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`UNITED STATES DI STRICT COURT
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`FOR THE
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`DISTRICT OF VERMONT
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`Heather Cheney,
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`Plaintiff,
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`V.
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`Civil Action No. 5:10-CV-174
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`Commissioner of Social Security,
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`Defendant.
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`REPORT AND RECOMMENDATION
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`(Docs. 10, 11)
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`Plaintiff Heather Cheney brings this action under 42 U.S.C. § 405(g) of the Social
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`Security Act, requesting review and remand of the decision of the Commissioner of
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`Social Security (“Commissioner”) denying her application for disability insurance
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`benefits. Pending before the Court are Cheney’ s motion seeking an order reversing the
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`Commissioner’s decision (Doc. 10), and the Commissioner’s motion seeking an order
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`affirming the decision (Doc. ll).
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`For the reasons set forth below, I recommend that Cheney’s motion to reverse
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`(Doc. 10) be granted, and the Commissioner’s motion to affirm (Doc. 11) be denied.
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`Pursuant to Local Rule 7(a)(6), and no party having made a written request for oral
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`argument, I find that oral argument is not required.
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`Background
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`Cheney was born on September 22, 1987, and thus was twenty years old on the
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`alleged disability onset date of September 29, 2007. (Administrative Record (“AR”) 52,
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`102, 125.) She completed high school, and has worked as a supermarket cashier and for
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`brief periods as a mail stuffer, a chambermaid, and a laborer at Montgomery Wire and
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`Home Depot. (AR 27-31, 52, 116-21, 131, 136.) Cheney’s medical providers have
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`consistently diagnosed her with schizoaffective disorder and borderline personality
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`disorder. (AR 363, 439.) She claims she has suffered from chronic auditory and visual
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`hallucinations and depression at least since she was an adolescent.1 (AR 337.) The
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`record reflects that Cheney has attempted suicide on two occasions, and has had two
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`psychiatric hospitalizations. (Id.) She has described to her medical providers feelings of
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`emptiness, passive suicidal ideation, low motivation, poor concentration, chronic
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`interpersonal conflicts, and mood swings. (Id)
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`In October 2007, Cheney applied for disability insurance and supplemental
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`security income benefits, alleging that she became unable to work on September 29, 2007
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`as a result of her schizoaffective disorder. (AR 102-15, 125, 129-30.) She asserted that
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`this condition limited her ability to work because it caused her to be paranoid, delusional,
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`have difficulty focusing and working with other people, and have thoughts of hurting
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`herself. (AR 130.) Cheney’s disability application was denied initially and upon
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`reconsideration, and she timely requested an administrative hearing, which occurred in
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`February 2010. (AR 21-51, 52-54, 56-61, 64.) She appeared and testified at the hearing,
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`and was represented by counsel. (AR 21-51.)
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`1 Cheney’s medical providers have consistently questioned the existence of these hallucinations,
`noting that they are inconsistent with her presentation during treatment interviews.
`(See, e.g., AR 320,
`358, 362, 415, 438.)
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`On February 24, 2010, Administrative Law Judge (“ALJ”) Paul Martin issued a
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`decision finding that Cheney was not disabled under the Social Security Act, as described
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`in detail below. (AR 10- 17.) Thereafter, the Decision Review Board informed Cheney
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`that it had not completed its review during the prescribed period, rendering the ALJ’s
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`decision the final decision of the Commissioner. (AR 1-3.) Having exhausted her
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`administrative remedies, Cheney filed her Complaint in the instant action on July 21,
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`2010. (See Doc. 1.)
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`ALJ Determination
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`The Commissioner uses a five-step sequential process to evaluate disability
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`claims. See Butts v. Bamhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
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`requires the ALJ to determine whether the claimant is presently engaging in “substantial
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`gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
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`engaged, step two requires the ALJ to determine whether the claimant has a “severe
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`impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
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`has a severe impairment, the third step requires the ALJ to make a determination as to
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`whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
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`Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
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`The claimant is presumptively disabled if the impairment meets or equals a listed
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`impairment. Fermris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
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`If the claimant is not presumptively disabled, the fourth step requires the ALJ to
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`consider whether the claimant’s “residual functional capacity” (“RFC”) precludes the
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`performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
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`3
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`fifth and final step requires the ALJ to determine whether the claimant can do “any other
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`work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of proving
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`his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five, there is a
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`“limited burden shift to the Commissioner” to “show that there is work in the national
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`economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)
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`(clarifying that the burden shift to the Commissioner at step five is limited, and the
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`Commissioner “need not provide additional evidence of the claimant’s residual functional
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`capacity”).
