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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

TRACEY WEIDOW, 

 Plaintiff, 

 

 v. 

CAROLYN W. COLVIN, 

COMMISSIONER OF SOCIAL 

SECURITY, 

 

 Defendant. 

CASE NO. 4:15-cv-00765- GBC 

MAGISTRATE JUDGE COHN 

MEMORANDUM 

Doc. 1, 10, 11, 18, 20, 23 

I. Procedural Background 

On October 30, 2009, a prior ALJ denied Plaintiff benefits under the Social 

Security Act. (Tr. 120). On November 19, 2010, Plaintiff applied again for supplemental 

security income (“SSI”). (Tr. 14). On June 23, 2011, the Bureau of Disability 

Determination denied this application, (Tr. 121-34) and Plaintiff requested a hearing. 

(Tr. 135-37). On November 14, 2012, an administrative law judge (“ALJ”) held a hearing 

at which Plaintiff—who was represented by an attorney—and a vocational expert (“VE”) 

appeared and testified. (Tr. 61-110). On April 11, 2013, the ALJ found that Plaintiff was 

not disabled and not entitled to benefits. (Tr. 11-31). Plaintiff requested review with the 

Appeals Council (Tr. 10), which the Appeals Council denied on February 24, 2015, 

thereby affirming the decision of the ALJ as the “final decision” of the Commissioner. 

(Tr. 1-6). See Sims v. Apfel, 530 U.S. 103, 107 (2000). 

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 On April 20, 2015, Plaintiff filed the above-captioned action pursuant to 42 U.S.C. 

§ 405(g) to appeal the decision of the Commissioner. (Doc. 1). On June 17, 2015, the 

Commissioner filed an answer and administrative transcript of proceedings. (Docs. 10, 

11). On October 27, 2015, Plaintiff filed a brief in support of the appeal (“Pl. Brief”). 

(Doc. 18). On November 27, 2015, Defendant filed a brief in response (“Def. Brief”). 

(Doc. 20). On January 29, 2016, Plaintiff filed a brief in reply (“Pl. Reply”). (Doc. 23). 

On January 11, 2016, the case was referred to the undersigned Magistrate Judge. On 

August 3, 2016, the parties consented to adjudication by the undersigned Magistrate 

Judge. (Doc. 28). The matter is now ripe for review. 

II. Standard of Review and Sequential Evaluation Process 

To receive DIB or SSI, 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); 42 U.S.C. § 1382c(a)(3)(A). The Act requires that a claimant for disability 

benefits show that he has a physical or mental impairment of such a severity that: 

He is not only unable to do his previous work but cannot, considering his 

age, education, and work experience, engage in any other kind of substantial 

gainful work which exists in the national economy, regardless of whether 

such work exists in the immediate area in which he lives, or whether a 

specific job vacancy exists for him, or whether he would be hired if he 

applied for work. 

42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B). 

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The Commissioner uses a five-step evaluation process to determine if a person is 

eligible for disability benefits. See 20 C.F.R. § 404.1520. If the Commissioner finds that a 

Plaintiff is disabled or not disabled at any point in the sequence, review does not proceed. 

Id. The Commissioner 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 from 20 C.F.R. 

Part 404, Subpart P, Appendix 1 (“Listing”); (4) whether the claimant’s impairment 

prevents the claimant from doing past relevant work; and (5) whether the claimant’s 

impairment prevents the claimant from doing any other work. Id. Before step four, the 

ALJ must also determine Plaintiff’s residual functional capacity (“RFC”). Id. 

The disability determination involves shifting burdens of proof. The claimant bears 

the burden of proof at steps one through four. If the claimant satisfies this burden, then 

the Commissioner must show at step five that jobs exist in the national economy that a 

person with the claimant’s abilities, age, education, and work experience can perform. 

See Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). The ultimate burden of 

proving disability within the meaning of the Act lies with the claimant. See 42 U.S.C. § 

423(d)(5)(A). Specifically, the Act provides that: 

An individual shall not be considered to be under a disability unless he 

furnishes such medical and other evidence of the existence thereof as the 

Commissioner of Social Security may require. An individual's statement as 

to pain or other symptoms shall not alone be conclusive evidence of 

disability as defined in this section; there must be medical signs and 

findings, established by medically acceptable clinical or laboratory 

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diagnostic techniques, which show the existence of a medical impairment 

that results from anatomical, physiological, or psychological abnormalities 

which could reasonably be expected to produce the pain or other symptoms 

alleged and which, when considered with all evidence required to be 

furnished under this paragraph (including statements of the individual or his 

physician as to the intensity and persistence of such pain or other symptoms 

which may reasonably be accepted as consistent with the medical signs and 

findings), would lead to a conclusion that the individual is under a disability. 

42 U.S.C. § 423(d)(5)(A); 42 U.S.C.A. § 1382c(a)(3)(H)(i). 

When reviewing the denial of disability benefits, the Court must determine 

whether substantial evidence supports the denial. Johnson v. Commissioner of Social 

Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence is a deferential standard of 

review. See Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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) (quoting Consolidated Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). Substantial evidence is “less than a preponderance” and “more 

than a mere scintilla.” Jesurum v. Sec'y of U.S. Dep't of Health & Human Servs., 48 F.3d 

114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Stated 

differently, this standard is met if there is sufficient evidence ‘to justify, if the trial were 

to a jury, a refusal to direct a verdict.’” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 

2003) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 

L.Ed. 456 (1951)). 

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III. Relevant Facts in the Record 

A prior decision operates as res judicata with regard to facts prior to October 30, 

2009. (Tr. 120). Plaintiff limits her appeal in this case to mental impairments. (Pl. Brief); 

(Pl. Reply). The prior ALJ summarized Plaintiff’s mental impairments as: 

In terms of the claimant's alleged psychiatric impairment; the medical 

evidence of record shows minimal impact. Treatment notes from Northeast 

Counseling Services show that from July 2007 through the last note of April 

2009, the claimant describes herself as "doing well" and was "doing fine" 

(See Exhibits CF8 at 4,5, and 8; and F17 at 11, 16, 18, and 19). There are no 

side effects from her medication. There is some mention of social anxiety, 

and accordingly, the undersigned is limiting her work with things and not 

people. In sum, the above residual functional capacity assessment is 

supported by the record as a whole. 

(Tr. 119). Plaintiff continued reporting that she was “doing well” with no medication side 

effects, psychoses, lethality, mania, or mood swings, exhibited normal mental status 

examination findings, and was assessed a GAF of 65 through June of 2010, which 

indicates that neither Plaintiff’s symptoms nor functional impairment were more than 

mild. (Tr. 401-04). Schwartz v. Colvin, 3:12-CV-01070, 2014 WL 257846 at *5, n. 15 

(M.D. Pa. Jan. 23, 2014). 

On August 9, 2010, shortly before Plaintiff re-applied for benefits under the Act, 

she followed-up with psychiatrist Dr. Rakesh Sharma, M.D., at Northeast Counseling 

Services. (Tr. 361). Plaintiff had been treating with Northeast Counseling Services since 

2005. (Tr. 362-68). Dr. Sharma noted: 

The patient was seen today for follow up. She reports that she bas been 

having some stress because of problems with her sister. Apparently, her 

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boyfriend has been accused of touching her niece. She says although nothing 

has happened legally, at this point, but it is very aggravating. She says that 

sometimes she is very irritated but she reports that overall, she has done 

well. She is taking her Prozac and she uses Xanax once in a while. She 

denies any loss of interest, motivation or suicidal thinking. 

ON EXAMINATION: the patient is alert, ambulatory and cooperative in the 

interview. She is coherent and relevant. Describes her mood as okay. Affect 

is appropriate to content of thought. Denies any suicidal or homicidal 

thinking, intent to plan. There is no evidence of psychosis. Impulse control is 

good. Judgment and insight is good. 

DIAGNOSTIC IMPRESSION: Dysthymia, Social Phobia 

RECOMMENDATION: Continue with Prozac and Xanax. Follow up will 

be in 2 months. She says that she maybe uses Xanax, 1 tablet a day, 

sometimes. She was given a 1-month supply of Xanax and a 2-month supply 

of Prozac. 

(Tr. 361). The next month, Plaintiff’s primary care provider noted “no psychological 

symptoms.” (Tr. 259). 

On May 3, 2011, Plaintiff underwent a consultative examination with Dr. Jeffrey 

Fremont, Ph.D. (Tr. 291). Plaintiff reported problems with personal care, that she had 

never had a license, had never worked, and lived with her mother and boyfriend, who was 

“on Disability.” (Tr. 291-92). Plaintiff arrived with a social worker. (Tr. 291). Plaintiff 

reported depression, hyperventilation and anxiety around people and that Klonopin made 

her tired. (Tr. 291). She denied ever being hospitalized. (Tr. 291). Mental status 

examination indicated: 

Her mental status reveals that she was alert and oriented x3. Cognitions were 

concrete. She complains of sleep disturbance and her appetite varies. She 

denies the use of tobacco, alcohol or drugs. She denies suicidal ideation. Her 

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general appearance was within normal limits. Her behavior and psychomotor 

activity were appropriate. Her speech was also within normal limits. 

