RAMOS v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Robert B. Kugler on 8/7/2017. (dmr)

NOT FOR PUBLICATION

(Doc. No. 1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

INOCENCIA RAMOS,
Plaintiff
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendants.

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Civil No. 15-8771 (RBK)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court upon the appeal of Inocencia Ramos (“Plaintiff”) for
review of the final determination of the Commissioner of Social Security (“Commissioner”). The
Commissioner denied her application for Supplement Security Income (“SSI”) under Title XVI
of the Social Security Act and Child’s Insurance Benefits (“CIB”) under Title II of the Social
Security Act. For the reasons set forth below, the decision of the Commissioner is VACATED
and the Court will remand this matter to the Administrative Law Judge (“ALJ”) for further
proceedings consistent with this Opinion.
I. BACKGROUND
Plaintiff protectively filed a claim for SSI and CIB benefits on December 12, 2011 for the
alleged physical and mental ailments detailed below. Record (“Rec.”) at 18 (Doc. No. 7-2).
Plaintiff’s claims were initially denied on July 5, 2012 and denied after reconsideration on
December 14, 2012, after which she requested a hearing before an ALJ that was held on
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February 4, 2014. Id. The ALJ denied Plaintiff’s claims on August 29, 2014. Id. at 15. The
Appeals Council denied Plaintiff’s request for review on October 30, 2015, and the ALJ’s
determination became the final decision of the Commissioner. Id. at 1-3. Plaintiff filed the
instant Complaint on December 21, 2015. (Doc. No. 1)
A. Plaintiff’s Alleged Impairments
For background purposes, a brief medical history of Plaintiff’s ailments follows. Plaintiff
initially alleged that she suffered from diabetes, juvenile arthritis, depression, and anxiety. Rec.
at 125 (Doc. No. 7-3). She left school in eighth grade, and testified that while there she was in a
separate classroom consistent with special education. Id. at 45. She has never lived by herself
and is cared for by her family. Rec. at 56-57. She has never worked. Id. at 78. Plaintiff claims
that her anxiety and depression worsened after her mother’s death in 2009, which she said in
2012 still felt “like it happened yesterday.” Id. at 360 (Doc. No. 7-6). She alleges difficulty in
following directions, memory, and concentration. Id. at 66-67, 358. She claims to hear whispers
and see shadows. Id. at 71. She has been hospitalized several times for her diabetes, and she has
had a spotty history of complying with diabetes treatment. Id. at 24. She relies on her family to
help her remember to take her insulin. Id. at 57. She alleges that she can only stand for thirty
minutes at a time before she experiences sharp leg pain. Id. at 60-61.
Plaintiff was first admitted to Nueva Vida Behavioral Health Center on February 1, 2010,
where she was diagnosed with depressive disorder, diabetes, and “family problems” and assigned
a GAF score of 50. Id. at 555, 560 (Doc. No. 7-8). Plaintiff visited Nueva Vida for more than
seventy treatment sessions between February 2010 and December 2013. See id. at 639-41 (Doc.
No. 7-9). Notes from these sessions indicate that Plaintiff was consistently anxious and
depressed, though not to such a degree as to limit her ability to participate in the treatment

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session. See id. at 570-637. Nueva Vida also crafted and regularly updated treatment plans for
Plaintiff, though these records are largely illegible. See id. at 561-69. Though the signature of the
therapist who performed these sessions is likewise illegible, Plaintiff’s treatment was overseen
by Dr. Lyda Monte, who also managed Plaintiff’s medications. See id. at 426-36 (Doc. No. 7-7).
Over the same period from 2010 to 2013, Dr. Monte filled out New Jersey state forms certifying
Plaintiff’s disability. See id. at 642-66. On these forms, Dr. Monte indicated that Plaintiff’s
primary diagnosis was “depressive disorder NOS,” while also noting that she suffered from
anxiety, depression, sleep disturbances, socialization problems, a bad temper, and poor
concentration and memory. E.g., id. at 644-45. Dr. Monte did not mention any of Plaintiff’s
physical disabilities, nor did she check the box indicating that Plaintiff suffered from a disability
attributable to “Mental Retardation-IQ.” E.g., id. at 644. On May 7, 2014, Dr. Monte filled out
the Social Security Administration’s Medical Source Statement form on behalf of Plaintiff. Id. at
687-89. Dr. Monte indicated that Plaintiff suffered from marked impairments, defined as “a
serious limitation” that causes “a substantial loss of the ability to effectively function,” in
Plaintiff’s ability to understand and remember simple instructions, make judgments on simple
work-related decisions, carry out complex instructions, respond appropriately to usual work
situations and changes in a routine work setting, and interact appropriately with supervisors,
coworkers, and the public. Id. at 687-88. Dr. Monte also found that Plaintiff was moderately
impaired, defined as a “more than slight limitation” that nonetheless allowed satisfactory
function, in her ability to carry out simple instructions, and understand and remember complex
instructions. Id. at 687. To support these judgments, Dr. Monte cited Plaintiff’s depressive
disorder, anxiety, poor concentration, socialization problems, social phobia, and bad temper. Id.
at 687-88.

