Valentin v. Berryhill

Filing 18

MEMORANDUM (Order to follow as separate docket entry)Thus, based upon a lack of substantial evidence to support the ALJs conclusion that Plaintiff can perform substantial gainful activity despite his acknowledged severe psychological impairments, thi s case will be remanded to the Commissioner. The Commission is directed to expand the record to include the report of a consulting/examining psychiatrist and to then reexamine this case in light of said report. An Order consistent with this determination will be filed contemporaneously.Signed by Honorable Richard P. Conaboy on 10/9/18. (cc)

sUNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Miguel Valentin, Jr.,
Plaintiff,
v.

No. 1:18-cv-0005
(Judge Richard P. Conaboy)

Nancy A. Berryhill,
Acting Commissioner of
Social Security,
Defendant.

MEMORANDUM
I.

Procedural Background.

We consider here the appeal of Plaintiff Miguel Valentin,
Jr. from a decision of the Social Security Administration (“SSA”
or “Agency”) that denied his application for Disability
Insurance Benefits (“DIB”). Plaintiff’s application was
initially denied at the administrative level on October 24, 2014
whereupon he filed a request for a hearing before an
Administrative Law Judge (“ALJ”). Plaintiff received a hearing
before an ALJ on August 25, 2016. That hearing resulted in a
written decision dated October 25, 2016 that was unfavorable to
Plaintiff. Plaintiff then filed a request for review with the
Appeals Council but that body denied his request. The Appeals
Council’s denial constitutes a final decision by the SSA and

vests this Court with jurisdiction over

Plaintiff’s appeal

pursuant to 42 U.S.C. § 405g.
II.

Testimony before the ALJ.

A hearing was conducted before ALJ Randy Riley on August
25, 2016, in Harrisburg, Pennsylvania. Present at the hearing
were Plaintiff, his attorney, and Paul Anderson, a vocational
expert. The testimony may be summarized as follows.
Plaintiff was forty-nine years of age on the date of the
hearing. He is married and lives in an apartment with his wife.
He completed the eleventh grade and has not obtained a GED. He
can read and write in English but has no military training or
vocational training. (R. at 37-38).
Since he has been unemployed he has been supported by his
wife who works in their home as a baby sitter. He can dress
himself and shower without assistance but he does not cook, do
dishes, laundry, vacuum, or take out the trash. He spends most
of the day on the couch because he is on medications that make
him drowsy. He takes numerous small naps during the day. He and
his wife watch television together when her work is completed.
(R. 38-39).
Plaintiff has a driver’s license but barely drives. Rather,
he depends upon his children to transport him. He cannot bend
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over to touch his toes and requires his wife’s help to put on
his shoes and socks. He only climbs the stairs when necessary to
get to his second floor apartment and cannot climb a ladder. He
does not use illegal drugs. He drinks alcohol but does not
believe that he has a problem with alcohol. He smokes
approximately one pack of cigarettes each day. He takes his
medications as prescribed and believes they are helping
“somewhat”. He suffers from anxiety and thinks the medication
may be contributing to his dizziness and fatigue. (R. 39-42).
Plaintiff explained that the combination of the side
effects of his medications and his inability to sit or stand for
long periods of time make it impossible for him to work. He
stated that he stays home seven days each week if he does not
have an appointment of some sort. He stays home due to dizziness
and anxiety. He dozes off for ten to fifteen minutes each day
approximately nine to ten times. He is blind in his right eye
and has only blurry vision in his left eye. This blurry vision
in his left eye is sporadic. It happens three to four times each
day despite his use of corrective lenses. He has extreme anxiety
and experiences three to four panic attacks each day that last
from fifteen to twenty minutes. His anxiety is exacerbated when
he is alone. Two of the causes of his anxiety are his medical
issues and the fact that he and his wife have lost their house.

