter. Tr.
49-50; 72. Mr. Lepperd testified that he is disabled because
he gets frustrated at work when he cannot complete a job
assignment. Tr. 71. Mr. Lepperd reported that
fast-paced jobs frustrate him and he gets mad at himself for
not doing a good job. Tr. 77. Mr. Lepperd admitted
that although he thinks he can work, the job cannot be fast
paced or too complicated. Tr. 82. He testified that
he needs a position that is much slower and that
“probably fast food would be good.” Id.
Mr. Lepperd admitted he does not want to work where he has to
interact with people. Tr. 84. He reported his
biggest problem in a work setting is that if he gets really
frustrated, he cannot do a job correctly. Id.
conclusion of the first administrative hearing, the ALJ
explained that she could not properly ask VE Bustin any
hypothetical questions because Mr. Lepperd's medical
records were not provided to her and she could not adequately
frame questions regarding Mr. Lepperd's limitations.
Tr. 108. The ALJ scheduled a supplemental
administrative hearing for a later date.
December 15, 2014, Dr. Thomas completed a summary of Mr.
Lepperd's to date psychological treatment. Tr.
430-431. Dr. Thomas opined that Mr. Lepperd responded
favorably to treatment. Tr. 431. He explained that
psychotherapy, along with medication, prevented a relapse in
Mr. Lepperd's behaviors. Id.
February 3, 2015, Mr. Lepperd, assisted by counsel, appeared
and testified at a second administrative hearing before the
ALJ in Harrisburg, Pennsylvania. Mr. Lepperd testified that
since the date of the first hearing, he had begun working at
Office Depot as a picker. Tr. 34. Mr. Lepperd
started his new position in the middle of December 2014 and
as of the date of hearing, was still employed there.
Tr. 35; 38. VE Bustin also appeared and
21, 2015, the ALJ issued an opinion finding Mr. Lepperd was
not disabled under the Social Security Act. The ALJ followed
the five-step analysis for disability claims under the Social
Security Act. Thereafter, Mr. Lepperd sought review of the
ALJ's May 2015 decision by the Appeals Council of the
Office of Disability Adjudication and Review (“Appeals
Council”). Together with his request for review, Mr.
Lepperd submitted new medical evidence that was not before
the ALJ when she issued her May 2015 decision. Tr.
436-448. The Appeals Council denied Mr. Lepperd's request
for review on November 2, 2016. Tr. 1. This denial
makes the ALJ's May 2015 decision the final decision
subject to judicial review by this Court.
Lepperd initiated this action by filing a complaint in
federal court on December 20, 2016. Doc. 1. In his
complaint, Mr. Lepperd alleges that the conclusions and
findings of fact of the Commissioner are not supported by
substantial evidence and are contrary to the applicable law
and regulations. Id. As relief he requests that this
Court award benefits, or in the alternative, remand this
matter for a new administrative hearing. Id. On
March 3, 2017, the Commissioner filed her answer.
Doc. 11. The Commissioner contends that the
ALJ's decision is correct and in accordance with the
applicable law and regulations, and that the ALJ's
findings of fact are supported by substantial evidence.
Together with her answer, the Commissioner filed a certified
transcript of the record of the administrative proceedings in
this case. Doc. 12. This matter has been fully
briefed by the parties and is ripe for decision.
Doc. 18; Doc. 20; Doc. 21.
Substantial Evidence Review-The Role of This
reviewing the Commissioner's final decision denying a
claimant's application for benefits, this Court's
review is limited to the question of whether the findings of
the final decision-maker are supported by substantial
evidence in the record. See 42 U.S.C. §405(g);
Johnson v. Comm'r of Soc. Sec., 529 F.3d 198,
200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d
533, 536 (M.D.Pa. 2012). Substantial evidence “does not
mean a large or considerable amount of evidence, but rather
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). Substantial
evidence is less than a preponderance of the evidence but
more than a mere scintilla. Richardson v. Perales,
402 U.S. 389, 401 (1971). A single piece of evidence is not
substantial evidence if the ALJ ignores countervailing
evidence or fails to resolve a conflict created by the
evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d
Cir. 1993). But in an adequately developed factual record,
substantial evidence may be “something less than the
weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent
[the ALJ's decision] from being supported by substantial
evidence.” Consolo v. Fed. Maritime
Comm'n, 383 U.S. 607, 620 (1966). “In
determining if the Commissioner's decision is supported
by substantial evidence the court must scrutinize the record
as a whole.” Leslie v. Barnhart, 304 F.Supp.2d
623, 627 (M.D.Pa. 2003). The question before this Court,
therefore, is not whether Mr. Lepperd is disabled, but
whether the Commissioner's finding that he is not
disabled is supported by substantial evidence and was reached
based upon a correct application of the relevant law. See
Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at
*1 (M.D.Pa. Mar. 11, 2014)(“[I]t has been held that an
ALJ's errors of law denote a lack of substantial
evidence.”)(alterations omitted); Burton v.
