GIBSON v. COMMISSIONER OF SOCIAL SECURITY

Filing 18

OPINION. Signed by Judge Robert B. Kugler on 3/18/2013. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
__________________________________________
:
CAROLYN L. GIBSON,
:
:
Plaintiff,
:
Civil No. 1:12-CV-01292 (RBK)
:
v.
:
OPINION
:
MICHAEL ASTRUE
:
COMISSIONER OF SOCIAL
:
SECURITY,
:
:
Defendant.
:
:

KUGLER, United States District Judge:
This matter comes before the Court upon the appeal of Carolyn L. Gibson (“Gibson”) for
the review of a final determination of the Commissioner of Social Security (“Commissioner”)
denying her application for Supplemental Security Income (“SSI”), under Title XVI of the Social
Security Act (“SSA”). For the reasons set forth below, the decision of the Commissioner is
vacated and remanded to the Administrative Law Judge (“ALJ”) for further consideration.
I.

BACKGROUND
Gibson, a 36 year old woman, submitted an application for SSI on March 18, 2009. In the

application, Gibson alleged that she has been plagued by various disabilities since January 5,
2005. Specifically, Gibson alleged to have suffered from Bi-Polar Disorder, chronic pain in her
leg, neck and back, Post-Traumatic Stress Disorder (“PTSD”), and Depression. Gibson’s prior
work history includes working as a cashier and a waitress. Gibson alleges that she is unable to
continue working in her previous positions, or any other position, because her physical and
mental conditions are likely to cause recurring absences, a need for daily naps, and regular
1

breaks, difficulty driving, loss of various “specific work activities,” a limited range of motion in
her neck, and frequent headaches.
A.

Alleged Physical Limitations

On November 15, 2003, Gibson was admitted to the Virtua Memorial Hospital. She was
discharged on November 20, 2003, with a physical diagnosis of neck pain as a result of a motor
vehicle accident. (Admin. Rec. (“Rec.”) at 206). On December 13, 2003, she was admitted to
Lourdes Medical Center, complaining of pelvic and joint pain, and unspecified “chronic pain and
multiple traumas.” (Rec. at 233).
In May of 2008, Gibson was seen by Alan Dennison, M.D., of Cooper Family Medicine.
After examining Gibson for an ear ache, Dr. Dennison prescribed Percocet to treat her “chronic
neck and leg pain.” (Rec. at 295). In October of 2008, Gibson was seen by Dr. Dennison’s
partner, Anjali Ray, M.D. Dr. Ray assessed Gibson following a motor-vehicle collision, and
observed neck pain, limited range of motion, and bilateral neck tenderness. Dr. Ray also noted
that the pain extended to Gibson’s mid-back. (Rec. at 291). Gibson followed-up with Dr.
Dennison five days later. In the follow-up examination, Dr. Dennison observed neck pain and
decreased neck motion to the right. He further noted “muscle spasm and tenderness” in the right
trapezius area, extending to the base of the skull on the right. (Rec. at 290). Gibson again
followed-up with Dr. Dennison on February 3, 2009, with no change in her neck pain. (Rec. at
288).
On February 24, 2009, Gibson was seen by Marie Louis, M.D. for abdominal pain, which
the doctor noted was “a new problem.” After the examination, Dr. Louis made a note that
Gibson’s neck had normal range of motion and was supple. (Rec. at 285). On March 31, 2009,
Hampton Counseling Center recommended an outpatient program for “chronic pain . . . herniated

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disks, secondary to a motor vehicle accident.” (Rec. at 279). Gibson was discharged from the
outpatient care in late April of 2009. (Rec. at 278). After one week, Gibson returned to Dr.
Dennison, who observed neck pain and spasm, as well as tenderness in the right trapezius. (Rec.
at 280).
On September 30, 2009, Nithyashuba Khona, M.D., of Best Med Consultants, PA,
performed an orthopedic evaluation of Gibson, at the request of the State of New Jersey’s
Department of Labor and Work Force Development. (Rec. at 305). During the examination, Dr.
Khona observed that Gibson’s gait and station were normal, that she could walk on heels and
toes, and could perform a squat. (Rec. at 306). She was also able to climb onto the operating
table and change her clothes without requiring assistance. Id. She demonstrated no problems
with her hand strength and dexterity. Id. Gibson displayed full range of motion of her shoulders
bilaterally, elbows, forearms, wrists, fingers, hips, ankles, and knees. Id. Dr. Khona also noted
that her cervical spine showed “full flexion, extension, and lateral flexion bilaterally.” Id. Gibson
also demonstrated “full rotary movement bilaterally, and no cervical or paracervical pain, spasm
or trigger points.” Id. As for Gibson’s spine, thoracic and lumbar regions, Dr. Khona found 75%
flexion and extension, as well as full later flexion bilaterally. (Rec. at 307). He found full rotary
movement bilaterally. Id. He found no SI joint or sciatic tenderness. Id. He found no spasms,
scoliosis, or kyphosis. Id. Ultimately, Dr. Khona’s evaluation concluded that there were “no
physical findings except for [Gibson’s] subjective complaints of pain.” Id.
Dr. Ray examined Gibson again on June 4, 2010, to treat dysuria and a burn on her leg
that she allegedly sustained in an unspecified accident involving a motorcycle. (Rec. at 390). Dr.
Ray did not report any further physical distress during that examination. On June 23, 2010,
Gibson was evaluated by Dr. Ray a third time. Dr. Ray noted that Gibson had a supple neck with

