CINTRON v. COMMISSIONER OF SOCIAL SECURITY
Filing
22
OPINION. Signed by Judge Kevin McNulty on 12/2/14. (jd, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALICIA CINTRON,
Civ. No. 2: 13-cv-7 125 (KM)
Plaintiff,
OPINION
V.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Alicia Cintron brings this action pursuant to 42 U.S.C. 405(g)
§
and 42 U.S.C. § 1383(c)(3) to review a final decision of the Commissioner
of Social Security (“Commissioner”) denying her claim for Title II
Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security
Income (“SSI”). Cintron alleges that she is unable to engage in
substantial gainful activity because she suffers from depression, anxiety,
and panic attacks. (P1. Letter’ 1, ECF No. 10).
Because the Administrative Law Judge misapplied the step-two
analysis of the five-step process for adjudicating claims, I will remand
this matter for further proceedings. Cintron raises other claims of
error:
essentially, that the ALl failed to discharge his special duty to develop
the record when an applicant appears pro Se, and erred in his evaluation
of the medical records in the case. As the analysis proceeds past step
two
on remand, those objections may be mooted. On remand, the AU
should: 1) further develop the record regarding Cintron’s impairments,
2)
evaluate the Norgren report; and 3) provide justifications for why certain
reports have been discredited, in whole or in part.
1
This letter, and all briefmg, was submitted pursuant to L. Civ. R. 9.1.
1
I.
BACKGROUND
Cintron seeks DIB and SSI benefits for a period of disability
beginning December 15, 2009. (Administrative Record 107—112, 114—
118, ECF No. 8). Cintron’s original applications for benefits were denied
(Id. 44—46, 52—54), and she requested that her claim be reconsidered (Id.
55—56). After holding a hearing, Administrative Law Judge (“AU”)
Richard De Steno denied Cintron’s claim in a decision dated July 6,
2012. (Id. 28—29, 17—24). In a letter dated September 26, 2013, the
Appeals Council denied the appeal, making the AU’s decision the “final
decision” of the Commissioner. (Id. 1—5). Cintron now appeals that
decision.
II.
DISCUSSION
To qualIfy for Title II DIB benefits, a claimant must meet the
insured status requirements of 42 U.S.C. § 423(c). To be eligible for SSI
benefits, a claimant must meet the income and resource limitations of 42
U.S.C. § 1382. To qualify under either statute, a claimant must show
that she is unable to engage in substantial gainful activity by reason of
any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted (or can be expected to last)
for a continuous period of not less than twelve months. 42 U.S.C. §
423(d)(l)(A), 1382c(a)(3)(A).
Cintron submits that the Commissioner’s decision is not supported
by substantial evidence. Specifically, Cintron argues that the AU: 1)
erroneously found that her medical condition did not meet Step Two of
the Five-Step Process for reviewing her claim; 2) failed to develop the
record fully and fairly, in light of her mental impairment and her status
as a pro se applicant; 3) failed to substantiate his findings that she
lacked credibility; and 4) improperly evaluated her medical records. (P1.
Br., ECF No. 13).
2
a. Five-Step Process and this Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for
determining whether a claimant is entitled to benefits. 20 CFR
§
404.1520, 4 16.920. Review necessarily incorporates a determination
of
whether the AU properly followed the five-step process prescribed by
regulation. The steps may be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in
substantial gainful activity since the onset date of the alleged
disability. 20 CFR § 404.1520(b), 416.920(b). If not, move to step
two.
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.
§ 404.1520(c),
4 16.920(c). If the claimant has a severe impairment, move to
step three.
Step 3: Determine whether the impairment meets or equals
the criteria of any impairment found in the Listing of
Impairments. 20 CFR Part 404, Subpart P, Appendix 1, Part
A. If so, the claimant is automatically eligible to receive
benefits; if not, move to step four. Id.
§ 404.1520(d),
416.920(d).
Step 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to
perform past relevant work. Id.
§ 404.1520(e)-(f), 416.920(e)-(f). If
not, move to step five.
Step 5: At this point, the burden shifts to the SSA to
demonstrate that the claimant, considering her age,
education, work experienee, and RFe, is capable of
performing jobs that exist in significant numbers in the
3
national economy. 20 CFR § 404.1520(g), 4 16.920(g); see
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 9 1—92 (3d Cir.
