RICHARDSON v. COMMISSIONER OF SOCIAL SECURITY, No. 2:2016cv08279 - Document 20 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Kevin McNulty on 12/22/17. (DD, )
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MARIE D. RICHARDSON, Civ. No. 16-8279 (KM) V. OPINION COMMISSIONER OF SOCIAL SECURITY, Defendant. KEVIN MCNULTY, U.S.D.J.: Ms. Marie D. Richardson brings this action pursuant to 45 U.S.C. 405(g) and 1383(c)(3) to review a final decision of the Commissioner of Social Security (“Commissioner”) denying her claims to Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. Supplemental Security Income (“SSI”), 42 U.S.C. § 40 1-34, and § 1381. For the reasons set forth below, the decision of the Administrative Law Judge (“ALl’) is AFFIRMED. I. BACKGROUND Ms. Richardson seeks to reverse a finding that she did not meet the Social Security Act’s definition of disability from July 28, 2011 to May 29, 2015. (P1. Br. 1).’ Ms. Richardson applied for DIB and SSI on March 15, 2013. (R. 29). In both applications, Ms. Richardson alleged disability beginning July 7, 2007. (R. 29). She alleges disabilities relating to her knees, lower back, and 1 Citations to the record are abbreviated as follows: “I?.” = Administrative Record (ECF no. 8) “P1. Br.” = Brief in Support of Plaintiff Marie D. Richardson (ECF no. 16) 1 Dockets.Justia.com Plaintiff, mental health. (R. 32-40); (P1. Br. 2-6). These claims were denied initially on May 31, 2013, and upon reconsideration on September 16, 2013. (R. 29, 14553). On November 4, 2013, Ms. Richardson filed a written request for a hearing. (R. 29). She appeared and testified at a hearing on March 31, 2015 in Newark, New Jersey. (R. 29). The attendees at the hearing were AW Theresa Merrill, vocational expert (“yE”) Tanya M. Edghill, claimant’s non-attorney representative Mario Davila, and claimant’s attorney John Fort. (R. 29). At the time of the hearing, Ms. Richardson requested to amend her alleged onset date from July 7, 2007 to July 28, 2011. (R. 29). The AW granted Ms. Richardson’s request. (R. 29). On May 29, 2015, The AW issued a decision finding that Ms. Richardson was not disabled as defined by the Social Security Act. (1?. 29-42). On September 1, 2016, the Appeals Council denied Ms. Richardson’s request for review, (R. 1-4), rendering the AW’s decision the final decision of the Commissioner. Ms. Richardson then appealed to this Court, challenging the ALl’s determination that she was not disabled from July 28, 2011 to May 29, 2015. (P1. Br. 2). II. DISCUSSION To qualify for DIB or SSI, a claimant must meet income and resource limitations and show that she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted (or can be expected to last) for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A), 1382, 1382c(a)(3)(A),(B); 20 C.F.R. § 416.905(a); see RUg v. Comm’r Soc. Sec., 570 F. App5c 262, 264 (3d Cir. 2014); Diaz u. Comm’rof Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009). A. The Five-Step Process and This Court’s Standard of Review Under the authority of the Social Security Act, the Social Security Administration has established a five-step evaluation process for determining 2 whether a claimant is entitled to benefits. 20 C.F.R. § 404.1520, 4 16.920. This Court’s review necessarily incorporates a determination of whether the AW properly followed the five-step process prescribed by regulation. The steps may be briefly summarized as follows: Step One: Determine whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. 20 C.F.R. § 404.1520(b), 416.920(b). If not, move to step two. Step Two: Determine if the claimant’s alleged impairment, or combination of impairments, is “severe.” Id. § 404.1520(c), 416.920(c). If the claimant has a severe impairment, move to step three. Step Thiee: Determine whether the impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt. 404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high level to identify clear cases of disability without further analysis.) If so, the claimant is automatically eligible to receive benefits; if not, move to step four. Id. § 404.1520(d), 4 16.920(d). Step Four: Determine whether, despite any severe impairment, the claimant retains the Residual Functional Capacity (“RFC”) to perform past relevant work. Id. § 404.1520(e)—rn, 416.920(e)—(f). If not, move to step five. Step Five: At this point, the burden shifts to the Commissioner to demonstrate that the claimant, considering her age, education, work experience, and RFC, is capable of performing jobs that exist in significant numbers in the national economy. 