DEBIAS v. ASTRUE

Filing 16

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/11/12. 6/12/12 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DON ALLEN DEBIAS, JR.,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.

CIVIL ACTION
NO. 11-3545

M E M O R A N D U M
EDUARDO C. ROBRENO, J.
I.

JUNE 11, 2012

INTRODUCTION
Plaintiff Don Allen Debias, Jr. (“Plaintiff”) filed

this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of the Commissioner of the Social Security
Administration’s (“Commissioner”) final decision denying his
application for Disability Insurance Benefits under Title II of
the Social Security Act.

After considering the Administrative

Record, submitted pleadings, Chief Magistrate Judge Carol Sandra
Moore Wells’s Report and Recommendation, and objections thereto,
the Court approves and adopts the Report and Recommendation in
part and rejects it in part.

Plaintiff’s request for review is

granted in part, denied in part, and the Court remands this case
to the Commissioner for further proceedings.

II.

BACKGROUND
Plaintiff was born on June 17, 1966.

R. at 100.1

He

was forty-two years old at the time of his alleged on-set of
disability — March 28, 2008.

Id.

He graduated high school and

previously worked as a customer service representative, customer
service manager, national sales manager, sales and marketing
representative, case worker, warehouse manager, and flagman.
at 35, 40-41, 105-06.

R.

Plaintiff lives at home with his wife,

sixteen-year-old son, eighteen-year-old step-son, and twentyone-year-old step-daughter.

R. at 28-29, 130.

Plaintiff

alleges he is disabled due to the following conditions: bipolar
disorder, anxiety disorder, and personality disorder.

Pl.’s Br.

& Statement of Issues in Supp. of His Request for Review 3, ECF
No. 9 [hereinafter Pl.’s Br.].
Plaintiff applied for Social Security Disability
Insurance Benefits (“DIB”) on October 9, 2008, alleging
disability since March 28, 2008.

R. at 87-90, 100.

29, 2009, the Commissioner denied his benefits claim.
1

Record.

On January
Plaintiff

All citations herein are to the Administrative
See ECF No. 5.
2

requested an administrative hearing.

R. at 46-51.

On March 31,

2010, Administrative Law Judge (“ALJ”) George Yatron held a
hearing.

At that hearing, ALJ Yatron heard Plaintiff’s

testimony and also heard testimony from a vocational expert
(“VE”).

Plaintiff gave detailed testimony about himself, his

daily activities, his past work experience, and his claimed
disabilities.

See R. at 33-40.

The VE gave testimony regarding

Plaintiff’s past work experience.

R. at 40-41.

ALJ Yatron also posed a hypothetical to the VE.

In addition,
ALJ Yatron

asked the VE to consider whether a hypothetical individual of
Plaintiff’s age, training, education, work experience, who was
generally unimpaired exertionally, but could not perform work
that required detailed instructions, could perform any of
Plaintiff’s previous jobs or some other work in the national and
regional economy.

R. at 41.

The VE responded that Plaintiff

could perform his past work as a flagman.

Id.

The VE also

opined that Plaintiff could perform the following other work
available in the national and regional economy: kitchen helper,
packer, and cleaner.

Id.

On April 20, 2010, ALJ Yatron issued his decision and
found that Plaintiff had “the following severe impairments: a
mixed bipolar disorder, an anxiety disorder, and a personality
disorder.”

R. at 18.

ALJ Yatron found that Plaintiff had
3

medically determinable impairments that imposed mild
restrictions on Plaintiff’s activities of daily living and mild
restrictions on Plaintiff’s ability to maintain concentration,
R. at 19-20.2

persistence, or pace.

ALJ Yatron also found that

Plaintiff’s impairments imposed moderate difficulties in his
ability to maintain social functioning.

R. at 19.

In ruling that Plaintiff was not disabled, ALJ Yatron
gave little weight to opinions from Plaintiff’s treating
physician, Dr. John Lychak, which were dated December 9, 2009,
and March 22, 2010.

