ZINGELEWICZ v. ASTRUE

Filing 13

REPORT AND RECOMMENDATION that the Defendants Motion for Summary Judgment 11 be denied, and that the Plaintiffs Motion for Summary Judgment 8 be denied to the extent he requests an award of benefits, but granted to the extent he seeks a vacatur of the decision of the Commissioner of Social Security (Commissioner), and a remand for further proceedings. Objections to R&R due by 1/23/2014. Signed by Magistrate Judge Susan Paradise Baxter on 1/6/14. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREY VINCENT ZINGELEWICZ,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

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Civil Action No. 12-286
Judge Donetta W. Ambrose
Magistrate Judge Susan Baxter

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Defendant’s Motion for Summary Judgment
(ECF No. 11) be denied, and that the Plaintiff’s Motion for Summary Judgment (ECF No. 8) be
denied to the extent he requests an award of benefits, but granted to the extent he seeks a vacatur
of the decision of the Commissioner of Social Security (“Commissioner”), and a remand for
further proceedings.
II. REPORT
A.

BACKGROUND
1. Procedural History
Jeffrey Vincent Zingelewicz (“Plaintiff”) brings this action pursuant to 42 U.S.C. §

405(g), seeking review of the final determination of the Commissioner of Social Security
(“Defendant” or “Commissioner”) denying his applications for Disability Insurance Benefits
1

Ms. Colvin became the Acting Commissioner of Social Security on February 14, 2013. She is automatically
substituted as the named defendant in this suit in place of Michael J. Astrue, who previously served as
Commissioner. See Fed.R.Civ.P. 25(d).

(“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security
Act, 42 U.S.C. § 401, et seq. and § 1381 et seq. (“Act”). Plaintiff filed for benefits, claiming a
complete inability to work as of July 1, 2008, due to severe clinical depression, anxiety, posttraumatic stress disorder, and drug abuse. (R. at 128, 131).2 His applications were denied (R. at
54-61), and having exhausted all administrative remedies, this matter now comes before the
Court on cross motions for summary judgment. (ECF Nos. 8, 11).
2. General Background
Plaintiff was twenty six years old on the date of the ALJ’s decision and has a high school
education. (R. at 27). Plaintiff’s job history included employment as a general laborer. (R. at
133). At the administrative hearing, Plaintiff amended his disability onset date to May 28, 2010.
(R. at 36).
3. Treatment History
Plaintiff began receiving outpatient mental health treatment at Stairways Behavioral
Health on May 28, 2010, his amended disability onset date. (R. at 233-237). At his initial
evaluation, Plaintiff was seen by Jill Seus, LPC, and reported that he was seeking treatment for
severe depression, post-traumatic stress disorder, anxiety, and possibly bipolar disorder. (R. at
233). Plaintiff reported that he was a victim of abuse in the past, had attempted suicide on two
occasions, previously had hallucinations, and was last hospitalized in 2008. (R. at 233-234). He
further reported that he had a history of drug abuse, but had stopped using drugs in 2008. (R. at
235). Plaintiff indicated he was on probation until March 2012. (R. at 235). Plaintiff stated that
he had full custody of his children, was enrolled in school studying to be an electrician, and
wanted a more stable lifestyle for himself and his children. (R. at 233-234, 236). He was
diagnosed with bipolar disorder, unspecified, and posttraumatic stress disorder. (R. at 236). Ms.
2

Citations to the administrative record (ECF No. 7), will be designated by the citation “(R. at __.)”

2

Seus assigned him a Global Assessment of Functioning (“GAF”) score of 48,3 and found that his
prognosis was “fair.” (R. at 236).
Plaintiff returned to Stairways on June 29, 2010 and was seen by Kari Dingfelder, MS.
(R. at 232). Plaintiff reported that he was experiencing depression, and he was to begin
individual therapy. (R. at 232).
On July 19, 2010, Plaintiff presented to Stairways for a court-ordered psychiatric
evaluation performed by Belinda Stillman, D.O. (R. at 229-230). Plaintiff reported that he spent
the weekend alone, had a “lot of problems” with depression, and had “horrible dreams.” (R. at
229). Plaintiff reported that he lived with his mother and had full custody of his two sons. (R. at
229). He further reported that he helped his mother care for his grandmother, who suffered from
Alzheimer’s disease. (R. at 229). Plaintiff indicated that he was enrolled in school pursuing an
electrician degree, but was on a medical leave of absence. (R. at 229). Plaintiff claimed that the
school may not accept him back due to the concern he may have another decompensation
episode. (R. at 229). Plaintiff reported a past history of substance abuse and participation in
rehabilitation programs. (R. at 230). Dr. Stillman noted that a recent substance abuse evaluation
of the Plaintiff was negative and that he did not meet the criteria for drug and alcohol services.
(R. at 230).
On mental status examination, Plaintiff denied having any suicidal/homicidal ideations,
thoughts of self-mutilation, or symptoms of paranoia or psychosis. (R. at 230). Dr. Stillman
noted that Plaintiff displayed psychomotor retardation in speech and body movements, and that
3

