INGRAM v. COMMISSIONER OF SOCIAL SECURITY
Filing
14
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/17/2016. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JAMES INGRAM,
Plaintiff,
HONORABLE JEROME B. SIMANDLE
CIVIL NO. 15-7710 (JBS)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
Lauren S. Tovinsky, Esq.
JACOBS SCHWALBE & PETRUZELLI PC
10 Melrose Avenue
Suite 340
Cherry Hill, NJ 08003
Attorney for Plaintiff
Robert S. Drum, Esq.
Social Security Administration
Office of the General Counsel
P.O. BOX 41777
Philadelphia, PA 19101
Attorney for Defendant.
SIMANDLE, District Judge:
I.
INTRODUCTION
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g) (2006), to review the final decision of the Commissioner
of the Social Security Administration denying the application of
Plaintiff James Ingram for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act. See 42 U.S.C. §§ 40134 (2006). The principal issue presented is whether the
Commissioner’s finding that Plaintiff’s schizophrenia is
sufficiently stable to allow him to perform medium level work
functions on a regular and continuing basis is supported by
substantial evidence in the record considered as a whole. For
the reasons set forth below, the Court will vacate the decision
of the ALJ and remand for further proceedings consistent with
this opinion.
II.
BACKGROUND
A. Procedural Background
Plaintiff, James Ingram, protectively filed an initial
application for Disability Insurance Benefits (“DIB”) on July
16, 2012, alleging an onset date of disability of June 13, 2011,
(the “alleged disability onset date”) due to paranoid
schizophrenia, depression, suicidal ideation, diabetes, and
other impairments. (R. 103, 188.) Plaintiff’s application was
denied both initially and on reconsideration. (R. 140-44, 14648.)
On March 21, 2013 Plaintiff requested a hearing before an
Administrative Law Judge. (R. 149-40.) The hearing commenced on
May 12, 2014, in Pennsauken, New Jersey, before the Honorable
Nicholas Cerulli, (“the ALJ”) and Plaintiff was represented by
counsel. (R. 37-85.) Louis P. Szollosy, a vocational expert,
also appeared and testified. (Id.) In a written opinion dated
August 5, 2014, the ALJ determined that Plaintiff was “not under
a disability” within the meaning of the Act from June 13, 2011
through the date of the decision and was therefore not entitled
to benefits. (R. 16-32.) Specifically, the ALJ found that
although Plaintiff had severe, medically-determinable
impairments, he remained capable of a limited range of medium
work. (Id.)
Plaintiff filed a timely request for review by the Appeals
Council on August 5, 2014. (R. 1.) The Appeals Council denied
the request on October 6, 2014, making the ALJ Denial the final
decision of the Commissioner of Social Security. (R. 1-6.) The
present action was timely filed by Plaintiff on November 2, 2015
in the United States District Court for the District of New
Jersey claiming that the Commissioner’s finding that Plaintiff
is “not disabled” was not based on substantial evidence.
Specifically, Plaintiff alleges that the ALJ failed to properly
assess his Residual Function Capacity (“RFC”) because he failed
to properly account for the true extent of Plaintiff’s physical
and psychiatric limitations. (Pl. Br. at 14-15.)
B. Factual Background
Plaintiff was 58 years old at the alleged disability onset
date and 61 years old on the date of his disability hearing. (R.
31, 44.) He has a General Equivalency Diploma (GED), the
equivalent of high school education. (R. 208.)
From November 2012 until October 2013, Plaintiff drove a
bus and car for First Transit, working 35 hours per week at
$15.00 an hour. (R. 50, 53-54.) According to the Vocational
Expert (“VE”), this job was classified as a “semiskilled medium
occupation.” (R. 73-74.) He had to resign from the position in
April 2013, after he was found ineligible for a Commercial
Driver’s License due to his diagnosis of paranoid schizophrenia.
(R. 21; 46-47; 430.) In the past, Plaintiff had worked as a
parts clerk and parts delivery driver (R. 53-55), which the VE
classified as “semiskilled” and with duties ranging from “light
to medium exertion.” (R. 74, 208.) He also worked as a yarn
twister, a “medium exertion semiskilled occupation,” and as an
eyeglass assembler, a “light semiskilled” occupation. (R. 53-55,
74, 208.) Plaintiff testified that at his eyeglass assembler
job, Plaintiff’s employer told him he was performing too slowly
in the number of glasses he was able to assemble. (R. 72.)
Between 2011 and 2012, Plaintiff received Worker’s
Compensation benefits. (R. 51.) He certified that he was “ready,
willing, and able to work.” (R. 51-52.) As part of receiving his
benefits, Plaintiff had to show that he was looking for work,
and he reported applying for jobs at stores such as Home Depot,
McDonald’s, and local convenience stores. (R. 52.)
1. Plaintiff’s Psychological Impairments
Plaintiff testified that he was disabled because of
episodes of schizophrenia. (R. 28, 55.) He stated he was
paranoid when driving in heavy traffic and had delusions. (R.
