SMITH v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Jose L. Linares on 1/27/16. (cm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 15-1272 (JLL)
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
LINARES, District Judge.
This matter comes before the Court upon the appeal of Daniel Smith (“Plaintiff’) from
final decision of the Commissioner upholding the final determination by Administrativ
Judge (“AU”) Hon. Louis G. Mc Afoos III, denying Plaintiffs application for Child’
Benefits (“CIB”) and Supplemental Security Income (“SSI”) under the Social Securi
ty Act (the
“Act”). AU Mc Afoos found that Plaintiff was not disabled as defined in section
s 223(d) and
1614(a)(3)(A) of the Act, pertinent to Plaintiffs applications for CIB and SSI, respec
The Court has jurisdiction over this matter pursuant to 42 U.S.C.
§ 405(g) and 1383(c)(3),
and resolves this matter on the parties’ briefs pursuant to Local Civil Rule 9.1(f).
the submissions of both parties, for the following reasons, the Court will remand
this matter back
to the AU for reconsideration of Plaintiffs application in a manner consistent
with this Opinion.
A. Factual History
In Plaintiffs applications for CIB and SSI, filed on July 21, 2010, he claimed that he had
been disabled since June 1, 1995. (R. at 213, 217). Specifically, Plaintiff claimed that he was
disabled due to a learning disability, speech impairment, back injury, depression, bipolar disorder,
and anxiety. (Id. at 393). In other words, Plaintiff claims to suffer from both physical and nonphysical impairments.
Plaintiff cites to complications during his birth as well as a fall down stairs at six months
of age, which resulted in a facture to his skull in three places, as the beginning of his struggles with
speech difficulties and learning. (ECF No. 10, “P1’s. Mov. Br.” at 2). Plaintiffs early academ
records revealed “signs of a mild neurologically based learning disorder associated with norma
cognitive functioning” with “some degree of central auditory processing dysfunction.” (R. at
Tests performed when Plaintiff was fourteen years old showed that his intellectual functioning was
“within the low average to average range.” (Id. at 721). Educational records from Plaintiffs later
high school years indicate that Plaintiff received special education services, had a stutter
problem, and that in the eleventh grade he fell below his peers in reading comprehension, written
language and math skills, testing at ninth, eighth, and seventh grade levels in each
(Id. at 773-776). Plaintiff graduated from high school, with a class
ranking of 87 out of 103 students. (Id. at 58, 467).
Beginning in 2004, Plaintiff was hospitalized on several occasions in connection with his
bipolar disorder, depression, anxiety, and/or suicidal ideation, as well as for abdom
thought to be associated with drug use. Once admitted, Plaintiff typically remained in
“R” refers to the Administrative Record, which uses continued pagination and can be
found at ECF No. 7.
for only a few days; however, on one occasion Plaintiff remained in the hospital for approximately
two weeks (id. at 983), and on another occasion he was not discharged until more than three weeks
after arrival. (Id. at 985). Plaintiff was prescribed numerous medications for his psychological
symptoms and pain. (Id. at 61). Plaintiff testified, and the medical records substantiate, that he
abused both legal and illegal drugs and that he was often non-compliant with the medications
prescribed to him. (Id. at 56).
In addition to facing difficulties with certain cognitive functioning, psychological
diagnoses, and drug and alcohol dependence, Plaintiff also complains of back pain resulting from
a 2005 motor vehicle accident. (R. at 58).
In February 2005, Plaintiff was diagnosed with
“cervical/lumbar strain; myofascial syndrome.” (Id. at 783).
diagnosed with “chronic back pain.”
(Id. at 1463).
In March 2006, plaintiff was
Medical records from Plaintiffs 2012
incarceration reveal that Plaintiff had been taking a pain medication for his back and neck pain,
with little relief; however, the nurse’s exam indicated that Plaintiffs gait, balance, range of motion,
and muscle strength were all normal. (Id. at 1412-13). August 2010 treatment notes indicate that
Plaintiff presented with back pain and testing revealed herniated discs and tenderness in
paraspinal region; however, lower extremity reflexes were intact and Plaintiff maintained
strength in his lower extremities. (Id. at 1149-50). A December 2010 examination revealed
diagnosis of “neck and back pain” with “no positive findings,” and indicated that Plaintiff “was
able to sit, stand, and walk,” as well as do household chores. (Id. at 644-46).
Plaintiff has had several run-ins with the law, and testified before the AU that he had been
imprisoned “three, four times” for burglaries and arson of motor vehicles.
(Id. at 56-57).
Specifically, Plaintiff was incarcerated in 2008, and again in 2009 and 2012. (Id. at 56).
asked by AU Mc Afoos why Plaintiff committed these crimes, Plaintiff stated that he was
[his] meds” and “under the influence of drugs.” (Id.). Plaintiff explained that he was committing
these crimes to “support [his] habit at the time.” (Id. at 57).