The Global Assessment of Functioning Scale (“GAF”) assesses an individual's psychological, social and
occupational functioning with a score of 1 being the lowest and a score of 100 being the highest. The GAF score
considers “psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness.” American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR)
34 (4th ed. 2000). An individual with a GAF score of 41 to 50 may have “[s]erious symptoms (e.g., suicidal ideation
....)” OR “any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job).” Id.

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he was a “mild mannered man.” (R. at 230). She diagnosed Plaintiff with major depressive
disorder, recurrent, severe; post-traumatic stress disorder; cocaine dependence in full sustained
remission since 2008; and avoidant personality disorder. (R. at 230). She assigned him a GAF
score of 50, and started him on a trial of Zoloft. (R. at 230). Plaintiff was to continue with his
Targeted Case Manager (“TCM”) Jessie Montie, continue with his probation officer until March
2012, and continue individual psychotherapy with Ms. Dingfelder. (R. at 230).
On September 16, 2010, Plaintiff was seen by Charlotte Riddle, CRNP, and reported
increased stress because he was behind with his bills and fine payments. (R. at 227). He further
reported that being a single parent caused increased stress, causing him to “overreact” with his
children at times. (R. at 227). Plaintiff complained of racing thoughts on a daily basis with
difficulty sleeping. (R. at 227). He denied any substance abuse and reported that he was
compliant with his medication. (R. at 227). On mental status examination, Ms. Riddle reported
that Plaintiff was withdrawn, exhibited a depressed mood, was mildly anxious, and tearful. (R.
at 227). Plaintiff had normal motor activity, speech, sensorium, thought content, thought flow,
and judgment. (R. at 227). His insight was fair, and he had no suicidal/homicidal thoughts. (R.
at 227). Ms. Riddle started him on Risperdal to address his mood lability and continued him on
Zoloft. (R. at 227).
On November 9, 2010, Plaintiff was seen by Karen Bugaj, CRNP, and complained of
mood fluctuations. (R. at 226). He further complained of racing thoughts and difficulty
sleeping. (R. at 226). Ms. Bugaj reported that his motor activity, speech, sensorium, and
behavior were within normal limits. (R. at 226). She found his mood was depressed and
“overwhelmed,” and he exhibited a sad affect. (R. at 226). Plaintiff’s anxiety state, thought
content, thought flow, judgment, and insight were reported as normal. (R. at 226). Plaintiff

4

denied having any suicidal/homicidal thoughts. (R. at 226). Ms. Bugaj increased his Risperdal
and Zoloft dosages. (R. at 226).
Plaintiff was seen by Ms. Dingfelder on November 24, 2010 and reported that he “fe[lt]
better” about his depression and that therapy was “working well.” (R. at 225). He was
compliant with his medication regimen. (R. at 225).
On December 10, 2010, Ms. Riddle completed a form entitled “Medical Assessment of
Ability To Do Work-Related Activities (Mental).” (R. at 241-244). With respect to making
occupational adjustments, Ms. Riddle opined that Plaintiff would have a “fair” ability to follow
work rules, relate to co-workers, deal with the public, use judgment, interact with supervisors,
function independently, and maintain attention/concentration. (R. at 241). “Fair” was defined
on the form as “[a]bility to function in this area is limited but satisfactory.” (R. at 241). She
further opined that he would have a “poor” ability to deal with work stress. (R. at 241). “Poor”
was defined as “[a]bility to function in this area is seriously limited but not precluded.” (R. at
241). With respect to making performance adjustments, Ms. Riddle found that Plaintiff had a
“fair” ability to understand, remember and carry out complex job instructions, detailed but not
complex job instructions, and simple job instructions. (R. at 242). She stated however, that
“depending on level of functioning,” Plaintiff’s ability to function daily in a job setting was
limited. (R. at 242). She found Plaintiff had a “fair” ability to maintain personal appearance,
behave in an emotionally stable manner, relate predictably in social situations, and demonstrate
reliability, but that his mood and depressive symptoms would impact his ability in these areas.
(R. at 242). Finally, Ms. Riddle opined that Plaintiff would not be able to work a normal work
day/work week due to his mental impairment. (R. at 243).

