ALBERG v. COMMISSIONER OF SOCIAL SECURITY

Filing 18

OPINION. Signed by Judge Stanley R. Chesler on 5/1/2020. (ams, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SCOTT ALBERG,

v.
COMMISSIONER OF
SOCIAL SECURITY,

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Plaintiff, :
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Defendant. :
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Civil Action No. 17-12564 (SRC)

OPINION

CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Scott M. Alberg
(“Plaintiff”) of the final decision of the Commissioner of Social Security (“Commissioner”)
determining that he was not disabled under the Social Security Act (the “Act”). This Court
exercises jurisdiction pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of
the parties without oral argument, pursuant to L. CIV. R. 9.1(b), finds that the Commissioner’s
decision will be vacated and remanded.
In brief, this appeal arises from Plaintiff’s application for disability benefits, alleging
disability beginning June 18, 2013. A hearing was held before ALJ Sharon Allard (the “ALJ”)
on September 8, 2016, and the ALJ issued an unfavorable decision on November 28, 2016,
finding that Plaintiff had not been disabled during the period in question. After the Appeals
Council denied Plaintiff’s request for review, the ALJ’s decision became the Commissioner’s
final decision, and Plaintiff filed this appeal.
In the decision of November 28, 2016, the ALJ found that, at step three, Plaintiff did not