2007). If so, benefits will be denied; if not, they will be
awarded.
As to all legal issues, this Court conducts a plenary review.
to
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As
factual findings, this Court adheres to the AU’s findings, as long as they
are supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501,
d,
503 (3d Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are dispute
this Court will “determine whether the administrative record contains
substantial evidence supporting the findings.” Sykes v. Apfel, 228 F.3d
259, 262 (3d Cir. 2000). Substantial evidence “means such relevant
evidence as a reasonable mind might accept as adequate to support a
n
conclusion.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citatio
omitted). That is “less than a preponderance of the evidence but more
than a mere scintilla.” Id.
[I]n evaluating whether substantial evidence supports the
leniency should be shown in establishing
AU’s findings.
the Secretary’s
the claimant’s disability, and
responsibility to rebut it should be strictly construed. Due
regard for the beneficent purposes of the legislation requires
that a more tolerant standard be used in this administrative
proceeding than is applicable in a typical suit in a court of
record where the adversary system prevails.
.
.
.
.
.
s
Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citation
t
and quotations omitted). When there is substantial evidence to suppor
the AU’s factual findings, this Court must abide by them. See Jones,
364 F.3d at 503 (citing 42 U.S.C. § 405(g)).
This Court may, under 42 U.S.C. § 405(g) and the Third Circuit’s
Podedwomy opinion, affirm, modify, or reverse the Secretary’s decision,
4
Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Commissioner, 235
F.
App’x 853, 865-66 (3d Cir. 2007).
Outright reversal with an award of benefits is appropriate only
when a fully developed administrative record contains substantial
evidence indicating that the claimant is disabled and entitled to benefits.
Podedworny, 745 F.2d at 22 1-222; Morales v. Apfel, 225 F.3d 310, 320
(3d Cir. 2000); see also Bantleon v. Comm’r of Soc. Sec., 2010 U.S. Dist.
LEXIS 99537, at *38...3g (D.N.J. 2010).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps
of the five step inquiry. See Podedworny, 745 F.2d at 221—22. Remand
is
also proper if the AU’s decision lacks adequate reasoning or support
for
its conclusions, or if it contains illogical or contradictory findings. See
Burnett v. Commissioner of SSA, 220 F.3d 112, 119—20 (3d Cir. 2000);
Leech v. Bamhart, 111 F. App’x 652, 658 (3d Cir. 2004) (“We will not
accept the AU’s conclusion that Leech was not disabled during the
relevant period, where his decision contains significant contradictions
and is therefore unreliable.”). It is also proper to remand where the
ALT’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).
b. The AU’s decision
The AU
truncated the five-step analysis at step two. At step one,
the AU determined that Cintron had not engaged in substantial
gainful
activity since December 15, 2009, her alleged onset date. (R. 19). At step
two, the ALT conducted a two-part analysis pursuant to 20 CFR Pt.
404,
Subpt. P, App. 1, and found that: 1) Cintron had “medically determinable
impairments” of depression and anxiety; but 2) Cintron did not suffer
from “severe impairment[s}” because her impairments did not
5
significantly limit her “ability to perform basic work-related activities for
12 consecutive months.” (R. 19 (citing 20 CFR § 404.1521 et seq. and
416.921 et seq.)). In evaluating the “intensity, persistence, and limiting
effects” of Cintron’s impairments, the AU considered the four broad
functional areas outlined in the regulation: 1) daily living, 2) social
functioning, 3) concentration, persistence, or pace; and 4) episodes of
decompensation. (R. 20-22); 20 CFR Pt. 404, Subpt. P, App. 1. The AU
found that Cintron suffered from “mild limitation” in the first three
functional areas and that she had not experienced any episodes of
decompensation of extended duration. (R. 22—23). Overall, the AU found
that Cintron’s depression and anxiety have not have “any greater than a
slight or minimal effect on her ability to perform basic work activities for
12 continuous months.” (R. 23). The AU based this decision on differing
2
GAF estimates of Cintron’s mental health, on the absence of
“hospitalizations for mental impairment, outbursts, strained
interpersonal relations, or aberrant behavior,” on Cintron’s “lack” of
treatment record, and on her showing “little insight into her condition,
and more often than not, little motivation to comply with recommended
treatment.” (R. 23—24).