5

On January 20, 2011, Plaintiff was accompanied by his TCM, and complained of feeling
anxious with some depression, as well as difficulty sleeping. (R. at 224). Plaintiff
acknowledged that his mood and depression were due to his lack of sleep. (R. at 224). On
mental status examination, Ms. Bugaj reported Plaintiff’s mood was depressed and anxious, and
he had a blunted affect. (R. at 224). His remaining mental status examination was within normal
limits. (R. at 224). He was started on a low dose of Trazodone to address his mood and sleep
complaints. (R. at 224).
Plaintiff was seen by Ms. Bugaj on March 9, 2011 and was accompanied by his TCM.
(R. at 223). Plaintiff reported that he was “doing very well” and was sleeping “much better”
with the addition of Trazodone. (R. at 223). His mental status examination revealed that he was
within normal limits in all areas, including behavior, mood, affect and anxiety state. (R. at 223).
When seen by Ms. Dingfelder on March 24, 2011, Plaintiff reported that he felt his
mental health was under control. (R. at 221). He indicated that he spent a lot of time in his room
and felt most comfortable there. (R. at 221). Plaintiff also continued to process his feelings and
past events in therapy. (R. at 221).
On May 12, 2011, Plaintiff was seen by Ms. Riddle, and relayed his concerns that he was
decompensating. (R. at 220). Plaintiff reported that his depressive symptoms had worsened, and
he was bothered by racing thoughts. (R. at 220). Plaintiff indicated that he was self-isolating by
spending his evenings in his room, or entire weekends when his children were gone. (R. at 220).
On mental status examination, Ms. Riddle reported that his motor activity, speech, sensorium,
and thought flow were within normal limits. (R. at 220). She found his behavior withdrawn, his
mood was depressed, his anxiety state was mildly elevated, he had ideas of worthlessness, and
his affect was sad and depressed. (R. at 220). Plaintiff’s judgment and insight were fair, and he

6

had no suicidal/homicidal thoughts. (R. at 220). Ms. Riddle increased his Zoloft and Risperdal
dosage amounts to address his symptoms. (R. at 220).
Ms. Riddle opined on May 12, 2011 that, based upon her observation of the Plaintiff, his
clinical history, and her review of his “signs/symptoms,” he would be incapable of maintaining
regular attendance, interacting appropriately with co-workers and supervisors, and responding
appropriately to supervisory criticism. (R. at 245).
On May 27, 2011, Ms. Monti, Plaintiff’s TCM, wrote a letter stating that Plaintiff had
been receiving services from Stairways Behavioral Health Targeted Case Management services
since May 14, 2010. (R. at 248). Ms. Monti stated that the criteria for eligibility for TCM
services were: having a severe mental illness, a mental health treatment history, and difficulty
functioning appropriately in the community. (R. at 248). She indicated that TCM was working
on the following mental health goals with Plaintiff: maintaining stability; monitoring
participation in treatment; attending appointments; collaborating with providers; monitoring
effectiveness of medications; advocating, if needed, for inpatient hospitalizations;
supporting/promoting positive means of coping/relaxation; preventing isolation; and increasing
positive socialization. (R. at 248).
4. Administrative Hearing
Plaintiff testified at the hearing held by the ALJ that he was single and lived with his
mother, brother and his two children, ages three and five. (R. at 38-39). He further testified that
he was enrolled in school for an electrical trade, but had been unable to finish due to depression.
(R. at 40). Plaintiff testified that, during a 30-day period, every day was a bad day for him prior
to treatment, but since treatment, he had only 10 to 12 bad days. (R. at 42). Plaintiff indicated
that on bad days, he isolated himself in his room and slept or watched television. (R. at 42-43).