Schweiker, 512 F.Supp. 913, 914 (W.D.Pa.
1981)(“The Secretary's determination as to the
status of a claim requires the correct application of the law
to the facts.”); see also Wright v. Sullivan,
900 F.2d 675, 678 (3d Cir. 1990)(noting that the scope of
review on legal matters is plenary); Ficca, 901
F.Supp.2d at 536 (“[T]he court has plenary review of
all legal issues . . . .”).
Initial Burdens of Proof, Persuasion, and Articulation
for the ALJ
receive benefits under the Social Security Act by reason of
disability, a claimant must demonstrate an inability to
“engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. §423(d)(1)(A);
see also 20 C.F.R. §404.1505(a). To satisfy
this requirement, a claimant must have a severe physical or
mental impairment that makes it impossible to do his or her
previous work or any other substantial gainful activity that
exists in the national economy. 42 U.S.C. §423(d)(2)(A);
20 C.F.R. §404.1505(a). To receive benefits under Title
II of the Social Security Act, a claimant must show that he
or she contributed to the insurance program, is under
retirement age, and became disabled prior to the date on
which he or she was last insured. 42 U.S.C. §423(a); 20
making this determination at the administrative level, the
ALJ follows a five-step sequential evaluation process. 20
C.F.R. §404.1520(a). Under this process, the ALJ must
sequentially determine: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether the claimant has
a severe impairment; (3) whether the claimant's
impairment meets or equals a listed impairment; (4) whether
the claimant is able to do his or her past relevant work; and
(5) whether the claimant is able to do any other work,
considering his or her age, education, work experience and
residual functional capacity (“RFC”). 20 C.F.R.
steps three and four, the ALJ must also assess a
claimant's RFC. RFC is defined as “that which an
individual is still able to do despite the limitations caused
by his or her impairment(s).” Burnett v. Comm'r
of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000)
(citations omitted); see also 20 C.F.R.
§§404.1520(e), 404.1545(a)(1). In making this
assessment, the ALJ considers all of the claimant's
medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her
analysis. 20 C.F.R. §404.1545(a)(2).
steps one through four, the claimant bears the initial burden
of demonstrating the existence of a medically determinable
impairment that prevents him or her in engaging in any of his
or her past relevant work. 42 U.S.C. §423(d)(5); 20
C.F.R. §§404.1512; Mason, 994 F.2d at
this burden has been met by the claimant, it shifts to the
Commissioner at step five to show that jobs exist in
significant number in the national economy that the claimant
could perform that are consistent with the claimant's
age, education, work experience and RFC. 20 C.F.R.
§404.1512(f); Mason, 994 F.2d at 1064.
ALJ's disability determination must also meet certain
basic substantive requisites. Most significant among these
legal benchmarks is a requirement that the ALJ adequately
explain the legal and factual basis for this disability
determination. Thus, in order to facilitate review of the
decision under the substantial evidence standard, the
ALJ's decision must be accompanied by "a clear and
satisfactory explication of the basis on which it
rests." Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981). Conflicts in the evidence must be resolved and
the ALJ must indicate which evidence was accepted, which
evidence was rejected, and the reasons for rejecting certain
evidence. Id. at 706-707. In addition, “[t]he
ALJ must indicate in his decision which evidence he has
rejected and which he is relying on as the basis for his
finding.” Schaudeck v. Comm'r of Soc.
Sec., 181 F.3d 429, 433 (3d Cir. 1999).
The ALJ's Decision Denying Mr. Lepperd's
May 2015 decision denying Mr. Lepperd's claims, the ALJ
found that Mr. Lepperd met the insured status requirements of
Title II of the Social Security Act through September 30,
2015. The ALJ then assessed Mr. Lepperd's claims at each
step of the five-step sequential evaluation process before
concluding that Mr. Lepperd did not meet the statutory
definition of disability under the Social Security Act at any
point between January 31, 2013 and May 21, 2015.