As noted above, a negative finding at step two requires that
benefits be denied.
Below is a summary of the evidence described by the AU based on
his review of the record:
Cintron’s testimony: The AU conducted a hearing with
Cintron on June 28, 2012 (R. 30—39). When asked about her
past employment, Cintron testified that: 1) from 1995-2001,
she worked for the Belleville Board of Education and was
also a school bus driver, which required her to lift and carry
A GAF (Global Ass@ssment Functioning) core is a scale used by the American
Psychiatric Association to evaluate mental disorders. See Am. Psychiatric Assn,
Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV).
6
wheelchairs at times; 2) from 2002 to 2004, she worked as a
bus driver for Cross County Transportation; 3) from 2006 to
2007, she worked as a bus driver of a small bus or mini-van;
and 4) in 2009, her only employment was delivering pizzas,
and that she does not know of any self-employment, which
was reported in her earnings record. (R. 20—21). When asked
why she is disabled, Cintron reported “getting fired from
jobs, crying, [andi not being able to concentrate or be around
people.” (R. 21). Cintron testified that she felt people were
judging her, felt anxious, and avoided people by staying
home. (R. 21). Cintron said she lived with her husband and
two children, who are 18 and 25 years old, and that she does
not do household chores. (R. 21). Instead, Cintron said she
watched TV and slept during the day. (R. 21). Cintron
testified that she cannot drive because of her constant
crying, that she has trouble sleeping because she wakes up
every hour, and that her energy level is low. (R. 21). Cintron
said she does not have any hobbies or interests, her
depression makes her feel worthless, and she thought about
suicide a few months before the hearing. (R. 21). Cintron
also reported that she hears people talking about her, fights
with her family and does not like to be around them, spends
most of her time in her room, and while working, fought with
her coworkers, for which she was fired. (R. 21). Cintron said
she felt nervous being at the hearing and that her husband
drove her there. (R. 21).
•
Family doctor treatment: Cintron had been receiving
treatment for depression and anxiety since February 2005 by
her general practitioner from Empire Medical Associates,
which included a prescription for Prozac. (R. 21). The AU
noted that the Prozac appeared to be helping her, since the
record showed Cintron felt better and was not suicidal (R. 21
(citing Ex. iF, p.16). Cintron’s general practitioner treated
her for depression and anxiety through February 2010. (R.
21). The AU determined this treatment “appeared to be
effective, because it was not until June 2010, two months
after her brother died, that her general practitioner referred
her to a specialist.” (R. 21 (citing R. 164—176)).
7
•
Dr. Kennedy: In June 2010, Cintron was evaluated by Dr.
Kennedy at Mountainside Hospital. (R. 21). Dr. Kennedy’s
report indicated that the referral was based on Cintron’s
continued reports of depression despite her treatment. (R.
21). Cintron told Dr. Kennedy that she was irritable,
withdrawn, angry, upset, and that her irritability and anger
had caused her to lose jobs in the past and had resulted in a
physical altercation with a coworker. (R. 2 1). Dr. Kennedy
estimated a GAF of 60, diagnosed Cintron with major
depression, and for treatment, increased her dosage of
Effexor and added Abilify. (R. 21). The AJ.J noted that there
were no additional records from Dr. Kennedy, despite
Cintron’s reports to another examiner that she received
regular treatment from Dr. Kennedy. (R. 21).
•
S. Norgren, LPC: In June 2010, Cintron was given a
psychosocial assessment by S. Norgren, LPC (Licensed
Professional Counselor), of Mountainside Hospital. (R. 21).
Norgren found that Cintron sometimes managed daily
activities, that she appeared to be dressed and acting
appropriately during the interview with him, but that her
mood was depressed and her concentration was impaired.
(R. 21). Because of this, Norgren also diagnosed Cintron with
major depression and an estimated GAF of 55. (R. 21 (citing
R. 220—28)).
•
Dr. Fulford: Cintron also underwent a mental status
examination conducted by consultative examiner Dr. Paul
Fulford, who diagnosed Cintron with dysthymic disorder and
estimated what the AU described as a “highly functional”
GAF of 65. (R. 21 (citing R. 229—31)).