7

He stated that he was home alone during the day with his children, but that his mother took over
when she came home from work in the evening. (R. at 42). He indicated that his brother and
cousin also helped with the children. (R. at 42). Plaintiff testified that he slept poorly due to
racing thoughts. (R. at 44). He stated that although lack of sleep resulted in a lack of energy, he
was still able to take care of his children, but “not much more” than that. (R. at 44). Plaintiff
testified that even on a bad day, he was able to play with his children or take them to the park.
(R. at 44). Plaintiff testified that he “shut down” when under stress, and did not take criticism
“very well.” (R. at 45).
The vocational expert was asked to assume an individual of the same age, education and
work experience as Plaintiff, who was limited to simple, routine repetitive tasks, involving
routine work processes and settings, not involving high stress, which would be high quota or
close attention to quality production standards, who could have no more than incidental
interaction with the public, and no engagement in teamwork or team-type activities. (R. at 46).
The vocational expert testified that such an individual could perform bench assembly and
fabricator positions, hand working occupations, and building cleaner positions. (R. at 46-47).
B.

ANALYSIS
1. Standard of Review
Title II of the Social Security Act provides for the payment of disability insurance

benefits to those who have contributed to the program and who have become so disabled that
they are unable to engage in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). Title
XVI of the Act establishes that SSI benefits are payable to those individuals who are similarly
disabled and whose income and resources fall below designated levels. 42 U.S.C. § 1382(a). A
person who does not have insured status under Title II may nevertheless receive benefits under

8

Title XVI. Compare 42 U.S.C. § 423(a)(1) with 42 U.S.C. § 1382(a). In order to be entitled to
DIB under Title II, a claimant must additionally establish that his disability existed before the
expiration of his insured status. 42 U.S.C. § 423(a), (c). The ALJ found that the Plaintiff met the
disability insured status requirements of the Act through December 31, 2012. (R. at 21). SSI
does not have an insured status requirement.
To be eligible for social security benefits under the Act, a claimant must demonstrate to
the Commissioner that he or she cannot engage in substantial gainful activity because of a
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 at least twelve months.
42 U.S.C. §423(d)(1)(A); Brewster v. Heckler, 786 F. 2d 581, 583 (3d Cir. 1986). When
reviewing a claim, the Commissioner must utilize a five-step sequential analysis to evaluate
whether a claimant has met the requirements for disability. 20 C.F.R. §§ 404.1520, 416.920.
The Commissioner must determine: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a
combination of impairments that is severe; (3) whether the medical evidence of the claimant’s
impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., Pt.
404, Subpt. P, Appx. 1; (4) whether the claimant’s impairments prevent him from performing his
past relevant work; and (5) if the claimant is incapable of performing his past relevant work,
whether he can perform any other work which exists in the national economy. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4); see also Barnhart v. Thomas, 540 U.S. 20, 24-5 (2003). If the
claimant is determined to be unable to resume previous employment, the burden shifts to the
Commissioner (Step 5) to prove that, given claimant’s mental or physical limitations, age,

9

education, and work experience, he or she is able to perform substantial gainful activity in jobs
available in the national economy. Doak v. Heckler, 790 F. 2d 26, 28 (3d Cir. 1986).
Judicial review of the Commissioner’s final decisions on disability claims is provided by
statute, and is plenary as to all legal issues. 42 U.S.C. §§ 405(g)4, 1383(c)(3)5; Schaudeck v.
Comm’r of Soc. Sec., 181 F. 3d 429, 431 (3d Cir. 1999). Section 405(g) permits a district court
to review the transcripts and records upon which a determination of the Commissioner is based;
the court will review the record as a whole. See 5 U.S.C. §706. The district court must then
determine whether substantial evidence existed in the record to support the Commissioner’s
findings of fact. Burns v. Barnhart, 312 F. 3d 113, 118 (3d Cir. 2002).
Substantial evidence is defined as “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate” to support a conclusion. Ventura v.
Shalala, 55 F. 3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). If the Commissioner’s findings of fact are supported by substantial evidence, they are
conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. When considering a case, a
district court cannot conduct a de novo review of the Commissioner’s decision nor re-weigh the
evidence of record; the court can only judge the propriety of the decision in reference to the

4

Section 405(g) provides in pertinent part:
Any individual, after any final decision of the [Commissioner] made after a hearing to which he
was a party, irrespective of the amount in controversy, may obtain a review of such decision by a
civil action ... brought in the district court of the United States for the judicial district in which the
plaintiff resides, or has his principal place of business

42 U.S.C. § 405(g).
5
Section 1383(c)(3) provides in pertinent part:
The final determination of the Commissioner of Social Security after a hearing under paragraph
(1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent
as the Commissioner's final determinations under section 405 of this title.
42 U.S.C. § 1383(c)(3).

