HARRIS v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Renee Marie Bumb on 6/11/2015. (TH, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
WAYNE HENRY HARRIS,
Civil No. 1:13-CV-7130-RMB
CAROLYN W. COLVIN,
Commissioner, Social Security
Melissa Cordner Lewis
South Jersey Legal Services, Inc.
745 Market Street
Camden, NJ 08102
Attorney for Plaintiff
Office of the U.S. Attorney
District of New Jersey c/o of General Counsel
26 Federal Plaza
New York, NY 10278
Attorneys for Defendant
BUMB, United States District Judge:
Plaintiff, Wayne Henry Harris, (“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 his application for Supplemental Security Income
(“SSI”). For the reasons set forth below the court will vacate
the decision of the Administrative Law Judge and remand.
a. Procedural Background
On August 18, 2010, Plaintiff filed an application for SSI
alleging a disability with an onset date of March 31, 2007.
(Administrative Record “R.” 197).
His claim was initially
denied on January 29, 2011, and upon reconsideration on April
15, 2011. Thereafter, a written request for a hearing before an
Administrative Law Judge (“ALJ”) was filed on March 26, 2012,
which also amended the initial disability onset date to October
26, 2010. On April 10, 2012, Plaintiff, represented by an
attorney, appeared at the hearing held before Honorable Judge
Frederick Timm. (R. 33).
On May 25, 2012, the ALJ issued a
decision denying Plaintiff’s application (R. 16-27), which
became the final judgment of the Commissioner of Social Security
after the Appeals Council denied Plaintiff’s request for review
on September 27, 2013.
Pl.’s Br. at 6.
commenced this action, requesting judicial review pursuant to 42
U.S.C §405(g). Id.
b. Hearing Testimony
Plaintiff was born October 20, 1964. (R. 110). He completed
eighth grade in special education, but eventually got his GED.
Plaintiff resides with his mother and father. (R. 41).
Plaintiff’s last previous employment was with Ram Jeep in 2007
as a laborer, which consisted of him carrying wood, three to
four times a day. (R. 42). Plaintiff accredits his lack of
attention to his time in prison for nearly a decade. (R. 42).
Plaintiff testified to having flashbacks of an officer beating
him senseless. (R. 42). He stated that he was raped in Eastern
Jersey Shore Prison and mentioned other violent attacks by
fellow inmates. (R. 43). He also claims that he only gets about
two to three hours of sleep nightly because he wakes up in a
cold sweat after dreaming about him still being in prison. (R.
During the hearing, Plaintiff testified about his physical
and mental health. In particular, Plaintiff testified that he
could not work around other people without becoming aggressive
or violent, which is why he no longer worked at his previous
employment. (R. 44). Plaintiff testified that he would have hurt
one of his coworkers. (R. 44). Plaintiff attributed his memory
loss to brain traumas, which he said continues to occur because
of a car accident in 1995. (R. 48). Plaintiff testified that he
has had a problem focusing in his previous employment because he
has problems remembering what someone might ask him to do. (R.
During his testimony, Plaintiff read off a list of
prior diagnoses including: “bipolar, major depression disorder
recurring, post-traumatic stress disorder, psychotic episodes,
long and short-term memory loss, anxiety, [and] encephalomalacia
. . . .” (R. 55).
Plaintiff told the ALJ that he could not maintain any of
his past employment “[b]ecause of [his] cognitive ability to
retain what orders or knowledge and [him] being violently
aggressive towards others and the flashbacks that [he] still
ha[s] from prison.” (R. 52). Plaintiff also testified that he
cannot get on public transportation because there are too many
people making him feel trapped, and if someone touches
Plaintiff, he becomes aggressive (R. 56).
During the hearing, Plaintiff also complained of posttraumatic stress, and claimed that the variety of medicine he is
taking does not help. (R. 61). Plaintiff testified that his lack
of judgment caused him to commit a robbery in 2001, which led to
his incarceration in 2002. (R. 62). Plaintiff testified that his
loss of memory makes him forget appointments, his thought in a
middle of a sentence, or even where he places food or drinks at
times. (R. 64). His attention span is about a minute. (R. 65).
He also has a problem with being in large crowds. (R. 67). His
panic attacks are overwhelming and his anxiety makes his blood
pressure sky rocket. (R. 69).
Plaintiff stated that his panic
attacks and other symptoms are still present even when he takes
his medication as prescribed.
Plaintiff testified that he has been depressed for the last
ten years, causing him not to be able to do anything, and only
eating once a day. (R. 74).
Plaintiff also discussed the fact
that he drags his left foot due to an injury to the right side
of his brain.
He stated that he liked to spend time
alone, repairing his bike, doing yard work, and listening to
symphonic music. (R. 83).
After the Plaintiff testified, Mr. Cezzoli, the Vocational
Expert (“VE”), determined that Plaintiff’s past work history was
primarily unskilled in nature.
The VE also found that
the line of work Plaintiff described was heavy exertion. (R.
85). The VE then determined that someone limited to light
exertion could not perform the previous laborer positions of the
Plaintiff. (R. 86).
When the ALJ gave a hypothetical to the VE providing the
A hypothetical individual born on October 20, 1964. He’s
thus a younger individual under Social Security rules.
does have a high school education. As the single past
relevant work occupation you’ve identified, is generally
capable; never to climb a ladder, rope scaffold; avoid
concentrated exposure to extreme cold, extreme heat,
wetness, humidity and environmental irritants and is
further limited to unskilled tasks to goal oriented rather
than production pace tasks; no significant interaction with
the general public, even by telephone; no more than
occasional interaction with supervisors and co-workers, and
requires a stable work place, meaning few, if any changes
of setting, processes and tools.