At the time of the hearing on December 4, 2012, Plaintiff was taking numerous medications
for the physical pain as well as for his depression and anxiety. (Id. at 59-60). Plaintiff testifie
that he had been sober since he went into jail on June 28, 2012. (Id. at 63).
testified that while he takes the prescribed medications daily, he still suffers from anxiety
depression, and a stutter of speech. (Id. at 64-65). Plaintiff testified that he has not been able
hold down ajob on account of physical pain and depression. (Id. at 58-59).
B. Procedural History
Plaintiff filed applications for CIB and SSI on July 21, 2010. (R. 213-220). In both of
these applications, Plaintiff claimed that he has been disabled since June 1, 1995, prior to the time
he turned twenty two years old. (Id. at 213, 217). Specifically, Plaintiff claimed that he
disabled due to a learning disability, speech impairment, back injury, depression, bipolar disord
and anxiety. (Id.). These claims were initially denied on January 19, 2011. (Id. at 130-13
June 9, 2011, Plaintiff filed a request for reconsideration, along with a statement of good
untimely filing. (Id. at 140). On October 21, 2011, upon reconsideration, Plaintiff’s claims
again denied. (Id. at 150-155). On October 31, 2011, Plaintiff, by way of his attorne
y, filed a
request for a hearing by an administrative law judge. (Id. at 156). A hearing was held on Decem
4, 2012 (id, at 47-69), and on April 9, 2013, AU Mc Afoos denied Plaintiffs requests for
SSI, upon a finding that Plaintiff is not disabled (id. at 16-46).
On June 5, 2013, Plamtiff requested a review of the AU’s determination with the Appea
Council (id. at 14-15), which request was subsequently denied on December 29, 2014
(id. at 1-6).
Thereafter, Plaintiff commenced this action. Both parties filed briefs in accordance with
Civil Rule 9.1. (See P1.’s Mov. Br.; ECF No. 11, “Def’s.
Br.”, ECF No. 12, “P1.’s Reply
STANDARD OF REVIEW
A reviewing court will uphold the Commissioner’s factual decisions if they are supported
by “substantial evidence.” 42 U.S.C.
§ 405(g), 1 383(c)(3); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). Substantial evidence is “more than a mere scintilla but may be less than
preponderance.” Woody v. Sec y ofHealth & Human Servs., 859 F.2d 1156, 1159 (3d Cir.
It “does not mean a large or considerable amount of evidence, but rather such relevant eviden
a reasonable person might accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552, 565 (1988) (citation omitted). Not all evidence is considered substantial. For instanc
[a] single piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict created by
countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence
particularly certain types of
evidence (e.g. that offered by treating physicians) or if it really
constitutes not evidence but mere conclusion.
Wallace v. Sec ‘y ofHealth & Human Sen’s., 722 F.2d 1150, 1153 (3d Cir. 1983) (quotin
g Kent v.
Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). The AU must make specific finding
s of fact to
support his ultimate conclusions. Stewart v. Sec ‘y ofHealth, Educ. & Welfare, 714 F.2d
(3d Cir. 1983).
The “substantial evidence standard is a deferential standard of review.” Jones v. Barnha
364 F,3d 501, 503 (3d Cir. 2004). It does not matter if this Court “acting de novo
reached a different conclusion” than the Commissioner. Monsour Med. Ctr. V Heckle
r, 806 F.2d
1185, 1190-91 (3d Cir. 1986) (citing Hunter Douglas, Inc. v. Nat’l Labor Relatio
ns Rd., 804 F.2d
808, 812 (3d Cir. 1986)). “[T]he district court.
is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970
F.2d 1178, 1182
(3d Cir. 1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984)). A Court must
nevertheless “review the evidence in its totality.” Schonewolfv. Callahan, 972 F. Supp. 277, 284
(D.N.J. 1997) (citing Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984)). In doing so, the Court
“must ‘take into account whatever in the record fairly detracts from its weight.” Id. (citing
Willbanks v. Sec ‘y ofHealth & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988)). In summary,
“the evidence must be sufficient to support the conclusion of a reasonable person after considering
the evidentiary record as a whole, not just the evidence that is consistent with the agency’s
finding.” Monsour, 806 F.3d at 1190 (internal quotations omitted).
A court must further assess whether the AU, when confronted with conflicting evidence,
“adequately explain[ed] in the record his reasons for rejecting or discrediting competent evidence.”
Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581
(3d Cir. 1986)). If the AU fails to properly indicate why evidence was discredited or rejected, the
Court cannot determine whether the evidence was discredited or simply ignored. See Burnett v.
Comm ‘r ofSoc. Sec, 220 F.3d 112, 121 (3d Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 705
The Five-Step Process for Evaluating Whether a Claimant has a Disability
A claimant’s eligibility for benefits is governed by 42 U.S.C.