ALJ Yatron gave controlling weight to the

opinion from the state agency’s non-examining physician, Dr.
Thomas Fink, which was dated January 20093 regarding Plaintiff’s
mental limitations and ability to work.

R. at 23.

In the end,

ALJ Yatron made the following findings:
3.

[Plaintiff] has the following severe impairments:
a mixed bipolar disorder, an anxiety disorder,
and a personality disorder (20 CFR 404.1520(c)).

2

ALJs use the following five-point scale when
rating the degree of impairment: “None, mild, moderate,
marked, and extreme.” Evaluation of Mental Impairments, 20
C.F.R. § 404.1520a(c)(4) (2012).
3

Dr. Fink’s January 2009 opinion is consistent
with Dr. Lychak’s initial December 2008 opinion evaluating
Plaintiff’s conditions. Indeed, Dr. Fink indicates in his
opinion that he adopts Dr. Lychak’s initial December 2008
opinion. R. at 208.
4

4.

[Plaintiff] does not have an impairment or
combination
of
impairments
that
meets
or
medically equals one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record,
the undersigned finds that [Plaintiff] has the
residual functional capacity to perform a full
range of light work at all exertional levels but
with the following nonexertional limitations: He
cannot perform work activity involving detailed
instructions.

6.

[Plaintiff]
is
capable
of
performing
past
relevant work as a flagman.
This work does not
require
the
performance
of
work-related
activities precluded by [Plaintiff’s] residual
functional capacity (20 CFR 404.1565).

7.

[Plaintiff] has not been under a disability, as
defined in the Social Security Act, from March
28, 2008, through the date of this decision (20
CFR 404.1520(f)).

R. at 18-25.

Plaintiff requested that the Appeals Council

review ALJ Yatron’s decision.

The Appeals Council denied

Plaintiff’s request.
On June 2, 2011, Plaintiff filed a complaint seeking
review in this Court.

ECF No. 1.

The Court, pursuant to Local

Rule of Civil Procedure 72.1, and 28 U.S.C. § 636(b)(1)(B),
referred the matter to Chief Magistrate Judge Carol Sandra Moore
Wells for a Report and Recommendation (“R&R”).

See ECF No. 11.

On April 19, 2012, Judge Wells issued her R&R recommending this
Court grant Plaintiff’s request for review in part, deny it in
5

part, and remand to the Commissioner for further proceedings.
Briefly, Judge Wells held that ALJ Yatron posed an incomplete
hypothetical to the VE.

Judge Wells also held that ALJ Yatron

improperly gave the reports of Plaintiff’s treating physician
little weight.

Finally, Judge Wells held that ALJ Yatron

properly found Plaintiff’s own testimony not credible.
Commissioner filed objections to Judge Wells’s R&R.

ECF No. 14.

Plaintiff responded to the Commissioner’s objections.
15.

The

ECF No.

The matter is now ripe for disposition.

III. STANDARD OF REVIEW
The Court undertakes a de novo review of the portions
of the R&R to which the Commissioner has objected.

See 28

U.S.C. § 636(b)(1) (2006); Cont’l Cas. Co. v. Dominick D’Andrea,
Inc., 150 F.3d 245, 250 (3d Cir. 1998).

The Court “may accept,

reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”

28 U.S.C. §

636(b)(1).
In reviewing the Commissioner’s final determination
that a person is not disabled4 and, therefore, not entitled to

4

A claimant is “disabled” if he or she is 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
6

Social Security benefits, the Court may not independently weigh
the evidence or substitute its own conclusions for those reached
by the ALJ.
2002).

See Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir.

Instead, the Court must review the factual findings

presented in order to determine whether they are supported by
substantial evidence.

See 42 U.S.C. § 405(g) (2006); Rutherford

v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
Substantial evidence constitutes that which a
“reasonable mind might accept as adequate to support a
conclusion.”

Rutherford, 399 F.3d at 552 (internal quotation

marks omitted).

“It is ‘more than a mere scintilla but may be

somewhat less than a preponderance of the evidence.’”

Id.

(quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.
1971)).

