WERTS v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION. Signed by Judge Claire C. Cecchi on 2/28/2019. (sm)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KEVIN L. WERTS,

Civil Action No.: 1 8-cv-3442

Plaintiff,
V.

OPINION

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
CECCHI, District Judge.
I.

INTRODUCTION

Before the Court is Plaintiff Kevin L. Werts’s appeal seeking review of a final
determination by the Commissioner of the Social Security Administration (“Commissioner” or
“Defendant”) denying his application for Disability Insurance Benefits (“DIR”) and Supplemental
Security Income (“SSI”) pursuant to Title II and Title XVI of the Social Security Act (“SSA” or
the “Act”). This matter is decided without oral argument pursuant to federal Rule of Civil
Procedure 78. for the reasons set forth below, the decision of the Administrative Law Judge
(“AU”) is vacated and the case is remanded for further administrative proceedings.
II.
A.

BACKGROUND

Factual Background

Plaintiff, an adult male, was born on January 3, 1972. (Tr.’ at 21). Plaintiff possess at least
a high school education, (Id. at 40), and has previously worked as a delivery person, gas station
attendant, food service manager, and group home orderly. (Id. at 44-54). On March 8, 2014,

“Tr.” refers to the certified record of the administrative proceedings. (ECF No. 7).
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Plaintiff suffered a brain aneurysm. (Id. at 41). Plaintiff testified that following his aneurysm, he
suffered cognitive decline that interfered with his ability to work in even unskilled positions. (Id.
at 38). Plaintiff further testified that since his aneurysm, he needs to wear dark sunglasses because
he is sensitive to light and exposure causes him severe headaches. (Id. at 56-57). He also indicated
that he has experienced sensitivity to noise. (Id. at 61-62). Plaintiff further indicated that some
days he has such severe headaches that he is unable to get out of bed. (Id. at 57). Additionally,
Plaintiff avers that he is unable to sit down for long periods of time, because if he does he will
inadvertently fall asleep. (Id. at 63). Plaintiff claims that some days his balance and coordination
are so poor that he has “to reteach [himself] how to walk.” (Id. at 71). finally, Plaintiff also
testified that he suffers from a mood disorder. (Id. at 7 1-72).
B.

Procedural Background

On April 22, 2014, Plaintiff filed an application for a period of disability and DIB pursuant
to Title II of the S$A. (Id. at 234). That same day, Plaintiff also applied for SSI pursuant to Title
XVI of the SSA. (Id. at 241). On August 27, 2014, Plaintiffs applications were initially denied.
(Id. at $2). On May 23, 2015, Plaintiffs applications were once again denied on reconsideration.
(Id. at 152). Plaintiff requested an AU hearing, and such hearing was conducted on April 10,
2017. (Id. at 32-8 1). On June 23, 2017, the AU issued his opinion concluding that Plaintiff was
not disabled within the meaning of the SSA at any point from his alleged onset date of March 8,
2014 through the date of the decision. (Id. at 12-22). Plaintiff next sought review by the Appeals
Council, which denied review on January 26, 2018. (Id. at 1). Thereafter, Plaintiff instituted this
action seeking judicial review of the AU decision.

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III.
A.

LEGAL STANDARD

Standard of Review

This Court has jurisdiction to review the Commissioner’s decision under 42 U.s.c.

§ 405(g) and 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [itsi
own factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm ‘r ofSoc. Sec., 667 f.3d 356, 359 (3d Cir. 201 1); see also 42 U.S.C.

§ 405(g).

Nevertheless,

the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir,
1978) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
f.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v. Astrue, No. 08-1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. Fed. Mar. Comm ‘n, 383 U.S. 607, 620 (1966)). In other words, under this deferential
standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cruz v. Comm ‘r ofSoc. Sec., 244 F. App’x 475, 479 (3d Cir. 2007)
(citing Hartranft v. Apfel, 181 f.3d 358, 360 (3d Cir. 1999)).
B.

Determining Disability

In order to be eligible for benefits under the SSA, a plaintiff must show he is disabled by
demonstrating 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

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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), 13$2c(a)(3)(A). Taking into account the plaintiffs age, education, and work

experience, disability will be evaluated by the plaintiffs ability to engage in his previous work or
any other form of substantial gainful activity existing in the national economy.

§ 423(d)(2)(A),

42 U.S.C.

1382c(a)(3)(B). A person is disabled for SSA purposes only if his physical or

mental impairments are “of such severity that he is not only unable to do his previous work, but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.

.

.