meet or equal any of the Listings. At step four, the ALJ found that Plaintiff retained the residual
functional capacity to perform sedentary work, with certain limitations. At step four, the ALJ
also found that Plaintiff is unable to perform any past relevant work. At step five, the ALJ
determined, based on the testimony of a vocational expert, that there are other jobs existing in
significant numbers in the national economy which the claimant can perform, consistent with his
medical impairments, age, education, past work experience, and residual functional capacity.
The ALJ concluded that Plaintiff was not disabled within the meaning of the Act.
On appeal, Plaintiff argues that the Commissioner’s decision should be reversed and the
case remanded on a number of grounds, but this Court need only reach the argument that
succeeds: the residual functional capacity determination at step four is not supported by
substantial evidence.
Plaintiff contends that the ALJ rejected the opinions of Plaintiff’s treating physician, Dr.
Horowitz, with only a conclusory statement that they were not supported by the record. Plaintiff
argues that the ALJ failed to provide adequate reasons for rejecting a treating physician’s
opinion, which warrants a reversal. In support, Plaintiff cites a number of cases, as well as
S.S.R. 96-8(p) and 20 C.F.R. § 404.1527. In opposition, the Commissioner states: “Contrary to
Plaintiff’s contention, the ALJ considered all of the evidence of record and thoroughly discussed
her reasoning for the RFC assessment and the weight given to Plaintiff’s physician Steven
Horowitz, M.D.” (Opp. Br. 5.) The Commissioner’s opposition brief then proceeds to muster
the evidence of record that, the Commissioner contends, supports the ALJ’s decision.
In short, Plaintiff is correct, and the Commissioner is not. The place to begin is with
what the ALJ actually wrote. What follows is the ALJ’s discussion of the opinion of Dr.
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Horowitz, presented in its entirety:
The severity of limitations indicated by the claimant’s treating physician, Steven
Horowitz, M.D., are not supported by the record. Moreover, his conclusory
findings that the claimant will likely have four unscheduled work absences a
month are unsupported. It should be noted that, although his findings indicating
limitations for standing or walking for no longer than two hours during an eight
hour workday are supported by the record, Dr. Horowitz proffers no evidence to
support this finding. Likewise, his conclusory assessments that the claimant is
limited to sitting for no longer than one hour at a time, and that the claimant
would be off task for 25% of a typical workday, are unsupported (Exhibit 8F).
(Tr. 22.) This Court finds that Plaintiff’s characterization of this paragraph is more accurate
than the Commissioner’s. Indeed, but for the acknowledgement that some aspects of the
opinion are supported by the record, the paragraph contains only versions of the statement that
Dr. Horowitz’s opinion is not supported by the record. The Commissioner’s assertion that the
ALJ “thoroughly discussed” the weight given to Dr. Horowitz is not supported by what the ALJ
actually wrote.
The next question to consider is: what does the law require an ALJ to do when rejecting a
treating physician’s opinion? Plaintiff’s brief cited a number of authorities in support of his
argument that the ALJ’s explanation is legally insufficient. The Commissioner, on the other
hand, did not address Plaintiff’s citations, nor the question of what the law requires.
Plaintiff aptly cites the Third Circuit’s decision in Morales, which held:
A cardinal principle guiding disability eligibility determinations is that the ALJ
accord treating physicians' reports great weight, especially when their opinions
reflect expert judgment based on a continuing observation of the patient's
condition over a prolonged period of time. Where, as here, the opinion of a
treating physician conflicts with that of a non-treating, non-examining physician,
the ALJ may choose whom to credit but cannot reject evidence for no reason or
for the wrong reason. The ALJ must consider the medical findings that support a
treating physician’s opinion that the claimant is disabled. In choosing to reject the
treating physician’s assessment, an ALJ may not make speculative inferences
from medical reports and may reject a treating physician’s opinion outright only
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on the basis of contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citations omitted). The ALJ’s treatment of
Dr. Horowitz’s opinion fails to meet the requirements stated in Morales. The ALJ did not reject
the opinion of Dr. Horowitz on the basis of contradictory medical evidence. Rather, the ALJ
relied only on her lay opinion of the medical records. The ALJ rejected the opinion of Dr.
Horowitz for the wrong reason, to use the language of Morales: the ALJ’s conclusory lay opinion
that a treating physician’s opinion is not supported by the medical evidence, with no explanation
of the contradictory medical evidence which justifies the ALJ’s opinion, does not constitute
substantial evidence. Under Third Circuit law, this constitutes reversible error.
Nor can it be said that the ALJ rejected the treating physician’s opinion on the basis of
the medical opinions offered by the state agency reviewers. In fact, the ALJ rejected the
opinions of the state agency reviewers as well. Again, the ALJ’s discussion is presented here in
its entirety:
Partial weight shall be afforded to the District Disability Services medical
consultants’ determinations. Although the record supports a finding for a
sedentary residual functional capacity, thus contradicting the DDS consultants'
findings, their nonexertional limitations for climbing, sitting and standing are
generally supported (Exhibits 2A, 3A).
(Tr. 22.) The ALJ here stated: 1) that the state agency reviewers were wrong in their assessment
of residual functional capacity; but 2) they were right about the nonexertional limitations for
climbing, sitting and standing. The ALJ thus cited no medical opinion that Plaintiff retains the
residual functional capacity to perform work at the sedentary level. The decision does not
provide a reasonable basis for crediting any of the medical opinions of record. The only
possible explanation for the ALJ’s determination that Plaintiff retains the residual functional
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capacity for sedentary work is that the ALJ made speculative inferences from medical reports
and arrived at her own lay opinion about what the medical evidence demonstrated.
In the absence of any medical opinion that Plaintiff retains the residual functional
capacity to perform work at the sedentary level, this Court can only conclude that the ALJ’s
residual functional capacity determination is based solely on the ALJ’s lay opinion about the
medical evidence. Morales expressly prohibits this. This Court finds that the ALJ’s residual
functional capacity determination is not supported by substantial evidence. To the contrary, it is
supported only by lay opinion that is prohibited under Third Circuit law.
The Commissioner’s opposition brief attempts to compensate for the deficiencies in the
ALJ’s reasoning by presenting argument and evidence that the ALJ might have made, but didn’t.
This after-the-fact attempt to patch the holes in the ALJ’s decision does not alter what the ALJ
actually wrote and cannot be used to erase the ALJ’s errors. The Commissioner thus urges this
Court to consider evidence, not cited by the ALJ, as substantial evidence in support of the ALJ’s
determination. Third Circuit law on this issue is very clear: this Court may not consider
evidence not mentioned by the ALJ. In Fargnoli v. Halter, 247 F.3d 34, 44 n.7 (3d Cir. 2001),
the Third Circuit vacated the district court’s affirmance of the ALJ’s decision and ordered a
remand, holding as follows:
The District Court, apparently recognizing the ALJ's failure to consider all of the
relevant and probative evidence, attempted to rectify this error by relying on
medical records found in its own independent analysis, and which were not
mentioned by the ALJ. This runs counter to the teaching of SEC v. Chenery
Corporation, 318 U.S. 80, 87 L. Ed. 626, 63 S. Ct. 454 (1943), that “the grounds
upon which an administrative order must be judged are those upon which the
record discloses that its action was based.”
The Commissioner here invites this Court to consider evidence not cited by the ALJ. This is not
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permissible under Fargnoli.
For these reasons, this Court finds that the Commissioner’s decision is not supported by
substantial evidence. The Commissioner’s decision is vacated and remanded for further
proceedings in accordance with this Opinion.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: May 1, 2020

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