•
Letter from sister, Ugaro: In January 2011, Cintron’s sister,
Gladys Ugaro, who is a certified social worker, wrote a letter
about Cintron’s condition. (R. 21). Ugaro reported that
Cintron could not maintain employment because of her
severe depression, and that she suffered from “irritability,
mood swings, oci1 isn1tion, trnuble sleeping and increased
anxiety.” (R. 22 (citing R. 151)).
8
•
First Northwest Essex evaluation: In June 2011, Cintron was
evaluated at Northwest Essex Community Healthcare. (R.
22). The interviewer observed that Cintron was fidgety, her
affect was constricted, and her mood was anxious and
depressed. (R. 22). Cintron complained of “difficulty with
concentration and focus, sleep, appetite, and some loosening
association at times.” (R. 22). The interviewer diagnosed
Cintron with a mood disorder, rule/out bipolar disorder and
a GAF of 50. (R. 22). The AU found it significant that
Cintron was advised to attend a partial care program by her
intake worker, but was not willing to do so, and that Cintron
missed appointments at Northwest Essex, which led the
program to discontinue her treatment. (R. 22 (citing R. 235—
43)).
•
Second Northwest Essex evaluation: A second evaluation
was done by Northwest Essex. To the second evaluator,
Cintron reported that she “sometimes heard her name being
called in the waking hours and.. felt paranoid that people
were talking about her.” (R. 22). The second evaluator
diagnosed Cintron with “major depression, single episode,
severe with psychotic features, rule/out bipolar disorder;
and alcohol abuse, and indicated a GAF of 60.” (R. 22). The
second evaluation reported that Cintron sought out
treatment “to see if it would help and to satisfy her
husband.” (R. 22 (citing R. 244—55)).
.
In his analysis, the AU gave “substantial weight” to the
evaluations by Dr. Fulford and Dr. Kennedy because those two doctors’
findings—in particular, their GAF estimates—were consistent with one
another and supported by “substantial evidence in the record, including
the claimant’s Function Report” (R. 24). The AU gave “some weight,”
but
not “substantial weight,” to the two evaluations from Northwest Essex
Group, because the GAFs reported there “were inconsistent with each
other in such a close period.” (R. 24). Finally, the AU did not “grant any
significant weight to the opinion of the claimant’s sister” because she had
9
not treated Cintron in a professional capacity and “her familial
relationship cannot be discounted,” presumably as a source of potential
bias (R. 24).
c. Cintron’s appeal
First, Cintron argues that the AU misapplied the severity standard
in his step-two analysis by applying a “greater than slightness” standard
and by “failing to expressly articulate a slightness or de minimis standard
in the evaluation of Cintron’s condition.” (P1. Br. 17). Cintron also argues
that doubts at the step-two analysis were not resolved in her favor, as
the case law requires. Second, Cintron argues that the AU did not fully
develop the record in light of his heightened duty to do so because
Cintron was a pro se applicant. (P1. Br. 23). Third, Cintron argues that
the AU erred in finding certain of Cintron’s statements at the hearing
not credible, as well as in discounting the significance of the letter from
Cintron’s sister. (P1. Br. 28). Finally, Cintron argues that the AU erred in
his review of the medical records by improperly rejecting one record,
cherry-picking from two records, and giving insufficient reasons for the
weight he assigned to two of the records. (P1. Br. 34—40).
d. Analysis
1. AU’s step-two review
The Third Circuit has instructed that “the Commissioner’s
determination to deny an applicant’s request for benefits at step two
should be reviewed with close scrutiny.” McCrea v. Comm’r of Soc. Sec.,
370 F.3d 357, 360 (3d Cir. 2004). “[B]ecause step two is to be rarely
utilized as basis for the denial of benefits,
.
.
.
its invocation is certain to
raise a judicial eyebrow.” Id. at 361 (citing SSR 85—28, 1995 WL 56856,
at *4 (“Great care should be exercised in applying the not severe
impairment concept.”)). Specifically, the Third Circuit has explained the
step-two burden as follows:
10
The burden placed on an applicant at step two is not an
exacting one. Although the regulatory language speaks in
terms of “severity,” the Commissioner has clarified that an
applicant need only demonstrate something beyond “a slight
abnormality or a combination of slight abnormalities which
would have no more than a minimal effect on an individual’s
ability to work.” SSR 85—28, 1985 WL 56856, at *3•
Any
doubt as to whether this showing has been made is to be
resolved in favor of the applicant.