Her mood was depressed and affect was flat. It certainly was appropriate to 

her mood. She denies perceptual disturbances. Her stream of thought was 

productive and displayed continuity. There was no language impairment. 

Her content of thought was without preoccupation or thought disturbance.

Her abstract thinking was limited. She could not identify any paired word 

associations nor could she identify any simple analogies. Her fund of 

information was poor. She could spell the word "world" forward but not in 

reverse. She could count by 2's and 3's very slowly. She needed to use her 

fingers. She counted forward by 7's, again, using her fingers and 

spontaneously discontinued after the number 21. She could do very basic 

single digit addition but not multiplication or division. She could also do 

very basic single digit subtraction. She was oriented in all three spheres. 

Her memory indicated there was no difficulty with her remote, recent past or 

recent memory. Her immediate retention and recall indicated she could 

remember 4 unrelated digits in the forward direction and 3 unrelated digits 

in reverse. No sign of any impulse control difficulties. Her social judgment 

is questionable and her test judgment was poor. She could identify only l out 

of 3 examples. She has almost no insight but does seem to be reliable. 

(Tr. 292). 

Dr. Fremont diagnosed mood disorder, not otherwise specified, anxiety, and rule 

out learning difficulty. (Tr. 292-93). Dr. Fremont assessed a GAF of 55, which indicates 

that neither Plaintiff’s symptoms nor functional impairment are more than moderate. (Tr. 

293). Schwartz v. Colvin, 3:12-CV-01070, 2014 WL 257846 at *5, n. 15 (M.D. Pa. Jan. 

23, 2014). Dr. Fremont did not complete an RFC assessment. Doc. 11. Dr. Fremont 

opined that Plaintiff’s functional abilities were poor, fair to poor, fair, or good, but does 

not define any of these terms. (Tr. 293-94). Dr. Fremont did not assess whether Plaintiff 

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met or equaled a Listing. Doc. 11. Dr. Fremont memorialized Plaintiff’s subjective report 

of function: 

The effect of her impairment on function indicates that she does very little. 

She shops only occasionally and if accompanied by someone. She cannot 

pay bills. She cannot cook but is able to warm soup. She will not use the 

microwave. She does not clean nor does she do the dishes. She simply sits 

all day. Does not read; does not watch television. She does not socialize and 

does not talk to neighbors. She does play games on the computer but does 

not know how to look up information or check e-mails on the computer. 

(Tr. 293). 

Plaintiff also underwent a physical consultative examination in May of 2011. (Tr. 

315-18). At that examination, Plaintiff reported that she was “physically independent,” 

“makes her own coffee,” climbs stairs, and receives help from her fiancé and an agency. 

(Tr. 314-15). Plaintiff “denied that she ever had an MRI because she said six weeks of 

physical therapy was recommended before ordering the MRl and she did not go through 

the physical therapy in the first place.” (Tr. 314). Plaintiff reported back “pain at the time 

of the exam sitting in the chair is 8 to 9 over 10 in severity” and “bilateral feet pain and 

ankle pain for five to six years. She said at the time of the exam, the pain is 9 over 10 in 

severity and the pain she says is ‘unbearable.’" (Tr. 314). With regard to carpal tunnel 

syndrome and hand pain, “does not use wrist splints and denied that surgical intervention 

was recommended.” (Tr. 314). The examiner noted “she is in no apparent physical 

distress, sitting in the chair. Sometimes actually was smiling even when she claimed the 

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pain as 9/ 10 as severity and unbearable. She actually commented on that by saying that 

‘you learn to live with it.’” (Tr. 315). 

 On May 12, 2011, state agency consultant Dr. Francis Murphy, Ph.D., reviewed 

Plaintiff’s file, including Dr. Fremont’s opinion, and authored an RFC assessment and 

Listings analysis. (Tr. 295-311). Dr. Murphy opined that Plaintiff had mild limitation in 

activities of daily living and moderate limitations in concentration, persistence, or pace 

and social functioning. (Tr. 309). Dr. Murphy opined that Plaintiff had no more than 

moderate limitations in specific work-related functions. (Tr. 295-96). Dr. Murphy noted 

that Plaintiff’s activities of daily living “are generally okay.” (Tr. 311). Dr. Murphy noted 

that the field office noted no problems during the interview, Plaintiff had never been 

hospitalized for psychiatric reasons, “mental status was entirely unremarkable” in 

treatment records, and providers assessed a GAF of 65. (Tr. 311). Dr. Murphy explained: 

The claimant can perform simple, routine, repetitive work in a stable 

environment. She could be expected to complete a normal workweek 

without exacerbation of psychological symptoms. She is capable of asking 

simple questions and accepting instruction. She retains the ability to perform 

repetitive work activities without constant supervision. There are no 

restrictions in her abilities in regards to adaptation. 

Based on the evidence of record, the claimant's statements are found to be 

partially credible. 

The claimant is able to meet the basic mental demands of competitive work 

on a sustained basis despite the limitations resulting from her impairment. 

(Tr. 297). 

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 Dr. Murphy accurately characterized the records from November of 2010 to May 

of 2011, as Plaintiff reported stress due to accusations of molestation against her 

boyfriend but denied lethality, psychoses, and hopelessness, reported her medications 

(Klonopin and Prozac) were working, and mental status examinations were normal. (Tr. 

394-400). The only exception are treatment plan updates from December 21, 2010 and 

May of 2011 when Plaintiff reported depressive symptoms of crying, isolating, and 

irritability, along with anxiety symptoms of racing heart, sweating, and shaking, and that 

she worried “about everything.” (Tr. 447-48). However, these records do not contain any 

objective findings or change in diagnoses or treatment. (Tr. 447-48). In January of 2011, 

Plaintiff submitted a Function Report indicating that she did not take part in anything, 

had social phobia, could not pay attention for long, did not finish what she started, could 

follow written but not spoken instructions, became nervous around authority figures, and 

did not handle stress or changes in routine well “at all.” (Tr. 199). The only mental status 

examinations during this period indicated that Plaintiff’s appearance was appropriate, not 

disheveled, her hygiene was good, her attitude was cooperative, motor activity was calm 

with no agitation, she had appropriate affect and euthymic mood, anxiety only “at times,” 

she denied hallucinations, delusions, suicidality, and homicidality, her judgment was 

intact, her insight was good, her memory was intact, her eye contact was good, and her 

sleep was normal. (Tr. 394-400). 

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On June 3, 2011, Plaintiff had a twenty-two minute medication management 

session with CRNP O’Boyle. (Tr. 328). Plaintiff was “doing the same. Stressors same but 

coping...able to verbalize feelings.” (Tr. 328). Examination indicated that Plaintiff’s 

appearance was appropriate, not disheveled, her hygiene was good, her attitude was 

cooperative, motor activity was calm with no agitation, she had appropriate affect and 

euthymic mood, she denied hallucinations, delusions, suicidality, and homicidality, her 

judgment was intact, her insight was good, her memory was intact, and her eye contact 

was good. (Tr. 328). CRNP O’Boyle diagnosed dysthymia and social phobia, assessed a 

GAF of 55, and continued Plaintiff’s medications. (Tr. 328). Plaintiff would remain on a 

combination of Prozac, Klonopin, and Trazodone throughout the relevant period. (Tr. 

348-49, 375-78). 

On June 30, 2011 and July 28, 2011, Plaintiff followed-up with CRNP O’Boyle. 

(Tr. 391-92). Plaintiff had reported a former friend to the police for harassment but 

“denied lethality, psychosis, or feelings of hopelessness or helplessness” with “just 

anxiety at times which is understandable.” (Tr. 391-92). Plaintiff felt “current medicine is 

working” and reported stressors related to her boyfriend but felt “he will be found not 

guilty.” (Tr. 391). Plaintiff used trazodone “only infrequently.” (Tr. 392). Examination 

indicated Plaintiff’s appearance was appropriate, not disheveled, her hygiene was good, 

her attitude was cooperative, motor activity was calm with no agitation, she had 

appropriate affect with euthymic mood, she denied hallucinations, delusions, suicidality, 

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and homicidality, her judgment was intact, her insight was good, her memory was intact, 

her eye contact was good, her thought process was relevant, and her sleep was normal. 

(Tr. 391-92). CRNP O’Boyle diagnosed dysthymia and social phobia, assessed a GAF of 

65, and continued Plaintiff’s medications. (Tr. 391-92). 

