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Lepperd v. Berryhill

United States District Court, M.D. Pennsylvania

February 20, 2018

JONATHAN LEPPERD, Plaintiff,
v.
NANCY A. BERRYHILL[1] Acting Commissioner of Social Security Defendant.

          Chief Judge Conner

          REPORT AND RECOMMENDATION

          SUSAN E. SCHWAB, CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff 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).

         This 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.

         II. Statement of Facts and of the Case

         Mr. 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.

         Mr. 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.

         On 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. Tr. 363.

         On 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”)[2] score was 55. Tr. 416.

         On 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.

         On July 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. 380.

         On 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.

         On January 24, 2013, Mr. Lepperd protectively filed for Title II disability insurance benefits alleging disability beginning January 31, 2013.[3] Tr. 112. The claim was initially denied on March 19, 2013. Tr. 123. On May 7, 2013 Mr. Lepperd requested an administrative hearing. Tr. 129.

         On 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 irritability. Id.

         On 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.

         In June of 2013, Mr. Lepperd successfully graduated from River Rock Academy, an alternative high school.[4] 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.

         On 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.

         Mr. Lepperd's past relevant work experience included positions as a cook and a cleaner/porter.[5] 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.

         At the 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.

         On 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.

         On 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 testified.[6]

         On May 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.[7] 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.

         Mr. 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.

         III. Legal Standards

         A. Substantial Evidence Review-The Role of This Court

         When reviewing the Commissioner's final decision denying a claimant's application for benefits, 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 . . . .”).

         B. Initial Burdens of Proof, Persuasion, and Articulation for the ALJ

         To 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 C.F.R. §404.131(a).

         In 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. §404.1520(a)(4).

         Between 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).

         At 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[8]; Mason, 994 F.2d at 1064.

         Once 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.

         The 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).

         IV. Discussion

         A. The ALJ's Decision Denying Mr. Lepperd's Claim

         In her 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.

         At Step 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.[9]

         At Step 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 impairments. Id.

         Between 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.

         B. Whether the ALJ Properly Evaluated the Medical Opinion Evidence

         Mr. 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.

         The Commissioner's regulations define medical opinions as “ statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. §404.1527(a)(1).[10] 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. 2000).

         In 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).

         Where 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. §404.1527(c).

         Furthermore, 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. § 404.1527.

         1. Whether Dr. Tsou's Observations During a Mental Status Examination Are Considered Opinion Evidence

         Mr. 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.[11] Id. Mr. Lepperd, however, has not shown that this claimed error is cause for reversal or remand.

         Treating 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. Tr. 398-416.

         On 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, [12] 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. Id.

         Mr. 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.

         On February 25, 2013, Mr. Lepperd returned to Dr. Tsou for an initial psychiatric evaluation.[13] 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.

         Dr. 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 portions[14]of 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).

         As 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.

         The 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.

         Here, 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; 24.

         2. Whether the ALJ Properly Evaluated Dr. ...


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