FLORKEVICZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

OPINION. Signed by Chief Judge Jose L. Linares on 2/1/18. (cm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSEPH FLORKEVICZ,
Plaintiff,

:

CIVIL ACTION NO. 17-267 (JLL)

:

OPINION

V.

COMMISSIONER OF SOCIAL SECURITY,:
Defendant.

LINARES, Chief District Judge

Joseph Florkevicz seeks judicial review of the final decision (hereinafter, “the
Decision”) issued on behalf of the Commissioner of the Social Security Administration
(hereinafter, “the Commissioner”) by an administrative law judge (hereinafter, “the
AU”) dated December 1, 2015, after the AU conducted a hearing on September 17,
2015. (See ECF No. 1; R. at 13—20; R. at 25—74.) See also 42 U.S.C.

§ 405(g); L. Civ.

R. 9.1. In the Decision, the AU addressed Florkevicz’s application for disability
insurance benefits and supplemental security income. (See R. at 13—20.)
The AU concluded that Florkevicz: (1) suffered from two severe physical
impairments, discussed supra; (2) suffered from the mental impairments of depression
and of substance abuse in remission that were not severe; and (3) was nevertheless not
under a disability as defined by the Social Security Act from June 1, 2012, through

December 1, 2015. (Id. at 15—16, 20.) Florkevicz objects to the AU’s conclusions. (See
ECF No. 1 at 1—2.)
The Court has carefully considered the administrative record, as well as the
submissions that have been made in support of and in opposition to the instant appeal.

(See ECF No. 9 (administrative record); ECF No. 13 (Florkevicz’s brief); ECF No. 18
(Commissioner’s brief).) The Court decides this matter on the briefs of the parties and
without conducting oral argument. See U. Civ. R. 78.1(b); U. Civ. R. 9.1. For the reasons
set forth below, the Court finds that the AU failed to support her conclusions concerning
Florkevicz’s mental impairment of depression with substantial evidence, and thus
remands this matter for further proceedings that are consistent with this Opinion.
BAC KGROUND
The Court writes for the parties who are familiar with the facts and procedural
history of the case. The Court therefore specifically addresses in the discussion below
only those facts relevant to the issues raised on appeal.

STANDARD OF REVIEW
The Court must affirm the Decision if the AU’s findings of fact are supported by
substantial evidence, i.e., evidence that a reasonable mind might accept as adequate to
support a conclusion. See 42 U.S.C.

§ 405(g); see also Reefer v.

Barnhart, 326 F.3d 376,

379 (3d Cir. 2003) (stating the same); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000)
(same); Schatideck v. Comm ‘r ofSoc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999)

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(same). The Court must be deferential to the inferences drawn by the AU from the facts
if those inferences, in turn, are supported by substantial evidence. See Smith v. Ca/iflino,
637F.2d968, 970 (3dCir. 1981);seealsoHartraizflv. Apfel, 181 F.3d358, 360 (3dCir.
1999) (stating that a court “will not set the Commissioner’s decision aside if it is
supported by substantial evidence, even if we would have decided the factual inquiry
differently”). “Substantial evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” and “[i]t is less than a preponderance
of the evidence but more than a mere scintilla.” Jones v. Bainhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citations and internal quotation marks omitted). Additionally, a disability
must be established by objective medical evidence.
To this end, “[a]n individual’s statement as to pain or other symptoms shall not
alone be conclusive evidence of disability as defined in this section.” 42 U.S.C.

§

423(d)(5)(A). Instead, 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 disability.
.

.

.

Id. The factors to consider in determining how to weigh the evidence originating from a
medical source include: (I) 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

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the individual giving the opinion. See 20 C.F.R.

§ 404.1527(c).

The “substantial evidence standard is a deferential standard of review.” Jones,
364 F.3d at 503. The AU is required to “set forth the reasons for his decision,” and not
merely make conclusory and unexplained findings. Burnett v. Comm ‘r of Soc. Sec.
Admin., 220 f.3d 112, 119 (3d Cir. 2000). But, if the AU’s decision is adequately
explained and supported, then the Court is not “empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.” McCrea v. Comm ‘r ofSoc. Sec.,
370 F.3d 357, 361 (3d Cir. 2004) (citation omitted). It does not matter if this Court
“acting de novo might have reached a different conclusion.” Monsotir Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190—91 (3d Cir. 1986)). The AU is also “not require[d]

.

.

.

to

use particular language or adhere to a particular format in conducting [the] analysis,” but
the AU must “ensure that there is sufficient development of the record and explanation
of findings to permit meaningful review.” Jones, 364 F.3d at 505.

THE FIVE STEP PROCESS AND THE AU’S DECISION
I.

The Law

A claimant is eligible to collect benefits if, among other things, he 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 12 months.” 42 U.S.C.