46.) He reported an incident where he brought a chainsaw and
shovel into his house because he believed there were people
coming to hurt his family. (R. 28-55.) Plaintiff’s psychiatric
problems reportedly began in 2003, when he began to develop
paranoid ideation and other psychotic features. (R. 404). His
mother is also diagnosed with schizophrenia (R. 404). The
medical evidence reveals the following:
(a)
June 15, 2011 – Hospitalization at Hampton
Behavioral Health Center
Records from the Hampton Behavioral Health Center show that
on June 15, 2011 Plaintiff was voluntarily hospitalized due to
paranoid delusions and auditory hallucinations, with the belief
that people were trying to poison him. (R. 292, Ex. B5F.) It was
reported that prior to admission, Plaintiff had barricaded
himself in the basement of his home. (Id.) At the time of
admission, the medical record indicates that Plaintiff’s thought
content was positive for paranoid delusions, his affect was
constrictive and insight poor. (R. 292-293.) His Global
Assessment of Functioning (“GAF”) was estimated to be 20, which
according to the Diagnostics and Statistics Manual of Mental
Disorders (“DSM-IV”) indicated Plaintiff had a “gross
impairment.”1 (Id.) Plaintiff was started on medication, namely
Seroquel, and eventually switched to Risperdal. (R. 295.) After
three weeks on medication Plaintiff’s paranoia improved and by
the time of discharge on July 6, 2011 he was reported to be in
stable condition, in a good mood, and with an affect in
congruence with his mood. (R. 295.) On discharge, he reported no
auditory hallucinations and only mild paranoid delusions. (Id.)
His discharge records diagnosed Plaintiff with “schizophrenia,
paranoid type.” (Id.). His GAF score at that time was 55, which
indicated moderate symptoms or a moderate impairment in social
or occupational functioning.2 (Id.) Plaintiff was discharged home
with a prescription of Risperdal. (Id.).
From July 7, 2011 to August 11, 2011 Plaintiff participated
in an Adult Partial Hospitalization Program at the Hampton
Behavioral Health Center. (R. 300-301.) He participated in group
psychotherapy, psychoeducation groups, and medication education
1
The GAF scale ranges from zero to 100 and “[c]onsider[s] the
psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” DSM-IV. A GAF
score of 11 to 20 denotes “some danger of hurting self or others
(e.g., suicide attempts without clear expectation of death;
frequently violent; manic excitement) OR occasionally fails to
maintain minimal personal hygiene (e.g., smear feces) OR gross
impairment in communication (e.g., largely incoherent or mute).”
Def. Opp. at 7 n.3 (citing DSM-IV at 32).
2 A GAF score of 51 to 60 indicates that the individual has
“[m]oderate symptoms . . . or moderate difficulty in social,
occupational, or school functioning. . . .” Def. Opp. at 7 n.3
(citing DSM-IV at 32.)
and management. (R. 300.) At discharge from this program, it was
reported that his mood and thought processes were stable and
that he was motivated to participate in his follow-up care. (R.
300.) His GAF score was still 55, indicating moderate symptoms.
(R. 300.)
(b)
June 12, 2012 – Emergency Room visit at Kennedy
Health System
On June 12, 2012 Plaintiff was seen at the emergency room
at Kennedy Health System. (R. 302.) He reported having racing
thoughts and difficulty sleeping at night, but denied having
auditory or visual hallucinations, or suicidal or homicidal
ideation. (Id.) Plaintiff was given Augmentin and Remeron and
referred to outpatient treatment. (R. 306.)
(c)
June 18, 2012 – Hospitalization at Kennedy Health
System
On June 18, 2012, Plaintiff was hospitalized at Kennedy
Health System. (R. 314.) At admission, he reported having racing
thoughts, an inability to sleep, and no energy. (R. 314, 325.)
He reported being depressed for the past two weeks, and had
suicidal ideation with a plan to cut himself with a knife. (R.
325.) Plaintiff denied having hallucination or delusions, and it
was reported that his thought processes were normal. On
admission, his GAF score was 30, indicating “serious impairment”
or “serious symptoms.”3 (R. 325.) Medication for his
schizophrenia was changed to Seroquel and he was given
medication for his insomnia. (R. 315.) Plaintiff was discharged
after one week, on June 25, 2012. (R. 315.) At discharge, he
reported no suicidal or homicidal thoughts, no hallucinations,
and no paranoia. (Id.) His discharge diagnoses were
schizophrenia – chronic, paranoid type – and a depressive
disorder, (R. 314.) His GAF score at the time of discharge was
62, which indicated mild symptoms and generally good
functioning.4
(d)
November 20, 2012 – Social Security Disability
Consultative Examination by Dr. Bogacki
On November 20, 2012, Dr. David Bogacki, Ph.D., conducted a
consultative mental status examination at the request of the
Commissioner. (R. 22, 404-405.) Dr. Bogacki’s report noted that
Plaintiff had five hospitalizations from 2004-2011 due to his
schizophrenia. (R. 404.) The evaluation stated that Plaintiff
3
GAF scores of 21 through 30 denote “behavior is considerable
influenced by delusions or hallucinations OR serious impairment
in communication or judgment (e.g., sometimes incoherent, acts
grossly inappropriately, suicidal preoccupation) OR inability to
function in almost all areas (e.g., stays in bed all day; no
job, home, or friends).” Def. Opp. at 9 n.4 (citing DSM-IV at
32).
