HUGHES v. ASTRUE

Filing 14

OPINION resolving the parties' motions for summary judgment. Signed by Judge David S. Cercone on 2/2/12. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LEWIS HUGHES,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

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2:10cv1300
Electronic Filing

OPINION

I.

INTRODUCTION

Lewis Hughes (“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 application for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 401 – 433, 1381 – 1383f (“the Act”). This matter comes before the court on cross
motions for summary judgment. (ECF Nos. 8, 12). The record has been developed at the
administrative level. For the following reasons, Plaintiff’s Motion for Summary Judgment will
be granted in part and denied in part, and Defendant’s Motion for Summary Judgment will be
denied.
II.

PROCEDURAL HISTORY

1

Plaintiff filed for DIB and SSI with the Social Security Administration on June 13, 2008,
claiming an inability to work due to disability beginning March 1, 2007. (R. at 122 – 30).1
Plaintiff initially was denied benefits on October 3, 2008. (R. at 76 – 85). A hearing was
scheduled for December 2, 2009, and Plaintiff appeared to testify represented by counsel. (R. at
25). A vocational expert also testified. (R. at 25). The Administrative Law Judge (“ALJ”)
issued a decision denying benefits on January 28, 2010. (R. at 6 – 24). Plaintiff filed a request
for review with the Appeals Council, which request was denied on August 26, 2010, thereby
making the decision of the ALJ the final decision of the Commissioner. (R. at 1 – 5).
Plaintiff filed his Complaint in this court on October 7, 2010. (ECF No. 3). Defendant
filed his Answer on December 22, 2010. (ECF No. 5). Cross motions for summary judgment
followed.
III.

STATEMENT OF THE CASE

A. General Background
Plaintiff was born on December 11, 1987, and was twenty-one years of age2 at the time of
his administrative hearing. (R. at 32). He is six feet, three inches tall, and weighed
approximately two hundred and seventy pounds. (R. at 32). Plaintiff graduated high school, and
wanted to become an electrical engineer; however, he did not complete his first year of college
and had not returned. (R. at 33, 54). Plaintiff rented a room in the home of a family friend, and
had subsisted on welfare and food stamps for approximately two years. (R. at 33). Plaintiff also
received medical benefits through the state. (R. at 33). His past employment included positions
1

Citations to ECF Nos. 6 through 6-8, the Record, hereinafter, “R. at __.”

2

Plaintiff is defined as a “Younger Person” at all times relevant to this determination. 20 C.F.R.
§§ 404.1563, 416.963.
2

with McDonald’s, Quizno’s, Sunoco, Country Market, and Maid with Care. (R. at 34 – 36, 55).
Plaintiff last worked briefly in April through July of 2009 on weekends as a cashier at Sunoco.
(R. at 57 – 58, 402).
B. Medical History
Plaintiff was admitted to Butler Memorial Hospital, in Butler, Pennsylvania on March 30,
2007, for an alleged benzodiazepine/Klonopin overdose. (R. at 230 – 32). He was diagnosed
with depression. (R. at 230). Hospital staff noted that Plaintiff stated he wanted to “end it all.”
(R. at 239). At the hospital, he was noted to be awake, oriented, and appropriate, and reportedly
had become unconscious shortly after being discovered by friends. (R. at 233, 239 – 40, 249). A
toxicology report did not detect the actual presence of benzodiazepine in his system. (R. at 236,
258). No one had witnessed him overdose. (R. at 249). He was transferred to UPMC Western
Psychiatric Institute and Clinic (“Western Psych”) for inpatient treatment. (R. at 230, 243).
Initially, staff at Western Psych noted Plaintiff’s overdose to be questionable. (R. at
258). He supposedly swallowed a handful of Klonopin following an argument with his mother
and a friend. (R. at 258 – 67). While at Western Psych, Plaintiff claimed he had suffered
symptoms of depression for several years, worsening over time. (R. at 258 – 67). His global
assessment of functioning3 (“GAF”) score at admission was 25, and he was diagnosed with

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 100 being the highest.
A GAF score considers “psychological, social, and occupational functioning on a hypothetical
continuum of mental health-illness.” American Psychiatric Association: Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV-TR) 34 (4th ed. 2000). An individual with a
GAF score of 60 may have "[m]oderate symptoms" or "moderate difficulty in social,
occupational, or school functioning;" of 50 may have “[s]erious symptoms (e.g., suicidal ideation
....)” or “impairment in social, occupational, or school functioning (e.g., no friends, unable to
keep a job);” of 40 may have “[s]ome impairment in reality testing or communication” or “major
3

