GOMEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 18

OPINION. Signed by Judge Renee Marie Bumb on 2/10/2014. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

OMAYRA GOMEZ [DEL VALLE],
Plaintiff,

Civil No. 12-7930 (RMB)

v.

OPINION

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
Adrienne Freya Jarvis
Adrienne Freya Jarvis, P.C.
800 N. Kings Highway, Suite 304
Cherry Hill, NJ 08034
Attorney for Plaintiff
Elizabeth Rothstein
United States Attorney’s Office
c/o Social Security Administration
26 Federal Plaza, Room 3904
New York, NY 10278
Attorney for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:

Plaintiff Omayra Gomez Del Valle (the “Plaintiff”) seeks
judicial review pursuant to 42 U.S.C. § 405(g) of the final
decision of the Acting Commissioner of Social Security (the
“Commissioner”) denying her application for Social Security

Supplemental Income (“SSI”).

For the reasons set forth below,

the Court will vacate the decision of the ALJ and remand.

I.

Background
a) Procedural History

Plaintiff applied for SSI on March 30, 2009, alleging a
disability onset date of June 3, 2008.
“R.” 94).

(Administrative Record

Plaintiff’s claims were denied on September 18, 2009,

and again upon reconsideration on February 5, 2010. (R. 19).
Plaintiff then filed a request for a hearing before an
Administrative Law Judge (“ALJ”), which was held before the
Honorable Frederick Timm, on January 11, 2011.

(R. 32).

Plaintiff appeared, testified at the hearing with the assistance
of an interpreter, and was represented by counsel.

(R. 19).

The ALJ issued his determination on March 17, 2011, finding
that Plaintiff had not been disabled since the date of filing
and denying benefits.

(R. 13-27).

Thereafter, Plaintiff filed

a Request for Review of Hearing Decision with the Appeals
Counsel on March 17, 2011.

(R. 1).

Plaintiff submitted

additional medical records (R. 465-703), which the Appeals
Counsel made part of the record. (R. 6-7).

The Appeals Counsel

made no further findings and adopted the ALJ’s decision on

2

November 2, 2012.

(R. 1).

That decision is the final decision

of the Commissioner of Social Security.

b) Hearing Testimony

Plaintiff, who came to the United States from Puerto Rico
in 2007 or 2008 (R. 60), speaks very little English and required
the use of an interpreter at the ALJ hearing.

The interpreter

switched between answering in the first and third person.

(See,

e.g., R. 62-64), and the transcript is often difficult to
follow.
Three witnesses testified during the ALJ hearing.

The

first witness, Plaintiff’s sister Marisol Torres, testified
that Plaintiff has “always” heard voices, explaining that
Plaintiff has been hearing voices and “seeing somebody1” since
she was very young.

(R. 52).

Plaintiff sometimes ask Ms.

Torres if she hears voices, and when Ms. Torres indicates that
she does not, Plaintiff starts to cry.

(R. 52-53).

Ms. Torres

testified that Plaintiff started therapy at Nueva Vida when she
came to the United States from Puerto Rico in 2007 or 2008.
at 60).

(R.

Plaintiff’s psychiatrist at Nueva Vida is Dr. Monte.

(R. 61, 390-92, 437-39).

1

Plaintiff’s brief has a footnote here saying “[i]f read in
context this means having visual hallucinations.”
3

With respect to Plaintiff’s employment history, Ms. Torres
testified that Plaintiff worked as a cashier at Kmart in Puerto
Rico when she was 15 or 16 years old.

(R. 54, 60).

Later, in

2008, Plaintiff reported earnings of $11,000.00, earned through
knitting children’s clothing that Ms. Torres would then sell.
(R. 55, 56-59).

Ms. Torres indicated she encouraged Plaintiff

to knit to keep her mind occupied and that Plaintiff knitted for
approximately one hour a day in the afternoons during this time.
(R. 74-76).

Ms. Torres supervised Plaintiff and did not think

Plaintiff could complete the work by herself because Plaintiff
would “freak out if it[] [was] not right” and because Ms. Torres
had to reteach her or correct her knitting every day.
75).

(R. 74-

Ms. Torres testified that Plaintiff eventually gave up the

business because “it was too much for her.”

