Devine v. Berryhill

Filing 13

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, Plaintiffs appeal is properly granted and this matter is remanded to the Acting Commissioner for further consideration. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 11/13/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SUSAN DEVINE,
Plaintiff,
v.

:
:CIVIL ACTION NO. 3:17-CV-848
:
:(JUDGE CONABOY)
:

:
:
:
:
:
Defendant.
:
:
___________________________________________________________________
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,

MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“Act”) and Supplemental
Security Income (“SSI”) under XVI of the Act.

(Doc. 1.)

Plaintiff

protectively filed applications for benefits on December 23, 2013,
alleging a disability onset date of December 5, 2013.

(R. 18.)

After she appealed the initial denial of the claims, a hearing was
held on September 10, 2015. (Id.)

Administrative Law Judge (“ALJ”)

Edward L. Brady issued his Decision on October 20, 2015, concluding
that Plaintiff had not been under a disability from the alleged
onset date of December 5, 2013, through the date of the decision.
(R. 30.)

Plaintiff requested review of the ALJ’s decision which

the Appeals Council denied on February 6, 2017.

(R. 1-6, 7-13.)

In doing so, the ALJ’s decision became the decision of the Acting
Commissioner.

(R. 1.)

Plaintiff filed this action on May 12, 2017.

(Doc. 1.)

She

asserts in her supporting brief that the ALJ erred on the following
grounds: 1) he failed to give the opinions of Dr. Gerstman and
Nicholas Telincho the appropriate weight; 2) he failed to give
proper consideration to Plaintiff’s testimony concerning her severe
impairments; 3) and he failed to give proper consideration to
Plaintiff’s limitations related to COPD in his residual functional
capacity (“RFC”) assessment.

(Doc. 11 at 3.)

After careful review

of the record and the parties’ filings, the Court concludes this
appeal is properly granted.
I. Background
Plaintiff was born on May 30, 1963, and was fifty years old on
the alleged disability onset date.

(R. 29.)

She has a high school

education and past relevant work as a cashier/stock person.

(Id.)

A. Medical Evidence1
From January 1, 2012, through January 22, 2014, Plaintiff had
thirteen encounters with Alley Medical Center for a variety of
medical problems.

(R. 310.)

Relevant to the time period at issue

here and the impairments alleged, Plaintiff was seen by Blair
Stepp, PA-C, on October 15, 2013.

(R. 316-18.)

Plaintiff had

previously been diagnosed with COPD (see, e.g., R. 320) and
complained that her wheezing had recently become worse, she was

1

The Court’s review focuses on evidence relied upon by the
parties and the ALJ.
2

experiencing chest tightness (especially when lying down), and she
was using her inhaler frequently.

(R. 316.)

Plaintiff said the

symptoms occurred intermittently and were relieved by sitting up
and using her inhaler.

(Id.)

Physical examination showed that

Plaintiff presented as alert, she was not anxious, depressed, in
acute distress or lethargic; her pharynx was congested; and she had
clear breath sounds with an expiratory wheeze in both lung fields.
(R. 316-17.)

Neurologically Plaintiff was oriented times three,

she had no impairment of recent or remote memory, she was able to
name objects and repeat phrases, she had an appropriate fund of
knowledge, and normal sensation and coordination.

(R. 313.)

Neuropsychiatric exam showed that Plaintiff had
appropriate mood and affect, able to
articulate well with normal speech/language,
rate, volume and coherence, thought content
normal with ability to perform basic
computations and apply abstract reasoning,
associations are intact, no evidence of
hallucinations, delusions, obsessions or
homicidal/suicidal ideation, demonstrates
appropriate judgment and insight, displays
ability to recall recent and remote events
and fund of knowledge is intact and attention
span and ability to concentrate are normal.
(Id.)

“Assessment & Plan” indicates that Plaintiff qualified for

nocturnal oxygen; notes regarding the COPD exacerbations set out
medication alterations and state that Plaintiff had a cat allergy
as well as three cats which could possibly have triggered the
exacerbation and smoking cessation was strongly encouraged.
317.)

(R.

Records of the office visit were signed by PA Stepp as well
3

as the reviewing physician, Albert J. Alley, D.O.

(R. 318.)