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normal range of motion. (Rec. at 387). Yet, on July 19, 2010, when Dr. Ray again observed
Gibson, she found neck pain and muscular tenderness. (Rec. at 384). Dr. Ray also noted “severe
pain in the cervical spine after going on [a] boat.” (Rec. at 383). After performing a physical
exam, however, Dr. Ray found no tenderness of the spinous processes. (Rec. at 384). On
November 12, 2010, Gibson was once more examined by Dr. Ray, after she fell down while on
the stairs. (Rec. at 364-5). Dr. Ray noted that the fall “provoked her neck pain.” (Rec. at 363-5).
Finally, on December 7, 2010, Gibson sought a comprehensive evaluation of her health in
connection with her SSI claim. In regards to her physical health, Dr. Dennison reported “chronic
neck problems” and a “decreased [range of motion] of the neck and tenderness of the paraspinal
muscles.” (Rec. at 362).
B.

Alleged Mental Impairments

On November 15, 2003, during her hospitalization at Virtua Memorial Hospital, Gibson
was diagnosed with bipolar disorder, with mixed and severe episodes. (Rec. at 206). According
to the discharge report, Gibson exhibited a variety of “difficulties apparently related to manic
symptoms including impulsivity, distractibility, irritability, labile mood and very poor
judgment.” Id. She was discharged with an “improved condition.” Id. Gibson next spent six-days
in Lourdes Medical Center, from December 13 to December 19, 2003. While hospitalized, she
was diagnosed and treated for bipolar disorder and alcohol abuse.
On November 4, 2004, Gibson was admitted to the Kennedy Health System. Upon
admittance, she was diagnosed with “dysthymic disorder, major depressive disorder and PTSD,
as well as alcohol dependence.” (Rec. at 246). When she was discharged, she was diagnosed
with “dysthymic disorder, PTSD, alcohol dependence and rule out ADHD.” (Rec. at 247). The
observing doctor noted that Gibson displayed “delusions/illusions” and “obsessive/compulsive

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thoughts.” (Rec. at 252). However, the doctor also noted that her affect was “appropriate,” her
speech was “clear and coherent,” her insight was good and her judgment was fair. Gibson was
again admitted to the Kennedy Health System, on April 9, 2008. While there, she was diagnosed
with Bipolar II Disorder, Major Depressive Disorder (illegible), panic disorder with agoraphobia,
and PTSD. (Rec. at 261). On December 16, 2008, Gibson was again diagnosed with PTSD by
Cooper Hospital’s OB/GYN department. The staff attributed Gibson’s PSTD to an alleged
history of molestation and rape. (Rec. at 335).
After Gibson’s evaluation with Dr. Dennison on February 3, 2009, he determined that she
suffered from Bipolar Disorder, which manifested in the form of chronic stress and anxiety.
(Rec. at 288). Due to panic attacks and anxiety, Gibson was seen by Dr. Ray on March 17, 2009.
(Rec. at 282). She claimed an inability to sleep and auditory and visual hallucinations. Id. Dr.
Ray strongly urged her to seek immediate mental healthcare. (Rec. at 283).
Gibson was admitted to Hampton Counseling Center on March 31, 2009. (Rec. at 278).
Until she was discharged on April 28, 2009, Gibson participated in a number of group
treatments, with the reported goal of decreasing symptoms associated with depression, anxiety,
and PTSD. Id. At the time of her discharge, the Center diagnosed Gibson with “Depression, Not
Otherwise Specified,” 1 as well as PTSD and alcohol abuse. Id. Gibson was readmitted to
Hampton on May 12, 2009, again alleging symptoms of PTSD, depression, and anxiety. (Rec. at
296). Her discharge summary again noted the diagnosis of Depressive Disorder, Not Otherwise
Specified, and Anxiety Disorder, Not Otherwise Specified. Id.

1

“Depressive Disorder Not Otherwise Specified” (DD-NOS) is listed under code 311 of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV-TR). The diagnosis includes disorders with depressive features
that do not meet the criteria of other listed depressive disorders. DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS § 311 (4th ed. 2000).