10

grounds invoked by the Commissioner when the decision was rendered. Palmer v. Apfel, 995 F.
Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196-97 (1947). The
court will not affirm a determination by substituting what it considers to be a proper basis.
Chenery, 332 U.S. at 196-97. Further, “even where this court acting de novo might have reached
a different conclusion . . . so long as the agency’s factfinding is supported by substantial
evidence, reviewing courts lack power to reverse either those findings or the reasonable
regulatory interpretations that an agency manifests in the course of making such findings.”
Monsour Medical Center v. Heckler, 806 F. 2d 1185, 1190-91 (3d. Cir. 1986).
2. Discussion
The ALJ found that Plaintiff’s major depressive disorder, post-traumatic stress disorder,
avoidant personality disorder, and cocaine dependence in full sustained remission were severe
impairments, but determined at step three that he did not meet a listing. (R. at 21-23). The ALJ
found that Plaintiff had the residual functional capacity to perform work at all exertional levels,
with the following nonexertional limitations: he was limited to simple and repetitive tasks,
involving routine work processes and settings, performed in a low-stress work environment,
defined as one not involving high quotas or close attention to quality production standards. (R.
at 23). The Plaintiff was further limited to occupations involving no more than incidental
interaction with the public, and no teamwork or team-type activities. (R. at 23). At the final
step, the ALJ concluded that Plaintiff could perform the jobs of a bench assembler/fabricator; a
hand-working occupation such as cutting, molding, casting or trimming; and a building cleaner.
(R. at 28). Again, we must affirm this determination unless it is not supported by substantial
evidence. See 42 U.S. C. § 405(g).

11

Plaintiff’s challenges relate to the ALJ’s residual functional capacity (“RFC”)
assessment. “‘Residual functional capacity is defined as that which an individual is still able to
do despite the limitations caused by his or her impairment(s).’” Burnett v. Comm’r of Soc. Sec.
Admin., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d
Cir. 1999)); see also 20 C.F.R. §§ 404.1545(a); 416.945(a). An individual claimant’s RFC is an
administrative determination expressly reserved to the Commissioner. 20 C.F.R. §§
404.1527(e)(2); 416.927(e)(2). In making this determination, the ALJ must consider all the
evidence before him. Burnett, 220 F.3d at 121. This evidence includes “medical records,
observations made during formal medical examinations, descriptions of limitations by the
claimant and others, and observations of the claimant’s limitations by others.” Fargnoli v.
Halter, 247 F.3d 34, 41 (3d Cir. 2001). Moreover, the ALJ’s RFC finding must “be
accompanied by a clear and satisfactory explication of the basis on which it rests.” Id. (quoting
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)). While the Plaintiff advances several
arguments in support of his contention that the ALJ’s RFC determination is not supported by
substantial evidence, we find his argument with respect to the ALJ’s evaluation of the opinion
evidence to be dispositive in this case.
Plaintiff argues that the ALJ improperly assigned “little weight” to the opinion of Ms.
Riddle. See (ECF No. 9 at 9-20). Plaintiff acknowledges that Ms. Riddle, as a CRNP, is
considered an “other source” under 29 C.F.R. §§ 404.1513(d)(1); 416.913(d)(1) (other sources
include nurse practitioners). Social Security Ruling 06-03 clarifies how evidence from these
sources should be evaluated by an ALJ. While evidence from other sources cannot establish the
existence of a medically determinable impairment, such individuals are “valuable sources of
evidence for assessing impairment severity and functioning.” SSR 06-3p; 2006 WL 2329939 at

