FAIRHURST v. COMMISSIONER OF SOCIAL SECURITY

Filing 27

OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 9/7/2021. (km)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KATHLEEN F.,
Plaintiff,
Case No. 1:19-cv-17787
Magistrate Judge Norah McCann King

v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.

OPINION AND ORDER
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Kathleen F. for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Plaintiff
appeals from the final decision of the Commissioner of Social Security denying Plaintiff’s
application. 1 After careful consideration of the entire record, including the entire administrative
record, the Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil
Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court reverses the
Commissioner’s decision and remands the action for further proceedings.
I.

PROCEDURAL HISTORY
On January 15, 2013, Plaintiff filed an application for benefits, alleging that she has been

disabled since May 11, 2011. R. 156, 224–30. The application was denied initially and upon
reconsideration. R. 159–63, 165–67. Plaintiff sought a de novo hearing before an administrative

Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her
official capacity. See Fed. R. Civ. P. 25(d).
1
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law judge. R. 168–69. Administrative Law Judge Marguerite Toland (“ALJ Toland”) held a
hearing on September 22, 2015, at which Plaintiff, who was represented by counsel, testified, as
did a vocational expert. R. 54–91. In a decision dated August 1, 2016, ALJ Toland concluded
that Plaintiff was not disabled within the meaning of the Social Security Act at any time from
May 11, 2011, Plaintiff’s alleged disability onset date, through June 30, 2015, the date on which
Plaintiff was last insured for Disability Insurance Benefits. R. 20–46. That decision became the
final decision of the Commissioner of Social Security when the Appeals Council declined review
on October 24, 2016. R. 1–6. Plaintiff appealed that decision pursuant to 42 U.S.C. § 405(g). R.
741–45. On October 3, 2018, United States Magistrate Judge Paul A. Zoss reversed that
administrative decision, concluding that ALJ Toland had erred in her evaluations of the opinions
of William Hankin, M.D., a psychiatrist, and of Plaintiff’s subjective complaints regarding her
mental impairments. R. 696–740; Kathleen F[.] v. Berryhill, Case No. 1:16-cv-9423.
On June 4, 2019, a different administrative law judge, Nicholas Cerulli (“ALJ Cerulli”),
presided over another administrative hearing at which Plaintiff, who was again represented by
counsel, again testified, as did a vocational expert. R. 639–78. In a decision dated August 8,
2019, ALJ Cerulli concluded that Plaintiff was not disabled within the meaning of the Social
Security Act at any time from May 11, 2011, the alleged disability onset date, through June 30,
2015, the date on which Plaintiff was last insured. R. 618–30. Plaintiff timely filed an appeal
from that decision pursuant to 42 U.S.C. § 405(g). ECF No. 1. On June 10, 2020. Plaintiff
consented to disposition of the matter by a United States Magistrate Judge pursuant to 28 U.S.C.

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§ 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF No. 14. 2 On June 30, 2020,
the case was reassigned to the undersigned. ECF No. 18. The matter is now ripe for disposition.
II.

LEGAL STANDARD
A.

Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence “does not mean a
large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565
(1988) (citation and internal quotations omitted); see K.K. ex rel. K.S. v. Comm’r of Soc. Sec.,
No. 17-2309, 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018). Substantial evidence is “less
than a preponderance of the evidence, but ‘more than a mere scintilla.”’ Bailey v. Comm’r of Soc.
Sec., 354 F. App’x 613, 616 (3d Cir. 2009) (citations and quotations omitted); see K.K., 2018
WL 1509091, at *4.
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the

2

The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
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factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“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); see
K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although the ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
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501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent
such articulation, the Court “cannot tell if significant probative evidence was not credited or
simply ignored.” Id. at 705. As the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.
Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
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A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award
benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation
omitted); see A.B., 166 F. Supp.3d at 518. In assessing whether the record is fully developed to
support an award of benefits, courts take a more liberal approach when the claimant has already
faced long processing delays. See, e.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). An
award is “especially appropriate when “further administrative proceedings would simply prolong
[Plaintiff’s] waiting and delay his ultimate receipt of benefits.” Podedworny, 745 F.2d at 223;
see Schonewolf, 972 F. Supp. at 290.
B.

Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §
404.1520(a)(4). “The claimant bears the burden of proof at steps one through four, and the
Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d
632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe

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impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 404.1509. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do
so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the
impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III.

ALJ DECISION AND APPELLATE ISSUES
The Plaintiff was 53 years old on the date on which she was last insured. R. 44. At step

one, the ALJ found that Plaintiff had not engaged in substantial gainful activity between May 11,
2011, her alleged disability onset date, and June 30, 2015, the date on which she was last insured
for benefits. R. 22.
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At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
fibromyalgia, bipolar disorder, anxiety disorder, and mild intellectual disability. R. 23. The ALJ
also found that the following impairments were not severe: left shoulder pain, hypertension,
migraine headaches, vertigo, history of opioid dependence and lichen simplex chronicus. Id.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination
of impairments that met or medically equaled the severity of any Listing. R. 25–28.
At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to
various additional limitations. R. 29–44. The ALJ also found that this RFC did not permit the
performance of Plaintiff’s past relevant work as an informal waitress. R. 44.
At step five, the ALJ found that a significant number of jobs—i.e., approximately
700,00 jobs as bottling line attendant; approximately 250,000 jobs as a routing clerk –
clerical; approximately 1,000,000 jobs as a cleaner/housekeeper—existed in the national
economy and could be performed by an individual with Plaintiff’s vocational profile and RFC.
R. 45. The ALJ therefore concluded that Plaintiff was not disabled within the meaning of the
Social Security Act from May 11, 2011, her alleged disability onset date, through June 30,
2015, the date on which she was last insured for benefits. R. 46.
Plaintiff disagrees with the ALJ’s findings at steps four and five and asks that the
decision of the Commissioner be reversed and remanded for further proceedings. Plaintiff’s
Brief, ECF No. 22; Plaintiff’s Reply Brief, ECF No. 26. The Commissioner takes the position
that her decision should be affirmed in its entirety because the ALJ’s decision correctly
applied the governing legal standards, reflected consideration of the entire record, and was
supported by sufficient explanation and substantial evidence. Defendant’s Brief Pursuant to
Local Civil Rule 9.1, ECF No. 23.
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IV.

RELEVANT MEDICAL EVIDENCE
Beginning on December 5, 2014, Plaintiff was treated on a bimonthly basis by William

