SANTOS v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Jose L. Linares on 8/22/13. (jd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JESUS VALENTfN SANTOS,
Plaintiff,
v.

Civil Action No. 12-7070 (JLL)

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, District Judge.
Before the Court is Plaintiff Jesus Valentin Santos (“Plaintiff’)’s appeal seeking review
of a final determination by Administrative Law Judge (“AU”) Michal L. Lissek denying his
application for a period of disability and disability insurance benefits (“DIB”). The Court
declines Plaintiff’s request for oral argument and, thus, resolves this matter on the parties’ briefs
pursuant to Local Civil Rule 9.1(f). For the reasons below, the Court affirms in part and vacates
in part the final decision of the Commissioner of Social Security (the “Commissioner”) and
remands for further administrative proceedings.
1.

BACKGROUND

A.

Facts and Procedural History

On October 15, 2007, Plaintiff’s longtime career at the Victory Box Corporation
(“Victory Box”) ended when the plant where he worked closed. See R. at 197, 215.’ This date
also marks the alleged onset of Plaintiff’s disability. Id. at 215. Plaintiff has not worked since

“R.” refers to the pages of the Administrative Record.

then, and spends most of his days at home watching television. Id. at 293-94. Plaintiff speaks
both English and Spanish. Id. at 295. However, Spanish is his main and dominant language. Id.
During the last three years of Plaintiff’s employment at Victory Box, Plaintiff worked in
the shipping department as a “labeler.” Id. at 20. In that role, Plaintiff labeled and stamped rolls
of paper that came into the plant. Id. To do so, Plaintiff had to walk all day. Id. However, he
did not have to lift or carry anything. Id. Plaintiff also worked as a “carton forming machine
operator” during his last fifteen years at Victory Box. Id. at 46-47. This job required Plaintiff to
lift corrugated cardboard boxes off of a production line that weighed, at most, twenty pounds.
Id. at 48.
On January 23, 2008, Plaintiff filed an application for DIB with the Social Security
Administration (“SSA”). Id. at 192. Plaintiff alleges that he has a disability stemming from
diabetes mellitus, lumbosacral and shoulder strains, and depression. Id. at 18-20. The SSA
denied Plaintiff’s application and his subsequent request for rehearing. P1. Br. at 1. In response,
Plaintiff filed a request for a hearing before an AU. R. at 103-04. This hearing occurred before
AU Lissek on April 21, 2010, at the Office of Disability Adjudication and Review in Newark,
New Jersey. Id. at 53. After reviewing the facts of Plaintiff’s case, AU Lissek issued an
unfavorable decision on May 7, 2010. Id. at 74.
Plaintiff sought Appeals Council review, and on April 7, 2011, the Appeals Council
remanded the case for reconsideration. Id. at 89-90. On July 13, 2011, another hearing took
place before AU Lissek. Id. at 26. Patricia Sasona, an impartial vocational expert, appeared at
the hearing. Id. at 13. She testified that the Department of Labor’s Dictionary of Occupational
Titles (the “DOT”) considers Plaintiff’s “labeler” position as unskilled and performed at the light
exertional level. Id. at 47. Sasona also testified that, generally, the DOT considers Plaintiff’s

2

“carton forming machine operator” position as unskilled and performed at the medium exertional
level. Id. However, Sasona concluded that “as [Plaintiff] described his specific job it would be a
light job.” Id. at 48.
Again, on August 4, 2011, AU Lissek issued an unfavorable decision, concluding that
Plaintiff “ha[dj not been under a disability within the meaning of the Social Security Act.” Id. at
7. At that time, Plaintiff was sixty-two years old. See Id. at 211. Once more, Plaintiff sought
Appeals Council review. Id. at 1. The Appeals Council denied Plaintiff’s request on September
20, 2012. Id. The AU’s decision became the Commissioner’s final decision when the Appeals
Council denied Plaintiff’s request for review. As a result, Plaintiff appealed to this Court on
November 14, 2011. Compi. at 1. The Court has jurisdiction to review this matter pursuant to
42 U.S.C.
B.

§ 405(g).
Medical Evidence for the Relevant Time Period

Plaintiff alleges that he has a disability under the Social Security Act because he is
afflicted with diabetes mellitus, shoulder and lumbosacral strains, and depression. A discussion
of each of these conditions follows.
1.