In response to the hypothetical as posed, the VE
stated that there were other occupations that the hypothetical
individual could perform, (R. 87), including Produce Weigher, a
Garment Folder, or a Sorter. (R. 87-88).
The VE was then questioned by the Plaintiff’s attorney.
The attorney provided the VE with hypothetical limitations
including an inability to behave in an emotionally stable manner
and repeatedly leaving his post. (R. 91).
In response to the
limitations posed by the Plaintiff’s attorney, the VE stated:
if they did [sic] that quite frequently to the point where
it affected them where they were not performing at perhaps
at an 80-percent capacity, meaning they were not [sic]
occasionally 2.6 hours out of an eight hour day were not
performing their task because of behavior issues, that in
itself would preclude all full-time competitive employment
on a substantial basis.
The VE stated the same conclusion applied in response
to the Plaintiff’s attorney presenting another hypothetical of
an individual who, several times a month, was “verbally
inappropriate” to other people, or would react in an extreme
manner even if just touched on the shoulder. (R. 92).
The VE further stated that someone who could not perform
one or two step instructions would be precluded from all fulltime competitive employability on a sustained basis. (R. 93). An
individual who could not pay attention long enough would have
the same result. (R. 93).
The VE clarified that based on the
testimony given by Plaintiff at the hearing with regard to how
he handles stress, that “it would appear that based on the
testimony, given how he testified, it would actually preclude
all competitive employability on a sustained basis.”
The VE told the ALJ that his conclusion was based on Plaintiff’s
“testimony [in which he] indicated that when individuals would
make statements that he felt were derogatory in nature that the
reaction was excessive to the point where that behavior was
displayed on a continuous and persistent basis.” (R. 95).
c. The ALJ’s Decision
Applying the requisite five step analysis, 1 the ALJ
concluded that Plaintiff had not engaged in substantial gainful
activity since August 18, 2010, the application date. (R. 18).
The ALJ also found that Plaintiff has severe impairments
including: hypertension, headaches, major depressive disorder,
and post-traumatic stress disorder (“PTSD”). (R. 18).
these impairments, the ALJ found that they caused more than a
minimal restriction of Plaintiff’s ability to perform work
related activities and were, therefore severe. (R. 18).
However, the ALJ found that Plaintiff’s polysubstance abuse,
while in remission, did not cause more than a minimal limitation
in the Plaintiff’s ability to perform basic mental work
activities and was therefore not severe.
Described on pages 18-19 infra.
Relying on these findings, the ALJ next determined that
Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, A subpart P,
Appendix 1 (20 C.F.R §§ 416.920(d), 416.925 and 416.926). (R.
He further found that the severity of the claimant’s
mental impairments, considered singly and in combination, did
not meet or medically equal the criteria of listing 12.02, 12.04
or 12.06. (R. 19).
In making this finding, the ALJ considered
whether the “paragraph B” criteria are satisfied, meaning that
mental impairments must result in at least two of the following:
“marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence or pace;
or repeated episodes of decompensation, each of extended
A marked limitation means more moderate but less than
extreme.” (R. 19-20).
The ALJ determined that in the activities of daily living,
and social functioning, the Plaintiff has a “moderate
restriction,” (R. 20), noting that Plaintiff was appropriately
dressed and groomed and had reported having a girlfriend.
ALJ also found that Plaintiff has moderate difficulties with
regard to concentration, persistence or pace. (Id.)
The ALJ further found that there was no evidence
establishing the “paragraph C” criteria, meaning that under
listings 12.02 and 12.04, Plaintiff has not shown a medically
documented history of chronic organic mental disorder or
affective disorder of at least 2 years’ duration.
respect to the 12.06 listing, Plaintiff had not shown a complete
inability to function independently outside the area of his own
home as supported by the fact that “[he] has had little
psychiatric or mental health treatment since the alleged onset
Based on his review of the record, the ALJ determined that
Plaintiff had the RFC “to perform light work as defined in 20
C.F.R. § 416.967 (b) except he is unable to climb ladders,
ropes, or scaffolds, and he must avoid concentrated exposure to
extreme cold, heat, wetness, humidity and environmental
irritants.” (R. 20-21).
The ALJ also noted that Plaintiff would
be further limited to “unskilled tasks and to goal-oriented
rather than production–paced tasks” and “can have no more than
occasional interaction with supervisors and co-workers, no
significant interaction with the public, even by telephone, and
he requires a stable workplace, with few, if any changes of
setting, process, and tools.” (R. 21).
In making this determination, the ALJ noted that the mental
health records of the Department of Corrections showed that
Plaintiff was on the mental health special needs roster between
2002 and 2004 for major depression and anti-social personality
disorder and was treated with medication and counseling. (R.
The ALJ noted that the records did not document the
violent attacks, beatings or the prolonged administrative
segregation as claimed by Plaintiff, and that on August 2, 2010,
Plaintiff “came down to make mental health [at the prison] aware
that social security might be contacting the mental health unit
for information” and he was concerned that he had not been on
the mental health roster since 2004.
The ALJ noted that the mental health records showed
Plaintiff had been “stable and repeatedly assessed as calm and
relaxed with no overt evidence of distress or impairment.” (R.
The records showed that Plaintiff had denied having
problems and the ALJ found that there was “no readily observable
signs of tension or agitation” to support Plaintiff’s claims of
distress from anxiety. (R. 22).