§ 1382. Pursuant to the Act,
a claimant is eligible for benefits if he meets the income and resource limitations of 42 U.S.C.
13 82(a)( 1 )(A)-(B) and demonstrates that he is disabled based on an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C.
§ 423(d)(1)(A). A person is disabled
only if his physical or mental impairment(s) 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 work which exists in the national economy.” 42 U.S.C.
To determine whether the claimant is disabled, the Commissioner performs a five-step
sequential evaluation. See generally 20 C.F.R.
§ 404.1520(a)(4)(i)—(v). The claimant bears the
burden of establishing the first two requirements. The claimant must establish that he (1) has not
engaged in “substantial gainful activity” and (2) is afflicted with “a severe medically determinable
physical or mental impairment.” 20 C.F.R.
§ 404.l520(b)—(c), 404.1521. If a claimant fails to
demonstrate either of these two requirements, benefits are denied and the inquiry ends. Bowen
Yuckert, 482 U.S. 137, 146 n.5 (1987).
If the claimant successfully proves the first two
requirements, the inquiry proceeds to step three which requires the claimant to demonstrate that
his impairment meets or medically equals one of the impairments listed in 20 C.F.R. Part 404
Appendix 1. 20 C.F.R.
§ 404.1520(d), 404.1525, 404.1526. If the claimant demonstrates that
his impairment meets or equals one of the listed impairments, he is presumed to be disabled and
therefore, automatically entitled to benefits. Id. If he cannot make the required demonstration,
further examination is required.
The fourth step of the analysis asks whether the claimant’s residual functional capacity
(“RFC”) permits him to resume his previous employment. Id. If a claimant is able to return to his
previous employment, he is not disabled within the meaning of the Act and is not entitled to
benefits. Id. If the claimant is unable to return to his previous employment, the analysis proceeds
to step five. At this step, the burden shifts to the Commissioner to demonstrate that the claimant
can perform ajob that exists in the national economy based on the claimant’s RFC, age, education,
and past work experience. 20 C.F.R.
§ 404.1520(g). If the Commissioner cannot satisfy this
burden, the claimant is entitled to benefits. Yuckert, 482 U.S. at 146 n.2.
The Requirement of Objective Medical Evidence
Under the Act, disability must be established by objective medical evidence.
individual shall not be considered to be under a disability unless he furnishes such medical and
other evidence of the existence thereof as the [Commissioner] may require.” 42 U.S.C.
423(d)(5)(A). Notably, “[a]n individual’s statement as to pain or other symptoms shall not alone
be conclusive evidence of disability as defined in this section.” Id. Specifically, a finding that one
is disabled requires:
[M]edical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the existence
of a medical impairment that results from anatomical, physiological, or
psychological abnormalities which could reasonably be expected to
produce the pain or other symptoms alleged and which, when
considered with all evidence required to be furnished under this
paragraph. would lead to a conclusion that the individual is under a
Id.; see 42 U.S.C.
§ 1382c(a)(3)(A). Credibility is a significant factor. When examining the
record: “The adjudicator must evaluate the intensity, persistence, and limiting effects of the
[claimant’s] symptoms to determine the extent to which the symptoms limit the individual’s ability
to do basic work-related activities.” SSR 96-7p, 1996 WL 374186 (July 2, 1996). To do this, the
adjudicator must determine the credibility of the individual’s statements based on consideration of
the entire case record. Id.
The list of “acceptable medical sources to establish whether [a claimant] has a medically
determinable impairment” includes licensed physicians, but does not include nurses. 20 C.F.R.
404,1513(a). Though the AU “may also use evidence from other sources to show the severity of
[a claimant’s] impairments,” this evidence is “entitled to consideration as additional evidence” and
does not need to be given the same weight as evidence from acceptable medical sources. 20 C.F.R
§ 404,1513(d)(l); Hatton v. Comm ‘r ofSoc. Sec., 131 Fed. App’x 877, 878 (3d Cir. 2005). Factors
to consider in determining how to weigh evidence from medical sources include (1) the examining
relationship, (2) the treatment relationship, including the length, frequency, nature, and extent of
the treatment, (3) the supportability of the opinion, (4) its consistency with the record as a whole,
and (5) the specialization of the individual giving the opinion. 20 C.F.R.
A. Summary of AU Mc Afoos’ Decision
On April 9, 2013, AU Mc Afoos issued a decision finding that Plaintiff was not disabled
as defined in section 223(d) of the Act, relevant to Plaintiffs application for CIB, and that Plaintiff
was not disabled under section 1614(a)(3) of the Act, relevant to Plaintiffs application for SSI.
