FLORES V COMMISSIONER SOCIAL SECURITY

Filing 12

MEMORANDUM ORDER that the decision of the Administrative Law Judge is VACATED, and the matter is REMANDED for further proceedings consistent with this Memorandum Order; Clerk of the Court shall CLOSE this file. Signed by Judge Renee Marie Bumb on 9/6/2016. (tf, )

[Docket No. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ANGEL L. FLORES,
Plaintiff,

Civil No. 15-6356 (RMB)
MEMORANDUM ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the appeal by
Plaintiff Angel L. Flores (the “Plaintiff”) of the final
determination of the Commissioner of Social Security (the
“Commissioner”) denying Plaintiff’s application for social
security benefits [Docket No. 1].

For the reasons set forth

below, the Court VACATES the decision of the Administrative Law
Judge (the “ALJ”) and REMANDS for further proceedings consistent
with this Memorandum Order.
The Court finds as follows:
1.

Plaintiff applied for social security disability

benefits on July 12, 2012, and for supplemental security income
benefits on July 16, 2012, originally alleging an onset date of
January 1, 2006.

The claims were denied initially on January

18, 2013 and upon reconsideration on May 7, 2013.

1

[Administrative Record (“R.”) 44-78, 79-110].

His alleged onset

date was subsequently amended to July 1, 2011.
2.

[R. 21].

Plaintiff alleges that he suffers from disabling back

pain, as well as mental health issues resulting in, for example,
in difficulty concentration, forgetfulness, and an alleged
inability to care for himself properly.

See, e.g., [R. 276-83].

He suffers from depression and anxiety, and has been diagnosed
with schizoaffective disorder.
3.

See, e.g., [R. 391-96].

The ALJ found that Plaintiff suffers from the

following severe impairments: lumbar degenerative disc disease,
depression, and anxiety.

[R. 23].

The ALJ found that Plaintiff

did not suffer from a listing level impairment.

[R. 23-26].

The ALJ next determined that Plaintiff had the residual
functional capacity (“RFC”) to perform the full range of light
work as defined in 20 CFR 404.1567(b) and 416.967(b), except
that he is limited to unskilled work.

He is capable of

understanding, remembering, and carrying out simple
instructions, making judgments that are commensurate with the
functions of unskilled work (i.e., simple work-related
decisions), responding appropriately to supervision, co-workers,
the general public and usual work situations, and dealing with
changes in a routine work setting.”

[R. 26].

The ALJ then

determined that Plaintiff could not return to his past relevant
work.

[R. 33].

The ALJ ultimately determined that Plaintiff

2

was not disabled because there are jobs that exist in
significant numbers in the national economy that he can perform.
[R. 33].
4.

On July 14, 2004, Plaintiff had an X-ray taken of his

ribs at Our Lady of Lourdes Medical Center, which showed “no
fracture or other bony abnormality” and “no pneumothorax or
pleural effusion.”
normal.

The report states that the examination was

[R. 332].

5.

On November 14, 2006, Plaintiff’s right foot was X-

rayed at Cooper University Hospital.

The radiologist noted

“soft tissue swelling overlying the lateral malleolus without
underlying fracture or malalignment.”
6.

[R. 333].

In or around March 2012, Plaintiff began attending

weekly psychotherapy sessions as Nueva Vida Behavioral Health
Center of New Jersey with Mr. Andres Ayala.

[R. 304].

Months

later, Plaintiff also began attending monthly sessions with the
psychiatrist at Nueva Vida, Dr. Lyda Monte.
7.

[R. 317-18].

On April 19, 2012, Plaintiff’s therapist at Nueva

Vida, Mr. Andres Ayala, completed a Biopsychosocial Assessment
of Plaintiff which lists Plaintiff’s chief complaints as
depression, anxiety, perception disturbances, and poor sleep.
Mr. Ayala noted that Plaintiff’s symptoms were of moderate
severity.

[R. 391].

Plaintiff’s estimated level of

3

intelligence was listed as low average.

[R. 395].

diagnostic impression was schizoaffective disorder.
8.

His Axis I
[R. 396].

On April 23, 2012, Mr. Ayala noted that Plaintiff

reported “feel[ing] very depressed, anxious” and having “visual
and auditory hallucinations.”

Mr. Ayala also noted that

Plaintiff looked “unkempt, dirty clothes, unhealthy” and that
Plaintiff’s “affect is labile, his attitude is suspicious.”
[R. 354].
9.

On May 18, 2012, Mr. Ayala reported that Plaintiff had

been diagnosed with schizoaffective disorder and assigned him a
Global Assessment of Functioning (“GAF”) score of 30-35.

Mr.

Ayala also noted that Plaintiff had poor impulse control and
reported problems with depression, anxiety, poor sleep, and
perception disturbances, i.e. “visual, auditory, and tactile
hallucinations.”
10.

[R. 345].

On May 31, 2012, Mr. Ayala reported once again that

Plaintiff had been diagnosed with schizoaffective disorder and
noted that Plaintiff has been “presenting acute psychotic
symptoms.”

[R. 305].

Mr. Ayala also observed in Plaintiff’s

progress notes that Plaintiff “looks calm, stable, relax[ed],
adequate degree of self-disclosure” during their counseling
session.
11.

[R. 358].
On June 20, 2012, Mr. Ayala noted that during his

therapy session with Plaintiff, Plaintiff “looks very impatient,

4

unable to sit still” and that Plaintiff’s “speech is rapid,
loud, unclear, poor interaction, hostile.”
12.

[R. 359].

On July 6, 2012, Plaintiff reported to Mr. Ayala that

he went to Woodbury Hospital for crisis management for his
suicidal ideations.

Mr. Ayala noted that Plaintiff “looks

unhealthy, ungroomed, dressed with dirty clothes” and that “his
affect is labile, poor concentration.”
13.

[R. 360].

On July 24, 2012, Mr. Ayala reported that Plaintiff

had been diagnosed with schizoaffective disorder and personality
disorder.

Mr. Ayala also opined that “[d]ue to [Plaintiff’s]

emotional condition, we consider that Mr. Flores is disable[d]
at 100%.”
14.

[R. 304].
On August 28, 2012, Mr. Ayala’s treatment notes from

his counseling sessions with Plaintiff noted that Plaintiff
showed “a moderate remission of his levels of depression and
anxiety level” within the last six months and reduced psychotic
symptoms.

Mr. Ayala assigned Plaintiff a GAF score of 35.

[R. 346].

Plaintiff reported feeling hopeless and irritable and

hearing voices.
15.

[R. 363].

On September 12, 2012, Mr. Ayala noted that Plaintiff

reported auditory hallucinations.

Mr. Ayala also noted that

Plaintiff was in an unpleasant mood, had a “very labile” affect,
and that he appeared anxious.

