United States District Court, E.D. Pennsylvania
Figueroa asks we review the Social Security
Commissioner's denial of her application for Supplemental
Security Income ("SSI") benefits. She seeks
benefits claiming she cannot work because of speech problems,
attention deficit hyperactivity disorder, and other social
and intellectual limitations while a minor and now as a
twenty-two year old high school graduate. An administrative
law judge evaluated and weighed the evidence adduced from
several mental-health professionals and, after a detailed
review, denied Ms. Figueroa's appeal of the
Commissioner's denial of benefits. After the Appeals
Council denied her request for review, Ms. Figueroa properly
sought our review of the administrative law judge's
decision. She argues the administrative law judge failed to
properly consider and weigh: her education level; her
meeting, medically equaling, or functionally equaling the
Listing of Impairments; the opinion of the mental-health
professional who evaluated her; and, her mother's written
statement. After careful review of the record and mindful of
our limited scope of review, we find substantial evidence for
each of the administrative law judge's detailed findings
requiring we deny Ms. Figueroa's petition for review in
the accompanying Order.
Figueroa is a twenty-two-year-old woman who suffered from a
learning disorder, borderline intellectual functioning, and
attention deficit hyperactivity disorder before graduating
high school. Since turning eighteen, Ms. Figueroa has
continued to have these severe impairments. Ms. Figueroa
Ms. Figueroa's educational and medical history.
Figueroa grew up in both Puerto Rico and mainland United
States. In 1998, Leida Rodriguez, a
speech-language pathologist in Puerto Rico, diagnosed severe
communication problems. Ms. Rodriguez also noted a delay in Ms.
Figueroa's vocabulary. In 2002, Maricarmen Rodriguez, another
speech-language pathologist in Puerto Rico, found Ms.
Figueroa had a moderate speech-language disorder
characterized by a slight delay in language, and a moderate
delay in the intelligibility of her speech.
2004, Ms. Figueroa moved from Puerto Rico to Perth Amboy, New
Jersey with her mother after her parents
divorced. In 2008, Ms. Figueroa enrolled in the
Philadelphia School District. In 2010, Ms. Figueroa moved from
Philadelphia back to Puerto Rico. In 2013, she returned to
Philadelphia and started 12th grade at Agora Cyber
Figueroa had an individualized education program
("IEP") report at Agora Cyber Charter
School. Her IEP noted she spent 95% of her day
in the regular classroom. She made "consistent and
substantial progress toward her goals." In his
evaluation, examining psychologist Dr. Patrick McHugh, Ph.D.
addressed Ms. Figueroa's education. He
recommended Ms. Figueroa continue "her education in her
local school district until age 21 with emphasis on
2008, a Philadelphia School District IEP Team reviewed Ms.
Figueroa's scores on the Wechsler Intelligence Scale for
Children-Fourth Edition. Her scores fell within the Low
Average Range. But evaluators reported a significant
scatter in her subtest scores. The evaluators suggested these
results show Ms. Figueroa possessed more intellectual
potential than she exhibited. The lower IQ scores show more
of "language retrieval problem rather than a language
Figueroa has attention deficit hyperactivity disorder
("ADHD"), diagnosed in early
childhood. She began taking medicine for here ADHD
around age eight. Disability Determination Service
psychological consultant Dr. Paul Taren, Ph.D. opines Ms.
Figueroa takes Adderall to control her ADHD with "good
Figueroa thinks she could work. She enrolled in, and had
almost completed, a course in cosmetology. In high
school, Ms. Figueroa spoke of becoming a nurse, and
recognized she needed to take several post-secondary courses
to become credentialed. She also planned to volunteer at a
local health center for 20 hours to get exposure to the
Ms. Figueroa's efforts to obtain benefits.
December 20, 2013, Ms. Figueroa's mother, Margarita
Rodriguez, applied for supplemental security income on behalf
of her daughter, since Ms. Figueroa had not yet reached 18
years of age. The Social Security Administration has
two standards of disability-a childhood standard for those
under the age of 18, and an adult standard for those age 18
and above. The SSA denied Ms. Figueroa's
application. Ms. Figueroa appealed the denial and
requested a hearing before an administrative law
judge. On September 30, 2015, Ms. Figueroa
appeared and testified before an administrative law
judge. Robert Savoy, an attorney for Ms.