In short, the step-two
inquiry is a de minimis screening device to dispose of
groundless claims.
.
.
.
.
Id. at 360 (internal quotations and citations omitted); see also
Newell v.
Comm’r of Soc. Sec., 347 F. 3d 541, 546—47 (3d Cir. 2003).
This is not that “rare[1” case. McCrea, 370 F.3d at 361. The
evidence here, even as presented and analyzed by the AU, surmounted
the fairly low threshold of step two. With doubts resolved in
Cintron’s
favor, this claim of impairment is not “groundless.” Id. at 360.
The evidence presented by Cintron established that she has more
than “a slight abnormality or combination of abnormalities.” Id.
Cintron
has been diagnosed with major depression, severe with psychotic
features, anxiety, rule/out bipolar disorder, and alcohol abuse. (R.
21—
22). Her GAF has been estimated to be as low as 50. (R. 22).3 Reports
considered by the AU showed that Cintron suffered from impaired
concentration, that she had difficulties with focus, sleep, and appetite,
that she had some loosening association at times, that she was
paranoid
and sometimes heard her name being called, that she experienced
passive suicidal ideation, and that she was irritable, had mood swings,
and was socially isolated. (R. 2 1—22). These reports also indicated
that
Cintron’s physicians increased the dosages of her medications and
prescribed additional medications when her symptoms were not
alleviated despite treatment. (R. 21; see, e.g., R. 244—45). Testimony
and
Cintron’s GAF has been estimated by multiple evaluators at different
times,
and has been reported to be: 50, 55, 60, 60, and 65. (R. 2 1—22).
3
11
reports have shown that Cintron had been fired from previous
employment for crying and fighting with coworkers, that she has no
interests or hobbies, and that she spends most days watching television
and sleeping. (R. 34—36, 37, 221). Cintron also testified that she
considered suicide as recently as two months prior to the hearing. (R.
36). The totality of this evidence establishes Cintron’s severe impairment.
The AU thus erred in truncating his analysis at step two. The
evidence presented by Cintron is enough to surpass this de minimis
screening step. McCrea, 370 F.3d at 360. Moreover, the Third Circuit has
frowned upon weighing and evaluating the medical evidence adduced by
applicants at step two, as the AU has done in this case. See Magwood v.
Comm’r of Soc. Sec., 417 F. App’x 130, 132 (3d Cir. 2008) (“[T]he AU
ignored McCrea’s instruction by weighing the medical evidence adduced
against the consultative examination of a
by [the applicanti
.
.
.
psychologist and a consultative review of a psychiatrist. This was error.”).
Rather, any doubts about the evidence at step two are to be resolved in
the applicant’s favor. McCrea, 370 F.3d at 360; Newell, 347 F.3d at 546—
47.
I have determined that the case should have proceeded past step
two and have remanded for further proceedings. Cintron raises
objections to the manner in which the evidence was treated. Some of the
alleged deficiencies, of course, arise only because the analysis was
truncated at step two, and need not be discussed in detail. As a guide on
remand, however, I briefly discuss some of the issues raised by Cintron.
ii. Aid’s failure to develop the record
Cintron argues that the AUJ failed to develop the record in light of
Cintron’s status as a pro se applicant, her impairments, and her limited
education. (P1. Br. 23). Specifically, Cintron argues that the ALT did not
sufficiently probe into Cintron’s medical impairments, medical regimen,
12
medication and side-effects, suicidal ideations, auditory hallu
cinations,
insomnia, panic attacks, and the reasons behind Cintron’s
missed
appointments and refusal to participate in a treatment prog
ram. (P1. Br.
25—26). Cintron and the Commissioner agree that the AU has
a duty to
develop the record, which is heightened because of Cintron’s
status as a
pro se applicant. (P1. Br. 23; Def. Br. 7).
4
As a preliminary matter, Cintron appears to argue that as
a matter
of law, a 13-minute hearing producing a 12-page transcript
demonstrates the AU’s failure to develop the record. (P1. Br.
24—25). That
is not determinative in itself the length of the hearing, howev
er, may be
considered by a court in determining whether an AU suffici
ently
developed the record. (P1. Br. 25 (citing Sears v. Bowen, 840
F. 2d 394,
403 (7th Cir. 1988); Moran v. Astrue, 569 F.3d 108, 112—
13 (2d. Cir.