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`Employing this five-step analysis, ALJ Martin first determined that, although
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`Cheney had worked after the alleged disability onset date, this work activity did not rise
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`to the level of substantial gainful activity, and thus she had not engaged in substantial
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`gainful activity since her alleged onset date of September 29, 2007. (AR 12-13.) At step
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`two, the ALJ found that Cheney had two severe impairments: schizoaffective disorder
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`and borderline personality disorder. (AR 12.) At step three, the ALJ found that Cheney
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`did not have an impairment or combination of impairments that met or medically equaled
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`a listed impairment. (AR 13-15.)
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`Next, the ALJ determined that Cheney had the RFC to perform “a full range of
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`work at all exertional levels but with the following exertional limitations: the claimant is
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`limited to performing simple 1-2 step instructions with no more than brief interaction
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`with co-workers and supervisors, but with no close supervision by a supervisor.” (AR
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`15.) The ALJ explained that, although Cheney’s medically determinable impairments
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`could reasonably be expected to cause the alleged symptoms, her statements concerning
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`4
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`the intensity, persistence, and limiting effects of those symptoms “are not credible to the
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`extent they are inconsistent With the above [RFC] assessment.” (AR 16.) In making this
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`RFC assessment, the ALJ noted that Cheney’s credibility was called into question by
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`multiple medical providers; there Was a lack of mental health treatment records since
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`2007; and she was “quite active by self-report in April 2008 even assisting her fiance in
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`looking for Work.” (Ial)
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`At step four, the ALJ determined that Cheney is able to perform her past relevant
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`Work as a chambermaid and mail stuffer, which jobs she performed “sufficiently long
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`enough for the[m] .
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`.
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`. to meet the criteria required to be considered past relevant Work.”
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`(AR 17.) Without making a step-five determination regarding Whether Cheney could
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`perform “any other Work,” the ALJ concluded that Cheney had not been under a
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`disability, as defined in the Social Security Act, from September 29, 2007 through the
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`date of the ALJ’s decision. (Ial)
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`Standard of Review
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`The Social Security Act defines the term “disability” as the “inability to engage in
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`any substantial gainful activity by reason of any medically determinable physical or
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`mental impairment which can be expected to result in death or which has lasted or can be
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`expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
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`423(d)(l)(A). A person Will be found to be disabled only if it is determined that his
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`“impairments are of such severity that he is not only unable to do his previous work[,] but
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`cannot, considering his age, education, and Work experience, engage in any other kind of
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`substantial gainful Work which exists in the national economy.” 42 U.S.C. §
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`5
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`423(d)(2)(A).
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`In reviewing a Commissioner’s disability decision, the court limits its inquiry to a
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`“review [of] the administrative record de novo to determine whether there is substantial
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`evidence supporting the .
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`.
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`. decision and whether the Commissioner applied the correct
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`legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
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`Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. §405(g). A court’s factual
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`review of the Commissioner’s decision is limited to determining whether “substantial
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`evidence” exists in the record to support such decision. 42 U.S.C. § 405(g)', Rivera v.
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`Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “Substantial evidence” is more than a mere
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`scintilla; it means such relevant evidence as a reasonable mind might accept as adequate
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`to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Consol.
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`Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Poupore, 566 F.3d at 305.
