BODEN SCOTTI v. COMMISSIONER OF SOCIAL SECURITY

Filing 18

OPINION filed. Signed by Judge Robert Kirsch on 10/23/2024. (jdg)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANGELA S.,

Plaintiff,
V.

MARTIN O'MALLEY, Commissioner of

Civil Action No. 23-22441 (RK)

OPINION

Social Security,
Defendant.

KIRSCH, District Judge
THIS MATTER comes before the Court upon Plaintiff Angela S.'s ("Plaintiff')1 appeal
from the Commissioner of the Social Security Administration's (the "Commissioner") final
decision, which denied Plaintiffs request for disability insurance benefits. (ECF No. 1.) The Court
has jurisdiction to review this appeal under 42 U.S.C. § 405(g) and reaches its decision without
oral argument pursuant to Local Civil Rule 78.1. For the reasons below, the Court VACATES the
Commissioner's decision and REMANDS this matter for further proceedings.

I. BACKGROUND
On May 5, 2021, Plaintiff filed an application for disability and disability insurance benefits
alleging disability as of February 7, 2021. The Social Security Administration (the
"Administration") denied Plaintiffs request both initially, (Administrative Record, "AR," at 159),
and on reconsideration, (id. at 172). At Plaintiff's request, Administrative Law Judge Ricardy
Damille (the "ALJ") held a telephonic hearing on June 17, 2022. (Id. at 42-67.) At the hearing,

1 The Court identifies Plaintiff by first name and last initial only. See D.N.J. Standing Order 2021-10.

Plaintiff, who was represented by counsel, and a vocational expert ("VE") testified. (M) On
October 24, 2022, the ALJ issued a written decision finding that Plaintiff suffered from the
following severe impairments: bilateral carpal tunnel syndrome; depression; bipolar disorder;
anxiety; post-traumatic stress disorder ("PTSD"); attention deficit hyperactivity disorder
("ADHD"); and history of cocaine use disorder. {Id. at 24.) The ALJ found Plaintiff suffered from
the following non-severe medically determinable impairments: ner^e damage in her left leg and
buttocks due to chemical bums; hypertension; sleep apnea; chronic obstmctive pulmonary disease;
status post-pacemaker implant; torn meniscus in the right knee; lumbar spine impairment; and
obesity. (M) The ALJ stated he found these impairments were not severe "based on the medical
record which does not indicate any complications or ongoing, limiting physical symptoms related
to these conditions." (Id.)
The ALJ found Plaintiff not disabled because although Plaintiff was unable to perform any
past relevant work, sufficient jobs existed in the national economy that she could perform given
her residual functional capacity ("RFC"). (Id. at 34.) Specifically, the vocational expert at the
hearing testified that Plaintiff could perform the occupations of: janitor cleaner; warehouse worker;
and convey or tender. (Id. at 27.)
Plaintiff appealed the ALT's decision, and the Administration's Appeals Council denied her
appeal, rendering the ALJ's decision final. (Id. at 1-8.) The Appeals Council also found additional
medical evidence Plaintiff submitted with the request for review related to Plaintiffs meniscus tear
and subsequent surgery did not show a "reasonable probability that it would change the outcome
of the decision" and decided not to add the additional evidence as exhibits to the record. (Id. at 2.)
Plaintiff then appealed the ALT's decision to the District Court for the District of New
Jersey on November 17, 2023. (ECF No. 1.) bi her brief filed on May 14, 2024, Plaintiff argued