In September of 2011, Plaintiff’s treatment plan was updated and she reported 

severe symptoms, depression, lack of motivation, episodes of crying, anxiety with heart 

palpitations, hot flashes, and shaking legs, and severe daily worry. (Tr. 445-46). 

 On October 27, 2011, Plaintiff followed-up with Dr. Sharma for a fifteen minute 

medication management session. (Tr. 357, 390). Dr. Sharma noted: 

The patient was seen today for a follow-up. The patient reports that she has 

been under a lot of stress. She reports that her house was flooded and her 

boyfriend has been charged with a crime and he is supposed to go for a jury 

trial in April. The patient reports that has been having fluctuating moods 

sometimes she is feeling okay and other times feeling depressed with loss of 

interest and motivation, irritability. She reports that currently she is residing 

with her sister and there are too many people living there and she gets 

frustrated. Some tearfulness is reported. No suicidal thinking is reported. 

MENTAL STATUS EXAMINATION: The patient was alert, ambulatory 

and cooperative with the interview. The patient is coherent and relevant. 

Speech is normal in rate, rhythm and volume. Mood is described as 

sometimes depressed. Affect is appropriate to content of thought. She denies 

any suicidal or homicidal idea's, intents or plans; Auditory and visual 

hallucinations were denied. No delusional thinking is noted. The patient is 

not exhibiting any loose associations or flight of idea's. The patient remains 

oriented into three spheres. Impulse control is good. Judgment and insight is 

good. 

(Tr. 357). 

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On November 22, 2011, Plaintiff followed-up with CRNP O’Boyle. (Tr. 389). 

Plaintiff “denied lethality, psychosis, mood swings or depression” and was pleased that 

missionaries had helped clean her home after a flood. (Tr. 389). Examination indicated 

Plaintiff’s appearance was appropriate, not disheveled, her hygiene was good, her attitude 

was cooperative, motor activity was calm with no agitation, she had appropriate affect 

with euthymic mood, she denied hallucinations, delusions, suicidality, and homicidality, 

her judgment was intact, her insight was good, her memory was intact, her eye contact 

was good, her thought process was relevant, and her sleep was normal. (Tr. 389). CRNP 

O’Boyle diagnosed dysthymia and social phobia, assessed a GAF of 65, and continued 

Plaintiff’s medications. (Tr. 389). 

On December 21, 2011, Plaintiff followed-up with CRNP O’Boyle. (Tr. 388). 

Plaintiff reported she “feels medication is working and having no side effects. In FEMA 

trailer since last Thursday. No...feelings of helplessness or hopelessness. Able to 

verbalize feelings. Sleeping better now and no appetite change.” (Tr. 388). She “denied 

lethality, psychosis, mood swings or depression.” (Tr. 388). Examination indicated 

Plaintiff’s appearance was appropriate, not disheveled, her hygiene was good, her attitude 

was cooperative, motor activity was calm with no agitation, she had appropriate affect 

with euthymic mood, she denied hallucinations, delusions, suicidality, and homicidality, 

her judgment was intact, her insight was good, her memory was intact, her eye contact 

was good, her thought process was relevant, and her sleep was normal. (Tr. 388). CRNP 

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O’Boyle diagnosed dysthymia and social phobia, assessed a GAF of 65, and continued 

Plaintiff’s medications. (Tr. 388). 

On January 5, 2012, Plaintiff’s therapy treatment plan was updated and she 

reported “severe” depression with no energy or motivation, mostly related to ongoing 

stress, with anxiety, heart palpitations, and hot flashes, and had many stressful situations 

in her life. (Tr. 444). 

On January 19, 2012, Plaintiff followed-up with CRNP O’Boyle. (Tr. 387). 

Plaintiff reported she “feels she is doing well even with all the craziness in her life. 

Pleased she has her therapist who she sees weekly and can call as needed. Getting things 

together now after flood. Feels current medications are fine because stressors are all 

situational. ICM continues involvement and...finally scheduled appointment for 

[gynecologist]...denies lethality, pscyhosis, mood swings or depression. No medication 

side effects.” (Tr. 387). Examination indicated Plaintiff’s appearance was appropriate, not 

disheveled, her hygiene was good, her attitude was cooperative, motor activity was calm 

with no agitation, she had appropriate affect with euthymic mood, she denied 

hallucinations, delusions, suicidality, and homicidality, her judgment was intact, her 

insight was good, her memory was intact, her eye contact was good, her thought process 

was relevant, and her sleep was normal. (Tr. 387). CRNP O’Boyle diagnosed dysthymia 

and social phobia, assessed a GAF of 65, and continued Plaintiff’s medications. (Tr. 387). 

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On February 16, 2012, Plaintiff followed-up with CRNP O’Boyle. (Tr. 386). 

Plaintiff was anxious because she had an appointment scheduled later that day with her 

gynecologist to discuss a biopsy but “denied lethality, psychosis, mood swings or 

depression, just ‘normal anxiety.’” (Tr. 386). Plaintiff denied medication side effects but 

had been missing some medication because she forgot to take them. (Tr. 386). 

Examination indicated Plaintiff’s appearance was appropriate, not disheveled, her 

hygiene was good, her attitude was cooperative, motor activity was calm with no 

agitation, she had appropriate affect with euthymic mood, she denied hallucinations, 

delusions, suicidality, and homicidality, her judgment was intact, her insight was good, 

her memory was intact, her eye contact was good, her thought process was relevant, and 

her sleep was normal. (Tr. 386). CRNP O’Boyle diagnosed dysthymia and social phobia, 

assessed a GAF of 65, and continued Plaintiff’s medications. (Tr. 385). 

On March 15, 2012, Plaintiff followed-up with CRNP O’Boyle. (Tr. 385). Plaintiff 

was “naturally anxious” about an upcoming hysterectomy but “denied lethality, 

psychosis, mood swings or depression, just ‘normal anxiety.’” (Tr. 385). Plaintiff denied 

medication side effects and examination indicated Plaintiff’s appearance was appropriate, 

not disheveled, her hygiene was good, her attitude was cooperative, motor activity was 

calm with no agitation, she had appropriate affect with euthymic and anxious moods, she 

denied hallucinations, delusions, suicidality, and homicidality, her judgment was intact, 

her insight was good, her memory was intact, her eye contact was good, her thought 

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process was relevant, and her sleep was normal. (Tr. 385). CRNP O’Boyle diagnosed 

dysthymia and social phobia, assessed a GAF of 65, and continued Plaintiff’s 

medications. (Tr. 385). 

 On April 16, 2012, Plaintiff followed-up with Dr. Sharma. (Tr. 384). Dr. Sharma 

noted: 

The patient was seen today for this follow-up. The patient reports that she 

has been doing fairly well at present. She states that she recently had a 

hysterectomy and has been having some hot flashes but her overall moods 

have improved. She reports that she is not feeling depressed or having any 

loss of interest or motivation. Sleep and appetite remains good. 

MENTAL STATUS EXAMINATION: The patient is alert, ambulatory, 

cooperative with the interview, coherent and relevant. Speech is normal in 

rate, rhythm and volume. Mood is described as good. Affect is appropriate to 

content of thought. The patient denies any suicidal or homicidal idea's, 

intents or plans. Auditory and visual hallucinations were denied. No 

delusional thinking is noted. The patient is not exhibiting any loose 

associations or flight of idea's. The patient remains oriented into three 

spheres. Sensorium is clear. Impulse control is good. Judgment and insight is 

good. 

(Tr. 384). Dr. Sharma continued her medications. (Tr. 384). 

 The next week, Plaintiff’s therapy treatment plan was updated and she reported 

feeling less depressed, increased energy and motivation, less crying, and was learning to 

problem solve, but had anxiety constantly with heart palpitations and hot flashes. (Tr. 

443). 

 On July 13, 2012, Plaintiff had a twenty minute medication management session 

with CRNP O’Boyle. (Tr. 383). Plaintiff reported her fiancé’s trial had been postponed 

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until October and she was stressed that her cash assistance was ending in September. (Tr. 

383). She was “able to verbalize feelings,” was “coping with stressors at the time with 

help of [her case manager],” and denied depression, mood swings, and medication side 

effects. (Tr. 383). Examination indicated that Plaintiff’s appearance was appropriate, not 

disheveled, her hygiene was good, her attitude was cooperative, motor activity was calm 

with no agitation, she had appropriate affect with anxious and euthymic mood, she denied 

hallucinations, delusions, suicidality, and homicidality, her judgment was intact, her 

insight was good, her memory was intact, her eye contact was good, her thought process 

was relevant, and her sleep was normal. (Tr. 383). 

 The next week, Plaintiff’s treatment plan was updated, and she reported crying five 

or six times every day, had difficulty sleeping, had no interest or motivation, felt hopeless 

and helpless “constantly,” had stress and anxiety “through the roof,” had difficulty 

breathing and shook “constantly,” and felt completely overwhelmed. (Tr. 442). 