If substantial evidence supports the ALJ’s decision,

the Court may not set it aside even if the Court would have

expected to last for a continuous period of not less than 12
months.” Basic Definition of Disability for Adults, 20 C.F.R. §
416.905 (2012); Basic Definition of Disability, 20 C.F.R. §
404.1505 (2012).
Once the claimant satisfies her burden by showing
an inability to return to her past relevant work, the
burden shifts to the Commissioner to show the claimant
(given her age, education, and work experience) has the
ability to perform specific jobs existing in the economy.
Evaluation of Disability of Adults, in General, 20 C.F.R.
§§ 416.920; see Rutherford v. Barnhart, 399 F.3d at 551,
546 (3d Cir. 2005).
7

decided the factual inquiry differently.

See Hartranft v.

Apfel, 181 F.3d 358, 360 (3d Cir. 1999); see also Rutherford,
399 F.3d at 552 (“In the process of reviewing the record for
substantial evidence, we may not ‘weigh the evidence or
substitute [our own] conclusions for those of the fact-finder.’”
(quoting Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.
1992))).
Because Judge Wells properly outlined the standards
for establishing a disability under the Social Security Act and
summarized the five-step sequential process for evaluating
disability claims, the Court will not duplicate these efforts
here.

See Santiago v. Barnhart, 367 F. Supp. 2d 728, 732 (E.D.

Pa. 2005) (Robreno, J.) (outlining standards and five-step
sequential process for evaluating disability claims).

IV.

DISCUSSION
The Commissioner has two objections to Judge Wells’s

R&R.

One, the Commissioner argues that the ALJ posed a complete

and legally sufficient hypothetical question to the VE.

Two,

the ALJ reasonably evaluated the opinions regarding disability
and residual functional capacity that Plaintiff’s treating

8

physician provided to Plaintiff’s attorney.

The Court will

address each in turn.5

A.

Whether the ALJ Posed an Incomplete Hypothetical
ALJ Yatron relied upon the VE’s response to a

hypothetical in order to assess whether Plaintiff could perform
any of his past work or whether there were jobs available in the
national and regional economy that Plaintiff could perform.

ALJ

Yatron presented the following hypothetical to the VE:
I would like you to consider hypothetically an
individual 43 years of age with training, education
and experience as in the present case who is generally
unimpaired
exertionally
[but
with]
nonexertional
limitations.
No detailed instructions.
Given those
facts and circumstances, is there any work the
hypothetical individual could perform on a sustained
basis?
R. at 41.
When an ALJ poses a hypothetical to a VE, it must
accurately convey the claimant’s physical and mental
impairments.

Burns, 312 F.3d at 123.

The ALJ “must include all

of a claimant’s impairments” in the hypothetical.
5

Ramirez v.

Neither party objected to Judge Wells’s
conclusion that ALJ Yatron properly rejected Plaintiff’s
testimony as not credible. See R&R 15-16. Moreover,
Plaintiff does not object to Judge Wells’s recommendation
that remand to the Commissioner is appropriate rather than
reversal. See R&R 16-17. Accordingly, the Court adopts
both of these recommendations.
9

Barnhart, 372 F.3d 546, 552 (3d Cir. 2004).

Pertinent here, the

ALJ must “specifically convey” a claimant’s limitations during
the hypothetical.

Burns, 312 F.3d at 123.

If the hypothetical

does not, then substantial evidence does not support the ALJ’s
decision.

Ramirez, 372 F.3d at 552.
Judge Wells held that ALJ Yatron posed an incomplete

hypothetical to the VE.

Judge Wells explained that ALJ Yatron

found that Plaintiff had a moderate impairment in social
functioning.

ALJ Yatron’s hypothetical to the VE, however, only

provided the limitation that Plaintiff be given “no detailed
instructions” in his job.

R. at 41.

Judge Wells held that “no

detailed instructions” did not accurately convey Plaintiff’s
impairment in social function.

“Instead, the hypothetical

precludes detailed work instructions, a limitation often used
with claimants who have a deficiency in concentration,
persistence or pace.”