[R. 364].

5

16.

On October 16, 2012, Plaintiff underwent a mental

status examination with consulting psychologist Dr. David
Bogacki.

Plaintiff reported to Dr. Bogacki that “he had no

psychiatric history until his wife left him about 7 months ago .
. . , which caused him to attempt suicide.”

Dr. Bogacki noted

that Plaintiff attended weekly counseling sessions at Nueva
Vida, but that he had not yet seen the psychiatrist there.

Dr.

Bogacki noted that Plaintiff alleged auditory hallucinations to
kill himself.

He also noted that Plaintiff “exerted poor effort

during the cognitive aspect of the exam.”
17.

[R. 306-07].

Dr. Bogacki’s Axis I diagnostic impression was

“adjustment disorder with depressed mood, rule out major
depressive disorder, recurrent with psychotic features.”
assigned Plaintiff a GAF score of 65.

He

In Dr. Bogacki’s opinion,

Plaintiff had the “residual capacity to follow work-related
instructions, maintain pace and persistence on tasks and relate
to the general public.”
18.

[R. 306-07].

On October 24, 2012, Plaintiff informed Mr. Ayala that

he was waiting for his psychiatric evaluation and that he wanted
medications as soon as possible.

Mr. Ayala noted that Plaintiff

“was thoughtful, distracted, answering in monosyllables” and
that “his affect is very labile.”
19.

[R. 368].

On November 27, 2012, Mr. Ayala reported that

Plaintiff “showed a mild remission” of his depression and

6

anxiety and that Plaintiff “reduced the frequency and intensity
of his psychotic symptoms.”

[R. 347].

Mr. Ayala also noted

that Plaintiff reported feeling “very depressed, very anxious,
irritable, [and] hopeless.”
20.

[R. 371].

On November 28, 2012, Plaintiff was treated at the

Cooper University Hospital emergency department, where he
presented with a bruise and elevated blood pressure.

The

emergency department records note a past medical history of
paranoid schizophrenia and a language barrier [R. 308-10].
21.

On December 4, 2012, Plaintiff reported to Mr. Ayala

that he was “practicing relaxation techniques” and felt “less
depressed, less anxious.”
22.

[R. 372].

On December 6, 2012, consulting doctor Ken Klausman

performed an internal medicine evaluation on Plaintiff.

Dr.

Klausman noted that Plaintiff’s review of systems was
significant for “chest pain/chest tightness, shortness of
breath, palpitations, frequent urination, abdominal discomfort,
nausea, vomiting, constipation, difficulty urinating, low back
problem, anemia, anxiety and depression.”

[R. 312].

Dr. Klausman’s physical examination revealed that Plaintiff
walked with a normal gait and was able to get on and off the
examining table and go from lying down to sitting up without
difficulty.

Plaintiff’s hand grips were 5/5 bilaterally and his

fine hand motor movements were within normal limits bilaterally.

7

Plaintiff could pick up a coin and make a fist, but had a
resting tremor of the hands.

Dr. Klausman noted that

“[s]traight leg raising at 80 degrees produced non-radiating SI
joint pain bilaterally” and that Plaintiff “had mild difficulty
heel, toe and tandem walking” and “mild difficulty squatting.”
[R. 314].
23.

Dr. Klausman’s neurological exam revealed that

Plaintiff was oriented to place and person, but not time.
Plaintiff was unable to spell the word “world” backwards in
Spanish, did not know who the president of the United States
was, and could not count backwards from one hundred by threes.
Dr. Klausman also reported that Plaintiff’s affect was flat and
that he did “not have a belt or shoe laces and [that] his
clothes are soiled.”

Plaintiff told Dr. Klausman that he did

not wear a belt or shoe laces “because he may use them to hang
himself.”

Dr. Klausman’s impressions were “depression with

possible history of suicide intention” and “low back pain.”

Dr.

Klausman prescribed an X-ray of Plaintiff’s lumbar spine.
[R. 314].
24.

On December 17, 2012, Plaintiff underwent a lumbar

spine X-ray, which revealed “scoliosis with convexity to the
right,” “disc space narrowing” at L4-L5 and L5-S1, and
“developmental canal stenosis.”
or subluxation.”

The X-ray showed “no fracture

[R. 316].

8

25.

On December 18, 2012, Mr. Ayala, Plaintiff’s

therapist, noted that Plaintiff was anxious and moving
constantly during their session.

Plaintiff reported that he was

worried about his social security appointment.
26.

[R. 375].

On December 26, 2012, Dr. Joan Joynson, a State agency

medical consultant, completed a Mental Residual Functional
Capacity Assessment, in which she found that Plaintiff did not
have understanding and memory limitations, or any significant
limitations in his ability to carry out very short and simple
instructions.

She found that Plaintiff was moderately limited

in his ability to carry out detailed instructions and maintain
attention and concentration for extended periods.

She also

found that Plaintiff “is able to adequately respond to workplace
changes for simple work.”
27.

[R. 59-60].

On January 7, 2013, Mr. Ayala noted that Plaintiff was

“talkative, stable, talking about his family” during their
therapy session.
28.

[R. 376].

On January 13, 2013, Dr. Leonard Corness, a State

agency medical consultant, completed a Physical Residual
Functional Capacity Assessment, in which he found that Plaintiff
could occasionally lift and carry fifty pounds and frequently
lift and carry twenty-five pounds.

He also found that Plaintiff

could stand, walk, and sit, with normal breaks, for six hours
each in a normal eight-hour workday.

9

Dr. Corness noted

Plaintiff’s lack of medical treatment or emergency room visits
for back pain.
29.

[R. 57-58].

On February 1, 2013, Plaintiff reported to his

therapist, Mr. Ayala, that he was happy because he was able to
see his daughters.

Mr. Ayala noted that Plaintiff was in a

pleasant mood and that his affect was appropriate.

[R. 378].

The next week, Plaintiff once again reported feeling “less
depressed, less anxious.”
30.

[R. 379].

On February 13, 2013, Plaintiff reported having

auditory and tactile hallucinations to Mr. Ayala.
31.

[R. 380].

On February 28, 2013, Mr. Ayala, noted that, during

the prior six months, Plaintiff “showed poor remission” of his
symptoms and that Plaintiff “reduced his psychotic symptoms.”
[R. 348].
32.

In March 2013, Plaintiff was prescribed Seroquel,

Prozac, and Vistaril by Dr. Lyda Monte, the psychiatrist at
Nueva Vida.

[R. 317].

Dr. Monte’s treatment notes state

“+ voices / depressed / SI / sees shadows.”

In April 2013, the

treatment notes once again indicated “+ voices” but “- SI”.
[R. 318].
33.