Plaintiff had chest x-rays on October 16, 2013, ordered by Dr.
Alley and indicated by COPD.

(R. 501.)

The studies showed mild

chronic lung disease, minimal streak-free atelectasis/fibrosis in
the left base with priminent fat pad.

(Id.)

Plaintiff regularly saw Nicolas Telincho, LCSW, for at least a
year before her alleged onset date of December 5, 2013.
423-487.)

(See R.

On November 13, 2017, Plaintiff’s mood was anxious and

irritable, her affect was appropriate, she was oriented to place
and time, and she did not have suicidal or homicidal thoughts.
461.)

(R.

Notes indicate Plaintiff discussed situations with her

friend and family, she was trying to quit smoking and understood
the seriousness of quitting because of COPD.

(Id.)

Mental Status Exam was the same on December 9th, 11th, and 18th
as well as January 22, 2014.

(R. 262-65.)

On January 10, 2014, Plaintiff again saw PA Stepp and
complained of shortness of breath, a bad cough, chest tightness,
fever, runny nose, and nasal congestion which started three days
earlier.

(R. 311, 312.)

Physical examination showed that

Plaintiff presented as alert, she was not anxious, depressed, in
acute distress or lethargic; her pharynx was congested; and she had
clear breath sounds with an expiratory wheeze in both lung fields.
(R. 312.)

Neurological and neuropsychiatric exam findings were the

same as in October 2013.

(R. 313, 317.)

4

PA Stepp noted

medications were adjusted, x-rays were ordered, and Plaintiff was
to make an appointment with pulmonology.

(R. 313.)

Plaintiff

called on January 10th stating that her condition had not improved
so an antibiotic was started.

(Id.)

CRNP Ruby Weller of the Geisinger Health System Thoracic
Medicine Outpatient Clinic saw Plaintiff on February 3, 2014, for a
follow up on her asthma.

(R. 494-500.)

She had last seen

Plaintiff on April 30, 2013, at which time Plaintiff had shortness
of breath, was attempting to quit smoking, and resumed Advair.
495.)

(R.

By history, Plaintiff said she had not done well since her

last visit and had difficulties off and on with problems including
shortness of breath after walking half a block, difficulty with
inclines or stairs, and shortness of breath with showering and
dressing.

(Id.)

Plaintiff said she had needed prednisone and an

antibiotic three times since her last visit and all three had been
since November.

(Id.)

Plaintiff’s reported respiratory symptoms

included cough at night for weeks, brown sputum, wheezing most of
the time, and sinus congestion.

(Id.)

Regarding triggers, she

said the cats were no longer in the bedroom, she did not regularly
vacuum, and she did not use mite covers.

(Id.)

Plaintiff also

said that her cough awakened her at night, her chest felt heavy
when she was lying down, she used oxygen at night and occasionally
during the day, and she smoked about one-half pack a day.

(Id.)

Physical examination included the following findings: general

5

appearance alert; respirations even and unlabored diminished to
auscultation with expirational wheezes in the right upper lobe
posteriorly and loose sounding cough; normal extremities; and alert
and oriented times three with fluent speech, no focal motor/sensory
deficits and normal gait.

(R. 499.)

CRNP Weller noted that

Plaintiff’s January 2014 chest x-ray showed mild chronic lung
disease with slight streak like atelectasis versus fibrosis left
base.

(Id.)

CRNP Weller also noted that the spirometry done in

August 2012 was normal with mildly reduced diffusion capacity and
no significant change from the October 2011 spirometry.

(Id.)

CRNP Weller assessed mild smoking-related COPD, chronic bronchitis,
tobacco use, possible asthma, and deconditioned.

(R. 498.)

Plaintiff’s medication regimen was adjusted and she was directed to
follow up in one month.

(Id.)

Robert Gerstman, D.O., began treating Plaintiff for
psychiatric medication management on March 26, 2014.

(R. 516.)

Dr. Gerstman noted that Plaintiff had previously been seen by Dr.
Pope.

(Id.)

He also noted that Plaintiff subjectively reported

that her medications had been working well, she had no significant
issues at the time, and she was seeing Nick Tellincho for therapy.
(Id.)