 On July 31, 2012, Plaintiff had a thirty minute medication management session 

with CRNP O’Boyle. (Tr. 381). Plaintiff was in an emergency evaluation “because she 

reported feeling homicidal” after her cash assistance ended and her insurance company 

mistakenly denied covering her prescriptions. (Tr. 381). “It was determined that there 

was no homicidal thought, plan or intent, just that she was not medicating properly due to 

insurance coverage problems.” (Tr. 381). Plaintiff “denied” mood swings and depression 

and reported she was “just frustrated with stressors.” (Tr. 381). Examination indicated 

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that Plaintiff’s appearance was appropriate, not disheveled, her hygiene was good, her 

attitude was cooperative, motor activity was calm with no agitation, she had appropriate 

affect with anxious and euthymic mood, she denied hallucinations, delusions, suicidality, 

and homicidality, her judgment was intact, her insight was good, her memory was intact, 

her eye contact was good, her sleep was normal, and her thought process was relevant. 

(Tr. 381). 

On August 22, 2012, Plaintiff had a twenty minute medication management 

session with Dr. Rakesh Sharma, M.D. (Tr. 327, 380). Mental status examination 

indicated: 

The patient is alert, ambulatory, and cooperative in the interview. She is 

coherent and relevant. Her speech is normal in rate and volume. Her mood is 

described as a little anxious. Her affect is appropriate to content of thought. 

The patient denies any suicidal or homicidal ideas, intent or plan. She denies 

any auditory or visual hallucinations. No delusional thinking is noted. Her 

sensorium is clear. Her impulse control is good. Her judgment and insight is 

good. 

(Tr. 327). Dr. Sharma noted: 

The patient was seen today for follow up. She reports that she has been 

feeling a little anxious and is under stress because of being in a FEMA 

trailer. She is also having conflicts with the FEMA worker. She says that she 

feels pressured to move back into her previous housing, which is not ready 

yet. The patient has an Intensive Case Manager. She says that she also 

comes for therapy, which has been extremely helpful. The patient reports 

that some days, she may have a little difficulty sleeping but she reports no 

persistent sad moods or any loss of interest or motivation. She is not 

reporting any suicidal thinking or any hopelessness. Occasionally, the 

anxiety would increase, where she would start worrying or thinking about 

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the problems that are going on to an excess and she would have some 

difficulty sleeping. 

(Tr. 327). Plaintiff’s medications were continued. (Tr. 327). 

 On October 26, 2012, Plaintiff followed-up with CRNP O’Boyle for a thirty 

minute medication management session. (Tr. 379). CRNP O’Boyle continued Plaintiff’s 

medication but indicated that they would decrease Klonopin because she had temporarily 

increased Klonopin to attend her fiancé’s trial. (Tr. 379). Examination indicated that 

Plaintiff’s appearance was appropriate, not disheveled, her hygiene was good, her attitude 

was cooperative, motor activity was calm with no agitation, she had appropriate affect, 

she had euthymic, anxious, and depressed mood, she denied hallucinations, delusions, 

suicidality, and homicidality, her judgment was intact, her insight was good, her memory 

was intact, her eye contact was good, her sleep was normal, and her thought process was 

normal. (Tr. 328). Plaintiff denied depression and reported she was “just frustrated with 

stressors.” (Tr. 379). CRNP O’Boyle assessed a GAF of 65 and diagnosed social phobia 

and dysthymia. (Tr. 379). 

 In November of 2012, Plaintiff appeared before the ALJ and testified to severe 

psychological symptoms and functional impairments. (Tr. 65). Plaintiff testified that she 

could not work because she had “a problem being around people.” (Tr. 71). She testified 

that she had a seventh or eighth grade education and had failed multiple grades. (Tr. 69-

70). She testified that she had no hobbies, did not watch much television, and got 

aggravated while playing computer games. (Tr. 74). She testified that she went with her 

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case manager to shop, had no friends, and did nothing during the day. (Tr. 75). She 

testified that she never went out to eat and never went on dates with her boyfriend. (Tr. 

78). She testified that she only associated with some family members and only attended 

family functions accompanied by one of her sisters. (Tr. 80). She reported problems 

focusing and that she could only use the computer for up to fifteen minutes. (Tr. 81-82). 

She testified that she could not use public transportation and could not travel alone. (Tr. 

87). She testified that she did not like to see Dr. Sharma and she was afraid of him. (Tr. 

89). She testified that her sessions with Dr. Sharma lasted only five or ten minutes. (Tr. 

89). She testified that she only saw CRNP O’Boyle for five minutes. (Tr. 90). She 

testified that CRNP O’Boyle did not question her on how she felt, how her week went, or 

how she had been in the last month. (Tr. 90). She testified that her brother had molested 

her when she was younger, her father was killed at a young age, and both made her more 

anxious and less trusting of people. (Tr. 92). She testified that she did not have hope for 

her life and the last time she had fun was when she was camping three years prior. (Tr. 

93). She testified to problems sleeping, flashbacks, and racing thoughts. (Tr. 94). She 

testified to anxiety attacks, chest pains, memory problems, and trouble breathing. (Tr. 

95). She testified to problems following instructions and that she got frustrated and angry 

when she received instruction. (Tr. 96). 

 On January 2, 2013, Plaintiff followed-up with CRNP O’Boyle. (Tr. 464). Plaintiff 

was “very upset because of all the stressors going on re: paramour’s incarceration, home 

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not completed yet since flood, and being denied disability. Admitted to having suicidal 

thoughts over last week but denies any at present and says she would never act on those 

thoughts. [Case worker] reports frequent contacts from Tracey and Tracey’s increased 

isolative behavior. Denies lethality, psychosis, mood swings at present but extremely 

tearful through session.” (Tr. 464). Examination indicated appropriate, not disheveled, 

appearance, good hygiene, cooperative attitude, calm motor activity with no psychomotor 

agitation, spontaneous speech, good eye contact, intact judgment, depressed and anxious 

mood, appropriate affect, normal sleep, no hallucinations, relevant thought process, no 

delusions, and good insight with a GAF of 55. (Tr. 464). Plaintiff was referred to the 

partial hospitalization program. (Tr. 464). 

On January 3, 2013, Plaintiff underwent an evaluation for a partial hospitalization 

program due to “exacerbation of symptoms (e.g. depression: isolation, no motivation 

[and] anxiety: panic attacks).” (Tr. 465, 470). Plaintiff was living with her eighty-three 

year old mother and reported “increased stress due to still living in a FEMA trailer since 

the flood last year.” (Tr. 466). She reported flashbacks to molestation by her brother since 

her fiancé had been incarcerated for molesting a twelve year old girl they were 

babysitting. (Tr. 466). She reported “having good, supportive relationships with her 

sisters [and] fiancé...she talks to them frequently.” (Tr. 466). She reported that her 

strengths included household tasks, because she “clean[s] the trailer” and “cook[s] for 

[herself] and [her] mom.” (Tr. 469). She reported that she had no leisure activities and 

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few friends. (Tr. 470). Examination indicated neat appearance, good hygiene, normal 

motor movements with no psychomotor agitation, cooperative manner, appropriate 

speech, depressed and anxious mood, related affect, no hallucinations, delusions, or 

suicidal thoughts, unimpaired memory, “good” insight and judgment, “good” motivation, 

average intelligence, and present impulse control. (Tr. 473). Providers assessed a GAF of 

50, with the highest GAF in the past year of 55. (Tr. 473). The evaluation was signed by 

staff psychiatrist Dr. Khalid Mahmood, M.D., along with Plaintiff’s case worker and Gia 

Kent, LSW. (Tr. 481). An updated treatment plan had no change in GAF or diagnoses. 

(Tr. 490). Plaintiff reported slight improvement in motivation and no improvement in her 

other symptoms. (Tr. 486-87). 

Another psychiatric evaluation from January 3, 2013 and signed by psychiatrist Dr. 

P.S. Sriharsha, M.D., assessed dysthymia, social phobia by history, and possible PTSD 

with a GAF of 50. (Tr. 463). Mental status examination indicated “the patient is awake, 

alert and cooperative. Gait fair. Personal hyegine is fair. The patient is overweight. 

Speech is clear, coherent, relevant, spontaneous, and productive. Reaction times average. 

Eye contact is moderate. The patient's affect is depressed. Frequently tearful. No suicidal 

thought or plans. No hallucinations. Short-term plans are fair. Memory functioning is 

good. Retention recall is good. Attention, concentration and intellectual functioning are 

good. Orientation is good to time, place and person. Judgment and insight are 

questionable.” (Tr. 463). Plaintiff reported that her boyfriend’s recent incarceration had 

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“caused a lot of problems” because “she and her mother...depended on him a great deal 

apparently.” (Tr. 462). 