5

On September 23, 2009, Gibson met with Wm. Dennis Coffey, PsyD., for a mental status
exam. (Rec. at 299). During the examination, Dr. Coffey observed that Gibson was impatient,
not-forthcoming and very agitated. (Rec. at 302). He also noted that Gibson did not display any
obsessive or compulsive behavior, suicidal or homicidal ideation, or symptoms of a thought
disorder. Id. While her insight was poor, Dr. Coffey noted that she did not present with
inadequacies in her understanding, memory, concentration, mental pace, and persistence. Id.
Ultimately, he diagnosed Gibson with Depressive Disorder, Not Otherwise Specified, and
Borderline Personality Disorder. (Rec. at 303). He recommended that Gibson continue with her
current treatment, and that she consult with a psychiatrist and therapist. Id.
On October 5, 2009, Robert Eckardt, Ph.D., a state agency psychological consultant,
provided a psychiatric review technique based on the existing medical evidence. (Rec. at 312).
While Dr. Eckardt noted an unspecified depressive disorder, a substance abuse problem, and a
personality disorder affecting her relationships, he determined that Gibson displayed only
moderate mental limitations. (Rec. at 315-22).
On June 23, 2010, Gibson was again evaluated by Dr. Ray, who made note of her PTSD.
(Rec. at 386). Dr. Ray repeated this evaluation on November 11, 2010, finding that Gibson
suffered from panic attacks, bipolar disorder, and PTSD. (Rec. at 365). Dr. Dennison’s final
evaluation of Gibson dated December 7, 2010 again listed panic attacks, bipolar disorder, and
PTSD as “active problem[s].” (Rec. at 362). In conjunction with the final evaluation, Dr.
Dennison responded to a Medical Source Statement related to Gibson’s SSI claim. In his
response to the statement, Dr. Dennison diagnosed Gibson with PTSD, depression, and anxiety.
(Rec. at 354).

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Finally, on December 28, 2010, Gibson was admitted to Lourdes Medical Center,
complaining that she was “overwhelmed with depression.” (Rec. at 399). The Center determined
that she was suffering from positive suicidal ideation and kept her until December 31, 2010,
when they felt the threat of suicide had passed. Id. Upon discharge, the Center diagnosed her
with major depressive disorder and “rule out posttraumatic stress disorder”. (Rec. at 399-400).
C.

Administrative Law Judge Decision

Gibson’s initial SSI claim was denied on October 22, 2009. After submitting a request for
reconsideration, Gibson’s claim was again denied on February 25, 2010. On March 31, 2010,
Gibson submitted a request to be heard by an ALJ and have her claim reviewed. A hearing was
held on January 24, 2011, in front of ALJ Frederick Timm. On May 11, 2012, the ALJ denied
her SSI claim after finding that the Gibson was “not disabled,” as defined under the SSA.
Thereafter, the Appeals Council declined to review the ALJ’s decision, making that decision the
final decision of the Commissioner.
In making his determination, the ALJ first decided that Gibson had not engaged in any
substantial gainful activity since her application date of March 18, 2009. (Rec. at 16). The ALJ
also found that Gibson’s leg and neck pain, her Depressive Disorder not otherwise specified, and
her Borderline Personality Disorder were severe enough to significantly limit her physical and
mental ability to perform basic work activities. Id. In contrast, he found that Gibson’s alcohol
and drug abuse did not meet the same level of severity. (Rec. at 17). No determination was made
regarding the severity of Gibson’s alleged PTSD.
While the ALJ decided that Gibson’s pain, Depressive Disorder, and Borderline
Personality Disorder were severe enough to limit her ability to work, he ultimately determined
that the severity of these conditions was not so great as to meet or equal any of the impairments

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listed in the SSA. Id. He concluded that Gibson’s leg, neck and back pain failed to meet the
criteria under listing 1.04. Id. Furthermore, he concluded that Gibson’s mental impairments did
not meet or equal the criteria of listings 12.04 or 12.06, which cover Affective Disorders and
Personality Disorders. (Rec. at 17-8). No further section 12.00 listings were discussed.
In assessing Gibson’s Residual Functional Capacity (“RFC”), the ALJ reviewed the
medical record, as well as the testimony offered at the hearing. The ALJ determined that,
although Gibson’s medically determinable impairments could reasonably be expected to cause
the alleged symptoms, her statements concerning the intensity, persistence, and limiting effects
of these symptoms were not credible when compared with the medical record as a whole. The
ALJ concluded that Gibson is limited to:
[F]requent balancing and occasional stooping, kneeling, crawling, crouching,
bilateral overhead reaching, and climbing of stairs and ramps. She is further
limited to simple, repetitive tasks, no significant interatction with the public and
only occasional interaction with supervisors and co-workers. [Gibson] requires a
stable workplace with few, if any, changes of setting, processes and tools.

(Rec. at 19).
In evaluating the RFC, the ALJ relied heavily on the medical reports by Dr.
Coffey and Dr. Khona, while also referring to Gibson’s 2010 hospitalization at Lourdes
Medical Center. (Rec. at 20-2). The ALJ concluded that Dr. Dennison’s medical source
statement deserved “little weight,” as it was “significantly inconsistent” with his
practice’s treatment notes and the above mentioned medical reports. Id. While the ALJ
failed to explicitly draw any direct comparisons between Dr. Dennison’s medical
assessment and the medical reports from the consulting physicians, he did decide that the
treatment notes from Dr. Dennison’s practice only revealed “occasional acute pain in the
claimant’s neck along with a history of non-compliance with medical orders.” (Rec. at
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22-3). Ultimately, Dr. Dennison’s assessment was given “limited deference,” when the
ALJ included a number of unspecified “postural limitations” in Gibson’s RFC.
In light of these findings, the ALJ determined that there was no medical evidence
on record that supported Gibson’s allegations of chronic pain. Id. Furthermore, the ALJ
found that Gibson’s alleged physical and mental disabilities were not consistent with her
activities of daily living, effectively discrediting her subjective complaints entirely. Id.
Ultimately, the ALJ concluded that, while Gibson cannot perform her past relevant work,
she “would be able to perform the requirements of representative occupations.” (Rec. at
25). Consequently, the ALJ held that Gibson was not disabled under the SSA, and was
not eligible for SSI benefits.
II.