4 GAF scores of 61-70 denote “some mild symptoms (e.g. depressed
mood and mild insomnia) OR some difficulty in social,
occupational, or school functioning (e.g., occasional truancy,
or theft within the household), but generally functioning pretty
well, has some meaningful interpersonal relationships.” Def.
Opp. at 10 n. 5 (citing DSM-IV at 32.)
reported that he took care of his own personal needs, helped
with household chores, drove a car, and was able to use public
transportation (R. 405.) Plaintiff also reported having friends
that he could relate to and attended church. (Id.) Dr. Bogacki
observed that Plaintiff was neatly dressed and groomed, and
oriented to time, place, and person. (Id.) Plaintiff’s affect
and mood were noted to be in normal limits, and his speech was
logical, coherent, and goal-oriented. (Id.) Dr. Bogacki did not
note any psychotic symptoms and said Plaintiff had reported that
despite occasional bad dreams, he had been “totally symptomfree” for the past five months. (Id.) Dr. Bogacki diagnosed
Plaintiff with schizophrenia paranoid type, chronic, in
remission. (Id.) He estimated Plaintiff’s current GAF score at
70, and his highest over the past year around 65. (Id.)
(e)
January 17, 2013 – Emergency Room Visit at
Kennedy Health System
Plaintiff was seen at the emergency room at Kennedy Health
System for a “crisis evaluation” on January 17, 2013, reporting
increased depression and paranoia. (R. 416.) Plaintiff reported
that he was hearing voices, but had no command hallucinations or
suicidal or homicidal ideations. (Id.)
(f)
January 18, 2013 – Hospitalization at Hampton
Behavioral Health Center
Following the emergency room visit the previous day,
Plaintiff was voluntarily hospitalized at Hampton Behavioral
Health Center on January 18, 2013, following a two to three day
episode of paranoia. (R. 408.) Plaintiff reported he felt people
were out to harm him and play tricks on him. (Id.) He denied
auditory or visual hallucinations, but reported hearing sporadic
voices. (Id.) Plaintiff reported that he was currently working
for a transit company and had been married for 12 years. (Id.)
The admission mental status examination noted that Plaintiff
appeared well groomed and cooperative, his thoughts were
logical, and he had normal thought content. (R. 409.) He was
diagnosed with schizophrenia, paranoid type (R. 409) His
admission GAF score was 30. (Id.) While hospitalized, a
reviewing doctor, Dr. Charles Trigiani, reported that Plaintiff
could not recognize his own paranoia. (R. 410). Dr. Trigiani
also noted that he agreed with Plaintiff’s request for a period
of disability leave prior to returning to work. (R. 410). The
discharge notes report that Plaintiff responded well to changes
in medication and that while he was leaving “prematurely” he was
stabilized enough. (R. 411.) Plaintiff was discharged on
February 5, 2013, and at the time of his discharge, his GAF
score was 55, indicating moderate symptoms. (Id.)
(g)
February 7, 2013 – Intensive Outpatient Program,
Hampton Behavioral Health Center
Plaintiff participated in the Adult Intensive Outpatient
Program at Hampton Behavioral Health Center from February 7,
2013 to February 18, 2013. (R. 413-414.) Treatment included
participation in psychotherapy, psychoeducational groups, and
medication education and management. (R. 413.) It was reported
that during treatment, Plaintiff was motivated, compliant with
treatment goals, and successfully completed the program. (Id.)
His discharge notes reported that at the time of discharge,
Plaintiff was stable in mood and thought and his GAF score was
75, indicating minimal symptoms. (413-414.)5
(h)
April 2014 – Disability Hearing
At the time of the hearing in April 2014, Plaintiff
reported no new psychotic episodes. He was still prescribed 300
mgs. of Seroquel to help control his psychotic symptoms, but
reported that he still experienced some symptoms of his
schizophrenia as well as side effects from the medication, such
as drowsiness, nausea, and weight gain. (R. 28, 56.) Plaintiff
testified that he has difficulty with his memory and
concentration. (R. 63-64.) He testified that his wife helps him
remember his medications (R. 64), that he has difficulty
following a conversation and will often forget the topic in the
5
GAF scores of 71-80 denote “no more than slight impairment in
functioning at home, at school or with peers. Some disturbance
of behavior or emotional distress may be present in response to
life stresses (e.g., parental separations, deaths, birth of a
sibling) but these are brief and interference with functioning
is transient.” Def. Opp. at 10 n. 6 (citing DSM-IV at 32).
midst of conversations (R. 64), and that in church he has
difficulty following along with the service. (R. 68-70.)
Plaintiff testified he could stay focused for around an hour.
(R. 64-65.) Plaintiff testified that he does not socialize much.
