Taylor v. Colvin et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, this case must be remanded to the Acting Commissioner for further consideration consistent with this opinion. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 11/25/14. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
EUGENE TAYLOR,

:
:CIVIL ACTION NO. 3:14-CV-1247
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
CAROLYN COLVIN,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Here we consider Plaintiff’s Appeal of Defendant’s denial of
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act
(“Act”), 42 U.S.C. §§ 401-433, 1381-1383f.

(Doc. 1.)

The

Administrative Law Judge (“ALJ”) who evaluated the claim found that
Plaintiff had the residual function capacity (“RFC”) to perform
light work with certain limitations and that such work was
available.

(R. 62-67.)

for benefits.

(R. 67.)

The ALJ therefore denied Plaintiff’s claim
With this action, Plaintiff argues that

the decision of the Social Security Administration is error for
several reasons: the ALJ did not properly consider and give the
required weight to mental and physical RFC assessments; the ALJ
improperly relied on certain Global Assessment of Functioning
(“GAF”) scores; and the ALJ did not adequately explain his reasons
for finding Plaintiff’s testimony not credible.

(Doc. 7 at 13-15.)

For the reasons discussed below, we conclude Plaintiff’s appeal of

the Acting Commissioner’s decision is properly granted.
I. Background
A.

Procedural Background
On August 27, 2009, applications were completed for DIB and

SSI (R. 133, 137), Plaintiff having protectively filed on July 20,
2009 (R. 58).

In both applications, Plaintiff alleged disability

beginning on July 1, 2006.

(R. 135, 137.)

His date last insured

for the purpose of DIB was September 30, 2009.

(R. 58.)

In the

Disability Report, Plaintiff stated that he was unable to work
because of back injury and herniated discs.

(R. 169.)

He also

answered “yes” to the question of whether he had been seen by a
doctor/hospital/clinic for emotional or mental problems that
limited his ability to work, indicating he was treated for ADHD in
2007. (R. 171.)
Plaintiff’s claims were initially denied on June 15, 2010.
(R. 105-14.)

Plaintiff filed a request for a review before an ALJ

on June 22, 2010.

(R. 115.)

On May 26, 2011, Plaintiff, with his

attorney, appeared at a hearing before ALJ Ronald Sweda.

(R. 71.)

Vocational Expert Sean C. Hanahue also testified at the hearing.
(Id., R. 58.)

The ALJ issued his unfavorable decision on June 20,

2011, finding that Plaintiff was not disabled under the Social
Security Act.

(R. 55-70.)

On August 6, 2011, Plaintiff filed a Request for Review with
the Appeals Council.

(R. 53-54.)

The Appeals Council denied

2

Plaintiff’s request for review of the ALJ’s decision on December
18, 2012.

(R. 43-48.)

In doing so, the ALJ’s decision became the

decision of the Acting Commissioner.

(R. 43.)

However, on May 5,

2014, the Appeals Council set aside the December 18, 2012, decision
to consider additional information.

(Doc. 1 at 5.)

The Appeals

Council again denied Plaintiff’s request for review, noting that it
had considered the additional evidence submitted and found it did
not provide a basis for changing the ALJ’s decision because the
evidence concerned a later time.

(Doc. 1 at 5-6.)

The Appeals

Council added that Plaintiff should apply again if he wanted
consideration of whether he was disabled after the date of ALJ’s
decision, i.e., after June 20, 2011.

(Doc. 1 at 6.)

On June 30, 2014, Plaintiff filed his action in this Court
appealing the Acting Commissioner’s decision.

(Doc. 1.)

Defendant

filed her answer and the Social Security Administration transcript
on September 3, 2014.

(Docs. 5, 6.)

supporting brief on October 20, 2014.

Plaintiff filed his
(Doc. 7.)

her opposition brief on November 19, 2014.
B.

Defendant filed

(Doc. 8.)

Factual Background
Plaintiff was born on September 26, 1966.

(R. 164.)

He

completed ninth grade in 1986 and did not attend special education
classes.

(R. 173.)

Since the alleged onset of disability on July

1, 2006, Plaintiff worked for approximately two months unloading
carpets.

(R. 76.)

His attorney clarified that at the time he was

3

at “a halfway house while incarcerated.”
1.

(R. 77.)

Physical Impairment Evidence
On July 3, 2007, Plaintiff was seen as a new patient by Andrea

Wessel, M.D., for complaints of chronic back pain which Plaintiff
had for years with reported worsening over the preceding one to two
months.

(R. 293.)

Plaintiff noted greater pain on the left side

than on the right with stiffening and occasional sharp intermittent
pain, occasional radiation to his left hip, and occasional
radiation to the left heel area.
time as a seven out of ten.

(Id.)

(Id.)

He rated the pain at the

Office notes indicate

Plaintiff’s last MRI was on August 12, 1999.

(R. 294.)

It showed

minimal central canal and neural foraminal narrowing, a small disc
bulge at L4-5, and slight levoscoliosis.

(Id.)

Upon examination,

Dr. Wessel found Plaintiff had a reduced range of motion in his
back secondary to pain and mild palpable muscle spasms paralumbar.
(R. 295.)

Dr. Wessel advised Plaintiff to take Motrin and Zantac,

and apply moist heat to his lower back.
return in about four weeks.

(Id.)

Plaintiff was to

(R. 296.)

Plaintiff also had an MRI of the lumbar spine on July 3, 2007.
(R. 309.)

The Impression indicates the following: small focal

central disc herniation at L4-5 with borderline canal diameter;
borderline canal diameter at L3-4 secondary to disc bulge and facet
and ligamentum flavum hypertrophy; and small central disc
herniation at L5-S1 without canal compromise.
4

(Id.)

An x-ray of

the lumbosacral spine on the same date indicates “straightening of
the lumbar lordosis with mild spondylotic changes . . . . No acute
radiographic abnormality is identified.”

(R. 310.)

On August 6, 2007, Plaintiff saw Dr. Wessel for follow up on
his back pain.

(R. 292-93.)

Plaintiff reported that he still had

aching in his lower back on a daily basis and it was worse with
bending or lifting.

(R. 293.)

some relief.

He was not attending physical therapy as had

(Id.)

been previously recommended.

Plaintiff was using Naproxen with

(Id.)

Plaintiff was directed to

continue taking Naproxen and apply heat to the painful area and
return for follow up in about six months.

(R. 293.)

Though many notes contained in records from the Pennsylvania
Department of Corrections are not legible (see R. 242-61), some
Progress Notes indicate Plaintiff had back problems while
incarcerated.

On October 26, 2007, Plaintiff reported chronic

constant lower back pain and requested anti-inflammatory medicine.
(R. 258.)

A November 8, 2007, Progress Note states that Plaintiff

was admitted to the infirmary because of lower back pain: he was
grimacing with movement, had an unsteady gait and rated his pain at
eight out of ten.
compresses.

(Id.)

(R. 259.)

He was given medication and warm

A November 9, 2007, Progress Note quotes

Plaintiff as stating he was feeling better, his pain was about a
two, and he was moving slowly and guardedly.

(R. 256.)

By

November 16, 2007, Plaintiff was reported to be doing well.

5

(R.

257.)

A January 29, 2009, Progress Note states that Plaintiff had

lower back pain and herniated discs but he was not taking any
medication, had no physical restrictions, and was employable.

(R.

251.)
Following Plaintiff’s two-year incarceration, he saw Dr.
Wessel for an office visit on July 22, 2009.

(R. 289.)

Dr. Wessel

noted that Plaintiff had an ongoing problem with lower back pain,
he had a history of lumbar disc disease, and he had been referred
for pain therapy in 2007 but never had injections due to his
incarceration.

(Id.)

Plaintiff reported his pain was greater on

the right side than on the left.

(Id.)

He described the pain as

constant throbbing, eight on a scale of one to ten, with occasional
snapping pain and radiation to the right buttock and posterior
thigh.

(Id.)

Plaintiff also reported the pain was worse with leg

elevation, prolonged sitting, walking, and standing.

(R. 290.)

He

further reported that he got some relief with “stretching back
out.”