He found that Plaintiff’s appearance and behavior were

within normal limits, her speech had normal pitch and volume, her
mood was euthymic, her affect was mood-congruent, her thought
process was goal directed, she was not suicidal or homicidal, she

6

did not have delusions or obsessions, she was alert with grossly
intact cognition, and she had fair insight and judgment.
His assessment was atypical mood disorder.

(Id.)

(Id.)

Plaintiff presented to PA Stepp on April 4, 2014, with COPD
and requested completion of temporary disability forms.

(R. 505.)

Plaintiff explained that she would soon have a meeting regarding
disability and she felt she could not work until then.

(Id.)

PA

Stepp noted that Plaintiff had gotten temporary disability multiple
times from the clinic.

(Id.)

PA Stepp also noted that she filled

out the forms for three months of disability and explained to
Plaintiff that it would be better to have the forms filled out by
psychiatry or thoracic medicine.

(R. 504.)

Plaintiff stated that

she could not exert herself without breathing problems and
sometimes had shortness of breath at rest, she used oxygen at night
and sometimes during the day, and she had quit smoking six weeks
earlier.

(R. 505.)

Plaintiff said she was also disabled due to

bipolar disorder and schizophrenia.

(Id.)

She admitted to

suicidal ideation and cutting but stated that this was well
controlled and had not occurred for four months.

(Id.)

Physical

examination showed that generally Plaintiff was alert, not anxious
or depressed, and not in acute distress; chest and lung exam showed
decreased breath sounds in both lung fields and prolonged
expiration and expiratory wheeze in both lung fields; neurologic
examination indicated that Plaintiff was alert and oriented times

7

three with no impairment of recent or remote memory, normal
attention span and ability to concentrate, able to name objects and
repeat phrases, with an appropriate fund of knowledge, normal
sensation, and normal coordination.

(R. 504.)

At her May 8, 2014, visit with Dr. Gerstman, Plaintiff
reported she had been off Xanax for one week.

(R. 517.)

Dr.

Gerstman attributed an episode of self-cutting to being off the
medication.

(Id.)

Mental Status Examination showed that

Plaintiff’s appearance and behavior were within normal limits, her
speech had normal pitch and volume, her mood was dysthymic and
anxious, her affect was mood-congruent, her thought process was
goal directed, she was not suicidal or homicidal, she did not have
delusions or obsessions, she was alert with grossly intact
cognition, and she had fair insight and judgment.
Gerstman again assessed atypical mood disorder.

(Id.)
(Id.)

Dr.
He planned

to try Klonopin and continue with Abilify, Celexa and Ambien.
(Id.)
On May 15, 2014, Dr. Gerstman resumed Xanax after Plaintiff
was told at an emergency room visit that she was experiencing Xanax
withdrawal and she stated that she wanted to get her anxiety under
control.

(R. 518.)

He found that Plaintiff’s appearance and

behavior were within normal limits, her speech had normal pitch and
volume, her mood was euthymic, anxious and irritable, her affect
was mood-congruent, her thought process was goal directed, she was

8

not suicidal or homicidal, she did not have delusions or
obsessions, she was alert with grossly intact cognition, and she
had fair insight and judgment.
mood disorder.

(Id.)

(Id.)

His assessment was atypical

Dr. Gerstman assessed atypical mood disorder

and recent Xanax withdrawal.

(Id.)

On January 28, 2015, Dr. Gerstman noted that Plaintiff
reported her medications were working as well as they could.
523.)

(R.

He found that Plaintiff’s appearance and behavior were

within normal limits, her speech had normal pitch and volume, her
mood was euthymic, her affect was mood-congruent, her thought
process was goal directed, she was not suicidal or homicidal, she
did not have delusions or obsessions, she was alert with grossly
intact cognition, and she had fair insight and judgment.

(Id.)

His assessment was bipolar disorder and he planned to continue with
the medication regimen in place.

(Id.)

Plaintiff had a COPD exacerbation on May 13, 2015, for which
she was treated in the emergency room and discharged to home.

(R.

591-95.)
On May 26, 2015, Plaintiff again reported to Dr. Gerstman that
medications were working as well as they could.

(R. 522.)

She

also reported that she felt safer in her own house and did not feel
safe outside the house.

(Id.)