.“

42 U.S.C.

§

1382c(a)(3)(B).

Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apftl, 228 F.3d 259, 262 (3d

dr. 2000) (citing Heckler v.

Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.

§ 423(d)(3),
C.

1382(a)(3)(D).
Sequential Evaluation Process

The Social Security Administration follows a five-step, sequential evaluation to determine
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R.

§ 404.1520, 416.920.

first, the AU must determine whether the plaintiff is currently engaged in gainful activity. Sykes,
228 F.3d at 262. Second, if he is not, the AU determines whether the Plaintiff has an impairment
that limits his ability to work. Id. Third, if he has such an impairment, the AU considers the
medical evidence to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”).

If it is, this results in a presumption of disability.

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Id.

If the

impairment is not in the Listings, the AU must determine how much residual functional capacity
(“RFC”) the applicant retains in spite of his impairment. Id. at 263. fourth, the AU must consider
whether the plaintiffs RFC is enough to perform his past relevant work. Id. Fifth. if his RFC is
not enough, the AU must determine whether there is other work in the national economy the
plaintiff can perform. Id.
The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R.

§ 404.1520(a)(4), 416.920(a)(4).

The plaintiff bears the burden

of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five.
Sykes, 22$ f.3d at 263. Neither party bears the burden at step three. Id. at 263 n.2.
IV.
A.

DISCUSSION

Summary of the AU decision.

At step one, the AU found that Plaintiff met the insured status requirements of the SSA
through December 31, 2016 and had not engaged in substantial gainful activity since March 8,
2014, his alleged onset date. (Tr. at 14). At step two, the AU found that Plaintiff suffered from
three severe impairments: status-post left craniotomy for clipping of a ruptured middle cerebral
artery, cognitive disorder, and generalized anxiety non-specified. (Id.). However, at step three,
the AU found that Plaintiff did not have an impairment or combination of impairments that met
or medically equaled the severity of a listed impairment. (Id. at 15). The AU then found that
Plaintiff possessed the RFC to perform light work as defined by 20 CfR

§

404.1567(b) and

416.967(b), with additional limitations. (Id. at 17).
At step four, the AU found that Plaintiff was unable to perform any past relevant work.
(Id. at 20). At step five, the AU found that in light of Plaintiffs age, education, work experience.
and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff

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could perform. (Id. at 21). Thus, the AU concluded that Plaintiff was not disabled, within the
meaning of the $SA, at any point from the alleged onset date through the date of decision. (Id. at
22).
B.

Analysis

Plaintiff argues that this case should be remanded to the AU for further consideration of
expert opinion evidence which, Plaintiff believes, tends to suggest a greater level of impairment
than recognized by the opinion below. (ECF No. 11 at 26-33). Specifically, Plaintiff avers that
the AU unreasonably accorded limited weight to the opinion of Pavel P. Tishuk, M.D.
In reaching his RFC determination, the AU found that although Plaintiffs medically
determinable impairments could be expected to cause symptoms, the Plaintiffs statements about
the intensity, persistence, and limiting effects of his symptoms were not “entirely consistent with
the medical evidence and other evidence in the record.” (Tr. at 1$). The AU acknowledged that
the medical record showed Plaintiff to have experienced cognitive decline and problems with
memory and concentration following his aneurysm, however the AU nonetheless rendered an
RFC consistent with an ability to do simple, unskilled light work. (Id.). For his conclusion
regarding Plaintiffs RFC, the AU relied on relatively mild clinical findings from the months
following Plaintiffs aneurysm, which supported some cognitive decline but appeared to the AU
to be generally consistent with limitations lesser than complete disability. (Id.). Opinion evidence
tending to suggest more serious limitations was given only limited weight. (Id. at 19-20). Dr.
Tishuk’s opinion was among the evidence accorded lesser weight.
On October 28, 2016, Plaintiffs treating neurologist, Dr. Tishuk, completed a form titled
“Organic Mental Disorders Treating Physician Data Sheet.” (Id. at 850-853). On this form, which
appears to have been devised by Plaintiffs counsel, Dr. Tishuk provided an evaluation of