R&R 9.

The Commissioner objects and argues that Judge Wells
incorrectly concluded that the hypothetical was inaccurate.

In

particular, the Commissioner argues that the VE interpreted “no
detailed instructions” within ALJ Yatron’s hypothetical to mean
“unskilled work.”

The Commissioner argues that unskilled work

involves “dealing with objects, rather than with data or
people.”

Def.’s Objections 5 (citing SSR 85-15, 1985 WL 56857,
10

at *4 (1985)), ECF No. 14.

Therefore, the Commissioner argues,

ALJ Yatron reasonably accounted for Plaintiff’s moderate social
function impairment because Plaintiff would only deal with
objects, rather than people.
The Commissioner’s argument is unavailing.

What the

VE might or might not have interpreted ALJ Yatron’s hypothetical
to mean is not relevant.

There is no evidence of record that

the VE knew, nor did ALJ Yatron inform the VE, that “unskilled”
work would equate with a moderate social function impairment.

A

hypothetical must specifically convey a claimant’s impairment.
Burns, 312 F.3d at 123.

In this case, ALJ Yatron’s hypothetical

did not meet this standard.

A “no detailed instructions”

limitation is a common limitation when a claimant has a
concentration, persistence, or pace impairment, not when a
claimant has a social function impairment.

See Ramirez, 372

F.3d at 552-56; see also McDonald v. Astrue, 293 F. App’x 941,
946 (3d Cir. 2008) (holding that no detailed instructions
limitation may adequately encompass mild difficulty with
concentration, persistence, or pace in VE hypothetical).
Indeed, the two impairments — concentration,
persistence, or pace, and social function — are inherently
different and might limit a claimant’s ability to work in
different ways.

For example, in finding that Plaintiff had a
11

moderate social function impairment, ALJ Yatron cited to
Plaintiff’s testimony that he has panic attacks every day, and
that Plaintiff’s home is his safety zone.

R. at 19.

Moreover,

although Plaintiff is close to his family, he must isolate
himself for fifteen to twenty minutes each day because he cannot
deal with a crowd or talking.

Id.

The Court fails to see how

“no detailed instructions” accounts for the impairments in
social function described above.

Therefore, ALJ Yatron’s

hypothetical did not accurately convey all of Plaintiff’s mental
impairments with specificity.
This case is similar to Weinsteiger v. Astrue, No. 091769, 2010 WL 331903 (E.D. Pa. Jan. 25, 2010).

Weinsteiger

involved the plaintiff’s claim for disability and social
security benefits.

In that case, the ALJ found that the

plaintiff had a moderate social function impairment, as well as
a moderate concentration, persistence, or pace impairment.
at *9.

Id.

The ALJ posed the following hypothetical to the

vocational expert in that case:
Let’s assume an individual of 48, with a limited
education, and Claimant’s past work, and let’s assume
that she is limited to sedentary work that is simple,
repetitive work and low stress.
Could she return to
any of her past work?
Id. at *5.

The court in Weinsteiger held that the ALJ’s

inclusion of “simple repetitive work” was not specific enough to
12

address the plaintiff’s moderate concentration, persistence, or
pace impairment.

Id. at *10.

The court further held that the

ALJ’s hypothetical failed to even consider the plaintiff’s
moderate social function impairment.

Id. at *11.

Accordingly,

the court remanded that case to allow the ALJ to pose an
adequate hypothetical to the VE.

In this case, similar to

Weinsteiger, ALJ Yatron did not even address Plaintiff’s social
function impairment.

Any attempt to shoehorn a “no detailed

instructions” limitation into a social function impairment is
unavailing and fails the Third Circuit’s requirement for great
specificity of a claimant’s impairments in VE hypotheticals.
See Ramirez, 372 F.3d at 554.
The Commissioner argues that Weinsteiger is
distinguishable.

Principally, the Commissioner argues that

Weinsteiger relied heavily upon the Third Circuit case of
Ramirez.

In turn, changes to the regulations governing the

Psychiatric Review Technique Form (“PRTF”) undermined Ramirez’s
reasoning.