(Id.)

Upon examination Dr. Wessel noted that Plaintiff’s

back was straight, he had a reduced forward bend and paralumbar
spasms.
(Id.)

(R. 291.)

Plaintiff had a negative straight leg raise.

Dr. Wessel recommended moist heat, pain therapy referral,

MRI of the spine, and a follow up visit in four weeks.

(R. 292.)

On August 10, 2009, Plaintiff had MRI of the lumbar spine.
(R. 311.)

The Clinical Indication was “concern regarding

backache/disc disease.

The patient reports worsening low back pain

6

with burning and cramping in the left lower extremity.”

(Id.)

This study was reviewed and compared to the July 3, 2007, MRI:
Slight progression of degenerative change in
the mid to lower lumbar region since
07/03/07.
Small central disc herniation at L5-S1,
similar in size to the prior study. There is
now progressive signal change in the
posterior aspect of the L5-S1 disc typically
seen with an annular tear. This is more
conspicuous than in the prior study.
Slight to mild disc herniation at L4-5
favoring the left side of midline, slightly
smaller than on the prior study consistent
with slight interval dessication. This is
more apparent to the right of midline. This
contributes to mild canal stenosis and mild
to moderate bilateral lateral recess
narrowing, greater on the left. The overall
degree of lateral recess narrowing on the
right is slightly improved since the prior
study. There is medial foraminal narrowing
bilaterally, greater on the left, without
compression of the exiting L4 nerves.
Broadbased disc bulge at L3-4 similar in
appearance to the prior study without frank
herniation of significant canal stenosis.
Slight disc bulging at L2-3, more prominent
than on the prior study with evidence of
interval progression of degenerative since
07/03/07. The L1-2 and T12-L1 discs remain
within normal limits.
(R. 311-12.))
On September 9, 2009, Englok Yap, M.D., administered a lumbar
epidural steroid injection to treat Plaintiff’s back pain.
274-75.)

Dr. Yap assessed Plaintiff to have lumbar disc

displacement.

(R. 275.)
7

(R.

On October 1, 2009, Plaintiff saw Dr. Wessel for follow up on
his back disorder.

(R. 288.)

Plaintiff was to continue with

Naproxen for his lumbar disc problem.

(R. 289.)

On October 8, 2009, Plaintiff again saw Dr. Yap for evaluation
of ongoing low back and left leg pain.

(R. 266.)

Plaintiff

reported that his low back pain resolved after his September 9,
2009, steroid injection but his left leg pain continued and was
constant–-radiating from his left buttock into his left posterior
thigh, calf and sole of foot.

(Id.)

Plaintiff had normal flexion

and extension, and normal gait and rotation.

(Id.)

Dr. Yap

administered a second steroid injection to treat Plaintiff’s lumbar
disc displacement and noted that Plaintiff may benefit from a left
S1 nerve root at his next visit.

(R. 267.)

On December 11, 2009, Plaintiff saw Michel Lacroix, M.D., for
surgical advice.

(R. 333.)

Because of his herniated disc,

Plaintiff had been referred to Dr. Lacroix by Dr. Yap.

(Id.)

Plaintiff reported worsening pain over the preceding year.

(Id.)

He further reported the pain to be constant, accentuated by
exercises and transfers, and the pain could be excruciating in the
morning.

(Id.)

Plaintiff had seen a chiropractor and pain

management without success, but Neurontin and NSAIDS provided
moderate help.

(Id.)

Dr. Lacroix found that Plaintiff’s back was

painful with flexion and extension, was nontender along the spine
and paraspinal regions, he had no palpable muscle spasms, and leg

8

squat was painful.

(R. 335.)

Imaging revealed spondylosis,

multilevel degenerated disc disease with bulging, central disc
herniation L5/S1 without significant mass effect, and no
significant central or foraminal stenosis.

(R. 336.)

Dr. Lacroix

advised Plaintiff that there was no significant lesion which would
be successfully addressed by spinal surgery.

(Id.)

Dr. Lacroix

reported that he insisted to Plaintiff that he follow a healthy
lifestyle and continue with pain management, but if his symptoms
should be linked with a more significant pathology in the future,
Plaintiff could be reevaluated.
about four months.

(Id.)

Plaintiff was to return in

(R. 406.)

On December 15, 2009, Plaintiff had a follow up visit with Dr.
Wessel and requested a reevaluation with pain therapy.

(R. 403.)

Plaintiff complained of ongoing lumbar pain which he rated eight
out of ten.

(Id.)

Upon examination, Dr. Wessel found Plaintiff’s

back to be straight with paralumbar tenderness and palpable muscle
spasms.

(R. 404.)

Dr. Wessel aslo found positive straight leg

raising on the left and noted Plaintiff reported numbness to touch
in the knee area.

(Id.)

On April 27, 2010, Feroz Sheikh, M.D., completed a Physical
Residual Functional Capacity Assessment.

(R. 341-47.)

No treating

or examining source statements regarding Plaintiff’s physical
capacities were included in the file.

(R. 345.)

He concluded

Plaintiff had the following exertional limitations: he could lift

9

twenty pounds occasionally and ten pounds frequently; he could
stand and/or walk for a total of about six hours in an eight-hour
workday; he could sit for about six hours in an eight-hour workday;
he could occasionally climb stairs, balance, stoop, kneel, crouch,
and crawl.

(R. 342-43.)

Plaintiff had no manipulative, visual or

communicative limitations.

(R. 343.)

Plaintiff’s only

environmental limitation was that he was to avoid concentrated
exposure to hazards including machinery and heights.

(R. 344.)

Dr. Sheikh found that the medical evidence establishes a medically
determinable impairment of DDD LUMBAR SPINE.
found Plaintiff to be partially credible.

(R. 346.)

He

(Id.

Plaintiff again saw Dr. Wessel on June 3, 2010.

(R. 415.)

Plaintiff rated his back pain as nine out of ten and reported it
was “relieved by nothing.”
in seeing pain therapy.

(Id.)

(Id.)

Plaintiff expressed an interest

Upon examination, Dr. Wessel found

Plaintiff’s back to be straight, with “ok” range of motion, and
paralumbar tenderness.

(R. 416.)

Dr. Wessel recommended moist

heat to the painful area, Naproxen, Flexeril for muscle spasm as
needed, and pain therapy referral.
in three months.

(Id.)

Plaintiff was to return

(Id.)

On July 1, 2010, at Dr. Wessel’s request Plaintiff had an
Initial Physiatric Consultation at Northeastern Rehabilitation
Associates to determine what else could be done to diminish his
pain and improve his function.

(R. 390.)

10

Elizabeth Karazim-

Horchos, D.O., conducted the evaluation.

(Id.)

Plaintiff rated

his pain as seven to ten out of ten and reported that it had been
getting worse, he did not feel Dr. Yap’s epidural injections were
effective, chiropractics made his problem worse, and he had not had
physical therapy in the past.

(Id.)

Plaintiff reported that he

could sit, stand, or walk for thirty minutes at most.

Dr. Karazim-

Horchos reviewed Plaintiff’s August 2009 imaging studies of his
back and found that they showed degenerative disc disease in the
lumbar spine and central disc herniation at L5-S1 with an annular
tear and disc herniation at L4-5 and broad based disc bulge at L34.

(Id.)

Upon physical examination Dr. Karazim-Horchos recorded

the following:
He is 5'9" and weighs 220 pounds. Motor
strength is functional in the lower
extremities. His gait is non-antalgic.
Transfers are smooth and easy. Extremities
are without edema, clubbing or cyanosis.
Positive straight leg raising, right lower
extremity. Positive cross straight leg
raising sign, left lower extremity. Hip
range of motion, internal and external
rotation precipitates increased pain
laterally into right posterior sacroiliac
sulcus. Positive Gaenslen’s maneuver. He
has discomfort on palpation at the right
posterior sacroiliac area. Lumbar flexion
and extension all precipitate increased pain
in the lower lumbar segments. He has no
paraspinal muscle spasm, edema or erythema.
(R. 391.)