On January 29, 2013, Dr. Mahmood noted that Plaintiff was “somewhat better” but 

had been “somewhat depressed” and that her boyfriend’s incarceration “triggered her 

flashbacks and nightmares.” (Tr. 461). Examination indicated: 

The patient was cooperative. She was talking with good eye contact. Her 

speech is of a normal rate, volume and rhythm. She describes her mood as 

feeling somewhat depressed. Affect is appropriate. Her thought is goal 

directed. Thought content is free of delusions. She denies auditory or visual 

hallucinations. She denies suicidal or homicidal thinking. 

(Tr. 461). 

 In January of 2013, Plaintiff’s case manager, Mandy Gibson, submitted an opinion 

in response to interrogatories. (Tr. 451). Ms. Gibson indicated that Plaintiff had been in 

intensive case management services since July 16, 2010. (Tr. 451). She indicated that 

Plaintiff “does not drive, does not own a vehicle, and experiences extreme anxiety and 

panic attacks in public places on her own.” (Tr. 452). Ms. Gibson indicated that Plaintiff 

had experienced an increase in fear and anxiety since beginning the partial hospitalization 

program. (Tr. 453). She opined that Plaintiff had marked or extreme limitations in most 

areas of work-related function, although she noted that “case management is not a clinical 

service.” (Tr. 454-56). She indicated that she had observed Plaintiff suffer panic attacks, 

but did not specify their frequency or severity. (Tr. 456). 

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 In February of 2013, Lisa Wittar, LSW, completed interrogatories. (Tr. 511). Ms. 

Wittar opined Plaintiff would have marked or extreme impairments in working with 

others, making simple decisions, completing a normal workday or workweek, and 

performing at a consistent pace because Plaintiff “is unable to focus, hold a simple 

conversation with peers due to extreme anxiety...generally would sit and cry in group 

setting.” (Tr. 505). Ms. Wittar opined that Plaintiff was markedly limited in interacting 

with the public, supervisors, coworkers, or peers and extremely limited in traveling to 

unfamiliar places, setting realistic goals, or making plans independent of others because 

Plaintiff “has attempted to work and is unable to follow instructions that force her out of 

her comfort zone (anything, anyone unfamiliar).” (Tr. 506). She opined that Plaintiff was 

“not limited” in preparing meals, paying household bills, managing her own funds, was 

moderately limited in keeping a residence clean and repaired, and markedly limited in 

shopping. (Tr. 506). 

 Ms. Wittar identified Plaintiff’s diagnoses as dysthymia disorder and generalized 

anxiety disorder, and explained Plaintiff had “ongoing depression and anxiety symptoms 

frequently reported in severe range...has difficulty functioning outside her home and 

immediate friends and family members...has limited insight into behavior and limited 

coping skills, does not manage stress well...attempted limited work routine in controlled 

environment and did not manage well, lasting only a couple of weeks.” (Tr. 501). Ms. 

Wittar opined that, since October of 2005, Plaintiff had “a residual disease process that 

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has resulted in such marginal adjustment that even a minimal increase in mental demands 

or change in the environment would be predicted to cause the individual to 

decompensate.” (Tr. 511). Ms. Wittar indicated that her opinion was based on her 

observations, Plaintiff’s reports, records from other mental health professionals, and 

information provided by family or friends. (Tr. 510). She opined that Plaintiff’s 

symptoms included agoraphobia, anxiety attacks, appetite disturbance, sleep disturbance, 

psychomotor agitation, panic attacks in social or stressful situation, helplessness, 

hopelessness, difficulty concentrating or thinking, paranoia, easy distractibility, illogical 

thinking, emotional withdrawal/isolation, emotional lability, apprehensive expectation, 

vigilance and scanning, exaggerated startle response, seclusiveness, impaired insight, and 

tearfulness. (Tr. 508-09). 

IV. Plaintiff Allegations of Error 

a. Credibility 

Plaintiff asserts that the ALJ erred in assessing her credibility. (Pl. Brief at 17). 

When making a credibility finding, “the adjudicator must consider whether there is an 

underlying medically determinable physical or mental impairment(s)...that could 

reasonably be expected to produce the individual’s pain or other symptoms.” SSR 96-7P. 

Then: 

[T]he adjudicator must evaluate the intensity, persistence, and limiting 

effects of the individual’s symptoms to determine the extent to which the 

symptoms limit the individual’s ability to do basic work activities. For this 

purpose, whenever the individual’s statements about the intensity, 

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persistence, or functionally limiting effects of pain or other symptoms are 

not substantiated by objective medical evidence, the adjudicator must make 

a finding on the credibility of the individual’s statements based on a 

consideration of the entire case record. 

SSR 96-7P; see also 20 C.F.R. § 416.929. “Under this evaluation, a variety of factors are 

considered, such as: (1) ‘objective medical evidence,’ (2) ‘daily activities,’ (3) ‘location, 

duration, frequency and intensity,’ (4) medication prescribed, including its effectiveness 

and side effects, (5) treatment, and (6) other measures to relieve pain.” Daniello v. 

Colvin, CIV. 12-1023-GMS-MPT, 2013 WL 2405442 (D. Del. June 3, 2013) (citing 20 

C.F.R. § 404.1529(c)). 

Plaintiff asserts that the ALJ erred in evaluating her activities of daily living to 

undermine her credibility. (Pl. Brief at 17); (Pl. Reply at 1). The Court assumes without 

deciding that the ALJ erred in evaluating activities of daily living. “[W]hether the error is 

harmless depends on whether the other reasons cited by the ALJ...provide substantial 

evidence for her decision.” Brumbaugh v. Colvin, 3:14–CV–888, 2014 WL 5325346, at 

*16 (M.D.Pa. Oct. 20, 2014). The ALJ also relied on a lack of objective medical 

evidence, the consultative examining opinion, the non-examining, non-treating medical 

opinion, inconsistent claims, Plaintiff’s poor work history, conservative treatment, and 

non-compliance with treatment. (Tr. 22-25). These rationales are accurate 

characterizations of the record and proper reasons to find Plaintiff less than fully credible. 

See SSR 96-7p. 

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The ALJ found that the lack of treatment for physical complaints and lack of 

findings on physical examination, despite allegations of debilitating pain, rendered 

Plaintiff less than fully credible. (Tr. 22-25). The ALJ properly relied on the discrepancy 

between Plaintiff’s allegations regarding physical impairments and her conservative 

treatment and benign examination findings to find her less than fully credible. See SSR 

96-7p.1

 The ALJ is authorized to consider the absence of objective findings. Id. (“The 

regulations at 20 CFR 404.1529(c)(2) and 416.929(c)(2) provide that objective medical 

evidence "is a useful indicator to assist us in making reasonable conclusions about the 

intensity and persistence of" an individual's symptoms and the effects those symptoms 

may have on the individual's ability to function. The examples in the regulations (reduced 

joint motion, muscle spasm, sensory deficit, and motor disruption) illustrate findings that 

may result from, or be associated with, the symptom of pain. When present, these 

findings tend to lend credibility to an individual's allegations about pain or other 

symptoms and their functional effects.”). The ALJ is also authorized to consider 

conservative treatment. Id. (“In general, a longitudinal medical record demonstrating an 

individual's attempts to seek medical treatment for pain or other symptoms and to follow 

that treatment once it is prescribed lends support to an individual's allegations of intense 

and persistent pain or other symptoms for the purposes of judging the credibility of the 

individual's statements. Persistent attempts by the individual to obtain relief of pain or 

 1

 SSR 96-7p was superceded by SSR 16-3p on March 28, 2016, but the Court reviews the 

ALJ’s findings based on the law in existence at the time. See 42 U.S.C. §405(g). 

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other symptoms, such as by increasing medications, trials of a variety of treatment 

modalities in an attempt to find one that works or that does not have side effects, referrals 

to specialists, or changing treatment sources may be a strong indication that the 

symptoms are a source of distress to the individual and generally lend support to an 

individual's allegations of intense and persistent symptoms. On the other hand, the 

individual's statements may be less credible if the level or frequency of treatment is 

inconsistent with the level of complaints, or if the medical reports or records show that 

the individual is not following the treatment as prescribed and there are no good reasons 

for this failure”). The ALJ should not rely on conservative treatment without considering 

other explanations for conservative treatment, like financial constraints, but Plaintiff has 

not offered any alternative explanation here. Id.; (Pl. Brief); (Pl. Reply). Plaintiff does not 

challenge the ALJ’s reliance on conservative treatment for physical impairments or the 

lack of findings on physical examination. (Pl. Brief); (Pl. Reply). Plaintiff limits her 

appeal to mental health impairments, but the ALJ explained that these discrepancies 

undermined Plaintiff’s credibility as a whole. (Tr. 25). Plaintiff does not demonstrate that 

no reasonable person would have found her less than fully credible based on the 

discrepancy between her allegations of “unbearable” physical pain and the lack of 

treatment and examination findings. (Tr. 25). 