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Plaintiff received several consultative examinations during her Social Security
proceedings, including one from Dr. Lewis Lazarus on May 25, 2012. Id. at 25-26. Dr. Lazarus
noted that Plaintiff was well-groomed, cooperative, and alert and oriented in all spheres. Id. at
440. However, Plaintiff reported suffering from excessive worry, hopelessness, inability to sleep,
and other signs indicative of depression and anxiety. Id. at 440. Plaintiff was slouched, restless,
and crying, with a depressed affect. Id. at 440. Dr. Lazarus noted that Plaintiff did not seem to
fully understand the reason for the examination. Id. Plaintiff struggled with several different tests
of memory and concentration. Id. Dr. Lazarus estimated that Plaintiff’s intellectual function was
in the borderline range. Id. Dr. Lazarus diagnosed Plaintiff with learning disorder NOS, recurrent
severe major depressive episodes without psychotic features, generalized anxiety disorder,
insulin-dependent diabetes, and problems regarding her family, educational, and vocational
function. Id. at 441. Dr. Lazarus also provided a rule-out diagnosis of borderline intellectual
function and estimated Plaintiff GAF at 45. Id. Dr. Lazarus indicated that he did not believe
Plaintiff was “a viable candidate for a vocational assessment and rehabilitation at this time due to
her profound mood disorder and generally unstable emotional status.” Id.
B. The ALJ’s Decision
The Social Security Act defines disability as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 423(d)(1)(A). The ALJ used the established five-step evaluation process to
determine if Plaintiff was disabled. See 20 C.F.R. § 404.1520. For the first four steps of the
evaluation process, the claimant has the burden of establishing her disability by a preponderance
of the evidence. Zirnsak v. Colvin, 777 F.3d 607, 611-12 (3d Cir. 2014). First, the claimant must

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show that she was not engaged in “substantial gainful activity” for the relevant time period. See
20 C.F.R. § 404.1572 (defining “substantial gainful activity”). Second, the claimant must
demonstrate that she has a “severe medically determinable physical or mental impairment” that
lasted for a continuous period of at least 12 months. See 20 C.F.R. § 404.1520(a)(4)(ii)
(explaining second step); 20 C.F.R. § 404.1509 (setting forth the duration requirement). Third,
either the claimant shows that her condition was one of the Commissioner’s listed impairments,
and therefore she is disabled and entitled to benefits, or the analysis proceeds to step four. 20
C.F.R. § 404.1520(a)(4)(iii) (explaining the third step); see also 20 C.F.R. pt. 404, subpt. P., app.
1. Fourth, if the condition is not equivalent to a listed impairment, the claimant must show that
she cannot perform her past work, and the ALJ must assess the claimant’s residual functional
capacity (“RFC”). 20 C.F.R. § 404.1520(a)(4)(iv) (explaining the fourth step); 20 C.F.R. § 404.
1520(e) (same). If the claimant meets her burden, the burden shifts to the Commissioner for the
last step. Zirnsak, 777 F.3d at 612. At the fifth and last step, the Commissioner must establish
that other available work exists that the claimant is capable of performing based on her RFC,
age, education, and work experience. Id.; 20 C.F.R. § 404.1520 (a)(4)(v) (explaining the fifth
step). If the claimant can make “an adjustment to other work,” she is not disabled. See 20 C.F.R.
§ 404.1520(a)(4)(v).
At step one, the ALJ determined that Plaintiff did not engage in substantial gainful
activity after December 2, 2009. Rec. at 20. At step two, the ALJ found that Plaintiff had the
severe impairments of type I diabetes mellitus; major depressive disorder; anxiety disorder;
bipolar disorder; and learning disorder, not otherwise specified. Id. The ALJ also considered
Plaintiff’s allegations of diabetic neuropathy and rheumatoid arthritis, but found that these
conditions were not supported by the medical evidence and determined them to be nonsevere. Id.