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At night he gets only two to three hours of sleep despite the
fact that he takes Trazodone as a sleep aid. He also experiences
difficulty with memory and concentration. (R. 42-49).
He was last employed by Home Depot. He was terminated from
that job because he was missing a lot of time due to his medical
issues with his feet. Home Depot approved his receipt of
Unemployment Compensation Benefits but Plaintiff has lost his
home due to his inability to make payments. He has been
prescribed special shoes to alleviate his foot pain but he has
no insurance and cannot afford them. He wears running shoes
because they provide extra cushioning. Another reason that he
seldom leaves his home is his fear of sun exposure. He has had
skin cancer and has been advised by doctors to avoid sun
exposure. Plaintiff sees a therapist weekly and a psychologist
monthly. He has lost interest in things that normally interested
him such as fishing and watching baseball with his boys. He is
frustrated by his inability to help out around the house and
argues with his wife about little things. (R. 49-53).
Paul Anderson also testified. Mr. Anderson is a vocational
expert (“VE”). He testified that he is familiar with the SSA’s
definitions of the various types and exertional levels of work
and that he is versed in the content of Dictionary of
Occupational Titles. The VE also stated that he had reviewed

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Plaintiff’s occupational history. He identified two jobs
Plaintiff had held: (1)janitorial employment with the Harrisburg
Hotel Corporation, a medium/unskilled job; and (2) customer
service clerk at a Home Depot, a heavy/unskilled job. (R. 5356).
The ALJ phrased a hypothetical question to Mr. Anderson in
which he was asked to assume a person of the Plaintiff’s age,
education, and work experience with limitations including:
inability to use ladders; the need to avoid exposure to
unprotected heights and moving machinery; avoidance of
commercial driving; avoidance of tasks requiring right
peripheral visual acuity; and the need to work that is limited
to simple, routine tasks with few workplace changes and no
interaction with the general public. Based on these assumptions,
the VE stated that such an individual could not do Plaintiff’s
past relevant work. The VE did determine, however, that the
hypothetical individual could do such light duty jobs as “potato
chip sorter” and “bakery worker, conveyer line” and could
perform sedentary work such as “nut sorter”.
The VE testified further that an additional limitation that
confined the hypothetical individual to only occasional “left
peripheral activity” would not limit his employability because
the jobs he had identified do not require “field of vision” for

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Department of Labor standards. The VE did note that missing one
and one-half days each month due to inability to obtain
transportation would not permit competitive employment. Also,
the VE stated that the need to take two unscheduled fifteen
minute breaks each day to deal with health issues would render
the hypothetical individual unemployable. (R. 56-59).
III. Medical Evidence.
a. Plaintiff’s Treating Physicians.

Dr. John P. Welch was Plaintiff’s primary care physician
for more than ten years during which he saw Plaintiff on more
than thirty occasions. (R. 407). During the course of this
treatment Dr. Welch consistently diagnosed Plaintiff as
suffering from bilateral visual problems, diabetes mellitus,
skin lesions, depression, and anxiety. (R. 281-468). Over the
course of their doctor/patient relationship, Dr. Welch referred
Plaintiff to specialists at the Milton S. Hershey Medical Center
where he underwent surgery to remove a cancerous lesion from his
nose and subsequent reconstructive surgery on his nasal region.
(R. 288-314). Dr. Welch also referred Plaintiff to ocular
specialists at the Milton S. Hershey Medical Center due to
glaucoma of the right eye and abnormal intraocular pressure in
both eyes. Ultimately, these specialists determined that