2009); Lashley v. Sec. HHS, 708 F.2d 1048, 105 1—52 (6th Cir.
1983))).
On remand, the AU should take care to sufficiently exam
ine
Cintron or obtain additional information to clarify several
issues that
relate to his finding of non-severity, but may also be relev
ant to steps 3,
4, or 5.
Suicidal ideation, for example, may be a symptom of a cond
ition
that, alone or in combination with others, may be disabling.
At step two,
the AU largely confined his analysis to the statement that
Cintron
“clearly cares about her daughter” because “[s]he cited
her daughter as
one of the reason[s] she would never act on passive suici
dal ideation she
occasionally experiences.” (R. 22—23 (citing reports from
Dr. Fulford and
Northwest Essex)). Of course, suicidal ideation can be disab
ling even if
the person possesses the mental resources to refrain from
acting upon it.
At the AU hearing on June 28, 2012, Cintron was represented
by Philip
Pavlick, a third year law student. (R. 28—30). iRecause the paisaee
—there---—----—----—
was a heightened duty to develop the record in this case, I do
not address how
this representation affects the AU’s duty.
13
suicidal
There is little analysis of the frequency, extent, and impact of
analysis
ideation on Cintron’s daily activities or ability to work. Such
tor at least
would be appropriate, given that almost every medical evalua
referred to Cintron’s suicidal ideation.
ing
The evidence of suicidal ideation may require probing, by obtain
n. On
additional medical evidence or by eliciting testimony from Cintro
t about
June 28, 2012, Cintron indicated to the AU that she though
(R. 36).
suicide as recently as a couple of months prior to the hearing.
ers.
5 The
The entire exchange consisted of two questions with short answ
as to the
AU did not follow up or obtain additional medical evidence
the
frequency, extent, or impact of such thoughts. At the very least,
evidence currently of record must be analyzed and discussed. Such
evidence includes the following:
R. 179 (primary care records from 2005 state that, under
(June 21,
medication, she was “feeling better” and “not suicidal”); R. 164
al
2010 record from primary care physician that Cintron had “suicid
d “yes” for
ideation”); R. 225 (June 30, 2010 evaluation by Norgren checke
tion by
the box next to suicidal ideation); R. 219 (August 4, 2010 evalua
Dr. Kennedy that Cintron “says a couple of years ago she had some
evaluation
suicidal feelings but not recently”); R. 230 (November 7, 2010
by Dr. Fulford that “in the past she did think that life was not
is”); R.
worthwhile, but now she thinks of her daughter and believes it
The entire testimony on suicidal thoughts consists of the following:
Q: Have you ever thought about committing suicide, Ms. Cintron?
A: Yes, I have. Yes.
Q: How recently?
A: A couple of months ago.
come in
(R. 36). Certainly there is no absolute requirement that evidence must
ambiguities in the record
the form of testimony at a hearing. However, given the
p the record,
—abotrt-su4eid&l-idiei-an4-theALJ’s heightened duty to develo
additional
the AU should either have examined Cintron about this or obtained
medical reports to clarify this issue.
5
14
246 (June 6, 2011 evaluation from Northwest Essex that “sometimes she
thinks about ‘taking my pills’ but she ‘think about my daughter’ and this
stops her”); R. 254 (note in same evaluation that Cintron has a “family
history of suicide attempt[s]” and that she has a “passive SI [suicidal
ideation] with a plan in the past year”); R. 236 (June 22, 2011 evaluation
from Northwest Essex, reporting statement by Cintron that “Sometimes I
think I want to end it by taking pills I was close to doing it but did not—
because I love my daughter and she needs me”).
Another area that should be explored on remand is Cintron’s
medical treatment. The AU concluded that “the claimant’s treatment
record, or lack thereof, speaks for itself,” that Cintron displayed “an
unwillingness to participate in a partial care program,” and that “the
claimant showed little insight into her condition, and more often than
not, little motivation to comply with recommended treatment.” (R. 24).
That conclusion seemingly rested on a June 22, 2011 statement from an
evaluator at Northwest Essex, who reported that Cintron was unwilling
to attend a partial care program. (R. 235).