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`Although the reviewing court’s role with respect to the Commissioner’s disability
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`decision is “quite limited[,] and substantial deference is to be afforded the
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`Commissioner’s decision,” Hernandez v. Barnhart, No. 05 Civ. 9586, 2007 WL
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`2710388, at *7 (S.D.N.Y. Sept. 18, 2007) (quotation marks and citation omitted), the
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`Social Security Act “must be construed liberally because it is a remedial statute that is
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`intended to include, rather than exclude, potential recipients of benefits,” Jones v. Apfel,
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`66 F. Supp. 2d 518, 522 (S.D.N.Y. 1999); Dousewicz v. Harris, 646 F.2d 771, 773 (2d
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`Cir. 1981) (“In its deliberations the District Court should consider the fact that the Social
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`Security Act is a remedial statute to be broadly construed and liberally applied.”).
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`Analysis
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`Cheney makes two principal arguments: (1) the ALJ erroneously failed to discern
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`whether her chambermaid and mail stuffer jobs constituted “unsuccessful work
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`attempts,” and thus improperly considered them “past relevant work”; and (2) the ALJ’s
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`RFC determination is unsupported by substantial evidence, and does not reflect the
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`severity of Cheney’s mental health issues.
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`In response, the Commissioner contends that
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`the ALJ’s decision is supported by substantial evidence and complies with the applicable
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`legal standards. For the reasons explained below, I recommend finding in favor of
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`Cheney.
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`I.
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`Past Relevant Work/Unsuccessful Work Attempts
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`Cheney argues that the ALJ erred in treating her chambermaid and mail stuffer
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`jobs as “past relevant work” without first considering whether they constituted
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`“unsuccessful work attempts.” The Commissioner contends that Cheney failed to meet
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`her burden of demonstrating that these jobs did not constitute past relevant work; and
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`even assuming they did, Cheney has not shown harmful error.
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`It is the claimant’s burden to show that she is incapable of performing her past
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`relevant work, see, e.g., Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986),” which the
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`regulations define as “work that [the claimant] ha[s] done within the past 15 years, that
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`2 The parties debate which of them holds the “burden of proof” with respect to the past relevant
`work/unsuccessful Work attempt issue.
`(See Doc. 11 at 16-18', Doc. 12 at 3-4.) Although the claimant
`bears the burden of demonstrating an ir1ability to return to his or her past relevant Work, Bapp, 802 F.2d at
`604, the ALJ has a general “duty to investigate and develop the facts and develop the arguments both for
`and against the granting of benefits,”M0ran v. Astme, 569 F.3d 108, 112-13 (2d Cir. 2009). Given these
`parallel obligations, and because proceedings involving social security benefits “are not designed to be
`adversarial,” the concept of “burden of proof” in these cases “is particularly elusive.” Schauer v.
`Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
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`was substantial gainful activity, and that lasted long enough for [the claimant] to learn to
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`do it,” 20 C.F.R. § 404.1560(b)(1) (emphasis added); see Social Security Ruling (“SSR”)
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`82-62, 1982 WL 31386, at *1 (1982).
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`In this case, the evidence demonstrates that
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`Cheney performed the chambermaid and mail stuffer jobs Within the past fifteen years,
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`and thosejobs lasted long enough for Cheney to learn to do them.
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`(See AR 45-46, 131;
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`Department of Labor, Dictionary of Occupational Titles (“DOT”) (4th ed. 1991) (tabber,
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`#794687-058, available at 1991 WL 681328) (cleaner, housekeeping, #323687-014,
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`available at 1991 WL 672783).) The contested issue is Whether these jobs qualified as
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`substantial gainful activity (“SGA”), and more specifically, Whether they constituted
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`unsuccessful Work attempts.
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`Work activity does not qualify as SGA, or “past relevant Work,” if it is found to be
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`an “unsuccessful Work attempt.” Thompson v. Asirue, No. 06-CV- 1328 (GLS/DEP),
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`2009 WL 3334304, at *2 (N.D.N.Y. Oct. 14, 2009) (citing 20 C.F.R. §§ 404.1574(c),
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`416.974(c)), vacated in part on other grounds by 2010 WL 502868 (N.D.N.Y. Feb. 9,
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`2010), vacated and remanded on other grounds by 2011 WL 1086651 (2d Cir. Mar. 25,
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`2011). Initially, for Work activity to be considered an unsuccessful Work attempt, the
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`claimant’s impairment must cause a significant break in the continuity of his or her Work.