He found that Plaintiff’s

appearance and behavior were within normal limits, her speech had
normal pitch and volume, her mood was anxious and irritable, her

9

affect was flat, her thought process was concrete, she was not
suicidal or homicidal, she did not have delusions or obsessions,
she was alert with grossly intact cognition, and she had fair
insight and judgment.
medication regimen.

(Id.)

Dr. Gerstman adjusted Plaintiff’s

(Id.)

On May 30, 2015, CRNP Weller saw Plaintiff for follow up of
COPD.

(R. 530.)

Plaintiff reported that, since her October 2014

visit, she had three flares of COPD which were treated with
steroids and two also were treated with antibiotics.

(Id.)

Plaintiff complained of feeling that she was unable to inhale
sufficiently and that she was suffocating at times, mostly when she
was lying down.

(Id.)

She also complained of shortness of breath

when she walked up stairs but if she walked slowly she did not
experience shortness of breath.

(Id.)

Physical examination showed

that respirations were even and unlabored, she had anterior upper
lobe and tracheal wheezing, and posterior breath sounds were
decreased but clear.

(R. 531.)

Plaintiff’s neurological and

psychiatric exams were normal with normal mood and affect
specifically noted.

(R. 532.)

CRNP Weller assessed mild smoking-

related COPD, chronic bronchitis, tobacco use, possible asthma,
deconditioned, obesity, and CT scan with mild GGOs noted
bilaterally - waxing and waning - suspect RB-ILD.

(R. 532.)

Plaintiff was seen by CRNP Weller for COPD follow-up on June
22, 2015, at which time she reported that she had been doing fairly

10

well since her previous visit.

(R. 569.)

symptoms similar to those noted in May.

Plaintiff described
(Id.)

On examination,

CRNP Weller found that Plaintiff’s respirations were even and
unlabored and clear to ascultation bilaterally.

(R. 571.)

B. Opinion Evidence
1.

Treating Provider Opinions
On April 4, 2014, PA Stepp completed a form indicating that

Plaintiff was temporarily disabled for less than twelve months–-the
disability to begin on May 1, 2014, and expected to last until
August 1, 2014.

(R. 497.)

COPD/emphysema were identified as the

primary diagnosis and anxiety/depression were secondary.

(Id.)

On May 9, 2014, Mr. Telincho sent a letter to Plaintiff’s
attorney stating that he had treated Plaintiff for a prolonged
period and she had made progress in dealing with her mental health
condition but not enough to allow her to become gainfully employed.
He noted that she was diagnosed with bipolar disorder, she was
extremely uncomfortable around other people whom she feels observe
and judge her in a negative fashion, and, she turned her
anxiety/frustrations inward and self-mutilated when she was
excessively stressed.

(R. 514.)

On July 3, 2014, Dr. Gerstman completed a form indicating that
Plaintiff was temporarily disabled for twelve months or more–-the
disability began on August 31, 2012, and was expected to last until
December 31, 2015.

(R. 490.)

Bipolar disorder was the primary
11

diagnosis which was based on physical examination, review of
medical records, clinical history, and appropriate tests and
diagnostic procedures.

(Id.)

His Mental Status Examination on the

same day was similar to previous evaluations but Plaintiff’s mood
was stressed.

(R. 519.)

Dr. Gerstman noted that Plaintiff’s

insurance refused to pay for Abilify even though she had been on it
for three years and the medication had stabilized her.
assessed bipolar disorder.

(Id.)

He

(Id.)

Dr. Gerstman completed a Medical Source Statement of Ability
to Do Work-Related Activities (Mental) in which he opined that
Plaintiff’s bipolar disorder caused marked limitations in the six
subcategories identified in the ability to understand, remember,
and carry out instructions, and the four subcategories identified
in the ability to interact appropriately with the supervisors, coworkers, and the public, and respond to changes in the routine work
setting.

(R. 602-03.)

Mr. Telincho completed a Medical Source Statement of Ability
to Do Work-Related Activities (Mental) in which he made the same
assessments as Dr. Gerstman.

(R. 605-06.)

In addition to

identifying bipolar disorder as the supporting factor for some
limitations, Mr. Telincho indicated that his assessments were based
on years of treatment for mental health issues.
2.

(Id.)