(R. at 38). At step one, the AU found that Plaintiff had not engaged in substantial gainful activity
since the alleged June 1, 1995 onset of his disability. (Id. at 21). At step two, based upon an
extensive review of Plaintiff’s medical history, AU Mc Afoos found that Plaintiff suffered from
“the following severe impairment: affective mood disorder, learning disability, a back injury,
speech impairment, and a history of polysubstance addiction.” (Id.). At step three, however, the
AU found that these impairments do not meet or medically equal in severity any of the
impairments listed in the Act’s promulgating regulations. (Id. at 33, citing 20 CFR Part 404,
Subpart P, Appendix 1).
Before proceeding to step four, after considering the entirety of the record before him, the
AU found that Plaintiff “has the residual functional capacity to perform a full range of light work
but due to his mental impairments he is limited to unskilled work activity.” (Id. at 34-37).
Specifically, at this step, the AU found that Plaintiffs “reported restrictions are not fully
persuasive to the extent alleged, when considered with the totality of the medical evidence of
record” where “the reports of the treating and examining physicians provide substantial evidence
that the claimant’s impairments do not impose such severe limitations on his functional capacity
as to preclude performance of all work activity.” (Id. at 37). Thus, the AU found Plaintiffs
statements regarding his inability to work not credible in light of the objective medical evidence.
(Id. at 34), The AU observed a
pattern of noncompliance with [Plaintiff] taking his medication and the
[Plaintiff] has admitted that once he feels better he stops taking his
medication. Hospital records have shown the [Plaintiffs] symptoms abate
dramatically when restarted on his medication and the [Plaintiffs] GAF has
been in the 65 to 76 range (mild symptoms) when on medication. (Id. at 35).
Stated differently, the AU gave great weight to the high GAF scores, representing only
mild symptoms, reported when Plaintiff was compliant with his medication. (Id.). Specifically,
the AU noted that while incarcerated from March 2007 through May 2009, Plaintiffs GAF scores
never fell below 68, suggesting that so long as Plaintiff remains compliant with his medication
regimen and does not relapse into substance abuse, he demonstrates only a mild degree of
limitations in activities of daily living and social functioning. (Id. at 35). In rendering this opinion,
the AU found Plaintiffs claims that back pain prevents him from engaging in any work to be
unavailing in light of reports showing no positive findings and noting Plaintiffs ability to carry on
activities of daily living despite complaints of back pain. (Id.). Generally, AU Mc Afoos noted
reports from different physicians acknowledging Plaintiffs ability to tend to household chores and
engage in hobbies he enjoys. (Id. at 36). As to Plaintiff’s cognitive functioning, AU Mc Afoos
found a “moderate degree of limitations in the concentration, persistence and pace area of
functioning,” with “moderate” defined as “intermittent difficulty performing in this area, but on
the whole he can generally perform satisfactorily in this area.” (Id. at 36).
At step four, the AU noted that Plaintiff had no relevant work experience. At the final
step of his analysis, the AU found that “[c]onsidering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.” Accordingly, the AU found that Plaintiff was
not disabled as the term is defined in the Social Security Act prior to the time that he attained age
22 or during the date of the decision, and therefore was not entitled to CIB or SSI.
Plaintiff advances three arguments as to why the AU’s opinion should be remanded.
First, Plaintiff contends that AU Mc Afoos committed reversible error by mischaracterizing and
failing to properly evaluate the evidence from Dr. Vernon, one of his treating physicians. (P1. ‘s
Mov, Br. at 11-14). Relatedly, Plaintiff submits that the AU failed to consider medical evidence
that contradicts his ultimate conclusion as to the seriousness of Plaintiff’s physical injuries. (P1.’s
Reply Br, at 5-7). Second, Plaintiff argues that the “AU’s mental residual functional capacity,
with only a limitation to unskilled work despite ample evidence of a greater degree of impairment,
cannot be deemed supported by substantial evidence and fails even to fully account for the AU’s
own finding that Mr. Smith has moderate limitations of concentration, persistence, or pace.” (P1.’ s
Mov. Br. at 14-2). In short, Plaintiff takes exception with the AU’s determination of Plaintiff’s
Defendant’s brief includes an argument addressing “Plaintiff’s assertion that the AU erred by not considering
impairments under the child listing (P1. ‘s Br. at 8-9)”; however, nowhere in Plaintiff’s brief does he assert
argument. (See ECF No. 12, “P1’s. Reply Br.” at 8). Similarly, despite the Government’s rebuttal argument
Opp. Br. at 12-14), Plaintiff has not argued in his briefing that remand is appropriate for the AU’s consideration of
evidence submitted to the Appeals Council. (P1. ‘s Reply Br. at 2). Accordingly, the Court need
not address these
RFC determination as it relates to his physical and mental impairments. Lastly, Plaintiff argues
that the AU erred at step five by failing to call a vocational expert to testify as to the availability
of work that Plaintiff can perform in light of his nonexertional impairments. (Id. at 20-22). The
Court will address each of these arguments, in turn.