Figueroa, and Steve Gumerman, Ph.D., an impartial vocational
expert, appeared at the hearing.On July 13, 2016,
Administrative Law Judge Kathleen McDade denied Ms.
Figueroa's claim. After applying the five-step
analysis, ALJ McDade determined Ms. Figueroa is not disabled
as of December 20, 2013, the date she filed the
McDade determined Ms. Figueroa suffered from severe
impairments-a learning disorder, borderline intellectual
functioning, and attention deficit hyperactivity
disorder. ALJ McDade compared Ms. Figueroa's
impairments to a list of impairments presumed severe enough
to preclude gainful employment. Under the childhood
standard, before turning 18 years old, ALJ McDade found Ms.
Figueroa's impairments did not meet, medically equal, or
functionally equal one of the listed
the adult standard, since turning 18 years old, Ms.
Figueroa's impairments also did not meet or medically
equal one of the listed impairments. ALJ McDade found Ms.
Figueroa has the residual functional capacity
("RFC") to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: she "can perform work involving simple,
routine tasks, simple decision making and judgments. The work
should be self-paced and as low stress as possible, meaning
any production requirements would be capable of being
completed by the end of the work day or work shift and should
not involve assembly lines, tandem work or team work. There
should be no contact with the general public but frequent
interaction with coworkers and supervisors would be
permitted." Considering Ms. Figueroa's age,
education, work experience, and residual functioning
capacity, ALJ McDade found she could perform jobs existing in
significant numbers in the national economy.
McDade assigned little weight to the opinion of examining
psychologist Janet Horwitz, Psy.D., who provided a Medical
Source Statement, and Ms. Figueroa's mother, Margarita
Rodriguez. Dr. Horwitz diagnosed ADHD and language
disorder, and opined Ms. Figueroa's impairments might
significantly interfere with her ability to function on a
daily basis. ALJ McDade assigned great weight to
examining psychologist Dr. McHugh, who opined Ms. Figueroa
"has mild limitations for interacting appropriately with
the public, supervisors, and co-workers as well as responding
appropriately to usual work situations and to changes in a
routine setting." ALJ McDade also assigned great weight
to Dr. Taren, who opined Ms. Figueroa "has a less than
marked limitation for Attending and Completing Tasks as she
has had a good effect with taking
Adderall." Ms. Figueroa requested the Appeals
Council review ALJ McDade's decision. The Appeals
Council affirmed ALJ McDade's July 13, 2016 decision and
denied Ms. Figueroa's request for review.
Figueroa timely filed a petition for review in this Court.
She argues ALJ McDade erred in finding she: (1) has a high
school education; (2) does not meet or medically equal the
Listing of Impairments; and (3) does not functionally equal
the Listing of Impairments. She also argues ALJ McDade erred
in giving little weight to Dr. Horwitz's and her mother
Margarita Rodriguez's opinions. We deny Ms.
Figueroa's petition for review as we find ALJ McDade
based her findings on substantial evidence.
review of an ALJ's decision is deferential and an
ALJ's findings of fact are conclusive if supported by
substantial evidence. Substantial evidence is "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Substantial
evidence is "more than a mere scintilla but may be
somewhat less than a preponderance of the
evidence." To determine whether substantial
evidence supports a factual finding, we review the record as
a whole. We are bound by an ALJ's factual
findings if supported by substantial evidence, even if we
would have decided the matter differently.
must determine whether the claimant is disabled when
examining a challenge to the Commissioner's initial
decision denying benefits. Under Title II of the Social
Security Act ("Act"), a person who has contributed
to the program who suffers from a physical or mental
disability is afforded insurance benefits. Under Title
XVI of the Act, a disabled person may also be entitled to
supplemental security income. A disability is the 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 twelve months." A claimant is only disabled if
their impairments are severe to the point it makes their
previous work impossible to do or precludes any other kind of
gainful work available in the national economy.