20 C.F.R. § 404.1520(g), 416.920(g); see Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be denied; if not, they will be awarded. As to all legal issues, this Court conducts a plenary review. See Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to factual findings, this Court adheres to the AW’s findings, as long as they are supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will 3 “determine whether the administrative record contains substantial evidence supporting the findings.” Sykes i’. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial evidence “is more than a mere scintilla but may be somewhat less than a preponderance of the evidence.” Id. (internal quotation marks and citation omitted). [IJn evaluating whether substantial evidence supports the AW’s findings leniency should be shown in establishing the claimant’s disability, and the Secretary’s responsibility to rebut it should be strictly construed. Due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails. ... ... Reefer v. Bamhad, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks and citations omitted). When there is substantial evidence to support the AW’s factual findings, however, this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g)); Zimsak, 777 F.3d at 610-11 (“[W]e are mindful that we must not substitute our own judgment for that of the fact finder.”). This Court may, under 42 U.S.C. § 405(g), affirm, modify, or reverse the Commissioner’s decision, or it may remand the matter to the Commissioner for a rehearing. Podedwomy v. Han-is, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm’r of Soc. Sec., 23SF. App’x 853, 865-66 (3d Cir. 2007). Remand is proper if the record is incomplete, or if there is a lack of substantial evidence to support a definitive finding on one or more steps of the five-step inquiry. See Podedworny, 745 F.2d at 22 1-22. Remand is also proper if the AW’s decision lacks adequate reasoning or support for its conclusions, or if it contains illogical or contradictory findings. See Burnett v. Comm’rof Soc. Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where the AW’s findings are not the product of a complete review which “explicitly 4 weigh[s] all relevant, probative and available evidence” in the record. Adomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted). B. The ALPs Decision AL) Theresa Merrill followed the five-step process in determining that Ms. Richardson was not disabled from July 28, 2011 (the alleged onset date) to May 29, 2015 (the date of her hearing). Her findings may be summarized as follows: Step One: At step one, the AL) determined that Ms. Richardson had not engaged in substantial gainful activity since July 28, 2011, the alleged onset date. (R. 32). Step Two: At step two, the AL) determined that Ms. Richardson had the following severe impairments: degenerative joint disease of the knees bilaterally, degenerative disc disease of the lumbar spine, obesity, adjustment disorder, and bipolar disorder. (R. 32). Step Three: At step three, the AL) found that Ms. Richardson did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1 (R. 32). Step Four: At step four, “[a]fter careful consideration of the entire record,” the AL) found that Ms. Richardson had the following RFC: [T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant can occasionally push and pull with the bilateral lower extremities; able to occasionally climb ramps and stairs; occasionally balance or stoop; never climb ladders, ropes, or scaffolds; never kneel, crouch, or crawl; able to frequently reach overhead with the bilateral upper extremities and frequently push and pull with the bilateral upper extremities; must avoid even moderate exposure to hazards; would be off task 5 percent of the work day because of pain and lapses in concentration; would be absent one day per month because of the impairments and the effects of medication; would be able to understand, remember, and carry out simple instructions; would be able to adapt to routine 5 changes in the work place that are occasional and that are gradually introduced. (R. 34-35). The AW also determined that Ms. Richardson was unable to perform any past relevant work as a Material Handler (Dictionary of Occupational Titles (“DOfl# 929.687-030). (R. 40). The demands of this job exceed her residual functional capacity. (R. 40). Step Five: At step five, the AW considered Ms. Richardson’s age, education, work experience, and RFC, as well as the Medical-Vocational Guidelines. (1?. 40-42). The Medical-Vocational Guidelines are tables that set forth presumptions of whether significant numbers of jobs exist in the national economy for a claimant. 