The ALJ determined that Plaintiff had given conflicting
statements to different medical professionals when providing his
past psychiatric history, and noted that Plaintiff was given no
work restrictions after his examinations from the Department of
Corrections on February 6, 2009 and April 13, 2010. (R. 22).
The ALJ also found that when Plaintiff was given an MRI, at
Bayside State Prison in July 11, 2003, the results showed mild
cerebral atrophy with “a small area of increased signal in left
occipital lobe probably due encephalomalcia.” (R. 618). The
electroencephalogram test (“EEG”) that was conducted on August
13, 2003 showed “no evidence of a focal or epilepiform
abnormality.” (R. 618).
South Jersey Healthcare emergency room
records showed Plaintiff sought care for flash burns to his eyes
while welding on April 10, 2011. Plaintiff was breathing
regularly, denied any shortness of breath, and there was no
musculoskeletal deficits. (R. 618).
The ALJ relied, in part, on the medical report of Kim
Arrington, Psy.D., a state clinical psychologist, who performed
a consultative examination on Plaintiff in November 2010.
Plaintiff was able to recall 3/3 objects immediately, 0/3 after
5 minutes and did not know the current president.
noted that Plaintiff’s attention and concentration appeared to
fluctuate, possibly due to depression and cognitive
Dr. Arrington found Plaintiff could understand
simple instructions and directions vocationally and perform
simple tasks independently and could maintain a regular
The ALJ accorded “great weight” to these opinions,
finding them in accord with medical evidence.
report, Dr. Arrington “raises the question of psychiatric
problems significantly with the claimant’s ability to function
on a daily basis.” (R. 23).
The ALJ noted that he gave “little
weight” to this portion of her opinion as “it is not consistent
with the medication evidence, Dr. Burakgazi’s findings (3/3
recall after 5 minutes) and Bayside State Prison mental health
records (knows current president).
After consideration of the above evidence, the ALJ found
that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the residual functional
capacity assessment.” (R. 23).
Referring to the records from
the Cumberland County Guidance Center, the ALJ noted Plaintiff
has had panic attacks since release from prison and has been
prescribed anti-anxiety medication with very limited therapy and
medication monitoring every three months to assess progress.
The ALJ found this to be limited treatment in light of the
severe symptoms the Plaintiff alleges.
The ALJ found that while Dr. Burakgazi diagnosed Plaintiff
with memory disturbance, this was due in part to Plaintiff’s
subjective report and social history and prior to his receipt of
the MRI results. (R. 23).
Dr. Burakgazi found Plaintiff had
very good calculation skills and could remember 3/3 after 5
The ALJ further stated that Plaintiff’s claimed
cognitive and memory problems were not credible because
Plaintiff was able to list “all of his past anti-psychotic drugs
by memory by brand and generic names, accurately and
completely.” (R. 24).
The ALJ determined that Plaintiff was not wholly candid
because Plaintiff said he got in a car accident in 1996 (which
caused Plaintiff brain damage), but he was able to still receive
his GED and obtain a Bachelor’s degree in Theology. (R. 24). The
ALJ found that to be in conflict with testimony at the hearing
when Plaintiff said he was in special education up to the eighth
grade with no post high school training. (R. 24).
Two reports by Frank Stafford, a nurse practitioner from
the Cumberland County Guidance Center, were also reviewed.
the first report, dated June 2, 2011, he stated that claimant is
unable to participate in state welfare work due to major
depression and anxiety disorder.
Stafford further stated that
Plaintiff could not work full-time, but gives no treatment
information or specific limitations. (R. 24).
The ALJ found
that Stafford’s January 19, 2012 report marks all categories as
“poor” without rationale.
Instead, Stafford notes as support
for his findings: “psychiatric assessment” and “past history.”
The ALJ then stated that Stafford “does not have the
credentials to give a psychiatric assessment, and his assessment
is inconsistent with the treating records and the claimant’s
activities of daily living,” noting that Plaintiff seeks care
primarily when he needs welfare paperwork done and has had
little therapy otherwise, with only three sessions in 2010, five
in 2011 and one in 2012. (R. 24).
In contrast, the ALJ found the January 26, 2011 state
agency reviewing psychological consultant report prepared by Dr.
Jusino-Berrios to be credible. (R. 24).
The report stated that
the findings of Dr. Arrington of PTSD, Cognitive Disorder and
possible Dementia are not supported by preponderance of evidence
and that, instead, the longitudinal evidence supports a moderate
The report found that Plaintiff is able to
understand, remember and execute simple instructions and have
adequate interactions with others. (R. 25).
The ALJ noted that
a second state psychological consultant affirmed these opinions
and that they are more consistent with the record as a whole.
After making his determination, the ALJ concluded that
Plaintiff had no past relevant work. (R. 25).
claimant’s age, education, work experience and RFC, the ALJ
found that there are jobs that exist in the national economy
that Plaintiff can perform.
In making this finding, the ALJ
relied on the VE, stating that based on the claimant’s age,
education, work experience and RFC, “the individual would be
able to perform the requirements of representative occupations
including Produce Weigher, Garment Folder, and Sorter, which all
represent a significant number of jobs in the national and
regional economies. (R. 26).
Based on these conclusions, the
ALJ determined that Plaintiff was not disabled and therefore
Plaintiff’s application was denied.
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. 1991).
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 Heckler, 727 F.2d 64, 70 (3d Cir. 1986)); Monsour Med.
Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)).
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 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 ALJ’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
reference to every relevant treatment note in a case where
claimant...has voluminous medical records, we do expect the ALJ,
as the fact finder, to consider and evaluate the medical
evidence in the record consistent with his responsibilities
under the regulation 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, 288 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)).