On August 13, 2013, Plaintiff was seen by Dr. Adam

Hennessey at the emergency department of Our Lady of Lourdes
Medical Center for migraine and chest wall pain.

[R. 337].

Dr.

Hennessey noted “+ dysmetria, + romberg, no nystagmus, strength

10

5/5 UE and L/E b/l, ataxic gait, no tremor no drift.”

He also

noted that “ultram improved almost all of [Plaintiff’s]
symptoms, improved vision, resolved neck pain and headache.”
[R. 344].
34.

That same day, Dr. Glenn Articolo at Our Lady of

Lourdes Medical Center performed frontal and lateral radiographs
of Plaintiff’s chest, which showed “no consolidation, edema, or
pleural effusion.”

[R. 334].

Plaintiff also underwent a

multiple axial CT scan of his head.

Dr. Aaron Burns noted “no

intracranial hemorrhage or mass effect.”
35.

[R. 335].

On September 18, 2013, Plaintiff’s therapist, Mr.

Ayala, once again reported that Plaintiff “showed a mild
remission of his depression and anxiety.”
a GAF score of 35-40.
36.

He assigned Plaintiff

[R. 349].

On February 12, 2014, Mr. Ayala noted that Plaintiff

was taking his psychiatric medication as prescribed by his
psychiatrist and that Plaintiff “looks cooperative and
participative, his affect is appropriate, good interaction.”
Mr. Ayala found Plaintiff’s medication to be effective.
[R. 382].
37.

On March 17, 2014, Mr. Ayala noted that Plaintiff

reported feeling happy because he saw his daughters.

He also

noted that Plaintiff was “friendly, happier” and that his
“affect is appropriate.”

[R. 383].

11

38.

On March 27, 2014, Mr. Ayala noted a mild remission in

Plaintiff’s signs and symptoms of depression and anxiety and an
improvement in Plaintiff’s social functioning.

[R. 350].

Mr.

Ayala reported that Plaintiff “feels stable” because he has been
spending time with family.
39.

[R. 384].

On April 28, 2014, Plaintiff reported to Mr. Ayala

that he felt irritable and angry and that he had nightmares.
Mr. Ayala noted that Plaintiff was “hostile” and that “his
speech is loud, rapid, unclear.”
40.

[R. 386].

On May 6, 2014, Plaintiff was examined by consulting

doctor Alexander Hoffman.

Dr. Hoffman noted Plaintiff’s history

of depression, schizophrenia, and suicidal tendencies, as well
as Plaintiff’s complaints of back pain.

He noted that Plaintiff

has never had a full evaluation for his back pain, but that
Plaintiff complained of “persistent discomfort in his lower back
with occasional radiation into his lower extremities.”
Plaintiff did not walk with a cane, but walked with “an antalgic
gait.”

Dr. Hoffman reported that “straight leg raising is

pretty limited to about 45 on the right and 50 on the left, at
which time [Plaintiff] has back pain.”

He also noted that

Plaintiff “has good grip strength, biceps and triceps strength”
and “full range of motion at the wrist, elbow, and shoulder,”
but that he is “leery of bending.”

12

[R. 319-20].

41.

Dr. Hoffman completed a Medical Source Statement of

Ability to do Work-Related Activities (Physical) Form.

He found

that Plaintiff could occasionally lift and carry up to 10
pounds.

He also opined that Plaintiff could sit for one hour

and stand and walk for fifteen minutes without interruption.

In

Dr. Hoffman’s opinion, Plaintiff can sit for a total of three
hours, stand for a total of one hour, and walk for a total of
one hour in an eight hour workday.

Finally, Dr. Hoffman noted

that Plaintiff could only occasionally reach, hand, finger,
feel, and push/pull, but that he could never operate foot
controls, climb stairs, ramps, ladders, or scaffolds, balance,
stoop, kneel, crouch, or crawl.
42.

[R. 323-27].

Dr. Bogacki conducted a mental status examination of

Plaintiff again on May 9, 2014, with the assistance of a
certified Spanish translator.

Plaintiff reported that he

attends weekly counseling sessions and sees a psychiatrist
monthly at Nueva Vida.

Dr. Bogacki noted that Plaintiff

“revealed a very histrionic presentation of his symptoms,” “was
extremely exaggerated,” and that “throughout the evaluation, he
was clutching in his chest, squeezing his injured hand.”
Although Plaintiff’s “mood was depressed and agitated,” Dr.
Bogacki noted “no overt psychotic symptoms.”

Plaintiff’s

“abstraction, judgment, and insight were poor.”

He could not

recall three objects after five minutes, could not calculate

13

serial 7s or 3s, and could not spell “world” backwards in
Spanish.

Dr. Bogacki opined that if Plaintiff were granted

benefits, he would need a payee.

Dr. Bogacki’s diagnostic

impression was “rule out exaggeration of symptoms, rule out
bipolar disorder, not otherwise specified.”
Plaintiff a GAF score of 60.
43.

He assigned

[R. 330-31].

On May 15, 2014, Dr. Lyda Monte, Plaintiff’s

psychiatrist at Nueva Vida, noted “- voices” and “sleep good.”
[R. 352].
44.

On June 18, 2014, Plaintiff reported hearing voices

“calling his name” to Mr. Ayala.

Mr. Ayala observed that

Plaintiff was “anxious, moving constantly on his chair.”
[R. 388].
45.

On July 7, 2014, during his therapy session with Mr.

Ayala, Plaintiff reported feeling “very impulsive, anxious,
irritable” and having lost “interest in pleasurable activities.”
[R. 389].
46.

On July 17, 2014, Plaintiff’s psychiatrist, Dr. Monte,

completed a Medical Source Statement of Ability to do WorkRelated Activities (Mental) Form.

Dr. Monte opined that

Plaintiff had marked limitations in understanding, remembering,
and carrying out simple instructions, and extreme limitations in
making judgments on simple and complex work-related decisions
and understanding, remembering, and carrying out complex

14

instructions.

She noted that he has “poor memory, poor

concentration.”

[R. 400].

Dr. Monte also reported that

Plaintiff has marked limitations in interacting appropriately
with the public, and extreme limitations in interacting
appropriately with supervisors and coworkers, and responding
appropriately to usual work situations and changes in routine
work settings, due to his “high levels of anxiety, socialization
problems” and “depression, anxiety, insomnia, [and] perception
disturbances.”
47.

[R. 401].

Plaintiff’s niece, Margarita Saez, submitted a Third

Party Function Report on September 26, 2012.

She explained that

she assists Plaintiff with shopping and running errands.

She

noted that Plaintiff “can’t work due to psychiatric issues and
the medications he’s taking [for] severe back pain” and that
Plaintiff’s sleep is affected because he “hears voices” and has
“nervousness.”