STANDARD OF REVIEW
In reviewing the Commissioner’s final decision, the Court is limited to determining

whether the decision was supported by substantial evidence, after reviewing the administrative
record as a whole. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citing 42 U.S.C. §
405(g)). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Morales v. Apfel, 225 F.3d
310, 316 (3d Cir. 2000) (quoting Plummer v. Apfel, 186 F.3d 422, 422 (3d Cir. 1999)). If the
Commissioner’s determination is supported by substantial evidence, the Court may not set aside
the decision, even if the Court “would have decided the factual inquiry differently.” Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citing Hartranft, 181 F.3d at 360)).
Nevertheless, the reviewing court must be wary of treating “the existence [or
nonexistence] of substantial evidence as merely a quantitative exercise” or as “a talismanic or
self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).

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The Court must set aside the Commissioner’s decision if the Commissioner did not take into
account the entire record or failed to resolve an evidentiary conflict. Schonewolf v. Callahan,
972 F. Supp. 277, 284-85 (D.N.J. 1997) (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
1978)). Furthermore, evidence is not substantial if “it constitutes not evidence but mere
conclusion,” or if the ALJ “ignores, or fails to resolve, a conflict created by countervailing
evidence.” Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983)
(citing Kent, 710 F.2d at 114). As such, District Court review of the final determination is a
“qualitative exercise without which our review of social security disability cases ceases to be
merely deferential and becomes instead a sham.” Kent, 710 F.2d at 114.
III.

DISCUSSION
The Commissioner conducts a five-step inquiry to determine whether a claimant is

disabled, and therefore, eligible for SSI benefits. 20 C.F.R. § 404.1520; Jones v. Barnhart, 364
F.3d 501, 503 (3d Cir. 2004). The Commissioner must first determine whether the claimant is
currently engaged in a “substantial gainful activity.” If the claimant is currently engaged in
substantial gainful activity then she is ineligible for SSI benefits. 20 C.F.R. § 404.1520(a). The
Commissioner then ascertains whether the claimant is suffering from any severe impairment.
Under the SSA, an impairment is “severe” when it “significantly limits [the claimant’s] physical
or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c).
If the Commissioner finds that the claimant’s condition is severe, the Commissioner
evaluates whether it meets or equals a listed impairment. 20 C.F.R. § 404.1520(d). If the
claimant’s physical or mental conditions meet or equal the criteria for any impairment listed in
the SSA, then it is presumed that the claimant is disabled and entitled to benefits. If not, the
Commissioner continues on to step four to evaluate the claimant’s RFC and determines whether

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the RFC would entitle the claimant to return to her “past relevant work.” 20 C.F.R. §
404.1520(e). If the claimant is capable of returning to past relevant work, then they are ineligible
for SSI benefits. If the ALJ finds the claimant is unable to resume past relevant work, the burden
then shifts to the ALJ to demonstrate the claimant’s capacity to perform work available “in
significant numbers in the national economy.” Jones, 364 F.3d at 503 (citing 20 C.F.R. §
404.1520(f)).
Here, Gibson asserts that the ALJ 1) improperly discredited Dr. Dennison’s opinion; 2)
failed to adequately assess her PTSD; and 3) failed to give her testimony the appropriate weight
and consideration. The Court will address these arguments in turn.
A.

The ALJ’s Weighing of Dr. Dennison’s Medical Evaluation

First, Gibson alleges that the ALJ erred by failing to afford the proper weight to Dr.
Dennison’s medical assessment. As Gibson’s treating physician, Dr. Dennison’s medical
assessment is entitled to “great weight,” since his “opinions reflect expert judgment based on a
continuing observation of [Gibson’s] condition over a prolonged period of time.” Brownawell v.
Commissioner of Social Security, 554 F.3d 352, 355 (3d. Cir. 2008). Indeed, Third Circuit caselaw mandates that the Commissioner give greater weight to Dr. Dennison’s medical assessment
than to the findings of a physician who has examined the claimant only once or not at all. Mason
v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). While the ALJ is entitled to make a credibility
determination, he may decide to reject Dr. Dennison’s opinion outright “only on the basis of
contradictory medical evidence and not due to his or her own credibility judgments, speculation
or lay opinion.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). When there is contradictory
medical evidence in the record, the ALJ must provide a careful evaluation and sufficient