that the ALJ did not properly consider the medical opinion of Dr. Pavel Tishuk, an independent
medical examiner and specialist in neurology who examined Plaintiff related to chemical bums on
her legs and buttocks incurred by Plaintiff while in custody as a prisoner. ("Pl. Br.," ECF No. 10
at 10-12, 16-22; see also AR at 656.) Plaintiff argues this impacted the ALJ's findings regarding
the severity analysis of the effects of the chemical burns, as well as the ALT's RFC analysis. (Pl.
Br. at 16-22.) Second, Plaintiff argued that the ALJ's RFC finding was based on the ALJ's own
non-medical, or "lay" opinion rather than on medical evidence in the record, and was not supported
by substantial evidence. (Pl. Br. at 22-27.)2 Third, Plaintiff argues new material evidence submitted
to the Appeals Council merits remand because it shows the ALJ erred in finding Plaintiff's knee
impairment related to her meniscus tear was non-severe and that it did meet the durational
requirement for severity. (Pl. Br. at 27-30.) Plaintiff seeks the Court to reverse the ALJ's decision
and either award Plaintiff benefits or alternatively remand for further proceedings. (Id. at 31.)
On July 15, 2024, the Commissioner filed an opposition to Plaintiffs appeal on the basis
that overall the ALT's disability determination was based on substantial evidence. ("Opp.," ECF
No. 14 at 23.) Specifically, the Commissioner argued that (1) the ALJ treated Dr. Tishuk's evidence
appropriately because it did not qualify in the category of a "medical opinion" under the relevant
guidelines; (2) the ALJ properly based his RFC analysis on medical opinions and other categories
of relevant evidence in the record; and (3) the evidence Plaintiff submitted to the Appeals Council
was late for no good cause, and was neither new nor material. On August 12, 2024 Plaintiff filed a
reply, arguing that the Commissioner's brief effectively admits that the ALT did not properly

2 While an ALJ is "ultimately 'responsible for making an [RFC] determination based on the medical
evidence,' ... he may not inject his 'lay speculation' on the meaning of medical evidence." P early v.

Comm'rofSoc. See., No. 20-1738, 2021 WL 3206825, at *3 (D.N.J. July 29, 2021) (internal citations
omitted).

consider Dr. Tishuk's opinion under the regulations. ("Reply," ECF No. 17 at 1.) Plaintiff further
reiterated her arguments that the RFC finding was based on the ALT's own, non-medical opinion
after the ALJ found almost all of the medical opinions in the record unpersuasive and was not
supported by medical evidence, and finally that the medical evidence related to Plaintiffs knee
impairment submitted to the Appeals Council was not available until after the ALJ issued his
decision and was material to the ALT's RFC finding that Plaintiff was capable of a full range of
work at all exertional levels. (Reply at 5-13.)

II. LEGAL STANDARD
A. STANDARD OF REVIEW
The Court reviews the "final decision of the Commissioner of Social Security" to determine
whether the Commissioner's findings are "supported by substantial evidence." 42 U.S.C. § 405(g).
In the event that the Appeals Council denies a claimant's request for review, "the ALJ's decision
is the Commissioner's final decision." Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001)
(citation omitted). Substantial evidence is "more than a mere scintilla but may be somewhat less
than a preponderance of the evidence." Zimsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014)
(quoting Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Put differently, <<[i]t means
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000) (quoting Plummer v. Apfel,
186 F.3d 422, 427 (3d Cir. 1999)). This evidentiary threshold "is not high." Biestek v. Berryhill,

139S.C1 1148,1154(2019).
The scope of the Court's review of the ALJ's decision is "quite limited." Id. On review the
Court may not "re-weigh the evidence or impose [its] own factual determinations." Chandler v.
Comm'r of Soc. See., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S.

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389, 401 (1971)). "Where the ALJ's findings of fact are supported by substantial evidence, we are
bound by those findings, even if we would have decided the factual inquiry differently." Fargnoli

v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.

1999)).
B. ESTABLISHING ELIGIBILITY FOR DISABILITY INSURANCE BENEFITS
A claimant may establish disability under the Social Security Act by proving they are
unable 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. § 423(d)(l)(A).
The ALJ applies a well-established "five-step sequential evaluation process," which requires
considering whether the claimant:

(1) is engaged in substantial gainful activity; (2) suffers from an
impairment or combination of impairments that is "severe"; (3)
suffers from an impairment or combination of impairments that
meets or equals a listed impairment; (4) is able to perform his or her
past relevant work; and (5) is able to perform work existing in
significant numbers in the national economy."
McCrea v. Comm'r of Soc. See., 370 F.3d 357, 360 (3d Cir. 2004) (citing 20 C.F.R.
404.1520(a)-(f), 416.920(a)-(f)). The claimant bears the burden at the first four steps, at which
point it shifts to the Commissioner at Step Five. Hess v. Comm'r Soc. See., 931 F.3d 198, 201

(3d Cir. 2019).