The AU’s Findings as to Plaintiff’s RFC
Before proceeding to step four of his analysis, the AU formulated Plaintiff’s RFC as
Giving the claimant the benefit of the doubt, the undersigned finds that the claimant
demonstrates a mild degree of limitation in the activities of daily living area of functioning;
a mild degree of limitation in the social functioning area of functioning; a moderate degree
of limitations in the concentration, persistence and pace area of functioning; however, the
undersigned finds that “moderate” means the claimant has intermittent difficulty
performing in this area, but on the whole can generally perform satisfactorily in this area.
(R. 36). Ultimately, the AU found “that the claimant has the residual functional capacity
to perform a full range of light work but due to his mental impairments he is limited to unskilled
work activity.” (Id. 34).
a. The ALT Erred in his RFC Determination by Mischaracterizing Certain
Evidence and Failing to Offer an Explanation as to why Certain
Contradictory Evidence was Rejected or Disregarded
In determining Plaintiff’s RFC, the AU held that “the claimant’s medically determinable
impairment could reasonably be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence, and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.” (R. 34). With regards to Plaintiff’s
complaints of back and neck pain, the AU stated:
[AJn MRI of the lumbar spine showed a herniated disc at the L4-L5 level
and x-rays of the cervical spine showed degenerative disc disease (see
Exhibit 2F &40F). However, Dr. Vernon reported in July 2005, that the
claimant could conduct normal activities despite discomfort or limited
mobility of one of more joints and he anticipated that the claimant could
return to work by September 2005 (Exhibit 1 7F). In December 2010, Dr.
Khona stated that the claimant reported having a history of neck and back
pain, but he had no positive findings on physical examination (Exhibit 8F).
Dr. Goldstein reported in July 2011, that the claimant had been diagnosed
with having neck pain and low back pain however, he could lift and carry
up to 45 pounds occasionally and he had no limitations with standing,
walking, sitting or pushing/pulling (Exhibit 13F); and Dr. Sewell reported
that the claimant’s only physical limitation was with lifting (Exhibit 45F).
Findings on examination have shown full range of motion of the cervical
and lumbar spine, full muscle strength and no muscle atrophy in the upper
or lower extremities (see Exhibit 8F). The undersigned notes that signs of
muscle atrophy are usually observed when pain is severe and functionally
As to Dr. Sherry’s opinion that the claimant had the capacity for light work
(see Exhibit 2A); the undersigned gives it great weight was it is [sic]
consistent with the medical evidence of record (SSR 96-6p).
The Court finds that the AU’s errors with regards to the consideration of Dr. Vernon’s
reports requires remand. The AU characterized Dr. Vernon’s July 2005 report as stating that
Plaintiff could conduct “normal activities.”
Although Dr. Vernon checked boxes
indicating that Plaintiff suffered a Class ii and Class III functional classification, Dr. Vernon’s
handwritten notes on the July 2005 report describe Plaintiff as “physically and mentally unable to
work—herniated discs, depression.” (Exhibit 17F, R. 793). The Court finds this error to be
significant in light of the fact that inaccurate characterization of Dr. Vernon’s opinion in July 2005
appears to be offered in support for minimizing the significance of positive MRI findings. (See
Class II is characterized as “[fjunctional capacity adequate to conduct normal activities despite handicap, discomfort
or limited mobility of one or more joints,” while Class III is characterized as “[fjunctional capacity adequate
only little or none of the duties of usual occupation or of self care.” (R. 793).
id.). Moreover, as Defendants have conceded that the AU failed to address Dr. Vernon’s earlier
reports, the AU should consider these reports when reconsidering Dr. Vernon’s findings.
Plaintiff also argues that the AU relied upon selective reports relating to his physical
limitations on account of a neck and back injury without sufficiently explaining his rejection of
those reports. After reviewing the entirety of the record, the Court agrees that the AU ‘s failure to
specifically reference contradictory reports requires remand. For example, records dated June
2005 from the Center for Pain Management, authored by Dr. Barry Korn, D.O. (Exhibits IF, 2F)
stated: “Trigger points were noted in the bilateral C2-3, bilateral supraspinatus and bilateral L4-5
areas with positive jump signs elicited, muscle spasticity, taut bands, MRI of lumbar spine:
herniated nucleus pulposus L4-5” (Exhibit 1, R. 555) and reported “L5-Sl radiculopathy.” (Id.,
R. 557). Although the AU provided a detailed description of Dr. Korn’s report in the second step
(R. 23) of the analysis and cited to these records in his RFC analysis (R. 36), AU Mc Afoos failed
to explain his rejection of these records in his RFC determination. Similarly, while Dr. Sewell’s
September 2012 report factored into the AU’s RFC determination (R. 37, citing Exhibit 45F), AU
Mc Afoos did not address the Doctor’s follow-up report dated November 2012, which indicated
that Plaintiff exhibited “tenderness on palpation” of his low back and diagnosed Plaintiff with,
inter alia, neck and lower back pain. (Exhibit 47F, R. 1503). Moreover, in step two of the AU’s
analysis, he discussed in detail a February 7,2005 report of Dr. Moishe Starkman (R. 23) in which
“Dr. Starkman stated that the claimant can lift and carry no more than fifty pounds and that he
stand, walk, climb, stoop, and bend for no more than ten to twenty minutes; and that he
functional capacity to perform little or none of the duties of his usual occupation.” (R.