11

explanation to support why the treating physician’s opinion was not given controlling weight.
Griffies v. Astrue, 855 F.Supp.2d 257, 270 (D. Del. 2012).
1) The ALJ’s Reliance on the Consultative Medical Opinions
To justify giving Dr. Dennison’s assessment “little weight,” the ALJ reasoned that his
medical opinions were “significantly inconsistent with the opinions of the consultative
examiners.” This is not a sufficient explanation to support the ALJ’s determination that the
consultative assessments were entitled to greater weight than Dr. Dennison’s opinion.
The ALJ decided to give the consultative examiners greater weight than Gibson’s treating
physician after he summarized each medical opinion and abruptly concluded that they were
“significantly inconsistent.” When a treating physician’s medical assessment is given less
weight, the Third Circuit is primarily concerned with the reasoning behind crediting the
contradictory evidence. See Morales, 225 F.3d at 317 (“Where . . . the opinion of a treating
physician conflicts with that of a non-treating, non-examining physician, the ALJ may choose
whom to credit but cannot reject evidence for no reason or for the wrong reason . . . [such as]
speculative inferences from medical reports”). When evaluating the weight to afford a treating
physician, the Court of Appeals for the Third Circuit has asked ALJs to apply factors listed in 20
C.F.R. § 404.1527(c)(1-6), which include the treatment relationship, length of relationship,
frequency of examination, nature and extent of the treatment relationships, supportability of the
opinion afforded by the medical evidence, consistency of the opinion with the record as a whole,
and specialization of the treating physician. Russo v. Astrue, 421 Fed.Appx. 184, 191 (3d Cir.
2011); Griffies, 855 F.Supp.2d at 272.
The Commissioner correctly argues that the ALJ has the ultimate responsibility to choose
which medical assessment to rely on when there is inconsistent medical evidence in the record.

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However, as this Circuit’s decisions consistently demonstrate, it is not enough to point to
medical evidence that the ALJ deems to be inconsistent with the treating physician’s opinion. To
satisfy the substantial evidence standard, it is critical that an ALJ provides sufficient and
appropriate justification for crediting the medical opinions that contradict the treating physician.
In this case, the ALJ provided no rationale, evaluation, or justification, for awarding greater
weight to the State examiners’ contradictory assessments. Without such explanation, a reviewing
court cannot determine whether the ALJ inappropriately formed a lay opinion of the medical
evidence from the opinions, or whether he compared the proper credibility factors. Because the
decision lacks the required explanation, this Court has no way of deciding if the decision to
afford Dr. Dennison’s less weight was based on improper “speculative inferences from medical
reports” or a proper assessment of the medical evidence using the factors provided in the SSA.
Furthermore, based on the record, the ALJ should have provided further justification for
crediting the opinions of Dr. Khona and Dr. Coffey over the opinions of Dr. Dennison. The Third
Circuit has previously held that a consulting physician’s opinion is not necessarily contradictory
when the record indicates that it has not considered factors that contributed to the treating
physician’s assessment. Allen v. Bowen, 881 F.2d 37, 42 (3d Cir. 1989). As the record indicates,
both consulting physicians examined Gibson in September of 2009. In the following year,
Gibson experienced a number of incidents which affected her medical condition. In June of
2010, Dr. Ray noted that Gibson had sustained burns due to a motorcycle accident. In July of
2010, Dr. Ray noted severe cervical pain following an incident on a boat. In November of 2010,
Dr. Ray noted a provocation of Gibson’s neck pain following a fall down the stairs. None of
these incidents were considered or evaluated by the consulting physicians. The consultative
medical assessments concerning Gibson’s pain, range of motion, gait, and flexion did not take

13

into account significant events contributing to her alleged physical limitations. Consequently,
further explanation is required for the Court to determine whether substantial evidence supports
the conclusion that the consultative assessments deserved of greater weight.
2) The ALJ’s Reliance on Medical Treatment Notes
The ALJ also decided that Dr. Dennison’s final assessment was “at odds with his own
practice’s treatment notes.” The Third Circuit has previously admonished the use of treatment
notes to discredit a physician’s conclusive medical opinion regarding a claimant’s disability. 2 In
Brownawell, the Court held that it was improper for an ALJ to rely on a physician’s treatment
notes to discredit his final medical assessment, “noting the distinction between a doctor’s notes
for purposes of treatment and that doctor’s ultimate opinion on the claimant’s ability to work.”
Brownawell, 554 F.3d at 356. The Court reasoned that the two are “not necessarily
contradictory,” since treatment notes merely describe the claimant’s “condition at the time of
[the] examination,” while the final report is an “assessment of [the claimant’s] ability to function
in a work setting.” Id.
Furthermore, an ALJ may not rely solely on the favorable sympotomology found in
treatment reports as contradictory medical evidence. The medical record must be read as a
whole, and the ALJ must explain his rejection of conclusions and medical symptomology in the
reports that lend support to the treating physician’s opinion. Morales, 225 F.3d at 318. In