III. DISCUSSION
Plaintiff appeals the Appeals Council's affirmance of the ALT's decision. She primarily
argues that the ALJ erred in two respects at Step Four of the disability determination process—
specifically, the ALJ's evaluation of Dr. Tishuk's medical opinion evidence and the ALJ's
subsequent determination of Plaintiff s RFC. (Pl. Br. at 16-27.) Plaintiff additionally argues the

case merits remand as new and material evidence submitted to the Appeals Council shows the ALJ
erred in finding Plaintiffs knee impairment was not severe based on the 12-month durational
requirement, which would further affect the ALT's RFC analysis. {Id. at 27-30.)
Because the Court finds that the ALT's analysis of the medical evidence was not sufficient
under the regulations, the Court does not reach Plaintiff's remaining challenges to the ALJ's
decision. See, e.g., Ingandela v. Kijakazi, No. 20-08033, 2022 WL 154422, at *9 (D.N.J. Jan. 18,
2022) (declining to address all of Plaintiffs arguments where one required remand). Plaintiff
argues the ALJ did not properly consider Dr. Tishuk's medical opinion evidence and that the
Commissioner's brief effectively admits this by attempting to reframe Dr. Tishuk's opinion as
something other than a medical opinion, rather than defending how the ALJ considered it. (Pl. Br.
at 16-22; see also Reply at 1-5.) The Court agrees and remands on this basis for the ALJ to provide
additional explanation for how he considered Dr. Tishuk's opinion.
A. CATEGORIES OF EVIDENCE FROM MEDICAL SOURCES
Medical opinion evidence is a type of evidence submitted in relation to a claimant's
disability benefits claim as submitted to the Administration. 20 C.F.R. § 404.1513(a)(2). Under
the Commissioner's regulations, all evidence received is "evaluate[d] . . . according to the rules
pertaining to the relevant category of evidence." Id. at § 404.1513(a). Medical opinion evidence
must be evaluated under the factors articulated in 20 C.F.R. § 404.1520c, which the Court will
discuss in detail below. Id. However, evaluations submitted into evidence by a physician or other
licensed healthcare worker (i.e., by a "medical source") are not necessarily "medical opinions"
unless they meet certain requirements.3 In cases where the evidence submitted by a medical source

3 A "medical source" is defined as "an individual who is licensed as a healthcare worker by a State and
working within the scope of practice permitted under State or Federal law." 20 C.F.R. § 404.1502(d).

does not qualify as a medical opinion, the ALJ is not required to apply the specific evaluation
framework for medical opinions articulated in 20 C.F.R. § 404.1520c or to specifically weigh the
non-medical opinion evidence's persuasiveness, or "weight." Id.

For claims filed after March 27, 2017, a "medical opinion" is defined as:
"[A] statement from a medical source about what [a claimant] can

still do despite [their] impaimient(s) and whether [they] have one or
more impairment-related limitations or restrictions in the following
abilities: . . .

(i) [Their] ability to perform physical demands of work
activities, such as sitting, standing, walking, lifting, carrying,
pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching,
handling, stooping, or crouching);

(ii) [Their] ability to perform mental demands of work
activities, such as understanding; remembering; maintaining
concentration, persistence, or pace; carrying out

instructions; or responding appropriately to supervision, coworkers, or work pressures in a work setting;

(iii) [Their] ability to perform other demands of work, such
as seeing, hearing, or using other senses; and
(iv) [Their] ability to adapt to environmental conditions,
such as temperature extremes or fumes.