The Social Security Act Defines “disability” as the
inability “to engage in any substantial gainful activity by
reasons 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
[A]n individual shall be determined to 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 I any other kind of substantial
gainful work 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
42 U.S.C. § 1382c (a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant’s disability, as outline 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 substantially 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
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 listen 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. Adornao v. Shala, 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.
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. 93d Cir. 1984).
The Plaintiff presents several separate issues for review
to this Court, including whether the ALJ erred:
1) by misrepresenting the VE’s testimony and failing to
discuss or even mention the part of the VE’s testimony that
supports a finding of disability;
2) by failing to consider or analyze substantial evidence
regarding the Plaintiff’s very severe mental health limitations
that strongly supported a finding that Plaintiff lacks the
mental residual functional capacity to perform any type of
substantial gainful activity;
3) by placing greater weight on the opinion of the
Disability Determination Service’s medical consultant than the
opinions from treating sources and consultative exam
psychologist Dr. Arrington;
4) by finding that Plaintiff did not meet Listings 12.02,
12.04, or 12.06;
5) in misrepresenting the timing and extent of Plaintiff’s
6) by failing to discuss Plaintiff’s counsel’s post-hearing
request for consultative I.Q. test. 2
In addition to the above, Plaintiff further argues that if
the case is to be remanded, it should be assigned to a different
ALJ due to serious errors committed by the ALJ.
The Court will
address each argument in turn.
To the extent Plaintiff raised any new arguments for the first
time in his reply brief, this Court need not consider such
arguments. Laborers' Int'l Union of N. Am., AFL-CIO v. Foster
Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994)("An issue
is waived unless a party raises it in its opening brief, and for
those purposes 'a passing reference to an issue . . . will not
suffice to bring that issue before this court.'").
1) The VE’s testimony
Plaintiff contends that in the ALJ’s decision, the ALJ
misrepresented the VE’s testimony and “failed to discuss or even
mention the part of the [VE’s] testimony that supports a finding
of disability . .
Pl’s Br. at 32.
Plaintiff points to
the VE’s testimony that, “based on the testimony [of Plaintiff],
it would appear that . . . given how he testified, it would
preclude all competitive employability on a sustained basis.”
On redirect examination, the ALJ asked the VE, “What
particular testimony or signs or symptoms were you crediting
there in finding preclusion in your last opinion?” (R. 94).
vocational expert responded, “The testimony indicated that when
individuals would make statements that he felt were derogatory
in nature and that the reaction was excessive to the point where
that behavior was displayed on a continuous and persistent
basis. That would preclude all full-time employability in the
work force.” (R. 95).
Plaintiff argues that this testimony was not an answer to
the hypothetical but rather was because the expert “actually
believed that [Plaintiff] was unable to successfully perform any
type of SGA due to his history of highly inappropriate on the
Pl.’s Br. at 33.
The Plaintiff further contends
that the ALJ failed to discuss the specific testimony upon which
this VE opinion relied - e.g., instances during previous
employment where Plaintiff would react violently to name-calling
There is no finding that such testimony is not
The Plaintiff deems this a failure by the ALJ to
appropriately address the evidence of record without an
In response, the Defendant argues that the VE testimony on
which Plaintiff relies was given in response to Plaintiff’s
hypotheticals and included limitations not found in the ALJ’s
Thus, the Defendant contends that the VE’s
testimony, relied upon by the ALJ, was based on a hypothetical
that properly specified only those limitations supported by the
Defendant contends that Plaintiff argues that the ALJ
should have adopted hypotheticals based on uncorroborated
This Court finds that a remand is appropriate on this issue
because the ALJ did not adequately address the VE’s conclusions
based on Plaintiff’s hearing testimony and did not address the
Plaintiff’s testimony regarding his limitations with respect to
his behavior during past jobs.
During the hearing, Plaintiff
testified that he would react excessively on a continuous basis
when individuals would make statements that he felt were
There is no discussion in the ALJ’s opinion
explaining why the ALJ rejected this part of the Plaintiff’s
testimony, despite the lengthy discussion during the hearing of
Plaintiff’s behavior during prior jobs.
It is well established
that "[t]he ALJ must consider all the evidence and give some
reason for discounting the evidence she rejects." Plummer, 186
F.3d at 429 (internal citations omitted).
While an ALJ need not
discuss “every tidbit of evidence included in the record,” Hur
v. Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004), 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.
Certainly, a hypothetical must only include impairments
that are supported by the record.
Dismuke v. Comm'r of Soc.
Sec., 309 Fed. Appx. 613, 618 (3d Cir. 2009).
While the ALJ may
very well reach the same conclusion on remand based on the
evidence of record, this Court is unclear as to why the ALJ
discounted Plaintiff’s testimony regarding acting out violently
in previous jobs and the VE’s related conclusion that a person
who behaved in such a way would “preclude all full-time
employability in the work force.”
Because the ALJ did
not discuss the credibility of Plaintiff’s testimony as to this
issue, the basis for the ALJ’s determination needs clarification
and the Court cannot say at this juncture that a remand is not
warranted on this basis.
(finding that ALJ properly
rejected answer by vocational expert in response to plaintiff’s
hypothetical that included limitations “not supported by the
objective medical record and regarding which the ALJ found
[plaintiff’s] testimony not fully credible.”)(emphasis added).