addressing disability affecting Ms. Figueroa as a child and
continuing into adulthood. The Commissioner applies a
three-step evaluation to determine if a child claimant is
disabled, and a five-step evaluation to determine if an adult
claimant is disabled. If the Commissioner finds disability
or non-disability at any step during the analysis, the
Commissioner will end the analysis. At step one, in both
analyses, the Commissioner determines whether the claimant is
engaged in substantial gainful activity. If the
claimant is not engaged in substantial gainful activity, the
Commissioner proceeds to step two in both analyses where she
is required to determine whether the claimant is suffering
from a severe impairment or combination of
impairments. At step three in both analyses, if the
claimant's impairments are severe, the Commissioner
compares the impairments to the list of impairments presumed
severe enough to preclude gainful employment. If the
claimant's impairments or its equivalent matches a listed
impairment, the claimant is presumed disabled. The childhood
standard of disability analysis ends here.
the adult standard of disability, if the claimant's
impairments do not match impairments on the list, the
Commissioner proceeds to step four, where the Commissioner
determines the claimant's residual functional
capacity. A claimant's RFC is "that which
an individual is still able to do despite the limitations
caused by his or her impairment(s)." In step five,
if the claimant is unable to return to past work, the
Commissioner must prove "there are other jobs existing
in the national economy which claimant can perform,
consistent with his medical impairments, age, education, past
work, experience, and [RFC]."
ALJ McDade properly analyzed Ms. Figueroa's education
McDade describes Ms. Figueroa as having a high school
education. Ms. Figueroa argues her finding is not
supported by substantial evidence, and this finding is not
there is contradictory evidence, the ALJ uses a
claimant's numerical grade level to determine her
educational abilities. The ALJ determines the claimant's
education when there is evidence of a disparity between the
grade completed and the actual level of
functioning.Although there does not appear to be
binding authority on point in our court of appeals, several
non-binding cases in other districts and court of appeals
supported ALJ McDade's reliance on the grade completed,
despite evidence suggesting a disparity between the grade
completed and the claimant's abilities. Many workers
do not read at their numerical grade level but can perform
jobs requiring intellectual functioning. Even though
these persons may have lesser intellectual capabilities they
"are not automatically
'disabled.'" We cannot find ALJ McDade
erred by relying upon the school district's daily
evaluation leading to eventual graduation. Otherwise, we
would face virtually unmoored challenges to whether someone
graduated high school based on differing experts' views
on intellectual capacity upon graduating high school.
Figueroa has a high school diploma. Her IEP report for Agora
Cyber Charter School shows she spent 95% of her time in a
regular classroom. But an assessment conducted in 2014
shows Ms. Figueroa did not perform at 12th grade
levels. Her scores in reading and math
demonstrate a probe level between 5th and
8th grades. We appreciate Ms. Figueroa's
dilemma - she graduated high school but is not functioning at
a high school graduate level. Absent authority from our court
of appeals or change in the Commissioner's view, we will
not reverse or remand for a factually accurate finding of Ms.
Figueroa graduating from high school.
ALJ McDade improperly analyzed Ms. Figueroa as having a high
school education, the alleged error is harmless here. The
vocational expert recommended work not requiring a high
school education. Ms. Figueroa does not claim she is
illiterate or have a marginal education, nor does she argue
ALJ McDade should categorize her as such.
the entire record, there is substantial evidence to support
ALJ McDade's finding Ms. Figueroa has a high school
education. Also, Ms. Figueroa has at minimum a marginal
education and can perform unskilled jobs. Ms. Figueroa
can perform the work found by the vocational expert, so ALJ
McDade's imputing a high school education to Ms. Figueroa
is harmless error, especially when she has a high school
There is substantial evidence for ALJ McDade's finding
Ms. Figueroa does not meet or medically equal the Listing of
McDade found Ms. Figueroa did not have an impairment or
combination of impairments meeting or medically equaling one
of the listed impairments, either as a minor or as an
adult. The Listing outlines those impairments
presumed severe enough to preclude gainful
employment. Ms. Figueroa argues ALJ McDade did not
adequately explain her findings. She also takes issue with
ALJ McDade not addressing the four domains individually.