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§ 423(d)(1)(A).

A person is disabled only

if the 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).

The “five step sequential evaluation for determining whether a claimant is under a
disability, as set forth in 20 C.f.R.

§

404.1520” is the following:

In step one, the Commissioner must determine whether the claimant is
currently engaging in substantial gainful activity.
20 C.F.R. §
404.1520(a). If a claimant is found to be engaged in substantial activity,
the disability claim will be denied. In step two, the Commissioner must
determine whether the claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show that her impairments
are “severe,” she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the
claimant’s impairment to a list of impairments presumed severe enough to
preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant does
not suffer from a listed impairment or its equivalent, the analysis proceeds
to steps four and five.
Step four requires the AU to consider whether the claimant retains the
residual functional capacity to perfonn her past relevant work. 20 C.F.R.
§ 404.1520(d). The claimant bears the burden of demonstrating an
inability to return to her past relevant work.
If the claimant is unable to resume her former occupation, the evaluation
moves to the final step. At this stage, the burden of production shifts to
the Commissioner, who must demonstrate the claimant is capable of
perfonning other available work in order to deny a claim of disability. 20
C.F.R. § 404.1520(f). The AU must show there are otherjobs existing in
significant numbers in the national economy which the claimant can
perform, consistent with her medical impairments, age, education, past
work experience, and residual functional capacity. The AU must analyze

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the cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled.
Bttrnett, 220 F.3d at 1.1 8—19 (case citations omitted). As to the analysis that is required
under the fourth step, the AU must consider all of the claimant’s impairments, including
those impaitments that the AU finds to be not severe. See 20 C.F.R.

§ 404.1545(a)(2).

“The claimant bears the burden of proof for steps one, two, and four of this test.
The Commissioner bears the burden of proof for the last step.” Sykes, 228 F.3d at 263.
Neither party bears the burden of proof at step three. See Id. at 263 n.2.

II.

Mental Impairment of Depression

At the second step of the sequential evaluation, the AU concluded that Florkevicz
suffered from two severe impairments, i.e., status post crushed left heel repair, and status
post right quadriceps tendon repair. (SeeR. at 15.) However, the AU concluded that
Florkevicz’s “medically determinable mental impairments of depression and substance
abuse (in remission), considered singly and in combination, do not cause more than
minimal limitation in [Florkevicz’s] ability to perform basic mental work activities and
are therefore nonsevere.” (Id.)
The AU then proceeded to address Florkevicz’s impainnents at the fourth step
that were at that point in the analysis deemed to be severe, i.e., the physical impairments,
as well as those deemed to be nonsevere, i.e., the mental impairments. See 20 C.f.R.

§

404.1 545(a)(2) (requiring the AU to assess all impairments, including those that are not
deemed to be severe). There, the AU concluded that florkevicz had the residual

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functional capacity to perform sedentary work, but found the following in drawing that
conclusion:

Although [Florkevicz] has alleged depression, he reported taking no
psychotropic medication, noted no psychiatric hospitalizations or
outpatient treatment other than engaging in an outpatient drug
rehabilitation program, and indicated that he slept well and had a good
appetite, although he did indicate diminished energy and feelings of
worthlessness.
(R. at 18—19 (emphasis added).)
Florkevicz argues that the AU erred in: (1) finding that his mental impairment of
depression was not severe at the second step; and (2) consequently concluding that his
mental impairment of depression in conjunction with his other impairments did not
prevent him from performing sedentary work at the fourth step. (See ECF No. 13 at 18—
19.) Specifically, Florkevicz argues that the AU’s finding that he had not been taking
any psychotropic drugs was not supported by substantial evidence. In particular,
Florkevicz points out that his medical records indicate that a provider who was both a
Doctor of Nursing Practice and an Advanced Practice Nurse prescribed Lexapro and
Wellbutrin for him

—

and that he was taking those medications

for the treatment of

his depression for a period of time that extended for several months before the date of the
hearing. (Id. at 9—10, 20; see also R. 329—30, 334, 337—51, 353 (Florkevicz’s treatment
records from Jewish Family Services, which repeatedly referred to the aforementioned
medications being prescribed to him). The Court also notes that Florkevicz testified

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during the hearing conducted by the AU that he was being “give[n]

.

.

.

the

antidepressants.” (R. at 58.)’
The Court agrees with Florkevicz’s arguments on this issue and concludes that this
matter must be remanded for a new hearing, because the finding set forth by the AU that
Florkevicz “reported taking no psychotropic medication” is not supported by substantial
evidence. In fact, the AU’s finding was contrary to the guidance set forth in the relevant
Social Security regulation, which provides that when evaluating the extent of a claimant’s
mental impairment, the AU must “consider all relevant and available clinical signs and
laboratory findings, the effects of [the claimant’s] symptoms, and how [the claimant’s]
functioning may be affected by factors including, but not limited to, chronic mental
disorders, structured settings, medication, and other treatment.” 20 C.F.R.