Plaintiff’s Diabetes Mellitus

From January 2008 to June 2011, Dr.

athew V. Cholankeril (“Dr. Cholankeril”) treated

Plaintiff’s diabetes mellitus type 1. See R. at 287-88, 527-28. Throughout this time, Plaintiff’s
diabetes mellitus was uncontrolled, as his fasting glucose levels remained high. See id. at 287,
508, 510, 512, 514, 516, 518, 520, 530, 533, 535, 537. To treat Plaintiff’s condition, Dr.
Cholankeril prescribed Plaintiff Levemir, Metformin, and other medications. See id. at 285, 383,
449, 451, 453, 455, 506, 508, 527, 529, 532, 534, 536. Dr. Cholankeril also advised Plaintiff to
follow the American Diabetic Association’s low-carbohydrate diet. See id. at 384, 507, 528-30,

3

533, 535. Plaintiff did not adhere closely to this diet. See id. Likewise, Plaintiff admitted that
he did not always take his diabetes mellitus medications. Id. at 37-38.
In spite of Plaintiffs diabetes mellitus and other health problems, Dr. Cholankeril opined
in a January 2008 report that Plaintiff could lift and carry fifty pounds, and that he had no
limitations on his ability to sit, stand, or walk. Id. at 284. In the same report, however, Dr.
Mathew Cholankeril opined that Plaintiff had limitations on his ability to push and pull. Id.
Notably, the medical records available do not suggest that Plaintiffs diabetes mellitus caused
other complications, such as end-organ damage or the need for frequent hospital visitations. See
id. at 265-53 7.
2.

Plaintiffs Shoulder and Lumbosacral Strains

On January 11, 2008, Dr. Morris Horwitz diagnosed Plaintiff with repetitive stress and
strain injuries in both of his shoulders in a report that he prepared in connection with a then
pending New Jersey workers’ compensation proceeding. See id. at 3 17-18. The report noted
that neither of Plaintiffs shoulders moved smoothly. Id. at 318. Plaintiffs “[right] [s]houlder
motion lack[ed] 20 degrees in elevation, 15 degrees in external rotation and 15 degrees in
internal rotation..,

.“

Id. Similarly, Plaintiffs “[left] [s]houlder motion lack[ed] 20 degrees in

elevation, 10 degrees in external rotation and 10 degrees in internal rotation.

.

.

.“

Id. The

record suggests that these shoulder injuries caused Plaintiff some pain. In response to Plaintiffs
complaints of acute pain in his left shoulder, on March 18, 2009, Dr. Cholankeril injected
Plaintiffs joint with Solu-Medrol. Id. at 455. Dr. Cholankeril also prescribed Mobic, an anti
inflammatory drug, to Plaintiff at that time. Id. at 456. The record suggests that Plaintiff used
Mobic only for a limited time since Dr. Cholankeril did not list Mobic as one of Plaintiffs

4

current medications in any subsequent reports. See id. at 383-84, 449-54, 506-09, 527-530, 53237.
Dr. Horwitz also diagnosed Plaintiff with repetitive stress and strain injuries in his
lumbosacral region that limited his motion. Id. at 318. An MRI study Dr. John Cholankeril
performed on Plaintiff on March 21, 2008, further confirmed this diagnosis. Id. at 290. The
MRI study noted that Plaintiff had “degenerative disc changes and [a] disc bulge.

.

.

with a small

subligamentous central disc hemiation with mild neural foraminal narrowing” at the L4-L5 level.
Id. The MRI study also noted that Plaintiff had a “mild disc bulge with degenerative changes of

the intervertebral disc and mild neural foraminal narrowing” at the L5-S I level. Id. Dr. Horwitz
and Dr. John Cholankeril’s findings conflict with those made by Dr. Sam Mayerfield in an