Taken together, she argues, these alleged shortcomings
demonstrate the ALJ McDade failed to meet the standard
outlined in Burnett Commissioner of Social Security
Administration, requiring the ALJ explain her
standard in Burnett "does not require the ALJ
to use particular language or adhere to a particular format
in conducting [her] analysis." Instead, the ALJ must
make sure there is "sufficient development of the record
and explanation of findings" for meaningful
review. ALJ McDade satisfies the standard once
she provides a "discussion of the evidence" and an
"explanation of reasoning" for her
conclusion. When evaluating a claimant's medical
issues, the ALJ will consider type, dosage, effectiveness,
and side effects of medications. ALJ McDade must
adequately explain the relationship between Ms.
Figueroa's IQ scores and her ADHD, and the Listing of
McDade relied on treating notes in her findings. Ms.
Figueroa's IQ scores are too high to meet the criteria of
Listings 112.05 and 12.05 (intellectual disorders). Ms.
Figueroa concedes these findings are correct. But she claims
she "arguably equaled" a Listing, relying on the
Program Operations Manual System ("POMS"). But POMS
has no legal effect. Instead, it is written for internal
reference. Our court of appeals advises
"agency interpretive guidelines do not rise to the level
of a regulation and do not have the effect of
law." So ALJ McDade's disregard of POMS
does not undermine the substantial evidence she relied on
when making her determination.
McDade also relied on treating notes in findings on the
effect of Ms. Figueroa's ADHD. ALJ McDade found Ms.
Figueroa did not meet the criteria of Listing 112.11
(neurodevelopmental disorders), explaining the decision with
reference to the limitations the claimant must
demonstrate. This finding is supported in Dr.
Taren's domain evaluation, which is a tool to determine
"all of what a child can or cannot
do." Ms. Figueroa had a less than marked
rating for Acquiring and Using Information, a less than
marked rating for Attending and Completing Tasks, and no
limitation for Interacting and Relating With
Others. ALJ McDade's decision is also
supported in Dr. Horwitz's evaluation, finding Ms.
Figueroa's recent and remote memory skills are only
mildly impaired, her attention and concentration are only
mildly impaired, and she is goal-directed. Dr.
Horwitz's evaluation includes a social history, detailing
Ms. Figueroa's responsibilities at her home and her
ability to perform everyday tasks, demonstrating her
capabilities. And Dr. McHugh opined Ms. Figueroa's
cognitive function "fell within the normal
Figueroa claims ALJ McDade is dismissive of her ADHD
symptoms. But this impairment and its symptoms are
acknowledged in ALJ McDade's findings. To the extent
ADHD affects Ms. Figueroa's functional ability, as Dr.
Taren pointed out, Adderall is effective
the entire record, there is substantial evidence for ALJ
McDade's finding Ms. Figueroa does not meet or medically
equal the Listing of Impairments. ALJ McDade sufficiently
developed the record and explained her findings when
comparing Ms. Figueroa's IQ scores and her ADHD to the
There is substantial evidence for ALJ McDade's finding
Ms. Figueroa does not functionally equal the Listing of
Figueroa argues ALJ McDade did not adequately explain her
finding of Ms. Figueroa's less-than-marked impairment in
any of the six domains as a minor. Specifically, she argues
ALJ McDade did not adequately explain her findings in the
domains of Acquiring and Using Information, and Attending and
argument concerns step three in the children's analysis,
where ALJ McDade considers "all the relevant
factors" in deciding whether an impairment or
combination of impairments functionally equals a
Listing. Functioning is determined by looking at
how "appropriately, effectively, and independently"
the claimant performs activities relative to other children
of the same age without impairments. ALJ
McDade looks to six domains, with the goal of determining
"all of what a child can or cannot
treating notes show Ms. Figueroa's Acquiring and Using
Information rating is adequately supported by the record. But
Dr. Taren's domain evaluation supports ALJ McDade's
assessment. Ms. Figueroa had a less-than-marked
rating in this domain. And Ms. Figueroa's IEP report
for Agora Cyber Charter School shows she spent 95% of her day
in the regular classroom.
