SANBORN v. COMMISSIONER OF SOCIAL SECURITY

Filing 18

OPINION. Signed by Judge Jerome B. Simandle on 10/25/2017. (dmr)

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

ADAM RICHARD SANBORN,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 16-4408 (JBS)

v.
COMMISSIONER OF SOCIAL
SECURITY,

OPINION

Defendant.

APPEARANCES:
Michael Joseph Brown, Esq.
WOLF & BROWN, LLC
228 Kings Highway East
Haddonfield, NJ 08033
Attorney for Plaintiff
Heather Anne Benderson, Special Assistant U.S. Attorney
Social Security Administration
300 Spring Garden Street
Philadelphia, PA 19123
Attorney for Defendant
SIMANDLE, District Judge:
I.

INTRODUCTION
This matter comes before this Court pursuant to 42 U.S.C. §

405(g) for review of the final decision of the Commissioner of
the Social Security Administration (“SSA”) denying Plaintiff
Adam Sanborn’s (“Plaintiff”) application for disability benefits
under Title XVI of the Social Security Act, 42 U.S.C. § 401, et
seq. Plaintiff, who suffers from a gunshot wound to his right

shoulder, upper extremity radiculopathy as a result of his
gunshot wound, tinnitus, post-traumatic stress disorder
(“PTSD”), and major depressive disorder, was denied benefits for
the period beginning on November 26, 2013, the alleged onset
date of disability, to November 4, 2015, the date on which the
Administrative Law Judge (“ALJ”) issued a written decision.
In the pending appeal, Plaintiff argues that the ALJ erred
by: (1) failing to provide substantial evidence in support of
the ALJ’s decision to assign little weight to the medical
opinion of Plaintiff’s treating physicians; (2) failing to
provide substantial evidence to support the ALJ’s decision to
assign little weight to the fact that Plaintiff was found to be
disabled by the Veteran’s Administration (“VA”); (3)relying
solely on the subjective statements of Plaintiff in arriving at
the conclusion that Plaintiff’s mental impairments do not meet
and/or equal the Listings in 12.04 and 12.06; and (4)failing to
comply with SSR 96-8 in assessing Plaintiff’s Residual
Functional Capacity. For the reasons that follow, and after
careful review of the entire record, the parties' submissions,
and the applicable law, this Court will remand the case for
further adjudication consistent with this Opinion.

2

II.

BACKGROUND
A.

Procedural Background

Plaintiff filed his application for Social Security
disability benefits on January 4, 2014, alleging an onset of
disability from November 26, 2013, when he was age 29. (R. at
197.) His claim was denied by the Social Security Administration
on April 24, 2014. (Id. at 21.) His claim was again denied upon
reconsideration on August 18, 2014. (Id.) Plaintiff next
testified in person in front of the ALJ on June 2, 2015. (Id.)
The ALJ issued an opinion on November 4, 2015, denying benefits.
(Id. at 39.) On May 18, 2016, the Appeals Council denied
Plaintiff’s request for review. (Id. at 1.) This appeal follows.
B.

Medical History

The following facts are relevant to the present motion.
Plaintiff was born on December 13, 1984, and is currently
thirty-two years old. (Id. at 54.) Plaintiff graduated from high
school and then served in the United States Marine Corp from
2004 to 2007. (Id. at 61.) While serving in Iraq, Plaintiff
suffered a gunshot wound to the right shoulder. (Id. at 55.)
After being honorably discharged, Plaintiff worked at a grocery
warehouse in 2008, and then as a corrections officer from 2018
to 2013. (Id. at 63, 206–07.) Plaintiff had to leave his work at
the correctional facility when his anxiety and anger became too
much. (Id. at 64.) Plaintiff testified that his anger would
3

cause him to have “real mood swings” while at work. (Id.) He
also feared that the inmates would attack him. (Id. at 66.) One
day at work, his anxiety became so strong that it led to a panic
attack. (Id. at 64.) Another day, he got into an altercation
with a prisoner and blacked out. (Id. at 65.) After the
incident, he and his supervisor argued on how to “handle the
incident.” (Id.) This led to Plaintiff feeling tightness in his
chest and “sort of hyperventilating”, he radioed for help and
passed out. (Id.) When he woke up he was taken to the emergency
room. (Id.) While working from 2012 to 2013, Plaintiff completed
a year of community college. (Id. at 59.) At his hearing before
the ALJ, Plaintiff testified that he continued to take classes
and had earned forty-eight credits. (Id. at 61.)
1.

Treatment before Plaintiff’s Disability Onset
Date (November 21, 2007–August 31, 2013)

On November 21, 2007, Dr. Rago diagnosed Plaintiff with
PTSD and assigned him a Global Assessment of Functioning (“GAF”)1
Score of 61–70. (Id. at 343.) Dr. Rago wrote in his objective
findings that there was no evidence of any major concentration
or memory disturbances, and he suspected Plaintiff would get
better and his PTSD would resolve. (Id.)