Hankin, M.D., a psychiatrist. R. 581. On December 19, 2014, Dr. Hankin noted that Plaintiff
“had not successfully worked for a couple of years now and had not responded to multiple trials
of medication to get her better.” R. 553 (Exhibit 14F, p. 1). Upon mental status examination,
Plaintiff made good eye contact, was expressive and distraught. Id. Dr. Hankin noted a normal
and unpressured talk rate, unretarded psychomotor pattern, intact associations, depressed and
hopeless mood, and a lack self-confidence; Plaintiff was alert, oriented, and had some reason and
judgment. Id. “She had ideas of reference to what people thought about her.” Id. Dr. Hankin
opined as follows:
The patient had held it together to a degree in her early working years. She still had
many jobs and had left jobs because she became uncomfortable with the people she
worked with. Because of her personality she had limited capacity to make positive
relationships with others. Both her mental disorder, her quasi-psychotic state, her
ideas of reference, and her lack of trust and self-regard made it impossible for her
to establish positive relationships on the job. Only because her husband is very
supportive and understanding has she been able to stay in this marriage. He himself
is a very positive person who always looks on the bright side. She is totally disabled
from performing useful work. She cannot manage even menial employment. Her
mental condition may be moderated by medications but she has failed so many
attempts in the past that even this is unlikely. . . . Support the patient’s attempts to
get on social security disability as she is not fit to work.
Id. (“the December 2014 opinion”). Dr. Hankin diagnosed bipolar disorder and recommended
continued medical treatment and monthly psychotherapy. Id.
On January 16, 2015, Dr. Hankin noted that Plaintiff had fewer racing thoughts, “but she
still felt persecuted by her in-laws.” R. 551 (Exhibit 14F, p. 1). Plaintiff reported that Seroquel
caused her to feel drowsy and dizzy so she only takes it at night. She was sleeping better, (“no
longer drank wine for her insomnia which was better”), had an increased appetite, and had
gained five pounds. Id. Dr. Hankin noted a good gait and station and commented that Plaintiff
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“made a strong presence, appeared well-nourished and was in moderate acute distress.” Id. Upon
mental status examination, Dr. Hankin noted that Plaintiff made good eye contact, was calmer,
talked at a normal rate without pressure or retarded psychomotor aspects. Id. She had intact
associations and no thoughts of suicide, “but she would like to be dead.” Id. She was alert,
oriented, and had some reason and judgment. Id. Dr. Hankin went on to opine as follows:
Her psychosis was much relieved by the Seroquel. She still had a fear of going out
in public. She could not work because of her ideas of reference and her inability to
establish trust. Her disadvantaged childhood and her mother’s insanity and father’s
alcoholism left her in a chronic state of distrust. She also inherited something of her
mother’s mental illness. She lacked the mood stability and the resources to hold a
job. Even now with some improvement in her mood, even though she wants to
work, “When I get there I want to get away from people.” She had worked at one
time in a deli for []years, but then she started fighting with people and could no
longer tolerate other people.
Id. (“the January 2015 opinion”). Dr. Hankin diagnosed bipolar disorder and recommended that
she continue with medication, pursue disability, and continue monthly psychotherapy. Id.
On September 16, 2015, Dr. Hankin completed a one-page check-the-box letter,
addressed “To Whom It May Concern” “Re Kathleen M. F[.]” R. 580 (Exhibit 18F). Dr. Hankin
checked the two boxes next to text that stated as follows:
I hereby state that the above individual has been a patient of mine and, in my best
medical opinion, is totally disabled without consideration of any past or present
drug and/or alcohol use. Drug and/or alcohol use is not a material cause of this
individual’s disability. In my best medical opinion the use is not material because:
. . . My patient is not currently using drugs and/or alcohol and remains disabled.
Id. (“the September 2015 letter”).