Dr. Karazim-Horchos’s impression was “chronic pain

syndrome, intravertebral disc degeneration, low back pain,
discogenic low back pain, probable sacroiliitis.”

11

(Id.)

The plan

was to address the inflammatory component of his pain with a course
of Predisone, refer him for a course of physical therapy for
lumbosacral stabilization exercise and evaluation for a TENS unit
which would be an adjunctive pain control.

(Id.)

Dr. Karazim-

Horchos planned to see Plaintiff again in four weeks and, if he was
not significantly better, she would consider pursuing some
epidurals and/or sacroiliac injection and a facet block.

(Id.)

On September 14, 2010, Plaintiff was seen at Northeastern
Rehabilitation for follow up.

(R. 397.)

Dr. Karazim-Horchos notes

that some reports indicate that epidurals were helpful.

(Id.)

She

reported that Plaintiff had gone to physical therapy for one visit
and the therapist said he was not compliant.

(Id.)

She

recommended that Plaintiff observe proper body mechanics, continue
on his medications and return in three to four months.

(Id.)

She

also noted that she “discussed with him to follow up with OVR to
determine if something he could do for employment as he is
interested in that.”1

(Id.)

On December 20, 2010, Dean Mozelski, M.D., of

Northeastern

Rehabilitation administered lumbar facet joint intra-articular
injection at the request of Dr. Karazim-Horchos.
Mozelski reported no complications.

(R. 398.)

Dr.

(Id.)

On January 4, 2011, Dr. Karazim-Horchos saw Plaintiff for

1

The Office of Vocational Rehabilitation is often referred
to as OVR.
12

follow up.

(R. 399.)

Plaintiff reported that he was not doing

well, his pain continued, and he did not find the facet injections
were particularly helpful.

(Id.)

She noted Plaintiff continued to

use Neurontin with “fairly good effect and he will continue with
this medication.”

(Id.)

Dr. Karazim-Horchos suggested he again

try physical therapy but he stated he was not able to do so
secondary to co-pays and scheduling difficulties.

(Id.)

Dr.

Karazim-Horchos then discussed several exercises he could do on his
own and showed him how to do them.

(Id.)

She asked Plaintiff to

try to do them for at least ten to fifteen minutes twice a day.
(Id.)

The plan was to see Plaintiff again in six months or sooner

if need be.

(Id.)

On May 3, 2011, Dr. Karazim-Horchos completed a form assessing
Plaintiff’s ability to do work-related activities on a day-to-day
basis.

(R. 400-402.)

She recorded the following findings:

Plaintiff could stay on his feet for three hours at a time, stand
and walk for four hours, sit for 6 hours at any one time and sit
for a total of eight hours; Plaintiff could lift and carry up to
nineteen pounds continuously and up to forty-nine pounds
frequently; Plaintiff had no limitations using his hands, legs and
feet; Plaintiff was occasionally able to bend, squat, crawl and
climb stairs, and could continuously reach; and Plaintiff had a
mild limitation regarding exposure to the stress of a competitive
work setting on a sustained full-time basis and a moderate

13

limitation against driving automotive equipment.

(R. 400-01.)

Dr.

Karazim-Horchos reported that Plaintiff did not have to elevate his
lower extremities for a significant amount of time daily, and she
did not know if he had problems with stamina and endurance which
would interfere with daily activities in a work environment.

(Id.)

She noted that she believed Plaintiff’s complaints of pain, listing
Plaintiff’s spinal conditions to be the cause of the pain as
supported by MRI findings showing an annular tear at L4-L5, and
disc herniation at L5-S1.

(R. 401.)

Dr. Karazim-Horchos noted

that previously identified limitations could be further reduced by
the pain and his pain is present at the levels described.

(Id.)

She further noted that the degree of pain was occasionally
debilitating and she did not know if Plaintiff had any
psychological conditions which affected his pain or if he was a
malingerer.

(R. 402.)

Dr. Karazim-Horchos opined that Plaintiff’s

symptoms would often interfere with his attention and
concentration.

(Id.)

She reported that he would need to take two

fifteen to thirty minute unscheduled breaks during an eight-hour
workday.

(Id.)

She also noted that Plaintiff would likely be

absent from work about three times a month as a result of his back
impairment.

(Id.)

On June 4, 2011, Dr. Mozelski of Northeastern Rehabilitation
saw Plaintiff at the request of Dr. Karazim-Horchos.

(R. 482.)

administered a socroiliac joint injection without incident.

14

He

(Id.)

2.

Mental Impairment Records
A November 8, 2005, intake note from Scranton Counseling

Center, states that Plaintiff was seen for complaints of
aggravation and irritation and he had ongoing problems including
arrests for aggravated and simple assault.

(R. 454.)

Plaintiff

reported he was trying to keep his anger under control by punching
walls but had dislocated his hand as a result.

(Id.)

A November 9, 2005, Psychiatric Evaluation from the Scranton
Counseling Center indicates that Plaintiff reported having social
problems due to aggression during his school years, was diagnosed
with Adult ADHD, had a recorded GAF of 66, and was prescribed
medication for his mental health problems.

(R. 446-453.)

In November of 2005, Plaintiff did not show for his
appointment at Scranton Counseling Center.

(Id.)

2005, Plaintiff cancelled his appointment.

In December

(Id.)

Plaintiff did not show for another intake appointment in 2007,
but eventually was seen and reported he was going to prison.

(Id.)

A Scranton Counseling Center Evaluation form dated July 19,
2007, shows that Plaintiff was separated from his wife and living
with his mother at the time.

(R. 455.)

living on public assistance.

(Id.)

He was unemployed and

Plaintiff’s chief complaint

was that he was constantly aggravated and feeling he was going to
lose his temper with someone.

(R. 456.)

The evaluator noted that

he showed twisted thinking and wanted to die.
15

(Id.)

Plaintiff

reported that he did not like to be around people, he had problems
with concentration, racing thoughts and memory, felt anxious,
depressed and overwhelmed.

(Id.)

Plaintiff stated that he had

been incarcerated a total of ten years, he was not on probation or
parole at the time, but he was involved with a simple assault case
related to his daughter’s boyfriend.

(R. 461.)

The evaluator

reported that Plaintiff was cooperative, answered questions
appropriately, had an appropriate affect and anxious mood with
coherent thought processes, fair judgment and adequate
concentration and attending skills.

(R. 465-66.)

The Diagnostic

Impression identifies Adult ADHD, chronic back problems, problems
with his sister and the legal system, and a GAF of 55 with a GAF of
60 having been the highest in the past year.

(R. 467.)

The

evaluator also found it necessary for Plaintiff to be treated with
pharmacotherapy to address mood instability and psychosocial issues
and he was prescribed Focalin and Celexia.

(R. 468-69.)

On August 15, 2007, a Physician Progress Note from Scranton
Counseling Center shows that Plaintiff’s mood was depressed but his
affect was appropriate, he had good concentration and attention,
his mental status was oriented, and he reported his medications
were helpful.

(R. 470.)

Doxepin and Ritalin.

Plaintiff’s medications were changed to

(Id.)

He was to return in four weeks but did

not show for his September 19, 2007, appointment.

(Id.)

Pennsylvania Department of Corrections health records contain

16

a Mental Health Referral Form which notes that Plaintiff was
referred on October 3, 2007, based on his history of depression.
(R. 247.)

On October 5, 2007, the staff member completing the

assessment reported that Plaintiff was stable and denied the need
for mental health services.

(R. 245, 247.)

An October 26, 2007, prison health record Progress Note states
that Plaintiff reported a history of depression and that he had
taken Doxepin but he asked to be taken off the medication (stating
he had not taken it for two weeks).

(R. 258.)

The Progress Note

indicated he would be referred to a psychologist.

(Id.)

A December 17, 2007, prison health record Progress Note
acknowledges Plaintiff’s history of depression but indicates he did
not feel that he needed to be “seen by psych at this time.”

(R.

253.)
A January 27, 2009, prison health record

Progress Note states

that Plaintiff had a “present diagnosis” which included depression.
(R. 252.)

He had no medications prescribed.

(Id.)