earlier examination conducted on January 8, 2008. Id. at 270. In said examination, Dr.
Mayerfield concluded that Plaintiff’s lumbar spine was “normal.” Id. Plaintiff used Ibuprofen to
deal with his back pain. See id. at 2 18-19, 294.
The record reaches different conclusions as to the effect of Plaintiff’s shoulder and
lumbosacral strains on his ability to work. On the one hand, Plaintiff alleged in his disability
report that he could lift up to twenty pounds and that his injuries limited his ability to sit and
stand. Id. at 215. Consistent with said report, on January 28, 2008, Dr. Cholankeril opined that
Plaintiff”s injuries limited his ability to push or pull. See Id. at 284.
On the other hand, Dr. Cholankeril also opined on said date that Plaintiff could lift up to
fifty pounds and that his injuries did not limit his ability to sit, stand, or walk. Id. Moreover, Dr.
Cholankeril’s reports suggest that Plaintiff had no musculoskeletal issues from March 2009 to
June 2011. See id. at 383-84, 449-54, 506-09, 527-530, 532-37. Some of these reports state that
Plaintiff had “[nb deformities, no joint tenderness, [and] normal muscle tone and strength,” id.

5

at 383-84, 449-52, while others simply state that Plaintiff had “[nb muscle pain or swelling.” Id.
at 506-09, 527-530, 532-37. There is also no evidence suggesting that Plaintiff’s shoulder and
lumbosacral strains resulted in hospitalization or a protracted course of physical therapy. See Id.
at 285-88, 383-84, 449-56, 506-09, 527-530, 532-37.
3.

Plaintiff’s Depression

On May 6, 2008, Dr. Ernesto L. Perdomo, a licensed psychologist, met with Plaintiff to
perform a complete mental status evaluation at the request of the New Jersey Division of
Disability Determination. See id. at 293-97. Dr. Perdomo described Plaintiff as “somewhat
tearful” at the time. Id. at 295. Dr. Perdomo noted that Plaintiff “reported feelings of sadness,
lack of interest, lack of motivation, no desire, crying spells, irritability, lack of appetite, and
difficultly sleeping all secondary to loss of his jobs and medical problems.” Id. Plaintiff also
reported that he did not socialize, wanted to be left alone, and sometimes heard a voice calling
his name. Id. at 293. Ultimately, Dr. Perdomo concluded that Plaintiff had “developed a
recurrent major depression of moderate to mild intensity but [that] his main problems [were]
medical.” Dr. Perdomo assigned Plaintiff a Global Assessment of Functioning (“GAF”) rating
of seventy to seventy-five. Id. at 296.
2
In reaching these conclusions, Dr. Perdomo noted that Plaintiff’s “mood and affect was
depressed.” Id. at 295. Dr. Perdomo also noted that Plaintiff was “oriented to time, place and
2

The GAF Scale ranges from zero to one-hundred. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. text rev. 2000) (hereinafter DSM-IV-TR). An individual’s “GAF rating is
within a particular decile if either the symptom severity or the level of functioning falls within the range.” Id. at 32.
“[I]n situations where the individual’s symptom severity and level of functioning are discordant, the final GAF
rating always reflects the worse of the two.” Id. at 33. “In most instances, ratings on the GAF Scale should be for
the current period (i.e.. the level of functioning at the time of the evaluation) because ratings of current functioning
will generally reflect the need for treatment or care.” Id. A GAF rating of sixty-one to seventy indicates that an
individual has “[sjome mild symptoms,” e.g., a “depressed mood and mild insomnia,” or “some difficulty in social,
occupational, or school functioning.
but generally function[sj pretty well, [andj has some meaningful
interpersonal relationships.” Id. at 34. A GAF rating of seventy-one to eighty indicates that “[ilf symptoms are
present. they are transient and expectable reactions to psychological stressors,” or that an individual has “no more
than slight impairment in social occupational, or school functioning.” Id.
.

.,

6

person,” his “thought process was well organized and focused, and he “spoke coherently and
relevantly.” Id. Additionally, there were “no indications of any thought disorder or psychosis,”
and Plaintiff “denied any hallucinations and [elicited] no delusions.

.

.

.“

Id. Accordingly to Dr.