12

*3. In evaluating this evidence, the ALJ should consider the following factors: the nature and
extent of the relationship between the source and the individual; the source’s qualifications; the
source’s area of specialty or expertise; the degree to which the source presents relevant evidence
to support his or her opinion; whether the opinion is consistent with other evidence; and any
other factors that tend to support or refute the opinion. SSR 06-03p; 2006 WL 2329939 at *5.
As set forth above, on December 10, 2010, Ms. Riddle opined that Plaintiff would have a
“fair” ability to follow work rules, relate to co-workers, deal with the public, use judgment,
interact with supervisors, function independently, and maintain attention/concentration. (R. at
241). “Fair” was defined on the form as “[a]bility to function in this area is limited but
satisfactory.” (R. at 241). She further opined that he would have a “poor” ability to deal with
work stress. (R. at 241). “Poor” was defined as “[a]bility to function in this area is seriously
limited but not precluded.” (R. at 241). Ms. Riddle found that Plaintiff had a “fair” ability to
understand, remember and carry out complex job instructions, detailed but not complex job
instructions, and simple job instructions. (R. at 242). She stated however, that “depending on
level of functioning,” Plaintiff’s ability to function daily in a job setting was limited. (R. at 242).
She found Plaintiff had a “fair” ability to maintain personal appearance, behave in an
emotionally stable manner, relate predictably in social situations, and demonstrate reliability, but
that his mood and depressive symptoms would impact his ability in these areas. (R. at 242). Ms.
Riddle opined that Plaintiff would not be able to work a normal work day/work week due to his
mental impairment. (R. at 243).
Five months later, on May 12, 2011, Ms. Riddle opined that, based upon her observation
of the Plaintiff, his clinical history, and her review of his “signs/symptoms,” he would be

13

incapable of maintaining regular attendance, interacting appropriately with co-workers and
supervisors, and responding appropriately to supervisory criticism. (R. at 245).
The ALJ afforded “little weight” to Ms. Riddle’s opinions, reasoning:
…The record as a whole does not support the opinion that the claimant is
incapable of working a normal workday/workweek, maintaining regular
attendance or interacting appropriately with others. Furthermore, these
conclusions are not supported by Ms. Riddle’s initial assessment of the claimant’s
functional abilities rendered in December 2010, as discussed above. At that time,
Ms. Riddle found that the claimant’s ability to relate to coworkers, interact with
supervisors, and demonstrate reliability were satisfactory. There is nothing in the
record to support such a marked decline in the claimant’s level of functioning
from December 2010 to May 2011. The undersigned acknowledges that at his
last appointment, the claimant once again reported an increase in his depressive
symptoms; however, the claimant himself acknowledged that even during these
periods of increased symptoms, he remained capable of caring for his two young
sons.
(R. at 25-26).
We find that the ALJ’s first reason for assigning “little weight” to Ms. Riddle’s
assessment is inadequate. When rendering a decision, an ALJ must generally provide sufficient
explanation of his or her final determination to provide a reviewing court with the benefit of the
factual basis underlying the ultimate disability finding. Cotter v. Harris, 642 F.2d 700, 705 (3d
Cir. 1981). Here, while the ALJ discussed the Plaintiff’s treatment records from Stairways in his
recitation of the medical evidence, the ALJ did not identify or explain what evidence he relied
upon in concluding that Ms. Riddle’s assessment was not “supported by the record as a whole.”
(R. at 25). For example, Plaintiff’s treatment records reveal mixed findings that do not inform
on the Plaintiff’s ability to work. In July 2010, Dr. Stillman reported that Plaintiff displayed
psychomotor retardation in his speech and body movements. (R. at 230). In September 2010,
Ms. Riddle reported that Plaintiff was withdrawn, exhibited a depressed mood, was mildly
anxious and was tearful. (R. at 227). His medications were adjusted to address his mood

14

lability. (R. at 227). On November 9, 2010, Plaintiff complained of mood fluctuations, and Ms.
Bugaj found that his mood was depressed and “overwhelmed,” and he exhibited a sad affect. (R.
at 226). His medication dosages were increased. (R. at 226). By November 24, 2010, however,
Plaintiff reported that he felt better and his therapy was “working well.” (R. at 225). On January
20, 2011, Plaintiff complained of depression and Ms. Bugaj reported that Plaintiff’s mood was
depressed and anxious, and he had a blunted affect. (R. at 224). On March 9, 2011, Plaintiff
reported feeling much better and his mental status examination was within normal limits. (R. at
223). On March 23, 2011, Plaintiff reported that he felt his mental health was under control. (R.
at 221). By May 12, 2011, however, Plaintiff felt he was decompensating, and reported that his
depressive symptoms had worsened, he was bothered by racing thoughts, and he was selfisolating. (R. at 220). Ms. Riddle reported that Plaintiff was withdrawn, his mood was
depressed, his anxiety state was mildly elevated, he had ideas of worthlessness, and his affect
was sad and depressed. (R. at 220). To the extent the ALJ was of the view that the above
records were inconsistent with Ms. Riddle’s assessment, he is directed to explain his rationale for
such finding on remand.
The ALJ further found that Ms. Riddle’s May 2011 assessment was not supported by her
initial assessment in December 2010, wherein she found Plaintiff had a “fair” ability to relate to
co-workers, interact with supervisors, and demonstrate reliability. (R. at 256-26). The ALJ
found there was nothing to support such a “marked decline” in the Plaintiff’s level of functioning
from December 2010 to May 2011. (R. at 26). The ALJ’s stated reason in this regard, however,
does not show a fair consideration of all the evidence. “Where competent evidence supports a
claimant’s claims, the ALJ must explicitly weigh the evidence,” Dobrowolsky v. Califano, 606