(R. 57-58).

Ms. Torres testified that her involvement with Plaintiff on
a daily basis is “almost on everything,” including helping with
food shopping, cooking, doing laundry, and caring for
Plaintiff’s children.

(R. 42-43, 49-50).

Ms. Torres testified

that Plaintiff sometimes gets frustrated helping her children
with their homework because “[i]t’s very difficult for her . . .
to think on her own, to actually explain . . . . [and] she seems
to not have the patience to be sitting with the kids.”

(R. 50).

Ms. Torres testified that Plaintiff has difficulty food shopping
because most of the time she shops she panics from being around
4

so many people.

(R. 44, 46-47).

During these panic attacks,

Plaintiff sometimes cries, pulls her hair, bites her nails, and
scratches herself.

(R. 45).

Ms. Torres does not let Plaintiff watch soap operas or the
news as these programs tend to upset Plaintiff.

(R. 54-55).

Instead, Plaintiff watches cartoons with the children. (R. 54).
Ms. Torres testified that she is Plaintiff’s only friend, and,
even so, Plaintiff sometimes wants to punch or hit Ms. Torres.
(R. at 54-55).
Ms. Torres testified that she and Plaintiff’s aunt take
Plaintiff to her clinic appointments and that Ms. Torres waits
for Plaintiff during these appointments in case Plaintiff gets
nervous being around people.

(R. 48).

Ms. Torres also always

makes sure Plaintiff takes her medication.

(R. 49-50).

After Ms. Torres’ testimony was complete, the Plaintiff
testified.

At the beginning of Plaintiff’s testimony, counsel

asked whether Plaintiff was scratching herself and whether she
needed a break.

(R. 63-64).

The interpreter told Plaintiff she

did not have to be scared and the parties agreed to take a
break.

(R. 64).

Upon return, the interpreter indicated she

thought Plaintiff was nervous because she was scratching
herself.

(R. 63-64).

Plaintiff, through her interpreter, testified that she
sometimes hears a man’s voice and that the voice scares her.
5

(R. 64).

When she is home alone, Plaintiff locks the house,

which has three locks, and draws the curtains.

(R. 65).

Plaintiff testified that she sometimes gets sick and vomits from
nervousness and that she bites her hands from anger.

(R. 66-

67).
Plaintiff confirmed that Ms. Torres is her only friend,
helped Plaintiff knit the children’s clothing, and continues to
help Plaintiff care for her children and cook.
65-66, 72-73).

(R. at 62-63,

Plaintiff testified that she has not made

children’s clothes for a long time and that she threw away her
knitting tools after becoming angry.

(R. 68).

On one occasion,

a customer was unhappy with a dress Plaintiff made, and
Plaintiff “didn’t know what to do and she just exploded herself
. . . and quit doing it.”

(R. 69).

Plaintiff testified that

she discussed her knitting business with her counselor but not
her psychiatrist.

(R. 71).

Plaintiff stated that could not work as a cashier now
because she is too nervous around people; she only worked as a
cashier at Kmart because her parents needed money and, even
then, only worked for three hours a day for a very short time
because she was still in school.

(R. 70, 72).

Further,

Plaintiff testified that her mental problems have worsened since
she worked at Kmart.

(R. 72).

job since being in New Jersey.

Plaintiff has not applied for a
(R. 71).
6

During the hearing, the ALJ consulted with Chris Martin, a
Vocational Expert (“VE”), to determine the types of work
Plaintiff could perform.

(R. 76).

Based on the hypotheticals

presented by the ALJ, the VE testified that the Plaintiff could
perform in the field of knit goods2 (R. 80, 87), or as a
housekeeping cleaner (R. 83, 85), a sedentary assembler (R. 85),
or a locker room attendant (R. 85).

The parties concluded the

cross-examination of the VE and apparently intended to reconvene
at a later date.

(R. 93).

c) The ALJ’s Decision
Applying the requisite five-step analysis,3 the ALJ
concluded that Plaintiff met the insured status requirements of
the Social Security Act and had not engaged in substantial
gainful activity since March 30, 2009.

(R. 21).