A September 15, 2009, Scranton Counseling Center evaluation
indicates that Plaintiff was living with his twenty-five year old
son, was unemployed and supported by public assistance.

(R. 320.)

Plaintiff reported a history of ADHD and cyclothymic disorder.
321.)

(R.

The evaluator determined it medically necessary for

Plaintiff to receive medication for ADHD, Bipolar Disorder and
anger and Plaintiff was prescribed Seroquel and Concerta.

17

(R. 322-

23, 443.)
On November 12, 2009, a Scranton Counseling Center Initial
Treatment Plan indicated Plaintiff’s GAF was 60, and that he had
problems related to social environment, occupation, finances, and
the legal system.

(R. 325.)

Goals and interventions were devised

to address his ADHD, Bipolar Disorder, and anger control problems.
(Id.)

A progress note from the same date states that Plaintiff

reported that his medications were not helping, and he continued to
have trouble controlling his anger.

(R. 328.)

The evaluator

recorded that Plaintiff was pleasant but appeared slightly nervous
and frustrated.

(Id.)

A Physician Progress Note dated December 2, 2009, reports
Plaintiff to be friendly and cooperative; his concentration and
attention were “ok”; his affect was appropriate and his mental
status oriented.

(R. 326.)

Plaintiff said he did not find the

Concerta helpful and he wanted to go back on Doxepin instead of the
Seroquel he was taking.

(Id.)

The Physician’s Order Sheet dated

December 2, 2009, shows that Plaintiff was prescribed Ritalin and
Doxepin.

(R. 324.)

On February 5, 2010, Interdisciplinary Progress Notes from
Scranton Counseling Center note that Plaintiff reported he was
doing well on his medications and felt they were helpful in
controlling his temper.

(R. 426.)

It was also noted that

Plaintiff appeared calm and pleasant, and the possibility of anger

18

management would be discussed at his return visit in eight weeks.
(Id.)
On February 24, 2010, Nelson Asante, M.D., of the Scranton
Counseling Center noted that Plaintiff was doing fairly well.
425.)

(R.

His mood was anxious but he was cooperative and his affect

was appropriate.
were helpful.

(Id.)

Plaintiff reported that his medications

(Id.)

On May 4, 2010, Plaintiff reported mood swings, and said he
had an altercation with his daughter which resulted in her filing
“a harassment suit” against him.

(R. 427.)

Plaintiff said he was

waiting for his hearing date and he wanted to get off probation, be
able to be eligible for SSI and eventually move out of the city.
(Id.)

A GAF of 60 was recorded at the visit.

(Id.)

On May 11, 2010, Thomas Smith, Psy.D., completed a Medical
Source Statement of Ability to Do Work-Related Activities (Mental).
(R. 348-54.)

Based on a clinical interview (R. 353), Dr. Smith

found that Plaintiff’s ability to understand, remember, and carry
out instructions are affected by his mental impairments: he has
moderate restrictions in his ability to understand and remember
short, simple instructions, carry out short and simple
instructions, and understand and remember detailed instructions; he
has marked-extreme restrictions in his abilities to carry out
detailed instructions and make judgments on simple work-related

19

decisions.2

(R. 350.)

Plaintiff’s ability to respond

appropriately to supervision, co-workers, and work pressures in a
work setting was affected by his impairments: he had marked-extreme
limitations in all five subcategories.3

(Id.)

Dr. Smith’s

Diagnostic Impressions identified the following: mood disorder and
ADHD by history; employment, relationship and financial problems;
and a GAF of 40-50.

(R. 354.)

He summarized his findings as

follows:
The claimant presents himself in the
interview with history of intolerance, anger,
and relationship problems again throughout
his whole life. He reports . . . “I can’t
stand people who are intolerant, ignorant,
and stupid.” He reports there is a lot of
crisis and problems in his personal life
“that I did not do that I got blamed for
because of other people’s ignorance and
behaviors. It seems that people just keep
interfering with my life.” The claimant’s
cognitive schema of how he sees himself in
the world and how the world has impacted him
seems to be a significant obstacle in his
ability to engage and interact in this world.
Some intensive outpatient assistance and
individual treatments along with a
reevaluation or may be pharmacological
treatment certainly could be beneficial to
this individual. I hope that the person will
follow up with such recommendations.
(R. 354.)
A Psychiatric Review Technique completed by Mark Hite, Ed.D.,

2

Dr. Smith marked both “Marked” and “Extreme” categories.
(R. 350.)
3

See n.2.
20

on June 11, 2010, reports that Plaintiff has the medically
determinable impairments ADHD and Mood Disorder.

(R. 369, 371.)

Dr. Hite found that Plaintiff had the following functional
limitations: moderate limitation in difficulties in maintaining
social functioning; and moderate limitation in maintaining
concentration, persistence, or pace.

(R. 378.)

Based on his

review of the evidence in the file, Dr. Hite concluded Plaintiff
was moderately limited in the following areas: ability to carry out
detailed instructions; ability to make simple work-related
decisions; ability to interact appropriately with the general
public; and ability to accept instructions and respond
appropriately to criticism from supervisors.

(R. 381, 382.)

Hite provided the following summary:
The claimant alleges disability due to back
injury, herniated discs and attention deficit
hyperactivity disorder.
The medical evidence establishes medically
determinable impairments of Mood Disorder NOS
and Adhd By History. He is 43 years old and
has completed 9 years of formal education.
He hasn’t had any hospitalizations because of
his mental impairments.
Claimant had a brief period of psychiatric
treatment from 10/09 to 12/2/09 (Dr. Asante).
He did not respond to medications and stopped
going. A recent CE (Thomas Smith, PsyD) was
conducted. The report indicates that the
claimant has difficulty with relationships,
anger issues, and intolerance of others. No
significant cognitive impairments were
identified. He only finished the 9th grade
in school, but, did not attend special
education classes. His last notes from Dr.
21

Dr.

Asante rated his GAF at 60, indicating
moderate mental impairment (11/2/09;
12/2/009). He is fully capable of performing
all routine ADL’s and self-care independently
and he can prepare complete meals, does
laundry, light chores, uses public
transportation, goes out alone, shops, pays
bills.
The claimant’s basic memory processes are
intact. He is capable of working within a
work schedule and at a consistent pace. He
can make simple decisions. He is able to
carry out very short and simple instructions.
Moreover, he is able to maintain
concentration and attention for extended
periods of time. He is self-sufficient.
Additionally, he retains the ability to
perform repetitive work activities without
constant supervision. There are no
restrictions in his abilities in regards to
understanding and memory and adaptation.
Based on the evidence of record, the
claimant’s statements are found to be
partially credible.
The opinion stated within the report received
6/3/2010 provided by Thomas P. Smith, Psy.D.,
an examining source, has been considered.
The residual functional capacity assessment
is different than the opinions expressed by
Thomas P. Smith, Psy.D. in the report
received 6/3/2010 due to inconsistencies with
the totality of the evidence in file. Some
of the opinions cited in the report are
viewed as an overestimate of the severity of
the claimant’s functional restrictions. The
examining source statements in the report
concerning the claimant’s abilities in the
areas of making occupational adjustments,
making performance adjustments and making
personal and social adjustments are not
consistent with all of the medical and nonmedical evidence in the claims folder. The
psychologist’s report appears to contain
inconsistencies. Therefore, the
psychologist’s opinion in this report is less
22

persuasive. The psychologist’s opinion is
without substantial support from the other
evidence of record, which renders it less
persuasive. Therefore, the report submitted
by Thomas P. Smith, Psy.D., received
6/3/2010, is given appropriate weight and is
partially consistent with this assessment.
The claimant is able to meet the basic mental
demands of competitive work on a sustained
basis despite the limitations resulting from
his impairments.
(R. 383-84.)
At his visit with Dr. Asante on June 11, 2010, Plaintiff
reported increased stress and said he did not feel his medications
were helpful.

(R. 429.)

Dr. Asante noted Plaintiff’s affect to be

appropriate, his mental status oriented and his mood alert and
cooperative.

(Id.)