On September 21, 2015, Dr. Hankin completed a five-page check-the-box and fill-in-theblank form entitled “Mental Impairment Questionnaire.” R. 581–85 (“the September 2015
Questionnaire”). On the DSM-IV Multiaxial Evaluation, Dr. Hankin noted 296.52 (Bipolar I
disorder, most recent episode (or current) depressed, moderate) on Axis I; no diagnosis on Axis
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II; fibromyalgia and status post vehicle whiplash on Axis III; unable to work on Axis IV; and a
GAF of 52 on Axis V. R. 581. On the DSM-5 Evaluation, Dr. Hankin noted psychosocial factors
of being unable to get or keep job and marital stress. Id. He also noted that Plaintiff had not
required hospitalization or inpatient treatment for her symptoms, that her diagnoses and
limitations were expected to last at least twelve months, and that she was not a malingerer. Id.
When asked to identify the signs and symptoms that support his diagnoses and assessment, Dr.
Hankin checked the following boxes (with handwritten notes in parentheses): depressed mood;
persistent or generalized anxiety, irritable, labile; feelings of guilt or worthlessness; hostility or
irritability; other mood disturbances (“thought of self harm”); suicidal ideation; other oddities of
thought (“ideas of reference – paranoia”); difficulty thinking or concentrating;
anhedonia/pervasive loss of interests; decreased energy; deeply ingrained, maladaptive patterns
of behavior; delusions (“people against her”); and excessive sleep (“sleeps from [unintelligible]
and depressed”). R. 582. When asked to identify the most frequent and/or severe of these signs
and symptoms, Dr. Hankin responded that Plaintiff’s “anxiety and distress are the worst
limitations – she just has to leave work – happened multiple times. She has ideas of reference
that people are against her, talking about her[.]” R. 583. According to Dr. Hankin, “multiple
mental status exams” supported his diagnoses and assessment. Id. He denied that Plaintiff had a
low I.Q. or reduced intellectual functioning and noted that her psychiatric conditions made her
fibromyalgia worse. Id. Dr. Hankin checked the box marked “yes” when asked whether Plaintiff
experiences episodes of decompensation or deterioration in a work or work-like setting that
causes her to withdraw from the situation and/or experience an exacerbation of symptoms,
writing that “she gets overwhelmed, confused, and has to leave work, go home.” Id.
Dr. Hankin went on to opine as to Plaintiff’s ability to perform mental activities in a
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competitive environment on a sustained and ongoing basis, which was defined as eight hours per
day, five days per week. R. 584. According to Dr. Hankin, Plaintiff’s limitations were “none-tomild” in in her abilities to remember locations and work-like procedures; understand, remember,
and carry out simple one-to-two step instructions; make simple work-related decisions; ask
simple questions or request assistance; adhere to basic standards of neatness; be aware of hazards
and take appropriate precautions. Id. Plaintiff had “moderate-to-marked” limitations in
functioning in the following areas: sustain ordinary routine without supervision; travel to
unfamiliar places or use public transportation; set realistic goals; and make plans independently.
Id. Plaintiff had “marked” limitations in her ability to understand, remember, and carry out
detailed instructions; maintain attention and concentration for extended periods; perform
activities within a schedule and consistently be punctual; work in coordination with or near
others without being distracted by them; complete a workday without interruptions from
psychological symptoms; perform at a consistent pace without rest periods of unreasonable
length or frequency; interact appropriately with the public; accept instructions and respond
appropriately to criticism from supervisors; get along with coworkers or peers without distracting
them; maintain socially appropriate behavior; respond appropriately to workplace changes. Id.
According to Dr. Hankin, Plaintiff was likely to be absent from work more than three times per
month as a result of her impairments or treatment. R. 585. In Dr. Hankin’s medical opinion,
Plaintiff’s symptoms and related limitations have existed since May 11, 2011. Id.
V.