Ms. Saez also explained that Plaintiff has “back

problems and [is] very forgetful,” and that he has difficulty
“completing tasks[s]” because he is “easily distracted” and
“doesn’t follow any instructions.”
48.

[R. 258-65].

On April 16, 2013, with the assistance of his

attorney, Plaintiff completed an Adult Function Report.

He

reported having trouble falling and staying asleep and
difficulty dressing, bathing, shaving himself, and caring for
his hair.

He also stated that he does light household chores

15

“very slowly” and has “to take many breaks.”

He reported that

he cannot follow written instructions well and that he is
“limited to simple instructions.”

He also reported that he does

not follow spoken instructions well: “I do not remember, I get
confused, I loos [sic] my concentration.”

Plaintiff also noted

that he has “overwhelming fear when doing simple things.

[He]

get[s] very paranoid [and] [f]eel[s] like people are watching
[his] every move.”
49.

[R. 276-83].

The following consists of the procedural history.

On

July 12, 2012, Plaintiff applied for Social Security Disability
benefits.

On July 16, 2012, Plaintiff also applied for

Supplemental Security Income benefits.
onset date of January 1, 2006.

He originally alleged an

On January 18, 2013, Plaintiff’s

claims were denied initially and, on May 7, 2013, his claims
were denied on reconsideration.
before an ALJ on May 24, 2013.
before the ALJ took place.

Plaintiff requested a hearing
On July 16, 2014, a hearing

Plaintiff appeared with the

assistance of a Spanish language interpreter and with his
attorney, Adrienne Jarvis.

The ALJ heard only an opening

statement from Plaintiff’s attorney; neither Plaintiff nor a
vocational expert testified at the hearing.

On August 7, 2014,

the ALJ issued an unfavorable decision on Plaintiff’s claims.
On July 21, 2015, the Appeals Council denied Plaintiff’s request
for review of ALJ’s decision.

16

50.

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).

Here, the ALJ

determined that Plaintiff was not disabled at the fifth and
final stage of this analysis (“Step Five”).

At Step Five, the

burden of production shifts to the Commissioner, who must
demonstrate that the claimant is capable of performing other
available work in order to deny a claim of disability.

20

C.F.R. § 404.1520(f); Plummer v. Apfel, 186 F.3d 422, 428 (3d
Cir. 1999).
51.

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); Fargnoli

v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Knepp v. Apfel,
204 F.3d 78, 83 (3d Cir. 2000).

“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, 186 F.3d at 427.

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

17

(3d Cir. 1984); Monsour Med. Ctr. v. Heckler, 806 F.2d 1185,
1190-91 (3d Cir. 1986)).
52.

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,

“unless 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, 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).
53.

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

18

[any] conciliations and rejections,” Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 122 (3d Cir. 2000); see also Fargnoli, 247
F.3d at 42 (“Although we do not expect the ALJ to make 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.”).
54.

In addition to the “substantial evidence” inquiry, the

reviewing court must also determine whether the ALJ applied the
correct legal standards.

See Sykes v. Apfel, 228 F.3d 259, 262

(3d Cir. 2000); Friedberg v. Schweiker, 721 F.2d 445, 447 (3d
Cir. 1983).

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)).
55.

The Court will address each of Plaintiff’s arguments

on appeal in turn.
56.

Plaintiff first argues that the ALJ erred in rejecting

Dr. Hoffman’s May 2014 opinions, for several reasons, and that,
due to this error, substantial evidence does not support the
ALJ’s RFC assessment for a full range of light work, the ALJ’s
credibility determination, or the ALJ’s determination of nondisability at Step Five.

19

57.

Specifically, Plaintiff contends that the ALJ did not

properly address each of Dr. Hoffman’s opinions about
Plaintiff’s exertional limitations and, therefore, improperly
rejected them in determining that Plaintiff could perform a full
range of light work.

Plaintiff also argues that the ALJ did not

address Dr. Hoffman’s clinical findings, such as Plaintiff’s
antalgic gait, positive straight leg raising tests, and
inability to walk toe to heel.

Additionally, Plaintiff

complains that the ALJ did not expressly evaluate Dr. Hoffman’s
opinions about how long Plaintiff could stand, sit, and walk
without breaks, reach, and manipulate.
58.

Plaintiff also maintains that the ALJ erroneously

rejected Dr. Hoffman’s May 2014 opinions as inconsistent with
Dr. Klausman’s December 2012 findings for two reasons.

First,

Dr. Klausman did not opine on Plaintiff’s functional limitations
and, therefore, did not offer opinions that were inconsistent
with Dr. Hoffman’s opinions.

Second, in Plaintiff’s view,

“[t]he ALJ assumed without foundation that Flores’s degenerative
disc disease of the lumbosacral spine was a static condition,
i.e., that Flores’s degenerative disc disease did not worsen

20

from December 2012 to May 2014.”

Plaintiff’s Opening Brief

(“Pl. Br.”) at 14 [Docket No. 9] (emphasis in original).1
59.

Likewise, Plaintiff contends that the ALJ erroneously

rejected Dr. Hoffman’s opinions as inconsistent with Dr.
Hennessey’s August 2013 treatment notes, given that Dr.
Hennessey also found that Plaintiff suffered from an irregular
gait and had positive Romberg’s sign.
60.

The ALJ found that, “[a]lthough the clamant informed

Ken Klausman, M.D., during a consultative exam on December 6,
2012, that he was experiencing low back pain, Dr. Klausman
reported that the claimant walked with a normal gait without the
use of a handheld assistive device, was able to get on and off
the exam table without difficulty, and could transfer from lying
down to sitting up without difficulty (Exhibit 4F).

Dr.

Klausman stated that the claimant had 5/5 strength in his lower
extremities, had only mild difficulty with heel, toe, and tandem
walking, and mild difficulty with squatting.

X-rays of the

claimant’s lumbar spine taken on December 17, 2012, showed disc
space narrowing at L4-L5 and L5-S1 with developmental canal
stenosis, but no fracture or subluxation.

1

Adam Hennessey, D.O.,

Plaintiff concedes that “[b]ecause this argument pertains
to evidence of worsening after Flores’s December 31, 2011 date
last insured, the argument in not relevant to the ALJ’s denial
of Flores’s [disability insurance benefits] claim,” and only
applies to the ALJ’s denial of Plaintiff’s supplemental security
income claim.
21

stated on August 13, 2013, that the claimant had no back
tenderness, had 5/5 strength in his lower extremities, equal
muscle mass and motion in his extremities, and intact motor and
sensory functioning (Exhibit 11F).

Although the claimant

informed Alexander Hoffman, M.D., during a consultative exam on
May 6, 2014, that he continued to have lower back pain, he
admitted that he had never sought treatment for this condition
(Exhibit 6F).