20 C.F.R. Pt. 404, subpt. P, app. 2. These presumptions vary based on a claimant’s age, education, work experience, and work capability. Id. The AW determined that Ms. Richardson has been able to perform jobs existing in significant numbers in the national economy since July 28, 2011. (R. 4 1-42). Relying on the testimony of YE Tanya M. Edghill, the ALl identified several representative jobs that Ms. Richardson could perform despite her limitations: compact assembler (DOT# 739.687-066); preparer (DOT# 700.687-062); and table worker (DOT# 739.687-182). According to the YE, there are over 390,000 such jobs available nationally. (R. 41). Therefore, the AU ultimately determined that Ms. Richardson was “not disabled” under the Social Security Act. (R. 42). C. Analysis of Ms. Richardson’s Appeal Ms. Richardson challenges AW Merrill’s determination that she has not been disabled since July 28, 2011. She claims that the AU committed errors at steps two, three, four, and five. (P1. Br. 9-14). At step two, Ms. Richardson argues that the AU omitted or ignored severe impairments. (P1. Br. 14-17). At step three, Ms. Richardson contends that the AW did not discuss medical equivalents, did not consider a combination of impairments, and did not consider obesity. (P1. Br. 17-26). At step four, Ms. Richardson argues that the RFC is “unexplained,” rejects the 6 opinion of treating physicians, ignores plaintiffs medically prescribed cane, analyzes pain in “boilerplated fashion,” and “announces capacities without any evidence recited in support.” (P1. Br. 26-41). At step five, Ms. Richardson contends that the AU did not properly convey all of her credibly established limitations to the yE. I will discuss the AU’s evaluation at each step. 1. The AU’s Step Two Evaluation At step two, the AU found that Ms. Richardson’s severe impairments included degenerative joint disease of both knees, degenerative disc disease of the lumbar spine, obesity, adjustment disorder, and bipolar disorder. (R. 32). Ms. Richardson argues that AU Merrill erred in step two by ignoring or omitting severe impairments. (P1. Br. 14-17). The AU noted that “[t]here are also references to other isolated conditions such as a history of ovarian cysts, status post hysterectomy, fibroids, GERD, etc.” (R. 32). Nonetheless, the AU found that these other impairments were non-severe. (R. 32). “These impairments were diagnosed only ‘by history’ and not definitively.” (R. 32). Alternatively, the AU states that these impairments were resolved with appropriate treatment or never lasted for twelve continuous months. (R. 32). At the end of the step-two analysis, the AU states that “[T]he undersigned as given full consideration to all impairments in the record. Any impairment not specifically discussed in this decision is found to be non-severe.” (R. 32). Ms. Richardson argues that the AU did not properly consider all of her impairments, and particularly hypertension, at this stage. (P1. Br. 16). She cites a Social Security program policy statement providing that adjudicators must carefully evaluate whether an impairment is severe: A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual’s physical and mental ability(ies) to perform basic work activities . 7 Titles H & XVI: Medical Impairments That Are Not Severe, SSR 85-28 (S.S.A. 1985). She argues that, without further analysis, the court cannot determine if the findings are supported by substantial evidence in the record. (P1. Br. 1617). Ms. Richardson’s arguments regarding the AW’s step-two analysis are unavailing. First, the claimant has the burden of proof at step two to prove that a disability is severe. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); see also 20 C.F.R. § 404.1512(a) (stating that the claimant must furnish medical and other evidence that the adjudicator can use to reach conclusions about the claimant’s medical impairments). Ms. Richardson did not furnish evidence to show that her hypertension is severe—i.e., that it “significantly limits [her] physical or mental ability to do basic work activities.” See 20 C.F.R. § 404.1520(c). Ms. Richardson’s hearing testimony and the opinion of a medical doctor, stating that her hypertension is “well controlled” on medications, do not reflect a severe impairment. (R. 78-79, 431, 458). This is also true regarding Ms. Richardson’s abdominal pain from ovarian cysts, which says she feels “once in a blue moon.” (1?. 79). These impairments do not appear to significantly limit her basic work activities and Ms. Richardson does not meet her burden of proving that these impairments are severe. Second, even if the AU’s determination that Ms. Richardson’s hypertension or other impairments are not severe was in error, it would be a harmless error because the AU erred on the side of leniency in considering them at step four. When an AU finds that the claimant has at least one severe impairment, omission of another at step two may be harmless error as long as the impairment is considered regarding the RFC or would not affect the outcome of the case. Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007); see Rutherford v. Bamhart, 399 F.3d 546, 552-53 (3d Cir. 2005). Any error here would be harmless because the medical record does not indicate that the omitted impairment impacts her ability to perform basic work 8 functions and because the AW discussed the impairment when considering the RFC in any event. In particular, the AU addressed Ms. Richardson’s hypertension at a later stage of the analysis: Regarding the claimant’s hypertension, on July 27, 2011, Bernadette Cracchiolo, M.D. diagnosed the claimant with hypertension, but indicated it was well controlled. (Ex.4F/49). Nonetheless, the records show that the claimant’s condition is chronic and that it requires daily medication. The notes from May 22, 2014 states that the claimant should take Amlodipine Besylate daily for her hypertension. (Ex.9F/ 1). The records also show that smoking can contribute to her hypertension. (Ex. W/9). The undersigned further considers the claimant’s daily smoking habit when assessing her hypertension as a severe impairment. (testimony). (R. 37). This medical opinion constitutes substantial evidence that Ms. Richardson’s hypertension is not a severe impairment. In the end, the AU’s determination that Ms. Richardson’s hypertension was not a severe impairment was supported by substantial evidence. Even if her step-two analysis was not fully developed, any error was harmless. Substantial evidence and analysis of Ms. Richardson’s hypertension in connection with her RFC establish that it does not significantly impact her basic work functions. Given the standard of review, I will uphold the AU’s step-two findings. 2. The AU’s Step Three Evaluation At step three, the AU found that Ms. Richardson does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1 (R. 32). Ms. Richardson argues that the AU erred at step three by failing to address medical equivalents, her combination of impairments, and obesity. (P1. Br. 17-26). 9 i. Discussion of Obesity At step two, the AW found that Ms. Richardson’s obesity was a severe impairment. (R. 32). However, the AW failed to consider the cumulative and additional effects of Ms. Richardson’s obesity when determining if she qualified for one of the listed impairments. The AW provides a one-paragraph discussion of Ms. Richardson’s obesity at step three. The paragraph states in full: The undersigned has given consideration to Social Security Ruling 02-ip, which instructs adjudicators to consider the effects of obesity not only under the listings, but also when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual’s residual functional capacity. When obesity is identified as a medically determinable impairment, consideration will be given to any functional limitations resulting from the obesity in the residual functional capacity assessment in addition to any limitations resulting from any other physical or mental impairment identified. (R. 33). This paragraph references 551? O2-lp, the then—controlling policy guidance on obesity and listed impairments. However, this paragraph does not satisfy the AW’s obligation to consider whether obesity, in conjunction with other impairments, equals a listing. Obesity is no longer a listed impairment, but AWs must “consider jobesity’s effects when evaluating disability” and recognize that “the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately.” Titles II & XVI: Evaluation of Obesity, 551? 02-lp (S.S.A. 2002). Specifically, “obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing.” Id. Obesity is also mentioned as a potential exacerbating factor in several listings. For instance, Listing 1.00, concerning musculoskeletal disorders, states that: Obesity is a medically determinable impairment that is often associated with disturbance of the musculoskeletal system, and disturbance of this system can be a major cause of disability in individuals with obesity. The combined effects of obesity with 10 musculoskeletal impairments can be greater than the effects of each of the impairments considered separately. Therefore, when determining whether an individual with obesity has a listing-level impairment or combination of impairments, and when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual’s residual functional capacity, adjudicators must consider any additional and cumulative effects of obesity. 