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at 21. At step three, the ALJ noted that Plaintiff did not suffer from one of the listed impairments
that would render her automatically disabled. Id. at 21. At step four, the ALJ found that
Plaintiff’s impairments were not equivalent to any listed impairment, and that while she had no
past relevant work, she had the RFC to perform sedentary work with some limitations.1 Id. at 2122, 27. At step five, the ALJ found that there were a significant number of jobs in the national
economy that Plaintiff was qualified to perform based on her RFC, age, education, and work
experience. Id. at 27. Accordingly, the ALJ concluded that Plaintiff was not disabled during the
relevant time period. Id. at 28.
II. STANDARD OF REVIEW
When reviewing the Commissioner’s final decision, this Court is limited to determining
whether the decision was supported by substantial evidence, after reviewing the administrative
record as a whole. Zirnsak, 777 F.3d at 610 (citing 42 U.S.C. § 405(g)). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000). The often-used quotation for the standard is
that substantial evidence is “more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” See, e.g., Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.
2005). Courts may not set aside the Commissioner’s decision if it is supported by substantial
evidence, even if this court “would have decided the factual inquiry differently.” Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001).

1. The ALJ found that Plaintiff had the RFC to
perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she
would be limited to performing simple tasks. The claimant would be limited to low stress
work, defined as work that is routine and would not involve strict production quotas. She
is able to understand, remember, and carry out simple instructions. The claimant could
have no more than occasional interaction with the public. She would be off-task 5% of
the workday in addition to normal breaks.
Rec. at 22.
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When reviewing a matter of this type, this Court must be wary of treating the
determination of substantial evidence as a “self-executing formula for adjudication.” Kent v.
Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). This Court must set aside the Commissioner’s
decision if it did not take into account the entire record or failed to resolve an evidentiary
conflict. See Schonewolf v. Callahan, 927 F. Supp. 277, 284-85 (D.N.J. 1997) (citing Gober v.
Matthews, 574 F.2d 772, 776 (3d Cir. 1978)). Evidence is not substantial if “it really constitutes
not evidence but mere conclusion,” or if the ALJ “ignores, or fails to resolve, a conflict created
by countervailing evidence.” Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153
(3d Cir. 1983) (citing Kent, 710 F.2d at 114). A district court’s review of a final determination is
a “qualitative exercise without which our review of social security disability cases ceases to be
merely deferential and becomes instead a sham.” Kent, 710 F.2d at 114.
III. DISCUSSION
The ALJ determined that Plaintiff was not disabled within the meaning of sections 223(d)
and 1614(a)(3)(A) of the Social Security Act. Plaintiff presents four arguments on appeal of the
Commissioner’s final decision: first, that the ALJ should have obtained formal intelligence and
achievement testing for Plaintiff; second, that the ALJ should have included borderline
intellectual functioning among Plaintiff’s impairments; third, that the ALJ improperly assigned
little weight to agency examiner Dr. Lazarus’s opinion on Plaintiff’s ability to participate in
vocational rehabilitation; and fourth, that the ALJ improperly assigned little weight to treating
physician Dr. Monte’s opinion regarding Plaintiff’s mental limitations. The Court addresses each
argument in turn.

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A. Formal Intelligence and Achievement Testing
Plaintiff argues that the ALJ erred by not ordering formal intelligence testing after Dr.
Lazarus’s rule-out diagnosis of borderline intellectual functioning. Pl.’s Br. at 6-7 (Doc. No. 12).
Generally, a claimant has the burden to allege and prove the existence of a claimed impairment.
42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1512(a), 416.912(a). Because of the non-adversarial
nature of Social Security disability proceedings, the ALJ also has a responsibility to develop the
record fully. See Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). An ALJ must consider all
impairments which a claimant alleges or for which the ALJ receives evidence. 20 C.F.R.
§ 404.1512(a). However, the ALJ has discretion over whether to order additional tests or
examinations, and need only do so when the existing medical evidence is insufficient to make a
determination of disability. See 20 C.F.R. § 404.1519a(b); Johnson v. Comm’r of Soc. Sec., 529
F.3d 198, 205 (3d Cir. 2008). “[T]he ALJ's duty to develop the record does not require a
consultative examination unless the claimant establishes that such an examination is necessary to
enable the ALJ to make the disability decision.” Thompson v. Halter, 45 F. App’x 146 (3d Cir.
2002) (citing 20 C.F.R. §§ 404.1517, 416.917; Turner v. Califano, 563 F.2d 669, 671 (5th Cir.
1977)). While an ALJ may not reject probative evidence without explanation, the ALJ need not
cite specific reasons for implicitly rejecting evidence which is irrelevant or discounted by other
evidence in the record. See Johnson, 529 F.3d at 204-05.
Plaintiff does not allege that she suffers from borderline intellectual function.2 At her
hearing, she testified regarding her special education program, difficulties in reading and math,
and trouble following instructions. See Rec. at 45, 51-53, 67. However, these impairments are