1

GAF is a numeric scale used by mental health professionals to
rate the social, occupational, and psychological functioning of
a patient. Scores range from 1 (severely impaired) to 100
(extremely high functioning).
4

Less than three months later, on March 3, 2008, Plaintiff
was seen by Dr. Dale for a fifty-minute psychotherapy session.
(Id. at 353.) During the session Dr. Dale noted that Plaintiff
was experiencing anxiety, but was able to leave the house if he
had a plan, was still maintaining relationships with friends,
especially fellow Marines, and was not experiencing symptoms of
depression. (Id.)
Eight months later, on November 30, 2009, Plaintiff was
seen by Physician Assistant Knepp who noted Plaintiff had “new
(interval) diagnosis” of worsening PTSD symptoms, insomnia, and
sleepwalking. (Id. at 324.)
On March 4, 2010, Plaintiff was seen by Dr. Aksu who noted
that Plaintiff stated he had been having more panic attacks in
public so he was isolating himself. (Id. at 314.) Plaintiff also
said he was experiencing restlessness, pacing, irritability,
nightmares, and continued sleepwalking. (Id.) Plaintiff was
diagnosed with alcohol dependence, PTSD, and was prescribed
Abilify for his anger, irritability, and agitation. (Id. at
318.)
On July 15, 2013, Plaintiff was evaluated by Dr. Vangala.
(Id. at 406.) Plaintiff’s chief complaints were feelings of
stress and anxiety, and that his PTSD symptoms were worsening.
(Id. at 403.) The doctor conducted a mental status examination
and noted that Plaintiff was dressed appropriately, alert, calm
5

and cooperative, well-oriented, had good personal hygiene,
maintained eye contact well, had regular speech, was goaloriented, and had a logical thought process and fair memory
(Id.) Dr. Vangala diagnosed Plaintiff with PTSD, work and
relocation stress, and a GAF score of 55. (Id. at 405.)
On August 31, 2013, Dr. Nwachukwa saw Plaintiff for a
follow-up appointment. (Id. at 416.) The doctor noted that
Plaintiff’s PTSD screening test was positive. (Id. at 417.) Dr.
Nwachuwka assessed that Plaintiff was acutely suicidal, but did
not find him to have suicidal plans or a history of suicide
attempts. (Id. at 415.) The doctor noted that Plaintiff already
had a follow up appointment scheduled with his behavioral health
provider, but reminded the patient of a 24 hours emergency
service number. (Id.)
2.

Medical Treatment After Plaintiff’s Disability
Onset Date (November 26, 2013)

On November 29, 2013, three days after Plaintiff’s alleged
onset date, Dr. Baker conducted a mental health clinic intake
exam on Plaintiff. (Id. at 397.) Plaintiff’s chief complaint was
that he was sent home from work because they said he was “unfit
for duty.” (Id.) He also complained of feeling angry and
irritable, both at work and at home. (Id. at 398.) Plaintiff
also reported feeling guilty, disconnected, worthless, and
having nightmares. (Id.) The doctor noted that Plaintiff was

6

well-groomed, cooperative, and friendly, and had normal speech
and a linear, logical thought process. (Id.) However, he also
noted that Plaintiff was distraught, anxious, and depressed.
(Id.) Dr. Baker’s diagnostic impression was PTSD with cooccurring symptoms of major depression, without psychosis or
suicidal ideation. (Id. at 400.)
On January 24, 2014, Plaintiff was seen for a follow up
appointment by Dr. Yocum, a clinical psychologist. (Id. at 387.)
Dr. Yocum assessed Plaintiff and found, among other things, that
Plaintiff had difficulty with attention, concentration, and
employment. (Id. at 395.) In assessing Plaintiff, Dr. Yocum
utilized the PTSD Diagnostic Criteria from the Diagnostic and
Statistical Manual of Mental Disorders (DSM-5).2 (Id. at 383.)
After marking the indicator under each Criterion that were
attributable, the doctor diagnosed Plaintiff with PTSD. (Id. at
383.)
Dr. Yocum next assessed Plaintiff’s mental status. (Id. at
385.) The doctor noted that Plaintiff was neatly and casually

2

The DSM-5 is “the handbook used by healthcare professionals in
the United States and much of the world as the authoritative
guide to the diagnosis of mental disorders. DSM contains
descriptions, symptoms, and other criteria for diagnosing
medical disorders.” DSM-5 Frequently Asked Questions, AMERICAN
PSYCHIATRIC ASSOCIATION,
https://www.psychiatry.org/psychiatrists/practice/dsm/feedbackand-questions/frequently-asked-questions (last visited Oct. 11,
2017).
7

dressed, well-groomed, and oriented to person, place, and thing.
(Id.) The doctor further opined that Plaintiff’s thought process
was logical and goal-directed, appropriate, and there was no
evidence of hallucinations. (Id. at 386.) However, the doctor
also noted that Plaintiff’s mood was depressed, his judgement
was impaired, and he had suicidal ideation without a plan or
intent. (Id.)
In addition to his PTSD diagnosis, Dr. Yocum remarked that
Plaintiff met the diagnostic criterion for Major Depressive
Disorder, which is secondary to his PTSD. (Id. at 386.) The
doctor also noted that Plaintiff’s symptoms had slightly
worsened since his evaluation by Dr. Baker on December 27, 2013.
(Id. at 386.) Under “Current Diagnosis,” Dr. Yocum stated that
“Veteran is diagnosed with PTSD and depression. These diagnoses
result in symptoms that are active and independent. All symptoms
work in conjunction to impact social and occupational
functioning. It is impossible to fully differentiae what portion
of impairments are attributable to each diagnosis.” (Id. at
389.) In regard to Plaintiff’s unemployment, Dr. Yocum stated:
Veteran’s irritability and outbursts of anger alienates
others. His panic abruptly removes him from others and
causes him to withdraw and avoid social interactions. His
feeling “on guard” with others can impede his ability to
form good working relationships. The overall effects of
these symptoms are impairments in his ability to work
cooperatively with peers, management and with the public.