20C.F.R.§404.1513(a)(2).
There are two additional categories of evidence from medical sources that do not qualify
as medical opinion evidence. First, objective medical evidence, defined as "signs, laboratory
findings, or both." Id. at § 404.1502(f); see also id. § 404.1513(a)(l).4 Second, there is a category
defined as "[o]ther medical evidence." Id. § 404.1513(a)(3). For claims filed after March 27, 2017,
other medical evidence is "evidence from a medical source that is not objective medical evidence

4 "Signs" are defined as "one or more anatomical, physiological, or psychological abnormalities that can
be observed, apart from [claimant's] statements (symptoms). Signs must be shown by medically

acceptable clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena that
indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, memory,
orientation, development, or perception, and must also be shown by observable facts that can be

medically described and evaluated." 20 C.F.R. § 404.1502(g).

or a medical opinion, including judgments about the nature and severity of [a claimant's]
impairments, [a claimant's] medical history, clinical findings, diagnosis, treatment prescribed with
response, or prognosis." Id.

Additionally, the guidelines outline a category of evidence called "evidence that is
inherently neither valuable nor persuasive." 20 C.F.R. § 404.1520b(c). This includes "statements
on issues reserved to the Commissioner" which would "direct [] determination or decision that [a
claimant is] or [is] not disabled . . .within the meaning of the Act." Id. This is because the
Commissioner alone is "responsible for making the determination or decision about whether" a
claimant is disabled. Id. This includes statements that: a claimant is or is not disabled, able to work,
or able to perform regular or continuing work; statements about whether a claimant has a severe
impairment; or statements about whether or not an impairment meets the duration requirement for
a severe impairment. Id. This category can include individual statements from medical sources in
medical opinions, in testimony, or in other medical evidence. Id. Because evidence in this category
is "neither valuable nor persuasive to the issue of whether [a claimant is] disabled . . . under the
Act" the Commissioner does not "provide any analysis about how [he] considered such evidence
in [his] determination or decision" even if such statements are found within medical opinion
evidence analyzed under 20 C.F.R. § 404.1520c. Id.

B. THE COMMISSIONER'S FRAMEWORK FOR MEDICAL OPINION EVIDENCE
Under 20 C.F.R. § 404.1520c(b)(2), an ALJ is required to consider medical opinion
evidence and determine the persuasiveness, or "weight," of the opinions by considering specific
factors listed in the Regulations. These factors include: (1) the "supportability" of the opinion
based on objective medical evidence and supporting explanations presented by the medical source;
(2) the "consistency" of the opinion with the record as a whole including other medical evidence
and nonmedical sources; (3) the physician's "relationship with the claimant" including length of
the treatment relationship, frequency of examinations, purpose of the treatment relationship, and
extent of the treatment relationship; (4) the "specialization" of the physician and how the medical
opinion relates to the medical source's area of specialty; and (5) "other relevant factors" that tend
to support or contradict the medical opinion, including but not limited to evidence showing a
medical source has familiarity with the other evidence in the claim or an understanding of the
disability program's "policies and evidentiary requirements." 20 C.F.R. § 404.1520c(c}^ see, e.g.,
Beerhalterv. Comm'rofSoc. See., No. 19-17561,2020 WL 5627015, at *6 (D.N.J. Aug. 18,2020)
("[T]he ALJ will consider a medical opinion using certain factors, including whether the opinion
is supported by objective medical evidence and explanations, and whether the opinion is consistent
with the evidence from other medical sources and nonmedical sources." (quoting Jackson v. Saul,
No. 18-4374, 2019 WL 4058997, at *5 (E.D. Pa. Aug. 27, 2019))). A medical opinion is "more
persuasive" where the objective medical evidence and supporting explanation from the medical
source is "more relevant." Id. § 404.1520c(c)(l). Similarly, a medical opinion is more persuasive
where it is "more consistent" with evidence from other medical sources and other nonmedical
sources. Id. § 404.1520c(c)(2).