One, the ALJ determined that Mr. Lepperd was not engaged in
substantial gainful activity since the time of his alleged
onset of disability. Tr. 14. However, the ALJ
explained that Mr. Lepperd's earnings from Office Depot
appeared to exceed the threshold to be considered substantial
gainful activity. Id. Mr. Lepperd failed to submit
any additional pay information indicating whether he was
still employed with Office Depot. Id. Based upon the
existing state of the record, the ALJ could not determine if
that work activity could be considered as an unsuccessful
work attempt. Tr. 16. Nevertheless, the ALJ
proceeded with the remaining steps to determine if Mr.
Lepperd was disabled. Id.
Two, the ALJ found Mr. Lepperd had the following severe
impairments: pervasive development disorder (not otherwise
specified), Asperger's disorder, mood disorder (not
otherwise specified), impulse control disorder, attention
deficit hyperactivity disorder, oppositional defiant
disorder, and obsessive compulsive disorder. Id. At
Step Three, the ALJ determined that Mr. Lepperd's severe
impairments did not meet or equal any of the listed
Step 3 and Step 4, the ALJ found Mr. Lepperd possessed the
RFC to perform a full range of work at all exertional levels
with the following nonexertional limitations:
the claimant retains the mental capacity to perform jobs that
can be learned within one month by short demonstration only
and jobs that consist of repetitive short cycle tasks and
require only occasional decision making. The claimant is
capable of performing jobs that do not require applying
precise limits, tolerances or standards, directing,
controlling or planning activities of others or influencing
other's opinions, attitudes or judgments. The claimant is
capable of tolerating occasional interaction with coworkers,
but never is capable of performing team work or work
involving interacting with the public.
Tr. 18. At Step Four, the ALJ found that Mr. Lepperd
was capable of performing his past relevant work as a fast
food cook (DOT#311.472-010) and a cleaner/housekeeper
(DOT#323.687-014). Tr. 26. The ALJ reached this
conclusion by finding that this work did not require
performance of any activities precluded by his RFC
assessment. Id. Additionally, the ALJ averred that
Mr. Lepperd could perform this work because both jobs are
classified as light and unskilled. Id. Comparing Mr.
Lepperd's RFC to the physical and mental demands of the
work, the ALJ determined he possessed the ability to perform
either job actually and generally. Id. This adverse
finding at Step Four rendered Mr. Lepperd not disabled under
the Act; therefore, the ALJ did not proceed to Step Five.
Whether the ALJ Properly Evaluated the Medical Opinion
Lepperd argues that the ALJ failed to evaluate every medical
opinion under C.F.R. § 404.1527. Doc 18.
p. 19. The Commissioner asserts that substantial
evidence supports the ALJ's evaluation of the physician
opinion evidence. Doc. 20 p. 3. In this
case, Mr. Lepperd has not proved that this claimed error is
cause for reversal or remand.
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.
§404.1527(a)(1). Regardless of its source, the ALJ is
required to evaluate every medical opinion received. 20
C.F.R. §404.1527(b). No matter what weight an ALJ
affords to medical opinions, the ALJ has the duty to
adequately explain the evidence that he or she rejects or
affords lesser weight. Diaz v. Comm'r of Soc.
Sec., 577 F.3d 500, 505-06 (3d Cir. 2009). “The
ALJ's explanation must be sufficient enough to permit the
court to conduct a meaningful review.” Burnett v.
Comm'r of Soc. Sec., 220 F.3d 112, 119-20 (3d Cir.
deciding what weight to accord to competing medical opinions,
the ALJ is guided by factors outlined in 20 C.F.R.
§404.1527. “The regulations provide progressively
more rigorous tests for weighing opinions as the ties between
the source of the opinion and the individual become
weaker.” SSR 96-6p, 1996 WL 374180 at *2. Generally,
more weight will be given to a source who has examined the
claimant than to a source who has not. 20 C.F.R. §
404.1527(c)(1). Treating sources, which are the
claimant's acceptable medical sources who have provided
the claimant with medical treatment or evaluation, have the
closest ties to the claimant, and therefore their opinions
are generally entitled to more weight. 20 C.F.R. §§
404.1527(a)(2), 404.1527(c)(2). An ALJ may disregard treating
physician opinions, which are normally due great weight, when
they are conclusory, lacking explanation, and inconsistent
with the other medical evidence in the record. 20 C.F.R.