(R. 65, 72.) He noted that other than church he does not
interact with other people. (R. 72.)
2. Plaintiff’s Physical Impairments
Plaintiff is diagnosed with renal cysts, diabetes mellitus,
and hypertension. (R. 399.) He was diagnosed with diabetes and
hypertension in 2005 (R. 399.), and with renal cysts in 2012.
(R. 383, 469.) Plaintiff testified that he has trouble standing
for extended periods of time, often needing to take breaks when
washing dishes. (R. 65.) He also stated he has trouble climbing
the stairs in his two-story residence. (R. 65.) Plaintiff
testified he has trouble caring for some of his personal needs.
He wets the bed some nights (R. 66) and has difficulties taking
baths and showers. (R. 67.) The pertinent medical evidence is as
follows:
(a)
November 5, 2012 – Social Security Consultative
Examination by Dr. Wilchfort
On November 5, 2012, Dr. Samuel Wilchfort conducted a
consultative examination at the request of the Commissioner. (R.
399.) Dr. Wilchfort noted that Plaintiff had normal range of
motion in his upper and lower extremities, and was able to bend
over to 90 degrees. (R. 401.) He also noted that Plaintiff was
able to perform straight-leg raises to 80 degrees, heel and toe
walks, and squats. (R. 399, 401.) Plaintiff was reported as
having normal sensation, and that his reflexes and muscle
strength showed no signs of weakness. (R. 401.)
(b)
January 17, 2013 – Emergency Room Visit at
Kennedy Health
On January 17, 2013, Plaintiff was seen at the emergency
room of Kennedy Health System complaining of moderate abdominal
pain and nausea, as well as possible hernia and renal cysts. (R.
490.) A CT scan of his abdomen showed a cyst in his right kidney
and hyper dense lesion in the left kidney indicating potential
small hemorrhagic cysts. (R. 498.) The reviewing doctor reported
that his impressions were probable bilateral renal cysts. (R.
422.) Plaintiff was prescribed Zofran for nausea and
subsequently discharged. (R. 531.)
(c)
March 14, 2014 – Delaware Valley Urology
Evaluation
In March, 2013, an ultrasound of the kidney revealed
Plaintiff had bilateral renal cystic lesions. (R. 461-462.)
Treatment notes indicate Plaintiff was diagnosed with benign
prostatic hyperplasia, a renal cyst, nocturtia, erectile
dysfunction, and hypogonadism. (R. 484.) The main complaint by
Plaintiff was frequent urination. Plaintiff was prescribed Andro
Gel pump for low testosterone, and a three month follow-up. (R.
484.)
(d)
April 18, 2014 – Dr. Richard Simon Evaluation
On April 18, 2014, Plaintiff’s treating physician, Dr.
Richard Simon, conducted a physical evaluation in conjunction
with Plaintiff’s disability hearing. Dr. Simon reported that
Plaintiff could sit for a total of three hours in an eight hour
workday; stand for a total of one hour in an eight hour workday;
and could not walk at all during an eight hour workday. (R.
458.) He further reported that Plaintiff could only occasionally
bend, stoop, crawl, squat, climb or use his feet for foot
controls. (Id.) Dr. Simon checked off that Plaintiff could lift
and carry up to ten pounds occasionally, and up to five pounds
frequently. (Id.) His examination report stated that Plaintiff’s
pain was severe enough to be distracting to adequately perform
daily activities or work; and that side effects from his
medications could be expected to limit Plaintiff’s effectiveness
of work duties, or the performance of everyday tasks. (Id.)
C. The Commissioner’s Decision
Applying the requisite five-step analysis, the ALJ
concluded that Plaintiff did not initially meet the insured
status requirement because Plaintiff had engaged in substantial
gainful activity from November 2012 through October 2013 when he
worked full-time as a bus driver. (R. 21.) Plaintiff argued that
this was a trial work period, but the ALJ stated that Plaintiff
was not entitled to a trial work period because such a period
requires a finding that Plaintiff was disabled, which had never
previously been determined. (R. 21.) The ALJ observed, however,
that there was a continuous 12-month period when Plaintiff did
not engage in substantial gainful activity beginning in October
2013, and accordingly, determined that Plaintiff had met the
disability insured status requirements from that date only. (R.
21.)
At step two, the ALJ determined that Plaintiff had severe
medical impairments resulting from: degenerative disc disease,
diabetes mellitus, hypertension, a renal cyst, obesity, a major
depressive disorder, schizophrenia, and delusional disorder. (R.
21.)
At step three, however, the ALJ determined 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, Subpart P, App. 1. (R. 25.)
Furthermore, based on his findings the ALJ determined that
Plaintiff had the residual functional capacity (“RFC”) to
perform “medium work” as defined in 20 C.F.R. 404.1567(c). In
making these findings, the ALJ found that Plaintiff’s reported
restrictions were “not fully persuasive to the disabling extent
alleged, when considered with the totality of the medical
evidence of record.” (R. 30.)