8

(Id. at 395.) In regard to Plaintiff’s attention and
concentration, Dr. Yocum stated:
Veteran has many symptoms that interfere with attention,
concentration, memory and problem-solving. He has intense
internal and external cues which cause his psychological
distress. His hypervigilance and his flashbacks all impede
his attention and concentrations. These symptoms impair his
ability to understand and follow instructions, retain
instructions, and communicate effectively.
(Id.) Finally, in regard to motivation and drive, Dr. Yocum
wrote “[Plaintiff’s] flashbacks and lack of energy impair [his]
ability to maintain task persistence, to arrive at work on time,
and to work a regular schedule without excessive absences to a
severe extent.” (Id.)
On March 20, 2015,3 Plaintiff was examined by Dr. Guttin.
(Id. at 481.) Plaintiff informed the doctor that he had not
worked in fifteen months and had not been leaving the house.
(Id.) Despite his lack of work and his poor sleep quality,
Plaintiff did note that his wife was a good support for him and
their relationship was doing well. (Id.) The nursing note for
the visit stated that Plaintiff took a PHQ-2 and screened
positive for depression. (Id. at 484.) The note also indicated
that Plaintiff took little interest or pleasure in doing things
and felt down, depressed, or hopeless nearly every day. (Id.)

3

Plaintiff received no medical or mental health treatment from
January 2014 to March 2015.
9

Five days later, on Match 25, 2015, Plaintiff was seen by a
licensed clinical social worker, Ms. Sarsingh. (Id. at 475.)
During the examination Plaintiff was administered assessments.
(Id.) The first assessment, a PHQ-9 for Patient Health, resulted
in a score of 24, which indicates severe depressive symptoms,
including, but not limited to, hopelessness, low energy, and
trouble concentrating. (Id. at 476.) The second assessment, a
GAD-7 for Generalized Anxiety Disorder, resulted in a score of
21, which indicates severe symptoms of anxiety. (Id. at 478.)
Finally, a PCL-F assessment to measure PTSD symptoms was
conducted and Plaintiff scored 58/80. (Id. at 477.)
On April 27, 2015, Dr. Baye examined Plaintiff. (Id. at
469.) Plaintiff explained that he was feeling overwhelmed and
having anger management issues. (Id. at 470.) Plaintiff
described an incident with his neighbor where the neighbor
banged on the floor while Plaintiff was walking across it
causing Plaintiff to bang on her apartment door and scream at
her. (Id.) Dr. Baye noted Plaintiff’s mood to be “depressed and
stressed out,” but also noted that his thought process was
linear, goal directed, and future oriented. (Id. at 470.) The
doctor assed plaintiff with PTSD and insomnia. (Id.)
On April 29, 2015, Dr. Nola, a clinical psychologist and
one of Plaintiff’s treating physicians at the VA, conducted a
mental health examination. (Id. at 461.) According to the
10

medical records, Plaintiff’s “symptoms were addressed and his
diagnosis was reported utilizing the DSM-5.” (Id. at 469.) Dr.
Nola diagnosed Plaintiff with PTSD and Major Depressive Disorder
recurrent with anxious distress (secondary to PTSD.) (Id.) The
doctor reported that the following symptoms actively applied to
Plaintiff’s diagnosis: depressed mood, anxiety, suspiciousness,
panic attacks that occur weekly or less often, chronic sleep
impairment, mild memory loss, such as forgetting names,
directions or recent events, flattened affect, disturbances of
motivation and mood, difficulty in establishing and maintaining
effective work and social relationships, difficulty in adapting
to stressful circumstances, including work or a work-like
setting, and impaired impulse control, such as unprovoked
irritability with periods of violence. (Id. at 467.)
Dr. Nola also noted behavioral observations for Plaintiff
being “oriented times four,” able to maintain good eye contact,
and having clear and goal directed thought processes. (Id.)
However, in regard to employment, considering Plaintiff’s mental
health condition, the doctor wrote “it is this writer’s clinical
opinion that [Plaintiff’s] symptoms impair his ability to focus,
concentrate and be able to work collaborative[ly] with others.
His symptoms severely impair his ability to cope with stress,
tolerate disagreements, and he is prone to becoming overwhelmed
easily. His anxiety impacts his motivation and [] would result
11

in him missing significant time from work. He has difficulties
with being able to complete his work on time and deadline[s]
would only worsen his ability to engage in work assignments.”
(Id. at 469.) In the end, Dr. Nola noted that Plaintiff’s
impairments would affect both sedentary and physical employment.
(Id.)
3.