The ALJ found

that Plaintiff has the severe impairments of varicose veins and
superficial thrombophlebitis of the left lower extremity, and a
major depressive disorder.

(R. 21).

In making the “severe

impairment” findings, the ALJ relied on records related to
Plaintiff’s conditions, including:


2
3

The report of David Bogacki, Ph.D, who conducted a
consultative mental status examination on Plaintiff on
September 15, 2009 at the request of the Social
Security Administration (Exhibit 1F);

This is a light work, semi-skilled position with an SVP of 3.
Described on pages 15-16 infra.
7











The report of Joseph Wieliczko, Psy.D. from September
18, 2009 (Exhibits 3F & 4F);
Treatment notes from Nueva Vida Behavioral Health
Center of New Jersey from August 8, 2008, when
Plaintiff was evaluated by Lyda Monte, M.D., and from
November 2009 and January 21, 2010 (Exhibit (5F, 12F);
Treatment notes from Hispanic Family Center for the
period from September 2008 through April 2009 (Exhibit
16F);
Treatment notes from Ramon Acosta, M.D., including
notes from July 22, 2008, June 19, 2009, and December
8, 2009 (Exhibit 9F);
Treatment notes from Babak Abai, M.D. from October 28,
2008, March 5, 2009, and March 18, 2010 (Exhibit 15F &
9F);
The treatment notes of Mitra Assadi, M.D., from
October 14, 2010 (Exhibit 9F);
The report of Lyda Monte, M.D. from December 8, 2010
(Exhibit 13F); and
The opinion of the State Agency medical consultants
(R. 24). 

Based on the above, the ALJ determined that Plaintiff’s
impairments did not meet the criteria for listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1.

(R. 24).

Next, the ALJ determined Plaintiff has residual functional
capacity to perform light work as defined in 20 C.F.R.
416.967(b); “however, due to mental impairment, she is limited
to simple, routine tasks, and to tasks that are goal-oriented
rather than production-paced and to be performed in a lowtraffic environment.”

(R. 24).

The ALJ concluded that

Plaintiff:



Demonstrates “a mild degree of limitation in the
activities of daily living area functioning”;
Demonstrates “a moderate degree of limitation in the
social functioning area of functioning”;
8




Demonstrates “a moderate degree of limitations in the
concentration, persistence and pace area of functioning”;
and
“[H]as no episodes of decomposition.”

(R. 26).

The ALJ predicated his findings on the following

medical determinations:













4

Dr. Bogacki’s report that the Plaintiff indicated she
could care for and manage her family; that Plaintiff
was oriented to time, place, and person; that
Plaintiff’s speech was logical, coherent, and goaldirected; and the results of cognitive screening (R.
25 citing Exhibit 1F);
The Social Security Field Office interviewer’s
observation that Plaintiff “had no physical or
cognitive limitations during her face-to-face
interview[]” (R. 25 citing Exhibit 1E);
Dr. Bogacki and Dr. Monte’s estimate that Plaintiff’s
GAF4 was 60 (R. 25 citing Exhibits 1F & 5F)
Dr. Wieliczko’s finding that Plaintiff’s “activities
of daily living did not indicate significant or marked
limitations” and that Plaintiff could perform simple
work related activities (R. 25 citing Exhibit 4F);
The Hispanic Family Center’s treatment notes from
September 9, 2008 through April 16, 2009 documenting
an improvement in Plaintiff’s symptoms (R. 25 citing
Exhibit 16F);
Nueva Vida Behavioral Health’s treatment notes
indicating Plaintiff “had good results with medication
and treatment” (R. 25 citing Exhibit 12F);
Dr. Assadi’s report that Plaintiff’s migraine
headaches were alleviated by over the counter
analgesics (R. 26 citing Exhibit 9F); and
Doppler studies performed on Plaintiff’s lower
extremities in March 2010, after Plaintiff underwent
endovenous laser ablation for her varicose veins, with
results “within normal limits.” (R. 26)

GAF refers to a “Global Assessment of Functioning.”

9

The ALJ also discussed the December 8, 2010 report of Dr.
Monte.