2. Plaintiff’s counsel argues that a person with borderline intellectual function is neither capable
of nor responsible for knowing that she suffers from borderline intellectual function. Pl.’s Reply
Br. at 4. This does not alleviate Plaintiff’s legal burden, assisted by competent counsel, of
proving the existence and extent of her impairments.
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consistent with the learning disorder NOS and other mental impairments the ALJ found and are
not, by themselves, specific evidence of borderline intellectual functioning.
Furthermore, Dr. Lazarus’s rule-out diagnosis of borderline intellectual functioning did
not obligate the ALJ to order intelligence testing for Plaintiff. The ALJ possessed and considered
ample evidence regarding Plaintiff’s mental impairments and capabilities, including several
consultative examinations. See id. at 23-27. Dr. Lazarus’s diagnosis itself was of a provisional
character.3 See id. at 440-41. Further, the ALJ had sufficient evidence to conclude that his
diagnosis is not supported by Plaintiff’s extensive records from Nueva Vida and the opinion of
her treating physician, Dr. Monte, none of which indicate that Plaintiff’s intellectual function
was in the borderline range.4 See id. at 555-666, 687-89. Given the tenuousness of Dr. Lazarus’s
diagnosis and its lack of support elsewhere in the record, the ALJ’s discretionary decision not to
order intelligence testing was supported by substantial evidence.
Plaintiff also argues that the ALJ should have ordered achievement testing to precisely
determine Plaintiff’s ability to read and write. Pl.’s Br. at 8. Plaintiff does not cite any authority
requiring the ALJ to augment the evidence in the record with such testing. The ALJ relied on
evidence in the record of Plaintiff’s difficulties in school and during consultative examinations to
determine that Plaintiff suffered from a severe learning disorder. See Rec. at 20-21, 23, 25-26.

3. A “rule-out” diagnosis indicates that “there is reason to suspect” that the patient has the
condition but that “the doctor would not be comfortable giving such a diagnosis at that time”
without additional evidence. United States v. Grape, 549 F.3d 591, 593 n.2 (3d Cir. 2008).
4. Plaintiff’s therapist at Nueva Vida wrote “deferred” in the Axis II diagnosis category where
Dr. Lazarus reported Plaintiff’s rule-out borderline intellectual function. See Rec. at 428, 561-69.
Plaintiff correctly points out that Dr. Monte was not treating her for borderline intellectual
function, which is an inherent and untreatable cognitive deficiency. Pl.’s Reply Br. at 4 (Doc.
No. 15). However, when Dr. Monte was asked to estimate Plaintiff’s overall mental capabilities,
she made no mention of borderline function or a similar intellectual disability. See Rec. at 68788. On New Jersey state disability forms with a checkbox for “Mental Retardation-IQ”, Dr.
Monte consistently left this box blank. See, e.g., id. at 642, 651, 657.
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This evidence was sufficient for the ALJ to make her determination, and there is no conflicting
evidence which an additional consultative examination might help resolve. Therefore, the ALJ’s
decision not to order achievement testing for Plaintiff was supported by substantial evidence and
must be affirmed.
Even if the ALJ erred in failing to order additional testing, Plaintiff has not shown how
her failure to do so was harmful. Plaintiff, as the party seeking to overturn an administrative
decision, bears the burden of demonstrating harm from an alleged error. Holloman v. Comm’r of
Soc. Sec., 639 F. App’x 810, 814 (3d Cir. 2016) (citing Shinseki v. Sanders, 556 U.S. 396, 409
(2009)); see also Rutherford, 399 F.3d at 553 (requiring a claimant to specify how an ALJ’s
alleged failure to consider an additional impairment would have affected the ALJ’s analysis or
final determination). Plaintiff argues that, because the ALJ failed to order intelligence testing,
she did not consider Plaintiff’s borderline intellectual functioning in combination with her other
impairments as required by 20 C.F.R. § 404.1523. Pl.’s Br. at 8. This is essentially a restatement
of the alleged error, not an explanation of the harm. Plaintiff similarly fails to adequately allege
harm arising from the ALJ’s decision not to order achievement testing, stating only that the
testing would have “delineate[d] with precision Ms. Ramos’s actual ability to read and write.” Id.
at 9. Even accepting her arguments that the ALJ should have ordered more testing, Plaintiff has
failed to articulate how the ALJ’s decision might have been altered had she done so. Therefore,
Plaintiff has not shown sufficient grounds for remand on that basis. See Holloman, 639 F. App’x
at 814 (“[Plaintiff’s] assertion entirely sidesteps the question, which is how [Plaintiff] might have
prevailed . . . if the ALJ’s analysis had been more thorough. [Plaintiff] offers no answer to that
question and therefore no basis for us to remand the case to the ALJ.”) (emphasis in original)
(citing Rutherford, 399 F.3d at 553).