Upon exam, Dr. Hoffman stated that the claimant

walked with an antalgic gait and had positive straight leg
raising at 45 degrees, but did not use a cane, was able to get
on the exam table without help, was able to put weight on one
leg at a time, had 5/5 strength, and had no sensory or reflex
loss.

The claimant’s credibility regarding the severity of his

back pain is undermined by the lack of treatment in the record.
There is no evidence that the claimant has taken any pain
medications, received epidural steroid injections, participated
in physical therapy, or received chiropractic treatment.

There

is also no evidence of nerve root impingement or that the
claimant requires an assistive device to ambulate.”
61.

[R. 29].

In assessing the weight to give Dr. Hoffman’s

opinions, the ALJ further found that “Dr. Hoffman opined during
a consultative exam on May 6, 2014, that the claimant could lift
and carry 10 pounds occasionally, sit for 3 hours, stand for 1
hour, and walk for 1 hour in an 8-hour workday (Exhibit 6F).

22

Dr. Hoffman opined further that the claimant could never climb,
balance, stoop, kneel, crouch, or crawl, and must avoid exposure
to unprotected heights, moving mechanical parts, and extreme
cold.

Little weight is assigned to Dr. Hoffman’s opinion, as it

is inconsistent with the objective medical evidence and the
record as a whole.

In particular, Dr. Hoffman’s opinion is

inconsistent with Dr. Klausman’s evaluation notes, which
indicate that the claimant walked with a normal gait without the
use of a handheld assistive device, was able to get on and off
the exam table without difficulty, could transfer from lying
down to sitting up without difficulty, had 5/5 strength in his
lower extremities, had only mild difficulty with heel, toe, and
tandem walking, and mild difficulty with squatting (Exhibit 4F).
Dr. Hoffman’s opinion is inconsistent with Dr. Hennessey’s
treatment notes, which stated that the claimant had no back
tenderness, 5/5 strength in his lower extremities, equal muscle
mass and motion in his extremities, and intact motor and sensory
functioning (Exhibit 11F).”
62.

[R. 31].

“There is no requirement that the ALJ discuss in [his]

opinion every tidbit of evidence included in the record.”
94 F. App’x at 133.

Hur,

Nonetheless, the ALJ must review and

consider all pertinent medical and non-medical evidence and
“explain [any] conciliations and rejections.”

Burnett, 220 F.3d

at 122; see also Fargnoli, 247 F.3d at 42 (“Although we do not

23

expect the ALJ to make 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.”).
Moreover, “[w]here the evidence conflicts, the ALJ may choose
whom to credit, but [he] cannot reject evidence for no reason or
for the wrong reason.

To the contrary, [he] must consider all

the evidence and give some reason for discounting that which she
rejects.”

Masher v. Astrue, 354 F. App’x 623, 627 (3d Cir.

2009) (internal citations, quotations, alterations omitted).
63.

The ALJ considered many of Dr. Hoffman’s opinions

regarding Plaintiff’s limitations and assigned little weight to
them in light of the medical record as a whole.

Specifically,

the ALJ noted that other medical evidence from Dr. Klausman and
Dr. Hennessey suggested that Plaintiff was not as limited as Dr.
Hoffman had opined.
64.

Plaintiff argues that Dr. Klausman did not opine on

Plaintiff’s functional limitations and, therefore, did not offer
opinions that were inconsistent with Dr. Hoffman’s.
is not persuaded by this argument.

This Court

Although Dr. Klausman did

not give specific opinions on how many hours Plaintiff could sit
or stand, for example, he did observe that Plaintiff walked with
a normal gait without assistance, could move around during the

24

examination without difficulty, and had 5/5 strength in his
lower extremities.

The ALJ found that Dr. Klausman’s findings

regarding Plaintiff’s mobility and strength were inconsistent
with the extreme functional limitations put forth by Dr.
Hoffman.

The Court sees no error in the ALJ’s determination.

65.

The ALJ also noted that Dr. Hoffman’s opinions were

inconsistent with Dr. Hennessey’s treatment notes, which
reported no back tenderness, 5/5 strength in Plaintiff’s lower
extremities, equal muscle mass and motion in Plaintiff’s
extremities, and intact motor and sensory functioning.

These

findings, in the ALJ’s view, were inconsistent with the numerous
limitations provided by Dr. Hoffman.

The Court, once again,

finds no error in the ALJ’s determination.
66.

Additionally, the Court rejects Plaintiff’s argument

that the ALJ improperly rejected Dr. Hoffman’s May 2014 opinions
in favor of the older opinions of Dr. Klausman and Dr.
Hennessey, even though Plaintiff suffers from degenerative disc
disease that may worsen over time.

“[T]he ALJ was not bound to

accept all of Dr. [Hoffman’s] conclusions merely because his
report was the most recent.”

Howze v. Barnhart, 53 F. App’x

218, 221 (3d Cir. 2002) (rejecting appellant’s argument that it
is improper for ALJ to use older evidence to contradict newer
evidence in the case of degenerative illness where substantial
evidence supported ALJ’s determination).

25

In any case, the

Commissioner rightly notes that Plaintiff’s position that his
back disease worsened from 2012 to 2014 lacks foundation in the
record.
No. 10].

Commissioner’s Brief (“Comm. Br.”) at 17 [Docket
Dr. Hoffman even noted that, as of May 2014, Plaintiff

had still never had a full evaluation for his back pain, did not
walk with a cane, and did not need assistance getting on or off
the examination table.

The ALJ acknowledged this, observing

that Plaintiff reported to Dr. Hoffman that he had never sought
treatment for his back problems.

The ALJ also noted that “there

are absolutely no treatment notes in the record that indicate
that [Plaintiff] has ever sought treatment for” back pain and
that “it is the claimant’s responsibility to provide medical
evidence showing that he has an impairment, and to show how the
impairment affects his functioning during the time alleged as
disabled.”

[R. 29].

The Court finds that the ALJ did not err

in this respect.
67.

Plaintiff correctly identifies, however, that the ALJ

did not address, one way or the other, Dr. Hoffman’s opinions
regarding Plaintiff’s limited ability to sit, stand, and walk
without frequent breaks, or Plaintiff’s ability to only
occasionally reach and manipulate.

The ALJ appears to have

rejected these limitations, as they were not incorporated into
Plaintiff’s RFC, without explaining why.

The Court reiterates

that “the ALJ may choose whom to credit, but [he] cannot reject

26

evidence for no reason or for the wrong reason” and “must
consider all the evidence and give some reason for discounting
that which [he] rejects.”

Masher, 354 F. App’x at 627.

Remand

is appropriate for the ALJ to consider these opinions of Dr.
Hoffman only.
68.

