United States District Court, E.D. Pennsylvania
P. HART, UNITED STATES MAGISTRATE JUDGE
Nakita Felder brought this action under 42 USC §405(g)
to obtain review of the decision of the Commissioner of
Social Security denying her claim for Supplemental Security
Income (“SSI”). Felder has filed a Request for
Review to which the Commissioner has responded. For the
reasons that follow, I conclude that Felder's Request for
Review should be granted and the matter remanded solely for a
calculation of benefits.
Factual and Procedural Background
was born on June 30, 1986. Record at 151. She graduated from
high school and completed several years of college but did
not obtain a degree. Record at 196. She has worked in retail
clothing sales as a clerk and as an assistant manager.
December 11, 2011, Felder filed an application for SSI.
Record at 151. This followed an incident the summer of that
year where she was arrested in Florida for refusing to pay a
cab fare and physically resisting police officers, and sent
to a mental hospital for treatment because of psychotic
behavior while in custody. Record at 254, 298. Felder alleged
disability since July 1, 2011, as a result of mental illness
and headaches. Record at 151, 195. Felder's application
for benefits was denied initially and upon reconsideration.
Record at 97, 100.
two de novo hearings in 2014 before an
Administrative Law Judge, (“ALJ”), benefits were
again denied. Record at 11. The Appeals Council denied review
on January 27, 2016. Record at 1.
then filed an action in this Court, which was given Civil
Action number 16-1231 and assigned to the Honorable Joseph F.
Leeson, Jr. On April 19, 2017, Judge Leeson adopted a Report
and Recommendation written by the undersigned, and remanded
this matter to the Commissioner for “further
development of the record, including consideration of
Felder's therapy notes, procuring a functional assessment
from her treating professionals, and the taking of testimony
from a medical expert if needed.” Order docketed in
this case as Document No. 2. The Appeals Council issued a
remand order on October 24, 2017. Record at 463.
additional hearing in this case, before a different ALJ, took
place on March 27, 2018. Record at 362. On November 6, 2018,
however, the ALJ issued a written decision denying benefits.
Record at 341. The Appeals Council did not issue a new
ruling. Felder then filed the present action. The parties
consented to proceed before the undersigned.
role of this court on judicial review is to determine whether
the Commissioner's decision is supported by substantial
evidence. 42 U.S.C. § 405(g); Richard v.
Perales, 402 U.S. 389 (1971); Doak v. Heckler,
790 F.2d 26, 86 (3d Cir. 1986); Newhouse v. Heckler,
753 F.2d 283, 285 (3d Cir. 1985). Substantial evidence is
relevant evidence viewed objectively as adequate to support a
decision. Richardson v. Perales, supra, at
401; Kangas v. Bowen, 823 F.2d 775 (3d Cir. 1987);
Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.
1979). The court must also ensure that the Agency used the
proper legal standards. Coria v. Heckler, 750 F.2d
245 (3d Cir. 1984).
prove disability, a claimant must demonstrate that there is
some “medically determinable basis for an impairment
that prevents him from engaging in any ‘substantial
gainful activity' for a twelve-month period.” 42
U.S.C. § 423(d)(1). As explained in the following agency
regulation, each case is evaluated by the Commissioner
according to a five-step process:
(i) At the first step, we consider our work activity, if any.
If you are doing substantial gainful activity, we will find
that you are not disabled. (ii) At the second step, we
consider the medical severity of your impairment(s). If you
do not have a severe medically determinable physical or
mental impairment that meets the duration requirements in
§ 404.1509, or a combination of impairments that is
severe and meets the duration requirement, we will find that
you are not disabled. (iii) At the third step, we also
consider the medical severity of your impairment(s). If you
have an impairment(s) that meets or equals one of our
listings in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled. (iv) At the
fourth step, we consider our assessment of your residual
functional capacity and your past relevant work. If you can
still do your past relevant work, we will find that you are
not disabled. (v) At the fifth and last step, we consider our
assessment of your residual functional capacity and your age,
education and work experience to see if you can make an
adjustment to other work. If you can make an adjustment to
other work, we will find that you are disabled.
20 CFR § 404.1520 (references to other regulations
The ALJ's Decision and Felder's Request for
decision now under review, i.e., the November 6, 2018,
decision, the ALJ found that Felder suffered from the severe
impairments of schizophrenia, schizoaffective disorder, and
post-traumatic stress disorder. Record at 343. She found,
however, that no impairment, and no combination of
impairments, met or medically equaled a listed impairment.