Perdomo, Plaintiff’s short-term memory was “fair,” his long-term memory and concentration
were “good,” and his association and abstraction abilities were “concrete.” Id. When Plaintiff
met with Dr. Perdomo, Plaintiff took Lexapro once a day to treat his depression. Id. at 294.
From July 2008 to June 2011, the Trinitas Hospital Department of Behavioral Health and
Psychiatry (“Trinitas”) treated Plaintiff’s depression. See id. at 331-41, 500. When Trinitas
began seeing Plaintiff in July 2008, it noted the following about Plaintiff’s mental status.
Plaintiff had a full orientation, impaired memory, intact general knowledge, poor concentration,
limited impulse control, and fair judgment and insight. Id. at 339. Further, Plaintiff had mildly
impaired social skills, moderately impaired community living skills, and seriously impaired
vocational functioning. Id. at 340. Plaintiff was also depressed, had homicidal and suicidal
ideations, and had a suicidal plan. Id. at 338-39. Ultimately, Trinitas assigned Plaintiff a GAF
rating of fifty at that time. Id. at 341. Trinitas assigned Plaintiff the same GAF rating in
3
September 2008. Id. at 329-30.
From September 2008 until February 2009, Trinitas noted that Plaintiff did not have any
suicidal or homicidal ideations or plans. See id. at 324-25, 329-30. Throughout this time,
Trinitas described Plaintiff’s depression as “mild” in most of its reports. See id. at 324-25.
According to Trinitas, Plaintiff had “vague” suicidal ideations in March and April 2009. Id. at
405-06. However, Trinitas reported that Plaintiff had no such ideations from May to August
2009.

Id. at 395-96, 428. “Vague” suicidal thoughts returned to Plaintiff in September 2009 and

A GAF rating of forty-one to fifty indicates that an individual has either “[sjerious symptoms,” e.g., “suicidal
ideation,” or “serious impairment in social, occupational, or school functioning
DSM-IV-TR 34.
“

7

lasted until at least November 2009. Id. at 400-01. The psychiatric drug management notes
prepared by Trinitas from January 29, 2010, to May 4, 2010, indicate that Plaintiff did not have
any suicidal or homicidal ideations or plans. Id. at 488-89.
Shortly thereafter, on May 20, 2010, Trinitas Regional Medical Center admitted Plaintiff
with depressive symptoms and suicidal ideation, assigning Plaintiff a GAF rating of twenty-five.
4
Id. at 471, 477. Trinitas discharged Plaintiff five days later on May 25, 2010. Id. at 471. Both
Plaintiff’s discharge summary and a psychiatric evaluation performed by Trinitas while Plaintiff
was an inpatient state that “financial stressors” contributed to Plaintiff’s suicidal ideations and
plan. See id. at 471, 481. Plaintiff’s discharge summary also noted that “[o]nce [he] was taking
medication, his symptoms were much improved. His affect was appropriate. He was smiling
appropriately, was participating in the groups and was also interacting with peers and staff
appropriately.” Id. at 471. Trinitas assigned Plaintiff a GAF rating of sixty at the time of
5
discharge. Id. at 472.
From June 2, 2010, to June 29, 2011, the psychiatric drug management notes prepared by
Trinitas state that Plaintiff did not have any suicidal or homicidal ideations or plans. Id. at 487,
500-01, 504-05. Many of these notes describe Plaintiffs depression as “mild.” See id. at 50001, 504-05.
II.

LEGAL STANDARD

A.

The Five-Step Process for Evaluating Whether a Claimant Has a Disability

A GAF rating of twenty-one to thirty indicates that an individual’s “[bjehavior is considerably influenced by
delusions or hallucinations,” or “serious impairment in communication or judgment,” e.g., “suicidal preoccupation,”
or “inability to function in almost all areas
DSM-IV-TR 34.
A GAF rating of fifty-one to sixty indicates that an individual has “[mjoderate symptoms,” e.g., “flat affect and
circumstantial speech, [on occasional panic attacks,” or “moderate difficulty in social, occupational, or school
functioning
DSM-IV-TR 34.
“

8

Under the Social Security Act, the SSA is authorized to pay DIB to persons who have a
“disability.” 42 U.S.C.

§ 423(a). A “disability” is defined as the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.

.

.

.“

42 U.S.C.

§ 423(d)(1)(A). A

person is unable to engage in substantial gainful activity when his physical or mental
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.” 42 U.S.C.

§ 423(d)(2)(A).

Regulations promulgated under the Social Security Act establish a five-step process for
determining whether a claimant is disabled. 20 C.F.R.