Therefore, this Court will remand to the ALJ for a more thorough
explanation as required under the applicable standard. 3
2) Medical Opinion Evidence 4
Plaintiff’s next several arguments are interrelated with
respect to the ALJ’s evaluation of the relevant medical opinion
Plaintiff contends that the ALJ erred by:
Failing to consider evidence of severe mental health
limitations in the reports of APN Stafford;
Discounting portions of Dr. Arrington’s report showing
an inability to function and that support a finding of
Placing greater weight on the opinion of the
Disability Determination Service’s medical consultant than the
opinions from treating sources and consultative exam
psychologist Dr. Arrington.
Per SSR 96-7p:
An individual's statements about the intensity and
persistence of pain or other symptoms or about the effect
the symptoms have on his or her ability to work may not be
disregarded solely because they are not substantiated by
objective medical evidence.
It is not sufficient for the adjudicator to make a single,
conclusory statement that "the individual's allegations
have been considered" or that "the allegations are (or are
This addresses Plaintiff’s second and third arguments, which
This Court will review the parties’ arguments with respect
to these aspects of the medical opinion evidence and then will
address the ALJ’s conclusions in light of the applicable
Plaintiff argues that the ALJ incorrectly found that
Plaintiff retains the mental RFC to understand, remember and
execute simple instructions; maintain attention; sustain
concentration, persistence and pace; and to have adequate
interactions with others. (R. 24-25).
In making this RFC
determination, he believes the ALJ wrongly discounted the
November 3, 2011 Examination Report and January 19, 2012 Mental
RFC form completed by Treating APN (meaning an Advanced Practice
Nurse) Stafford of the Cumberland County Guidance Center.
The November 3, 2011 report states that Plaintiff will be
unable to work from November 3, 2011 to December 31, 2012 due to
major depression and anxiety disorder. (R. 713-714).
January 19, 2012 Mental RFC form states that Plaintiff has a
poor ability to make simple work-related decisions; respond
appropriately to supervision, coworkers and usual work
situations; to maintain attention and concentration; to deal
with work stresses; behave in an emotionally stable manner; to
understand, remember and carry out simple instructions.
Plaintiff contends that the ALJ improperly discounted
In his opinion, the ALJ rejected the findings because
Stafford marked “‘Poor’ without rationale.” (R. 24).
medical/clinical findings section, Stafford lists “psychiatric
assessment” and “past history,” but the ALJ found that Stafford
“does not have the credentials to give a psychiatric assessment,
and his assessment is inconsistent with the treating records and
the claimants activities of daily living.”
The Plaintiff argues that failure to consider Stafford’s
opinion is clear error because the applicable regulations allow
evidence from nurse-practitioners to be considered.
argues that discounting the opinion unfairly penalizes Plaintiff
because the Cumberland County Guidance Center assigns medication
management to APNs.
While Plaintiff concedes that Plaintiff
treated primarily with APN Higgins, and not APN Stafford,
Stafford’s opinion is the official statement from the Cumberland
County Guidance Center.
Plaintiff argues that Stafford’s Mental
RFC opinion is consistent with his treatment records and
activities of daily living.
Defendant contends that Stafford is not an acceptable
medical source who can provide a medical opinion; Stafford is a
non-treating source because there was no ongoing treating
relationship required by 20 C.F.R. §416.902, and Plaintiff saw
Stafford only twice.
Defendant further argues that the ALJ does
not have to consider APN Stafford’s report because it was not
supported by relevant evidence; specifically, the ALJ noted that
Plaintiff only appeared to seek care when he needed welfare
paperwork and rarely sought treatment.
Stafford’s report was a form report – i.e., only a check box or
fill in the blank report – which is “weak evidence at best.”
See Mason v. Shalala, 994 F.3d 1058, 1065 (3d Cir. 1993).
Plaintiff also avers that Dr. Arrington’s report is
consistent with Stafford’s opinion, in that she found that his
psychiatric problems “may significantly interfere with the
claimant’s ability to function on a daily basis.” (R. 503).
Plaintiff claims that the ALJ erred in assigning this portion of
Dr. Arrington’s opinion “little weight.”
In addition, while Dr.
Arrington found that Plaintiff was able to follow and understand
simple instructions and perform simple tasks independently,
which the ALJ gave great weight, several other findings support
disability – i.e., Arrington’s findings that Plaintiff had
fluctuating attention and concentration, along with impaired
recent and remote memory.
With respect to Dr. Arrington, the Defendant argues that
the ALJ properly granted the portions of that opinion little
weight, which state that Plaintiff’s psychiatric problems might
significantly interfere with his ability to function on a daily
basis because such findings are inconsistent with the findings
of Dr. Burakgazi, treatment notes from Bayside Prison and Dr.
Jusino-Berrios’, the State medical consultant, findings.
Moreover, Defendant avers that the ALJ’s finding was correct
because even Dr. Arrington found that Plaintiff could perform
some simple tasks independently, follow and understand simple
direction and maintain a schedule.
iii. Treating Source Opinions
Finally, the Plaintiff argues that the ALJ erred in placing
greater weight on the opinion of the Disability Determination
Service’s medical consultants than opinions from APN Stafford
and Dr. Arrington. Plaintiff contends that neither Dr. JusinoBerrios nor the reviewing physician, Dr. Castillo-Velez, ever
actually examined the Plaintiff.
In giving these opinions
greater weight, the ALJ is alleged to have violated the rule,
which states that treating source opinions are generally
entitled to a great deal of deference, and that the ALJ erred by
rejecting the opinions of the sources that are not “acceptable
medical sources” without evaluating the factors discussed in SSR
Moreover, the Plaintiff argues that nearly 200 pages
Per SSR 06-03p, factors include:
were submitted to the record between the date of the opinions of
Drs. Jusino-Berrios and Castillo-Velez and the ALJ’s decision.