McDade also appropriately analyzed Ms. Figueroa's
Attending and Competing Tasks rating. Dr. Taren's
evaluation supports this finding, showing a less-than-marked
rating in this domain. But ALJ McDade provided several
other pieces of evidence to support her assessment, all
supported by the full record. First, as Dr. Taren pointed
out, Adderall controls the symptoms of Ms. Figueroa's
ADHD with "good effect." Second, Ms. Figueroa
spent the great majority of her day in the regular classroom
and had no behavioral problems. Third, Dr. McHugh
noted Ms. Figueroa is able to understand, remember, and carry
out complex instructions. Last, Ms. Figueroa is
capable of a full range of daily tasks and
the entire record, there is substantial evidence for ALJ
McDade's finding Ms. Figueroa does not functionally equal
the Listing of Impairments.
ALJ McDade did not erroneously weigh Dr. Horwitz's
McDade gave less weight to Dr. Horwitz's opinion because
of inconsistency in her assessment, and an overreliance on
Ms. Figueroa and her mother's reports of Ms.
Figueroa's symptoms. Ms. Figueroa argues ALJ
McDade improperly weighed Dr. Horwitz's opinion, and did
not take into account Ms. Figueroa's cognitive
difficulties. Ms. Figueroa also argues Dr. Horwitz's
conclusion is consistent with the adduced evidence.
treating source's opinion is entitled controlling weight
"when supported by medically acceptable clinical and
laboratory diagnostic techniques and is consistent with other
substantial evidence in the record." In
rejecting a treating source's opinion, the ALJ may not
make "speculative inferences from medical reports"
and may not reject a treating source's opinion "due
to his or her own credibility judgments, speculation or lay
opinion." While the ALJ is not required to
reference every relevant treatment note in the record, the
ALJ must adequately explain her reasoning when rejecting a
treating physician's opinion. It cannot be for
"no reason or for the wrong reason."
court of appeals instructs us when a treating source's
notes, analyzed as a whole, contradict the treating
source's opinion on a claimant's ability to work, the
ALJ "may properly rely on those notes in determining the
opinion is entitled to little or no
weight." While the ALJ is "required to set
forth the reasons for his [or her] decision, " these
reasons need not be exhaustive. Rather, the ALJ must
do more than make broad conclusions without citing factual
support in the record, or draw conclusions based solely on
vague explanations without citations to the
record. An ALJ may reject a treating
source's opinion in favor of a non-examining source if
the latter is more consistent with the record. The
ultimate determination of the claimant's RFC is the
province of the ALJ upon an independent analysis of the
McDade adequately explained assigning little weight to Dr.
Horwitz's medical opinion including through citations to
the record. She found Dr. Horwitz used varied and undefined
terms when assessing the domains, which do not correspond to
any particular degree of deficit. For Acquiring and
Using Information, Dr. Horwitz's treating notes use terms
such as "impairments in expressive and receptive
language" without defining such terms. For
Interacting and Relating With Others, Dr. Horwitz opines Ms.
Figueroa has difficulties making close connections but
relates age-appropriately. These terms do not mirror a
degree of deficit (such as moderate or severe).
McDade concluded the domains assessment is at odds with Dr.
Horwitz's mental status examination. The treating notes
show Ms. Figueroa did "very poorly" for Acquiring
and Using Information, and "[n]ot well" for
Attending and Completing Tasks. Dr. Horwitz also
opines Ms. Figueroa's recent and remote memory skills are
only mildly impaired, her attention and concentration is only
mildly impaired, and she is goal-directed. This
discrepancy supports ALJ McDade's conclusion.
Figueroa argues ALJ McDade inappropriately speculated in
concluding Dr. Horwitz's opinion is entitled to less
weight. ALJ McDade stated Dr. Horwitz's assessment seemed
"based largely on the reported symptoms/history, rather
than clinical findings." Multiple references to Ms.