At his June 29, 2010, visit to Scranton Counseling Center,
Plaintiff reported an altercation with his mother that resulted in
a disorderly conduct charge against him.
that his medications were not working.

(R. 431.)

He again said

(Id.)

On July 14, 2010, Dr. Asante found Plaintiff’s mood depressed
but he was cooperative and his affect was appropriate. (R. 432.)
Dr. Asante recorded a GAF of 56.

(R. 433.)

In a September 28, 2010, Treatment Plan Update, Plaintiff’s
GAF was recorded to be 60 and his strengths were listed as
“independent, resilient, caring, cooperative, intelligent.”
434.)

(R.

Mood swings, ADHD, legal issues and anger control were

listed as barriers to treatment.

(Id.)
23

Plaintiff reported that he

was recently able to talk himself out of situations and would like
to continue to improve in that area; he rated his mood swings as
four or five and wanted to get down to two or three.

(Id.)

a three to four month target date for meeting these goals.

He had
(Id.)

On October 6, 2010, Plaintiff missed his appointment with Dr.
Asante but called later in the month regarding his medications.
(R. 435.)
On October 25, 2010, Dr. Asante reported Plaintiff’s mood as
depressed, alert, and cooperative, his affect appropriate, and his
mental status oriented.

(R. 436.)

Dr. Asante notes ongoing

depression, poor sleep and Plaintiff’s assessment that his
medications were not helpful.

(Id.)

see Dr. Asante on December 15, 2010.

Plaintiff was to return to
(Id.)

On December 15, 2010, Dr. Asante noted Plaintiff’s mood to be
euthymic and cooperative, his affect appropriate, and his mental
status oriented.

(R. 438.)

and concentration better.
months.

He noted Plaintiff’s mood to be stable
(Id.)

Plaintiff was to return in three

(Id.)

In a December 27, 2010, Interdisciplinary Progress Note, it
was recorded that Plaintiff apparently lost his medical card and
was told that only one of his medications could be refilled.
Plaintiff said “Don’t worry about it” and left the office.
440.)
Plaintiff did not show up for his January 5, 2011, and

24

(R.

February 23, 2011, appointments.
9, 2011, appointment.

(Id.)

(R. 440.)

He cancelled his March

Plaintiff again did not show up for

his April 5, 2011 appointment.

(Id.)

On April 25, 2011, Plaintiff again saw Dr. Asante.

(R. 441.)

His mood was friendly and cooperative, his affect appropriate and
his mental status oriented.

(Id.)

Dr. Asante noted that

Plaintiff’s mood was getting more and more unstable, and he had
been off his medications but wanted to go back on his original
medications.

(Id.)

His GAF was noted to be 55.

Ritalin and Doxepin were prescribed.

(R. 442.)

(R. 445.)

On May 6, 2011, Elizabeth A. Ciaravino, Ph.D., saw Plaintiff
for a psychological evaluation.

(R. 471.)

She conducted a

clinical interview, administered the Wechsler Adult Intellignece
Scale - Third Edition, and completed a Mental Residual Functional
Capacity Assessment.

(Id.)

In her Diagnostic Impression, Dr.

Ciaravino stated that Plaintiff
was oriented to time, place and person.
Speech was fairly clear, coherent, and goal
directed. Mood was mildly tense, and affect
depressed. Information and intelligence
appears to be in the borderline range. There
was no evidence of any formal thought
disorder. He admits passive suicidal
ideation, without any definable plan for self
harm. He denies homicidal ideation. Impulse
control and judgment are extremely tenuous.
(R. 473.)

Dr. Ciaravino also recorded the following: Bipolar II

Disorder (Recurrent Major Depressive Episodes with Hypomanic
Episodes); Attention Deficit/Hyperactivity Disorder, Combined Type;
25

Borderline range of intellectual functioning; Chronic pain;
Psychosocial stressors are severe, given awareness of selfisolation and poor coping skills and intellectual limitations;
Current GAF of 55 and best in year 55.

(Id.)

She concluded that

Plaintiff’s overall prognosis was fair, explaining that “[h]e has
brittle coping skills in the face of stress.

His concrete coping

skills do not allow him to handle difficult interpersonal
situations with ease.

The above issues are part of his personality

development, the Borderline Intellectual functioning, as well as
the Bipolar Disorder and Attention Deficit Disorders.”

(R. 474.)

On May 13, 2011, Dr. Ciaravino completed a Mental Residual
Functional Capacity Assessment.

(R. 475-76.)

She determined that

Plaintiff was moderately impaired in the following areas: ability
to understand and remember short and simple repetitive instructions
or tasks; ability to make simple work-related decisions; ability to
ask simple questions or request assistance from supervisors;
ability to be aware of normal hazards and take necessary
precautions; and ability to travel in unfamiliar settings and use
public transportation.

(Id.)

Dr. Ciaravino found moderately

severe (not precluded but substantially impaired) limitations in
the following categories: ability to remember locations and worklike procedures; ability to understand and remember detailed (3 or
more steps) instructions which may or may not be repetitive;
ability to carry out short and simple (one or two-step) repetitive

26

instructions which may or may not be repetitive; ability to sustain
ordinary routine without special supervision; ability to interact
appropriately with the general public or customers; ability to
accept instructions and respond appropriately to criticism from
supervisors; ability to get along with co-workers or peers without
distracting them or exhibiting behavioral extremes; ability to
maintain socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness; and ability to set realistic
goals or make plans independently.

(Id.)

She reported severe

limitations (activity totally precluded on sustained basis) in the
following areas: ability to maintain attention and concentrate for
at least two straight hours with at least four such sessions in a
workday; ability to work in coordination with or proximity to
others without being distracted; ability to complete a normal
workday and work week without interruptions from psychologically
based symptoms and to perform at a consistent pace; ability to
respond appropriately to expected changes in the work setting; and
ability to respond appropriately to unexpected changes in the work
setting.

(Id.)

Dr. Ciaravino also found the effect of several

work related stressors would likely increase the level of
impairment indicated above, that a simple entry-level job would
serve as a stressor which would exacerbate psychological symptoms,
and his medically/psychologically determinable impairments could
reasonably be expected to produce the symptomology Plaintiff

27

describes.
3.

(R. 476.)

Function Reports and ALJ Hearing Testimony
In the “Function Report - Adult” completed on November 25,

2009, Plaintiff stated that his daily activities consisted of lying
on a heating pad for twenty minutes in the morning, going to
appointments if any were scheduled (three monthly), going for a
walk at least once a day (four blocks), lying in bed when possible,
and lying on a heating pad for twenty minutes before bed.
187.)

(R. 183,

He reported that previously he could sit or stand in place

for more than ten minutes and walk long distances.

(R. 184.)

Plaintiff takes care of his personal needs, prepares his own meals,
and does household chores like laundry, dishes, and sweeping the
floor.

(R. 185.)

Plaintiff’s hobbies are watching television

(about five hours a day) and reading (one hour a day).
He does not spend time with others.

(Id.)

(R. 187.)

He said that he has

trouble getting along with family and others because “[p]eople are
ignorant & disrespectful.
people.”

(R. 188.)

I do not like to be around a lot of

Plaintiff also said that the discomfort and

lack of sleep related to his impairments make him short tempered.
(Id.)

Plaintiff reported that his conditions affect his abilities

to lift, squat, bend, stand, walk, sit, kneel, and climb stairs;
they have also affected his memory, concentration, follow
instructions and get along with others.

(R. 188.)

Plaintiff also

stated he can only pay attention for a few minutes, is terrible at

28

following written instructions, and poor at following spoken
instructions.

(Id.)

Plaintiff stated that he does not get along

well with authority figures in general but if they are respectful
he gets along well.

(R. 189.)

He has been fired because of

problems getting along with others, explaining this happened
because the boss, supervisor or co-employees cursed at him.

(Id.)

Finally, Plaintiff reported that he handles stress and changes in
routine poorly.

(Id.)

At the ALJ hearing on May 26, 2011, Plaintiff confirmed that
he is alleging disability since July 1, 2006, and that he has
worked for approximately two months since that time.

(R. 76.)