Thus, their opinions are entitled to little weight.
Defendant responds by arguing that the ALJ’s determinations
are correct, as the opinions of Drs. Jusino-Berrios and
Castillo-Velez are consistent with the record as a whole, and
the opinion of State agency consultants should be given great
weight if supported by medical evidence of record.
The examining relationship between the individual and the
“acceptable medical source”;
The treatment relationship between the individual and a
treating source, including its length, nature, and extent as
well as frequency of examination;
The degree to which the “acceptable medical source” presents
an explanation and relevant evidence to support an opinion,
particularly medical signs and laboratory findings;
How consistent the medical opinion is with the record as a
Whether the opinion is from an “acceptable medical source”
who is a specialist and is about medical issues related to his
or her area of specialty; and
Any other factors brought to our attention, or of which we
are aware, which tend to support or contradict the opinion. For
example, the amount of understanding of our disability programs
and their evidentiary requirements that an “acceptable medical
source” has, regardless of the source of that understanding, and
the extent to which an “acceptable medical source” is familiar
with the other information in the case record, are all relevant
factors that we will consider in deciding the weight to give to
a medical opinion.
Applicable Standard and Conclusion
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).
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
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).
non-examining medical source opinions are supported by medical
evidence in the record, they may constitute substantial evidence
and override a treating physician's opinion.
Shalala, 927 F. Supp. 785, 795 (D.N.J. 1995), aff'd per curiam,
85 F.3d 611 (3d Cir. 1996).
“Such opinions are credited only to
the extent evidence supports them [and] [c]rediting the view of
a non-examining medical consultant instead of a treating source
is sufficient only if the conflicting evidence is properly
considered and explained.”
Malone v. Barnhart, No. 05-2991,
2008 U.S. Dist. LEXIS 114168, *21 (E.D. Pa. Aug. 15, 2008).
Other sources may be used to determine the severity of the
claimant’s impairment and how it affects the ability to work. 20
C.F.R. §416.913(d). “Other sources include, but are not limited
to [m]edical sources not listed in paragraph (a) of this section
(for example, nurse-practitioners, physicians' assistants,
naturopaths, chiropractors, audiologists, and therapists.)” 20
C.F.R. §416.913(d)(1). “Information from these ‘other sources’
cannot establish the existence of a medically determinable
impairment. Instead, there must be evidence from an ‘acceptable
medical source’ for this purpose.
However, information from
such ‘other sources’ may be based on special knowledge of the
individual and may provide insight into the severity of the
impairment(s) and how it affects the individual's ability to
function.” SSR 06-03P (S.S.A. Aug. 9, 2006).
The ALJ “generally
should explain the weight given to opinions from these ‘other
sources,’ or otherwise ensure that the discussion of the
evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator's reasoning, when
such opinions may have an effect on the outcome of the case.”
SSR 06-03P (S.S.A. Aug. 9, 2006).
Based on the review of the record as a whole, the Court
finds that the ALJ’s determinations with respect to the medical
opinions of record including APN Stafford, Dr. Arrington and the
State Medical Consultants are supported by substantial evidence.
While there are some conflicts between the findings of APN
Stafford and Dr. Arrington and the remaining evidence of record,
including records from Bayside Prison, Cumberland County
Guidance Center, Dr. Burakgazi, and the state agency reviewing
consultants, the ALJ sufficiently addressed those conflicts and
the opinion of APN Stafford.
For example, the ALJ explained
that while Stafford marked several categories as “poor” he did
so with no explanation and that Plaintiff’s activities of daily
living undermined much of his findings.
The ALJ noted that the
mental health records showed Plaintiff had been “stable and
repeatedly assessed as calm and relaxed with no overt evidence
of distress or impairment.” (R. 22).
The records showed that
Plaintiff had denied having problems and the ALJ found that
there was “no readily observable signs of tension or agitation”
to support Plaintiff’s claims of distress from anxiety. (R. 22).
The ALJ also determined that Plaintiff had given
conflicting statements to different medical professionals when
providing his past psychiatric history, and noted that Plaintiff
was given no work restrictions after his examinations from the
Department of Corrections on February 6, 2009 and April 13,
2010. (R. 22).
The ALJ also referred to the findings of Dr.
Arrington, which noted that Plaintiff could understand simple
instructions and directions vocationally and perform simple
tasks independently and could maintain a regular schedule and
the findings of Dr. Burakgazi (3/3 recall after 5 minutes) and
Bayside State Prison mental health records (knows current
Referring to the records from the Cumberland County
Guidance Center, the ALJ noted Plaintiff has had panic attacks
since release from prison, but has been prescribed anti-anxiety
medication with very limited therapy and medication monitoring
every three months to assess progress.
The ALJ found this to be
limited treatment in light of the severe symptoms the Plaintiff
He also stated that Plaintiff’s claimed
cognitive and memory problems were not credible because
Plaintiff was able to list “all of his past anti-psychotic drugs
by memory by brand and generic names, accurately and
completely.” (R. 24).
Importantly, the ALJ noted that the
treatment records show that Plaintiff has sought care primarily
when he needs welfare paperwork done and that the prison medical
records reflect that Plaintiff was concerned that he was not on
the mental health roster as “social security might be contacting
the mental health unit.” (R. 1411).
Finally, while Plaintiff correctly argues that the
consultative physicians’ opinions were rendered prior to a
completion of the entire record, particularly, the inclusion of
APN Stafford’s opinions, this is not problematic as the ALJ
appropriately addressed Stafford’s findings as discussed above.