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Plaintiff’s condition, symptoms, and limitations. In that document, Dr. Tishuk indicated that
Plaintiff exhibited, among other symptoms, memory impairment; changes in personality; and
disturbance of concentration, attention, or judgment. (Id. at 851). On the severity of Plaintiff’s
resulting limitaitons, Dr. Tishuk opined that Plaintiff’s condition was the source of marked
restriction of activities of daily living; marked difficulties in social functioning; and marked
difficulties in maintaining concentration, persistence, or pace. (Id). Dr. Tishuk further indicated
that Plaintiff suffered from a chronic disorder of at least two years’ duration which caused more
than a minimal limitation of ability to do basic work activities and a residual disease process which
resulted in “such marginal adjustment that even a minimal increase in mental demands or change
in the environment would be predicted to cause [Plaintiff] to decompensate.” (Id).
Where, as here, the record contains conflicting medical evidence, “the AU may choose
whom to credit but cannot reject evidence for no reason or for the wrong reason.” Flummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (citing Mason v. Shalata, 994 F.2d 1058, 1066 (3d Cir.
1993)). “The AU must consider all the evidence and give some reason for discounting the
evidence []he rejects.” Id. (citing Stewart v. Sec ‘y of H.E. W, 714 F.2d 287, 290 (3d Cir. 1983).
Here, The AU afforded Dr. Tishuk’s opinion “some weight,” but did not accept his conclusions
about the severity of Plaintiff’s limitations:
Dr. Tishuk essentially indicated that the claimant met the above-cited listings
(Exhibit 26f). While there is no doubt the claimant’s impairments are severe, it
does not appear to be listing level. for instance, the doctor notes marked limitations
in activities of daily living, but the record shows otherwise. F or instance, the
claimant reported being able to engage in house hold chores (taking out the trash
and cooking), doing lawn work with use of ear plugs and dark glasses, manage
money, travel independently using GP$, read, and use a computer (Exhibit 20F).
The claimant also cited having good family relations and friends, which contradicts
marked impairment in maintaining social functioning. further, being alert and
oriented x3 and intact expressive/receptive skills, and normal thought processes.
Accordingly, some weight is given to this opinion because the non-exertional
limitations are present, but not to the extent stated by this doctor.
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(Tr. at 19-20). Plaintiff contends that the AU’s decision regarding the appropriate weight to be
given to Dr. Tishuk’s opinion was unreasonable and insufficiently explained.

He therefore

maintains that the AU’s opinion should be vacated and the case remanded for further
consideration of Dr. Tishuk’s opinion. (ECF No. 11 at 3l32). The Court agrees.
The Court finds that the AU’s decision to grant only “some weight” to Dr. Tishuk’s
opinion on the severity of Plaintiffs limitations was not supported by substantial evidence because
review of the record indicates that the putatively contradictory medical evidence cited by the AU
in reaching that decision did not actually contradict Dr. Tishuk’s findings. First, the AU opinion
suggests that Dr. Tishuk’s credibility is undercut by tension between reports that Plaintiff was able
to engage in certain chores (taking out the trash, cooking, etc.) and Dr. Tishuk’s opinion that
Plaintiff experienced marked limitations in activities of daily living. (Tr. at 19). For Plaintiffs
daily activities, the AU relies on the report of Kim Arrington, Psy. D. In her April 29, 2015 report,
Dr. Arrington wrote:
On a daily basis, the claimant struggles to get out of bed, so he is missing dressing,
bathing, and grooming. He does engage in household chores such as taking out the
trash in [sic] cooking. He tries to do lawn work, but must wear military ear plugs
and dark glasses. He is able to manage money and travel independently with a
GPS. He is able to read and use a computer.
(Id. at 204). The record does not reflect, however, that the AU considered Plaintiffs limitations
in performing such tasks before concluding these activities were inconsistent with marked
limitations in activities of daily living. Dr. Arrington’s report, the primary purpose of which was
to evaluate Plaintiff for possible clinical depression, does nothing to explain the frequency with
which Plaintiff is able to engage in such activities or limitations to his level of performance. For
example, Dr. Arrington’s opinion does not make clear the level of success experienced by Plaintiff
when he “tries” to do lawn work. Information about Plaintiffs limitations in performing the
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activities cited by Dr. Arrington is particularly relevant in light of Plaintiff’s testimony that his
capacity fluctuates considerably from day to day. See (Id. at 61). Without additional information,
the AU’s belief that Dr. Arrington’s report was in conflict with that of Dr. Tishuk was
unreasonable. See Orta v. Comm’r of Soc. Sec., No. 15-6061, 2016 WL 6304437, at *6 (D.N.J.
Oct. 25, 2016) (AU did not adequately explain his decision to discount a physician’s opinion that
the plaintiff was limited in his ability to walk or stand for long periods where AU cited activities
of daily living that were not necessarily inconsistent with such limitations).2
The Court finds the AU’s second argument, that Dr. Tishuk’s conclusion that Plaintiff
experienced marked impairment in maintaining social functioning was inconsistent with the
record, to be similarly unreasonable. As evidence of Plaintiff’s level of social impairment, the
AU refers to the July 31, 2014 report of Avanente Tamagnini, Ph.D., which stated that Plaintiff
“[had] friends,” whom he occasionally visited. (Id. at 723-24). Additionally, during his hearing
before the AU, Plaintiff was asked if he was able to get along with his wife and the people in his
household. (Id. at 68). In response, Plaintiff stated “[wJe’re okay.” (Id.). The AU did not explain,
however, why such evidence, indicating that Plaintiff had at least one friend and enjoyed “okay”
relations with his family, was inconsistent with Dr. Tishuk’s finding that Plaintiff’s social
functioning was markedly impaired.
Moreover, the record does not reflect that, on the occasion of his decision to provide limited
weight to Dr. Tishuk’s opinion, the AU considered record evidence indicating that Plaintiff’s
social functioning deteriorated between Dr. Tamagnini’s report in July 2014 and the time of Dr.