After performing the RFC assessment, the ALJ determined
that Plaintiff was unable to perform any past relevant work
since such work exceeded his RFC, as confirmed by the vocational
expert. (R. 30.) Furthermore, the ALJ concluded that Plaintiff
was “an individual of advanced age” as of the alleged disability
onset date, had at least a high school education and was able to
communicate in English. (R. 31.)
He further determined that
transferability of job skills was immaterial to his
determination under the Medical-Vocational Rules. (R. 31.)
Then, considering Plaintiff’s age (58 years old as of the
alleged disability onset date), education, work experience, and
RFC of “medium work” as determined, in conjunction with the
Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,
Appendix 2, the ALJ found that there were jobs that existed in
the national economy that Plaintiff could perform. (R. 31.) The
ALJ further recognized that because of additional limitations,
Plaintiff did not have the ability to perform all or
substantially all of the requirements of medium level work as
directed by Medical-Vocational Rule 203.15 and 203.07. Thus, the
ALJ asked a vocational expert to determine the extent to which
the additional limitations erode the unskilled medium
occupational base as applied to Plaintiff. (R. 31.) The
vocational expert testified that given Plaintiff’s RFC factors,
Plaintiff would be able to perform the requirements of
occupations such as assembler, laundry worker, or housekeeper,
which exist in significant numbers in the national economy. (R.
31-32.) Thus, Plaintiff’s application for DIB was denied. (R.
32.)
III. DISCUSSION
A. Standard of Review
Under 42 U.S.C. § 405(g), Congress provides for judicial
review of a Commissioner’s decision to deny a complainant’s
application for Social Security benefits. Ventura v. Shalala, 55
F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold the
Commissioner’s factual decisions where they are supported by
“substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3);
Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v.
Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v. Sullivan,
970 F.2d 1178, 1182 (3d Cir. 1992). Substantial evidence means
more than “a mere scintilla.” Richardson v. Perales, 402 U.S.
389, 401 (1971)(quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). It means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” (Id.) The inquiry is not whether the reviewing
court would have made the same determination, but whether the
Commissioner’s conclusion was reasonable. See Brown v. Bowen,
845 F.2d 1211, 1213 (3d Cir. 1988).
A reviewing court has a duty to review the evidence in its
totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984).
“[A] court must ‘take into account whatever in the record fairly
detracts from its weight.’” Schonewolf v. Callahan, 972 F. Supp.
277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health
& Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
However, a district court is not “empowered to weigh the
evidence or substitute its conclusions for those of the factfinder.” Williams, 970 F.2d at 1182.
The Commissioner “must adequately explain in the record his
reasons 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)). The Third Circuit has
held that an “ALJ must review all pertinent medical evidence and
explain his conciliations and rejections.” Burnett v. Comm’r of
Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000). Similarly,
an ALJ must also consider and weigh all of the non-medical
evidence before him. Id. (citing Van Horn v. Schweiker, 717 F.2d
871, 873 (3d Cir. 1983); Cotter v. Harris, 642 F.2d 700, 707 (3d
Cir. 1981)).
The Third Circuit has held that access to the
Commissioner’s reasoning is essential to a meaningful court
review:
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). However, an
ALJ need not explicitly discuss every piece of relevant evidence
in his decision. See Fargnoli, 247 F.3d at 42.
Moreover, apart from the substantial evidence inquiry, a
reviewing court is entitled to satisfy itself that the
Commissioner arrived at his decision by application of the
proper legal standards. Sykes, 228 F.3d at 262; Friedberg v.
Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris,
508 F. Supp. 791, 793 (D.N.J. 1981).
B. Disability Defined
The Social Security Act defines “disability,” for purposes
of an individual’s entitlement to DIB and SSI benefits, as the
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Under this
definition, a plaintiff qualifies as disabled,
only if his physical or mental impairment or
impairments are of such severity that he is
not only unable to do his previous work but
cannot, considering his age, education, and
work experience, engage in any other kind of
substantial gainful work which exists in the
national economy, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy
exists for him, or whether he would be hired
if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
Substantial gainful activity is “work that - (a) involves
doing significant and productive physical or mental duties; and
(b) is done (or intended) for pay or profit.” 20 C.F.R. §
404.1510. This definition presupposes a regular, continuing, and
sustained ability to perform such work. Kangas v. Bowen, 823
F.2d 775, 778 (3d Cir. 1987).
The Commissioner has promulgated regulations that determine
disability by application of a five-step sequential analysis
codified in 20 C.F.R. § 404.1520. The Commissioner evaluates
each case, step-by-step, until a finding of “disabled” or “not
disabled” is obtained, 20 C.F.R. § 404.1520(a), summarized as
follows:
1. If the plaintiff currently is engaged in
substantial gainful employment, the plaintiff
is “not disabled.”
2. If the plaintiff does not suffer from a
“severe impairment,” the plaintiff is “not
disabled.”
3. If the severe impairment meets or equals a
listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1 and has lasted or is
expected to last for a continuous period of at
least
twelve
months,
the
plaintiff
is
“disabled.”