20 C.F.R. Pt. 404, subpt. P., app. 1, ¶ 1.OOQ. The AW’s discussion of obesity as step three does not show sufficient analysis. The AW notes that she “gives consideration to Social Security Ruling O2-lp,” but does not actually address whether Ms. Richardson’s obesity compounds her other impairments so that her impairments meet or equal a listed impairment. “[I]t is the ALT’s responsibility ... to identify the relevant listed impairment(s) and develop the arguments both for and against granting benefits.” Torres v. Comm’r of Soc. Sec., 279 F. App’x 149, 151-52 (3d Cir. 2008) (quoting Burnett u. Comm’r of Soc. Sec., 220 F.3d 112, 120 n.2 (3d Cir. 2000)) (internal quotations omitted); see also SSR 02-lp. H. Harmless Error Nonetheless, Ms. Richardson bears the burden of proving that her impairments equal or meet the listed impairments. She “does not identify specific avenues for meeting or equaling specific listings that the ALT should have considered but did not.” Holloman v. Comm’r Soc. Sec., 639 F. App’x 810, 814 (3d Cir. 2016). She makes a sterile claim of error, but offers no explanation of how further analysis could have changed the outcome of her claim. See id. “Ordinary harmless error review, in which the appellant bears the burden to demonstrate harm, is applicable to administrative appeals.” Id.; see Shinseki v. Sanders, 556 U.S. 396, 409 (2009). While a positive finding at step three would have eliminated the need to proceed through steps four and five, Ms. Richardson does not offer an explanation, based on the evidence of record, of how she might have prevailed at step three if the AU’s analysis had been more thorough. See Holloman, 639 F. App5c at 814-815 (finding harmless error 11 at step three because the appellant, who bears the burden to demonstrate harm, does not offer “how Holloman might have prevailed at step three if the AW’s analysis had been more thorough”); Rutherford v. Bamhart, 399 F.3d 546, 553 (3d Cir. 2005) (“Rutherford has not specified how that factor would affect the five-step analysis undertaken by the AU, beyond an assertion that her weight makes it more difficult for her to stand, walk and manipulate her hands and fingers. That generalized response is not enough to require a remand ....“). Ultimately, the AJJ should have more closely examined the additional or cumulative effects of Ms. Richardson’s obesity when determining, at step three, whether her impairments equal or meet the listed impairments.2 However, Ms. Richardson does not suggest how the outcome would have been different if the AU had been more thorough. Given that the AU’s step-four evaluation is supported by substantial evidence, any error at step three was harmless. The AhJ’s Step Four Evaluation 3. At step four, Ms. Richardson argues that the RFC is “unexplained,” rejects the opinion of treating physicians, ignores plaintiffs medically prescribed cane, analyzes pain in “boilerplate[j fashion,” and “announces capacities without any evidence recited in support.” (P1. Br. 26-4 1). Ms. Richardson specifically argues that (i) the AU erred in determining that she can perform sedentary work, especially given her need to use a cane; (ii) the AU did not fully credit her subjective complaints of physical pain; and (iii) the AU did not appropriately address her mental limitations when determining the RFC. i. Sedentary Work Ms. Richardson argues that the AU erred in finding that she can perform sedentary work, particularly because she needs to use a cane. (P1. Br. It appears that the AU considered the effects of Ms. Richardson’s obesity at a later stage. At step four, the AU “further limit[ed] the claimant to less than the full range of sedentary considering the combined effect of her obesity with other severe impairments” beyond the limitations suggested by Dr. Chopra, a state agency physician. (R. 39). 2 12 33). Ms. Richardson’s treating physician, Dr. Kabiawu, advised that she use a single-point cane to help her ambulate. (R. 497-98, 617). However, Dr. Kabiawu’s analysis was a check mark on a preset form. (1?. 497-98, 617). Such check-box forms are weak evidence at best. See Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (“Form reports in which a physician’s obligation is only to check a box or fill in a blank are weak evidence at best.... [W]here these so-called reports are unaccompanied by thorough written reports, their reliability is suspect.” (internal quotation marks omitted)). The AU identified several pieces of evidence to support the conclusion that Ms. Richardson could perform certain sedentary work. The AU noted Ms. Richardson’s testimony that she generally uses a cane, but sometimes does not, because it makes her left leg hurt more. (R. 35, 66). Additionally, Dr. Khurana, a state agency physician, determined that Ms. Richardson could perform sedentary work. (R. 117-18). This could include standing or walking (with normal breaks) for up to 2 hours, and sitting (with normal breaks) for 6 hours, in an 8-hour workday. (R. 117-18). Moreover, Dr. Chopra, another state agency physician, found that Ms. Richardson could stand or walk with normal breaks for about 