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`Id The work activity will then qualify as an unsuccessful work attempt only if, after
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`Working for a period of three months or less, the Work was terminated or markedly
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`reduced due to the claimant is impairment or due to the removal of special conditions
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`essential to further performance of the Work. 20 C.F.R. §§ 404.1574(c)(3),
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`404.1575(d)(3); SSR 05-02, 2005 WL 568616 (Feb. 28, 2005). If the employment lasted
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`8
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`between three and six months, it will be considered an unsuccessful Work attempt if it
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`ended due to the claimants impairment or due to the removal of special conditions which
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`permitted the claimant to Work, and: (1) the claimant had frequent absences because of
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`her impairment; (2) the claimant’s Work was unsatisfactory because of her impairment‘,
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`(3) the claimant engaged in the Work during a period of temporary remission; or (4) the
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`Work Was performed under special conditions which Were removed. 20 C.F.R. §§
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`404. l574(c)(4), 404. l575(d)(4); SSR 05-02. Work performed at the substantial gainful
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`activity level for more than six months is not considered an unsuccessful Work attempt,
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`regardless of the reason for its termination or reduction below the substantial gainful
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`activity level. 20 C.F.R. §§ 404.1574(c)(5), 404.1575(d)(5)', SSR 05-02.
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`SSR 05-02 was issued to clarify Social Security Administration (“SSA”) policy
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`for determining Whether SGA that is discontinued or reduced below a specified level may
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`be considered an unsuccessful Work attempt. SSR 05-02, at *1.
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`In that ruling, the SSA
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`explains: “The [unsuccessful Work attempt] concept was designed to provide us an
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`equitable means .
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`.
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`. to disregard relatively brief Work attempts that do not demonstrate
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`sustained SGA.” Id The ruling discusses the Commissioner’s duty to develop the record
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`in connection with determining Whether a claimant’s job ended as a result of his or her
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`impairment:
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`When We consider Why your Work effort ended or Was reduced to
`the non-SGA level, We do not rely solely on information from you.
`Therefore, we do not already have impartial supporting evidence, we will
`seek confirmationfrom your employer. If the informationfrom your
`employer is inconclusive or is not available, we may seek confirmation of
`the reason you discontinued or reduced your work with a physician or
`other medical source. After being apprised of the circumstances, the
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`physician or other medical source could state Whether, in his or her opinion
`or according to the records, your Work discontinuance or reduction was due
`to your impairment.
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`Answers to questions such as the following will help to verify the
`nature and duration of your Work and the reason it ended or was reduced:
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`a. When and why was the SGA-level Work interrupted, reduced or
`stopped...
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`b. If special Working conditions (as described in the preceding
`section) were removed, What were those conditions or concessions...
`When, how and why were they changed...
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`c. Were there frequent absences from Work. .. Were days and hours
`of Work irregular and, if so, Why. ..
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`(1. Was job performance unsatisfactory because of the impairment...
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`e. Did the employer reduce your duties, responsibilities or earnings
`because of your impairment... [and]
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`f. When your Work effort ended, Was the continuity of employment
`broken... Did the employer grant sick leave or hold the position open for
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`your return... ....
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`Id. at *3-4.