Under current regulations, "a treating source's opinion will be given controlling weight
only if the opinion 'is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record/"
Candace D. v. Kijakazi, No. 23-01151, 2024 WL 913218, at *7 (D.N.J. Mar. 4, 2024) (quoting
Houston v. Sec'y of Health & Hum. Servs., 736 F.2d 365, 366-67 (3d Cir. 1984)). However, "[a]
treating source's conclusory medical opinions . . . will not be given controlling weight." Id.; see
also Chandler, 667 F. 3 d at 361 ("[T]he law is clear ... the opinion of a treating physician does
not bind the ALJ on the issue of functional capacity.").
However, "while the ALJ is not required to assign a particular weight to an opinion, he
must still consider" the factors outlined above as required by the regulations. Beerhalter, 2020 WL
5627015, at *6; see also Susan C. v. O'Malley, No. 23-00272, 2024 WL 1328190, at *10 (D.N.J.
Mar. 28, 2024) (affirming where the ALJ based the weight given to each medical opinion on its
consistency with the medical record evidence and otherwise "articulat[ed] his findings in a manner
consistent with the regulations").
In Beerhalter, the ALJ wrote in his Opinion that he found a specific doctor's medical
opinion was not persuasive because the medical opinion was written several years before the
claimant's current disability application. 2020 WL 5627015, at *7. The ALJ did not use the factors
required by 20 C.F.R. § 404.1520c and did not address the substance of the medical opinion when
finding it unpersuasive. Id. The district court remanded the matter to the ALJ because "although
the ALJ was not explicitly required to assign any particular weight to [the medical] opinion, it was
improper to reject the opinion . . . without considering the factors contained in 20 C.F.R.
404.1520c." Id. at *7 (citing Heise v. Astme, No. 09-5455, 2010 WL 3086445, at *9 (D.N.J. Aug.
2, 2010)). Further, the district court found the ALT's "single, conclusory sentence" detennining

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the medical opinion was not persuasive did not constitute an "adequate explanation" for the ALT's
assignment of persuasiveness, or weight, to the medical opinion. Id. (citing Bowers v. Saul, No.
19-17386, 2020 WL 4435405, at *8 (D.N.J. Aug. 3, 2020)).
C. THE MEDICAL EVIDENCE OF PAVEL TlSHUK, M.D.
Like in Beerhalter, the critical deficiency is that the ALJ did not properly apply the required
factors, and did not provide the required "adequate explanation" for finding the medical opinion
was not persuasive.

On August 20, 2021 Plaintiff underwent an independent medical examination from
neurologist Pavel Tishuk, MD. (Pl. Br. at 10-11; AR at 1340-1345).5 As of the date of the
examination, Dr. Tishuk was dual board certified in neurology and in neuromuscular medicine by
the American Board of Psychiatry and Neurology. (AR at 1345.) Dr. Tishuk compiled his findings
regarding Plaintiff in a comprehensive six-page report that he sent to Plaintiffs counsel on August
25, 2021. (Id. at 1340.) Dr. Tishuk's examination focused on Plaintiffs stated symptoms,
laboratory diagnostics, and physical signs related to a serious chemical burn she sustained on her
lower body while employed in prison. (Id. at 1340.)
According to the history taken by Dr. Tishuk during the examination, on July 15, 2019
while working in prison, Plaintiff wiped degreaser on a surface and subsequently sat on the
degreaser, sustaining chemical bums to her buttocks, upper posterior thighs, and lower left leg.
(M) Plaintiff was treated for chemical bums at the time at the Edna Mahan Correctional Facility

5 The Commissioner characterizes Dr. Tishuk's medical examination as an "independent medical

examination for litigation in connection with Plaintiff's work-related injury that occurred in prison in July
2019." (Opp. at 6.) Plaintiff does not address the subject of this lawsuit, and characterizes Dr. Tishuk as
the "Commissioner's own consultative examiner." (Reply at 7.) While Dr. Tishuk's exact status is not
clear based on the record in front of the Court, it is also not necessary for determination of this appeal.

However, if there is any further briefing of this issue in front of the Court, it would expect clarification of
Dr. Tishuk's relationship to all parties.