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depression and impulsive control disorder. (R. at 258 – 67). Eventually, Plaintiff admitted that
he had been depressed over recently being “dumped” by his boyfriend, and did not take the
quantity of Klonopin he originally had claimed. (R. at 259). Plaintiff was started on Lexapro
and subsequently reported an improved, stable mood. (R. at 260). At the time of discharge from
Western Psych on May 7, he was noted to have normal speech, congruent affect, intact memory,
concentration, and attention, logical thought, good insight, and good judgment. (R. at 260).
Plaintiff’s mood was good, he was fully oriented, and he denied suicidal or homicidal ideation.
(R. at 260). Plaintiff was referred for follow-up care. (R. at 261). The hospital reported its
treatment objective had been achieved. (R. at 261).
Plaintiff appeared at UPMC St. Margaret Hospital in Pittsburgh, on June 26, 2007, for
follow-up care. (R. at 270). He reported that his mood was good, but that he had recently been
feeling a little down and irritable. (R. at 270). He was seeing a therapist. (R. at 270). He
complained of knee pain while walking stairs. (R. at 270). No significant injury was noted. (R.
at 270). Plaintiff had quit college and was working at the time. (R. at 270). He was found to
exhibit no compliance issues, but worsening depression negatively affected his social interaction
and increased conflicts at work. (R. at 270).
Plaintiff also presented with joint pain, stiffness and anxiety; however, no bone pain,
decreased range of motion, joint instability, joint swelling, joint warmth, phobia, or suicidal
ideation was observed. (R. at 270). Plaintiff was obese, but walked normally and without
impairment in several areas, such as work or school, family relations, judgment, thinking or
mood”; of 30 may have behavior “considerably influenced by delusions or hallucinations” or
“serious impairment in communication or judgment (e.g., ... suicidal preoccupation)” or
“inability to function in almost all areas ...; of 20 “[s]ome danger of hurting self or others ... or
occasionally fails to maintain minimal personal hygiene ... or gross impairment in
communication....” Id.
4

assistance, and showed no signs of distress. (R. at 271). His mood was anxious but appropriate,
his behavior was appropriate, his mental status and thought process were normal, and his speech
was clear and coherent. (R. at 271 – 72). Muscle tone and strength were normal. (R. at 271).
Plaintiff was prescribed Darvocet, as needed, for pain, and was instructed to do exercises for leg
pain. (R. at 272). Plaintiff’s Lexapro for his depression was increased. (R. at 272).
Plaintiff was seen in the emergency room of Frick Hospital in Mt. Pleasant,
Pennsylvania, on April 21, 2008 for complaints of chest pain and anxiety. (R. at 324 – 33). He
appeared to be alert and oriented, but in mild distress. (R. at 324 – 33). Testing revealed no
physical abnormalities. (R. at 324 – 33). Plaintiff reported that his anxiety and chest pain began
the previous day, he had no history of suicidal ideation or thoughts of harming himself, no
history of threatening or violent behavior, no hallucinations or delusions, and no significant
somatic complaints. (R. at 324 – 33). Hospital staff noted a history of anxiety and bipolar
disorder, and that Plaintiff had recently stopped taking his medications due to a lack of
insurance. (R. at 324 – 33).
Plaintiff was seen once at the Wesley Health Center in Connellsville, Pennsylvania, for
complaints of depression, bipolar disorder, and panic disorder on May 1, 2008. (R. at 282).
Plaintiff complained of fatigue, anxiety and insomnia. (R. at 282). He was diagnosed with
depression, anxiety, and a history of panic attacks. (R. at 282). Symptoms related to these
diagnosed conditions were thought to be worsening. (R. at 282).
On May 5, 2008, Plaintiff was assessed for intake at Chestnut Ridge Counseling Services
(“Chestnut Ridge”) in Connellsville, Pennsylvania. (R. at 423 – 25). He was noted to have been
previously diagnosed with depression, bipolar disorder and anxiety disorder. (R. at 423 – 25).
Plaintiff described having difficulty focusing, lacking motivation, and attempting suicide in the
5