In that report, Dr. Monte found that the Plaintiff

displayed inter alia, “marked cognitive deficits and. . . had
frequent episodes of depression, mood changes, loss of selfcontrol, social anxiety, and hallucinations,”

which resulted in

“‘extreme’ limitations in carrying out simple instructions,
making judgments on simple work-related decisions,
understanding, remembering and carrying out complex
instructions; make[ing] judgments on complex work-related
decisions; interacting appropriately with the public,
supervisors, and co-workers and responding appropriately to work
situations and to changes in routine work setting.”

(R. 23

citing Exhibit 13F).
The ALJ assigned “little weight to Dr. Monte’s assessment”
that Plaintiff has extreme limitations, finding that the
assessment is “not consistent with the [Plaintiff’s] treatment
records, her lack of inpatient treatment, normal childhood, and
her reported activities of daily living.”

(R. 25).

To support

his finding, the ALJ points to both Plaintiff and her sister’s
testimony regarding Plaintiff’s self-employment, which, he
stated, required the exercise of significant initiative and
activity level.

(R. 25).

Moreover, the ALJ indicated that the

record fails to suggest Plaintiff:

10



has experienced repeated episodes of decomposition of
extended duration;
 has a residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or changes in her environment would be
predicted to cause her to decompensate; and/or
 exhibits a current history of one or more years of
inability to function outside of a highly supportive
living arrangement, with an indication of continued need
for such arrangement.
(R. 26).
In making these findings, the ALJ stated that the
Plaintiff “has some subjective limitations, but not of the
intensity, frequency, or duration alleged.”

(R. 25).

The ALJ

continued, stating that “the [Plaintiff’s] alleged limitations
appeared exaggerated compared to the objective medical evidence
of record[] and are inconsistent with the much higher level of
daily activities indicated.”

(R. 25).

Next, the ALJ concluded that the Plaintiff had no past
relevant work and thus he could not determine whether Plaintiff
could perform past relevant work.

(R. 26).

Then, considering

Plaintiff’s age, education, work experience, and the RFC as
determined, the ALJ found that there were jobs in significant
numbers in the national economy that Plaintiff could perform.
(R. 26).

In making this finding, the ALJ relied on the VE, who

had been asked to determine whether jobs exist in the national
economy for an individual with the Plaintiff’s age, education,
work experience, and RFC.

(R. 27).

11

The VE found that Plaintiff

would be able to perform jobs as a cleaner, an assembler, and a
locker room attendant.

(R. 27).

As a result of the above findings, the ALJ ultimately
determined that the Plaintiff is not disabled as defined by the
Social Security Act. (R. 27).

II.

Standard of Review
A reviewing court must uphold the Commissioner of Social

Security’s factual findings if they are supported by
“substantial evidence,” even if the court would have decided the
inquiry differently. 42 U.S.C. §§ 405(g), 1383(c)(3); Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001). “Substantial evidence” means
“‘more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Cons. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Where the
evidence is susceptible to “more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”
Ahearn v. Comm’r, 165 F. App’x 212, 215 (3d Cir. 2006) (citing
Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984); Monsour Med.
Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)).

12

If faced with conflicting evidence, however, the
Commissioner “must adequately explain in the record his reason
for rejecting or discrediting competent evidence.” Ogden v.
Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v.
Heckler, 786 F.2d 581 (3d Cir. 1986)). Stated differently,
[U]nless the [Commissioner] has analyzed all evidence
and has sufficiently explained the weight he has given
to obviously probative exhibits, to say that his
decision is supported by substantial evidence
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) (quoting
Arnold v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th
Cir. 1977)) (internal quotations omitted); see also Guerrero v.
Comm’r, No. 05-1709, 2006 WL 1722356, at *3 (D.N.J. June 19,
2006) (“The [administrative law judge’s] responsibility is to
analyze all the evidence and to provide adequate explanations
when disregarding portions of it.”), aff’d, 249 F. App’x 289 (3d
Cir. 2007).
While the Commissioner’s decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004), it must consider all pertinent
medical and non-medical evidence and “explain [any]
conciliations and rejections,” Burnett v. Comm’r, 220 F.3d 112,
122 (3d Cir. 2000). See also Fargnoli, 247 F.3d at 42 (“Although
we do not expect the [administrative law judge] to make
13