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`Seemingly Without considering any of these issues, ALJ Martin found that
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`Cheney’s jobs as chambermaid and mail stuffer constituted past relevant Work and thus
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`were not unsuccessful work attempts. Specifically, in the section of his decision Where
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`he considered Whether Cheney Was able to perform her past relevant Work, the ALJ made
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`the following limited observations: (a) the Vocational Expert (“VE”) testified that
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`Cheney performed the chambermaid and mail stuffer jobs “sufficiently long enough for
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`[them] to meet the criteria required to be considered past relevant work”3; (b) the VE
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`testified that these jobs “do[] not require the performance of Work related activities
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`precluded by [Cheney’s] [RFC]”; and (c) comparing Cheney’s RFC with the physical and
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`mental demands of the chambermaid and mail stuffer jobs, Cheney was able to perform
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`them “as actually and generally performed.” (AR 17; see also AR 45, 47-48.) As noted
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`earlier, the ALJ ended his analysis here (at step four), and did not proceed to the fifth step
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`of considering whether Cheney could do “any other work.”4
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`The ALJ’s analysis is flawed. Despite Cheney’s counsel specifically raising the
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`“unsuccessful work attempt” issue before and at the administrative hearing (see AR 26,
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`51, 174), and although the record demonstrates that Cheney’s chambermaid and mail
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`stufferjobs lasted less than six months respectively (see AR 29-30, 46, 131, 160), the
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`ALJ did not analyze whether these jobs met the definition of “unsuccessful work
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`attempts” before determining that they constituted past relevant work (see AR 17). At a
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`minimum, the ALJ should have inquired at the administrative hearing as to when and
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`3 In fact, the VE testified only that Cheney performed the mail stufler (also referred to as
`“inserter” and “tabber”) job long enough to meet the criteria required to be considered past relevant work.
`Specifically, the VE stated: “the .
`.
`. inserter is a brief demonstration, SVP [“specific vocational
`preparation”] of one, so any amount of time on the job she could have learned it.” (AR 45.) See
`Department of Labor, DOT (4th ed. 1991) (tabber, #794687-05 8, available at 1991 WL 681328). The
`ALJ did not, however, follow up with a specific question asking the VE whether the chambermaid job
`similarly required only a “brief demonstration” and had an SVP level of one, and the VE did not testify to
`that effect. In fact, the chambermaid job has an SVP level of two. See Department of Labor, DOT (4th
`ed. 1991) (cleaner, housekeeping, #323687-014, available at 1991 WL 672783). Nonetheless, the ALJ’s
`omission is harmless, given that the DOT states that only one month, at most, is required to learn a job
`with an SVP level of two, and Cheney stated in a Disability Report form that she held the chambermaid
`job for approximately two months (“10l06-12/06”). (AR 131.)
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`4 Had the ALJ proceeded to the fifth step of the sequential process, any error at step four would
`have been harmless. See Thompson, 2010 WL 502868, at *1 (“[A] deficiency m an ALJ’s step-four
`analysis does not require remand if the ALJ subsequently made a correct ruling at step five.”).
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`11
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`why Cheney’s chambermaid and mail stuffer jobs ended, i.e., Whether Cheney was
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`terminated from or ended these jobs as a result of her impairments. See SSR 05-02, at *4.
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`He also should have inquired as to whether Cheney was frequently absent from these
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`jobs, and if so, Whether these absences were related to or resulted from Cheney’s
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`impairments; and Whether Cheney’s job performance with respect to these jobs was
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`unsatisfactory because of her impairments. Id If Cheney’s responses to these questions
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`did not sufficiently clarify Why the chambermaid and mail stuffer jobs ended or there was
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`not impartial evidence in the record to support Cheney’s responses, the ALJ should have
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`developed the record further, including seeking information from Cheney’s employers.
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`Id. at *3; see Lenczewski v. Astme, No. 08-CV-0862-A, 2010 WL 2472548, at *3-4
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`(W.D.N.Y. June 15, 2010) (ALJ mailed questionnaires to seventeen former employers
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`requesting dates of employment, the reason employment ended, job description, special
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`considerations given, job performance, and an earnings summary). If that information
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`was inconclusive or not available, the ALJ should have sought the assistance of a
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`physician or other medical source. Id.
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`Instead, the ALJ appears to have relied almost exclusively on the VE’s limited
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`testimony and Cheney’s imprecise statements at the administrative hearing in finding that
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`the chambermaid and mail stuffer jobs constituted past relevant work. At the
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`administrative hearing, following up on a statement made by Cheney about her mail
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`stuffer job (“I was fired, I didn’t have a reason for it, they didn’t tell me Why”), the ALJ
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`appropriately asked Cheney Why she was fired from that job. (AR 29.) He did not,
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`however, ask the same question with respect to Cheney’s chambermaid job. And, despite
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`the ambiguity of Cheney’ s response to the question regarding Why she was fired from the
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`mail stuffer job (“I actually don’t [know Why I Was fired from the mail stuffer job], I
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`think it, I have a hard time focusing.