Starkman identified “anxiety, depression, cervical strain, lumbar sacral strain, tingling in
extremities” and estimated Plaintiff’s disability status to last until April 19, 2005. (Exhibit
R. 784). To the extent the AU attributed little weight to these records, he should have explained
his reasons for doing so. See Burnett v. Comm ‘r of Soc. Sec, 220 F.3d 112, 121 (3d Cir. 2000)
(citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)) (explaining that the district court cannot
determine whether evidence was discredited or simply ignored where the ALl has failed to
properly indicate why evidence was discredited or rejected).
In summary, the Court finds that the AU’s mischaracterization of Dr. Vernon’s July 2005
report. in conjunction with his failure to consider Dr. Vernon’s earlier reports and failure to discuss
why certain other evidence of Plaintiff’s physical impairments were not addressed warrants
b. The AU did not err in Applying the Psychiatric Review Technique
Plaintiff argues that the AU erred in not applying the psychiatric review technique until
step four of his analysis. (P1’s. Br. at 14). Defendant responds that, under Third Circuit case law,
the AU need not “use particular language or adhere to a particular format in conducting his
analysis.” (Def’s. Br. at 17, n.1). The Court finds that the AU did not err in its application of the
psychiatric review technique.
In 1985, the Social Security Administration published revised regulations for handling
claimants alleging a disability on account of a mental impairment. See Ramirez v. Barnhart,
F.3d 546, 551 (3d Cir. 2004) (citing 20 C.F.R.
§ 416.920a (1999)). The Administration developed
a technique for evaluating mental impairments, requiring the adjudicator to complete a form
known as the Psychiatric Review Technique Form. Id. Pursuant to that technique, the adjudicator
is required to “first evaluate [the plaintiffs] pertinent symptoms, signs and laboratory findings
determine whether [he] has a medically determinable mental impairment(s).”
41 6.92Oa(b)( 1). Next, if the adjudicator determines that Plaintiff has a severe mental impairment,
then he “must show the significant history, including examination and laboratory findings, and the
functional limitations that were considered in reaching a conclusion about the severity of the
mental impairments(s).” Id.; 20 C.F.R.
The Court finds that the AU did not err in applying the psychiatric review technique.
Indeed, in the nearly thirteen pages of the AU’ s opinion relating to step two of the analysis, the
AU provided a detailed discussion of Plaintiffs history of treatment of mental impairments,
ultimately concluding that Plaintiff suffered from the following mental impairments: affecti
mood disorder, a learning disability, speech impairment, and a history of polysubstance addicti
(R. 21). Moreover, in determining that Plaintiff did not have an impairment or combination of
impairments sufficient to meet a listed impairment, the AU stated that he had “considered the
opinion of the State Agency medical consultants who evaluated the initial and reconsiderati
levels of the administrative review process and reached the same conclusion that the claima
impairments do not meet or equal a listing.”
Indeed, the State Agency medical
consultants’ application of the psychiatric review technique, at both the initial and reconsiderati
levels, supports the AU’s determinations. (See R. 70129). The AU further stated that
“considered the degree of limitation imposed by [Plaintiff’sj mental impairments on his ability
work,” and refers Plaintiff to the “detailed description of the medical evidence” include
d in step
four of the analysis. (Id.).
Accordingly, the Court finds that the AU did not err in applying the psychiatric review
technique throughout his analysis.
c. The AU Failed to Explain Reasons for Discrediting or Rejecting
Contradictory Medical Records Relating to Plaintiff’s Mental
With regards to Plaintiffs nonexertional impairments, the AU stated:
Giving the claimant the benefit of the doubt, the undersigned finds that the
claimant demonstrates a mild degree of limitation in the activities of daily
living area of functioning; a mild degree of limitation in the social
functioning area of functioning; a moderate degree of limitations in the
concentration, persistence and pace area of functioning; however, the
undersigned finds that “moderate” means the claimant has intermittent
difficulty performing in this area, but on the whole can generally perform
satisfactorily in this area.