The ALJ found that Plaintiff’s poor work history undermined her credibility that 

she was unable to work as a result of disabling medical conditions. (Tr. 23). Under ruling 

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96–7p, a credibility determination of an individual's statements about pain or other 

symptoms and about the effect the symptoms can be based on “[s]tatements and reports 

from the individual and from treating or examining physicians or psychologists and other 

persons about ... prior work record and efforts to work ....” SSR 96–7p; see also 

Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.1979) (Work history is a proper 

consideration in the credibility assessment). The ALJ accurately characterized the record 

as showing poor work history. Doc. 11. Plaintiff does not challenge this rationale on 

appeal. (Pl. Brief); (Pl. Reply). Plaintiff appears to assert that she is more credible 

because she was “never being able to hold a job.” (Pl. Brief at 5). However, Plaintiff was 

previously denied benefits through October of 2009. (Tr. 120). Res judicata requires the 

Court to conclude that, during this time, Plaintiff was able to work. (Tr. 14). The ALJ 

properly relied on Plaintiff’s poor work history to find her less than fully credible. See 

SSR 96-7p. 

The ALJ found that Plaintiff made inconsistent claims. The ALJ a notes the 

inconsistency between Plaintiff’s reports to Dr. Sharma and CRNP O’Boyle with 

Plaintiff’s reports to Ms. Wittar. Plaintiff contends that these discrepancies exist because 

she only saw Dr. Sharma and Ms. Wittar for short medication management checks every 

few months, while she saw Ms. Wittar much more frequently. (Pl. Brief). This could 

explain a lack of complaints in Dr. Sharma and CRNP O’Boyle’s records, but not 

Plaintiff’s affirmative denial of complaints in these records. The ALJ notes that Plaintiff 

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affirmatively reported that she was “doing well and complaining of no major depressive 

symptoms or mood swings,” reported good sleep and appetite, walking for exercise to 

lose weight, had only “occasional anxiety and worry” with “no persistent sad moods, or 

any loss of interest or motivation,” and was “just frustrated with stressors involving her 

boyfriend,” who was incarcerated. (Tr. 22-23). 

Plaintiff’s brief asserts that she is afraid of Dr. Sharma, but that still does not 

explain the discrepancies. (Pl. Brief). No medical records contain Plaintiff’s claim that 

she is afraid of Dr. Sharma, and she only testified that she was afraid of Dr. Sharma upon 

prompting from her attorney. (Tr. 89). Moreover, the ALJ also relied on Plaintiff’s 

inconsistent claims regarding molestation by her brother; Plaintiff alternatively reported 

molestation by her brother and denied molestation by her brother. (Tr. 24). Plaintiff does 

not provide any explanation for this inconsistency on appeal. (Pl. Brief); (Pl. Reply). The 

Court also notes that Plaintiff reported much more restrictive activities of daily living in 

support of her application for benefits than she did to treating providers. For instance, she 

testified in November of 2012 that she did not cook and only performed “light cleaning,” 

(Tr. 73). In contrast, two months later, she reported during her intake for partial 

hospitalization that her strengths included household tasks, because she “clean[s] the 

trailer” and “cook[s] for [herself] and [her] mom.” (Tr. 466, 469). 

The ALJ also relied on Dr. Murphy’s opinion, Dr. Freemont’s GAF score of 55, 

and GAF scores of 55 or above from treating providers except for a short duration after 

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her boyfriend was incarcerated. (Tr. 22-25). As discussed below, the ALJ properly 

evaluated the opinion evidence and relied on these opinions. Infra. These opinions also 

lend credence to the ALJ’s conclusion regarding a lack of objective evidence to support 

greater mental health limitations. (Tr. 22-23) (“mental exams are within normal 

limits...mental status examinations continued to be within normal limits and her GAF 

scores continued to be noted at 65, even at the emergency evaluation”). 

The ALJ is entitled to deference with regard to credibility determinations. See 

 Szallar v. Comm'r Soc. Sec., No. 15-1776, 2015 WL 7445399, at *1 (3d Cir. Nov. 24, 

2015) (“the ALJ's assessment of his credibility is entitled to our substantial deference”) 

(citing Zirnsak v. Colvin, 777 F.3d 607, 612–13 (3d Cir.2014)). Moreover, “[n]either the 

district court nor this court is empowered to weigh the evidence or substitute its 

conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d 

Cir. 1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir.1984)); see also 

Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.2011) (“Courts are not 

permitted to re-weigh the evidence or impose their own factual determinations”) (citing 

Richardson v. Perales, 402 U.S. 389, 401 (1971)). Plaintiff cannot demonstrate that no 

reasonable person would have relied on the lack of objective medical evidence, the 

consultative examining opinion, the non-examining, non-treating medical opinion, 

inconsistent claims, Plaintiff’s poor work history, conservative treatment, and noncompliance with treatment to find that Plaintiff was less than fully credible. Reefer v. 

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Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). The Court does not remand on these 

grounds. 

b. Medical Opinions 

The record contains no treating source medical opinions supporting Plaintiff’s 

claim for benefits. Doc. 11. At one point, Plaintiff’s psychiatrist assessed a GAF of 50. 

(Tr. 463). However, a GAF of 50 does not necessarily support disability, because it 

means that either Plaintiff’s symptoms or functional impairment were severe. This is 

because: 

 The GAF score allows a clinician to indicate his judgment of a person's 

overall psychological, social and occupational functioning, in order to assess 

the person's mental health illness. A GAF score is set within a particular 

range if either the symptom severity or the level of functioning falls within 

that range. The score is useful in planning treatment and predicting 

outcomes. Id. The GAF rating is the single value that best reflects the 

individual's overall functioning at the time of examination. The rating, 

however, has two components: (1) symptom severity and (2) social and 

occupational functioning. The GAF is within a particular range if either the 

symptom severity or the social and occupational level of functioning falls 

within that range. When the individual's symptom severity and functioning 

level are discordant, the GAF rating reflects the worse of the two. 

Schwartz v. Colvin, 3:12-CV-01070, 2014 WL 257846 at *5, n. 15 (M.D. Pa. Jan. 23, 

2014). Thus, a GAF score of 60 indicates that neither the claimant’s function nor 

symptoms are more than mild. Id. In contrast, a GAF score of 50 indicates that either the 

claimant’s function or symptoms are severe, but not necessarily both. Id. (“[A]suicidal 

patient who is gainfully employed would have a GAF rating below 20.”). In other words, 

a GAF of 65 would affirmatively support the ALJ because Plaintiff’s functional 

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impairment could not be more than mild, while a GAF of 50 could support disability or 

non-disability. Id. Moreover, the ALJ explained that the GAF of 50 occurred during an 

exacerbation of symptoms that was not expected to last for twelve months or more. (Tr. 

23) (“No significant weight is given to the GAF score of 50. The GAF of 50 is consistent 

with her entry to the partial program due to the temporary increase in symptoms due to 

stressors; however, her overall GAF scores were 55 and above, and there is an 

expectation of improvement with her release from the partial program expected in March 

2013. Thus, greater weight is given to the GAF of 55 and no significant weight is given 

to the GAF of 50.”). There was no treating source medical opinion that Plaintiff suffered 

disabling limitations under the definition of the Act, which requires a twelve month 

duration. Id. 

Only acceptable medical sources can be treating sources or submit medical 

opinions. See SSR 06-3p. Plaintiff asserts that “the reality of the public mental health 

system” is such that unacceptable medical sources provide the majority of treatment. (Pl. 

Brief at 16). However, the Court is constrained by the Regulations and SSR 06-3p, and 

cannot consider Ms. Wittar a treating source. See 20 C.F.R. §404.1527(a); SSR 06-3p. 

Plaintiff cites a variety of cases that apply to treating sources and the treating source rule, 

but there were no opinions entitled to the treating source rule before the ALJ. (Pl. Brief at 

19-20). 

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 Plaintiff’s failure to submit treating source medical opinions is significant because 

the ALJ must comply with heightened requirements to reject treating source medical 

opinions, but these requirements do not apply to other opinions. See 20 C.F.R. 

§404.1527(c)(2) (ALJ must assign controlling weight to some treating source medical 

opinions and must provide “good reasons” for the assignment of weight when they are 

not entitled to controlling weight). When the ALJ does not assign controlling weight to a 

treating source opinion, ALJ applies the factors in 20 C.F.R. §404.1527(c). Section 

404.1527(c)(1) provides that, “[g]enerally, [the Commissioner] give[s] more weight to 

the opinion of a source who has examined you than to the opinion of a source who has 

not examined you.” Id. Pursuant to 20 C.F.R. §404.1527(c)(3), “[t]he more a medical 

source presents relevant evidence to support an opinion, particularly medical signs and 

laboratory findings, the more weight we will give that opinion” and “[t]he better an 

explanation a source provides for an opinion, the more weight we will give that opinion.” 