2The supposed tension between the opinions of Dr. Tishuk and Dr. Arrington, moreover, is
undercut by Dr. Arrington’s report, which concludes that Plaintiff’s condition was “consistent with
psychiatric problems, which may significantly interfere with the claimant’s ability to function on
a daily basis.” (Tr. at 804).
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Tishuk’s opinion in 2016. For example, on October 6, 2014, Plaintiff was evaluated by Seth R.
Stoller, M.D., who reported that during the evaluation, Plaintiff became angry and began to yell
profanities so loudly that hospital security guards were summoned to his location. (id. at 765).
The record further indicates that at that same appointment, following the arrival of security guards,
Plaintiff stated that he was calm and that if he were not calm he would have committed acts of
violence against Dr. Stoller, the security guards, and his own wife. (Id.). Because the AU does
not appear to have conducted a full examination of the record, the Court cannot conclude that his
decision that the record evidence was in conflict with Dr. Tishuk’s opinion was supported by
*4 (DNJ Dec.
substantial evidence. See Greco v. Berryhilt, No. 16-7829, 2018 WI 6716840, at
20, 2018) (remanding where the AU, upon discounting a physician’s opinion because of
inconsistency with reports of the plaintiff’s daily activities, failed to conduct a full examination of
the record including the plaintiffs testimony about her limitations and related record evidence).
As for the AU’s final statement on Dr. Tishuk’s opinion (“being alert and oriented x3 and
intact expressive/receptive skills, and normal thought processes”), (id. at 19-20), the AL] does not
explain why such findings call into question Dr. Tishuk’s opinions about Plaintiff’s limitations.
Thus, the Court cannot offer meaningful review of this issue.3

3Plaintiff further argues that the opinion below does not indicate whether the AU considered Dr.
Tishuk’s status as a specialist. (ECF No. 11 at 2$). When an AU does not give controlling
weight to a medical opinion, the Commissioner’s regulations direct him to consider, among other
factors, whether the source of said opinion is a specialist. See 20 C.F.R. § 404.1 527(c)(5). On
remand the AU should take care that the record reflects that he was aware of Dr. Tishuk’s
specialist status and considered it when evaluating the opinion evidence.
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Therefore, the Court cannot conclude that the AU’s decision about the appropriate level
of weight to provide to Dr. Tishuk’s opinion was rational and supported by substantial evidence.
Accordingly, the Court will remand to the AU for further consideration of Dr. Tishuk’s opinion.4
C.

Plaintiffs Other Arguments

Plaintiff makes other arguments as to why the AU’s decision should be remanded.
Because the Court finds that the AU’s opinion was not supported by substantial evidence, it will
remand and need not consider such arguments at this juncture.
V.

CONCLUSION

For the foregoing reasons, the Court will vacate the AU’s decision and remand this case
for further administrative proceedings consistent with this Opinion. An appropriate Order follows.

DATED:

__

I
CLAIRE C. CECCHI, U.S.D.J.

4The Court here notes that, on remand, the AU is not required to accept Dr. Tishuk’s opinion or
to afford it any particular weight. The AU is merely required to provide a rational explanation for
the level of weight given to said opinion. See Flummer, 186 F.3d at 429 (“An AU may reject a
treating physician’s opinion outright only on the basis of contradictory medical evidence, but may
afford a treating physician’s opinion more or less weight depending upon the extent to which
supporting explanations are provided.”).
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