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for Women. (Id.) Plaintiff also received an MRI of her lower spine at the Jersey Shore University
Medical Center on October 27, 2020. (Id.) She was then referred for pain management. (Id.)
Dr. Tishuk memorialized the history of Plaintiffs injury, her current complaints and
symptoms, and then conducted a physical examination. (Id.) In the course of the physical
examination, Dr. Tishuk documented the presence and size of bum scarificadon and both
hypopigmentation and hyperpigmentation on Plaintiffs left buttock; the presence and size of
scarification and hypo-hyperpigmentation on Plaintiffs left thigh; hypo/hyperchromic
scarification over the right buttock and right thigh; areas of lost pinprick sensation; and evaluation
of Plaintiff s deep tendon reflexes and motor function of the lower extremities. (Id. at 1340-1341.)
Dr. Tishuk's opinion noted he reviewed the 2019 treating records from the Edna Mahan
Correctional Facility for Women and the 2020 MRI from Jersey Shore University Medical Center,
Department of Diagnostic Imaging. {Id. at 1342.) Dr. Tishuk found the MRI showed lumbar
spondylosis with spinal canal stenosis seen at L4-L5 and L2-L3 related to diffuse disc bulges and
facet arthropathy, and superimposed posterocentral disc herniation at L4-L5. {Id.)
Dr. Tishuk then concluded that Plaintiff had "[IJateral buttock and posterior thigh
scarification secondary to chemical burns with daily severe neuropathic pain requiring opioid
analgesic." (M) He further concluded that Plaintiff had "[p]ost-traumatic chronic left sciatica pain
secondary to deep left buttock chemical bum." {Id.) Dr. Tishuk also opined that Plaintiffs current
issues stemmed from her 2019 chemical bums, and not an earlier chemical bum from 2015 which
appeared to have healed without creating significant residual symptoms. (Id. at 1343.)
Dr. Tishuk then reiterated a discussion with Plaintiff regarding the effect her injuries had
on her activities of daily living. (M) He opined that "it is medically probable that the residual
limitations the patient has identified will have a substantial impact on the patient's future ability

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to participate in the activities of daily living that she has identified without pain and discomfort."
{Id.) In conclusion, Dr. Tishuk found "[t]he bum scars are associated with permanent damage of
the skin, as well as sensory nerves in the area of the bums." "[T]he bum on the left buttock was
deep," such that, in his "opinion, [the bum] caused adhesions after [it] healed, which triggered
chronic sciatic nerve irritation associated with neuropathic pain." (Id. at 1344.) Dr Tishuk
concluded that the neuropathic pain was permanent. {Id.) Dr. Tishuk stated "[t]his woman will
require the permanent use of analgesics, including daily use of opioids and also will limit her
employability significantly as well as quality of life." (M) Further, he opined that in the future
"due to chronic sciatica pain, [Plaintiff] may face intervendonal treatment of which may include
but not limited to epidural injection, radiofrequency ablation and/or spinal stimulator placement."
(Id.) Dr. Tishuk concluded that "[a]ll opinions regarding this patient's injuries ... are made to a
reasonable degree of medical probability" based on his experience. {Id. at 1345.)
D. THE ALJ'S ANALYSIS OF DR. TlSHUK'S MEDICAL OPINION
Notwithstanding the Commissioner's post-hoc attempt to minimize Dr. Tishuk's expertise
by recharacterizing Dr. Tishuk's comprehensive evaluation as non-medical opinion evidence, the
ALJ in this case has not sufficiently articulated his reasoning in keeping with the requirements of
20 C.F.R. § 404.1520c. In examining the persuasiveness of Dr. Tishuk's opinion, the ALJ wrote:
On August 20, 2021, Dr. Tishuk opined that the claimant's reported
limitations in exertional and postural maneuvers will have a
substantial impact on her future ability to participate in activities of
daily living without pain and discomfort. She will require permanent
use of analgesics including daily use of opioids and also will limit

her employability significantly as well as quality of life (Exhibit 1 OF
at 4 and 5). I find this opinion is not persuasive as a specific
assessment of limitations was not provided.
(AR at 32.) The ALJ did not issue any findings regarding the supportability or consistency of the
medical opinion, or consider the doctor's specialization and how that may have affected his