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`I get very distracted. That may be it but I’m not
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`entirely positive”), the ALJ did not ask any follow-up questions, and did not attempt to
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`develop the record on the issue. (Id) More is required of an ALJ in consideration of
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`Whether a Work attempt Was unsuccessful. One court stated: “[T]he [Social Security]
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`Act requires more than just statements from the plaintiff to establish the reason(s)
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`employment Was ended. The ALJ must seek corroboration of these statements from
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`subjective evidence or statements obtained from the claimant[’]s employers.”
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`Lenczewski, 2010 WL 2472548, at *5 (citing SSR 05-02', SSR 84-25, 1984 WL 49799
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`(1984); Stevenson v. Chatter, 105 F.3d 1151, 1155 (7th Cir. 1997)).
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`The ALJ’s error is not harmless. Although the evidence demonstrates that
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`Cheney’s earnings as a chambermaid and mail stuffer, respectively, met the required
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`SGA earnings standard (see AR 131, 20 C.F.R. § 404.1574(b)), and although thesejobs
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`otherwise satisfy the “past relevant work” criteria discussed above, the record suggests
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`that these jobs may qualify as unsuccessful Work attempts, meaning they may have ended
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`as a result of Cheney’s mental impairments, including personality disorder and
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`schizoaffective disorder. See Thompson, 2009 WL 3334304, at *2 (remanding because
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`record suggested job ALJ found constituted past relevant Work “may qualify as an
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`unsuccessful Work attempt”); Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000)
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`(remanding because evidence supported conclusion that symptoms of claimant’s
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`personality disorder made Working with others impossible and thus claimant’s Work
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`effort constituted an unsuccessful Work attempt). Specifically, mental health provider
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`Sarah Davis reported in an Intake Assessment form that Cheney advised that she:
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`Worked at Upper Valley Press, collating flyers, for three months. She
`reports she was fired from that position. She reports she often felt bored
`and Would talk With her co-Workers often. She reports she was not given a
`reason for being terminated. She then Went to work for the Courtyard
`Marriott in Lebanon, NH as a housekeeper. After three months of
`employment, she quit her job due to disliking her co-Workers and the long
`commute to Work.
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`(AR 347.) In another report, Davis noted that Cheney was “[f]ired from several jobs after
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`short trials due to conflict and poor performance.” (AR 353.) In a Psychiatric
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`Consultation report, psychiatrist Dr. Erinn Fellner made the same notation. (AR 338.)
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`Moreover, at the administrative hearing, Cheney testified regarding her difficulty getting
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`along with people, including co-Workers, stating:
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`I Will get along with people for a While, but if like criticism Will, With me
`kind of turn into almost like a blame kind of thing. Like, Well, either you’re
`not here enough or you’re Watching me, or, it’ s never me. And that tends to
`cause Waves with co-Workers and I tend to, after a While, not get along with
`people very Well at all.
`
`(AR 39-40.) Likewise, in her Function Report, Cheney stated that she has problems
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`getting along with family, friends, and others, as she “f1ght[s], argue[s] + nit-pick[s].”
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`(AR 143.)
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`This evidence demonstrates that Cheney’s brief employment as both a
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`chambermaid and a mail stuffer may have been terminated due to her inability to relate to
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`or get along with co-Workers. As discussed infra, this inability to Work with others at
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`least arguably resulted from Cheney’s mental illness.
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`In concluding that Cheney was
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`capable of performing these jobs, however, the ALJ failed to properly consider Whether
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`they constituted “unsuccessful work attempts.” On remand, the ALJ should reconsider
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`and develop the record further with respect to this issue. If the ALJ then determines that
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`the jobs were not “unsuccessful work attempts,” in compliance with 20 C.F.R. §
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`404.1560(b)(2), he should proceed to consider, and perhaps develop the record further
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`regarding, what the specific mental demands of the jobs were and whether Cheney could
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`perform those demands during the alleged period of disability. If the ALJ determines that
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`Cheney could not perform the mental demands of these jobs during the alleged disability
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`period, or if he determines that the jobs constituted “unsuccessful work attempts,” the
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`ALJ should proceed to the fifth and final step of the sequential evaluation process.