15

F.2d 403, 407 (3d Cir. 1979), and “adequately explain in the record his reasons for rejecting or
discrediting competent evidence.” Sykes v. Apfel, 228 F.3d 259, 266 (3d Cir. 2000).
A review of both reports reveals that they are not necessarily inconsistent with each
other, or the medical evidence. First, although Ms. Riddle found in December 2010 that Plaintiff
had “fair” abilities in some areas, she was nonetheless of the view that Plaintiff was unable to
work a normal work day/work week due to his mental impairment. (R. at 243). In addition, Ms.
Riddle specifically stated in her December 2010 opinion that Plaintiff’s ability to demonstrate
reliability would be impacted by his “mood and depressive symptoms.” (R. at 242). Finally,
Ms. Riddle’s opinion that Plaintiff would be incapable of interacting appropriately with coworkers and supervisors, and responding appropriately to supervisory criticism, is arguably
supported by the treatment note entries in May 2011. Plaintiff relayed his concerns that he was
decompensating, and Ms. Riddle found him withdrawn, depressed and sad, and increased his
medication dosages to address his increased symptoms. (R. at 220). On remand, the ALJ “must
review all of the pertinent medical evidence, explaining his conciliations and rejections.”
Burnett, 220 F.3d at 121.
The ALJ further relied on the Plaintiff’s alleged ability to care for his two young sons in
rejecting Ms. Riddle’s assessments. Plaintiff testified that his brother, who lived with him, as
well as other family members, who lived next door, helped him care for his children while his
mother was at work during the day. (R. at 42-43). Plaintiff further testified that his cousin came
over daily and played with his children and took them to the park. (R. at 43). Plaintiff also
indicated that his mother “[took] over” the care of his children when she came home from work
at 5:00 p.m. (R. at 42). The ALJ acknowledged that Plaintiff received help from his extended
family, but noted that he took care of his sons and played with them every day regardless of his

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mental state. (R. at 22). An ALJ may appropriately consider the number and type of activities in
which a claimant engages when assessing his or her residual functional capacity. Burns v.
Barnhart, 312 F.3d 113, 129-30 (3d Cir. 2002). However, in light of the errors identified above,
appropriate consideration could not have been given to the Plaintiff’s testimony, and the ALJ is
directed to reevaluate his testimony on remand.
C.

CONCLUSION

Based upon the foregoing, it is respectfully recommended that the Commissioner’s
Motion for Summary Judgment (ECF No. 11) be denied, that Plaintiff’s Motion for Summary
Judgment (ECF No. 8) be denied to the extent that he requests an award of benefits but granted
to the extent he seeks a vacatur of the Commissioner’s decision, and a remand for further
proceedings. It is further recommended that the Commissioner’s decision be vacated, and that
the case be remanded for further consideration of Plaintiff’s application for benefits. The
Commissioner should be directed to “reopen and fully develop the record before rendering a
ruling” on Plaintiff’s claim. Thomas v. Comm’r of Soc. Sec., 625 F.3d 798, 800 (3d Cir. 2010).
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule
72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of
service of a copy of this Report and Recommendation to file objections. Any party opposing the
objections shall have fourteen (14) days from the date of service of objections to respond thereto.
Failure to file timely objections will constitute a waiver of any appellate rights.

January 6, 2014

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s/ Susan Paradise Baxter
Susan Paradise Baxter
United States Magistrate Judge
cc/ecf: All counsel of record.

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