2 hours and sit with normal breaks for about 6 hours in an 8hour workday. (N. 38). Ms. Richardson argues that the AU did not make specific references to the record in support of assessed limitations and, instead, substituted her own judgment for the expertise of physicians with medical evidence. (P1. Br, 28). However, the AU discussed Dr. Khurana and Dr. Chopra’s opinions and adopted their limitations. (N. 38-39). The AU also discussed Dr. Kabiawu’s opinion, gave it partial weight, and addressed particular reasons why she did not adopt his opinion wholesale. (N. 38). For example, Dr. Kabiawu did not provide any reasons or evidence to support his opinion that Ms. Richardson would need to take unscheduled breaks every 30 minutes for at least an hour. (N. 38). Given that two state agency physicians presented different opinions and evidence, the AU was permitted to not fully credit Dr. Kabiawu’s recommendations. 13 Accordingly, the AM assessed that Ms. Richardson could perform sedentary work. (R. 34-35). This determination is supported by substantial evidence from Dr. Khurana and Dr. Chopra’s medical opinions. ii. Subjective Complaints of Physical Pain Ms. Richardson argues that the AM erred by not fully crediting her subjective complaints of pain. (P1. Br. 34-36). The AM noted Ms. Richardson’s statements that, without her medication “her pain would be at a 10 out of 10 in severity where she would need to go to the hospital.” (R. 40). Ms. Richardson admitted that she did not take her medication on the day of the hearing so she could “be functional” at the hearing. (R. 36). Ms. Richardson argues that she meant that large doses of codeine (Percocet) and muscle relaxers would not allow her the mental clarity to testify. (P1. Br. 35-36). Nonetheless, despite not taking her medication, Ms. Richardson was able to attend the hearing and participate without going to the hospital. For this reason, among others, the AM found that her subjective complaints of disabling pain were only partially credible. Ultimately, “[tjhe credibility determinations of an administrative judge are virtually unreviewable on appeal.” Hoyman i-c Coluin, 606 F. App5c 678, 681 (3d Cir. 2015) (citing Bieher v. Dep’t oftheArmy, 287 F.3d 1358, 1364 (Fed. Cir. 2002)). Credibility determinations are entitled to “great deference.” Horodenski i-c Comm’r of Soc. Sec., 215 F. App’x 183, 188-89 (3d Cir. 2007) (citing Atlantic Limousine, Inc. a NLRB, 243 F.3d 711, 718 (3d Cir. 2001)). What is required overall is that the AM give the claimant’s testimony “serious consideration,” state her reasons for accepting or discounting it, and make “specific findings.” Rowan a Bamhart, 67 F. App5c 725, 729 (3d Cir. 2003). Where this has been done, a reviewing court will defer to the AM’s credibility determination. Given conflicting evidence, the AM was entitled to conclude that Ms. Richardson was overstating the extent of her pain symptoms. 14 iii. Mental Limitations The AlA found that Ms. Richardson has moderate difficulties with concentration, persistence, or pace. (R. 33-34). Ms. Richardson’s RFC incorporates several limitations regarding her mental condition: [Ms. Richardson] would be off task 5 percent of the work day because of pain and lapses in concentration; would be absent one day per month because of the impairments and the effects of medication; would be able to understand, remember, and carry out simple instructions; would be able to adapt to routine changes in the work place that are occasional and that are gradually introduced. (R. 34-35). Additionally, the RFC finds that Ms. Richardson must avoid even moderate exposure to hazards because of side effects of medication. (R. 38). Ms. Richardson argues that the AU erred by not properly including limitations related to her mental health in the RFC and in the hypotheticals to the VS. (P1. Br. 36-41). She makes a comparison to Ramirez zc Bamhart, where the AU’s RFC (and hypotheticals) did not address specific mental-health limitations. 372 F.3d 546 (3d Cir. 2004). In Ramirez, the AU found that the claimant “often” suffers from “deficiencies of concentration, persistence, or pace resulting in a failure to complete tasks in a timely manner (in work settings or elsewhere).” Id. at 549. The AU included several limitations in the claimant’s RFC. She was limited to sedentary work in a well-ventilated environment, with no exposure to dust, fumes, pets, animals, chemicals, or temperature extremes; occasional breaks necessary for the use of an inhaler or pump; no more than simple one or two-step tasks; no travel outside the workplace; and a reasonable opportunity to receive and make personal telephone calls. Id. at 554. The only limitations that related to the Ramirez claimant’s mental impairments were limitations to simple tasks, the restriction on travel, and The question of whether the AU incorporated mental-health-based limitations into Ms. Richardson’s RFC significantly overlaps with whether the AU’s hypotheticals to the VE addressed her mental-health concerns. This is because the AU read the entire RFC to the VE and the VE% responses were based on the RFC. (R. 87-89). 