Thus, remand is not warranted on this issue because the ALJ
considered the conflicting evidence and offered his rationale.
See Malone, 2008 U.S. Dist. 114168, at *21 (“Crediting the view
of a non-examining medical consultant instead of a treating
source is sufficient only if the conflicting evidence is
properly considered and explained.”).
Therefore, the ALJ
appropriately considered all the evidence and has a reason for
discounting the evidence he rejects.
Johnson v. Comm’r of Soc.
Sec., 529 F.3d 198 (3d Cir. 2009).
3) Listings 12.02, 12.04, or 12.06
The ALJ determined that Plaintiff’s impairments did not
meet or medically equal the severity of the listed impairments,
specifically 12.02 6, 12.04 7, or 12.06 8.
The ALJ also considered
Organic mental disorders: Psychological or behavioral
abnormalities associated with a dysfunction of the brain.
History and physical examination or laboratory tests demonstrate
the presence of a specific organic factor judged to be
etiologically related to the abnormal mental state and loss of
previously acquired functional abilities.
Affective disorders: Characterized by a disturbance of mood,
accompanied by a full or partial manic or depressive syndrome.
Mood refers to a prolonged emotion that colors the whole psychic
life; it generally involves either depression or elation.
Anxiety-related disorders: In these disorders anxiety is either
the predominant disturbance or it is experienced if the
whether “B” or the “C” criteria were satisfied.
of Listings 12.02, 12.04, and 12.06 require that the claimant’s
mental impairment result in at least two of the following:
marked restriction of activities of daily living, (2) marked
difficulties in maintaining social functioning, (3) marked
difficulties in maintaining concentration, persistence or pace;
or (4) repeated episodes of decomposition, each of extended
duration.” 20 C.F.R. Pr. 404, Subpt. P, App. 1. Marked
limitations means “more than moderate but less than extreme.” 20
C.F.R. Pr. 404, Subpt. P, App. 1.
“C” criteria requires a
medically documented history of a chronic organic mental
disorder of at least 2 years' duration that has caused more than
a minimal limitation of ability to do basic work activities,
with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following: (1) Repeated
episodes of decompensation, each of extended duration; or (2) A
residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the
individual to decompensate; or (3) Current history of 1 or more
years' inability to function outside a highly supportive living
individual attempts to master symptoms; for example, confronting
the dreaded object or situation in a phobic disorder or
resisting the obsessions or compulsions in obsessive compulsive
arrangement, with an indication of continued need for such an
Plaintiff asserts that in making these findings with
respect to activities of daily living, the ALJ failed to mention
both Dr. Arrington’s consultative examination finding and the
majority of Plaintiff’s testimony. For example, Dr. Arrington
found that Plaintiff reported that the results of the evaluation
“appear to be consistent with psychiatric problems, which may
significantly interfere with the claimant’s ability to function
on a daily basis.”
Moreover, during the hearing, Plaintiff
testified as to several difficulties in the tasks of daily
living and that the ALJ failed to discuss or even mention any of
With respect to social functioning, Plaintiff faults the
ALJ for a “cursory discussion” that ignored a large volume of
evidence from APN Stafford, including his findings that
Plaintiff had a “poor” ability in responding appropriately in
work situations, Dr. Arrington’s findings, including Plaintiff’s
negative reaction to crowds and panic attacks, and Mr. Harris’
hearing testimony, including testimony regarding a violent
incident in 2006 in which he nearly threw a coworker off a roof
and an incident in 2007 wherein became extremely angry when a
coworker insulted him. (R. 95).
Finally, as to concentration, persistence or pace,
Plaintiff avers that the ALJ wrongfully ignored Dr. Arrington’s
report indicating serious limitations.
contends that, in citing to Dr. Burakgazi’s report with respect
to concentration, persistence and pace, the ALJ ignores the
portions of that exam wherein he diagnosed Plaintiff with
The Plaintiff also faults the ALJ for
seemingly ignoring his hearing testimony with respect to his
ability to remember his job functions.
The Defendant responds by arguing that in making the step
three finding, the ALJ correctly found that Plaintiff was
moderately limited in his activities of daily living based on
his self-reported activities – e.g., Plaintiff was dressed and
groomed appropriately, reported that he took out the trash and
vacuumed and attended AA meetings.
With respect to social
functioning, the ALJ’s findings were supported by the fact that
Plaintiff reported having a good relationship with his parents
and had a girlfriend for several months.
As to concentration
and pace, the mental status exams of record supported the ALJ’s
finding in that Dr. Arrington found Plaintiff could count, add,
subtract, and could spell “world” forward and backward.
Burakgazi noted that the Plaintiff had good calculation skills
and Dr. Brown found Plaintiff could focus and was able to name
the current president.
The Defendant stresses that the ALJ did
not err in not discussing every piece of evidence rejected as an
ALJ is not “required to mention every item of testimony
presented to him . . . .” Def.’s Br. at 18.
While the Court finds the ALJ has supported his
determination on activities of daily living and concentration,
persistence and pace with substantial evidence, it agrees with
Plaintiff to the extent he complains about the ALJ’s cursory
discussion of Plaintiff’s difficulties with respect to social
More specifically, this Court finds that, similar
to the issue raised with respect to the hypothetical posed to
the VE, Plaintiff testified extensively during the hearing about
his violent and aggressive behavior in prior jobs.