2

The Court recognizes that the Court of Appeals has previously allowed the use of medical treatment notes as
contradictory evidence in some circumstances. However, those cases are not controlling here. A claimant’s
treatment notes may contradict a treating physician where, when analyzed as a whole, they form an inconsistent
medical conclusion regarding the claimant’s alleged disability. See Dula v. Barnhart, 729 Fed.Appx. 715, 719 (3d.
Cir. 2005) (finding that an ALJ’s reliance on treatment notes to discredit a treating physician was proper because
those notes formed a medical conclusion regarding the claimant’s alleged bipolar disorder, when read as a whole);
See Torres v. Barnhart, 139 Fed.Appx. 411, 414 (3d. Cir. 2005) (finding that it was not improper to use treatment
notes as contradictory medical evidence where the ALJ concluded that the notes, when read as a whole, evaluated
and documented marked improvement in the disability); See Humphreys v. Barnhart, 127 Fed.Appx. 73, 76 (3d Cir.
2005) (relying on treatment notes to discredit a treating physician when those notes were the results of examinations
and tests meant to diagnose and treat the disabilities at issue in the claim).

14

Morales, the ALJ rejected the opinion of the treating physician based on speculation in some of
the medical reports that the claimant was malingering. Based on this report, the ALJ rejected the
treating physician’s opinion, after concluding that the claimant’s alleged disability was not
credible. The Court concluded that the ALJ had improperly supplanted the treating physician’s
assessment with his own lay opinion, by making a medical determination based only on
favorable evidence in the treatment records.
In the present matter, the ALJ considered treatment notes developed during separate
evaluations in 2010. (Rec. at 22). According to the ALJ, notations in these reports concerning
Gibson’s gait, range of motion, strength, and pain are inconsistent with Dr. Dennison’s final
assessment that Gibson’s “pain and fatigue are significant enough to prevent her from
performing normal, full-time work activities.” (Rec. at 22-23). This reasoning fails to evaluate
the medical reports as a whole and mischaracterizes the conclusiveness of the treatment notes.
Many of the treatment notes relied on are not necessarily inconsistent with the final assessment,
since the observations the ALJ cited were made during the treatment of ailments entirely
unrelated to the alleged disabilities. One treatment report noted that, at the time of the
examination, Gibson was “in no distress.” (Rec. at 23). However, this report was made for the
purpose of treating dysuria and a serious burn, and when read as a whole does not lend itself to a
conclusion that is inconsistent with Dr. Dennison’s physical assessment. Id. Similarly, a
treatment note that Gibson “reported no flank pain . . . [or] distress other than a burning sensation
while urinating” does not contradict a finding of disability, since the report was made while
treating a Urinary Tract Infection. Id. The ALJ’s reliance on these treatment notes does not
constitute substantial evidence, as they do not amount to contradictory medical evidence.

15

Moreover, the ALJ’s reliance on the treatment notes amounts to forming an improper lay
opinion, as he failed to discuss or give weight to the medical evidence in the treatment history
that supported Dr. Dennison’s assessment. For example, the ALJ noted that Gibson presented
subjective “complaints of severe pain in the cervical spine after going on [a] boat,” yet he chose
to ignore the physician’s findings of muscle tenderness in her neck. (Rec. at 384). Instead, he
relied on notations in that report that Gibson “exhibited normal muscle tone, coordination and
gait, and no weakness” and formed an independent medical judgment based on this limited
symptomology, rather than assessing the report as a whole. (Rec. at 23). Similarly, the ALJ
offered, as contradictory medical evidence, Dr. Ray’s treatment notes from Novemer 12, 2012,
which observed a lack of tenderness in the spinous process after Gibson fell down the stairs. Id.
However, the ALJ failed to note that the report ultimately diagnosed Gibson with “neck pain”
and prescribed her medication to treat it. (Rec. at 366). In both of these instances, the ALJ relied
on observations in the treatment notes that tended to discredit Dr. Dennison, but ignored
evidence that would lend support to his conclusions. This reasoning essentially supplants the
treating physician’s medical opinion with the ALJ’s lay opinion, and the Third Circuit has held
that this practice does not satisfy the substantial evidence standard. The ALJ’s improper
reasoning and reliance on non-contradictory treatment notes constitutes reversible error.
B.

The ALJ’s Assessment of Gibson’s Claim of PTSD

Gibson further argues that the ALJ failed to provide proper explanation regarding the
weight given to the evidence supporting her alleged Post-Traumatic Stress Disorder (“PTSD”).
In order for the Court to determine whether the final decision is supported by substantial
evidence, the ALJ is expected to provide a “clear and satisfactory explication of the basis on
which it rests.” Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). To that end, the ALJ must