reference to every relevant treatment note in a case where the
claimant . . . has voluminous medical records, we do expect the
ALJ, as the factfinder, to consider and evaluate the medical
evidence in the record consistent with his responsibilities
under the regulations and case law.”).
In addition to the “substantial evidence” inquiry, the
reviewing court must also determine whether the ALJ applied the
correct legal standards. See Friedberg v. Schweiker, 721 F.2d
445, 447 (3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). The court’s review of legal issues is plenary.
Sykes, 228 F.3d at 262 (citing Schaudeck v. Comm’r, 181 F.3d
429, 431 (3d Cir. 1999)).
“Disability” Defined
The Social Security Act defines “disability” as the
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
14

whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.

42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant's disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i-v). In Plummer, 186 F.3d at 428,
the Third Circuit described the Commissioner’s inquiry at each
step of this analysis:
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 1520(a). If a claimant
is found to be engaged in substantial activity, the
disability claim will be denied. Bowen v. Yuckert, 482
U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether
the claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show
that [his] impairments are “severe,” [he] is
ineligible for disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant's impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform [his] past relevant work. 20 C.F.R.
§ 404.1520(d). The claimant bears the burden of
demonstrating an inability to return to [his] past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume [his]
former occupation, the evaluation moves to the final
step.
15

At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R.
§ 404.1520(f). The ALJ must show there are other jobs
existing in significant numbers in the national
economy which the claimant can perform, consistent
with [his] medical impairments, age, education, past
work experience, and residual functional capacity. The
ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether [he] is
capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. The ALJ will often seek the
assistance of a vocational expert at this fifth step.
See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984).

III.

Analysis
a) The ALJ’s Assessment of the Medical Opinions of Record5

Plaintiff’s two arguments - 1) that the ALJ erred in giving
great weight to the opinions of a non-examining state agency
psychologist, Dr. Wieliczko, and an agency retained
psychologist, Dr. Bogacki, both of whom did not have Plaintiff’s
treatment records; and 2) that the ALJ erred in giving little
weight to Plaintiff’s treating psychiatrist, Dr. Monte - will be
addressed simultaneously as those issues, and the law related to
their resolution, are interrelated.

5

This Court construes Plaintiff’s arguments regarding the
ALJ’s determinations with respect to her treating physician as a
challenge to the ALJ’s step four finding of Residual Functional
Capacity. See Johnson v. Comm’r, 529 F. 3d 198, 201 (3d Cir.
2008)(construing arguments regarding treating physician’s
opinions as a challenge to the ALJ’s step four finding).
16

The crux of Plaintiff’s arguments stems from the ALJ’s
finding that he assigned “great weight” to the findings of Drs.
Bogacki and Wieliczki, (R. 22) and “little weight to Dr. Monte’s
assessment as it is not consistent with the claimant’s treatment
records, her lack of inpatient treatment, normal childhood, and
her reported activities of daily living, which indicate a much
higher level of functioning (see Exhibits 3F, 5F, 12F & 16F).”
(R. 23-24).

Plaintiff argues that Dr. Wielizko’s review does

not constitute substantial evidence as it is merely a series of
check boxes with no written report and that the ALJ’s review of
medical evidence “dismisses several years of mental health
treatment by picking out some ‘good days’ and citing them.”
Pl.’s Br. at 35.

Moreover, the Plaintiff argues that the

findings of Drs. Bogacki and Wieliczki are not supported by
substantial evidence as neither doctor had Plaintiff’s relevant
mental health treatment records in their possession before
making their assessment.
The Plaintiff also avers that the ALJ erred in supporting
his conclusions by stating that Plaintiff had a “normal
childhood” when she only alleged an onset of her illness as of
2008, and that the Commissioner seeks to improperly bolster the
ALJ’s findings after the fact with record evidence not cited in
his opinion.

17

In response, the Commissioner argues that Drs. Bogacki and
Wieliczki had no treating source evidence to review through no
fault of their own, as the Commissioner made multiple attempts
to obtain the records but was unsuccessful.