The AU further noted a “pattern of noncompliance with [Plaintiff] taking his medication
and the [Plaintiff] has admitted that once he feels better he stops taking the medication (See Exhibit
3 5F).” (R. 35). Moreover, the AU stated that “[hjospital records have shown the claimant’s
symptoms abate dramatically when restarted on his medication (see Exhibits 32F, 18F, 19F, 40F,
& 31F) and the claimant’s GAF has been in the 65 to 76 range (mild symptoms) when
medication (see Exhibits 31 F, 20F, 40F & 7F).” (Id.).
Plaintiff asserts a number of grievances with the AU ‘s consideration of his nonexertional
impairments. (P1’s. Mov. Br. at 14-20). Plaintiff contends that the AU committed factual
legal error by mischaracterizing Plaintiffs history of GAF scores and by relying too heavily upon
those scores. (P1’s. Mov. Br. at 17). Plaintiff further argues that the AU cherry-picked the
in observing that Plaintiff’s hospitalizations usually lasted ‘just for a few days, as he
responds to the medication.” (P1’s. Mov. Br. at 17; R. 36). Additionally, according to Plaintiff,
the AU erred in relying heavily on Dr. Coffey’s December 2010 report and in rejectin
opinions of Dr. Sewell. (Id. at 19). Plaintiff contends that “the AU failed
to explain how
[Plaintiffs] acknowledged impairments and limitations are actually consistent with
the ability to
[ ] tasks and to sustain them at a consistent pace as demanded by unskilled work.” (Id.
at 20). Lastly, Plaintiff argues that the AU’s RFC failed to account for the AU’s own
that Plaintiff suffered from a severe affective mood disorder, learning disability, and
impairment. (Id. at 14).
In response to these arguments, the Government asserts that the AU’s determination
Plaintiffs RFC properly accounted for only the mental limitations that were suppor
ted by the
record, and has provided the Court with citations to a number of records substantiatin
g the AU’s
Just as the Court found that the ALl failed to properly explain his rejection of conflic
reports with regards to Plaintiffs physical impairments, the Court finds that the
failed to discuss why contradictory medical records relating to Plaintiffs mental impair
For example, AU Mc Afoos stated that “[h]ospital records have shown the
claimant’s symptoms abate dramatically when restarted on his medication (see Exhibi
ts 32F, 1 8F,
19F, 40F, & 31F) and the claimant’s GAF has been in the 65 to 76 range (mild sympto
on medication (see Exhibits 31F, 20F, 40F & 7F).” Upon review of the record, it is
the undersigned that Plaintiffs GAF scores on discharge have frequently fallen well
below the 65
to 76 range relied upon by the AU. (See Exhibit 1 8F, GAF of 55 (moderate impair
ment in social
or occupational function) on discharge, noting “highest GAF in past year” as 60; Exhibi
t I 9F, GAF
of 50 (serious impairment in social or occupational functioning) on discharge; Exhibi
t 22F, GAF
of 50 on discharge, reporting “highest past year” as 50-60). While the AU notes
these GAF scores
at the second step of his analysis, the AU has not sufficiently explained his attentio
n to the higher
GAF scores and rejection of numerous low scores in his analysis of Plaintiffs
Plaintiff similarly argues that the AU failed to consider his extensive hospita
l stays in his
analysis. The AU stated that “the evidentiary record fails to indicate or sugges
t that the claimant
has experienced repeated episodes of decompensation of extended duration; the unders
the majority of the claimant’s hospitalizations are just for a few days, as he quickly respon
medication.” (R. 36). Having reviewed the record, the Court tends to agree with
the AU that the
majority of Plaintiffs hospitalizations lasted only a few days. Accordingly,
the Court finds
Plaintiffs arguments to this point unavailing.
Moreover, the Court finds that the AU did not err in assigning great weight to the
status examination of Dr. Wm. Dennis Coffey. (R. 35). In assessing Plaintiffs
Coffey identified Plaintiffs GAF score at 70, and stated that “Mr. Smith
understanding, memory and concentration. Mr. Smith had adequate mental pace
Social interaction is adequate.” (Exhibit 74, R. 642). The AU explained that
he assigned great
weight to this opinion because “it is consistent with the findings from several treatin
g doctors (see
Exhibits 3F, 20F, 40F, & 31 F).” Indeed, a March 2006 report by Dr. Spiros Malasp
Plaintiff as calm with judgment and insight described as “fair.” (Exhibit 20F,
R. 869). Moreover,
Dr. Coffey’s report is consistent with Plaintiffs medical records during his period
as an inmate at
the Garden State Youth Correctional Facility. (Exhibit 40F, see, e.g., R. 1175, noting
in May of
2009 that Plaintiffs memory and judgment was intact, albeit his insight “nil”,
and reporting that
Plaintiff was able to follow and contribute to the conversation”; Exhibit 40F,
R. 1271, reporting
Plaintiffs judgment and insight as “intact” in July 2008; Exhibit 40F, R. 1288,
insight and judgment to be “fair” in May of 2008).