State Agency Consultants

On April 21, 2014, Dr. Warren, a state agency psychologist,
reviewed Plaintiff’s medical records and found that he had an
affective disorder and an anxiety disorder. (Id. at 112.) The
doctor explained that those impairments would cause a mild
restriction in activities of daily living, moderate difficulties
in maintaining social function, moderate difficulties in
maintaining concentration, persistence, or pace, and no episodes
of decomposition. (Id.)
On June 2, 2015, during Plaintiff’s hearing in front of the
ALJ, the ALJ heard testimony from a Vocational Expert (“VE”).
(Id. at 92.) The ALJ asked the VE if there was any work in the
national economy for Plaintiff given the following parameters.
First, the ALJ asked the VE to take into account
Plaintiff’s age, education, and past jobs; assume he is limited
to light work as defined under the DOT but cannot climb ropes,
ladders or scaffold; assume he cannot perform more than
occasional overhead lifting and reaching, and requires low
12

stress (routine work that does not involve a fast production
rate pace, or strict production quotas); assume he can
understand remember and carry out simple instructions consistent
with unskilled work; and assume Plaintiff can have no
interaction with the public and no more than occasional
interaction with coworkers and supervisors. (Id. at 92–93.)
Given these parameters, the VE found that Plaintiff could be a
night cleaner (light exertional level) with national job numbers
of 878,000, an inserting machine operation (light exertional
level) with national job numbers of 115,000, or a checker (light
exertional level) with national job numbers of 68,000. (Id. at
93.)
Next, the ALJ asked the VE to assume the same facts as
above, but to also limit Plaintiff to sedentary work. (Id. at
93–94.) The VE responded that Plaintiff could be a document
preparer, which has 38,000 national jobs, an addresser with
96,000 jobs, or a semi-conductor monitor with 20,000 jobs. (Id.
at 94.)
Finally, the ALJ asked the VE to assume the same facts as
above, but Plaintiff is off task 10% of the time, and then
assume 11-15% of the time. (Id. at 95.) The VE responded that
Plaintiff could be off task 10% of the time but if he is off
task more than 10% he could not perform any jobs in the national
economy. (Id.)
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C.

ALJ Decision

In a written decision dated November 4, 2015, the ALJ
determined that Plaintiff was not disabled within the meaning of
the Social Security Act from November 26, 2013, through the date
of her decision. (Id. at 21.)
Using the five-step sequential evaluation process, the ALJ
determined at step one that Plaintiff had not engaged in any
substantial gainful activity since November 26, 2013, the
alleged onset date of disability. (Id. at 23.)
At step two, the ALJ determined that Plaintiff had severe
impairments of post-traumatic stress disorder, major depressive
disorder, tinnitus, and gunshot wound to the right upper
extremity muscle. (Id. at 24.)
Next, at step three, the ALJ did not find that Plaintiff’s
impairments met the severity of one of the impairments listed in
Appendix 1. (Id.) Specifically, in considering whether
Plaintiff’s impairments reached the level of severity of a
listed Affective Disorder, 12.04, or an Anxiety-Related
Disorder, 12.06, the ALJ explained that the impairments did not
meet the “paragraph B” criteria because they were not marked
limitation (more than moderate but less than severe) nor
repeated episodes of decomposition (three episodes within 1
year). (Id. at 25.) The ALJ supported her findings by relying on
Plaintiff’s ability to attend school, take care of his children,
14

attend church, go to the grocery store, and cook meals. (Id.)
The ALJ noted generally that the medical evidence supported her
finding and that no treating physician mentioned findings
equivalent in severity to criteria of the listed impairments.
(Id. at 26.) Finally, the ALJ mentioned that she considered the
opinion of the state agency medical consultant who reached the
same determination as the ALJ. (Id.)
For steps three and four the ALJ needed to determine
Plaintiff’s Residual Functional Capacity (“RFC”). The ALJ found
that Plaintiff had the RFC to perform a full range of light work
except that he could not climb ropes, ladders, or scaffold, he
could only occasionally perform overload lifting and reaching,
he would require low stress work, he could understand, remember,
and carry out simple tasks consistent with unskilled work, he
could have no interaction with the public, and only occasional
interaction with coworkers and supervisors, and finally, he
would be off task 5% of the workday in addition to normal
breaks. (Id. at 27.)
Based on Plaintiff’s RFC and testimony from a vocational
expert, the ALJ found, at step four, that Plaintiff was unable
to perform any past relevant work. (Id. at 37.) However, at step
five, the ALJ found that there exists a significant number of
jobs in the national economy that Plaintiff can perform. (Id. at
38.)
15