State Agency Opinions
On February 26, 2014, James Vizza, Psy.D., completed a

12

Psychiatric Review Technique (“PRT”) and opined that Plaintiff’s
anxiety disorders and affective disorders caused moderate
restrictions of activities of daily living, moderate difficulties
in maintaining social functioning, moderate difficulties in
maintaining concentration, persistence, or pace, and no repeated
episodes of decompensation, each of extended duration.
135.)

(R. 124,

Dr. Vizza also opined that Plaintiff was able to meet the

basic mental demands of competitive work on a sustained basis
despite the limitations resulting from her impairment.

(R. 140.)

On March 3, 2014, Kurt Maas, M.D., opined that Plaintiff was
capable of performing unskilled work at the medium exertional
level.

(R. 130, 141.)

He noted that Plaintiff’s statements were

partially credible based on the evidence of record, including her
participation in daily activities such as caring for personal needs
and performing routine household activities.

(R. 138.)

C. Hearing Testimony
Plaintiff was represented by an attorney and testified at a
hearing held on September 10, 2015.

(R. 55-94.)

Regarding physical issues, Plaintiff said COPD had been an
issue six or seven times in the preceding year and she had to be
hospitalized once for it.

(R. 64-65.)

Plaintiff indicated her

breathing difficulties were exacerbated by heat, cold weather, and
people sneezing on her.

(R. 65.)

When asked if activities

bothered her breathing, she responded that she did not do

13

activities.

(Id.)

Regarding mental health, Plaintiff said she saw Mr. Telincho
once a week for about thirty minutes and Dr. Gerstman every three
months.

(R. 66.)

Plaintiff testified that the medications had

been helpful but not totally, adding “I’m not so quick to jump with
the knife because I see Nick, but I have my anger moments that I’m
ready to do it.

It’s touch and go.”

(Id.)

She identified

triggers for her anxiety and stress to include being yelled at in
the work setting.

(R. 67.)

Plaintiff said she had difficulty with focus and
concentration, citing difficulty understanding what she read and
forgetting what people were talking about as examples.

(R. 67.)

She could not identify any triggers for these problems, stating “I
just space out.”

(R. 76-68.)

Plaintiff said she had resided with her boyfriend Rob Vargo
for fourteen years and he did all the household chores, paid bills,
and cooked.

(R. 64, 68-69.)

because of breathing issues.

Plaintiff said she did not do chores
(R. 69.)

She also said she had no

hobbies and did not do anything for fun.

(Id.)

When asked about cutting herself, Plaintiff said the last
episode had been about four months earlier and it was precipitated
by an argument with Rob.
thoughts of suicide.

(R. 70-71.)

(R. 71.)

Plaintiff also said she had

She verified that she had cuts up

and down her arms and legs and she tried to hide the arm scars with

14

a tattoo.

(R. 72.)

She testified that Mr. Vargo had removed all

knives except a butter knife from the house so she would not be
tempted to cut herself.

(Id.)

Plaintiff noted that she cut

herself at home when she got angry at work and she got angry very
quickly.

(R. 72, 74.)

She confirmed that she got angry with

customers when she worked at Big Lots if they got angry with her
and she had been disciplined many times at work, estimating about
twenty times in the ten years she worked there.

(R. 73-74.)

She

also said she cut herself about fifty times during that period and
Mr. Vargo had called the police at least six times because of it.
(R. 74.)
Mr. Vargo also testified at the hearing and stated that her
health had been going downhill during the time they were together.
(R. 83.)

He confirmed Plaintiff’s testimony about cutting and that

he needed to call the police on numerous occasions.

(R. 84-85.)

Mr. Vargo described Plaintiff’s moods as “up and down. A lot of
times just like a subdued depression like, just like in her own
little world type deal.”

(R. 85.)

He also said Plaintiff did not

get out of her pajamas many days and verified that he does all of
the cooking, household chores, and shopping.
D.

(R. 86.)

ALJ Decision
With his October 20, 2015, Decision, ALJ Brady determined that

Plaintiff had the severe impairments of borderline personality
disorder, depression, anxiety, chronic obstructive pulmonary

15

disease (“COPD”), nocturnal hypoxemia, tobacco use disorder, and
hypertension.

(R. 20.)