The court in Ramirez held that a hypothetical posed

to a VE limiting the claimant to simple one or two step tasks
was not specific enough to encompass the ALJ’s finding that the
claimant often had deficiencies in concentration, persistence,
or pace.

Id. at 554.

Ramirez stressed the importance that an

ALJ’s hypothetical include all of a claimant’s impairments and
13

that the hypothetical have “great specificity” as to those
impairments.

Id.

The Commissioner contends that the PRTF in

effect in Ramirez defined impairments by their frequency — that
is, “never, seldom, often, frequent, [or] constant.”
372 F.3d at 551.

Ramirez,

Due to a regulatory change, in this case

impairments are defined by degree — that is, “none, mild,
moderate, marked, [or] extreme.”
416.920a(c)(4).

20 C.F.R. §§ 404.1520a(c)(4),

Therefore, the Commissioner argues that because

of this regulatory change, Ramirez does not support Plaintiff’s
argument that ALJ Yatron’s hypothetical lacked the required
specificity.
This definition change is of no moment in this case.
Whether there is a difference between functional impairments
defined by degree or frequency is, perhaps, debatable.

Compare

McDonald, 293 F. App’x at 946 n.10 (distinguishing Ramirez on
grounds that ALJ held in Ramirez plaintiff often had functional
limitation, but in that case ALJ concluded plaintiff had
moderate functional limitation), with Colon v. Barnhart, 424 F.
Supp. 2d 805, 811 (E.D. Pa. 2006) (equating “often” with
“moderate”).

Here, like Weinsteiger, there was simply no

mention of Plaintiff’s moderate social function impairment in
ALJ Yatron’s hypothetical posed to the VE and no indication that
the VE understood the “no detailed instructions” limitation to
14

mean as much.

Therefore, the hypothetical was not sufficiently

specific to accurately convey all of Plaintiff’s impairments.
ALJ Yatron’s incomplete hypothetical resulted in the
VE’s opinion about Plaintiff’s ability to work as a flagman,
kitchen helper, packer, and cleaner.

In turn, the VE’s opinion

was inherently flawed because the hypothetical did not
accurately convey all of Plaintiff’s impairments.

See

Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984).
Therefore, because ALJ Yatron relied upon the VE’s inherently
flawed opinion when deciding that Plaintiff was not disabled,
substantial evidence did not support ALJ Yatron’s decision.

See

Chrupcala v. Heckler, 829 F.3d 1269, 1276 (3d Cir. 1987).
Accordingly, the Court will remand the case to the Commissioner
so the ALJ can provide an accurate hypothetical that includes
Plaintiff’s moderate social function impairment.

B.

Whether the ALJ Improperly Rejected Plaintiff’s
Medical Evidence
ALJ Yatron gave little weight to reports from

Plaintiff’s treating physician, Dr. Lychak, dated December 9,
2009, and March 22, 2010,6 preferring to give controlling weight

6

To be sure, ALJ Yatron did consider Dr. Lychak’s
December 9, 2009, and March 22, 2010, medical opinions and
seemed to give them controlling weight in deciding if
15

to the state agency’s medical report from January 2009.

Judge

Wells held that ALJ Yatron erred in not giving Dr. Lychak’s
reports greater weight.

The Commissioner objects and argues

that ALJ Yatron properly discounted both of Dr. Lychak’s
opinions in favor of the state agency’s medical report.
Generally, the opinion of a treating physician is
given great weight because that physician is familiar with a
claimant and has had an opportunity to examine a claimant.
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).

Opinions of

non-examining physicians, such as a state agency physician, are
also reviewed and accorded weight.

Chandler v. Comm’r of Soc.

Sec., 667 F.3d 356, 361 (3d Cir. 2012).

If “[t]he opinion of a

treating physician conflicts with that of a non-treating, nonexamining physician, the ALJ may choose whom to credit but
‘cannot reject evidence for no reason or for the wrong reason.’”
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting
Plummer, 186 F.3d at 429).