III. STANDARD OF REVIEW
The Court has jurisdiction to review the Commissioner’s
final decision pursuant to 42 U.S.C. § 405(g). When reviewing
the denial of disability benefits, the Court must determine
whether substantial evidence supports the denial. See Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Comm’r of
Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008). The requirement of
substantial evidence, however, constitutes a deferential
standard of review, see Jones v. Barnhart, 364 F.3d 501, 503 (3d
Cir. 2004), and does not require “a large or [even] considerable
amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 564
(1988). Rather, substantial evidence requires “more than a mere
scintilla[,]” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999), but generally less than a preponderance. See Jones, 364
F.3d at 503. Consequently, substantial evidence supports the
Commissioner’s determination where a “reasonable mind might
accept the relevant evidence as adequate” to support the
conclusion reached by the Commissioner. Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999).
The ALJ must set out a specific factual basis for each
finding. See Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974),
cert. denied, 420 U.S. 931 (1975). Additionally, the ALJ “must
adequately explain in the record [the] reasons for rejecting or
16

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)), and must review all pertinent medical and
nonmedical evidence “and explain his conciliations and
rejections,” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d
112, 122 (3d Cir. 2000.) However, the ALJ need not discuss
“every tidbit of evidence included in the record.” Hur v.
Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004). Rather, the ALJ
must set forth sufficient findings to satisfy the reviewing
court that the ALJ arrived at a decision through application of
the proper legal standards, and upon a complete review of the
relevant factual record. See Friedberg v. Schweiker, 721 F.2d
445, 447 (3d Cir. 1983).
IV.

DISCUSSION
A.

Legal Standard for Determination of Disability

To be eligible for Social Security disability insurance
benefits, a claimant must have a “medically determinable
physical or mental impairment” that prevents him from engaging
in any “substantial gainful activity” for a continuous twelvemonth period. 42 U.S.C. § 1382c(a)(3)(A); Plummer, 186 F.3d at
427. A claimant lacks the ability to engage in any substantial
gainful activity “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,
17

and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 42 U.S.C. §
1382c(a)(3)(B); Plummer, 186 F.3d at 427-28.
The Commissioner reviews disability claims in accordance
with a five-step process set forth in 20 C.F.R. § 404.1520. In
step one, the Commissioner must determine whether the claimant
is currently engaged in “substantial gainful activity.” 20
C.F.R. § 1520(b). If the answer is yes, the disability claim
will be denied. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a “severe impairment,” defined as an
impairment “which significantly limits [the claimant’s] physical
or mental ability to do basic work activities.” 20 C.F.R. §
1520(c). A claimant who cannot claim a “severe” impairment is
ineligible for benefits. Plummer, 186 F.3d at 428.
Step three requires the Commissioner to compare the medical
evidence of the claimant’s impairment to a list of impairments
presumed severe enough to preclude any gainful activity. 20
C.F.R. § 1520(d). If a claimant suffers from a listed impairment
or its equivalent, he is approved for disability benefits and
the analysis stops. If he does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps
four and five to determine whether he retains the ability to

18

engage in substantial gainful activity. Plummer, 186 F.3d at
428.
The Commissioner conducts a residual functional capacity
(“RFC”) assessment at steps four and five.

The RFC assessment

considers all of the claimant’s medically determinable
impairments and determines the most the claimant can still do
despite his limitations. 20 C.F.R. § 404.1545(a)(1)-(2). The RFC
is expressed in terms of physical exertional levels of
sedentary, light, medium, heavy, or very heavy work. 20 C.F.R. §
416.967 (2002). Based on the claimant’s RFC, the Commissioner
determines, at step four, whether the claimant can perform the
physical exertion requirements of his past relevant work. 20
C.F.R. § 404.1520(f). If he is unable to resume his former
occupation, the Commissioner will then proceed to the final step
and decide whether the claimant is capable of performing other
work existing in significant numbers in the national economy,
taking into account his RFC and vocational factors such as age,
education, and work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c).
In the final step, step five, the ALJ relies on the
Medical-Vocational Guidelines (“Guidelines” or “Grids”) set
forth in 20 C.F.R. Part 404, Subpart P, Appendix 2, which
establish the types and number of jobs that exist in the
national economy for claimants with certain exertional
19

impairments. The 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.” Sykes v. Apfel, 228 F.3d 259, 273 (3d
Cir. 2000). If no jobs exist given Plaintiff’s RFC, he will be
found disabled.
B.

Weight the ALJ assigned to Plaintiff’s Treating
Physicians and VA

Plaintiff argues that the ALJ erred in determining his RFC
because the ALJ did not give enough weight to Plaintiff’s
treating physicians and the disability determination by the VA.
(Pl. Br. at 31–39.)
SSR 96-8p dictates that the RFC assessment is a “functionby-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.” SSR
96-8p.

In order to meet the requirements of SSR 96-8p, the ALJ

“must specify the evidence that he relied upon to support his
conclusion.” Sullivan v. Comm’r of Soc. Sec., No. 12-7668, 2013
WL 5973799, at *8 (D.N.J. Nov. 8, 2013). Moreover, the ALJ’s
finding of residual functional capacity must be “accompanied by
a clear and satisfactory explanation of the basis on which it
rests.” Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2011)
(quoting Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 2011)).

20

1.