He concluded Plaintiff did not have an

impairment or combination of impairments that met or equaled a
listing.

(R. 21.)

The ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to perform light work
except she must avoid concentrated exposure to extremes
of temperatures, humidity, fumes, odors, dusts, and
gases. The claimant is limited to jobs which are
simple, routine, and repetitive generally described as
unskilled. She can have no interaction with the public
and occasional contact with co-workers and supervisors.
The claimant is limited to low stress work described as
no production rate/pace requirement.
(R. 22.)

In explaining the RFC, ALJ Brady gave little weight to

the opinions of Dr. Gerstman and Mr. Telincho, stating that “these
opinions are not supported by the evidence. The claimant has [sic]
generally noted to have a relatively normal mental status
examination and she did not require inpatient hospitalization.”
(R. 28.)

The ALJ gave little weight to the opinion that Plaintiff

was disabled for three months, attributing the opinion to Dr. Alley
rather than PA Stepp.

(See R. 28, 497, 504-05.)

Finally, the ALJ

gave little weight to Dr. Maas’s opinion that Plaintiff was capable
of medium exertional work, noting that “it would be fair to limit
her to light duty work” because of her COPD.

(R. 29.)

With the RFC set out above, ALJ Brady concluded that Plaintiff
was unable to perform past relevant work but jobs existed in
significant numbers in the national economy that she could perform.
16

(R. 29-30.)

He therefore found that Plaintiff had not been under a

disability as defined in the Social Security Act, since December 5,
2013.

(R. 30.)

Other relevant portions of the ALJ’s Decision will be
referenced in the Discussion section of this Memorandum.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2

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

2

“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 than 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).
17

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).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

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 step
five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs that existed in significant numbers in
the national economy.

(R. 29-30.)
III. Standard of Review

This Court’s review of the Commissioner’s final decision is

18

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
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.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
19

decision.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d

Cir. 2000) (citations omitted).

If he 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
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.

See, e.g., Knepp v.

Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
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 . . .”).
20

“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 a claimed error

would not affect the outcome of a case, remand is not required.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).

Finally,

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

Plaintiff asserts that the ALJ erred on the following grounds:
1) he failed to give the opinions of Dr. Gerstman and Nicholas
Telincho the appropriate weight; 2) he failed to give proper
consideration to Plaintiff’s testimony concerning her severe
impairments; 3) and he failed to give proper consideration to
Plaintiff’s limitations related to COPD in his residual functional
capacity (“RFC”) assessment.
A.

(Doc. 11 at 3.)

Treating Provider Opinions
Plaintiff first asserts that opinions of Dr. Gerstman and Mr.

Telincho should have been given controlling weight.
5.)

(Doc. 11 at

Defendant responds that substantial evidence supports the

ALJ’s conclusion that the opinions were entitled to little weight.
The Court concludes the ALJ’s extremely limited explanation for his
21

conclusions is cause for remand.
Under applicable regulations and the law of the Third Circuit,
a treating medical source’s opinions are generally entitled to
controlling weight, or at least substantial weight.3

See, e.g.,

Fargnoli v. Halter, 247 F.3d 34, 43 (3d Cir. 2001) (citing 20
C.F.R. § 404.1527(c)(2); Cotter v. Harris, 642 F.2d 700, 704 (3d
Cir. 1981)).

Sometimes called the “treating physician rule,” the

principle is codified at 20 C.F.R. 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 source’s
opinion: “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

3

The Social Security Agency has moved away from the treating
source rule although the new regulations only affect claims filed
after March 27, 2017. See 20 C.F.R. § 404.1527. For claims filed
after March 27, 2017, the regulations have eliminated the treating
source rule. See 20 C.F.R. § 404.1527c. Recognizing that courts
reviewing claims have “focused more on whether we sufficiently
articulated the weight we gave treating source opinions, rather
than on whether substantial evidence supports our decision,” the
Agency further stated that in its experience in adjudicating claims
using the treating source rule since 1991, the two most important
factors for determining persuasiveness are consistency and
supportability, which is the foundation of the new regulations. 82
FR 5844-01, 2017 WL 168819, *at 5853 (Jan. 18, 2017). Therefore,
the new regulations contain no automatic hierarchy for treating
sources, examining sources, or reviewing sources, but instead,
focus on the analysis of these factors. See 20 C.F.R. 404.1527c.

