DEVECCHIS v. COMMISSIONER OF SOCIAL SECURITY

Filing 28

OPINION. Signed by Judge Stanley R. Chesler on 8/13/2019. (vm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
ARTHUR D. DEVECCHIS,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL
:
SECURITY,
:
:
Defendant.
:
____________________________________:

Civil Action No. 18-8495 (SRC)
OPINION

CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Arthur D. Devecchis
(“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.
In brief, this appeal arises from Plaintiff’s application for disability insurance benefits,
alleging disability beginning February 1, 2012. A hearing was held before ALJ Nycole Watson
(the “ALJ”) on March 9, 2016, and the ALJ issued an unfavorable decision on October 31, 2016,
finding Plaintiff not disabled. 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 October 31, 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 work at all exertional levels, with certain non-exertional limitations,
particularly a limitation to simple tasks. At step four, the ALJ also found that Plaintiff did not
retain the residual functional capacity to perform his 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 one that succeeds: at
step four, the ALJ erred in failing to give proper weight to the treating physician evidence.
At step four, in making the residual functional capacity assessment of nonexertional
limitations, the ALJ rejected every piece of medical evidence she reviewed. First, she stated:
As previously noted, the claimant has received routine and conservative
psychiatric treatment, consisting primarily of monthly 15-minute medication
checks. The record shows that the claimant is stable and doing well, cognitively
within normal limits. He was able to perform substantial gainful activity at a
skilled occupation until he was laid off in 2012 in spite of his impairments and
there is nothing in the record that suggests deterioration as stated by his
psychiatrist.
(Tr. 19.) Then, this:
As discussed at step three of the sequential evaluation, limited weight has been
given to the opinions of the State agency psychological consultants who found
that the claimant’s impairments were not severe.
(Tr. 19.) This statement refers back to a part of the discussion at step three, in which the ALJ
reviewed the opinions of the State agency psychological consultants, “who found that the
claimant’s mental impairments were not severe, causing only mild psychological limitations.”

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(Tr. 15.) At step three, the ALJ essentially rejected those opinions:
However, new medical evidence has been introduced into the record since the
State agency made its assessment. The subsequently submitted evidence
establishes that the claimant’s mental impairment are severe, thus the opinions
expressed are not now supported by or consistent with the current record.
Therefore, these opinions can only be given limited weight.
(Tr. 15.) Turning back to the discussion at step four, the ALJ next stated:
In addition, little weight can be given to the unsupported check off assessment
form completed by the claimant’s treating psychiatrist.
(Tr. 19.) The ALJ then presented her residual functional capacity determination. As to
nonexertional limitations, the ALJ found that Plaintiff was limited to simple tasks with simple
instructions in a low-stress setting. (Tr. 19.)
Plaintiff, on appeal, argues that the ALJ erred by rejecting the opinion of Plaintiff’s
treating psychiatrist, which was contrary to Third Circuit law. This is correct. The Third
Circuit has 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
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 decision
fails to follow Morales. The ALJ essentially rejected the assessment of nonexertional functional
capacity of every medical source she reviewed. Although the ALJ stated at step four that she

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gave the opinions of the state agency consultants “limited weight,” in effect, at step three, the
ALJ discredited them entirely as unsupported by the current record. This is not an inference;
this is what the ALJ wrote in the decision.
Because, as to nonexertional limitations, the ALJ rejected the functional assessment of
every medical expert whose opinion she reviewed, this Court inquires: on what medical evidence
is the ALJ’s residual functional capacity determination based? At step four, while the ALJ
wrote that she gave limited weight to the opinions of the two State agency psychological
consultants, she effectively undermined that assertion at step three, when she determined that, as
to these consultants, “the opinions expressed are not now supported by or consistent with the
current record.” (Tr. 15.) This determination should reasonably have rendered those two
opinions unworthy of any weight. Certainly, the ALJ did not explain how these discredited
opinions could be worthy of any weight.
The ALJ thus expressly rejected every treating physician medical opinion she reviewed,
and determined that the state agency consultants’ opinions were not supported by the record.
This leaves the Court to ask on what medical evidence the ALJ relied in determining Plaintiff’s
residual functional capacity? The decision does not provide a reasonable basis for crediting any
of the medical opinions of record. The only possible answer is that the ALJ made speculative
inferences from medical reports and arrived at her own lay opinion about what the medical
evidence demonstrated. Thus, the ALJ impermissibly rejected the opinions of the treating
physician without contrary medical evidence – since, to the extent that the state agency
consultants could be considered to have offered contrary opinions about nonexertional
limitations, the ALJ rejected them. Instead, the ALJ appears to have relied on her own lay

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opinion of the medical evidence. This is highlighted in this statement: “there is nothing in the
record that suggests deterioration as stated by his psychiatrist.” (Tr. 19.) The Commissioner
has pointed to no medical expert who stated that opinion. The ALJ came to these conclusions
without supporting medical evidence – except to the extent that she made a lay assessment of the
medical records.
The ALJ also appears to have overlooked important medical evidence. There is no
discussion of treating psychiatrist Dr. Kammiel’s evaluation report, dated October 28, 2015,
which states, in relevant part:
Mr. Devecchis has presented over the years with intermittent episodes of paranoia
and delusional thinking. The most recent nature of his psychotic thinking has
focused on thinking that numbers are giving him certain messages.
Despite compliance with medication, his mental status in general has deteriorated
over the past few years.
(Tr. 725.) Dr. Kammiel concluded that Plaintiff is unable to maintain employment. (Tr. 726.)
Now, let us consider again the ALJ’s statements quoted above:
As previously noted, the claimant has received routine and conservative
psychiatric treatment, consisting primarily of monthly 15-minute medication
checks. The record shows that the claimant is stable and doing well, cognitively
within normal limits. He was able to perform substantial gainful activity at a
skilled occupation until he was laid off in 2012 in spite of his impairments and
there is nothing in the record that suggests deterioration as stated by his
psychiatrist.
(Tr. 19.) Given Dr. Kammiel’s October 28, 2015 report, this assessment conflicts with the
medical evidence of record. The assertion that the claimant is cognitively within normal limits
is contrary to Dr. Kammiel’s description of psychotic, delusional thinking.
The transcript of the hearing before the ALJ shows that Plaintiff testified as follows:
Well, I think I'm going to be the President of the United States someday, and all
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of this is just testing me. I watch a baseball game 1:00 maybe 2:00 at night at my
house, and all the numbers of the players, like if the player is 12, it means the
12th commandment, the 11th and 12th commandment.
(Tr. 61.) In view of such testimony, this Court finds the ALJ’s assertion that the record shows
that Plaintiff is “cognitively within normal limits” to be unsupported by the evidence.
Moreover, the ALJ’s assessment appears inconsistent with the evidence that physicians have
been treating Plaintiff with antipsychotic medication for many years.
The ALJ determined that, to the extent that Plaintiff has nonexertional functional
limitations, these may be addressed by limiting him, generally, to simple tasks and the like.
Again, this can only be based on lay opinion, since the ALJ cited no medical evidence in
support.
Plaintiff is thus entirely correct that the residual functional capacity determination is not
supported by substantial evidence. It is supported only by the ALJ’s lay opinion, which is
neither medical evidence nor substantial evidence. For this reason, this Court finds that the
Commissioner’s decision is not supported by substantial evidence, and 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: August 13, 2019

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