4. If the plaintiff can still perform work the
plaintiff has done in the past (“past relevant
work”), despite the severe impairment, the
plaintiff is “not disabled.”
5.
Finally, the Commissioner will consider
the plaintiff’s ability to perform work
(“residual
functional
capacity”),
age,
education, and past work experience to
determine whether or not the plaintiff is
capable of performing other work which exists
in the national economy. If the plaintiff is
incapable, a finding of disability will be
entered. On the other hand, if the plaintiff
can perform other work, the plaintiff will be
found to not be disabled.
See 20 C.F.R. § 404.1520(b)-(f).
C. Analysis
Plaintiff argues that the ALJ erred in his assessment of
the severity of Plaintiff’s psychological impairments by failing
to fully weigh and consider the medical evidence of record,
namely the opinion of Plaintiff’s treating physician, Dr. Simon;
finding Plaintiff less than fully credible; and failing to
analyze all evidence relating to Plaintiffs’ severe impairments
in fashioning an RFC. For reasons next explained, the Court
agrees that the ALJ erred in his assessment of Plaintiff’s
credibility and his ultimate RFC determination by (1) failing to
properly explain how Plaintiff’s repeated hospitalizations due
to his schizophrenia could be reconciled with the ALJ’s
determination that Plaintiff could perform medium work on a
regular and continuous basis; and (2) relying on reports that
Plaintiff was “stable” as indicating a reliable measure of
Plaintiff’s ability to perform medium work functions on a
regular and continuing basis, without reconciling significant
evidence to the contrary. As such the Court cannot find that the
Commissioner’s finding is supported by substantial evidence, and
the Court will remand for resolution. See Fargnoli v. Massanari,
247 F.3d 34, 42 (3d Cir. 2001) (“Where there is conflicting
probative evidence in the record, we recognize a particularly
acute need for an explanation of the reasoning behind the ALJ’s
conclusions, and will vacate or remand a case where such an
explanation is not provided.”).
The Court will consider together Plaintiff’s argument that
the ALJ failed to properly account for the true extent of
Plaintiff’s psychiatric impairments in fashioning the RFC, and
Plaintiff’s complaint that the ALJ erred in his credibility
determination of Plaintiff in regards to the severity of those
same impairments.
RFC is what a person is still able to do despite the
limitations caused by his impairments. 20 C.F.R. §§ 404.1545(a)
and 416.945. Social Security Ruling 96-8p dictates that the RFC
assessment is a “function-by-function assessment based upon all
of the relevant evidence of an individual’s ability to do work-
related activities.” SSR 96-8p (emphasis added). In order to
meet the requirements of SSR 96-8p, the ALJ “must specify the
evidence that he relied upon to support his conclusion,” Pearson
v. Barnhart, 380 F. Supp. 2d 496, 506 (2005), as well as an
explanation of “how he factored in evidence that arguably
pointed to the opposite conclusion.” Morrison ex rel. Morrison
v. Comm’r. of Social Sec., 268 Fed. Appx. 186, 187 (3d Cir.
2008); Burnett v. Comm'r, 220 F.3d 112, 119–20 (3d Cir. 2000).
While the ALJ does not need “to use particular language or
adhere to a particular format in conducting his analysis.” Jones
v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004), the ALJ findings
must be “comprehensive and analytical” and “include a statement
of subordinate factual foundations on which ultimate factual
conclusions are based.” Cotter v. Harris, 642 F.2d 700, 705 (3d
Cir. 1981) (quoting Baerga v. Richardson, 500 F.2d 309, 312 (3d
Cir. 1974), cert denied. 420 U.S. 931 (1975).
This Court agrees that the ALJ’s determination failed to
adequately explain important and recurring evidence in the
record that conflicts with his finding that Plaintiff’s
psychological impairments are “stable” and can thus perform
medium level work on a regular and continuous basis. First, the
parenthetical string cite to supporting evidence in the ALJ’s
determination, see R. 29 (“The medical evidence of record
indicates that the claimant’s schizophrenia has been in
remission and is stable,”) is by no means a “comprehensive and
analytical,” explanation as required to satisfy SSR 96-8p.
Cotter, 642 F.2d at 705. The record he cites as evidence
provides only a partial picture, failing to cite to other places
in the record that squarely contradict his ultimate conclusion
that Plaintiff’s schizophrenia is stable enough for him to
perform medium level work on a regular and continuous basis.
Second, the ALJ gave improper weight to citations in the record
where Plaintiff was found to be “stable.” (See R. 29, stating
that “the medical evidence of record indicates that the
claimant’s schizophrenia has been in remission and is stable,”
and noting that Plaintiff was “stable on Seroquel.”) The label
of “stable” is not used as a uniform measure throughout the
medical record, and is therefore not a reliable indicator of
Plaintiff’s ability to perform work functions on a regular and
continuing basis as part of his RFC assessment. Since the ALJ
does not explain or even acknowledge such discrepancies between
his findings and the medical record, the Court finds the ALJ’s
decision is not based on substantial evidence. Remand is thus
appropriate.