§ 404.1520(a)(1). At step one, the AU

assesses whether the claimant is currently performing substantial gainful activity. 20 C.F.R.

§

404.1 520(a)(4)(i). If so, the claimant is not disabled and, thus, the process ends. Id. If not, the
AU proceeds to step two and determines whether the claimant has a “severe” physical or mental
impairment or combination of impairments. 20 C.F.R.

§ 404.1 520(a)(4)(ii). Absent such

impairment, the claimant is not disabled. Id. Conversely, if the claimant has such impairment,
the AU proceeds to step three. Id. At step three, the ALl evaluates whether the claimant’s
severe impairment either meets or equals a listed impairment. 20 C.F.R.

§ 404.1 520(a)(4)(iii). If

so, the claimant is disabled. Id. Otherwise, the AU moves on to step four, which involves three
sub-steps:
(1) the ALl must make specific findings of fact as to the claimant’s residual
functional capacity [(“RFC”)]; (2) the AU must make findings of the physical
and mental demands of the claimant’s past relevant work; and (3) the AU must
compare the [RFC] to the past relevant work to determine whether claimant has
the level of capability needed to perform the past relevant work.

9

Burnett v. Comm ‘r ofSoc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted).
The claimant is not disabled if his RFC allows him to perform his past relevant work. 20 C.F.R.

§ 404.1520(a)(4)(iv). However, if the claimant’s RFC prevents him from doing so, the AU
proceeds to the fifth and final step of the process. Id.
The claimant bears the burden of proof for steps one, two, and four. Sykes v. Apfel, 228
F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three because “step
three involves a conclusive presumption based on the listings.

.

.

.“

Id. at 263 n. 2 (citing Bowen

v. Yuckert, 482 U.S. 137, 146-47 n. 5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987)). The AU bears

the burden of proof for the final step. See id. at 263. The final step requires the AU to “show
[that] 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 [RFC].” Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). In doing so, the
AU “must analyze the cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled.” Id. (citing 20 C.F.R.

§

404.1523). Notably, the AU typically seeks the assistance of a vocational expert at this final
step. Id. (citation omitted).
B.

The Standard of Review: “Substantial Evidence”

This Court must affirm an AU’s decision if it is supported by substantial evidence. See
42 U.S.C.

§ 405(g), 1383(c)(3). Substantial evidence is “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, 91 5. Ct. 1420, 28 L. Ed. 2d 842 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206 83 L.Ed. 126 (1938)). To
determine whether an AU’s decision is supported by substantial evidence, this Court must

10

review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). However,
this Court may not “weigh the evidence or substitute its conclusions for those of the fact-finder.”
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted). Consequently, this
Court may not set an AU’s decision aside, “even if [it] would have decided the factual inquiry
differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations omitted).
III.

DISCUSSION

After applying the five-step process to Plaintiffs claim, the AU concluded that Plaintiff
“has not been under a disability within the meaning of the Social Security Act.” R. at 14. At
step one, the AU found that Plaintiff had not engaged in substantial gainful activity from the
alleged onset date through the date of decision. Id. at 15. At step two, the AU found that
Plaintiffs diabetes mellitus, lumbosacral and shoulder strains, and depression were severe
impairments. Id. at 15. At step three, the AU found that these severe impairments neither met
nor medically equaled the severity of a listed impairment. Id. at 16. At step four, the AU found
that, despite Plaintiffs severe impairments, Plaintiff had the RFC to perform light work with the
following limitations:
[Plaintiff] is limited to work that can be learned in [one] month or less and that
involves simple instructions. He is limited to work that involves no contact with
the general public. He can work in proximity with co-workers, but cannot work
with them. He can have contact with supervisors up to [one-third] of the day.
R. at 17. The AU then concluded that this RFC allowed Plaintiff to perform his past relevant
work as a carton forming machine operator and labeler in a shipping department. Id. at 20-21.
Consequently, the AU did not reach step five.

