MAY v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Renee Marie Bumb on 5/31/2019. (dmr)

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

NICHELLE VONDA MAY,
Plaintiff,

Civil No. 18-6145(RMB)
v.

OPINION

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
SIRAGUSA LAW FIRM LLC
By: Lynette Siragusa, Esq.
62 Grove Street
Somerville, New Jersey 08876
Counsel for Plaintiff Nichelle Vonda May
SOCIAL SECURITY ADMINISTRATION, OFFICE OF GENERAL COUNSEL
By: Katie M. Gaughan, Special Assistant U.S. Attorney
300 Spring Garden Street
Philadelphia, Pennsylvania 19123
Counsel for Commissioner of Social Security

RENÉE MARIE BUMB, United States District Judge:
This matter comes before the Court upon an appeal by
Plaintiff Nichelle Vonda May (the “Plaintiff”) of the final
determination of the Commissioner of Social Security (the
“Commissioner”) denying Plaintiff’s application for social
security disability benefits.

For the reasons set forth below,

the Court will VACATE the decision of the Administrative Law
Judge (the “ALJ”) and REMAND for proceedings consistent with
this Opinion.

I.

PROCEDURAL HISTORY
On May 19, 2015, Plaintiff filed an application for

supplemental security income pursuant to Title XVI of the Social
Security Act (the “Act”).

In her application, Plaintiff alleges

disability, beginning November 9, 2014, based on severe major
depressive disorder with psychotic features.

Plaintiff also

allegedly suffers from posttraumatic stress disorder (“PTSD”),
anxiety, and has a history of substance abuse.

Plaintiff’s

claim was initially denied on September 10, 2015, and again
denied upon reconsideration on February 16, 2016. [Record of
Proceedings (“R.P.”) at 13].

On August 23, 2017, Plaintiff

testified at a formal hearing before Administrative Law Judge
Lisa Hibner.

At the hearing, Plaintiff was represented by her

attorney, Lynette Siragusa.

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On October 26, 2017, the ALJ issued a decision denying
Plaintiff’s claim for benefits, based on the ALJ’s determination
that “there are a significant number of jobs in the national
economy which the claimant could perform.” [R.P. at 31]. The
Appeals Council denied Plaintiff’s request for review on
February 16, 2018, rendering the ALJ’s decision as final. [R.P.
at 2-4].

Plaintiff now appeals the Commissioner’s final

determination for this Court’s review.

II.

STANDARD OF REVIEW
When reviewing a final decision of an ALJ with regard to

disability benefits, a court must uphold the ALJ’s factual
decisions if they are supported by “substantial evidence.” Knepp
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§ 405(g),
1383(c)(3). “Substantial evidence” means “‘more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971)(quoting Cons. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); Plummer v. Apfel, 186 F.3d 422,
427 (3d Cir. 1999).
In addition to the “substantial evidence” inquiry, the
court must also determine whether the ALJ applied the correct
legal standards. See Friedberg v. Schweiker, 721 F.2d 445, 447
(3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.

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2000). The Court’s review of legal issues is plenary. Sykes, 228
F.3d at 262 (citing Schaudeck v. Comm’r of Soc. Sec., 181 F.3d
429, 431 (3d Cir. 1999)).
The Social Security Act defines “disability” as the
inability “to engage in any substantial gainful activity by
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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot, considering
his age, education, and work experience, engage 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).
The Commissioner has promulgated a five-step,
sequential analysis for evaluating a claimant’s disability,
as outlined in 20 C.F.R. § 404.1520(a)(4)(i-v). In Plummer,
186 F.3d at 428, the Third Circuit described the
Commissioner’s inquiry at each step of this analysis:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § 1520(a). If a claimant is found to
be engaged in substantial activity, the disability claim
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will be denied. Bowen v. Yuckert, 482 U.S. 137, 140
(1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show that
[his] impairments are “severe,” she is ineligible for
disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant’s impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform her past relevant work. 20 C.F.R. § 404.1520(d).
The claimant bears the burden of demonstrating an
inability to return to her past relevant work. Adorno v.
Shalala, 40 F.3d 43, 46 (3d Cir. 1994). If the claimant
is unable to resume her former occupation, the
evaluation moves to the final step.
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R. § 404.1520(f).
The ALJ must show there are other jobs existing in
significant numbers in the national economy which the
claimant can perform, consistent with her medical
impairments, age, education, past work experience, and
residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant’s impairments in
determining whether she is capable of performing work
and is not disabled. See 20 C.F.R. § 404.1523. The ALJ
will often seek the assistance of a vocational expert at
this fifth step. See Podedworny v. Harris, 745 F.2d 210,
218 (3d Cir. 1984).