Record at 344.
determined that Felder retained the residual functional
capacity (“RFC”) to engage in a full range of
work at any exertional level, but with the following
non-exertional limitations: “the claimant is limited to
work with simple, routine, and repetitive tasks as defined in
the Dictionary of Occupational Titles (DOT) as specific
vocational preparation (SVP) levels 1 and 2; the claimant is
limited to occasional interaction with the general public,
co-workers, and supervisors; the claimant requires jobs where
the complexity of tasks is learned by demonstration and
performed by repetition with few variables, where little
judgment is required; and any changes in the workplace need
to be infrequent and gradually introduced.” Record at
upon the testimony of a vocational expert who appeared at the
hearing, the ALJ concluded that Felder could work as a
cleaner, a bagger in the garment industry, or a drier
attendant in the garment industry. Record at 354.
Accordingly, she decided that Felder was not disabled. Record
Request for Review, Felder argues that the ALJ erroneously
rejected the opinions of her treating and examining
physicians; improperly evaluated the credibility of testimony
provided by her father; and failed to include all of her
established limitations in the hypothetical questions posed
to the vocational expert. She also argues that she should
have been found to meet the requirements of Listing 12.03.
The Medical Opinions
the factors which led to the 2016 remand of this case was the
lack of a functional assessment by a treating professional in
the record. (At that stage, Felder was proceeding without
representation, and the lack of development in the record was
legally attributable to the ALJ). The record still lacks an
assessment by a treating professional, but the Agency
procured a new consultative examination by Elisabeth N.
Gibbings, Psy.D., who also completed a functional assessment.
Record at 880. On April 13, 2018, Gibbings opined that Felder
was markedly limited in the ability to interact appropriately
with the public, supervisors, or co-workers, or to respond
appropriately to usual work situations and to changes in a
routine work setting because of “diminished emotional
expression, avolition [and] alogia.” Record at 881-2.
accepted Dr. Gibbings' evaluation in part, but rejected
her findings of marked limitations as “inconsistent
with the record as a whole.” Record at 352. The ALJ
relied upon her observation that Felder was frequently said
to be “cooperative” by mental health service
providers. Id. Even Dr. Gibbings described Felder as
“generally cooperative.” Record at 877.
despite being cooperative, Felder displayed serious
abnormalities. According to Dr. Gibbings, Felder's
responses were “noticeably lacking true content”
and her “social skills were poor.” Record at 877.
Felder denied experiencing auditory or visual hallucinations,
but she also told Dr. Gibbings that “the TV does
sometimes talk directly to her” and that she believed
“people are out to get her.” Record at 876. Her
hygiene and grooming were poor, and she appeared somewhat
unkempt. Record at 877. At this time, Felder reported taking
aripiprazole (marketed as Abilify). Record at 876.
on November 28, 2016, Felder was noted by her psychotherapist
to be “cooperative.” Record at 842. Nevertheless,
she was also “unable to follow through with response,
loose association, tangential thoughts.” Again, she was
medicated with Abilify at the time of the session.
the avolition and alogia described by Dr. Gibbings are noted
throughout the record. A Biopsychosocial Evaluation completed on
August 2, 2016, at Crozer Keystone Health System Community
Miss Felder presented with an indifferent mood and
appropriate behavior during the interview. Her speech was at
a normal rate and low volume. She exhibited a flat affect.
Her thought processes were not goal directed with apparent
cognitive deficits in communication, processing and memory.
Her perception and process appeared outside normal limits.
Miss Felder could neither deny or confirm suicidal ideation
in the past or currently. She engaged in conversation, and
maintained good eye contact. She was not well groomed and did
not appear to be a reliable historian.
Record at 837. The Crozer Keystone clinician also wrote of
Felder: “She is not social and often uses word
salads.” Record at 838.
earlier, shortly after Felder's 2011 arrest, the Orange
County Corrections Department health services said of her:
“She attempts to be cooperative but answers do not
match questions.” Record at 712. She was referred to
Lakeside Behavioral Healthcare, where she was treated for six
weeks, after the prison mental health personnel noted that
she was “mentally confused, withdrawn, and responding
to internal stimuli.” Record at 254, 298. Clearly, a
cooperative attitude is not equivalent to a normal mental
when non-compliant with medication, Felder was not always
cooperative. An October 6, 2016, note from Crozer Keystone
reflects that Felder was rejected from a partial
hospitalization program to which she had been recommended by