DISCUSSION
Plaintiff raises a number of challenges to ALJ Cerulli’s decision, including, inter alia,

that the ALJ erred in when weighing Dr. Hankin’s opinions, her treating psychiatrist. Plaintiff’s
Brief, ECF No. 22, pp. 10–17; Plaintiff’s Reply Brief, ECF No. 26, pp. 1–6. This Court agrees.
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An ALJ must evaluate all record evidence in making a disability determination. Plummer,
186 F.3d at 433; Cotter, 642 F.2d at 704. The ALJ’s decision must include “a clear and
satisfactory explication of the basis on which it rests,” and one sufficient to enable a reviewing
court “to perform its statutory function of judicial review.” Cotter, 642 F.2d at 704–05.
Specifically, the ALJ must discuss the evidence that supports the decision, the evidence that the
ALJ rejected, and explain why the ALJ accepted some evidence but rejected other evidence. Id.
at 705–06; Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 505–06 (3d Cir. 2009); Fargnoli v.
Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (“Although we do not expect the ALJ to make
reference to every relevant treatment note in a case . . . we do expect the ALJ, as the factfinder,
to consider and evaluate the medical evidence in the record consistent with his responsibilities
under the regulations and case law.”). Without this explanation, “the reviewing court cannot tell
if significant probative evidence was not credited or simply ignored.” Cotter, 642 F.2d at 705;
see also Burnett, 220 F.3d at 121 (citing Cotter, 642 F.2d at 705).
“‘A cardinal principle guiding disability eligibility determinations is that the ALJ accord
treating physicians’ reports 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.’”
Nazario v. Comm’r Soc. Sec., 794 F. App’x 204, 209 (3d Cir. 2019) (quoting Morales v. Apfel,
225 F.3d 310, 317 (3d Cir. 2000)); see also Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352,
355 (3d Cir. 2008) (stating that an ALJ should give treating physicians’ opinions “great weight”)
(citations omitted); Fargnoli, 247 F.3d at 43 (3d Cir. 2001) (stating that a treating physician’s
opinions “are entitled to substantial and at times even controlling weight”) (citations omitted).
However, “[a] treating source’s opinion is not entitled to controlling weight if it is ‘inconsistent
with the other substantial evidence in [the] case record.’” Hubert v. Comm’r Soc. Sec., 746 F.
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App’x 151, 153 (3d Cir. 2018) (quoting 20 C.F.R. § 404.1527(c)(2)); see also Brunson v.
Comm’r of Soc. Sec., 704 F. App’x 56, 59–60 (3d Cir. 2017) (“[A]n ALJ may reject the opinion
of a treating physician when it is unsupported and inconsistent with the other evidence in the
record.”). “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 (internal quotation
marks and citations omitted). The ALJ must consider the following factors when deciding what
weight to accord the opinion of a treating physician: (1) the length of the treatment relationship
and frequency of examination; (2) the nature and extent of the treatment relationship; (3) the
supportability of the opinion; (4) the consistency of the opinion with the record as a whole; (5)
the treating source’s specialization; and (6) any other relevant factors. 20 C.F.R. §
404.1527(c)(1)–(6).3 Accordingly, “the ALJ still may choose whom to credit but ‘cannot reject
evidence for no reason or the wrong reason.’” Sutherland v. Comm’r Soc. Sec., 785 F. App’x
921, 928 (3d Cir. 2019) (quoting Morales, 225 F.3d at 317); see also Nazario, 794 F. App’x at
209–10 (“We have also held that although the government ‘may properly accept some parts of
the medical evidence and reject other parts,’ the government must ‘provide some explanation for
a rejection of probative evidence which would suggest a contrary disposition.’”) (quoting Adorno
v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994)); Morales, 225 F.3d at 317 (“Where . . . the opinion of a
treating physician conflicts with that of a non-treating, non-examining physician, the ALJ may