1. The Commissioner failed to consider all relevant medical
evidence or explain evidence he dismissed.
In coming to his conclusion that Plaintiff’s psychiatric
limitations are not as severe as Plaintiff himself reports, the
ALJ provides a parenthetical string cite to the exhibits only,
with no further explanation. The exhibits he cites, with the
Court filling in the missing descriptions, are as follows:
i.Discharge Summary from Hampton Counseling Center on
August 8, 2011, which notes that Plaintiff was “stable in
mood and thought” after a one month long intensive Adult
Partial Hospitalization Program that ran from 9:00 a.m.
to 3:00 p.m. five days a week and included participation
in group psychotherapy, psychoeducational groups,
medication education, medication management and
individual sessions. (R. 300, Ex. B6F)(emphasis added).
ii.Disability Evaluation Mental Status Examination on
November 20, 2012 by Dr. Bockacki, the psychiatrist who
evaluated Plaintiff at the request of the Commissioner.
Exam reported that Plaintiff exhibited no psychotic
symptoms and diagnosed him with “schizophrenia paranoid
type, chronic in remission.” (R. 405, Ex. B13F at 2.)
iii.Discharge Summary from Hampton Counseling Center on
February 18, 2013 that reported Plaintiff “presented as
stable in mood and thought” upon discharge from an almost
month long Adult Intensive Outpatient program that ran
three days a week from 9:00 a.m. to 12:30 p.m. and
included participation in group psychotherapy,
psychoeducational groups, medication education and
medication management. The discharge notes diagnosed him
with “schizophrenia, paranoid type” and referred him to a
psychiatrist for medication management for his
“psychosis.” (R. 413, Ex. B16F at 1.)
iv.DOT medical examination by Dr. Brahman Levy on October
15, 2013 indicating that
Plaintiff was “stable.” (R.
440, Ex. B20F at 11.)
v.Examination by Dr. Krawl, Plaintiff’s treating
psychiatrist, on October 28, 2013 reported that
Plaintiff’s schizophrenia is “stable.” (R. 446, Ex. B21F
at 2.)
vi.Examination by Dr. Krawl on November 18, 2013 noting that
after his recent discharge Plaintiff was stable. (R.
541, Ex. 24F at 5.)
The ALJ’s determination thus failed to provide a thorough
treatment of the medical record he cites (the aforementioned
exhibits) and did not provide a sufficiently reasoned
explanation for his failure to do so. “The ALJ must consider all
the evidence and give some reason for discounting the evidence
she rejects.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999)(internal citations omitted)(emphasis added). An ALJ is
required to provide “not only an expression of the evidence 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.” Cotter,
642 F.2d at 705.
In fulfilling our obligation to determine if the record is
supported by “substantial evidence,” this Court finds that the
ALJ has not considered all relevant factors and sufficiently
explained his conclusion that Plaintiff’s schizophrenia is
stable enough to permit him to perform medium-level work
functions on a regular and continuing basis. The ALJ cites only
to those exhibits, or only specific portions of an exhibit, that
bolster his conclusion, while failing to explain the evidence
that seemingly contradicts. For instance, the ALJ’s citation to
Plaintiff’s Discharge Summaries on August 8, 2011, and February
18, 2013, which stated Plaintiff was “stable in mood and
thought,” fails to address the fact that this “stability” came
after two separate month long intensive hospitalization programs
that included multiple days a week of group psychotherapy,
psychoeducational groups, medication education and management,
and individual psychotherapy sessions. (R. 300, Ex. B-6F; R.
413, Ex. B-16F.) “Citing to only portions of an exhibit while
failing to address other portions of that very exhibit that
contradict the ALJ’s findings will not suffice.” Sullivan v.
Comm. of Social Sec., No. 12-7668, 2013 WL 5973799, at *8
(D.N.J. Nov. 8, 2013). Serial bouts of schizophrenia accompanied
by psychotic episodes, interrupted by periods of hospitalization
and temporary remission of symptoms, do not support a finding of
stability on a regular and continuing basis.
Additionally, in the single paragraph he devotes to
discussing Plaintiff’s psychiatric impairments in relation to
the RFC determination, the ALJ relies almost exclusively on the
consultative exam of Dr. Bogacki. At the time of the exam,
November 12, 2012, Dr. Bogacki determined Plaintiff’s
schizophrenia was in remission, yet fewer than two months later
Plaintiff was seen at the emergency room for a “crisis
evaluation” because he was hearing voices and experiencing
increased depression and paranoia. (R. 404-405; 416.) That same
month, Plaintiff was admitted for in-patient care because of a
multi-day episode of paranoia where he reportedly believed
people were out to harm him and play tricks on him. (R. 408.)
Nowhere in his opinion does the ALJ acknowledge that such
evidence of psychological instability undermines Dr. Bogacki’s
finding that Plaintiff’s schizophrenia was in remission, or
explain how this evidence can be reconciled with the ALJ’s own
conclusion that Plaintiff’s schizophrenia is stable. “When a
conflict in the evidence exists, the ALJ may choose whom to
credit but cannot reject evidence for no reason or for the wrong
reason.” Plummer, 186 F.3d at 429; see also Landeta v. Com’r,
191 F. App’x. 105, 110 (3d Cir. 2006) (“An ALJ errs by failing
to address evidence in direct conflict with his findings.”).