Figueroa's and her mother's reports throughout the
assessment supports ALJ McDade's conclusion. In the
evaluation's mental status examination, Dr. Horwitz
refers to the claimant reporting difficulty comprehending
words. In the medical and developmental
history section, Dr. Horwitz cites Ms. Figueroa's
mother. In the current functioning section,
Dr. Horwitz relies in large part on reports from Ms. Figueroa
and her mother.
on Dr. Horwitz's inconsistency and the substance of her
assessment, ALJ McDade could and did find Dr. Horwitz's
opinion is entitled to little weight. ALJ McDade provided an
adequate explanation, based on the record, for assigning
little weight to Dr. Horwitz's opinion.
ALJ McDade properly analyzed Margarita Rodriguez's
Figueroa argues ALJ McDade's reasons for discounting her
mother Margarita Rodriguez's opinion are not supported by
the record. Ms. Figueroa claims ALJ McDade improperly
discredited Ms. Rodriguez's statements regarding the
intensity and limiting effects of Ms. Figueroa's symptoms
on her ability to work.
must give great weight to subjective testimony of the
claimant's inability to perform even light or sedentary
work when this testimony is supported by competent medical
evidence. An ALJ "must give 'subjective
complaints serious consideration...and make specific findings
of fact, including credibility as to [a claimant's]
residual functional capacity.'"
Statements concerning a claimant's symptoms must be
carefully considered, but the ALJ is not required to credit
them. An ALJ can reject such claims if she
does not find them credible.
McDade's determination of Ms. Rodriguez's credibility
is supported by substantial evidence. ALJ McDade determined
Ms. Rodriguez's statements regarding the intensity and
limiting effects of Ms. Figueroa's symptoms with regard
to her ability to work were not entirely credible because of
her daily activities.
extent ALJ McDade must give great weight to Ms.
Rodriguez's subjective testimony regarding Ms.
Figueroa's inability to finish tasks or stay on task for
long periods of time, she is only required to give such
testimony great weight when it is supported by competent
medical evidence. Ms. Figueroa cites Dr. Horwitz's report
as support for Ms. Rodriguez's claims. But the support in
Dr. Horwitz's report comes from a description of Ms.
Figueroa provided by Ms. Rodriguez herself, not from Dr.
Horwitz's own examination. Dr. Horwitz notes Ms.
Figueroa's attention and concentration are mildly
impaired. She described Ms. Figueroa's
cognitive functioning as low average to
average. This assessment does not support Ms.
Rodriguez's claims of Ms. Figueroa's inability to
McDade did not find Ms. Rodriguez's testimony credible,
based on Ms. Figueroa's own testimony about her everyday
tasks and responsibilities. She helps around the house,
socializes with friends and family, attends church, and
follows television programs. She admits she can work a
job involving simple tasks. She had almost completed a course
in cosmetology. ALJ McDade relied on substantial evidence in
the record in assigning little weight to Ms. Rodriguez's
Figueroa again points to POMS. By combining select statements
from Ms. Rodriguez and consulting POMS, Ms. Figueroa claims
she would be determined disabled. But the disregard of POMS
does not undermine the substantial evidence relied on by ALJ
McDade in making its determination.
the entire record, ALJ McDade found Ms. Rodriguez's
testimony regarding the limiting effects of Ms.
Figueroa's symptoms not entirely credible, and her
decision is supported by substantial evidence.
accompanying order, we deny Ms. Figueroa's Petition for
Review and dismiss her complaint. ALJ McDade faced the
challenging task of reviewing extensive medical evidence
spanning several years and determining whether Ms. Figueroa
is capable of working. ALJ McDade acknowledged Ms.
Figueroa's limitations from a learning disorder,
borderline intellectual functioning, and attention deficit
hyperactivity disorder, but found Ms. Figueroa is capable of
completing simple, routine work with no contact with the
public and frequent interaction with co-workers. Our review
today is not based on whether we would arrive at the same
conclusion as ALJ McDade. Our role is only to determine
whether the ALJ McDade's findings are based on
substantial evidence from the record after considering the
weight assigned to the adduced evidence. ALJ McDade provided
adequate reasons supporting the assessment of Ms.
Figueroa's education; her meeting, medically equaling, or
functionally equaling the Listing of ...