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III. FACTUAL BACKGROUND
The Court recites only the facts that are necessary to its
determination on appeal, which is narrow.

Plaintiff is a 51

year-old female, but was 46 years old on the alleged disability
onset date and 49 years old at the time of her hearing before
the ALJ.

Plaintiff attended some high school, but neither

graduated nor earned a GED.

Aside from two brief stints as a

security guard and cashier in the early 2000s, Plaintiff has no
work experience, let alone past relevant experience.
Plaintiff testified at the administrative hearing that many
of her issues date back to her youth.

Plaintiff was born to a

16 year-old single mother and was mostly raised by her
grandmother.

According to Plaintiff, her mother is emotionally,

and sometimes physically, abusive.

Plaintiff also has a son,

however, she lost custody of him and he was living with
Plaintiff’s mother at the time of the administrative hearing.

A.

Plaintiff’s Medical History and Testimony

As alleged in Plaintiff’s application for benefits,
Plaintiff suffers from a variety of mental impairments,
including major depressive disorder, substance abuse disorder
(allegedly in remission), anxiety, and PTSD.

Plaintiff’s

medical records and testimony also indicate a history of

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auditory hallucinations, self harm (cutting), and suicide
attempts.
Plaintiff’s substance abuse disorder relates to past use of
crack cocaine, marijuana, and alcohol.

According to Plaintiff,

she has struggled with addiction since a neighbor introduced her
to crack cocaine as a teenager.

Despite Plaintiff’s claim that

her substance abuse disorder was in remission, Plaintiff
admitted that she had relapsed and used crack cocaine less than
a month before her administrative hearing.
Plaintiff sought mental health treatment in November 2014,
when she was admitted to AtlantiCare Regional Medical Center for
a psychiatric intervention after a suicidal episode.

At the

time of that episode, Plaintiff had recently relapsed and used
crack cocaine after returning from an out-of-state drug
rehabilitation program. [R.P. at 384]. Since 2014, Plaintiff has
been treated for her depression and substance abuse through
AtlantiCare Behavioral Health Providence House (“Providence
House”) and Adult Intervention Services.

Generally, Plaintiff

must attend treatment at least 3 days per week, totaling 15-20
hours.
Plaintiff’s medical records indicate that her treatment has
been plagued by drug relapses and poor attendance.

However,

Plaintiff reportedly made progress after she moved into
“collaborative supportive housing,” provided through Providence
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House.

Plaintiff made further progress after she signed an

“attendance/behavior contract” with her treatment team, in which
she agreed to regularly attend and participate in her treatment
program.
Although Plaintiff made progress under the structure of her
new housing arrangement and the attendance contract, Plaintiff
continued to struggle with her mental illness.

In June 2017,

Plaintiff engaged in a verbal altercation with another group
member at treatment.

At various times, Plaintiff appeared

“uninterested during groups,” as evidenced by “falling asleep,
eye rolling and inappropriate laughing at group discussion.”
[R.P. at 595]. In July 2017, Plaintiff once again relapsed and
used crack cocaine.
On August 17, 2017, Dr. Lizbeth Smith, DrNP, of the Acute
Partial Care Program, completed an evaluation of Plaintiff’s
mental impairments. [R.P. at 603].

Dr. Smith observed that

despite medication and supportive psychotherapy, Plaintiff
continued to display persistent symptoms, such as depressed
mood, feelings of guilt or worthlessness, difficulty
concentrating and thinking, distractibility, restlessness,
irritability, and involvement in activities with a high
probability of painful consequences. [R.P. at 604-605]. Dr.
Smith evaluated Plaintiff’s psychological residual functional
capacity and found that she had marked limitations in
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concentrating, persisting, or maintaining pace and adapting or
managing herself, and moderate limitations in interacting with
others and understanding, remembering, and applying information.
[R.P. at 606].

According to Dr. Smith, Plaintiff would be

unable to complete a normal workday and workweek without
interruptions from psychologically based symptoms. [R.P. at
605].

B.

The ALJ’s Decision

In her decision, the ALJ concluded that Plaintiff was not
disabled, as defined in the Social Security Act, from her
alleged onset date through the date of the ALJ’s decision.