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B. Consideration of Borderline Intellectual Functioning
Plaintiff also argues that the ALJ erred by not specifically evaluating Dr. Lazarus’s ruleout diagnosis of borderline intellectual functioning in her decision. This claim is similar to her
claim that Dr. Lazarus’s diagnosis obligated the ALJ to order additional intelligence testing, and
fails for the same reasons. Generally, an ALJ “must consider all the evidence in the record and
give some reason for discounting the evidence she rejects.” Plummer v. Apfel, 186 F.3d 422, 429
(3d Cir. 1999). When crafting the RFC, the ALJ must ensure that it reflects the totality of a
claimant’s credibly established limitations, whether severe or non-severe. See 20 C.F.R.
404.1523(c); Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 147 (3d Cir. 2007) (citing Burnett
v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000)) (noting that “the ALJ need only
include in the RFC those limitations he finds to be credible.”). However, an ALJ need not cite
every piece of evidence a claimant presents, and is entitled to implicitly reject evidence which is
irrelevant to her decision or overwhelmingly contradicted by other evidence in the record, so
long as her decision is still supported by substantial evidence. See Johnson, 529 F.3d at 204.
Plaintiff bears the burden of demonstrating how the ALJ’s consideration of an additional
condition would have altered the ALJ’s analysis or determination.5 See Rutherford, 399 F.3d at
553.
The facts of Rutherford are particularly instructive for Plaintiff’s case. In Rutherford, the
plaintiff argued that the ALJ had failed to consider her obesity in combination with her other
impairments. Id. at 552. The claimant had not listed obesity as one of her impairments during her
disability proceedings, though her weight as recorded in her medical records could be fairly

5. When an ALJ finds that a claimant suffers from severe impairments and allows her analysis to
proceed past Step Two, failure to consider some other alleged impairment at Step Two is
harmless and cannot itself be a basis for remand. Salles, 229 F. App’x at 145 n.2.
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construed to put the ALJ on notice that she was overweight. Id. at 553. The claimant did not
allege that her obesity caused any freestanding limitations, but rather asserted that it made the
effects of her other impairments more severe. Id. Applicable regulations required the ALJ to
include consideration of a claimant’s obesity at various points throughout the process, and the
ALJ had failed to explicitly do so. Id. at 552. Nevertheless, the Third Circuit affirmed the ALJ’s
omission, noting that the plaintiff had failed to articulate how the ALJ’s decision regarding her
other impairments might have been different had the ALJ considered her obesity. Id. at 553.
Importantly, the Third Circuit also found that, because the plaintiff’s obesity was obvious to her
medical providers and served mainly to aggravate her other impairments, its effects on the
plaintiff’s capabilities were already incorporated in their records. Id. The ALJ had relied on these
records when considering the plaintiff’s case and determining the RFC, and the Third Circuit
found that this was “a satisfactory if indirect consideration of that condition.” Id.
Here, Plaintiff does not allege that she suffers from borderline intellectual functioning.
Despite hundreds of pages of records from examining and treating physicians, this diagnosis is
expressed only tentatively in Dr. Lazarus’s report. Id. at 441. The ALJ’s determination included
extensive discussion of the evidence from Plaintiff’s physicians, including Dr. Lazarus. Id. at 2527. As with the claimant’s obesity in Rutherford, every one of the numerous physicians who
evaluated Plaintiff’s mental impairments necessarily considered her cognitive capabilities; only
Dr. Lazarus attached the label of borderline intellectual function. Furthermore, Plaintiff has made
no showing of harm from the ALJ’s omission, nor has she explained how the ALJ’s
determination might have been different had the ALJ considered Plaintiff’s borderline
intellectual function. Instead, Plaintiff asserts the legal conclusion that the ALJ failed to consider
all of Plaintiff’s ailments in combination as evidence of harm. See Pl.’s Br. at 10-11; Pl.’s Reply