That job was unloading carpets when he was in a halfway house while
incarcerated and, although he was able to do it, he could not have
continued after his release.

(R. 76-77.)

Plaintiff also testified

that he experienced pain in his knees and lower back when he worked
the unloading job.

(R. 83.)

receiving public assistance.

Since that time Plaintiff said he was
(R. 77.)

He reported that the pain

in his back, legs, and feet keeps him from working–-although it is
constant, it varies in intensity.

(R. 78.)

Plaintiff testified he

was being treated at Scranton Counseling Center for his mental
impairments.

(R. 80.)

Plaintiff confirmed that he had been

incarcerated several times because of fighting, generally serving
his full term because of misconducts he received while in prison.
(R. 85.)

He also said he had over thirty jobs in his life--he

29

“just couldn’t keep a job” because he didn’t get along with people
and the back pain started getting worse.

(R. 86.)

The vocational expert testified that a hypothetical individual
of Plaintiff’s age, education, and work experience with a capacity
to do light work with certain limitations, could not perform any of
Plaintiff’s past relevant work.

(R. 91.)

The individual, however,

could perform other such as night cleaner, tagger, or garment
inspector.

(R. 91.)

If the exertional level were reduced to

sedentary, the vocational expert said the tagger and garment
inspector positions would remain viable options and he would add
the position of small parts assembler.

(R. 92.)

If the

hypothetical individual were to be off task twenty percent of the
day, the vocational expert confirmed that individual would be
precluded from sustaining gainful employment.

(R. 92-93.)

The

vocational expert also confirmed that gainful employment would be
precluded if the limitations identified by Dr. Smith, Dr. Ciaravino
and Dr. Karazim-Horchos were assumed to be accurate.
4.

(R. 93-98.)

ALJ Decision
By decision of June 20, 2011, ALJ Sweeda determined that

Plaintiff had not been under a disability, as defined in the Social
Security Act, from July 1, 2006, through the date of the decision.
(R. 67.)

He made the following findings of fact and conclusions of

law:
1.

The claimant meets the insured status
requirements of the Social Security Act
30

through September 30, 2009.
2.

The claimant has not engaged in
substantial gainful activity since July
1, 2006, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe
impairments: degenerative disc disease
and affective disorder (20 CFR
404.1520(c) and 416.920(c)).

4.

The claimant 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, 404.1526, 416.920(d), 416.925
and 416.926).

5.

After careful consideration of the
entire record, the undersigned finds
that the claimant has the residual
functional capacity to perform light
work as defined in 20 CFR 404.1567(b)
and 416.967(b). The work can involve
occasional kneeling, crawling, climbing,
balancing, bending and stooping. The
work would not involve contact with the
general public and only occasional
contact with coworkers and supervisors.
The work is limited to simple,
repetitive tasks with environmental
limitations of no exposure to
temperature extremes, high humidity or
vibration.

6.

The claimant is unable to perform any
past relevant work (20 CFR 404.1565 and
416.965.)

7.

The claimant was born on September 26,
1966 and was 39 years old, which is
defined as a younger individual age 1849, on the alleged disability onset date
(20 CFR 404.1563 and 416.963).

8.

The claimant has a limited education and
31

is able to communicate in English (20
CFR 404.1564 and 416.964).
9.

Transferability of job skills is not an
issue in this case because the
claimant’s past relevant work is
unskilled (20 CFR 404.1568 and 416.968).

10.

Considering the claimant’s age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 404.1569, 404,1569(a),
416.969, and 416.969(a).

11.

The claimant has not been under a
disability, as defined in the Social
Security Act, from July 1, 2006, through
the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

(R. 60-67.)
Explaining his finding that Plaintiff had not engaged in
substantial gainful activity since July 1, 2006, the alleged onset
date, the ALJ noted that Plaintiff worked after the alleged onset
date, referring to Plaintiff’s job while in a halfway house at the
end of his prison term.

(R. 60.)

The ALJ concluded the thirty-

hour-per-week job was evidence that Plaintiff had the capacity to
perform substantial gainful activity.

(Id.)

In making his residual functional capacity determination, the
ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause his alleged symptoms, but he found
that Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of the symptoms are not credible to the extent

32

they are inconsistent with the above residual functional capacity
assessment.”

(R. 63.)

He found that although the treatment

records supported some degree of limitation, they did “not support
greater functional limitations than those set forth in the residual
functional capacity.”

(Id.)

The ALJ noted that records from

Scranton Counseling Center document the infrequecny of Plaintiff’s
treatment.

(R. 64.)

He gave little weight to Dr. Smith’s findings

on the mental residual functional capacity assessment of mostly
marked and extreme limitations because Dr. Smith was not a treating
source and relied solely on the observation made on the day of the
consultative examination.

(Id.)

He added that

the record clearly contradicts the
conclusions and the opinions expressed by Dr.
Smith. . . . Dr. Smith’s findings do not
disclose the necessary findings to support a
conclusion that this claimant’s function is
markedly or extremely limited in any fashion.
Dr. Smith notes that the claimant would be
helped by pharmacological treatment and
intensive outpatient assistance none of which
the claimant was getting at the time of Dr.
Smith’s assessment.
(R. 64.)
The ALJ gave weight to Dr. Hite’s Mental Residual Functional
Capcaity Assessment findings.

(R. 64.)

The ALJ reviewed the

findings of the Psychiatric Review Technique and Assessment but
does not provide reasons for the weight attributed to them.

(Id.)

The ALJ gave little weight to the Mental Residual Functional
Capcaity Assessment provided by Dr. Ciaravino, finding it is

33

“inconsistent with treatment notes and the longitudinal treatment
history.”4

(R. 65.)

Regarding Plaintiff’s physical impairments, the ALJ found that
imaging studies of the low back are not very impressive and could
be expected to cause some mechanical back pain limiting Plaintiff
to light work.

(R. 65.)

Although the ALJ finds Plaintiff slightly

more limited than the opinion of the Disability Determination
Service (DDS) Adjudicator, he agrees that Plaintiff has the RFC for
work at the light exertional level because “it is mostly consistent
with the objective findings that show the claimant was, and is
capable of work.”

(R. 65.)

He gives some weight to Dr. Karazim-

Horchos’s opinions on the RFC based on their consistency with other
evidence that Plaintiff is capable of light exertional work.
65.)

(R.

Evidence cited in support of this determination is

Plaintiff’s December 11, 2009, visit to Geisinger for complaints of
low back pain.

(Id.)
II. Disability Determination Process

“In order to establish a disability under the Social Security
Act, a claimant must demonstrate there is some medically
determinable basis for an impairment that prevents him from
engaging in any substantial gainful activity for a statutory

4

The ALJ says the signature on the form is unknown. (R.
65.) However, an affidavit from Dr. Ciaravino dated October 15,
2012, confirms that she is the author of the May 2011 form. (R.
478.)
34

twelve-month period.”
1999).

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.

The Commissioner is required to use a five-step analysis to

determine whether a claimant is disabled.5

It is necessary for the

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).

5

“Disability” is defined as the “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 lasted or can be expected to last for
a continuous period of not less that 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
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, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
35

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R. 26.)
III. Standard of Review
This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial evidence

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
36

clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. A single piece of
evidence will not satisfy the substantiality
test if the Secretary ignores, or fails to
resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it
is overwhelmed by other evidence–particularly certain types of evidence (e.g.,
that offered by treating physicians)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
710 F.2d at 114.
This guidance makes clear it is necessary for the Acting
Secretary to analyze all evidence.

If she has not done so and has

not sufficiently explained the weight given to all probative
exhibits, “to say that [the] decision is supported by substantial
evidence approaches an abdication of the court’s duty to scrutinize
the record as a whole to determine whether the conclusions reached
are rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
37

can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
38

review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.
2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion
A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”

Hess v. Secretary of Health,

Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
39

record and in explicitly weighing all evidence.
F.2d at 406.

Dobrowolsky, 606

Further, the court in Dobrowolsky noted “the cases

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”
B.

Id.