Furthermore, the ALJ cites to the DOT medical examination
by Dr. Levy on October 15, 2013 indicating that Plaintiff was
“stable.” Yet the ALJ fails to address that Dr. Levy
specifically states “stable as to above 3 problems,” yet only
lists “hypertension, diabetes mellitus, [and] major depression,”
with no reference whatsoever to Plaintiff’s schizophrenia. (R.
440, Ex B-20F at p.11.) And finally, as to the last piece of
evidence in the string cite, the examination by Dr. Krawl on
November 18, 2013 noting that Plaintiff was “stable,” the ALJ
fails to acknowledge that Dr. Krawl’s subsequent notes on March
19 and April 28, 2014 diagnosing Plaintiff with “delusional
disorder” make no mention of Plaintiff being stable. (R. 537541, Ex. 24-F.) It is obvious that the ALJ has not reconciled
these critical and undisputed medical findings of ongoing
schizophrenia and psychosis with his ultimate conclusion that
Plaintiff is capable of performing medium work on a regular and
continuous basis. “While an ALJ need not cite all evidence where
such evidence is irrelevant/not probative, it is clear that he
‘may not reject pertinent or probative evidence without
explanation.’” See Sullivan, 2013 WL 5973799, at fn. 5 (citing
Johnson, 529 F.3d at 205).
2. The Commissioner gave improper weight to inconclusive
evidence without explanation
The ALJ gives exclusive weight to the record’s finding of
“stability” without reconciling the contradicting evidence that
shows a finding of “stable” is not a reliable measure of
Plaintiff’s psychological capabilities or ability to perform
gainful employment. A finding of “stable” throughout the record
is not used as a uniform measure of Plaintiff’s ability to
perform work functions on a regular and continuing basis as part
of the RFC assessment required by SSR 96-8p. Without explanation
by the ALJ, the same facts that are cited as being strong
indicators that Plaintiff’s schizophrenia was “stable,” namely,
Dr. Bogacki’s observation that Plaintiff was “oriented in time,
place, and person with normal memory, affect, insight, and
concentration,” were also reportedly present when Plaintiff was
in the midst of a psychotic episode. For instance, when
Plaintiff was hospitalized at Hampton Behavioral Center on
January 18, 2013 following a multi-day episode of paranoia that
included hearing sporadic voices, Plaintiff’s admission mental
status exam noted that he was “cooperative,” with “logical
thoughts,” and exhibited “normal thought content.” (R. 409.)
Moreover, at discharge for this same period of hospitalization,
on February 5, 2013, the discharge doctor, Dr. Trigiani,
reported Plaintiff as “stabilized” yet still noted that he
believed Plaintiff’s request to leave was “premature.” Thus
indicating that a psychiatric label of “stable” does not
necessarily carry the same fixed meaning as the ALJ grants it in
the applicable context of a sustained ability to perform gainful
employment.
This Court may not substitute its conclusions for those of
the ALJ if the latter are supported by substantial evidence and
in accordance with the governing statutes and regulations. The
ALJ should have the opportunity to consider and further develop
the record. Thus, on remand, the ALJ should address his ultimate
RFC and credibility assessments, and explain why the findings of
“stable” he cites to can be reliable measures, and provide a
more thorough treatment and explanation for doing so, or,
indeed, reach a different conclusion after such re-examination.
See Fargnoli, 247 F.3d at 43 (“Although the ALJ may weigh the
credibility of evidence, he must give some indication of the
evidence he rejects and his reason(s) for discounting that
evidence.”).
These tasks on remand are dictated by well-established
precedent. Particularly given “the special nature of proceedings
for disability benefits, [the Court] dictates extra care on the
part of the agency in developing an administrative record and in
explicitly weighing all evidence. Dobrowolsky v. Califano, 606
F.2d 403, 407 (3d Cir. 1979). It is more than just common sense
that missing extended periods of work due to psychiatric
hospitalization will surely affect one’s ability to maintain a
job on a regular and continuous basis. While it is not this
Court’s role to decide what evidence to credit, it is the
Court’s duty to demand that an ALJ “consider all the evidence
and give some reason for discounting that which [he] rejects.”
Masher v. Astrue, 354 F. Appx. 623, 627 (3d Cir. 2009)(emphasis
added). As stated in Dobrowolsky, 606 F.2d at 407.
Unless the [ALJ] 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.
While the ALJ might reach the same result on remand, a more
thorough explanation dealing with conflicting evidence is
needed.
IV.
CONCLUSION
For the reasons stated above, this Court finds that the
ALJ’s RFC determination that Plaintiff can perform medium level
work is not supported by substantial evidence. The Court will
thus vacate the decision of the ALJ and remand. An accompanying
Order will issue this date.
November 17, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
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