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medical opinion. Further, the ALJ did not address Dr. Tishuk's substantive findings or identify
any contrary evidence that might have affected the weight he accorded Dr. Tishuk's opinion. See,
e.g., Susan C, 2024 WL 1328190, at *4 (affinning where the ALJ found a medical opinion less
persuasive because of contradictory findings with other medical assessments in the record).
The Commissioner's opposition brief does not disagree with the regulatory requirements
that Plaintiff cites or that the ALJ failed to address supportability and consistency of Dr. Tishuk's
opinion. (See generally Opp.) Instead, the Commissioner argues that the "articulation
requirements" Plaintiff complains of only apply to "medical opinions," which have a limited
definition that excludes Dr. Tishuk's "report." (Opp. at 11-12.) Specifically, the Commissioner
argues that all of the medical evidence submitted by Dr. Tishuk falls into the category of nonmedical opinion evidence and that aside from the limited objective medical evidence findings in
Dr. Tishuk's report, the doctor "merely memorialized Plaintiffs own statements about her
limitations" or "involved an issue reserved to the Commissioner." (M at 12-13.) The Court
understands Defendant's argument to characterize all of Dr. Tishuk's statements as either "other
medical evidence" or "evidence that is inherently neither valuable nor persuasive." See 20 C.F.R.

?§ 404.1513(a)(3); 404.1520b(c).
As such, the Commissioner argues the ALJ was not required to address the supportability
or consistency of Dr. Tishuk's evidence as submitted to the ALJ because it did not meet the
requirements of a medical opinion and those other categories of medical source evidence do not
require application of the same framework or application of those factors. (Id. at 13.) Further, the
Commissioner argues because Dr. Tishuk's "conclusory" statements fall under the category of
evidence that is neither persuasive nor valuable, as outlined earlier in this opinion, the ALJ was
not "required to articulate" his consideration of that evidence at all and the ALJ's analysis was

14

therefore sufficient. (7J.) Plaintiffs reply argues that this entirely reframes and redrafts the ALJ's
decision, which explicitly treated Dr. Tishuk's evidence as a medical opinion rather than nonmedical opinion evidence. (Reply at 1-5.) Plaintiff is correct.
On its face, the ALT's decision treats Dr. Tishuk's evidence as a medical opinion
throughout. {See generally AR at 23-34.) The ALJ uses the word "opined" to refer to Dr. Tishuk's
evaluation and included an evaluation of the persuasiveness of the "opinion." (Id. at 32.) Nonmedical opinion evidence would not include a persuasiveness analysis, as that is reserved for
medical opinions. 20 C.F.R. § 404.1520c. Further, elsewhere in his decision, the ALJ identifies
other, non-opinion evidence regarding Plaintiff's condition that originated from a medical source
and explicitly differentiates it from the medical opinion evidence given by Dr. Tishuk, declining
to weigh the persuasiveness of the non-medical opinion evidence. (AR at 32; see also Reply at 2.).
When evaluating medical evidence submitted by Dr. Deepinder Arora, M.D., the State's
consultative medical examiner, the ALJ found Dr. Arora had not provided a medical opinion. (M)
Upon review of Dr. Arora's evidence, the ALJ wrote, "I have considered the findings of internal
medicine consultative examiner Dr. Arora . . . However, the doctor failed to offer an opinion
regarding [Plaintiffs] vocational abilities." {Id.) Notably, the ALJ treated the medical evidence
from Dr. Arora in significant contrast to how he treated the medical opinion provided by Dr.
Tishuk. (M) Further, in keeping with the finding that Dr. Arora had not submitted medical opinion
evidence, the ALJ did not evaluate Dr. Arora's evidence for persuasiveness. (Id.) As such, it is
clear the ALJ intended to treat Dr. Tishuk's and Dr. Arora's evidence differently.
The Commissioner's brief cannot supplant the plain language of the ALT's decision or the
ALJ's clearly articulated intent. See Garcia-Sierra v. Kijakazi, No. 21-458, 2023 WL 125082, at
*7 (E.D. Pa. Jan. 5, 2023) ("It is the ALT who is the finder of fact, not the excellent appellate