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`II.
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`RFC Determination
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`Cheney next contends that the ALJ’s mental RFC assessment is not supported by
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`substantial evidence, and does not sufficiently reflect the severity of Cheney’s mental
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`health issues. The Commissioner focuses on Cheney’s credibility, and argues that
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`Cheney’s arguments are internally contradictory and seek to impose impractical burdens
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`on the agency.
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`In assessing Cheney’s RFC, the ALJ considered the medical opinions of
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`psychologists Dr. Richard Toye and Dr. Elizabeth Hess, each of whom interviewed and
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`conducted psychological evaluations of Cheney. (AR 360-65, 434-41.) The ALJ also
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`considered the opinion of state agency consultative psychologist J. Coyle (AR 366-83),
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`who reviewed the relevant evidence and completed a psychiatric review technique form
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`and mental RFC assessment of Cheney. (AR 366-83.) The ALJ ultimately “adopt[ed]”
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`Dr. Coyle’s opinion, afforded “[g]reater weight” to Dr. Toye’s opinion, and afforded
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`“little weight” to Dr. Hess’s opinion. (AR 16-17.)
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`Dr. Hess evaluated Cheney in January 2010, and concluded that, as a result of
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`Cheney’s schizoaffective disorder and borderline personality disorder, she would be
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`markedly limited or effectively precluded from interacting appropriately with the public,
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`accepting instructions and responding appropriately to criticism from supervisors, and
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`completing a normal workday and workweek without interruptions. (AR 440-41.) In the
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`area of social functioning, Dr. Hess opined:
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`[Cheney] will have significant difficulty interacting appropriately with
`others. She is likely to become anxious when interacting with others. At
`such times she is likely to have very poor focus and concentration. At other
`times she is hypersensitive and may become unreasonably irritable. She is
`socially avoidant and prefers to stay in her room.
`
`(AR 438.) Dr. Hess added that Cheney had not succeeded “in any work-like situation,”
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`and “[h]er only independent employment was doing factory work[, but] [s]he was
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`terminated after three months because she could not stay focused on the job.” (Id.)
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`Similarly, Dr. Toye — who evaluated Cheney in May 2008, over a year prior to Dr.
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`Hess — concluded that Cheney’s relationships with co-workers and supervisors “will be
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`contentious[,] and she will respond with irritability and anger to supervisory feedback as
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`a result of her personality disorder.” (AR 363.) Dr. Toye added:
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`[Cheney] cannot establish effective interpersonal relationships. While she
`behaves appropriately in the interview setting, her personal relationships all
`are charged, mostly in a negative fashion. She becomes too intensely
`involved, perceives others as critical, and is critical of others.
`
`(Id.) Nonetheless, Dr. Toye concluded that Cheney could “regularly attend work and
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`follow a schedule.” (Id.)
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`Dr. Coyle, the state agency psychologist, evaluated Cheney in June 2008, and
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`noted that Cheney “is paranoid, has difficulty focusing, gets distracted easily, has issues
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`Working with others, gets delusional, hears voices, [and] has thoughts of hurting herself.”
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`(AR 378.) Dr. Coyle concluded that “psych is severe. Dx are borderline personality
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`disorder (3010) and polysubstance abuse (3040).” (AR 382.) Despite these findings, Dr.
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`Coyle concluded that Cheney is only “moderate[ly]” limited in her ability to maintain
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`social functioning and only “mild[ly]” limited in her activities of daily living and in
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`maintaining concentration, persistence, and pace (AR 376)‘, and is able to “engage in
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`brief superficial or casual interactions with the general public” and “participate in typical
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`interactions With coworkers and supervisors While completing routine tasks” (AR 382).
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`The regulations provide that, in general, “more Weight” is given to the opinion of a
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`medical source Who has examined the claimant than to the opinion of a source Who has
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`not. 20 CFR § 404.1527(d)(1)', see Havas v. Bowen, 804 F.2d 783, 786 (2d