§§ 404.1527(c)(2)-(4); Griffin v. Comm'r of
Soc. Sec., 305 Fed.Appx. 886, 891 (3d Cir. 2009).
no medical opinion is entitled to controlling weight, the
Commissioner's regulations direct the ALJ to consider the
following factors, where applicable, in deciding the weight
given to any non-controlling medical opinion: length of the
treatment relationship and frequency of examination; nature
and extent of the treatment relationship; the extent to which
the source presented relevant evidence to support his or her
medical opinion, and the extent to which the basis for the
source's conclusions were explained; the extent to which
the source's opinion is consistent with the record as a
whole; whether the source is a specialist; and, any other
factors brought to the ALJ's attention. 20 C.F.R.
the ALJ's articulation of the weight accorded to each
medical opinion must be accompanied by "a clear and
satisfactory explication of the basis on which it
rests." Cotter, 642 F.2d at 704. This principle
applies with particular force to the opinion of a treating
physician. See 20 C.F.R. §404.1527(c)(2)
(“We will always give good reasons in our notice of
determination or decision for the weight we give your
treating source's medical opinion.”). “Where
a conflict in the evidence exists, the ALJ may choose whom to
credit but ‘cannot reject evidence for no reason or the
wrong reason.'” Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999)(quoting Mason, 994 F.2d at
1066)); see also Morales v. Apfel, 225 F.3d 310, 317
(3d Cir. 2000). The ALJ is the sole authority to determine
how much weight is owed to a medical opinion, and may review
the record as a whole and determine which of multiple
conflicting opinions to credit. See 20 C.F.R. §
Whether Dr. Tsou's Observations During a Mental
Status Examination Are Considered Opinion Evidence
Lepperd contends that the ALJ failed to address Dr.
Tsou's opinion that on February 25, 2013, he had a flat
affect, irritable mood, agitated manner, and limited insight
and judgment, resulting in a diagnosis of pervasive
developmental disorder (not otherwise specified), fetishism,
and mood disorder (not otherwise specified). Doc.
18. p. 25. Mr. Lepperd maintains that the ALJ
focused solely on the GAF scores from Dr. Tsou, giving those
scores only partial weight. Id. Mr. Lepperd,
however, has not shown that this claimed error is cause for
reversal or remand.
psychiatrist Dr. Tsou issued two psychiatric evaluation and
treatment plans, each including a mental status examination.
In addition, Dr. Tsou issued eleven medication supervision
reports, each including a mental status examination. In
total, the record contains thirteen mental status
examinations of Mr. Lepperd authored by Dr. Tsou.
December 29, 2010, Mr. Lepperd met with Dr. Tsou for an
initial psychiatric evaluation. Tr. 415. Dr. Tsou
ordered lab tests and decreased Mr. Lepperd's medication,
0.5mg of Risperdal,  from three times per day to twice per
day. Tr. 416. Mr. Lepperd's mental status
examination revealed: casually dressed and groomed; fair eye
contact; speech of normal rate and volume; goal directed;
euthymic mood; mood congruent affect; no loose associations;
no ideas of reference; no suicidal, homicidal, or paranoid
ideations; alert and oriented; and fair insight and judgment.
Id. Dr. Tsou instructed Mr. Lepperd to return in one
month for medication management, or sooner if needed.
Lepperd returned to Dr. Tsou for medication checks on the
following days: January 26, 2011; March 21, 2011; May 23,
2011; July 18, 2011; August 7, 2011; September 21, 2011;
December 5, 2011; January 9, 2012; March 5, 2012; May 7,
2012; and July 9, 2012. Tr. 414; 413; 412; 411; 410;
409; 408; 407; 404; 401; 398. At each of those medication
checks, Mr. Leppard's mental status examinations revealed
no abnormalities. Tr. 414; 413; 412; 411; 410; 409;
408; 407; 405-406; 402-403; 399-400.
February 25, 2013, Mr. Lepperd returned to Dr. Tsou for an
initial psychiatric evaluation. Tr. 394. Mr.
Lepperd's mental status examination revealed: neat
appearance and no apparent level of distress; a flat affect
and irritable mood; normal concentration; intact thought
association and logical thought process; normal speech and
normal gait; ability to name objects; unimpaired thought
content; ability to orient time, place, and person; fair
fundamental knowledge of current events and past history;
intact recent memory; intact reality testing; alert
consciousness; limited insight; limited judgment; fair eye
contact; uncooperative; and agitated manner. Tr.