Other evidence, however, is to the contrary; if it is to be rejected, it
must be discussed and discounted for a valid reason. Cintron’s primary
care records reveal prescriptions and visits to her primary care doctor to
seek treatment as far back as 2005. (R. 164—183). Her visits with Dr.
Kennedy and Ms. Norgren from Mountainside, and her visits with
professionals from Northwest Essex reveal at least some treatment
history. Also, as the AU acknowledges, Cintron told Dr. Fulford that she
visited Dr. Kennedy and another therapist regularly. (R. 35; R.230 (“She
is currently in treatment with a Dr. Kenny [Kennedy] of Mountainside
Hospital in Montclair, N.J. She started treatment there 5 months ago.
Her last visit was 2 weeks ago. She sees a therapist, but does not know
the name of the therapist.”)). The ALT noted that there were ne treatment
records from Dr. Kennedy that show an ongoing treatment relationship.
15
But Cintron also testified at the hearing that she continues to see a
6
mental health professional, a statement that should have been followed
up. (R. 35). In short, the treatment record has not been adequately
explored. (R. 23).
Other topics that may require discussion or exploration on remand
include Cintron’s prescriptions and any potential side effects; the
effectiveness of her current prescriptions and any treatment she was
receiving; the voices that Cintron reported occasionally hearing; her
reported panic attacks; and her difficulties with sleep. (P1. Br. 25—26).
An AU
need not necessarily probe into every listed symptom that
every claimant reports. The proceedings here, however, must be
expanded on remand in order to fulfill an AU’s heightened duty to
develop the record with pro se applicants.
iii. AU’s evaluation of the medical records
Cintron argues that the AU
did not adequately consider the report
from Sandra Norgren, LPC, and the two reports from Northwest Essex
(P1. Br. 38—40). On remand, the AU should take care explain his
reasoning in evaluating the medical records. In particular, the AU must
either credit the Norgren report or give his reasons for discrediting it, in
whole or in part. For the Northwest Essex reports, or any other reports
that are not accepted or rejected in their entirety, the AU must explain
It is not clear from the hearing testimony, and the AU did not attempt to
clarify, who Cintron sees for treatment and how frequent her visits are:
Q: So how do you occupy your day all day every day?
A: Just watch TV and then sleep most of the time. I go to the psychiatrist
whenever I have to go.
Q: How often do you go?
A: Once a month. Therapist I go one, one a week.
6
From this testimony, it is not clear whether Cintron meets with a psychiatrist
monthly and a therapist weekly, as her statements to Dr. Fulford seem to
suggest, er whether Cintron was saying thpt the psynhiatrist and therapist were
one person. Either way, the AU did not continue with this line of questioning to
clarify the issue.
16
why certain portions of a report are discredited and others are relied
upon.
A district court reviewing an AU’s decision “need[s] from the AU
not only an expression of the evidence [he] considered which supports
the result, but also some indication of the evidence which was rejected.”
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) (citing Dobrowolsky v.
Califano, 606 F.2d 403 (3d Cir. 1979). The Third Circuit has repeatedly
explained that, without a clear indication from the AU of the evidence
that was rejected and the reasons for rejecting it, a district court cannot
uphold the AU’s decision:
[U]nless the Secretary has analyzed all evidence and has
sufficiently explained the weight he has given to obviously
probative exhibits, to say that his 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.
Id. (quoting Dobrowolsky v. Calfano, 606 F.2d 403, 407 (3d Cir. 1979))
(internal quotations omitted). An AU may not “reject evidence for no
reason or for the wrong reason.” Id. at 706; see also Plummer v. Apfel,
186 F.3d 422, 429 (3d Cir. 1999) (“the AU may choose whom to credit
but cannot reject evidence for no reason or for the wrong reason”)
(citation and quotation omitted). Therefore, “an explanation from the AU
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.” Id. at 706—07.
This need for explanation is “particularly acute” when the AU “has
rejected relevant evidence or when there is conflicting probative evidence
in the record.” Id. at 706. Evidence to be considered and weighed on
remand should include the following:
17
1. Norgren report
Cintron argues that the AU did not adequately consider a report
from Sandra Norgren, LPC (“Licensed Professional Counselor”), who
evaluated Cintron on June 30, 2010. (P1. Br. 38). Although Ms. Norgren,
a licensed professional counselor, does not fall under the “[ijicensed
physicians” category under the regulations, she is clearly an acceptable
“[m]edical source” under the “[ojther sources” category, which states that
“[o]ther sources include, but are not limited to
.