16

provide, “not only an expression of the evidence [he] considered which supports the result, but
also some indication of the evidence which was rejected.” Id. at 706. Absent a proper
explanation, the district court cannot properly review the determination, since it would be unable
to ascertain “if significant probative evidence was not credited or simply ignored.” Id. at 705.
Gibson contends that the ALJ erred by failing to consider her alleged PTSD during step
two and all subsequent stages of the evaluation process. For the district court to decide that the
ALJ’s decision at step two was supported by substantial evidence, it must find that the probative
evidence that supported Gibson’s claim was considered and properly rejected. See Plummer v.
Apfel, 186 F.3d 422, 426 (3d Cir. 1999) (“When a conflict in the evidence exists, the ALJ may
choose whom to credit but cannot reject evidence for no reason or for the wrong reason.”).
Accordingly, the Court requires “an explanation from the ALJ of the reason why probative
evidence has been rejected . . . so [it] can determine whether the reasons for rejection were
improper.” Cotter, 642 F.2d at 706-7. Therefore, in order to find that the evidence of Gibson’s
PTSD was properly rejected, the Court must be able to identify the ALJ’s reason for rejecting it.
Because ALJs are required to “provide some explanation for a rejection of probative
evidence which would suggest a contrary [determination],” a final decision cannot be upheld if it
fails to acknowledge the existence of such contradictory evidence. Adorno v. Shalala, 40 F.3d
43, 48 (3d Cir. 1994). In Adorno, the Court of Appeals vacated an ALJ determination for “not
otherwise explain[ing] his reasons for not mentioning” a medical note that would have supported
the claimant’s allegations. Id. Similarly, in Cotter, the ALJ failed to discuss medical evidence
that “was probative and supportive of Cotter’s claim which conflicted with the medical
testimony accepted by the ALJ.” Cotter, 642 F.2d at 707. The Court held that the “failure to
explain his implicit rejection of the evidence or even to acknowledge its presence was error.” Id.

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The Court finds that the provided examination of the evidence regarding Gibson’s PTSD was
wholly inadequate. After a close review, it is clear that the record contains several reports that
support Gibson’s allegations of PTSD in explicit terms, which the ALJ failed to discuss. The
record includes reports from:
•
•
•
•
•
•

Kennedy Health System, dated November 4, 2004, with an admission diagnosis that
includes “PTSD” (Rec. at 246);
Kennedy Health System, dated April 9, 2008, with a principal diagnosis that includes
“PTSD” (Rec. at 261);
Cooper Health System’s OB/GYN, dated December 16, 2008, with an “Impression” that
includes “PTSD mollestation [sic]” (Rec. at 335);
Hampton Counseling Center, dated April 28, 2009, with a discharge diagnosis that
includes “Posttraumatic Stress Disorder” stemming from “severe past trauma” (Rec. at
278);
Hampton Counseling Center, dated May 22, 2009, with a list of “Treatment Goals” that
includes “decreased symptoms of PTSD” (Rec. at 296);
Dr. Anjali Ray, dated June 23, 2010, with a notation concerning “PTSD from multiple
traumatic events” (Rec. at 386).
Nowhere in his decision does the ALJ explain the weight afforded to these reports, offer

any explanation for their rejection, or acknowledge their presence in the record. No discussion
of this evidence, or any evidence pertaining to PTSD, appears at step two of the assessment,
despite its obvious value to Gibson’s claim that her ability to work was limited by this condition.
None of these reports were referenced in step three of the evaluation. 3 Similarly, no reference
was made to this evidence during Gibson’s RFC determination, despite its support of Dr.
Dennison’s final assessment and Gibson’s subjective complaints. Ultimately, without the ALJ
even mentioning obviously probative evidence at any stage of the evaluation, the Court has no
way of knowing whether it “was not credited or simply ignored,” which makes a proper review
of the record impossible. Cotter, 642 F.2d at 705.

3

While not raised by the Plaintiff’s brief, the Court notes that none of Gibson’s evidence was evaluated using the
criteria of listing 12.06, which is used to evaluate the severity of “Anxiety Disorders,” such as PTSD. 20 CFR Part
404, Subpart P, App. 1, § 12.06.