15

attorneys who represent the Commissioner before this court. Their after-the-fact explanation of
why the record supports the ALJ's conclusion does not satisfactorily substitute for the ALJ's own
analysis."); see also Elizabeth N. v. Comm'r of Soc. Sec. Admin., No. 21-20778, 2022 WL
10650250, at *6 (D.N.J. Oct. 18, 2022) ("[T]he Court cannot accept the Commissioner's after-thefact justification that did not appear in the ALJ's decision."). As such, the Court is not persuaded
by the Commissioner's post-hoc argument that Dr. Tishuk only submitted a "report" rather than a
"medical opinion." Because the ALJ treated Dr. Tishuk's evidence as a medical opinion, the ALJ
was required to apply the factors required by the guidelines to his analysis of that evidence. Given
Dr. Tishuk's status as an independent medical examiner with a specialty in neurology and
neuromuscular medicine, the ALJ should have focused particularly on evaluating the medical
opinion's supportability, consistency, and the impact of Dr. Tishuk's area of specialization on his
findings.
The Commissioner further argues the evidence submitted by Dr. Tishuk only
"memorialized Plaintiff's subjective complaints and offered conclusory statements, including on
an issue reserved to the Commissioner" and that "the ALJ's consideration of it was more than
adequate." (Opp. at 13.) The Court does not agree. The substance of Dr. Tishuk's medical opinion
reviewed Plaintiffs history and the history of particular chemical bums causing issues; assessed
medical diagnostics of the site of the bum and related areas, including an MRI of Plaintiff s lumbar
spine; conducted an in-person medical examination; and wrote a prognosis that included the
doctor's assessment of the likelihood of the damage's permanency and his opinion regarding the
Plaintiffs prognosis. ("Ex. 10F,"AR at 1340^5.) While Dr. Tishuk aclmowledged his analysis
relied at least in part on Plaintiffs rendition of her symptoms, it also relied on objective medical
testing, his own observations during the physical examination, and his education and experience.

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He concluded that "[a]ll opinions regarding this patient's injuries ... are made to a reasonable
degree of medical probability based on [his] experience." (M at 1345.) Given that Dr. Tishuk is
dual board certified in neurology and neuromuscular medicine, the Court requests the ALJ to
undertake a more thorough and substantive analysis based on Dr. Tishuk's experience and
findings.
While the Commissioner might not agree with Dr. Tishuk's medical opinion, he has not
sufficiently shown that the ALJ properly considered the required factors when assessing the weight
to accord it. See Bowers v. Saul, No. 19-17386, 2020 WL 4435405, at *8 (D.N.J. Aug. 3, 2020)
(remanding where the ALJ did not adequately explain the weight placed on a physician's opinion);

see also Morales, 225 F. 3 d at 317 ("[A] cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians' reports great weight."); Nazario v.
Comm'rSoc. See., 794 F. App'x 204,209-10 (3d Cir. 2019) ("[Although [the ALJ] 'may properly
accept some parts of the medical evidence and reject other parts,' [the ALJ] must 'provide some
explanation for a rejection ofprobative evidence which would suggest a contrary disposition.'"
(quoting Adomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994))). As such, the Court will remand the
decision to the ALJ "for further consideration of the weight to be accorded to the opinion" of Dr.
Tishuk and "a determination of Plaintiff s residual functional capacity based on the appropriately
weighted medical evidence." Bowers, 2020 WL 4435405,at *9.
On remand, the ALJ is directed to consider the newly-available evidence regarding
Plaintiff's knee surgery and to reassess Dr. Tishuk's opinion and Plaintiffs RFC; specifically, the
ALJ should clearly explain the weight afforded to Dr. Tishuk's opinion in its RFC analysis.

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CONCLUSION
Having reviewed the record as a whole, the Court VACATES the Commissioner's
decision and REMANDS this matter for further consideration consistent with this Opinion. An
appropriate Order accompanies this Opinion.

ROBteRTKIRSCB-^'^
UNITED STATES DISTRICT JUDGE

Dated: October 23, 2024

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