The Social Security Administration amended the regulations addressing the evaluation of
medical evidence, see, e.g., 20 C.F.R. § 404.1527 (providing that the rules in this section apply
only to claims filed before March 27, 2017); 20 C.F.R. § 416.927 (same), and SSR 96-2p was
rescinded. Plaintiff filed her claims on January 15, 2013.
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choose whom to credit[.]”); Cotter, 642 F.2d at 706–07 (“Since it is apparent that the ALJ cannot
reject evidence for no reason or for the wrong reason, . . . 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.”) (internal citation omitted).
Here, at step four of the sequential evaluation process, ALJ Cerulli found that Plaintiff
had the RFC to perform light work subject to certain additional exertional and non-exertional
limitations:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except frequent climbing of ramps
and stairs, but no climbing of ropes, ladders, or scaffolds; frequent balancing,
stooping, kneeling, crouching, and crawling; no exposure to hazards such as
unprotected heights and moving machinery; unskilled work involving routine and
repetitive tasks; low stress, defined as occasional changes in the work setting and
occasional independent decision-making; no quota or production based work but
rather goal oriented work; and occasional interaction with coworkers, supervisors,
and members of the public.
R. 624. In reaching this determination, ALJ Cerulli, inter alia, considered Dr. Hankin’s
December 2014 opinion, January 2015 opinion, and September 2015 letter as follows:
Overall, the treatment notes show that psychiatric treatment has controlled her
racing thoughts, with good response with medication adjustments (Exhibit 17F [R.
567–79]). Moreover, the record does not include persuasive medical opinions that
support the claimant’s allegations. First, Jane Nolan, LCSW, provided a 2014
statement that the claimant should be awarded Social Security disability due to her
consistent psychiatric diagnoses (Exhibit 9F). This opinion is afforded limited
weight, as it is not consistent with the claimant’s treatment notes that document
improving symptoms with medications and adjustment to those medications.
Rather it is apparently primarily based on the claimant’s subjective complaints,
including that she is unable to hold down a job. Moreover, this opinion is
conclusory and does not provide a function-by-function analysis of the claimant’s
functioning. Finally, determinations of disability under the regulations are reserved
to the Commissioner. Similarly, medical source statements from Dr. Chazin, Dr.
Willima Glenn, and Dr. William Hankin concluded that the claimant had significant
issues working due to her mental and emotional issues, and the claimant was
disabled from fulltime work (Exhibits 12F; 14F; 18F; 20F; 24F). These opinions
are again conclusory and do not provide support for such a conclusion, [and are]
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inconsistent with the longitudinal treatment notes that show some control and
improvement of symptoms.
R. 627. ALJ Cerulli went on to consider Dr. Hankin’s September 2015 Questionnaire and
assigned it “some weight,” but found that this opinion was “not entitled to greater weight[,]”
reasoning as follows:
A more detailed opinion was provided by Dr. Hankin in 2015, who cited to the
claimant having moderate to marked limitation in sustaining ordinary work without
supervision, traveling to unfamiliar places or using transportation, setting realistic
goals and making plans independently (Exhibit 19F). Marked limitation in
understanding, remembering and carrying out detailed instructions, maintaining
attention and concentration for extended periods, performing activities within a
schedule and consistently being punctual, working in coordination with or near