The Court similarly finds that the AU properly explained his decision to credit little
to the contradictory mental assessment issued by Dr. Sewell, who found
a “speech disturbance,
problem with concentration and attention” and estimated that Plaintiff could
not work for twelve
months or more (R. 36; Exhibit 4SF, R. 1464-65). The AU attributed little
weight to this opinion
because Dr. Sewell “is not specialized in the field of psychiatry and his
assessment likely relied
on unreliable information from the claimant.” (R. 36). The AU’s rationale
for discrediting Dr.
Sewell’s opinions are supported by regulations. See 20 C.F.R.
§ 404.1527(5) (“We generally give
more weight to the opinion of a specialist about medical issues related to his
than to the opinion of a source who is not a specialist.”; Id.
or her area of specialty
§ 404.1527(4) (“Generally, the more
consistent an opinion is with the record as a whole, the more weight we will
give to that opinion.”).
Accordingly, the Court finds that remand is proper in order for the AU
to explain why
evidence relating to Plaintiff’s symptoms and mental status at the time
of discharge from his
numerous hospital visits were rejected or otherwise discredited.
The AU erred at Step Five by Failing to Consider the Testimony
of a Vocational
Expert or Other Similar Evidence
Plaintiff alleges that the AU erred in not hearing vocational evidence.
(P1’s. Mov. Br. at
20-22). Plaintiff contends that the AU should not have exclusively used
Rules (the “grids”) to support a finding that Plaintiff was not disabled becaus
e of the nonexertional
limitations (namely, affective mood disorder, a learning disability, and
a speech impairment)
which the AU found, at step two, to be “severe.” (Id. at 20). The Govern
ment has not responded
to this argument.
The Court agrees with Plaintiff that the AU ‘s failure to use a vocatio
nal expert requires
remand of this matter. To be clear, there is no hard and fast rule in the
Third Circuit with regards
to when an AU is required to rely upon a vocational expert; however “[tjhe
at a general level that the grids cannot automatically establish that
there are jobs in the national
economy when a claimant has severe exertional and nonexertional impair
ments.” Sykes v. Apfel,
228 F.3d 259, 266 (3d Cir. 2000).
The grids set out various combinations of age, education, work experience and residua
functional capacity and direct a finding of disabled or not disabled for each combi
nation. See 20
C.F.R. Part 404, Subpart P, Appendix 2. “When the four factors in a claimant’s
exactly with the four factors set forth in the grids, the AU must reach the result
the grids reach.”
Hall v, Comm ‘r ofSoc. Sec., 218 F. App’x 212, 216 (3d Cir. 2007) (citing Sykes,
228 F.3d at 263;
§ 404.1569 and Subpart P, Appendix 2, § 200.00) (emphasis in original). “However,
where the limitations imposed by a claimant’s impairments and related sympto
ms affect the ability
to meet both the strength demands and non-strength demands of jobs, the
grids will not apply to
direct a conclusion as to disability, but will be used solely as a framework to
guide the disability
decision.” Id. (citing 20 C.F.R.
At step five of the analysis, after considering Plaintiff’s age, past relevant work
education level, and RFC, the ALl recognized that when, as in this case, the
claimant has both
exertional and non-exertional demands, the medical-vocational grids
should be used as a
“framework for decision-making.” (R. 37). The AU then found that Rule
202.20 supports a
finding of “not disabled” and that “[c]onsidering the claimant’s exertio
nal and non-exertional
functional limitations, in combination with vocational factors, it is reasonable
to find there is a
significant number of jobs the claimant is able to perform on a remunerative
, regular, sustained,
reliable, and competitive basis.” (R. 38).
To be clear, the existence of nonexertional limitations does not preclud
e an AU from
“[u]sing the grids as a framework to guide the disability determination.” Hall,
218 Fed. App’x. at
217. That said, the Third Circuit has held that where a claimant has nonexe
rtional impairments in
addition to exertional impairments, the AU is required to consider “the
testimony of a vocational
expert or other similar evidence, such as a learned treatise. In the absence
of evidence in addition
to the guidelines.
the Commissioner cannot establish that there are jobs in the national economy
that someone with the claimant’s combination of impairments can perform.” Sykes, 228 F.3d
Here, although the AU used the grids as a “framework,” he erred in not considering either
“the testimony of a vocational expert or other similar evidence” in finding that a sufficient numbe
of jobs exist in the national economy that Plaintiff could perform. Accordingly, the Court will
remand this matter so that the AU can consider additional evidence, as required under Sykes v.
ApJèl. as to what effect, if any, Plaintiff’s nonexertional impairments have on the availability
jobs that he may perform.
For the foregoing reasons, the opinion of the AU is remanded for further review consistent
with this Opinion. An appropriate Order accompanies this Opinion.
IT IS SO ORDERED.
U1JITED STATES DISTRICT JUDGE
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