This Court’s role on appeal is limited; the

Commissioner’s factual findings must be upheld 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); Fargnoli, 247 F.3d at 38; Knepp, 204 F.3d at 83.
Here, the Court finds that substantial evidence supports the
ALJ’s decision to assign little weight to the opinions of Dr.
Hoffman that were specifically addressed in the ALJ’s decision.
See Richardson, 402 U.S. at 401 (“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.”).

Accordingly, the ALJ’s decision to assign little

weight to these opinions is affirmed.

However, the ALJ

improperly rejected without explanation Dr. Hoffman’s opinions
that Plaintiff could only sit for one hour and stand and walk
for fifteen minutes without interruption and that Plaintiff
could only occasionally engage in reaching, handing, fingering,
or feeling.

The Court will remand for the ALJ to explicitly

consider these opinions only.

27

69.

Next, Plaintiff argues that substantial evidence does

not support the ALJ’s determination at Step Five that the
Plaintiff is not disabled because the ALJ failed to support the
decision with vocational expert testimony or other similar
evidence.

Specifically, Plaintiff takes issue with the ALJ’s

determination that a finding of “not disabled” is “directed” by
Medical-Vocational Rule 202.17, given that Plaintiff has both
exertional and non-exertional limitations.
70.

In his RFC assessment, the ALJ restricted Plaintiff to

understanding, remembering, and carrying out simple
instructions.

In Plaintiff’s view, because the ALJ found that

Plaintiff has both exertional and non-exertional limitations,
the ALJ was required to use Rule 202.17 as a “framework”, rather
than to direct a finding of non-disability, unless he notified
Plaintiff in advance of his intent to rely upon a social
security regulation in addition to the Medical-Vocational Rules.
Additionally, to carry his burden at Step Five, the Plaintiff
maintains, the ALJ should have obtained vocational expert
testimony or similar evidence.
71.

The Commissioner counters that the Medical-Vocational

Rules already account for Plaintiff’s non-exertional limitations
that the ALJ noted in his RFC.

In other words, in the

Commissioner’s view, the ALJ’s restriction of Plaintiff to jobs
that involve only simple instructions is a non-exertional

28

limitation that is already contemplated in the unskilled jobs
encompassed by the Medical-Vocational Rules.

Accordingly, the

Commissioner argues, the ALJ properly found that the MedicalVocational Rules directed a finding of not disabled.
72.

After noting that Plaintiff was 45 years old on the

alleged disability onset date, that Plaintiff has a limited
education and is able to communicate in English,2 and that
transferability of job skills is not an issue in this case
because Plaintiff’s past relevant work is also unskilled, and
after considering Plaintiff’s RFC, the ALJ determined that
Plaintiff is not disabled because there are jobs that exist in

2

Plaintiff also argues, parenthetically, that
“[s]ubstantial evidence does not support the ALJ’s finding that
Flores could communicate in English given Flores’s use of
Spanish-language interpreter” at the hearing before the ALJ.
Pl. Br. at 16. The Court agrees. Plaintiff appeared at the
hearing with a Spanish-language interpreter. Additionally, the
record reflects that Plaintiff was often examined with the
assistance of an interpreter. See, e.g., [R. 51, 268, 310,
330]. Likewise, the results of his mental status examinations
indicate that, for example, Plaintiff was asked to spell the
word “mundo,” or “world” in Spanish, backwards and was unable to
do so. See, e.g., [R. 54, 314]. The Court notes that Rule
201.00(h)(1)(iv) states that “a finding of ‘disabled’ is
warranted to individuals 45-49 who: . . . [a]re unable to
communicate in English, or are able to speak and understand
English but are unable to read or write in English.” 20 C.F.R.
Part 404, Subpart P, Appendix 2. Accordingly, the Court finds
that remand on this issue is necessary. On remand, the ALJ
should reevaluate his conclusion that Plaintiff is able to
communicate in English for purposes of determining whether there
are jobs in the national economy that Plaintiff can perform.
The ALJ may, if appropriate, come to the same conclusion, but he
must support it with substantial evidence.
29

significant numbers in the national economy that Plaintiff can
perform.
73.

[R. 33].
Specifically, at Step Five, the ALJ found that “[i]n

determining whether a successful adjustment to other work can be
made, the undersigned must consider the claimant’s residual
functional capacity, age, education, and work experience in
conjunction with the Medical-Vocational Guidelines, 20 CFR Part
404, Subpart P, Appendix 2.

If the claimant can perform all or

substantially all of the exertional demands at a given level of
exertion, the medical-vocational rules direct a conclusion of
either ‘disabled’ or ‘not disabled’ depending upon the
claimant’s specific vocational profile (SSR 83-11).

When the

claimant cannot perform substantially all of the exertional
demands of work at a given level of exertion and/or has
nonexertional limitations, the medical-vocational rules are used
as a framework for decision-making unless there is a rule that
directs a conclusion of ‘disabled’ without considering the
additional exertional and/or nonexertional limitations (SSRs 8312 and 83-14).

If the claimant has solely nonexertional

limitations, section 204.00 in the Medical-Vocational Guidelines
provides a framework for decision-making (SSR 85-15).

Based on

a residual functional capacity for the full range of light work,
considering claimant’s age, education, and work experience, a

30

finding of ‘not disabled’ is directed by Medical-Vocational Rule
202.17.”
74.

[R. 33].
Generally, the claimant has the burden of establishing

disability at each step of the sequential process; however, the
“Commissioner bears the burden of proof for the last step.”
Sykes, 228 F.3d at 263 (citing Bowen v. Yuckert, 482 U.S. 137,
146 n. 5 (1987)).

At the fifth step, the ALJ must demonstrate

that the claimant is capable of performing other available work
in order to deny a claim of disability.
§ 404.1520(f).

20 C.F.R.

The ALJ must show that jobs exist in significant

numbers in the national economy which the claimant can perform,
consistent with his medical impairments, age, education, past
work experience, and RFC.
75.

Id.

To carry the burden at Step Five, the ALJ may utilize

the Medical-Vocational Guidelines set forth in 20 C.F.R. Part
404, Subpart P, Appendix 2.

As the Third Circuit has explained,

“[t]he grids [in the Medical-Vocational Guidelines] consist of a
matrix of four factors--physical ability, age, education, and
work experience--and set forth rules that identify whether jobs
requiring specific combinations of these factors exist in
significant numbers in the national economy.”
at 263.

Sykes, 228 F.3d

“Where a claimant’s qualifications correspond to the

job requirements identified by a rule, the guidelines direct a
conclusion that work exists that the claimant can perform.”

31

Id.

76.