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Plaintiff was blind in the right eye and had seriously impaired
vision in his left eye.
Dr. Welch’s progress notes document Plaintiff’s anxiety and
depression on many occasions. Dr. Welch also noted on many
occasions that a major stressor for Plaintiff was the fact that
he had lost his employment and with it his ability to provide
for his family. Accordingly, Dr. Welch referred Plaintiff to
T.W. Ponessa and Associates Counseling Services in July of 2015
where he was counseled on at least twenty-three occasions under
the direction of Dr. Felicia De Jesus, a psychiatrist. Dr. De
Jesus initially diagnosed Plaintiff as suffering from major
depressive disorder and generalized anxiety disorder. Dr. De
Jesus subsequently saw Plaintiff on at least three other
occasions and Mitzie Rivera, a licensed counselor working under
Dr. De Jesus’ direction, saw Plaintiff on at least fourteen
other occasions. (R. 394-406).
On July 19, 2016, Ms. Rivera completed a Mental Residual
Functional Capacity Assessment regarding Plaintiff. (R. 471474). Ms. Rivera noted that Plaintiff had been treated weekly
for a period of one year and that his GAF scores had ranged from
thirty-two to forty over that time. Ms. Rivera indicated also
that Plaintiff had “marked” limitations in terms of his
abilities to: work in coordination with or proximity to others

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without being distracted by them; complete a normal workday and
workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an
unreasonable number of unscheduled rest periods; interact
appropriately with the general public; accept instructions and
respond appropriately to criticism from supervisors; get along
with coworkers or peers without distracting them or exhibiting
behavioral extremes; respond appropriately to changes in the
work settings; and tolerate normal levels of stress. Ms. Rivera
also noted that Plaintiff had “extreme” limitations in his
ability to travel in unfamiliar places or use public
transportation.1
On January 16, 2016, Dr. Welch completed a Physical
Residual Functional Capacity Questionnaire regarding Plaintiff.
(R. 407-412). Dr. Welch noted that Plaintiff had psychological
conditions that affect his physical condition including
depression and anxiety. Dr. Welch noted also that both
Plaintiff’s physical and emotional impairments were reasonably
consistent with the symptoms and functional limitations
identified in his evaluation. Dr. Welch assessed that
Plaintiff’s conditions would never be severe enough to interfere

1

In the context of the form Ms. Rivera completed, “marked” limitations indicate seriously
limited ability to function and “extreme” limitations indicate that the ability to function is precluded.

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with the attention and concentration needed to perform simple
work tasks. However, he indicated that Plaintiff was incapable
of tolerating even “low stress” jobs. Plaintiff’s impairments
were expected to produce good and bad days with the result that
he would likely miss more than four days of work in a month’s
time. Dr. Welch also concluded that Plaintiff would be off task
more than 15 per cent of an eight hour workday secondary to his
need to take numerous unscheduled breaks of three minutes
duration. Dr. Welch did not conclude that physical limitations
alone would preclude Plaintiff from gainful employment.
b. Dr. Spencer Long.

Dr. Long saw Plaintiff in his capacity as a consulting/
examining physician on referral from the Bureau of Disability
Determination. On the basis of his one examination of Plaintiff
conducted August 29, 2016, Dr. Long affirmed diagnoses of
diabetes, glaucoma, bilateral hip and knee pain, poor balance,
and hypertension. (R. 477-78). Dr. Long assigned Plaintiff a
prognosis of “fair”. Coincident with his physical examination of
Plaintiff, Dr. Long executed a Medical Source Statement of
Ability to Do Work-Related Activities (Physical). As the name of
this document implies, it sheds no light on Plaintiff’s
emotional impairments or their effect on his ability to work.
Dr. Long’s statement (R. 479-482) does generally support the

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proposition that Plaintiff is physically capable of performing
such substantial gainful activity as the ALJ identified in his
decision. (R. at 23).
IV.

ALJ Decision.