past. (R. at 423 – 25). He denied past violence or engaging in self-harm/mutilation. (R. at 423 –
25). No anxiety was observed during the intake assessment, and Plaintiff’s thought processes
were noted to be relevant/intact, he was alert and oriented, and he denied hallucinations or
delusions. (R. at 423 – 25). He was given a GAF score of 45. (R. at 423 – 25).
On May 9, 2008, Plaintiff underwent a psychiatric evaluation by Marjorie Tavoularis,
M.D., at Chestnut Ridge. (R. at 335 – 37). Plaintiff described a history of bipolar disorder to Dr.
Tavoularis with an onset date approximately one year earlier. (R. at 335 – 37). He described
spending five months in a constant manic state followed by a severe depressive episode during
which he was admitted to Western Psych for an attempted overdose. (R. at 335 – 37). Since that
time he had been prescribed Lexapro and Klonopin for treatment, but had recently switched to
Prozac because Lexapro had adverse side-effects. (R. at 335 – 37). He believed that the
medications were working. (R. at 335 – 37). He stopped taking his medications until
approximately a few weeks prior to his evaluation due to the lack of funds, but after resuming his
medications he had not experienced bad mood swings. (R. at 335 – 37). He did report some
depression and confusion. (R. at 335 – 37). Plaintiff also claimed to have been diagnosed with
chondromalacia4 in his knee, and a functional heart murmur – although diagnostic testing did not
support it. (R. at 335 – 37). He also described using poor judgment when spending money, and
his compulsive spending often made him suicidal because of his indebtedness. (R. at 335 – 37).
Upon examination, Dr. Tavoularis described Plaintiff as well-developed, tall, and
muscular appearing. (R. at 335 – 37). He was alert and cooperative, although slightly sad. (R.
4

Chondromalacia, or chondromalacia patella, is a term used to describe damaged cartilage under
the kneecap. It may be treated by simply applying ice and resting. However, physical therapy or
surgery may occasionally be required. MayoClinic.com, http://www.mayoclinic.
com/health/chondromalacia-patella/DS00777. (Last visited August 19, 2011).
6

at 335 – 37). His intelligence seemed well above average. (R. at 335 – 37). He had significant
insight and no signs of psychosis. (R. at 335 – 37). Plaintiff was diagnosed with bipolar
disorder. (R. at 335 – 37). He was assessed a GAF score of 48, with an estimated high score of
60 and an estimated low score of 40 for the year. (R. at 335 – 37). Plaintiff was continued on
Klonopin and Prozac, and directed to engage in counseling. (R. at 335 – 37). He had
motivation to improve. (R. at 335 – 37).
Records indicate Plaintiff continued to see Dr. Tavoularis, and other physicians and
counselors at Chestnut Ridge, through August of 2009. (R. at 338 – 43, 397 – 447). During this
period his medications were regularly updated. (R. at 338 – 43, 397 – 447). His GAF scores
ranged from 50 to 55, gradually improving over the course of treatment. (R. at 338 – 43, 397 –
447). His typical diagnoses included depression, bipolar disorder, and anxiety disorder. (R. at
338 – 43, 397 – 447). Plaintiff’s speech was usually clear, he fully participated and was able to
maintain attention, he was alert and oriented, he was cooperative, he exhibited organized
thoughts, and he did not endorse suicidal ideation. (R. at 338 – 43, 397 – 447). However, his
mood, affect, concentration, and motivation fluctuated. (R. at 338 – 43, 397 – 447).
Plaintiff again visited Frick Hospital on June 9, 2008 for right knee pain. (R. at 284 –
89). Plaintiff claimed that his knees caused him to fall. (R. at 284 - 89). At the time, Plaintiff
was alert and oriented, with clear speech, but was somewhat anxious. (R. at 284 – 89). Plaintiff
was given a knee immobilizer and crutches, and instructed to avoid weight bearing. (R. at 284 –
89). Plaintiff was diagnosed with sprain/strain of the right anterior knee, bipolar disorder,
anxiety disorder, and nervousness. (R. at 284 – 89). An x-ray of Plaintiff’s knee was
unremarkable. (R. at 294).