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Br. at 9. In a case concerned almost entirely with Plaintiff’s mental impairments, Plaintiff’s
failure to suggest what additional limitations her alleged borderline intellectual function might
impose speaks volumes. Plaintiff is correct that borderline intellectual function is a medically
determinable impairment. Pl.’s Br. at 7. However, as with the claimant’s obesity in Rutherford,
the limitations that might be imposed by Plaintiff’s purported cognitive deficit are included in
Plaintiff’s other impairments which form the basis for the ALJ’s determination. In Plaintiff’s
RFC, the ALJ limited Plaintiff to simple, routine, low-stress tasks and carrying out simple
instructions with only occasional interaction with the public. Rec. at 22. Given the absence of
supporting evidence and without a more specific showing of harm from Plaintiff, this Court
cannot find that the ALJ’s failure to discuss Dr. Lazarus’s diagnosis is remandable error. 
C. Consideration of Dr. Lazarus’s Vocational Rehabilitation Opinion
Third, Plaintiff claims that the ALJ failed to appropriately evaluate Dr. Lazarus’s opinion
that Plaintiff “[did] not appear to be a viable candidate for a vocational assessment and
rehabilitation at this time due to her profound mood disorder and generally unstable emotional
status.” Id. at 441. Plaintiff argues that a person who cannot even participate in a vocational
assessment and rehabilitation program cannot plausibly perform sustained work. Pl.’s Br. at 12.
A claimant’s final disability determination is an administrative finding, not a medical one. The
opinions of even treating physicians on a claimant’s ability to work are not binding on the ALJ.
20 C.F.R. § 404.1527(d)(1). However, even though a physician’s opinion on a claimant’s ability
to work does not bind the ALJ, it still “must never be ignored.” SSR 96-5p, 1996 WL 374183 at
*3 (July 2, 1996).
Here, though the ALJ failed to evaluate Dr. Lazarus’s opinion, Plaintiff has not shown
how the error was harmful. The only harm Plaintiff articulates—that the ALJ should have found

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Plaintiff disabled as a result of Dr. Lazarus’s opinion—is explicitly precluded by 20 C.F.R.
section 404.1527(d)(1). As a result, this Court cannot remand on this basis. However, because
this case will be remanded for reasons explained below, the ALJ should explain her evaluation of
Dr. Lazarus’s opinion more thoroughly.
D. Dr. Monte’s Opinion
Finally, Plaintiff claims that the ALJ improperly rejected the opinion of her treating
physician, Dr. Monte. The Court agrees. The ALJ is responsible for assigning weight to the
medical opinions of record. See 20 C.F.R. § 404.1527. The ALJ must, however, “explain the
basis for his or her conclusions.” Fargnoli, 247 F.3d at 42. If evidence is rejected, “an
explanation from the ALJ of the reason why probative evidence has been rejected is required so
that a reviewing court can determine whether the reasons for rejection were improper.” Cotter v.
Harris, 642 F.2d 700, 711 (3d Cir. 1981). The explanation need not be comprehensive; “in most
cases, a sentence or short paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481,
482 (3d Cir. 1981).
In general, opinions from treating sources receive more weight because they are most
likely to be able to provide a “detailed, longitudinal picture of [a claimant’s] medical
impairment(s)” and “unique perspective to the medical evidence.” 20 C.F.R. § 404.1527(c)(2). If
an opinion from a treating physician is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and not inconsistent with other substantial evidence in the
record, the opinion is accorded controlling weight. Id. If not, the ALJ determines how much
weight to assign the opinion based on the length of the treatment relationship, frequency of
examination, nature and extent of the treatment relationship, level of evidentiary support,
consistency with the record, specialization of the physician, and other factors. See 20 C.F.R.