The ALJ’s decision (Doc. 9-2) was unfavorable to Plaintiff.
It included the following findings of fact and conclusions of
law:
1. The claimant meets the insured status
requirements of the Social Security Act through
December 31, 2018.
2. The claimant has not engaged in substantial
gainful activity since July 17, 2013, the
alleged onset date.
3. The claimant has the following severe
impairments: loss of vision in the right eye
secondary to glaucoma; depression; and anxiety.
4. The claimant does not have an impairment or
combination of impairments that meets or
medically equals the severity of one of the
listed impairments in 20 C.F.R Pt. 404, Sub
Part P, Appx. 1.
5. After careful consideration of the entire
record, the undersigned finds that the claimant
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has a residual functional capacity to perform a
full range of work at all exertional levels but
with the following non exertional limitations:
he can never climb ladders, ropes or scaffolds;
he must avoid exposure to hazards, unprotected
heights, and moving machinery with rapidly
moving parts; he can do no commercial driving;
he is limited to simple routine and repetitive
tasks involving simple work-related decisions
with few if any workplace changes and no
interaction with the public; and the claimant
can perform no work requiring right peripheral
acuity.
6. The claimant is unable to perform any past
relevant work.
7. The claimant was born on September 16, 1957 and
was forty-five years old, which is defined as a
younger individual age 18-49, on the alleged
disability onset date.
8. The claimant has a limited education and is
able to communicate in English.
9. Transferability of job skills is not material
to the determination of disability because
using the Medical-Vocational Rules as a

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framework supports a finding that the claimant
is “not disabled,” whether or not the claimant
has transferrable job skills.
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.
11. The claimant has not been under a disability,
as defined in the Social Security Act, from
July 17, 2013 through the date of this
decision.
V.

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

2

ADisability@ is defined as the Ainability 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).

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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).
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.
(Doc. 9-2 at 23).
VI.

Standard of Review.

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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).
Substantial evidence means Amore than a mere scintilla”.

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 evidenceB-particularly certain
types of evidence (e.g., that offered by
treating physicians)B-or if it really
constitutes not evidence but mere
conclusion. See Cotter, 642 F.2d at 706
(ASubstantial 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.

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710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary
to analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative
exhibits, Ato 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.@
606 F.2d 403, 406 (3d Cir. 1979).

Dobrowolsky v. Califano,

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: ASince 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.
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp

AThere is no

requirement that the ALJ discuss in her opinion every tidbit of
evidence included in the record.@
130, 133 (3d Cir. 2004).

Hur v. Barnhart, 94 F. App=x

A[W]here [a reviewing court] can

determine that there is substantial evidence supporting the

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Commissioner=s decision, . . .
implicated.@

the Cotter doctrine is not

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) (A[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be
conclusive . . .@). AHowever, 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 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) (A[O]ur primary concern has always been the ability to
conduct meaningful judicial review.@). Finally, an ALJ=s decision
can only be reviewed by a court based on the evidence that was

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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).
VII. 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.
Dobrowolsky, 606 F.2d at 406.

See

Social Security proceedings are

not strictly adversarial, but rather the Social Security
Administration provides an applicant with assistance to prove
his claim.

Id.

AThese 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 record and in explicitly
weighing all evidence.

Dobrowolsky, 606 F.2d at 406.

Further,

the court in Dobrowolsky noted Athe 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.@

Id.

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B. Plaintiff’s Allegations of Error.
Plaintiff advances seven allegations of error in the
Agency's decision that are to a significant extent repetitive.
These allegations coalesce into one core assignment of error.
That allegation questions whether the ALJ properly evaluated the
medical evidence regarding the degree of impairment caused by
his depressive disorder and generalized anxiety disorder—-both
conditions the ALJ accepted as “severe impairments”.3 Having
reviewed the entire record thoroughly, the Court finds that
substantial evidence does not support the ALJ’s decision with
respect to Plaintiff’s level of psychological/emotional
impairment. Thus, the Court is concerned that the ALJ’s RFC
determination may not adequately account for Plaintiff’s
psychological/emotional impairments.
The ALJ assigned only limited weight to Dr. Welch’s
assessment of Plaintiff’s psychological conditions. This
assessment included Dr. Welch’s findings: that Plaintiff was
incapable of performing even low stress jobs; that Plaintiff’s
psychological impairments affected his ability to concentrate;
and that Plaintiff would miss work more than four days each
month and be off task for than 15 per cent of the time even on

3

The Court finds unequivocally that the Medical Source Statements provided by Drs. Welch
and Long constitute the requisite substantial evidence to support the ALJ’s assessment of Plaintiff’s
physical capacities.