others without being distracted by them, completing a workday without
interruptions from psychological symptoms, interacting appropriately with the
public, accepting instructions and responding appropriately to criticism from
supervisors, getting along with co-workers or peers without distracting them,
maintaining socially appropriate behavior and responding appropriately to work
place changes were also noted (Id.). Finally, the claimant was to be absent more
than three times a month from work (Id.). However, Dr. Hankin cited to none to a
mild limitation in remembering locations and work like procedures, understanding,
remembering and carrying out one to two step instructions, making simple work
related decisions, asking simple questions or requesting assistance, adhering to
basic standards of neatness and being aware of hazards and taking appropriate
precautions (Id.). This opinion is given some weight, as the treatment notes do
support symptoms related to the claimant’s mental impairments. However, this
opinion is not entitled to greater weight because the longitudinal evidence,
including Dr. Hankins [sic] own treatment notes, do not support the marked
limitations cited in this opinion, but rather record marked subjective complaints that
are not consistent with objective testing that were overall normal (see Exhibit 27F).
R. 627–28.
Plaintiff challenges, inter alia, ALJ Cerulli’s evaluation of Dr. Hankin’s September 2015
Questionnaire, arguing that ALJ Cerulli did not indicate what portions of the “treatment notes”
were inconsistent with this opinion and that ALJ Cerulli only generally referred to Dr. Hankin’s
apparent reliance on “subjective complaints” that were purportedly inconsistent with unidentified
“‘objective testing that were overall normal[.]’” Plaintiff’s Brief, ECF No. 22, p. 15 (quoting R.
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628). Plaintiff further argues that the “objective testing” to which ALJ Cerulli refers as “Exhibit
27F,” R. 1067–97, is not, in fact, objective testing relating to Plaintiff’s mental impairments. Id.
at 16. Rather, Exhibit 27F contains a four-page treatment note from Dr. Hankin which is dated
January 22, 2019, and which significantly post-dates the date on which Plaintiff was last insured,
i.e., June 30, 2015. R. 1067–70. The remainder of Exhibit 27F contains prescription records
from 2016 through 2018, 1071–93, and a treatment record from 2018 for nausea and vomiting
related to migraines, R. 1095–97. 4 Plaintiff’s Brief, ECF No. 22, p. 16; Plaintiff’s Reply Brief,
ECF No. 26, pp. 5–6.
Plaintiff’s arguments are well taken. Notably, as Plaintiff points out, Exhibit 27F contains
no treatment notes or objective testing within the relevant period that undermine Dr. Hankin’s
September 2015 Questionnaire. See R. 1067–97. It is true that Exhibit 17F, R. 567–79 contains
notes from Dr. Hankin’s treatment of Plaintiff. However, to assume that the ALJ’s reference to
Exhibit 27F was a typographical error would be to engage in unsupported speculation,
particularly since the administrative decision does not describe the evidence upon which the ALJ
intended to rely. See also Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 23, pp.
12–14 (containing no argument that ALJ Cerulli’s reference to Exhibit 27F resulted from a
typographical error); cf. Cassidy v. Colvin, No. 2:13-1203, 2014 WL 2041734, at *10 n.3 (W.D.
Pa. May 16, 2014) (“Nevertheless, that the ALJ may have misinterpreted or misunderstood Dr.
Kaplan’s findings with regard to Plaintiff's postural activities does not absolve her of her error.
Rather, it highlights the need for an ALJ to fully explain her findings. Otherwise, the district
court is left to engage in this sort of speculation about how an ALJ arrived at her decision.”).