Treating physicians

It is well established that “the ALJ - not treating or
examining physicians or State agency consultants - must make the
ultimate disability and RFC determinations.” Chandler v. Comm'r
of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (citing 20 C.F.R.
§§ 404.1527(e)(1), 404.1546(c).)4 Furthermore, while an ALJ must
consider the opinions of treating physicians, “[t]he law is
clear . . . that the opinion of a treating physician does not
bind the ALJ on the issue of functional capacity” where it is
not well supported or there is contradictory evidence. Chandler,
667 F.3d at 361 (alteration in original) (quoting Brown v.
Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)); see also Coleman
v. Comm'r. of Soc. Sec. Admin., 494 F. App’x 252, 254 (3d Cir.
2012) (“Where, as here, the opinion of a treating physician
conflicts with that of a non-treating, non-examining physician,
the ALJ may choose whom to credit but cannot reject evidence for
no reason or for the wrong reason.”) (quoting Morales v. Apfel,
225 F.3d 310, 317 (3d Cir. 2000)). On the other hand, treating
physicians’ reports “should be accorded great weight, especially
‘when their opinions reflect expert judgment based on a
continuing observation of the patient’s condition over a
prolonged period of time.’” Plummer, 186 F.3d at 429.

4

“A claimant’s RFC is ‘the most [he] can still do despite [his]
limitations.’” 20 C.F.R. § 416.945(a)(1).
21

When a conflict in the evidence exists, the ALJ retains
significant discretion in deciding whom to credit. Id. The ALJ
is entitled to weigh all evidence in making its finding, and is
not required to accept the opinion of any medical expert. Brown
v. Astrue, 649 F.3d 193, 196 (3d Cir. 2011.) For an ALJ to
assign a treating physician “little weight”, however, the ALJ
must point to other medical evidence in the record that
contradicts the physician, Coleman v. Comm’r. of Soc. Sec.
Admin., 494 F. App’x 252, 254 (3d Cir. 2012.) and give a clear
explanation for why she is discounting the medical evidence.
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999); Cotter v.
Harris, 642 F.2d 700, 704-05 (3d Cir. 1981).
Thus, if a treating source’s medical opinion on the issue
of the nature and severity of Plaintiff’s impairments is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other
substantial evidence in the case record, it will be given
controlling weight. 20 C.F.R. § 404.1527(c)(2). Diagnostic
techniques include psychological tests. Revisions to Rules
Regarding Evaluation of Medical Evidence, 82 FR 5844-01.
However, pursuant to SSR 96-2p, if the ALJ finds that the
treating source's opinion is not well-supported, that “means
only that the opinion is not entitled to ‘controlling weight,’
not that the opinion should be rejected. Treating source medical
22

opinions are still entitled to deference and must be weighed
using all the factors provided in 20 CFR 404.1527 and 416.927.”
These factors include the examining relationship, the treatment
relationship (the length of the treatment relationship, the
frequency of examination, and the nature and extent of the
treatment relationship), supportability, consistency, and
specialization. See 20 C.F.R. § 404.1527(c)(1)-(5).
a.

The ALJ erred in assigning little weight to
Plaintiff’s treating physician, Dr. Yocum

Plaintiff claims that the ALJ mistakenly assigned little
weight to Dr. Yocum’s medical opinion. (Pl. Br. at 32.)
Specifically, Plaintiff argues that when assigning little weight
to Dr. Yocum’s opinion, the ALJ (1) erred in supporting her
assignment of weight upon the reasoning that Dr. Yocum failed to
provide clinical evidence to support the doctor’s medical
opinion and instead the ALJ’s opinion appeared to be based
solely on Plaintiff’s subjective complaints, and (2) failed to
specifically point to other medical evidence in the record that
supports the assignment of little weight. (Pl. Br. at 33–34.)
i.

The ALJ failed to consider Dr. Yocum’s
diagnostic technique when determining that
the doctor did not provide clinical evidence
to support her medial opinion

In her opinion, the ALJ acknowledged that Dr. Yocum’s
medical opinion was suggestive of Plaintiff having “an inability
to perform several basic work-related activities on a sustained
23

basis.” (R. at 31.) However, the ALJ decided to afford Dr.
Yocum’s opinion little weight because she believed the doctor
failed to provide any clinical evidence to support the doctor’s
medical opinion, and instead based the opinion solely on
Plaintiff’s subjective complaints. (Id.)
The ALJ states that Dr. Yocum failed to provide clinical
evidence, but the regulation requires that a treating
physician’s medical opinion must be supported by “medically
acceptable clinical and laboratory diagnostic techniques,” not
necessarily clinical “evidence.” 20 C.F.R. § 404.1527(c)(2). The
record reflects that in assessing Plaintiff, Dr. Yocum, a
clinical psychologist, utilized the PTSD Diagnostic Criteria
from the DSM-5. (R. at 383.) The DSM-5 is the authoritative
guide for healthcare professionals in diagnosing mental
disorders. See supra note 2. Thus, since the DSM-5 is one of the
most commonly used diagnostic techniques for mental disorders,
and Dr. Yocum utilized the DSM-5 in diagnosing Plaintiff, the
ALJ erred when she concluded that Dr. Yocum did not provide
evidence to support the doctor’s medical diagnosis and opinion.
Dr. Yocum applied the medically acceptable clinical technique of
utilizing the DSM-5 criterion in evaluating Plaintiff’s medical
condition.
ii.