.
.
listed in paragraph (a) of this section (for example,
CFR
medical sources not
.
.
.
therapists).” 20
§ 404.9 13, 404.1513. As the Social Security Administration has
instructed:
Opinions from these medical sources, who are not
technically deemed ‘acceptable medical sources’ under our
rules, are important and should be evaluated on key issues
such as impairment severity and functional effects, along
with the other relevant evidence in the file.
Titles II & XVI: II & XVI: Considering Opinions & Other Evidence from
Sources Who Are Not “Acceptable Med. Sources” in Disability Claims;
Considering Decisions on Disability by Other Governmental &
Nongovernmental Agencies, SSR 06-03P (S.S.A. Aug. 9, 2006).
Although the AU briefly described Norgren’s evaluation, the AU
did not explain whether he credited this evidence, and if he rejected the
evidence, what his reasons were for the rejection. (R. 21). The analysis on
remand, which will of course proceed past step 2, should include an
evaluation of the Norgren report.
2. Northwest Essex reports
Cintron argues the AU’s evaluation of Northwest Essex reports
was deficient because: 1) the AU “cherry-picked” certain facts from the
reports to support his findings; and 2) the AU’s reasons for only giving
18
the Northwest Essex reports “some weight” as opposed to “substantial
weight” are faulty. (P1. Br. 35—40).
a. Chemj-picking
An AU cannot rely on portions of documents from the record
without also refuting “the statements made therein that contradict his
findings.” Cadavid v. Comm’r of Soc. Sec., No. CIVA 12-72 14 JLL, 2014
WL 839453, at *9 (D.N.J. Feb. 26, 2014) (not precedential). Although the
AU concluded that as a whole, the Northwest Essex reports were to be
given only “some weight” as opposed to “substantial weight,” he did not
explain why certain portions of the reports were credited over others.
This should be remedied on remand. See Morales v. Apfel, 225 F.3d 310,
318 (3d Cir. 2000) (ALT may not rely on those “pieces of the examination
reports that support[] [his] determination” while “ignoring ultimate
conclusions and medical symptomatology”).
In his determination, the AU credited those portions of the
Northwest Essex evaluations that reported that Cintron had “good
hygiene,” that she was “casually, neatly, and appropriately dressed,” that
her “recent and remote memory were intact,” and that she would not act
on her suicidal ideation because of her daughter. (R. 22, 23). However,
the AU
did not explain why he discredited other contradictory portions
of the reports that said that Cintron “sometimes heard her name being
called in the waking hours and that she felt paranoid that people were
talking about her,” that her “affect was constricted,” that “her mood was
anxious and depressed,” and that she complained of “difficulty with
concentration and focus, sleep, appetite, and some loosening association
at times.” (R. 22 (citing R. 235—42, 246—55)).
On remand, the ALT should explain why certain portions of the
reports are credited and others are not.
19
b. GAF Scores
An AU may not “reject evidence for no reason or for the wrong
reason.” Cotter, 642 F.3d at 706; see also Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999) (“the AU may choose whom to credit but cannot
reject evidence for no reason or for the wrong reason”) (citation and
quotation omitted). In this case, the AU did not have sufficient evidence
in the record to support his determination to give only “some weight” as
opposed to “substantial weight” to the Northwest Essex reports based on
differing GAF estimates.
As the AU himself noted, “GAF scores are essentially general
educated guesses of the overall mental functioning of an individual and
are not precise diagnostic assessments of the ability to function.” (R. 23).
Thus, it is entirely plausible that evaluations conducted weeks apart may
yield differing GAF scores. There is nothing in the record to inform the
AU as to how often a GAF estimate carl plausibly change, and how large
of a change would be indicative of an inconsistency in evaluations. Even
accepting the AU’s conclusion that the differing GAF scores were
probative of the credibility of the findings, it is not at all clear that both
evaluations should have been discarded without further explanation. On
remand, the AU should provide further justification if the Northwest
Essex reports are discredited.
20
III.
CONCLUSION
For the foregoing reasons, the AU’s decision is remanded for
further proceedings consistent with this Opinion.
Dated: December 2, 2014
KEVIN MCNULTY
United States District Judg
21
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