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The Commissioner argues that the ALJ properly considered the medical evidence and
determined Gibson’s severe impairments at step two. The Commissioner believes that a review
of the statutory requirements will demonstrate the ALJ was correct not to include the alleged
PTSD as a severe impairment. This assertion mischaracterizes the pertinent issue. As the law of
the Circuit demonstrates, if there is evidence that supports Gibson’s claim in the record, it is not
enough for the reviewing court to find evidence that also supports the ALJ’s decision. Unless the
ALJ also provides an explanation for rejecting the evidence that is contrary to his finding, the
Court cannot find that his decision is supported by substantial evidence, regardless of the weight
of the supporting evidence in the record. See Kent, 710 F.2d at 114 (“A single piece of evidence
will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict
created by countervailing evidence.”).
The Commissioner asserts that the ALJ’s decision demonstrates that he was aware of
Gibson’s alleged PTSD and provided substantial evidence to support the finding that it is not
severe. The Commissioner suggests that the detailed review of Dr. Coffey’s psychological
evaluation is sufficient to find that his decision regarding Gibson’s alleged PTSD was supported
by substantial evidence. The Commissioner is mistaken. In Cotter, the Third Circuit provided an
illuminating hypothetical that is analogous presently. The Court reasoned:
If the record contained the evidence of six medical experts, one of whom
supported the claimant and five of whom did not, it would be of little assistance to
our review function were the ALJ merely to state that s/he credited the one
supporting expert because that evidence adequately demonstrated disability, but
failed to either mention or explain why the evidence of the other five experts was
rejected. In that instance, we would not know whether the evidence of the five
experts was rejected because the ALJ found it lacking in credibility, irrelevant, or
marred by some other defect.
Cotter, 642 F.2d at 706. The fact that the ALJ chose to rely on Dr. Coffey’s assessment does not
remedy the deficient rejection of the opposing medical evidence, particularly because Dr.
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Coffey’s medical report made no findings regarding Gibson’s alleged PTSD. Where a medical
report is silent on a disputed disability, the Third Circuit has declined in the past to interpret that
silence as affirmative evidence that the consultative examiner gave the allegations no weight.
Allen v. Brown, 881 F.2d 37, 41-2 (3d Cir. 1989). Instead, the Court of Appeals has held that the
“proper inference from the report's silence is that the consulting physician simply did not
consider the issue.” Id. at 42. Because of this, it would be improper to hold that Dr. Coffey’s
silence on the issue constitutes substantial evidence in support of the ALJ’s rejection of PTSDrelated evidence.
The Commissioner also argues that the ALJ’s rejection of Dr. Dennison’s final medical
opinion provides sufficient support for his rejection of her PTSD allegations. However, the
reasons for rejecting it do not implicitly apply to the other evidence that supports Gibson’s
allegations regarding her PTSD. 4 Assuming, arguendo, that Dr. Dennison’s medical opinion had
been disposed of properly, the Cotter hypothetical still applies. Whatever defect the ALJ relied
on to reject the probative exhibits must be explained thoroughly enough to allow the Court to
review the reasons for the rejection. To hold that a decision is supported by substantial evidence
without “sufficiently [explaining] the weight . . . given to obviously probative exhibits . . .
approaches an abdication of the Court's duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.” Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
1978).
Finally, the Commissioner insists that the ALJ clearly considered the allegations of PTSD
during step three of the evaluation. Specifically, the Commissioner highlights the ALJ’s
consideration of Gibson’s “function report” from December 24, 2009. While attempting to
4

For the same reason, the Court also rejects the suggestion that consideration of the medical report from Lourdes
Medical Center, dated December 28, 2010, supports the rejection of the probative evidence that does not appear in
the decision.

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determine if Gibson’s mental impairments met or equaled any of the listed impairments, the ALJ
noted that Gibson “alleges that she does not drive due to Post-Traumatic Stress Disorder.” (Rec.
at 17). This is the only explicit acknowledgement of PTSD in the ALJ’s decision. Regardless, the
Commissioner’s reliance on this limited acknowledgment again mischaracterizes the ALJ’s
responsibility. A reviewing court cannot find that a decision is supported by substantial evidence
based solely on the recognition that opposing probative evidence exists in the record. When
probative evidence conflicts with the ALJ’s ultimate conclusions, the ALJ’s bifurcated
responsibility requires acknowledging the evidence and explaining its treatment. See Adorno, 40
F.3d at 48 (“The Secretary . . . must consider all the evidence and give some reason for
discounting the evidence she rejects”). Because of this, the ALJ’s discussion of the “function
report” is inadequate, and his failure to acknowledge the numerous reports in support of
Gibson’s PTSD allegations constitutes reversible error.
C.

The ALJ’s Credibility Determination of Gibson’s Subjective Testimony

Finally, Gibson alleges that the ALJ mistakenly discredited her testimony at the hearing.
The Third Circuit has held that an ALJ must “give great weight to a claimant’s subjective
testimony when that testimony is supported by medical evidence.” Clark v. Barnhart, Fed.Appx.
211, 215 (3d Cir. 2006) (citing Schaudeck v. Comm’r of Social Sec., 181 F.3d 429, 433 (3d Cir.
1999)). While an ALJ is entitled to reject a claimant’s testimony if he finds they lack credibility,
his decision to do so “must contain a thorough discussion and analysis of the objective medical
and the other evidence.” Schaudeck, 181 F.3d at 433. An ALJ must consider the medical support
of the subjective complaints before disregarding them, or else the district court cannot find that
the credibility determination is supported by substantial evidence. Id.

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In the present case, the ALJ determined that “the claimant’s allegations of consistent pain
are not supported by the medical evidence of record.” (Rec. at 23). Since this Court believes that
the medical evidence was not properly evaluated, upon remand, the ALJ must revisit this
credibility determination. As was previously discussed, the ALJ provided an insufficient
evaluation of the medical evidence when he afforded Dr. Dennison’s medical opinion less weight
and failed to discuss evidence of Gibson’s alleged PTSD. While the ALJ may still find that
Gibson’s subjective complaints were unsupported, he must make this determination after
reevaluating the weight of Dr. Dennison’s medical reports and demonstrating proper
consideration of the evidence that supports her claims for PTSD.
IV.

CONCLUSION

For the reasons discussed above, the Court cannot find that the ALJ’s determination is
supported by substantial evidence. As a result, the Court will vacate the ALJ's decision and
remand the matter to the ALJ for further proceedings consistent with this Opinion. An
appropriate order shall enter today.

Dated: 3/18/2013

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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