Plaintiff’s Alleged Errors
As set out above, Plaintiff asserts the decision of the Social

Security Administration is error for several reasons: the ALJ did
not properly consider and give the required weight to mental and
physical RFC assessments; the ALJ improperly relied on certain
Global Assessment of Functioning (“GAF”) scores; and the ALJ did
not adequately explain his reasons for finding Plaintiff’s
testimony not credible.
1.

(Doc. 7 at 13-15.)

Consideration of Residual Functional Capacity Assessments
Plaintiff first argues that the ALJ’s decision is not

supported by substantial evidence and he committed errors of law by
failing to give the required weight to the Mental RFC Assessments
of examining sources Drs. Smith and Ciaravino, and the physical RFC
assessment of treating physician Dr. Karazim-Horchos, all of which
reflected restrictions which the VE testified would prevent
substantial gainful employment on a sustained basis.
15-16.)

(Doc. 7 at

Plaintiff adds that the ALJ improperly substituted his own

opinions without providing good reasons for not accepting the
40

opinions of these examining and treating sources.

(Doc. 7 at 16.)

We agree and conclude that remand is required for proper
consideration of the evidence as discussed below.
The amount of weight accorded medical opinions is wellestablished.

The examining relationship between the claimant and

medical opinion source is considered: more weight is given to the
opinion of an examining source than to a source who has not
examined the claimant, 20 C.F.R. §§ 416.927(c)(1) and
404.1527(c)(1); and more weight is given to a treating source than
a non-treating source, 20 C.F.R. §§ 416.927(c)(2)(i) and
404.1527(c)(2)(i).6
The “treating physician rule,” is codified at 20 C.F.R. §§
416.927(c)(2) and 404.1527(c)(2), and is widely accepted in the
Third Circuit.

Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993); see

also Dorf v. Brown, 794 F.2d 896 (3d Cir. 1986).

The regulation

addresses the weight to be given a treating physician’s opinion: if
the treating source’s opinion on the nature and severity of the
claimant’s impairments is well-supported by acceptable diagnostic
techniques and is not inconsistent with the other substantial
evidence, the opinion is given controlling weight. 20 C.F.R. §

6

20 C.F.R. § 416.927 addresses Supplemental Security Income
claims and 20 C.F.R. § 404.1527 addresses Disability Insurance
claims.
41

416.927(c)(2).7

“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 continuing observation of the
patient’s condition over a prolonged period of time.”

Morales v.

Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citations omitted).

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
7

20 C.F.R. § 404.1527(c)(2) states the following:
Generally, we give more weight to opinions from
your treating sources, since these sources are
likely to be the medical professionals most
able to provide a detailed, longitudinal
picture of your medical impairment(s) and may
bring a unique perspective to the medical
evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative examinations or brief
hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature
and severity of your impairment(s) is wellsupported by medically acceptable clinical and
laboratory diagnostic techniques and is not
inconsistent with the other substantial
evidence in your case record, we will give it
controlling weight. When we do not give the
treating source's opinion controlling weight,
we apply the factors listed in paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, as
well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining
the weight to give the opinion. We will always
give good reasons in our notice of
determination or decision for the weight we
give your treating source's opinion.
42

contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”

Morales, 225

F.3d at 317 (citing Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999); Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988)).
When confronted with contradictory medical evidence, the ALJ may
choose whom to credit, but in these instances there is an acute
need for the ALJ to explain the reasoning behind conclusions.
Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).

The

Fargnoli court noted that the appeals court will vacate or remand a
case where such an explanation is not present.

Id.

Here the ALJ rejected the opinions of two examining sources
and one treating source.

The two examining sources, Thomas Smith,

Psy.D., and Elizabeth Ciaravino, Ph.D., completed Mental Residual
Functional Capacity Assessments.

(R. 350-51, R. 475-76.)

The

treating source, Elizabeth Karazim-Horchos, D.O., completed a
physical residual functional capacity form.

(R. 400-02.)

ALJ Hearing, the vocational expert testified that if

At the

the accuracy

of Dr. Smith’s, Dr. Ciaravino’s, and Dr. Karazim-Horchos’s
assessments were assumed, Plaintiff would not be able to sustain
gainful employment.

(R. 93-98.)

The ALJ gave little weight to Dr. Smith’s findings, pointing
to the fact that Dr. Smith was not a treating source and relied
only on one observation made on the day of the consultative
examination.

(R. 64.)

This reason for discounting Dr. Smith’s

43

opinion is undermined by the fact that the ALJ made no such comment
regarding the opinion of non-examining source Mark Hite, Ed.D.
(Id.)

The ALJ criticizes Dr. Smith’s GAF of 40-50 because it a

“personalized assessment of the claimant” and Dr. Smith did not
rely on specific diagnostic test results such as IQ examinations or
specific clinical observations; rather, the GAF score evaluation
was based on Plaintiff’s subjective report.

(R. 64.)

Yet, the ALJ

also recognizes that GAF scores are not subject to evaluation by
empirical standards “such as IQ’s” and are exclusively the personal
rating of the examiner.

(Id.)

The ALJ states that “the record

clearly contradicts the conclusions and the opinions expressed by
Dr. Smith,” but the ALJ does not point to any specific
contradictory evidence.

(Id.)

The ALJ points to Dr. Smith’s

notation that Plaintiff would be helped by pharmacological
treatment and intensive outpatient assistance, and states that
Plaintiff was not getting such help at the time of the assessment.
(R. 64.)

However, the record shows that, prior to Dr. Smith’s May

11, 2010, assessment, Plaintiff was seen at Scranton Counseling
Center on September 15, 2009, November 12, 2009, December 2, 2009,
February 5, 2010, February 24, 2010, and May 4, 2010.
324-26, 425-27.)

(R. 320,

The Physician’s Order Sheet from Scranton

Counseling Center shows Plaintiff was prescribed various
medications for his mental health impairments in the months before
Dr. Smith’s assessment.

(R. 443-44.)

44

The ALJ notes that Dr. Smith

does not disclose the necessary findings to support his conclusions
that Plaintiff’s function was marked or extremely limited in any
way.

(Id.)

The form submitted by Dr. Smith shows that he wrote

“Clinical Interview” in answer to the question of what
medical/clinical findings supported his assessment.

(See R. 350.)

In his summary, Dr. Smith stated that “[t]he claimant’s cognitive
schema of how he sees himself in the world and how the world has
impacted him seems to be a significant obstacle in his ability to
engage and interact in this world.”

(R. 354.)

While Dr. Smith’s

notations may not be sufficient support for his findings, the
difficulty in establishing mental health impairments warrants
careful consideration of opinions proffered by examining sources.8
This review of the rationale provided by the ALJ indicates that he
did not properly support the weight given to Dr. Smith’s assessment
in that he did not adequately explain the reasoning behind his
conclusions.

Fargnoli, 247 F.3d at 42.

Defendant’s attempt to support the ALJ’s conclusion with
specific argument and citation to the record (Doc. 8 at 19-20) is
unavailing in that Defendant cannot do at this stage of the
proceedings what the ALJ was required to do in arriving at his
decision.

It is the ALJ’s responsibility to explicitly provide

8

“A psychologist’s opinion is almost always based to a large
degree on the patient’s ‘self-reporting,’ so an over-reliance on
this fact would make it extremely difficult for a claimant to
establish disability based on mental impairments.” Cotton v.
Astrue, 374 F. App’x 769, 774 (9th Cir. 2010).
45

reasons for his decision and the analysis later provided by
Defendant cannot make up for the analysis lacking in the ALJ’s
decision.

Fargnoli, 247 F. 3d at 42 n.6; Dobrowolsky, 606 F.2d at

406-07; Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (“The
ALJ’s decision must stand or fall with the reasons set forth in the
ALJ’s decision, as adopted by the Appeals Council.”)
The ALJ accorded little weight to Dr. Ciaravino’s opinion
“because it is inconsistent with treatment notes and the
longitudinal treatment history.”

(R. 65.)

The ALJ does not

elaborate or point to contradictory treatment notes.
treatment notes is sparse at best.