Moreover, the

Commissioner contends that Dr. Monte’s assessment in 2010 that
Plaintiff had extreme limitations is “inconsistent with. . .
her own treatment records,” (Comm’r Br. at 12), and the ALJ’s
reliance on Plaintiff’s “normal childhood,” even if incorrect,
is harmless as there were other grounds for his determination.
SSR 96-2p states, in relevant part: “If a treating source's
medical opinion is well-supported and not inconsistent with the
other substantial evidence in the case record, it must be given
controlling weight; i.e., it must be adopted.”

That said, an

ALJ must consider every medical opinion and decide how much
weight to give the opinion. 20 C.F.R. § 404.1527(c).

An ALJ

must accord “[t]reating physicians' reports . . . great weight,
especially when their opinions reflect expert judgment based on
a continuing observation of the patient's condition over a
prolonged period of time.”

Plummer, 186 F.3d at 429 (internal

citations omitted).
The ALJ must also consider the findings and opinions of
state agency medical consultants and other sources consulted in
connection with ALJ hearings. 20 C.F.R. § 404.1527(e)(2)(i).

If

non-examining medical source opinions are supported by medical
18

evidence in the record, they may constitute substantial evidence
and override a treating physician's opinion.

Alexander v.

Shalala, 927 F. Supp. 785, 795 (D.N.J. 1995), aff'd per curiam,
85 F.3d 611 (3d Cir. 1996).

"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 . . . . The ALJ
must consider all the evidence and give some reason for
discounting the evidence she rejects."
(internal citations omitted).

Plummer, 186 F.3d at 429

An ALJ errs by failing to address

evidence in direct conflict with his findings.

Landeta v.

Comm’r, 191 F. App’x. 105, 110 (3d Cir. 2006).
This Court agrees that the ALJ has failed to adequately
address evidence in the record that conflicts with his findings
and, therefore, remand is proper.6

In his opinion, the ALJ

bolstered his determination that Dr. Monte’s conclusions as to
Plaintiff’s limitations were unfounded by citing Exhibit 12F –
Plaintiff’s treatment records from Nueva Vida from 8/8/0810/22/10.

In doing so, however, the ALJ failed to resolve or

even address certain conflicts and sections of that record

6

This Court also finds troubling the fact that the ALJ
stated that the hearing would be reconvened but it was never
restarted. (R. 93). Similarly troubling is the ALJ’s explicit
finding that the Plaintiff can communicate in English (R. 26 at
¶7), when, in fact, the Plaintiff needed a translator at the
hearing, a translator in order to be examined by Dr. Bogacki,
and when there is explicit and unrefuted evidence in the record
that the claimant speaks very little English. (See R. 208).
19

supporting Dr. Monte’s findings.

For example, the ALJ states

that the “[t]reatment notes from Nueva Vida Behavioral Health. .
. indicate the claimant had good results with medication and
treatment,” (R. 25), and cites those treatment notes as grounds
for assigning Dr. Monte’s findings little weight.

He appears to

ignore, however, sections of that very record supporting Dr.
Monte’s findings – e.g., notes from February 2010, indicating
that Plaintiff “does not have normal decision-making
capabilities” was “overwhelmed” “anxious” and “showed poor
concentration.”

(R. 414-15).

Moreover, he provides incomplete citations to other
portions of the record where a full citation would be less
supportive of his conclusion.

For example, the ALJ states that

“[o]n April 16, 2009, the claimant reported that she was doing
well (Exhibit 16F).” (R. 25).

A full review of record 16F

reveals, however, that the complete statement in the treatment
note from the Hispanic Family Center is that the claimant is
“doing well on meds.”

(R. 458 emphasis added).

Doing well

overall and doing well on medication can mean two very different
things – e.g., the “meds” are not making the Plaintiff feel
negative side-effects, etc.

As such, this Court cannot find

that the ALJ’s finding is supported by substantial evidence, and
this Court will remand for resolution of this conflicting
probative evidence.

See Fargnoli, 247 F.3d at 42 (“Where there
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is conflicting probative evidence in the record, we recognize a
particularly acute need for an explanation of the reasoning
behind the ALJ’s conclusions, and will vacate or remand a case
where such an explanation is not provided.”).
Moreover, this Court agrees that the ALJ’s heavy reliance
on Dr. Wieliczki as substantial evidence is problematic as it is
merely a form report with check boxes only and no writing
whatsoever.

See Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.

1993)(“Form reports in which a physician's obligation is only to
check a box or fill in a blank are weak evidence at best.”).
The Plaintiff is also correct that the Commissioner seeks to
improperly bolster the ALJ’s determination with records not
cited in his opinion.

For example, the Commissioner seeks to

rely on the findings of Dr. Joseph Bencivenne contained in
Exhibits 6F and 7F in support of the ALJ’s giving great weight
to the findings of Drs. Bogacki and Wieliczko.

This Court,

however, cannot read the findings of Dr. Bencivenne into the
ALJ’s opinion.

See Fargnoli, 247 F.3d at 43, n.7 (rejecting the

District Court’s attempt to rectify ALJ’s error by analyzing
records not mentioned by the ALJ).
Finally, even if Drs. Bogacki and Wieliczko “rightly” did
not have the exhibits in front of them before completing their
respective evaluations (because those records were not produced
by Plainitff), the ALJ did have those exhibits when rendering
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his decision.

As such, it was the ALJ’s duty to examine the

entire record before him and address the evidence that directly
conflicts with the findings of Drs. Bogacki and Wieliczko.
See Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)(“[W]e
need from the ALJ not only an expression of the evidence s/he
considered which supports the result, but also some indication
of the evidence which was rejected. In the absence of such an
indication, the reviewing court cannot tell if significant
probative evidence was not credited or simply ignored.”).
The ALJ should re-visit these issues on remand and more
clearly state his reasoning for discounting the opinion of Dr.
Monte, if that is again his finding in light of his examination
of all relevant evidence.

See Williams v. Comm’r, 2013 U.S.

Dist. LEXIS 118525, at *40 (D.N.J. Aug. 21, 2013)(finding that
the ALJ erred by failing to discuss all medical evidence that
supported the decision of claimant’s treating physician).

b) The Testimony of the Lay Witnesses
Plaintiff also argues that the ALJ failed to properly
assess the credibility of Ms. Torres’ hearing testimony.

In

response, the Commissioner admits that the ALJ did not
explicitly state that Ms. Torres was not credible, (Comm’r Br.
at 17), but that the failure to do so is not problematic as Ms.
Torres’ testimony is cumulative and not outcome determinative.
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“Although the ALJ may weigh the credibility of the
evidence, he must give some indication of the evidence that he
rejects and his reason(s) for discounting that evidence.”
Fargnoli, 247 F.3d at 43.

It is the responsibility of the ALJ

to weigh the evidence and make determinations on contradicting
evidence.

Rodriguez-Pagan v. Comm’r Soc. Sec., No. 10-4273,

2011 U.S. Dist. LEXIS 105425, at *45-46 (D.N.J. Sept. 16, 2011).
This Court agrees that the ALJ’s failure to assess the
credibility of Ms. Torres’ testimony at the hearing warrants
remand as her testimony is consistent with limitations outlined
by Plaintiff and Dr. Monte and contrary to the ALJ’s findings as
supported by Drs. Bogacki and Wieliczko.

For example, Ms.

Torres testified at length about the Plaintiff’s inability to
care for herself: for example she stated that she assists
Plaintiff on a daily basis with “almost on everything,”
including helping with food shopping, cooking, doing laundry,
and caring for Plaintiff’s children.

(R. 42-43, 49-50).

Yet,

the ALJ’s opinion finds that “the [Plaintiff’s] alleged
limitations appeared exaggerated compared to the objective
medical evidence of record; and are inconsistent with the much
higher level of daily activities indicated” (R. 25); he proffers
no discussion of his consideration of, let alone rejection of as
not credible, Ms. Torres’ testimony regarding her sister’s
extensive limitations.

Thus, remand is warranted.
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See Cotter,

642 F.2d at 705 (“[W]e need from the ALJ not only an expression
of the evidence s/he considered which supports the result, but
also some indication of the evidence which was rejected. In the
absence of such an indication, the reviewing court cannot tell
if significant probative evidence was not credited or simply
ignored.”).

IV.

Conclusion

For the reasons stated above, this Court will vacate the
decision of the ALJ and remand.

An accompanying Order will

issue this date.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated February 10, 2014

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