“In choosing to reject the treating

physician’s assessment, an ALJ may not make ‘speculative
inferences from medical reports’ and may reject ‘a treating

Plaintiff had a medically determinable impairment that was
“severe” or a combination of impairments that was “severe.”
20 C.F.R. § 404.1520(c); see R. at 18. ALJ Yatron’s
rejection of these opinions was during his determination of
Plaintiff’s residual functional capacity.
16

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.”
186 F.3d at 429).

Id. (quoting Plummer,

With this standard in mind, the Court

considers ALJ Yatron’s rejections of Dr. Lychak’s medical
opinions dated December 9, 2009, and March 22, 2010.

1.

ALJ’s Consideration of Dr. Lychak’s December 9,
2009 Opinion

ALJ Yatron gave little weight to the opinions of
Plaintiff’s treating psychiatrist, Dr. John Lychak.

ALJ Yatron

instead gave the Mental Residual Functional Capacity Assessment
of Dr. Thomas Fink, a non-examining state agency psychologist,
controlling weight.

In rejecting Dr. Lychak’s December 9, 2009,

opinion, ALJ Yatron explained that this opinion was “not
consistent” with Dr. Lychak’s December 2008 report in as much as
that report concluded that Plaintiff’s disability was not so
advanced.

R. at 22.

Dr. Lychak’s December 9, 2009, report,

however, concluded that Plaintiff’s condition had deteriorated
since his first report in December 2008 to the point that
Plaintiff could not work.

ALJ Yatron noted that any worsening

of Plaintiff’s condition was due to Plaintiff’s incarceration in
2009.
17

Judge Wells held that ALJ Yatron erred in discounting
the weight given to Dr. Lychak’s December 9, 2009, opinion.
Judge Wells reasoned that Dr. Fink’s January 2009, opinion was
not based upon the full record and, therefore, ALJ Yatron should
not have given Dr. Fink’s report controlling weight.
The Commissioner objects to Judge Wells’s conclusion and argues
that ALJ Yatron’s rejection of Dr. Lychak’s December 9, 2009,
opinion was correct.
On the record before it, the Court agrees that the
case should be remanded, but for a different reason.

What is

apparent on its face is that the record in this case is
incomplete for the Court to make any reasoned review of ALJ
Yatron’s decision to give Dr. Lychak’s December 9, 2009, opinion
little weight.
First, ALJ Yatron’s decision fails to adequately
explain why Dr. Lychak’s opinion was “not consistent” with his
December 2008 opinion.

If ALJ Yatron meant that Dr. Lychak’s

treatment notes were the same for the December 2008 and December
2009 reports, but Dr. Lychak came to a different conclusion —
rather than the treatment notes supported that Plaintiff’s
condition deteriorated — then the Court might agree with ALJ
Yatron.

Unfortunately, there is no way for the Court to reach

any such conclusion because Dr. Lychak’s treatment notes are
18

largely, if not completely, illegible.

ALJ Yatron had a duty to

ensure that the administrative record was fully developed, but
failed to do so.
Cir. 1995).

See Ventura v. Shalala, 55 F.3d 900, 902 (3d

Therefore, under the record before the Court, it

cannot determine whether Dr. Lychak’s opinion was “not
consistent.”

See Johnson v. Barnhart, 66 F. App’x 285, 288-89

(3d Cir. 2003) (holding that ALJ’s finding that report was
“inconsistent” with other medical evidence insufficient given
“his duty to explain why he credited certain medical evidence
but not other medical evidence”).
Second, ALJ Yatron had authority to request a further
explanation of this inconsistent medical report from Dr. Lychak.
Evidence, 20 C.F.R. § 404.1512(e)(1) (2010).

ALJ Yatron also

had authority to order a new state agency medical report when
new medical evidence might change the findings of the state
agency consultant.

See SSR 96-6P, 1996 WL 374180, at *4 (1996).

ALJ Yatron had broad discretionary authority in deciding to
invoke either or both of the above remedial actions, but by
declining to do either in this case, he failed to adequately
develop the administrative record.