396-397. The record indicates this is Mr. Lepperd's final
visit to Dr. Tsou.
Tsou treated Mr. Lepperd a number of times and long enough to
have obtained a longitudinal picture of his impairments. 20
C.F.R. § 404.1527(c)(2). However, Dr. Tsou's mental
status examinations are not medical opinions “on the
issue(s) of the nature and severity of [Mr. Lepperd's]
impairment(s).” 20 C.F.R. § 404.1527(c)(2). Thus,
the ALJ did not have to assign any of Dr. Tsou's mental
status examinations, including the February 25, 2013 mental
status examination at issue, controlling weight. Though the
ALJ did reference portionsof Dr. Tsou's notes and
observations in her decision, she was not required to assign
those notes and observations any particular weight.
Tr. 20. In fact, the ALJ was not required to give
any of the mental status examinations any weight, as they are
not considered a “medical opinion” pursuant to 20
C.F.R. § 404.1527(a).
discussed above, Social Security Regulations define
“medical opinions” as “statements from
physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity
of [the claimant's] impairment(s), including [his or her]
symptoms, diagnosis and prognosis, what you can still do
despite your impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 404.1527(a). Therefore,
under Social Security regulations, in order to constitute
competent medical opinion evidence, a medical statement that
confirms the: “[m]ere presence of a disease or
impairment is not enough. A claimant must show that his
disease or impairment caused functional limitations that
precluded him from engaging in any substantial gainful
activity.” Walker v. Barnhart, 172 Fed.Appx.
423, 426 (3d Cir. 2006). Our review of this evidence reveals
that Dr. Tsou's mental health examinations do not comport
with the regulatory definition of a “medical
opinion”, and are instead merely a description of how
Mr. Lepperd presented to Dr. Tsou on a particular day. Dr.
Tsou's February 25, 2013 mental health examination of Mr.
Lepperd did not reflect his judgment about the nature and
severity of Mr. Lepperd's impairments, limitations, or
any information about what activities Mr. Lepperd could still
perform. See 20 C.F.R. § 404.1527(a)(2). In fact, in all
of the medical records submitted by Dr. Tsou, not one single
record references any limitation of Mr. Lepperd or what
activities he could or could not perform. Therefore, the
weight accorded to medical opinions pursuant to 20 C.F.R.
§ 404.1527 does not apply to the information cited by
Mr. Lepperd. Mr. Lepperd errs when he suggests that this
isolated observation rises to the level of a medical opinion.
instant case is quite similar to another Middle District
case, Kalenkoski v. Colvin, No. 3:14-CV-00592, 2014
WL 5093129 (M.D.Pa. Oct. 10, 2014). In Kalenkoski,
the Plaintiff argued that the ALJ failed to consider certain
medical opinions; thus, warranting a remand. Id. at
*9. After review, the Court determined the medical
opinions on which Plaintiff was relying on did not comport
with the regulatory definition of a “medical opinion,
” and were instead merely descriptions of the onset,
character, location, frequency, and duration of
Plaintiff's symptoms over time, precipitating and
aggravating factors, and memorialization of Plaintiff's
subjective complaints. Id. To be a true medical
opinion, statements reflecting the physician's judgment
about the nature and severity of Plaintiff's impairments
needed to be present, which they were not. Id. Of
course, this does not mean that an ALJ is free to disregard
such evidence, and, in fact the ALJ did not do so in
Kalenkoski; instead, the ALJ properly considered
Plaintiff's treatment records in accordance with 20
C.F.R. § 404.1545, which requires that the ALJ assess a
claimant's RFC based on “all the relevant evidence
in [his or her] case record, ” but was not required to
weigh this evidence based on the regulatory factors outlined
in 20 C.F.R. § 404.1527. Id.
the ALJ did not err when she assigned no weight to Dr.
Tsou's evaluation of Mr. Lepperd. The ALJ properly
considered Mr. Lepperd's treatment records in accordance
with 20 C.F.R. § 404.1545. Although the ALJ was not
required to weigh this evidence based upon the regulatory
factors outlined in 20 C.F.R. § 404.1527, she supported
her RFC finding with careful explanation regarding Mr.
Lepperd's interactions with Dr. Tsou. Tr. 20;
Whether the ALJ Properly Evaluated Dr. ...