11

The crux of Plaintiff’s appeal to this Court is that the AU’s decisional RFC at step four is
not based on substantial evidence. Plaintiff alleges that this is so because the AU’s
6
mistreatment of the record led to erroneous findings and conclusions concerning Plaintiffs: (1)
diabetes mellitus; (2) shoulder and lumbosacral strains; and (3) depression. The Commissioner
responds that “[t]he AU properly identified the medically-supported work-related limitations
caused by Plaintiffs diabetes, lumbosacral and shoulder strain, and depression.” Def. Br. at 7.
The Court will consider each of Plaintiffs arguments in turn.
A.

Plaintiffs Diabetes Mellitus

Plaintiff contends that the AU’ s decision to attribute no specific restrictions resulting
from Plaintiffs diabetes mellitus lacked substantial evidence because the AU based her decision
solely on Plaintiffs noncompliance with his medication. See P1. Br. at 13. Plaintiffs contention
lacks merit. The AU based said decision, in part, on Plaintiffs “admitted non-compliance with
the anti-diabetic diet and exercise instructions of his treating physician.” R. at 18. The AU
further noted that “there [was] no medical evidence.

.

.

of any secondary diabetes related

complications in the form of target, end-organ damage, or the need for [hospitalization.]” Id.
Additionally, the AU noted that Dr. Cholankeril, Plaintiffs treating physician, opined that
“despite his poorly controlled diabetes, [Plaintiff] was capable of lifting and carrying 50 pounds,
he was limited for pushing and pulling, but.

.

.

had no limitations for sitting, standing, and

walking.” Id. The above three bases for the AU’s decision not to attribute specific restrictions
resulting from Plaintiffs diabetes mellitus are of the type that a “reasonable mind might accept
as adequate to support a conclusion.” Richardson, 402 U.s at 401 (citation omitted). Thus, said
decision is based on substantial evidence.

Plaintiff also contends that “there were absolutely no options available to the AU to deny plaintiff’s application at
step five” P1. Br. at 9. Plaintiff attacks a straw man. The AUJ did not reach step five.

12

B.

Plaintiff’s Shoulder and Lumbosacral Strains

Plaintiff argues that with regard to his “severe” shoulder strains, the AU did not specify
“which shoulder is affected or what limitations to [his] shoulder moved the AU to consider his
condition ‘severe.” P1. Br. at 13. To the contrary, the AU specified that both of Plaintiff’s
shoulders are affected. R. at 18. The AU noted that Dr. Horwitz, an orthopedic examiner,
“diagnosed repetitive stress and strain injuries to both shoulders.

.

.

.“

Id. (emphasis added).

The AU also adequately specified what limitations to Plaintiff’s shoulders led her to find
Plaintiff’s condition “severe.” The inquiry into severity is a “de minimis screening device to
7
dispose of groundless claims.” Newell v. Comm ‘r ofSoc. Sec., 347 F.3d 541, 546 (3d Cir. 2003)
(citations omitted). An impairment is “severe” if “the evidence presented by the claimant
presents more than a ‘slight abnormality.

.

.

.“

Id. (citation omitted). Here, the AU stated that

Dr. Horwitz’ s “[p]hysical examination of [Plaintiff’s] shoulders revealed evidence of tenderness
and limitation of motion,” providing a citation to Dr. Horwitz’s report. R. at 18. That report
noted that neither of Plaintiff’s shoulders moved smoothly. R. at 318. Plaintiff’s “[right]
[sjhoulder motion lack[ed] 20 degrees in elevation, 15 degrees in external rotation and 15
degrees in internal rotation..

.

.“

Id. Similarly, Plaintiff’s “[left] [s]houlder motion lack[ed] 20

degrees in elevation, 10 degrees in external rotation and 10 degrees in internal rotation.

.

.

.“

Id.

Although the AU ‘s decision did not explicitly note these limitations, the AU ‘s statement about
a “limitation of motion” in Plaintiffs shoulders, coupled with its citation to Dr. Horwitz’s report,
is sufficiently severe since it presents more than a “slight abnormality.”
Plaintiff next contends that the AU’s decision not to attribute any restrictions to
Plaintiffs severe shoulder impairments lacked substantial evidence. P1. Br. at 13. Plaintiff
Why Plaintiff apparently seeks to disprove the severity of his shoulder impainnents puzzles this Court because
a claimant is unable to show that he has a medically severe impairment, he is not eligible for benefits
Bowen, 482 U.s. at 138 (emphasis added).