However, the Third Circuit has held that where a

claimant has both exertional and non-exertional impairments, the
ALJ cannot rely upon the grids in the Medical-Vocational
Guidelines alone to determine non-disability.

Id. at 273.

The

ALJ must also obtain “the testimony of a vocational expert or
other similar evidence, such as a learned treatise,” in order to
carry his burden at Step Five.

Id.

Alternatively, the ALJ must

provide the claimant with notice that he intends to take
official notice of the fact that the claimant’s non-exertional
impairments do not erode the occupational base, and the claimant
must have an opportunity to oppose that conclusion.
77.

Id.

In Allen v. Barnhart, the Third Circuit clarified that

if the ALJ “wishes to rely on an SSR [social security ruling] as
a replacement for a vocational expert, it must be crystal-clear
that the SSR is probative as to the way in which the
nonexertional limitations impact the ability to work, and thus,
the occupational base.”

417 F.3d 396, 407 (3d Cir. 2005).

The

Third Circuit further explained that “the claimant should have
the opportunity to consider whether it wishes to attempt to
undercut the Commissioner’s proffer [of an SSR] by calling
claimant’s own expert.

Obviously, this requires notice in

advance of the hearing.”

Id. at 407-08.

Where advance notice

is not given, “close scrutiny to the ALJ’s reliance on a Ruling

32

as satisfying the Commissioner’s burden at Step 5” is required.
Id. at 408.
78.

Here, the ALJ’s RFC assessment limited Plaintiff to

the full range of light unskilled work.

The ALJ further limited

Plaintiff to “understanding, remembering, and carrying out
simple instructions, making judgments that are commensurate with
the functions of unskilled work (i.e., simple work-related
decisions), responding appropriately to supervision, co-workers,
the general public and usual work situations, and dealing with
changes in a routine work setting.”

[R. 26].

Plaintiff

contends that his restriction to understanding, remembering, and
carrying out only simple instructions is a non-exertional
limitation that may erode the base of light unskilled work.

In

Plaintiff’s view, this required the ALJ to obtain vocational
expert testimony or other similar evidence or to give him notice
in advance of his intention to rely upon an SSR that states that
such a non-exertional limitation does not erode the occupational
base.

The Court agrees.
79.

Apparently relying on SSR 85-15, the Commissioner

argues that the grids take administrative notice of unskilled
jobs in the economy and that Plaintiff’s non-exertional
limitation to handling only simple instructions is encompassed
in the limitation to unskilled work.

SSR 85-15 states that

“[t]he basic mental demands of competitive, remunerative,

33

unskilled work include the abilities (on a sustained basis) to
understand, carry out, and remember simple instructions; to
respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting.
A substantial loss of ability to meet any of these basic workrelated activities would severely limit the potential
occupational base.”
80.

It is not for this Court to decide whether Plaintiff’s

non-exertional limitation is or is not co-extensive with
unskilled work, see Pl. Br. at 19.

Rather, this determination

should be made by the ALJ, either with the assistance of
vocational expert testimony or similar evidence or by proffering
an SSR in advance to the Plaintiff.

The ALJ did not rely upon

SSR 85-15 in his decision to determine that Plaintiff’s nonexertional limitation did not erode the base of unskilled light
work in the national economy.

This falls far short of the Third

Circuit’s requirement that the ALJ make “crystal-clear that the
SSR is probative as to the way in which the nonexertional
limitations impact the ability to work, and thus, the
occupational base.”

See Allen, 417 F.3d at 407.

The ALJ should

have obtained vocational expert testimony or other similar
evidence, or given the Plaintiff notice in advance of the
hearing that he intended to rely upon SSR 85-15.

See, e.g.,

Meyler v. Comm’r of Soc. Sec., 238 F. App’x 884, 890 (3d Cir.

34

2007) (remanding, after closely scrutinizing ALJ’s reliance on
SSR at Step Five, for further elaboration at Step Five where
“the ALJ relied upon SSR 85-15 and SSR 83-10 without calling a
vocational expert, and without providing advance notice to
[plaintiff] so she could call her own vocational expert”);
Sykes, 228 F.3d at 273; Allen, 417 F.3d at 407-08; Kuznetsov v.
Astrue, 2012 WL 11028, at *8 (W.D. Pa. Jan. 3, 2012) (remanding
for reconsideration of Step Five determination and finding that
“ALJ’s generalized citation to SSR 85-15 will not suffice”).
81.

Accordingly, the Court finds that the ALJ’s

determination that Medical-Vocational Rule 202.17 directs a
finding of “not disabled” is not supported by substantial
evidence.

Remand is appropriate for the ALJ to properly

evaluate whether jobs exist in the national economy that
Plaintiff would be capable of performing, given his exertional
and non-exertional limitations.

“This can be accomplished by

noting how SSR 85-15 is relevant and controlling--if indeed that
is the case--or by obtaining the individualized assessment that
SSR 85-15 seems to prefer by way of a vocational expert.”
Allen, 417 F.3d at 407.

If the ALJ intends to rely upon an SSR

once again, advance notice should be given to the Plaintiff.
See id. at 407-08 (“urg[ing] that, as a matter of fairness,
alerting a claimant to the relevant rule in advance will always
be appropriate.”).

35

82.

Next, the Plaintiff argues that substantial evidence

does not support the ALJ’s RFC assessment, credibility finding,
or ultimate finding of non-disability because the ALJ erred in
relying on non-existent testimony from the Plaintiff to find him
not credible.

Plaintiff identifies two portions of the ALJ’s

decision in which the ALJ appears to refer to Mr. Flores’s
testimony at the hearing.

Mr. Flores, however, did not testify

at the hearing before the ALJ; only his attorney provided an
opening statement.

[R. 39-43].

The ALJ specifically stated at

the hearing that he had no questions for Mr. Flores.
83.

[R. 43].

The Commissioner, in turn, contends that “Plaintiff

overlooks the fact that his counsel, on his behalf, made
extensive statements about his inability to function.”
Br. at 13.

Comm.

In the Commissioner’s view, “[r]egardless, who made

the statements [sic], the fact of the matter is that the ALJ
appropriately weighed the credibility of these subjective
complaints.”
84.

Id.

The ALJ noted that “[t]he claimant appeared and

testified at a hearing held on July 16, 2014, in Pennsauken, NJ.
She [sic] testified with the assistance of a Spanish language
interpreter.”

[R. 21] (emphasis added).

The ALJ further noted

that “[t]he record reflects that the claimant has performed a
generally normal range of functional abilities, which is
inconsistent with a finding of disability.

36

Although the

claimant testified at his hearing that his impairments severely
restricted his functional ability, the claimant indicated on an
Adult Function Report that he can prepare simple meals, do light
household chores, and shop in stores for food and personal items
(Exhibit 8E).”
85.