22

diagnostic techniques and is not inconsistent with the other
substantial evidence in your case, we will give it controlling
weight.”

20 C.F.R. §§ 404.1527(c)(2), 417.927(c)(2).4

“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.”
4

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) state in relevant

part:
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.
23

(citations omitted); see also Brownawell v. Commissioner of Social
Security, 554 F.3d 352, 355 (3d Cir. 2008).

In choosing to reject

the treating physician’s assessment, an ALJ may not make
“speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.”

Morales, 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)).
As set out above, it is the ALJ’s duty not only to state the
evidence considered which supports the result but also to indicate
what evidence was rejected and, if he does not do so, the reviewing
court cannot determine whether the reasons for rejection were
improper.

See Cotter, 642 F.2d at 706-07.

A thorough explanation

of the evidence relied upon by the ALJ in discounting a medical
source opinion takes on added significance in a case involving a
severe mental impairment in that the Third Circuit has advised that
“[t]he principle that an ALJ should not substitute his lay opinion
for the medical opinion of experts is especially profound in a case
involving mental disability.”

Morales, 225 F.3d at 319.

In the

case of mental health impairments, it is recognized that a medical
source’s opinion which relies on subjective complaints should not
necessarily be undermined because psychological and psychiatric
conditions are necessarily and largely diagnosed on the basis of a
24

patient’s subjective complaints.

Hall v. Astrue, 882 F. Supp. 2d

732, 740 (D. Del. 2012) (citing Morris v. Barnhart, 78 F. App’x
820, 825 (3d Cir. 2003)).

Importantly, for a claimant like

Plaintiff who has a mental impairment like “an affective or
personality disorder marked by anxiety, the work environment is
completely different from home or a mental health clinic.”
Morales, 225 F.3d at 319 (The treating physician’s “opinion that
[the claimant’s] ability is seriously impaired or nonexistent in
every area related to work shall not be supplanted by an inference
gleaned from treatment records reporting on the claimant in an
environment absent of the stresses that accompany the work
setting.”)
Here ALJ Brady rejected the mental health providers’ opinions
with essentially no explanation.

His conclusory statement that the

opinions “are not supported by the evidence” is meaningless
standing alone.

(See R. 28.)

Following this conclusion, the ALJ

states that Plaintiff “has generally noted to have a relatively
normal mental status examination and she did not require inpatient
hospitalization.”

(Id.)

If intended to indicate evidence

contradicting the treating providers’ opinions, the ALJ’s reliance
on “generally . . . relatively normal mental status examinations”
is misplaced.

First, Mr. Telincho routinely assessed Plaintiff to

have a anxious and irritable mood.

(See, e.g., R. 462, 465.)

Dr. Gerstman at times assessed Plaintiff’s mood to be dysthymic,

25

anxious, and/or irritable with a mood-congruent affect.
518, 522.)

(R. 517,

The ALJ’s characterization of these recorded

presentations as “relatively normal” appears to be lay
interpretation which is particularly problematic in this mental
health context.

See Morales, 225 F.3d at 319.

Second, Mr.

Telincho provided an explanation of the effects of Plaintiff’s
mental impairment in narrative form, stating
[a]lthough Ms. Devine has made progress in
dealing with her mental health condition, it
is not sufficient to allow her to become
gainfully employed. She is diagnosed with a
bipolar disorder. She is extremely
uncomfortable around other people whom she
feels observe and judge her in a negative
fashion. When excessively stressed she turns
her anxiety/frustration inward and selfmutilates.
(R. 514.)

ALJ Brady reviewed the document in his evidence summary

(see R. 24), but he did not discuss it in conjunction with opinion
evidence and did not explain why he rejected this probative
evidence.

See Cotter, 642 F.2d at 706-07.

Further, the narrative

explanation provided by Mr. Telincho, Plaintiff’s testimony, and
that of Mr. Varga indicate that Plaintiff’s general mental health
problems are exasperated in certain situations outside the clinical
setting.

(See, e.g., R. 66, 67, 70-71, 84-85, 514.)