Id. Pursuant to 20 C.F.R. §404.1527(c)(4), “the more consistent an opinion is with the 

record as a whole, the more weight we will give to that opinion.” Id. Pursuant to 20 

C.F.R. §404.1527(c)(5), more weight may be assigned to specialists, and 20 C.F.R. 

§404.1527(c)(6) allows consideration of other factors which “tend to support or 

contradict the opinion.” Id. 

The ALJ relied in part on both non-treating opinions, writing: 

Dr. Freemont noted diagnoses of mood disorder and anxiety, and he noted a 

GAF score of 55, indicating no more than moderate symptoms and 

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limitations. The undersigned gives great weight to this GAF score of 55 

because it is consistent with the longitudinal evidence of record and the 

records from treating sources, which demonstrate no more than mild to 

moderate symptoms. Dr. Freemont obtained a detailed history and 

performed a detailed mental status examination. Thus, this assessment is 

given great weight. 

... 

Dr. Murphy indicated that claimant has moderate limitations in 

understanding, remembering, and carrying out detailed instmctions; 

moderate limitations in working in proximity to others; and moderate 

limitations in social interaction. Overall, Dr. Murphy indicated that claimant 

could meet the basic mental demands of competitive work on a sustained 

basis despite the limitations arising as a result of her impairments. This 

assessment is consistent with the longitudinal evidence of record and the 

records from her treating psychiatrist/nurse practitioner, which demonstrate 

no more than moderate limitations. Therefore, the undersigned has given Dr. 

Murphy's assessment great weight. 

... 

Dr. Freemont indicated that claimant had a fair to poor ability in all areas of 

occupational, performance, and social adjustments. He also noted a GAF 

score of 55, indicating moderate limitations in functioning. The undersigned 

agrees with this assessment to the extent it supports that claimant has no 

more than moderate mental functional limitations. The indications of fair to 

poor abilities are inconsistent with the longitudinal record and appear to be 

based on claimant's subjective complaints. Therefore, the undersigned has 

given this assessment only some weight. 

(Tr. 23-25). 

SSR 06-3p requires the ALJ to “evaluate” opinions from medical sources who are 

not acceptable medical sources. Id. The ALJ complied with SSR 06-3p with regard to 

Ms. Wittar and Ms. Gibson, writing: 

The undersigned has considered the medical source statements of Mandy 

Gibson (claimant's social worker) and Lisa Wittar (claimant'S outpatient 

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psychotherapist) (Exhibits D13F, D16F). Ms. Gibson and Ms. Wittar 

provided answers to interrogatories concerning claimant's mental 

functioning. Both indicated marked and extreme limitations in almost every 

area of work-related mental functioning. However, Ms. Wittar also indicated 

that claimant had no limitations in understanding, remembering, and 

carrying out short, simple instructions. The undersigned notes that such 

marked and extreme limitations are inconsistent with the longitudinal record 

as a whole, including her treating psychiatrist and nurse practitioner. 

Furthermore, Ms. Gibson and Ms. Wittar are not psychiatrists or 

psychologists trained in evaluating mental functioning. Thus, these 

marked/extreme limitations are given no significant weight in evaluating the 

claimant's residual functional capacity. 

(Tr. 25). 

 Plaintiff asserts that the “the ALJ basically ignored or dismissed the abundance of 

evidence favorable to the claimant from Ms. Wittar and Gibson. There was no rational 

reason provided for such dismissal of critical evidence, in order to rely on the opinion a 

nonwexamining psychologist, and a twisted review of the "facts.’” (Pl. Brief at 8). As 

noted above, the ALJ did not “ignore” this evidence, but acknowledged it, evaluated it, 

and concluded that it was inconsistent with Dr. Murphy’s opinion and Dr. Sharma’s 

treatment notes. (Tr. 25). These are rational reasons, particularly combined with the 

reasonable finding described above that Plaintiff’s testimony was not fully credible. 

Supra. With regard to Ms. Gibson, her opinion is of limited probative value. She declined 

to provide clinical findings. (Tr. 452-53, 456). Ms. Gibson noted that Plaintiff had panic 

attacks in public “on her own,” but Ms. Gibson could not personally observe Plaintiff 

while she was on her own, so this opinion is based on Plaintiff’s subjective claims, which 

were less than fully credible. Supra. Ms. Gibson also indicated that she had observed 

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Plaintiff suffer panic attacks, but did not specify the nature, frequency, or triggering 

environments of those panic attacks. (Tr. 456). With regard to Ms. Wittar, the ALJ 

properly found that her opinion was inconsistent with the longitudinal record. Ms. Wittar 

identified symptoms that were either absent from or affirmatively denied in the treatment 

records. For instance, like Dr. Fremont, she indicated that Plaintiff had limited insight 

and poor appetite and sleep. (Tr. 509-09). As discussed below, those observations are 

contradicted by almost every treatment record and mental status examination during the 

relevant period. Infra. Similarly, Ms. Wittar identified psychomotor agitation. (Tr. 508-

09). Plaintiff reported physical shakiness in her treatment plans and to Dr. Fremont, but 

every mental status examination conducted by Dr. Sharma and CRNP O’Boyle indicated 

calm psychomotor activity with no agitation. (Tr. 379-99, 464, 473). Ms. Wittar 

identified difficulty concentrating and illogical thinking, but all of the mental status 

examinations by Dr. Sharma and CRNP O’Boyle indicated normal thought process. (Tr. 

379-99, 464, 473). Even on intake to the partial hospitalization program, the examining 

psychiatrist observed “[a]ttention, concentration and intellectual functioning are good.” 

(Tr. 463). Ms. Wittar opined that Plaintiff’s symptoms had been disabling since October 

of 2005, but this contradicts the prior ALJ’s finding that they were not disabling through 

at least October of 2009. (Tr. 120). Plaintiff cannot demonstrate that no reasonable person 

would have assigned these opinions no significant weight. Reefer v. Barnhart, 326 F.3d 

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376, 379 (3d Cir. 2003). Plaintiff’s alleged fear of Dr. Sharma is insufficient to meet this 

burden. Id. 

Plaintiff asserts that the ALJ erred in assessing Dr. Fremont’s opinion. The ALJ 

concluded that his “indication of fair to poor abilities are inconsistent with the 

longitudinal record.” (Tr. 25). This is an accurate characterization of the record. As 

discussed below, Plaintiff reported some subjective complaints to Dr. Fremont that were 

denied throughout the treatment record. Infra. Moreover, Dr. Fremont’s mental status 

examination contradicts essentially all of the mental status examinations by treatment 

providers. For instance, Dr. Fremont indicated that Plaintiff had “almost no insight” and 

her judgment was questionable and poor. (Tr. 292). However, on October 4, 2010, 

December 14, 2010, January 4, 2011, February 24, 2011, March 31, 2011, May 5, 2011, 

June 3, 2011, June 30, 2011, July 28, 2011, October 27, 2011, November 22, 2011, 

December 2, 2011, January 19, 2012, February 16, 2012, March 15, 2012, April 16, 

2012, July 13, 2012, July 31, 2012, August 22, 2012, and October 26, 2012, either Dr. 

Sharma or CRNP O’Boyle observed that Plaintiff’s insight was “good” and her judgment 

was either “good” or “intact,” and not “poor” or “questionable.” (Tr. 379-99). Even on 

January 2, 2013, when Plaintiff was referred to partial hospitalization, and January 3, 

2013, when she underwent intake for partial hospitalization, providers observed that her 

insight was good and her judgment was intact or good. (Tr. 464, 473). Later that day, a 

new psychiatrist indicated that her insight and judgment were questionable, but this was 

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during an exacerbation of symptoms eighteen months after Dr. Fremont’s examination. 

(Tr. 463). 

The Court also notes that Dr. Fremont’s examination findings are ambiguous. (Tr. 

293-94). Dr. Fremont did not directly address the Listings, complete an RFC assessment, 

or assess whether Plaintiff’s limitations were marked or moderate. (Tr. 293-94). Dr. 

Fremont opined that Plaintiff’s functional abilities were poor, fair to poor, fair, or good, 

but does not define any of these terms. (Tr. 293-94). There is no evidence that a “poor” 

ability correlates with a marked, rather than moderate, impairment. Doc. 11. Instead, Dr. 

Fremont opined that Plaintiff’s GAF was 55, which means that neither her symptoms nor 

her functional impairment was more than moderate. (Tr. 292). Dr. Murphy, in contrast, 

specifically evaluated the Listings, completed an RFC, and assessed whether Plaintiff’s 

limitations were marked or moderate. (Tr. 295-311). An ALJ may credit a more specific 

opinion over a less specific opinion. See 20 C.F.R. §404.1527(c)(3). 