13

alleges that the AU neither qualified nor rejected Dr. Horwitz’s findings. Id. at 13-14. Not so.
As explained below, the AU qualified Dr. Horwitz’s findings and found that Plaintiff’s shoulder
impairments contributed to Plaintiff having a RFC for light work. R. at 18-19.
The AU noted that “neurological examination by Dr. Cholankeril, a treating medical
source, was grossly intact with no significant weakness,” and cited to Dr. Cholankeril’s reports.
Id. at 18. Some of these reports state that musculoskeletal examination revealed “[n] o
deformities, no joint tenderness, [andj normal muscle tone and strength.” Id. at 3 83-84, 449-52.
Others merely state that Plaintiff had “{n]o muscle pain or swelling.” Id. at 506-09, 527-30, 53237. The AU also found it significant that Plaintiff has neither sought nor required “multiple
inpatient hospital admissions, frequent hospital emergency room care, surgical intervention, the
use of any potent narcotic analgesics for treatment of pain, any interventional pain treatment
modalities, a protracted course of physical therapy or any other indicia of totally disabling low
back and shoulder disorders.” Id. at 18. “In considering a claim for disability benefits, greater
weight should be given to the findings of a treating physician than to a physician who has
examined the claimant as a consultant.” Adorno v. Shalala, 40 F.3d 43, 47 (3d Cir. 1994). The
AU did just that by granting greater weight to Dr. Cholankeril’s reports—Dr. Cholankeril was
Plaintiff’s treating physician while Dr. Horwitz was a consultant. See R. at 18, 3 17-18. This
Court is not empowered to second-guess that decision. See Williams, 970 F.2d at 1182
(explaining that district courts may not weigh the evidence in social security appeals).
Accordingly, the AU’s finding that Plaintiff has a RFC for light work, in part, because of
Plaintiff’s shoulder impairments is supported by substantial evidence.
As to Plaintiff’s back injuries, Plaintiff argues that the AU mislabeled them as a
“lumbosacral strain.” P1. Br. at 13. Plaintiff directs this Court to the MRI proof in the record

14

that he had herniated disc and disc bulges. Id. To the extent that Plaintiff implies that this
purported mislabeling prevents the AU’s decisional RFC from being based on substantial
evidence, the Court is unconvinced. As a threshold matter, Plaintiff did have a lumbosacral
strain. See R. at 317-18 (diagnosing Plaintiff with “residuals of repetitive stress and strains to the
lumbosacral region”). More importantly, Plaintiff’s argument misses the point. In reviewing the
AU ‘s decision, this Court is concerned with whether she “show[edj [her] full engagement in the
evidence-weighing process.” Facyson v. Barnhart, 94 Fed. App’x 110, 114 (3d Cir. 2004)
(citations omitted). As Plaintiff admits, the AU noted that the MRI proof “demonstrated signs
of degenerative disc disease and a bulging disc at the L4-5 level, a ‘small’ herniated disc at the
L4-5 level and a ‘mild’ disc bulge at the L5-Sl level.

.

.

.“

R. at 18. The AU’s decision goes on

to qualify the MRI proof in light of Dr. Cholankeril’s reports, which this Court discussed in the
preceding paragraph. Id. Thus, the AU did not “take bits and snatches of the [medical
evidence] out of context.

.

.

.“

Daring, 727 F.2d at 70. Instead, as the substantial evidence

standard requires, the AU read the evidence in its totality. Id. Consequently, the AU’s finding
that Plaintiffs back injuries contributed to Plaintiffs RFC for light work is supported by
substantial evidence.
C.

Plaintiffs Depression

Plaintiff contends that the AU’s findings concerning the non-exertional restrictions
stemming from Plaintiffs depression are not based on substantial evidence. See P1. Br. at 14-16.
These findings are that Plaintiff: (1) “is limited to work that can be learned in I month of [sic]
less and that involves simple instructions; (2) “is limited to work that involves no contact with
the general public;” (3) “can work in proximity with co-workers, but cannot work with them;”
and (4) “can have contact with supervisors up to 1/3 of the day.” R. at 17. Said findings are not

15

based on substantial evidence, according to Plaintiff, because the AU “ignores, minimizes or
omits much of the treating psychiatric evidence.