Cf. Griffies v. Astrue, No.

10-546, --- F. Supp. 2d ----, 2012 WL 1242302, at *16 (D. Del.
Apr. 11, 2012) (remanding to Commissioner after ALJ failed to
properly consider treating physician’s three years’ worth of
19

reports filed after state agency’s medical report); Smoot v.
Comm’n of Soc. Sec., No. 07-15008, 2009 WL 230219, at *12 (E.D.
Mich. Jan. 30, 2009) (remanding to Commissioner after ALJ failed
to give sufficient reasons for discounting opinion of treating
physician in favor of outdated report from state agency
physician).
Accordingly, the Court will remand the case back to
the Commissioner to fully develop the record with respect to Dr.
Lychak’s December 9, 2009, opinion.

The ALJ should obtain

legible treatment notes from Dr. Lychak and then fully explain
why he is able to conclude that Dr. Lychak’s December 9, 2009,
opinion was “not consistent” with his December 2008 opinion.7
And, if warranted, upon consideration of the legible treatment
notes, the ALJ should procure a supplemental state agency report
in light of Dr. Lychak’s December 9, 2009, opinion that purports
to show Plaintiff’s deteriorating mental impairments.8

7

Should the ALJ conclude that Dr. Lychak’s opinion
must be discounted as inconsistent, the ALJ is advised to
follow the guidance set forth in 20 C.F.R. 416.927(c)(1)(6) (2012), which outlines the factors to consider when
weighing a medical opinions.
8

Given that the record has not been fully
developed, the Court does not reach the issue or express
any opinion as to what weight, if any, to give Dr. Lychak’s
December 9, 2009, opinion. This task is assigned to the
ALJ in the first instance.
20

2.

ALJ’s Consideration of Dr. Lychak’s March 22,
2010 Opinion

ALJ Yatron also dismissed Dr. Lychak’s March 22, 2010,
opinion.

Dr. Lychak’s March 22, 2010, opinion concluded that

Plaintiff was “markedly limited” in a majority of the functional
areas assessed.

R. at 268-70.

Dr. Lychak’s opinion also

indicated that Plaintiff’s lowest GAF9 score for the year was 4550, and his current GAF score was 55-60.

R. at 265.

Given this

information, ALJ Yatron found that Dr. Lychak’s March 22, 2010,
opinion was internally inconsistent.

ALJ Yatron reasoned that a

GAF score of 51-60 corresponds to moderate symptoms or moderate
difficultly in functioning, but that Dr. Lychak found Plaintiff
exhibited marked impairments in a majority of functional areas.
Put another way, on the one hand Dr. Lychak indicated that
Plaintiff only had moderate functional difficulty according to
his GAF score.

But, on the other hand, Dr. Lychak indicated

Plaintiff demonstrated markedly limited function.

Therefore,

ALJ Yatron found Dr. Lychak’s opinion internally inconsistent
and gave it little weight.

9

A GAF score is “the clinician’s judgment of the
individual’s overall level of functioning.” Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of
Mental Disorders 32 (4th Ed. 2000).
21

Judge Wells concluded that ALJ Yatron erred in
dismissing Dr. Lychak’s March 22, 2010, opinion.

Judge Wells

reasoned that ALJ Yatron’s reasoning was flawed, and that he
made a “speculative inference that a finding of ‘markedly
limited’ would correspond with a GAF score lower than 55.”
14.

R&R

Therefore, Judge Wells concluded, ALJ Yatron improperly

rejected Dr. Lychak’s opinion based upon his own perceived
expertise.
The Commissioner objects and argues Judge Wells
incorrectly concluded that ALJ Yatron relied upon his own
perceived expertise.

The Commissioner argues that ALJ Yatron

relied upon the specific definitions of the Diagnostic and
Statistical Manual of Mental Disorders when making his decision
that Dr. Lychak’s report was internally inconsistent.
Specifically, ALJ Yatron relied upon the definition that a GAF
score ranging from 51-60 was evidence of “‘moderate difficulty
in social, occupational, or school functioning.’”