The ALJ also assigned less weight to Dr. Fremont’s opinion regarding fair to poor 

abilities because it was based on Plaintiff’s subjective complaints. (Tr. 23-25). This is an 

accurate characterization of the record. Dr. Fremont memorialized Plaintiff’s subjective 

report of function: 

The effect of her impairment on function indicates that she does very little. 

She stops only occasionally and if accompanied by someone. She cannot pay 

bills. She cannot cook but is able to warm soup. She will not use the 

microwave. She does not clean nor does she do the dishes. She simply sits 

all day. Does not read; does not watch television. She does not socialize and 

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does not talk to neighbors. She does play games on the computer but does 

not know how to look up information or check e-mails on the computer. 

(Tr. 293). However, “the mere memorialization of a claimant's subjective statements in a 

medical report does not elevate those statements to a medical opinion.” Morris v. 

Barnhart, 78 F. App'x 820, 824–25 (3d Cir. 2003)(citing Craig v. Chater, 76 F.3d 585, 

590 n. 2 (4th Cir.1996)). Plaintiff’s testimony and subjective reports support her claims, 

but as discussed above, the ALJ properly found that her testimony was not fully credible. 

Supra. “An ALJ may discredit a physician's opinion on disability that was premised 

largely on the claimant's own accounts of her symptoms and limitations when the 

claimant's complaints are properly discounted.” Id. (citing Fair v. Bowen, 885 F.2d 597, 

605 (9th Cir.1989) (“The ALJ thus disregarded Dr. Bliss' opinion because it was 

premised on Fair's own subjective complaints, which the ALJ had already properly 

discounted. This constitutes a specific, legitimate reason for rejecting the opinion of a 

treating physician.”)). Several of the specific subjective claims Plaintiff made to Dr. 

Fremont are contradicted by almost all of the treatment records. For instance, Dr. 

Fremont noted in May of 2011 that Plaintiff reported sleep disturbance. (Tr. 292). 

However, Plaintiff reported that her sleep was “normal” to CRNP O’Boyle or Dr. Sharma 

at visits on October 4, 2010, December 14, 2010, January 4, 2011, February 24, 2011, 

May 5, 2011, June 30, 2011, July 28, 2011, November 22, 2011, December 2, 2011, 

January 19, 2012, Feburary 16, 2012, March 15, 2012, April 16, 2012, July 13, 2012, and 

July 31, 2012. (Tr. 379-99). For instance, on December 14, 2010, Plaintiff reported “no 

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sleep problems,” and on April 16, 2012, Plaintiff reported that her sleep “remains” good. 

(Tr. 398, 484). In August of 2012, Plaintiff reported that “some days, she may have a 

little difficulty sleeping,” but by October 26, 2012, she was reporting that her sleep was 

“normal” again. (Tr. 379-80). Even when Plaintiff was referred for partial hospitalization 

due to an exacerbation of symptoms on January 2, 2013, she reported normal sleep. (Tr. 

464). Similarly, Plaintiff reported to Dr. Fremont that her appetite varies. (Tr. 292). On 

the same treatment dates with CRNP O’Boyle or Dr. Sharma listed above, Plaintiff 

denied any increased or decreased appetite. (Tr. 379-99). For instance, on December 14, 

2010, she reported “no appetite problems,” on June 3, 2011 she reported her appetite was 

“fine,” on December 21, 2011, she reported “no appetite change,” and on April 16, 2012, 

she reported that her appetite “remains” good. (Tr. 384, 398-99). The ALJ properly 

discounted Dr. Fremont’s opinion for being based on Plaintiff’s less than fully credible 

subjective claims. Plaintiff cannot demonstrate that no reasonable person would have 

resolved the conflict in opinions from May of 2011 in favor of Dr. Murphy, who 

reviewed a complete record through that date, over Dr. Fremont. Reefer v. Barnhart, 326 

F.3d 376, 379 (3d Cir. 2003). 

This case is similar to Chandler v. Comm'r of Soc. Sec., 667 F.3d 356 (3d Cir. 

2011), where the Third Circuit held that an ALJ properly rejected statements from an 

unacceptable medical source when there were no treating source medical opinions and 

there was a non-examining, non-treating opinion that supported the ALJ’s denial. Id. at 

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360-63. Even if Dr. Fremont’s examination, along with the statements from unacceptable 

sources, supported Plaintiff’s claim, Dr. Murphy’s opinion and the treatment record 

provide substantial evidence to the ALJ’s assessment. Reefer v. Barnhart, 326 F.3d 376, 

379 (3d Cir. 2003). The question is not whether substantial evidence supports Plaintiff’s 

claims, or whether there is evidence that is inconsistent with the ALJ’s finding. Id. 

Substantial evidence could support both Plaintiff’s claims and the ALJ’s finding because 

substantial evidence is less than a preponderance. Jesurum v. Sec'y of U.S. Dep't of 

Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v. Perales, 

402 U.S. 389, 401 (1971)). If substantial evidence supports the ALJ’s finding, it does not 

matter if substantial evidence also supports Plaintiff’s claims. Reefer v. Barnhart, 326 

F.3d 376, 379 (3d Cir. 2003). Plaintiff cannot demonstrate that no reasonable person 

would have resolved the conflict in evidence in favor of Dr. Murphy’s opinion. Id. The 

Court does not remand on these grounds. 

c. Listing 

Plaintiff asserts that she meets the Listings. (Pl. Brief at 4-8). The Listing criteria at 

step three establish presumptive disability for some impairments, representing “a higher 

level of severity than the statutory standard.” Sullivan v. Zebley, 493 U.S. 521, 532 

(1990). The claimant must meet all of the specified criteria to meet a Listing. See 20 

C.F.R. §§ 404.1525(c)(3), 416.925(c)(3); Benway v. Colvin, 3:11-CV-02233, 2013 WL 

3989149, at *15 (M.D. Pa. Aug. 2, 2013) (“a claimant has the burden of proving that his 

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or her severe impairment or impairments meet or equal a listed impairment”) (citing 

Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). Each Listing cited by Plaintiff requires her 

to demonstrate that she meets the Paragraph B criteria, which requires a marked 

limitation in at least two areas out of activities of daily living, social functioning, or 

concentration, persistence, and pace. (Pl. Brief at 4-8). A marked impairment is one that 

“interfere[s] seriously with [her] ability to function independently, appropriately, 

effectively, and on a sustained basis.” 20 C.F.R. Part 404, Subpart P, Appendix 1, Section 

12.00. 

Plaintiff asserts that the ALJ “cherry pick[ed]” the facts in discussing the Listings 

and that Dr. Fremont’s opinion, Plaintiff’s longitudinal treatment record, and Ms. 

Wittar’s statement support her claim that she meets a Listing. (Pl. Brief at 4). Plaintiff 

cites Dr. Fremont’s opinion. (Pl. Brief at 7). Dr. Fremont opined that Plaintiff’s 

functional abilities were poor, fair to poor, fair, or good, but does not define any of these 

terms. (Tr. 293-94). There is no evidence that a “poor” ability correlates with a marked, 

rather than moderate, impairment. Doc. 11. Instead, Dr. Fremont opined that Plaintiff’s 

GAF was 55, which means that neither her symptoms nor her functional impairment was 

more than moderate. Dr. Fremont’s examination does not support Plaintiff’s Listing 

Claim. Regardless, as discussed above, the ALJ reasonably relied on Dr. Murphy, who 

opined that Plaintiff did not meet a Listing. (Tr. 295-311). Plaintiff cites her testimony, 

but as discussed above, the ALJ properly found that her subjective claims were not fully 

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credible. Supra. Plaintiff cites Ms. Wittar’s opinion, but as discussed above, the ALJ 

properly resolved the conflict in opinions in favor of Dr. Murphy. Plaintiff fails to 

demonstrate that no reasonable person would find that she did not meet the strict 

requirements of the Listing. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). The 

Court does not remand on these grounds. 

V. Conclusion 

The Court reviews the ALJ’s decision under the deferential substantial evidence 

standard. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). Substantial evidence 

supports the ALJ decision unless no “reasonable mind might accept [the relevant 

evidence] as adequate to support a conclusion.” Id. (internal citations omitted). “Stated 

differently, this standard is met if there is sufficient evidence ‘to justify, if the trial were 

to a jury, a refusal to direct a verdict.’” Id. (quoting Universal Camera Corp. v. NLRB, 

340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Here, a reasonable mind might 

have denied Plaintiff benefits. The Court would refuse to direct a verdict in Plaintiff’s 

favor if this was a jury trial. Accordingly, the Court will affirm the decision of the 

Commissioner pursuant to 42 U.S.C. § 405(g). 

An appropriate Order in accordance with this Memorandum will follow. 

Dated: October 7, 2016 s/Gerald B. Cohn 

 GERALD B. COHN 

 UNITED STATES MAGISTRATE JUDGE 

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