.

.

.“

P1. Br. at 16-17. The Court agrees.

Trinitas treated Plaintiffs depression from July 2008 to June 2011. See R. at 331-41,
500. The intake assessment prepared by Trinitas in July 2008 assigned Plaintiff a GAF rating of
fifty. Id. at 341. The intake assessment noted that Plaintiff was having homicidal and suicidal
ideations, and had a suicidal plan at that time. Id. at 33 8-39. During the course of Plaintiffs
treatment with Trinitas, Trinitas reported that Plaintiff had “vague” suicidal ideations in March,
April, September, and November 2009. Id. at 400-01, 405-06. On May 20, 2010, Plaintiff was
admitted into Trinitas Regional Medical Center with depressive symptoms and suicidal ideation.
Id. at 471-72, 476. Trinitas assigned Plaintiff a GAF rating of twenty-five at that time. Id. at

477.
The facts in the preceding paragraph directly contradict the AU’s statement that “the
claimant’s own treating psychiatrist, who saw him from July 2008 to June 29, 2011, found that..
he had no homicidal or suicidal ideation.

.

.

.“

Id. at 19. They also contradict the

Commissioner’s assertion that “Plaintiffs own treating psychiatrist, who saw him from July
2008 to June 29, 2011,.

.

.

indicated.

.

.

that he had no homicidal or suicidal ideation.

.

.

.“

Def.

Br. at 12. The AU’s mistaken belief that Plaintiff did not have any suicidal or homicidal
ideations contributed to her rejection of the GAF rating assigned by Trinitas. See R. at 19
(“although his therapist issued several notes indicating that the claimant is ‘sometimes’ confused
with impaired concentration, I find that this intermittent condition does not support the finding of
a GAF.

.

.

scale test score of 50 or 55 as noted by his therapist.

.

.

.“).

The Third Circuit has

clarified that when the evidentiary basis of an AU’s decision is mistaken, the AU’s rejection of
evidence is unsound. Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981) (“Because the

16

evidentiary basis for his decision was not what he believed it to be, the AU’s rejection of
Plaintiffs assertions of disabling pain was unsound.”). Moreover, even if mistaken, “[t]he AU
cannot ignore evidence of a mental impairment in the record.
see also 42 U.S.C.

. . .“

Plummer, 186 F.3d at 432;

§ 423(d)(5)(B) (Commissioner must consider all evidence available in an

individual’s case record in making a disability determination). Here, the AU’s mistaken belief
makes her assertion that “the residual functional capacity finding is supported by the totality of
the evidence” unsound, bringing her ruling into question.
The AU’ s failure to discuss other contradictory medical evidence related to Plaintiffs
depression is also problematic. See Adorno, 40 F.3d at 48 (setting aside an AU determination
for failing to mention and refute some of the contradictory medical evidence before him). For
instance, the AU ‘s decision makes no mention of the medication Plaintiff used to treat his
depression, Plaintiffs insomnia, or his auditory hallucinations. See R. at 18-19. On remand, the
AU must review this “pertinent medical evidence, explaining his conciliations and rejections.”
Burnett, 220 F.3d at 122.
Another defect in the AU’s decision is that this Court cannot decipher why she found
that Plaintiff: (1) “is limited to work that can be learned in 1 month of [sic] less and that
involves simple instructions; (2) “is limited to work that involves no contact with the general
public;” (3) “can work in proximity with co-workers, but cannot work with them;” and (4) “can
have contact with supervisors up to 1/3 of the day.” R. at 17. An AU has an obligation “to
provide an adequate basis so that the reviewing court can determine whether the administrative
decision is based on substantial evidence.” Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981).

The AU has not provided such a basis and, thus, this Court cannot assess whether her decision is
based on substantial evidence. Further explanation is required.

17

IV.

CONCLUSION

The Court finds, for the reasons discussed above, that the AU’s findings concerning the
non-exertional restrictions resulting from Plaintiffs depression are not based on substantial
evidence. The decision of the AU is hereby remanded for further discussion consistent with this
Opinion. An appropriate order accompanies this Opinion.

DATED: August 2013
,
2
.S. DISTRICT JUDGE

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