The

ALJ found that Plaintiff suffers from severe impairments, but
determined that she was not disabled under the Act.
At Step One of the sequential analysis the ALJ determined
that Plaintiff had not engaged in substantial gainful activity
since the application date of May 19, 2015. [R.P. at 22].

At

Step Two, the ALJ determined that Plaintiff’s severe impairments
were “a major depressive disorder, and a substance abuse
disorder, allegedly in remission.” [Id.].
At Step Three the ALJ determined that Plaintiff did not
have an impairment that meets or is medically equivalent to the
severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

Specifically, noting that “when

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Plaintiff worked at treatment, her symptoms tended to be
controlled,” the ALJ found that Plaintiff’s impairments did not
met the severity set forth in paragraphs B or C in section 12.00
of Appendix 1.
At Step Four, the ALJ determined as follows: that the
Plaintiff:
“After careful consideration of the entire
record, the undersigned finds that claimant has
the residual functional capacity to perform
medium
work,
but
with
the
following
nonexertional limitations: she is limited to
work involving only simple, routine tasks. She
is limited to low stress jobs, defined as having
only occasional decision making and only
occasional changes in the work setting. She can
do work which requires occasional judgment on
the job. Finally, she can occasionally interact
with co-workers and supervisors, and never
interact with the public.
[R.P. at 24]. In making this decision, the ALJ
considered “all symptoms to the extent to which these
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.” [R.P. at
25]. Significantly, the ALJ found that when Plaintiff
worked at treatment, “her symptoms tended to be controlled
and she made statements like ‘Everything is going well’ and
‘everything is good’ with ‘no concerns.’” [R.P. at
29](internal citations omitted).

Although the ALJ noted

that various medical providers had opined that Plaintiff
was disabled, the ALJ found Plaintiff’s “activities of
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daily living entirely consistent with an ability to perform
unskilled, low stress work.”

home from work was merely a

‘preference.’” [R.P. at 30].
At Step Five, based on testimony from a vocational
expert, the ALJ found that Plaintiff could perform a
variety of jobs that exist in significant numbers in the
national economy, such as a compression molding machine
tender, a bench press operator, or a bonder (semiconductors). [R.P. at 30-31].

IV.

DISCUSSION
On appeal, Plaintiff argues that the ALJ’s disability

determination is not supported by substantial evidence because
the ALJ failed to adequately consider the restrictions imposed
by the mechanics of treatment and Plaintiff’s need for a
structured living environment.

Plaintiff also argues that the

ALJ failed to adequately explain her reasoning for rejecting the
evaluation by Dr. Smith, one of Plaintiff’s treating physicians.
This Court agrees with Plaintiff.
First, Plaintiff argues that ALJ’s RFC determination failed
to consider whether Plaintiff’s living environment and treatment
program would allow her to engage in work on a “regular and
continuing basis.”

Indeed, as outlined in SSR 96-8, an RFC

assesses “an individual’s ability to do sustained work-related

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physical and mental activities in a work setting on a regular
and continuing basis.”

Notably, a “regular and continuing

basis” is defined as “8 hours a day, for 5 days a week, or an
equivalent work schedule.” See SSR 96-8.

Furthermore, the RFC

assessment must be based on all relevant evidence in the case
record, including “the effects of treatment, including
limitations or restrictions imposed by the mechanics of
treatment (e.g., frequency of treatment, duration, disruption to
routine, side effects of medication)” and the “need for a
structured living environment.” Id.
In this case, the ALJ did not consider whether the nature
of Plaintiff’s living environment and treatment program would
allow her to work on a regular and continuing basis.

In the

ALJ’s opinion, she noted that Plaintiff’s medical records “show
a record of ongoing management and evaluation with exacerbations
and remissions in the claimant’s condition.” [R.P. at 29].

The

ALJ acknowledged that the “exacerbations tended to correlate
with not participating in treatment” and that her participation
in her treatment program “appear[s] to mitigate the effects of
her impairments.” [R.P. at 29-30].

Despite the ALJ’s

recognition that Plaintiff’s impairments are exacerbated without
consistent treatment, the ALJ never addressed whether Plaintiff
would be able to work while simultaneously attending her
treatment program for 3 days and up to 20 hours each week during
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regular business hours.

Given that Plaintiff’s progress is

dependent on consistent attendance at her treatment program,
there may be a likelihood that entry into the workforce would
disrupt Plaintiff’s routine and contribute to a relapse.