15 phone privileges. These related to claimant’s anxiety disorder, which was largely attributable to her “need to feel that she has to be reasonably protective of her children.” Id. at 555. The RFC in Ramirez did not adequately incorporate the claimant’s deficiencies in pace, which had been recognized by the AM. Id. at 554. This was particularly important because the representative jobs identified for the claimant (assembler, packer, inspector) would entail daily production quotas that would require claimant to maintain a certain pace throughout the day. Id. In Ramirez, the court found that the accommodations in the RFC would not remedy the claimant’s deficiency in concentration and pace, and that was the reason for remand. Id. at 555. In this case, however, AM Merrill found that Ms. Richardson has “a moderate limitation in concentration, persistence, or pace.” (R. 33-34). Accordingly, the AM added appropriate limitations to the RFC regarding her time off-task, absences, ability to perform only simple tasks, and a limited ability to adapt to change. (R. 34-35). Thus this AM did not commit the error attributed to the AM in Ramirez. 372 F.3d at 554. Moreover, this Circuit has regularly found that a RFC limiting claimant to simple, unskilled work is adequate to account for moderate limitations in concentration, persistence, and pace. See, e.g., Parks v. Comm’r of Soc. Sec., 401 F. App’x 651, 655-56 (3d Cir. 2010); Menkes v. Astrije, 262 F. App’x 410, 4 12-13 (3d Cir. 2008); McDonald z.’. Astrue, 293 F. App’x 941, 946-47 (3d Cir. 2008). 4. The AU’s Step Five Evaluation At step five, the AM considered Ms. Richardson’s age, education, work experience, and RFC, as well as the Medical-Vocational Guidelines, and determined that Ms. Richardson is able to perform other jobs existing in significant numbers in the national economy. (R. 40-4 1). The AU relied on the testimony of a VE to identify representative unskilled jobs that Ms. Richardson could perform within the limitations of her RFC. (R. 4 1-42). Ms. Richardson argues that the AU erred at step five by not properly conveying all of the credibly established limitations to the VE. (P1. Br. 37). 16 This challenge, in many ways, duplicates Ms. Richardson’s challenge to the RFC. The underlying argument is that the AU’s ultimate finding rests on an RFC that overstated her abilities. The AU’s RFC determination, however, was supported by substantial evidence, as established in subsection II.C.3. It is true of course that a hypothetical question posed to a VE must reflect all of the claimant’s limitations that are supported by substantial evidence, if the VE’s opinion is to be valid. See, e.g., Bums v. Bamhart, 312 F.3d 113, 123 (3d Cir. 2002) (“Where there exists in the record undisputed evidence of specific impairments not included in a hypothetical question to a vocational expert, the expert’s response is not considered substantial evidence.”). That does not mean, however, that the VE must be asked to opine on all limitations alleged by a claimant. See Rutherford a Bamhart, 399 F.3d 546, 554 (3d Cir. 2005) (“We do not require art AU to submit to the vocational expert every impairment alleged by a claimant. Instead ... hypotheticals posed must ‘accurately portray’ the claimant’s impairments and that the expert must be given an opportunity to evaluate those impairments established .... ... that are medically [Thus, t]he AU must accurately convey to the vocational expert all of claimant’s credibly established limitations.”). At the hearing, the AU asked the VE to consider a hypothetical individual with Ms. Richardson’s age, education, vocational history, and RFC. (R. 87-88). The AU read the entire RFC to the yE. (Id.). Since the RFC is supported by substantial evidence, the AU accurately portrayed Ms. Richardson’s credibly established limitations to the yE. Therefore, the AU did not err at step five. III. CONCLUSION For the foregoing reasons, Ms. Richardson has failed to demonstrate that the AU’s decision was not supported by substantial evidence. Under the applicable standard of review, that is sufficient to require that I uphold the AU’s denial of Ms. Richardson’s claims. The AU’s decision is thus AFFIRMED. An appropriate order accompanies this opinion. 17 Dated: December 22, 2017 Jo K*IN MCNULTY United States District Judge 18
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