His review of

Although Plaintiff was treated

at Scranton Counseling Center in 2007 prior to his two-year
incarceration (see R. 455, 470) and from September 2009 through
April 2011 (see R. 441) and the record contains numerous individual
treatment notes, the ALJ provides only the following specific
discussion:
The evidence consists of a
Psychiatric/Intake/Psycho-Social Evaluation
and treatment notes from Scranton Counseling
Center dated September 2009 through December
2009. The claimant’s intake diagnosis was
bipolar disorder, ADHD, legal issues with a
GAF of 60 (Exhibit 4F/11). A GAF of 60 is
one point below the mild range. In the
present case, the claimant’s level of
functioning is consistent with this
description. It appears he has no functional
limitations from his alleged mental
impairments. Other records from Scranton
Counseling Center from February 2010 to April
2011 consistently give the claimant a GAF of
55-60 (Exhibit 14F). This is consistent with
46

the results of a psychological evaluation of
Dr. Ciaravino which the Representative
ordered on May 6, 2011. Dr. Ciaravino also
diagnoses the claimant with bipolar and ADHD
with a GAF of 55 (Exhibit 16F).
Treatment records from Scranton
Counseling Center document the infrequency of
the claimant’s treatment. For instance, the
claimant was treated on December 2, 2009 and
February 24, 2009 but then he was not treated
again until June 11, 2010. There is also a
gap in treatment from July 14, 2010 until
October 25, 2010 and from December 29, 2010
until April 26, 2011 (Exhibit 15F).
(R. 63-64.)

From this discussion we do not find support for the

ALJ’s conclusory statement that Dr. Ciaravino’s Mental RFC
Assessment “is inconsistent with treatment notes and the
longitudinal treatment history.”

(R. 65.)

Again, Defendant

provides additional analysis (Doc. 8 at 21-22) but it does not save
the ALJ’s deficient support for the conclusion upon which he bases
the little weight he assigns Dr. Ciaravino’s opininion.
The ALJ’s consideration of Dr. Karazim-Horchos’s opinion is
also flawed.

The ALJ gave “some weight” to Dr. Karazim-Horchos’s

opinions on the residual functional capacity form, finding them
“consistent with the other evidence which indicates that the other
evidence which indicates that the claimant is capable of light
exertional work.”

(R. 65.)

The ALJ did not discuss those

portions of Dr. Karazim-Horchos’s assessment which support greater
limitations.

In addition to noting that she believed Plaintiff’s

complaints of pain (listing Plaintiff’s spinal conditions to be the

47

cause of the pain as supported by MRI findings showing an annular
tear at L4-L5, and disc herniation at L5-S1 (R. 401)), Dr. KarazimHorchos found that previously identified limitations could be
further reduced by the pain and Plaintiff’s pain was present at the
levels described.

(Id.)

She further noted that the degree of pain

was occasionally debilitating and she did not know if Plaintiff had
any psychological conditions which affected his pain or if he was a
malingerer.

(R. 402.)

Dr. Karazim-Horchos opined that Plaintiff’s

symptoms would often interfere with his attention and
concentration.

(Id.)

She reported that he would need to take two

fifteen to thirty-minute unscheduled breaks during an eight-hour
workday.

(Id.)

She also noted that Plaintiff would likely be

absent from work about three times a month as a result of his back
impairment.

(Id.)

Because “an explanation from the ALJ of the

reason why probative evidence has been rejected is required so that
a reviewing court can determine whether the reasons for rejection
were improper,”

Cotter, 642 F.2d at 706-07, the ALJ erred in not

discussing the probative evidence cited above.
2.

ALJ’s Reliance on GAF Scores
Plaintiff maintains that the ALJ erred in his consideration of

GAF scores and used the occasional GAF scores mentioned in Scranton
Counseling Center records to ignore Dr. Smith’s opinion of
Plaintiff’s RFC.

(Doc. 7 at 20.)

Plaintiff identifies the GAF

score discrepancy as the “principal reason” for dismissing Dr.
48

Smith’s opinion.

(Id.)

It is true that the ALJ discounted Dr.

Smith’s GAF score assessment.

(See R. 64.)

However, as discussed

above, the ALJ discounted the assessment for several reasons
although he did not adequately support the reasons provided.
Because we have determined that remand is required for proper
consideration of the evidence, including the ALJ’s analysis and
conclusion regarding Dr. Smith’s assessment, further discussion of
this claimed basis of error is not necessary.
3.

ALJ’s Credibility Determination
Plaintiff asserts that the ALJ erred in finding Plaintiff’s

testimony not credible without adequately explaining his reasons
for doing so.

(Doc. 7 at 23.)

Specifically, Plaintiff cites the

ALJ’s question regarding Plaintiff taking Percocet and a positive
test for cocaine.

(Doc. 7 at 23.)

We do not find that the ALJ’s

reference to Plaintiff taking Percocet and the specific credibility
conclusion regarding the positive cocaine test (see R. 63) render
his credibility finding error.

However, the ALJ’s credibility

analysis is flawed in that the ALJ does not disclose the evidence
upon which it is based.
The ALJ notes Plaintiff’s ability to take public
transportation, vaccuum, and cook, but he does not say how these
activities undermine the limitations Plaintiff associates with his
impairments.

(See R. 63.)

The only specific basis identified to

support his credibility conclusion is the ALJ’s statement that

49

Plaintiff’s “medically determinable impairment could reasonably be
expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity
assessment.”

(R. 63.)

Our review of the record reveals no evidence that Plaintiff’s
treating or examining sources found Plaintiff’s subjective
complaints unfounded.9
The ALJ’s conclusory statement regarding Plaintiff’s
credibility (R. 63) may be a statement of his assessment of
Plaintiff’s subjective reporting, but it does not provide a valid
reason for discounting the alleged symptoms.

In Bjornson v.

Astrue, 671 F.3d 640, 645 (7th Cir. 2012), the Seventh Circuit
criticized the same language as that of the ALJ here, referring to
it as “opaque boilerplate” similar to the “meaningless boilerplate”
identified in an earlier decision.

Id. (citing Parker v. Astrue,

597 F.3d 920, 922 (7th Cir. 2010)).

The Seventh Circuit explained

its reasoning in Filus v. Astrue, 694 F.3d 863 (7th Cir. 2012):
We criticized this boilerplate in Bjornson v.
Astrue, 671 F.3d 640, 644-46 (7th Cir. 2012),
and our opinion has not changed since
Bjornson was issued. Obvious problems

9

For example, as discussed previously in the text, the ALJ
did not discuss those portions of Dr. Karazim-Horchos’s assessment
which support greater limitations than those consistent with his
RFC. (See R. 402.)
50

include . . . the fact that this statement
puts the cart before the horse, in the sense
that the determination of capacity must be
based on the evidence, including the
claimant’s testimony, rather than forcing the
testimony into a foregone conclusion. In
Bjornson, this flaw required us to reverse
and remand, but that is not always necessary.
If the ALJ has otherwise explained his
conclusion adequately, the inclusion of this
language can be harmless.
694 F.3d at 868.
In this case, the ALJ has not otherwise explained his
credibility finding.

(See R. 63.)

Thus, we agree with Plaintiff’s

broad argument that the ALJ erred because he did not explain why he
found Plaintiff’s testimony not credible (Doc. 7 at 23).
Defendant’s assertion that the ALJ’s credibility analysis is
supported by substantial evidence is not persuasive: although we
agree that the ALJ is charged with the duty of determining
credibility, we cannot determine the reasons for his decision. (See
Doc. 8 at 27 (citing Casey v. Colvin, No. 12-2272, 2014 WL 4258716,
at *11 (M.D. Pa. Aug. 27, 2014); SSR 96-7p, 1996 WL 374186; Salles
v. Comm’r of Soc. Sec., 229 F. App’x 140, 156 (3d Cir. 2007) (“When
making credibility findings, the ALJ must indicate which evidence
he rejects and which he relies upon as the basis for his
findings.”)).
V. Conclusion
For the reasons discussed above, this case must be remanded to
the Acting Commissioner for further consideration consistent with
51

this opinion.

An appropriate Order is filed simultaneously with

this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: November 25, 2014

52