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§ 404.1527(c). The ALJ may assign more or less weight to a treating physician’s opinion
“depending upon the extent to which supporting explanations are provided.” Plummer, 186 F.3d
at 429 (citations omitted). However, an ALJ “cannot reject evidence for no reason or the wrong
reason.” Id. (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)). Furthermore, an
ALJ may only reject a treating physician’s assessment outright in the face of contradictory
medical evidence, and may not do so based on “speculative inferences from medical reports” or
“credibility judgments, speculation, or lay opinion.” Morales, 225 F.3d at 317 (citations
omitted).
The ALJ in this case mentions several pieces of evidence from Nueva Vida and
Plaintiff’s treating physician Dr. Monte, assigning each little or no weight. Rec. at 26-27. These
include the New Jersey state disability forms (assigned no weight because they were unsupported
by narrative descriptions and included no limitations), Dr. Monte’s May 2014 Medical Source
Statement (given little weight because it purportedly conflicted with the Nueva Vida treatment
notes, and with Plaintiff’s activities of daily living), and the treatment notes themselves (given
little weight because they purportedly lacked objective clinical findings and remained stable with
little variation over four years). Id.
Given the heightened weight generally afforded to the opinions of treating physicians,
this Court cannot find that the ALJ’s stated reasons for discounting Dr. Monte’s opinions and
notes are supported by substantial evidence. First, the ALJ mischaracterizes the level of
descriptiveness on the New Jersey forms, which include diagnoses of “depressive disorder NOS”
and mention, to take one example, that Plaintiff has “socialization problems,” a “bad temper,”
displays “aggressive behavior,” and “reports feeling depressed, normal anxiety levels, sleep
disturbances [sic].” Id. at 642-43. Furthermore, the forms are an assessment from a treating

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physician which cannot be rejected without contradictory medical evidence, which the ALJ does
not cite. More concerning is the ALJ’s stated rationale for discounting the Nueva Vida treatment
notes and Dr. Monte’s Medical Source Statement. The ALJ does not explain why the treatment
notes’ stability over time makes them less trustworthy. The Court presumes that this line of
thought infers that the observations contained within the treatment notes, including diagnoses,
assessments, and GAF scores, were mere boilerplate language and not genuine clinical findings.
This is precisely the kind of “speculative inference from medical reports” the Third Circuit
prohibits an ALJ from using to impeach a treating physician’s opinion. Morales, 225 F.3d at 317.
It is also unclear to this Court how Plaintiff’s ability to drive or get along with her family negate
Dr. Monte’s opinion that a person with “socialization problems, social phobia, bad temper [sic]”
suffers from marked impairments in her ability to get along with others in a competitive work
setting, even a low-stress one. Rec. at 688. Accordingly, this Court finds that the ALJ did not
give appropriate consideration to Dr. Monte’s opinion as a treating physician.6
Plaintiff has also adequately shown harm from the ALJ’s treatment of Dr. Monte’s
opinion. Plaintiff cites SSR 85-15, which indicates that a “substantial loss of ability” 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 . . . would justify a finding of disability.” Pl.’s Br. at 16 (citing SSR 85-15, 1985 WL
56857 (Jan. 1, 1985)). Dr. Monte found that Plaintiff suffered marked impairments, defined as “a
substantial loss in the ability to effectively function,” in her ability to understand and remember
simple instructions; to interact appropriately with the public, supervisors, and coworkers; and to

6. The Court agrees, however, with the ALJ’s determination that Plaintiff’s complaints
suggestive of an additional psychotic disorder are not supported by medical evidence in the
record. Rec. at 27.
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respond appropriately to changes in a routine work setting. Rec. at 688. Unlike Dr. Lazarus’s
conclusion that Plaintiff was ineligible for vocational rehabilitation, Dr. Monte’s finding of
marked impairments is a medical opinion, not an opinion on Plaintiff’s disability per se.
Nonetheless, each of these findings would, if credited, have justified a finding of disability by the
ALJ under SSR 85-15. Accordingly, the ALJ’s improper discounting of this opinion was harmful
and justifies remand to the ALJ for further consideration.
IV.

CONCLUSION
For the reasons discussed above, the decision of the Commissioner is VACATED and

the Court will remand this matter to the ALJ for further proceedings consistent with this Opinion.

Dated: _08/07/2017__

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

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