The

ALJ, however, did not address this issue.
The ALJ also erred by inferring that Plaintiff was able to
work based upon her progress in a highly structured living
environment.

Indeed, the ALJ found Plaintiff’s “activities of

daily living entirely consistent with an ability to perform
unskilled, low stress work.”

The ALJ observed that at

Providence House, Plaintiff “is independent in dressing, bathing
and grooming.

She does light cleaning and simple cooking.

She

gets along with people such as healthcare providers and
roommates.

She gets along with her caseworker, Ms. Ramirez, who

works with her and provides supportive services.

She is able to

actively participate in her treatment and make progress.” [R.P.
at 29-30].
Notably, all of the ALJ’s observations that contributed to
the RFC determination were drawn from behavior exhibited in a
supported living environment or a treatment program.

“While

these observations may be generally accurate, a claimant's
ability to function within a structured hospital or treatment
setting is not necessarily indicative of his ability to carry
out basic work activities in a job setting on a regular and
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continuing basis.” Bennett v. Barnhart, 264 F. Supp. 2d 238, 255
(W.D. Pa. 2003).

Indeed, the Third Circuit has noted that for a

person suffering from a mental illness that is “marked by
anxiety, the work environment is completely different from home
or a mental health clinic.” Morales v. Apfel, 225 F.3d 310, 319
(3d Cir. 2000).

Therefore, without further explanation or

support, this Court cannot find that the ALJ’s RFC determination
is supported by substantial evidence based purely upon the
referenced daily activities in highly structured supportive
living and treatment environments.
Second, Plaintiff argues that the ALJ improperly rejected
Dr. Lizbeth Smith’s opinion without sufficient explanation.

In

Morales, the Third Circuit held that “in choosing to reject the
treating physician's assessment, an ALJ may not make
‘speculative inferences from medical reports’ and may reject ‘a
treating physician's opinion outright only on the basis of
contradictory medical evidence’ and not due to his or her own
credibility judgments, speculation or lay opinion.” Morales, 225
F.3d at 317.

Furthermore, the “principle that an ALJ should not

substitute his lay opinion for the medical opinion of experts is
especially profound in a case involving a mental disability.”
Id. at 319.
Here, the ALJ acknowledged Dr. Smith’s findings, but stated
that “these opinions carry little weight because they are not
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consistent with the preponderance of the evidence.” [R.P. at
27].

Rather than citing to contradictory medical evidence, the

ALJ supported her conclusion by referencing Plaintiff’s daily
activities at Providence House and statements Plaintiff made at
appointments in September and October 2016 that “everything is
going well” and “everything is good” with “no concerns.” [Id.]
As previously noted, the ALJ erred in making inferences about
Plaintiff’s ability to work based purely upon activities in a
highly structured living and treatment environment.
Furthermore, a review of Plaintiff’s medical record in its
entirety demonstrates that the referenced quotes, cited multiple
times in the ALJ’s opinion, are taken out of context and fail to
accurately capture Plaintiff’s wellbeing.

By October 17, 2016,

only a few weeks after Plaintiff made these statements, Dr.
Smith reported that Plaintiff “present[ed] today with low self
worth, low self-esteem, and battered woman syndrome at the hands
of her mother” and that Plaintiff “reports sometimes at night
she hears voices but cannot make out what they’re saying.” [R.P.
at 555].

Dr. Smith also observed that Plaintiff “has childlike

presentation, despite her being age 48 and denying any history
of developmental delays.” [Id.].
As the ALJ’s opinion appears to be based upon out-ofcontext quotes and improper inferences drawn from Plaintiff’s
progress in a highly structured environment, this Court finds
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that the ALJ’s decision to reject Dr. Smith’s RFC determination
was not supported by substantial evidence.

Although this Court

finds that the ALJ’s opinion did not provide an adequate
explanation for rejecting Dr. Smith’s conclusions, the Court
does not express an opinion as to whether the ALJ must adopt the
findings from Dr. Smith’s RFC evaluation.

On remand, the ALJ

must address this issue, as well as consider the impact of
Plaintiff’s structured living environment and treatment program
on her ability to work on a regular and continuing basis,
pursuant to SSR 98-6.

The ALJ may reach the same conclusion on

remand, but the appropriate analysis must be performed.

V.

CONCLUSION
For the reasons set forth above, the Court will VACATE the

ALJ’s decision and REMAND for proceedings consistent with this
Opinion.

An appropriate Order shall issue on this date.

DATED: May 31, 2019

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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