The ALJ did not sufficiently show that Dr.
Yocum’s opinion was inconsistent with other
substantial evidence in the record
24

In her opinion, the ALJ gave one sentence describing what
she felt was evidence that contradicted Dr. Yocum’s opinion. (R.
at. 31.) The ALJ explained that the opinion was “contrary to the
claimant’s demonstrated ability of attending college on a fulltime basis for the Fall of 2013 and Spring of 2014, and
achieving successful results, including making the Dean’s
Listings in the Spring of 2014.” (Id.) The ALJ did not point to
any medical evidence to contradict Dr. Yocum. (Id.) The
Commissioner argues that if the ALJ’s record is read as a whole,
the ALJ used Dr. Baker’s observation of Plaintiff’s linear
thought process and Dr. Nola’s observation that Plaintiff was
goal oriented and had a clear thought process to contradict Dr.
Yocum’s opinion. (Def. Br. at 17-18.) This Court disagrees. It
is well established that when an ALJ discounts evidence the
judge must “give a clear explanation” for that decision.
Plummer, 186 F.3d at 429. The opinion is not clear that the ALJ
wanted to use Dr. Baker and Dr. Nola’s findings, that the ALJ
did mention in determining Plaintiff’s RFC, to discount Dr.
Yocum’s opinion. This Court asks the ALJ to re-evaluate her
discounting of Dr. Yocum’s medical opinion.
b.

The ALJ erred in assigning little weight to
Plaintiff’s treating physician, Dr. Nola

In her opinion, the ALJ gave a much more in-depth analysis
for assigning little weight to Dr. Nola than she did for Dr.
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Yocum. (R. at 34.) The ALJ again reasoned that Dr. Nola’s
opinion was based on claimant’s subjective complaints and not
supported by preponderance of the record. (Id.)
i.

The ALJ failed to consider Dr. Nola’s
diagnostic technique when determining that
the doctor’s opinion was based on
Plaintiff’s subjective complaints

In addition to finding that Dr. Nola’s opinion was based on
only Plaintiff’s subjective complaints, the ALJ took issue with
the fact that Dr. Nola did not conduct a mental status exam on
Plaintiff’s “concentration, persistence, and pace.” (Id. at 34.)
Though Dr. Nola did not conduct a mental status exam he
did, similar to Dr. Yocum, utilize the DSM-5 in diagnosing
Plaintiff and coming to the conclusion that Plaintiff’s
impairments would affect both sedentary and physical employment.
(Id. at 469.) Therefore, this court finds again that since the
DSM-5 is one of the most commonly used diagnostic techniques for
mental disorders, and Dr. Nola utilized the DSM-5 in diagnosing
Plaintiff, the ALJ erred when she concluded that Dr. Nola’s
opinion was based solely on Plaintiff’s subjective complaints.
ii.

The ALJ did not sufficiently show that Dr.
Nola’s opinion was contrary to other medical
evidence in the record

In holding that Dr. Nola’s medical findings were not
supported “by the preponderance of the record” the ALJ only
pointed to Dr. Baye’s mental health outpatient note as evidence

26

of contradictory medical evidence. (Id. at 34.) In his notes,
Dr. Baye found Plaintiff’s mood to be “depressed and stressed
out,” but also noticed that Plaintiff’s thought process was
“linear, goal directed, and future oriented;” and assessed
Plaintiff with PTSD and insomnia. (Id. at 470.) The ALJ lists no
other medical evidence that contradicts Dr. Nola. (Id. at 34.)
In explaining his conclusion that Plaintiff’s impairments
would affect employment, Dr. Nola stated that Plaintiff’s
symptoms impair his ability to focus, concentrate, and work
collaboratively with others, and that Plaintiff’s symptoms
severely impair his ability to cope with stress and tolerate
disagreements, and that he is prone to becoming overwhelmed
easily. (Id. at 469.) He further found that Plaintiff’s anxiety
impacts his motivation and would result in his missing of
significant time from work. (Id.) Finally, Dr. Nola explained
that Plaintiff would have difficulties in completing his work on
time and deadlines would only worsen his ability to engage in
work assignments. (Id.) It was for all these reasons that Dr.
Nola found Plaintiff’s employment to be limited.
Dr. Nola found Plaintiff’s employment limited by his
impairments. Because it appears the ALJ may have overlooked
significant aspects of Dr. Nola’s findings, this Court asks the
ALJ to re-evaluate the weight she assigns to Dr. Nola’s medical
opinion.
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2.