Exhibit 27F, p. 28, R. 1094, is blank except for a man’s name at the top of the page who shares
Plaintiff’s same last name.
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Moreover, even if the Court were to presume that ALJ Cerulli intended to rely on the
treatment notes contained in Exhibit 17F, R. 567–79, it is not apparent that “objective testing”
within this exhibit is inconsistent with Plaintiff’s subjective complaints or with the opinions
articulated in Dr. Hankin’s September 2015 Questionnaire. See generally R. 628. Similarly, the
ALJ nowhere explains why the “longitudinal evidence” regarding Plaintiff’s treatment was
inconsistent with this opinion. See id. The limited explanation provided by ALJ Cerulli therefore
does not allow this Court to understand and assess the basis for the ALJ’s decision to accord only
some weight to Dr. Hankin’s September 2015 Questionnaire. See Jones, 364 F.3d at 505 (stating
that an ALJ’s decision must contain “sufficient development of the record and explanation of
findings to permit meaningful review”); Zigarelli v. Comm’r, Soc. Sec. Admin., No. CV 1812690, 2019 WL 3459080, at *4 (D.N.J. July 30, 2019) (“The ALJ, however, does not explain in
what way he found the limitation to be vague, nor does he cite to specific contradictory evidence
in the record. . . . [and] fails to explain how the opinion and treatment note are inconsistent with
each other.[] Thus, the Court cannot determine whether the ALJ properly discounted Dr.
Ranawat’s opinion in this regard.”); Hines v. Colvin, No. CV 18-13828, 2018 WL 6313499, at
*4 (D.N.J. Dec. 3, 2018) (“These vague citations to the record are insufficient to ‘provide a clear
and satisfactory explication” of the weight given to Dr. Allegra’s opinion in order to assist a
reviewing court in “perform[ing] its statutory function of judicial review.’”) (quoting Cotter, 642
F.2d at 704–05).
The Acting Commissioner does not address Plaintiff’s challenges to ALJ Cerulli’s
inexplicable reference Exhibit 27F, but instead points to other portions of the record that she
believes supports ALJ Cerulli’s assessment of Dr. Hankin’s September 2015 Questionnaire.
Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 23, pp. 12–14. The Court rejects
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the Acting Commissioner’s suggestion that other evidence in the record supports ALJ Cerulli’s
consideration of Dr. Hankin’s opinions contained in the September 2015 Questionnaire. Id. The
ALJ did not rely on this evidence in weighing Dr. Hankin’s September 2015 Questionnaire. R.
627–28. The Commissioner’s post hoc rationalization in this regard must therefore be rejected.
See Christ the King Manor, Inc. v. Sec’y U.S. Dep’t of Health & Human Servs., 730 F.3d 291,
305 (3d Cir. 2013) (“Our review must also be based on ‘the administrative record [that was]
already in existence’ before the agency, not ‘some new record made initially in the reviewing
court’ or ‘post-hoc rationalizations’ made after the disputed action.”) (quoting Rite Aid of Pa.,
Inc. v. Houstoun, 171 F.3d 842, 851 (3d Cir. 1999)); Fargnoli, 247 F.3d at 44 n.7 (3d Cir. 2001)
(stating that a district court should not substitute its own independent analysis for reasoning not
mentioned by the ALJ) (citations omitted); Rhodes v. Comm’r of Soc. Sec., No. CV 18-0678,
2019 WL 1042532, at *6 (D.N.J. Mar. 5, 2019) (“The Court is only permitted to consider the
ALJ’s decision based on the rationale contained in that decision; the Court is not to consider
hypothetical rationales, which may justify the ALJ’s decision, but which were not in fact
underlying the opinion in question.”) (citation omitted).
Moreover, it is unclear to what extent this error infected ALJ Cerulli’s determination of
Plaintiff’s RFC. R. 624–28. Thus, the Court cannot meaningfully review the ALJ’s RFC finding
and determine whether substantial evidence supports that finding at step four. See Murphy v.
Comm’r of Soc. Sec., No. 1:19-CV-20122, 2020 WL 7022746, at *6 (D.N.J. Nov. 30, 2020)
(“The ALJ’s reliance on this misconception, along with other unsupported mischaracterizations
of Plaintiff’s physical abilities . . . permeates the ALJ’s decision. As stated above, these errors
cannot be separated from the ALJ’s analysis of other record evidence such that the Court may
determine whether substantial evidence supports the ALJ’s RFC analysis.”).
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This Court therefore concludes that the decision of the Commissioner must once again be
reversed, and the matter must once again be remanded to the Commissioner for further
consideration of the opinions of the treating psychiatrist, William Hankin, M.D. Remand is
appropriate, moreover, even if further examination of those opinions again persuades the Acting
Commissioner that Plaintiff is not entitled to benefits; that determination is for the Acting
Commissioner—not this Court—to make in the first instance. Cf. Zuschlag v. Comm’r of Soc.
Sec. Admin., No. 18-CV-1949, 2020 WL 5525578, at *8 (D.N.J. Sept. 15, 2020) (“On remand,
the ALJ may reach the same conclusion, but it must be based on a proper foundation.”); Jiminez
v. Comm’r of Soc. Sec., No. CV 19-12662, 2020 WL 5105232, at *4 (D.N.J. Aug. 28, 2020)
(“Once more, the ALJ did not provide an adequate explanation that would enable meaningful
review, and the Court once more cannot determine what role lay speculation played in the ALJ’s
rejection of this detailed functional assessment from Dr. Marks.”).5
VI.

CONCLUSION
For these reasons, the Court REVERSES the Commissioner’s decision and REMANDS

the matter for further proceedings consistent with this Opinion and Order.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
IT IS SO ORDERED.
Date: September 7, 2021

s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE

Plaintiff asserts a number of other errors in the Commissioner’s final decision. Because the
Court concludes that the matter must be remanded for further consideration of Dr. Hankin’s
opinions, the Court does not consider those claims. In addition, on remand, the Court encourages
the Acting Commissioner, if she again assigns only “some weight” to Dr. Hankin’s opinions, to
clarify those portions of the opinion that are credited and those portions that are rejected.
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