§

404. 1520a(c)(1) (emphasis added).
In response, the Commissioner acknowledges that there is evidence in the record
indicating that Florkevicz was prescribed psychotropic medications during the claimed
disability period, but argues that his medical records show that this “limited” treatment
“effectively treated his symptoms.” (ECF No. 18 at 12.) However, the Commissioner’s

Lexapro and Wellbutrin are classified as psychotropic medications. See Grek v.
Cotvin, No. 14-228, 2015 WL 3915835, at *1 (W.D. Pa. June 25, 2015) (stating that Wellbutrin
is a psychotropic medication); Kutzer v. Co/yin, No. 13-1774, 2014 WL 4796366, at *6 (M.D.
Pa. Sept. 26, 2014) (stating that Lexapro is a psychotropic medication). Also, antidepressants in
general are classified as psychotropic medications. See Disability Rights Ni, Inc. v. Comm ‘r,
I’Li Dep ‘t ofHuman Servs., 796 F.3d 293, 295 (3d Cir. 2015) (stating that “psychotropic drugs”
include “antipsychotics, antidepressants, mood stabilizers, and the like”).

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statements quoted herein were not included by the AU in the Decision, and the Court is
barred from attempting to correct the AU’s error by independently grafting these
arguments onto the findings that were set forth by the AU concerning Florkevicz’s
medication history. See Jones, 364 F.3d at 505 (holding that the AU must provide an
explanation of the findings in order to permit a meaningful review by a district court)
(emphasis added); Lloyd v. Barnhart, 47 F. App’x 135, 137—38 (3d Cir. 2002) (holding
that “the District Court has no fact-finding role in reviewing social security disability
cases”); see also fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (vacating a
district court’s grant of summary judgment to the Commissioner, because the district
court, in apparent recognition of an AU’s failure to consider all of the relevant and
probative evidence, engaged in the analysis of medical records on its own that were not
addressed by the AU).
The AU’s failure to properly consider that Florkevicz’s records indicated that he
was taking psychotropic medication is reversible error. See Magwood v. Comm ‘r of Soc.
Sec., 417 F. App’x 130, 132 (3d Cir. 2008) (reversing the district court’s conclusion that
the claimant did not suffer from a severe mental impairment, because the AU failed to
address the fact that the claimant was taking antidepressants, and thus that conclusion
was not supported by substantial evidence); see also Lehman v. Astrue, No. 09-1449.
2010 WL 2034767 (W.D. Pa. May 18, 2010) (holding that an AU’s decision was not
supported by substantial evidence because of, among other things, “the erroneous factual
assertions”). Consequently, because the AUJ failed to properly set forth and analyze
Florkevicz’s history of taking psychotropic medication at step two, and then at step four,

9

this necessarily led to a conclusion that was not based on substantial evidence concerning
florkevicz’s alleged mental impairment of depression. This is an error that can only be
remedied on a remand to the AU. See Melende v. Coh’in, No. 15-47 19, 2016 WL
4764819, at *5 (D.N.J. Sept. 12, 2016) (remanding a case for a new hearing because the
AU failed to address at step two that the claimant was being treated with Wellbutrin,
Trazadone, and Paxil, and thus the Court had an insufficient basis for reviewing the
AU’s rejection of the claim that the claimant was unable to work due to an alleged
mental impairment); see also Scroggins v. Astrtte, 598 F. Supp. 2d 800, 806 (N.D. Tex.
2009) (remanding a case for a new hearing to address whether the claimant’s alleged
severe mental impairment prevented her from working, because the AU failed to address
the claimant’s medical records indicating that the claimant was taking two psychotropic
prescription medications, i.e., Xanax and Welibutrin).
Because the Court has determined that a remand is appropriate based upon the
AU’s improper assessment of Florkevicz’s alleged mental impairment of depression, a
new sequential evaluation is necessary. Thus, the Court will not address Florkevicz’s
remaining substantive challenges, because they should necessarily be addressed upon
remand. See Lawrence v. Colvin, No. 15-2851, 2016 WU 1644622, at *10 (D.N.J. Apr.
26, 2016); see also Magwood. 417 F. App’x at 132 (holding that a reversal of the AUJ’s
denial of benefits based upon one error at step two of the analysis did not call upon the
Court to provide further analysis of subsequent errors, and that such errors would
necessarily be addressed on the remand).

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CONCLUSION
For the foregoing reasons, the Court rernands the matter to the AU for fluther
proceedings that are consistent with this Opinion. The Court will issue an appropriate
Order.

ARES
Judge, United States District Court

Dated: February

‘/St

,2018

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