Plaintiff testified that could not work around other people
without becoming aggressive or violent, which is why he no
longer worked at his previous employment. (R. 44).
testified that he would have hurt one of his coworkers. (R. 44).
In his opinion, the ALJ only cites Plaintiff’s report that
he has a good relationship with his mother and reported having a
girlfriend to APN Stafford. (R. 20).
This fails to address the
portions of his testimony that deal with his aggression towards
co-workers, other than to mention that Plaintiff has “problems
with mutual aggressiveness with co-workers.” (R. 21).
ALJ cites the Plaintiff’s DOC records to support the statement
that Plaintiff “described being able to avoid and/or walk away
from situations and people that provoked his irritation,”
(R.22), he does not, however, address the conflict between the
Plaintiff’s testimony about his on the job behavior and the
evidence in the record.
Thus, this Court agrees that the ALJ failed to properly
assess the evidence with respect to Plaintiff’s social
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.”).
That said, this error,
even if it were to be revisited on remand would seem to be of no
impact in light of the fact that in order to satisfy the
“paragraph B” the mental impairments must meet at least two
categories, and, here, the ALJ’s determinations with respect to
activities of daily living and concentration, persistence and
pace are supported by substantial evidence.
4) Plaintiff’s Educational Background.
In his opinion, the ALJ determined that the Plaintiff
passed his GED and obtained a Bachelor’s degree in Theology
after a motor vehicle accident in 1996, which marked the
beginning of his cognitive problems.
Plaintiff argues, however,
that he received these degrees prior to the 1996 accident.
Plaintiff contends that the ALJ also incorrectly stated
Plaintiff received a paralegal certification.
admits that he provided varying dates for his motor vehicle
accident, he states that it is clear that the ALJ believed it
occurred in 1995 or 1996, as those are the dates he refers to in
Plaintiff contends that these incorrect findings
are problematic because “it likely contributed to ALJ Timm’s
finding that Mr. Harris’ testimony was not fully credible.”
(Pl.’s Reply Br. at 32).
In other words, the ALJ’s belief that
Plaintiff passed the GED and obtained his Bachelor’s degree
after his 1996 accident, rather than before, caused him to
question the veracity of Plaintiff’s claim that he has had
severe cognitive problems since his 1996 accident.
Defendant points out that Plaintiff reported varying dates
for the accident throughout the record, including 1993 through
1998 and that Plaintiff seeks to rely on a supplemental
affidavit submitted over two months after the ALJ’s decision
with respect to the date and extent of his Bachelor’s degree.
(R. 320-321). Finally, the Defendant stresses that Plaintiff has
not shown how the ALJ’s misstatement has harmed him in light of
the fact that the ALJ found Plaintiff only had at least a high
school education at step five.
The ALJ did note in his opinion that the contradictions
with respect to the accident and the dates of Plaintiff’s
degree, “leaves the impression that the claimant has been less
than wholly candid in his testimony.”
As this matter
is being remanded for reasons already set forth above, and the
ALJ will now have the Plaintiff’s affidavit with respect to the
dates of Plaintiff’s education, the ALJ may review the record as
a whole with the appropriate dates, which may or may not impact
his credibility determinations on remand.
To resolve any
concerns, however, the ALJ should clarify the dates he uses in
making his determination.
5) Plaintiff’s Request for a Consultative Examination
Plaintiff complains that the ALJ erred in failing to
explain why Plaintiff’s counsel’s post hearing request for
consultative I.Q. test was denied. Plaintiff claims that given
the alleged “brain damage, cognitive limitations and mental
illness” (Pl.’s Br. at 61), that it was reversible error to fail
to explain the denial of the consultative I.Q. test.
The Defendant points out that the ALJ has no obligation to
seek additional evidence, and the decision of whether to order
an additional examination is reserved to the Commissioner.
20 C.F.R. §§416.917, 416.919a (“If we cannot get the information
we need from your medical sources, we may decide to purchase a
Here, the ALJ determined that
Plaintiff did not present sufficient evidence to raise a claim
that required further examination; thus, the ALJ was not
required to send Plaintiff out for a consultative examination.
This Court agrees that the ALJ was under no obligation to
order a consultative examination or discuss his reason for not
There is sufficient evidence of record for the ALJ to
make a determination as to whether or not the Plaintiff if
While the matter is being remanded for a more
thorough explanation of the ALJ’s reasoning, there is not a
dearth of medical evidence requiring a consultative exam.
Struthers v. Commissioner of Soc. Sec., 1999 U.S. App. LEXIS
11102, at *7 (6th Cir. 1999)(“ Although an administrative law
judge is permitted to arrange a consultative examination where
the medical evidence of impairment is insufficient, 20 C.F.R. §
416.917, the regulations do not require an [administrative law
judge] to refer a claimant to a consultative specialist, but
simply grant him the authority to do so if the existing medical
sources do not contain sufficient evidence to make a
determination.”)(internal quotations omitted).
6) Plaintiff’s Remand Request
Finally, as part of his moving brief, the Plaintiff requests
that if the matter is remanded, it should be reheard by a
different ALJ as ALJ Timm made “serious errors.”
procedure, however, is to remand the matter to the same ALJ.
This Court, finding no allegations of bias or misconduct, deems
it appropriate to remand to the same ALJ. Cf. Valenti v. Comm'r
of Soc. Sec., 373 Fed. Appx. 255, 258 (3d Cir. 2010)(discussing
remand to a different ALJ where the original ALJ had engaged in
coercive, intimidating, and irrelevant questioning of the
claimant and had improperly interfered with the claimant's
attempt to introduce evidence establishing disability).
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 June 11, 2015
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