Thus,

Morales’ admonition that a treating source’s “opinion that [the
claimant’s] ability is seriously impaired or nonexistent in every
area related to work shall not be supplanted by an inference
gleaned from treatment records reporting on the claimant in an
26

environment absent of the stresses that accompany the work
setting,” 225 F.3d at 319, is pertinent here.
Similarly, if the ALJ’s statement that Plaintiff “did not
require inpatient hospitalization” (R. 28) is intended to indicate
evidence contradicting the treating providers’ opinions, the lay
interpretation prohibition comes into play in that no medical
evidence or opinion suggests that inpatient hospitalization is a
required indicator in finding marked limitations caused by a mental
health impairment.
Defendant’s arguments supporting the assessments (Doc. 12 at
13) are unavailing.

Her argument that the opinions conflicted with

the evidence of record (id. at 13) is deficient for the reasons
discussed above.

Although Defendant provides examples of alleged

conflicts (id. at 13-14), the evidence cited is not necessarily
contradictory to the treating providers’ opinions about Plaintiff’s
functioning in the work setting.

Moreover, evidence now cited by

Defendant in support of the opinion assessments cannot be
considered because this Court can only review the Decision based on
the ALJ’s rationale and findings.5 SEC v. Chenery, 318 U.S. 80, 87
(1943); Fargnoli, 247 F.3d at 44 n.7; Sykes v. Apfel, 228 F.3d 259,

5

Interestingly, Defendant cites the findings of PA Stepp as
contradictory (Doc. 12 at 14), but PA Stepp indicated in April 2014
office notes that she told Plaintiff it would be better to have
psychiatry or thoracic medicine fill out the forms (R. 504). This
deference to specialists is consistent with the regulations
addressing the consideration of opinion evidence. See 20 C.F.R. §§
404.1527, 416.927.
Further, Defendant’s assertion of a conflict with Dr. Vizza’s
opinion (Doc. 12 at 16) is noteworthy in that ALJ Brady did not
review or assess the opinion in his RFC discussion. (See R. 2330.)
27

271 (3d Cir. 2000).
For all of these reasons, the Court cannot conclude that the
weight assigned the opinions of Dr. Gerstman and Mr. Telincho is
supported by substantial evidence.

Therefore, remand is required

for proper consideration of these opinions.

This may be a case

where proper evaluation of the opinions requires further
development of the record in that the limitations assessed by the
mental health providers, and the symptom exacerbation specifically
addressed by Mr. Telincho (R. 514) and explained by Plaintiff and
Mr. Vargo at the September 2015 hearing may not be inconsistent
with the mental status findings of record from the perspective of a
professional assessing the specific nature of Plaintiff’s mental
health impairments.
B. Credibility
Plaintiff next asserts the ALJ did not properly consider her
testimony.

(Doc. 11 at 9.)

Defendant contends the ALJ properly

considered Plaintiff’s testimony regarding her subjective
complaints in that an ALJ cannot find a claimant disabled based
solely on her subjective complaints.
C.F.R. §§ 404.1528, 416.1529).)

(Doc. 12 at 18 (citing 20

Because remand is required for the

reasons discussed above, and because the consideration of
subjective complaints in the mental health context has added
signficiance, see Hall, 882 F. Supp. 2d at 740 (citing Morris, 78
F. App’x at 825), remand for further consideration of the opinions

28

regarding limitations related to Plaintiff’s mental health
impairment should encompass Plaintiff’s testimony about her
symptoms and Mr. Vargo’s testimony, particularly in that Plaintiff,
Mr. Vargo, and her mental health providers acknowledge the episodic
nature of her more severe symptoms (see, e.g., R. 66-67, 84-85,
514, 517).
C.

COPD Limitations
Plaintiff’s final claimed error is that the ALJ did not

properly consider the limitations related to COPD.

(Doc. 11 at

10.)
Insofar as

the case must be remanded for the reasons

discussed above and ALJ Brady did not address Plaintiff’s testimony
about her walking and activity limitations related to COPD (see R.
28), further evaluation of Plaintiff’s subjective COPD symptoms is
warranted.
V. Conclusion
For the reasons discussed above, Plaintiff’s appeal is
properly granted and this matter is remanded to the Acting
Commissioner for further consideration.

An appropriate Order is

filed simultaneously with this Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: November 13, 2017

29