Def.’s

Objections 8 (quoting Am. Psychiatric Ass’n, Diagnostic &
Statistical Manual of Mental Disorders 34 (4th ed. text rev.
2000)).

Therefore, ALJ Yatron noted that Dr. Lychak’s opinion

that Plaintiff exhibited marked impairments directly conflicted
with Dr. Lychak’s assignment of a GAF score of 55-60, which
corresponds to only moderate impairments.
22

With respect to Dr. Lychak’s March 22, 2010, opinion,
the Court disagrees with Judge Wells’s conclusion that ALJ
Yatron improperly gave this medical evidence little weight.

ALJ

Yatron was not relying on his own expertise in mental
assessment, but noting that the definitions of GAF showed a
contradiction between Dr. Lychak’s opinion that Plaintiff
exhibited a majority of marked impairments and his GAF
assessment that Plaintiff was in the upper range of a moderate
impairment.

While, generally, controlling or heavy weight is

given to a treating physician’s opinion, when such an opinion is
internally inconsistent, an ALJ may properly give that opinion
less weight or no weight.

See Money v. Barnhart, 91 F. App’x

210, 213 (3d Cir. 2004) (“[T]he ALJ found that the opinions of
Money’s treating physicians were both internally inconsistent
and inconsistent with other medical evidence.

As a result,

their opinions were not entitled to controlling weight.

Because

they were not entitled to such weight, the ALJ could evaluate
and weigh them against other medical evidence in the record.”
(citing 20 C.F.R. §§ 404.1527(d), 416.927(d))); Jones v.
Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (“In light of such
conflicting and internally contradictory evidence, the ALJ
correctly determined that the opinions of Jones’s treating
physicians were not controlling.”); see also Skarbek v.
23

Barnhart, 390 F.3d 500, 503 (7th Cir. 2004).

Indeed, other

courts hold that an ALJ may properly reject a treating
physician’s opinion when the physician’s observations are
inconsistent with a GAF assessment.

See Yoakem v. Comm’r of

Soc. Sec., 10-639, 2011 WL 5870827, at *10 (S.D. Ohio Aug. 22,
2011), report and recommendation adopted, 10-639, 2011 WL
5858960 (S.D. Ohio Nov. 22, 2011); Thao v. Astrue, 08-0033, 2008
WL 2937425, at *6 (E.D. Wis. July 24, 2008).

Therefore, given

the internal inconsistency in Dr. Lychak’s March 22, 2010,
opinion, ALJ Yatron properly concluded that Dr. Lychak’s March
22, 2010, opinion should receive little weight.

On remand, the

ALJ does not have to reevaluate the weight given to Dr. Lychak’s
March 22, 2010, opinion.10

V.

CONCLUSION
For the reasons set forth above, the Court approves

and adopts Chief Magistrate Judge Carol Sandra Moore Wells’s
Report and Recommendation in part and rejects it in part.
Plaintiff’s request for review is granted in part, denied in
part, and the Court remands this case to the Commissioner for
10

However, the ALJ would do well to more clearly
articulate his reasons for discounting Dr. Lychak’s March
22, 2010, opinion, in accordance with 20 C.F.R. §
416.927(c)(1)-(6). See supra note 7.
24

further proceedings consistent with this Memorandum Opinion.

In

particular, on remand the ALJ shall pose a complete and accurate
hypothetical to the VE providing specific detail about
Plaintiff’s moderate social function impairment.

In order to

fully develop the record, the ALJ shall also obtain legible
treatment notes from Dr. Lychak and determine based upon those
notes the appropriate weight to give to Dr. Lychak’s December 9,
2009, opinion.

In doing so, the ALJ should provide a full

explanation in accordance with 20 C.F.R. §§ 416.927(c)(1)-(6).
In addition, if after reviewing the legible notes the ALJ finds
Dr. Lychak’s December 9, 2009, opinion is consistent with the
other medical evidence of record, the ALJ should consider
obtaining a new opinion from the state agency’s physician, or
explain why such an opinion is not necessary.
order will follow.

25

An appropriate