The ALJ did not error in assigning little weight to
the VA’s determination that Plaintiff was disabled

In her opinion, the ALJ gave little weight to the VA’s
finding that Plaintiff is disabled. (Id. at 36.) The ALJ
explained that the ultimate issue of disability is a
medical/vocational determination reserved for the Social
Security Commissioner. (Id.) Furthermore, the ALJ reasoned that
the VA’s standards for determining disability were substantially
different than the SSA. (Id.) The ALJ gave the example that the
VA does not address an individual’s ability to perform alternate
forms of employment, so they would find Plaintiff disabled even
when the SSR determines that Plaintiff’s RFC makes him eligible
for a wide range of light work. (Id.)
Plaintiff argues that the ALJ did not identify any medical
evidence to contradict the fact that Plaintiff was found
disabled by the VA, and, thus, the VA’s disability determination
should be entitled to greater weight because it was supported by
substantial evidence in the record. (Pl. Br. at 39–40.)
Decisions by other governmental or nongovernmental agencies
of a claimant’s disability are not binding on the ALJ. 20 C.F.R.
§§ 404.1504. However, even if the ALJ disagrees with the
agency’s decision the ALJ must consider the decision. SSR 06-3p.
The ALJ is not required to present conflicting medical evidence
to an agency decision, she is simply required to “consider” the
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agency’s decision. (Id.) “Consider” is defined as providing an
explanation sufficient for a subsequent reviewer to follow the
ALJ’s reasoning. (Id.)
In this case, the ALJ did explain why she gave the VA’s
determination little weight. The ALJ explained that the standard
for determining disability at the VA is different than the
standard at the SSR. (R. at 36.) The ALJ gave the example that
at the VA the Complainant does not need to be totally disabled
to be classified as disabled, where for the SSR Plaintiff needs
to be fully disabled. (Id.) Thus, the ALJ properly “considered”
the VA’s finding that Plaintiff is disabled and was within her
authority to assign the VA’s finding little weight.
C.

The ALJ Needs to Reconsider Plaintiff’s Mental
Impairments

Plaintiff argues that the ALJ committed reversible error at
Step 3 of the five-step process by improperly relying solely on
Plaintiff’s subjective statements and testimony to reach her
finding that Plaintiff’s mental impairments do not meet and/or
equal the Listings 12.04 and 12.06. (Pl. Br. at 22.)
As discussed above, if the ALJ determined that Plaintiff’s
mental impairments equaled one of the 12.00 listings then she
would have found Plaintiff to be disabled. 20 C.F.R. §
404.1520(d). At issue in this case are Listing 12.04
(depressive, bipolar, and related disorders) and Listing 12.06

29

(anxiety and obsessive-compulsive disorders). 20 C.F.R. § 404,
Subpt. P, App.1. Plaintiff bears the burden of establishing
entitlement to disability. 20 C.F.R. 404.1512(a). In order for
Plaintiff to show that he meets one of the listed impairments
under Section 12.00, and thus is entitled to disability, he must
prove all of the elements of the listing he is claiming.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). To prove that he
meets listings 12.04 and 12.06, Plaintiff must show that the
severity of his impairments either meets or is medically
equivalent to either the “A” criteria and “B” criteria, or the
“A” criteria and “C” criteria. 20 C.F.R. § 404, Subpt. P, App. 1
(hereinafter “Listings”). The ALJ found that Plaintiff met the
“A” criteria for both listings, but not those for “B” or “C”.
(R. at 25–26.) Plaintiff does not contest that he does not meet
the “C” criteria, but argues that the ALJ erred in not finding
that he meets the “B” criteria. (Pl. Br. at 22–30.)
The “B” criteria are identical for 12.04 and 12.06.
Listings. There are four “areas of mental functioning” listed
under “B.” (Id.)5 They are: 1) understand, remember, or apply
information;6 2) interact with others;7 3) concentrate, persist,

5

The name of the four areas of mental functioning listed in the
regulation under “B” criteria changed between the time the ALJ
wrote her opinion and the time this opinion is being written.
6 Replaced, “repeated episodes of decomposition.”
7 Formally, “maintain social functioning.”
30

or maintain pace;8 and 4) adapt or manage oneself.9 (Id.) To
satisfy the “B” criteria, Plaintiff must show that he has
extreme limitation in one of the four areas given, or marked
limitations in two of the areas. (Id.) Plaintiff has an extreme
limitation if he is “not able to function in this area” on a
sustained basis, and a marked limitation if his functioning in
this area is “seriously limited.” (Id.)
The ALJ did not find Plaintiff’s impairments to meet the
severity of the impairments listed in Appendix 1. (Id. at 24.)
The ALJ supported her finding by relying on Plaintiff’s ability
to attend school, take care of his children, attend church, go
to the grocery store, and cook meals. (Id. at 25.) The ALJ noted
that no treating physician mentioned findings equivalent in
severity to the criteria of the listed impairments. (Id. at 26.)
This Court disagrees. Plaintiff’s treating physicians, Dr.
Yocum and Dr. Nola, both recorded impairments of Plaintiff that
possibly reached the severity of the listed impairments. See id.
at 387–95, 461–69. However, since the ALJ improperly assigned
“little weight” to both treating physicians, their opinions were
not correctly considered. This court requires that after the ALJ
re-determine the weight that should be assigned to Plaintiff’s
treating physicians, the ALJ go back to step 3 and re-determine

8
9

Did not change.
Formally, “activities of daily living.”
31

if Plaintiff’s medical impairments meet Listing 12.04 or Listing
12.06 in Appendix 1, and proceed accordingly.
V. CONCLUSION
For the reasons stated above, this Court will vacate the
ALJ’s decision and remand the case for further consideration in
light of this decision. The accompanying Order is entered.

October 25, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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