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the days he was at work. 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. See, e.g., Fargnoli v. Halter, 247 F3d 34,
43 (3d Cir. 2001) (citing 20 C.F.R. § 404.1527(c)(2); Cotter v.
Harris 642 F2d 700,704 (3d Cir. 1981). Sometimes called the
“treating physician rule,” the principle is codified for cases,
like the instant case, filed before March 27, 2017 at 20 C.F.R.
404.1527(c)(2). It is widely accepted in the Third Circuit.
Mason v. Shalala, 994 F2d 1058(3d Cir. 1993). The regulation
addresses the weight to be given to 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 well-supported
by medically acceptable clinical and laboratory 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). “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 F3d 310,317(3d Cir. 2000)(citations omitted); see
also Brownawell v. Commissioner of Social Security, 554 F3d
352,355 (3d Cir. 2008).

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Nevertheless, relevant authority makes clear that a
treating physicians’ opinion is not always or automatically
entitled to controlling weight. While the general principle that
an ALJ need not cite every piece of relevant evidence in the
record applies in the treating physician opinion context, the
ALJ must adequately explain the reasons for rejecting a treating
physician’s opinion. Fargnoli, supra, at 42; see also Sykes v.
Apfel, 228 F3d 259, 266n.9(3d Cir.)2009). 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,
supra, at 317 (citing Plummer v. Apfel, 186 F3d 422,429 (3d Cir.
1999). “Lay reinterpretation of medical evidence does not
constitute ‘inconsistent substantial evidence.’” Carver v.
Colvin, 216 WL 6601665 at *16 (M.D.Pa. September 14, 2016).
Thus, a reviewing Court must disregard medical evidence cited as
contradictory if it is in fact merely lay interpretation or
judgment rather than that of qualified medical professional.
The fundamental problem here is that the ALJ assigned only
limited weight to Dr. Welch’s assessment of Plaintiff’s
psychological conditions. This assessment included Dr. Welch’s
findings that Plaintiff was incapable of performing even low

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stress jobs, that Plaintiff’s psychological impairments affected
his ability to concentrate, and that Plaintiff would miss work
more than four days each month and be off task more than 15 per
cent of the time even on the days he was at work.4 Despite these
assessments by Dr. Welch, the long-time treating physician, the
ALJ gave short thrift to his opinion and stated: “Dr. Welch has
an insufficient basis of knowledge for opining that the
claimant’s conditions, physical and mental, are disabling”. (R.
at 20).
This cavalier dismissal of the treating physician’s opinion
is completely unsupported by other, contradictory medical
evidence of record as required by Morales and Plummer, supra.
The ALJ points to absolutely nothing in the record offered by a
competent medical provider that contradicts Dr. Welch’s
evaluation of Plaintiff’s psychological impairment. The ALJ’s
perfunctory dismissal of Dr. Welch’s opinion does not constitute
evidence. Rather, it is mere speculation or lay opinion and, as
such, insufficient to validate his decision.
Thus, based upon a lack of substantial evidence to support
the ALJ’s conclusion that Plaintiff can perform substantial

4

Dr. Welch’s assessments are corroborated by the Medical Source Statement from Plaintiff’s
mental health counselor, Mitzie Rivera, who, working under the direction of Psychiatrist Felicia De
Jesus, provided therapy to Plaintiff at least 18 different occasions between July and December of
2015.

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gainful activity despite his acknowledged severe psychological
impairments, this case will be remanded to the Commissioner. The
Commission is directed to expand the record to include the
report of a consulting/examining psychiatrist and to then
reexamine this case in light of said report. An Order consistent
with this determination will be filed contemporaneously.

BY THE COURT,

S/Richard P. Conaboy
RICHARD P. CONABOY
UNITED STATES DISTRICT JUDGE

Dated: October 9, 2018

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