[R. 29] (emphasis added).

“Considering the numerous inconsistencies between the

claimant’s testimony, the evidence of record, and the medical
findings of the treating physicians,” the ALJ found that “the
claimant’s subjective complaints and alleged limitations are not
fully persuasive and that the claimant retains the ability,
despite his limitations, to perform work activities with the
limitations set forth above.”
86.

[R. 32] (emphasis added).

An ALJ’s credibility determination is accorded great

deference and will not be disturbed unless it is “inherently
incredible or patently unreasonable.”

See Blue Ridge Erectors

v. Occupational Safety & Health Review Comm’n, 261 F. App’x 408,
410 (3d Cir. 2008); St. George Warehouse, Inc. v. NLRB, 420 F.3d
294, 298 (3d Cir. 2005).
87.

To the extent that the ALJ’s credibility determination

as to Mr. Flores was based on perceived inconsistencies between
Plaintiff’s testimony at the hearing, which does not exist, and
his statements in the Adult Function Report and the medical
record, the Court finds that the credibility determination is
unreasonable.

Plaintiff did not testify at the hearing and, so,

37

could not have given testimony at the hearing that was
inconsistent with his prior statements or the medical record.
The Court agrees with Plaintiff that “[n]o evidence is not
substantial evidence.”
88.

See Pl. Br. at 23.

Furthermore, the Court rejects the Commissioner’s

contention that the ALJ was actually referring to Plaintiff’s
attorney’s opening statement.

It is merely a post hoc

justification for the ALJ’s statements.

See Fargnoli, 247 F.3d

at 44 n. 7 (noting that “[t]he grounds upon which an
administrative order must be judged are those upon which the
record discloses that its action was based.”) (quoting SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943)).

Moreover, attorney

statements or arguments are not testimony.

If the ALJ truly was

referring to inconsistencies between the statements of
Plaintiff’s attorney, not the Plaintiff, and the medical record,
then that must be made clear.

The ALJ will have an opportunity

to clarify his position and to reevaluate his credibility
determination as to the severity of Plaintiff’s symptoms on
remand.
89.

Finally, Plaintiff argues that the ALJ’s RFC

assessment, credibility finding, and the ultimate determination
of non-disability are unsupported by substantial evidence
because “the ALJ erroneously ruled that Flores’s activities of

38

daily living were ‘inconsistent with a finding of disability.’”
Pl. Br. at 23 (citing [R. 29]).
90.

The ALJ found that “[t]he record reflects that the

claimant has performed a generally normal range of functional
abilities, which is inconsistent with a finding of disability.
Although the claimant testified at his hearing that his
impairments severely restricted his functional ability, the
claimant indicated on an Adult Function Report that he can
prepare simple meals, do light household chores, and shop in
stores for food and personal items (Exhibit 8E).

The claimant

informed Dr. Bogacki on October 16, 2012, th[at] he required no
assistance on self-care tasks, maintains his own room, can use
public transportation, and has a driver’s license (Exhibit 2F).
The claimant reported to Dr. Bogacki on May 9, 2014, that he
assists with household chores (Exhibit 7F).”
91.

[R. 29].

“Although certainly disability does not mean that a

clamant must vegetate in a dark room excluded from all forms of
human and social activity, it is nonetheless appropriate for the
ALJ to consider the number and type of activities in which the
clamant engages.”

Turby v. Barnhart, 54 F. App’x 118, 122 (3d

Cir. 2002) (internal citations, quotations, modifications
omitted) (quoting Smith v. Califano, 637 F.2d 968, 971 (3d Cir.
1981); Burns v. Barnhart, 312 F.3d 113, 130-31 (3d Cir. 2002));
see also Hoyman v. Colvin, 606 F. App’x 678, 681 (3d Cir. 2015)

39

(“The evidence from [plaintiff’s] doctors and the evidence
regarding his daily activities . . . support the ALJ’s finding
with respect to [plaintiff’s] credibility.”).
92.

In fact, the applicable federal regulations

specifically state that consideration of the claimant’s
activities of daily living is appropriate in making credibility
determinations regarding the severity and intensity of the
claimant’s symptoms.

See 20 C.F.R. § 404.1529 (disability

insurance benefits); 20 C.F.R. § 416.929 (supplemental security
income).
93.

20 C.F.R. § 404.1529(a) provides, in relevant part:

In determining whether you are disabled, we consider
all your symptoms, including pain, and the extent to
which your symptoms can reasonably be accepted as
consistent with the objective medical evidence and
other evidence. By objective medical evidence, we
mean medical signs and laboratory findings as defined
in § 404.1528 (b) and (c). By other evidence, we mean
the kinds of evidence described in §§ 404.1512(b)(2)
through (8) and 404.1513(b)(1), (4), and (5), and (d).
These include statements or reports from you, your
treating or nontreating source, and others about your
medical history, diagnosis, prescribed treatment,
daily activities, efforts to work, and any other
evidence showing how your impairment(s) and any
related symptoms affect your ability to work. We will
consider all of your statements about your symptoms,
such as pain, and any description you, your treating
source or nontreating source, or other persons may
provide about how the symptoms affect your activities
of daily living and your ability to work. (emphasis
added).

40

94.

Likewise, 20 C.F.R. § 404.1529(c)(3) states that

“[f]actors relevant to your symptoms, such as pain, which we
will consider include: (i) Your daily activities . . . .”
95.

The ALJ considered Plaintiff’s reports regarding his

ability to engage in activities of daily living to Dr. Bogacki
and in his Adult Function Report in determining that Plaintiff’s
complaints of disabling pain and other symptoms were not
entirely credible.

The ALJ also considered Plaintiff’s

activities of daily living to assess the severity of Plaintiff’s
symptoms and pain.

The Court finds that the ALJ permissibly and

properly considered Plaintiff’s activities of daily living for
these purposes.
96.

Accordingly, the ALJ’s credibility determination and

assessment of the severity of Plaintiff’s symptoms and pain are
affirmed insofar as these determinations are based on the ALJ’s
review of Plaintiff’s reports of his activities of daily living.
However, as stated above, insofar as the ALJ’s credibility
determination turned on perceived inconsistencies between
Plaintiff’s non-existent testimony and his reports regarding his
activities of daily living to doctors and in the Adult Function
Report, the determination is not supported by substantial
evidence and remand is, therefore, necessary.

41

ACCORDINGLY, FOR THE REASONS SET FORTH ABOVE, IT IS HEREBY,
on this 6th day of September 2016,
ORDERED that the decision of the Administrative Law Judge
is VACATED, and the matter is REMANDED for further proceedings
consistent with this Memorandum Order; and it is further
ORDERED that the Clerk of the Court shall CLOSE this file.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

42