7

While at Chestnut Ridge on June 16, 2008, Plaintiff reported that he was tolerating his
medications without side effects and his Klonopin was treating his anxiety effectively. (R. at
338 – 43, 397 – 447). His mood swings had decreased significantly, his sleep was better, and his
appetite was good. (R. at 338 – 43, 397 – 447). He did mention occasional breakthrough
anxiety, however. (R. at 338 – 43, 397 – 447).
On October 1, 2008, Plaintiff was again admitted to Western Psych. He was transferred
from UPMC Presbyterian Hospital in Pittsburgh after a near fatal intentional overdose of his
prescription medications. (R. at 370, 468 – 530). Plaintiff claimed that he was feeling depressed
after a fight with his boyfriend and wanted to “make it all go away.” (R. at 370, 468 – 530).
Plaintiff was discovered by his boyfriend ingesting the medication. (R. at 370, 468 – 530).
Plaintiff was treated for coma and respiratory failure. (R. at 370, 468 – 530). He was
involuntarily admitted for inpatient treatment. (R. at 370, 468 – 530). Plaintiff’s psychological
history was noted. (R. at 370, 468 – 530). He was brought back to mental baseline, and was
treated with prescription medications, individual therapy, group therapy, psychoeducation and
behavioral techniques. (R. at 370, 468 – 530).
Plaintiff was discharged from Western Psych on October 7, 2008. (R. at 371 – 73, 468 –
530). Plaintiff had been stabilized and his suicidal ideation was resolved. (R. at 371 – 73, 468 –
530). He denied suicidal ideation or behavioral impulsivity prior to discharge. (R. at 371 – 73,
468 – 530). Staff notes indicate he exhibited marked improvement. (R. at 371 – 73, 468 – 530).
No psychomotor agitation or retardation was present, Plaintiff’s speech was normal, his mood
was good, his affect was congruent, his memory was intact, his attention and concentration were
intact, his thought processes were normal, his cognitive functions were at baseline, his insight
was fair, and his judgment was fair. (R. at 371 – 73, 468 – 530). Plaintiff denied hallucination.
8

(R. at 371 – 73, 468 – 530). He was diagnosed with depression. (R. at 371 – 73, 468 – 530).
Plaintiff’s GAF score at admission was assessed at 20. (R. at 371 – 73, 468 – 530). His score at
discharge was 50. (R. at 371 – 73, 468 – 530). The hospital noted that the treatment objective
had been achieved. (R. at 374, 468 – 530).
At a December of 2008 visit to Chestnut Ridge, Plaintiff described his medications as
helpful and denied side effects. (R. at 338 – 43, 397 – 447). He denied depression, anger issues,
and hallucinations. (R. at 338 – 43, 397 – 447). His concentration and sleep were improved, and
his appetite was good. (R. at 338 – 43, 397 – 447). Panic attacks did occasionally occur when
he was overwhelmed. (R. at 338 – 43, 397 – 447).
Over the next few months Plaintiff continued to report progress with his psychological
symptoms during his appointments at Chestnut Ridge. (R. at 338 – 43, 397 – 447). His mood
was increasingly reported as stable, and his affect was appropriate. (R. at 338 – 43, 397 – 447).
Around March of 2009, some increased depression and moodiness was noted. (R. at 338 – 43,
397 – 447). By April 4, 2009, his physician indicated that he was doing well overall. (R. at 338
– 43, 397 – 447). Plaintiff indicated that he was feeling significantly better, that his mood
swings had improved substantially, and his medications were working very well. (R. at 338 –
43, 397 – 447). He denied suicidal or homicidal ideation. (R. at 338 – 43, 397 – 447). His sleep
and appetite were also good. (R. at 338 – 43, 397 – 447). By May of 2009, Plaintiff indicated he
had been feeling well enough to return to work at a gas station on weekends. (R. at 338 – 43,
397 – 447). His attention span was good, his mood was even, he denied depression, and he
denied side effects from his medication. (R. at 338 – 43, 397 – 447). He did endorse continued
panic attacks. (R. at 338 – 43, 397 – 447). Notwithstanding the improvement observed in April

9

and May, in June of 2009 Plaintiff reported an increase in mood fluctuation and panic. (R. at
338 – 43, 397 – 447).
Plaintiff appeared at the Highlands Hospital emergency room in Connellsville,
Pennsylvania, on August 12, 2009. (R. at 376 – 85). He was admitted for depression with
suicidal ideation. (R. at 376 – 85). He complained of nausea and admitted to discontinuing his
prescribed medications. (R. at 376 – 85). Plaintiff was alert and oriented, and was in no
apparent distress. (R. at 376 – 85). He had full strength in all extremities. (R. at 376 – 85). He
was noted to have stable spinal stenosis. (R. at 376 – 85). Plaintiff was diagnosed with
depression, bipolar disorder and panic disorder. (R. at 376 – 85).
Plaintiff claimed that his prescription medications were not effective. (R. at 376 – 85).
He described feeling helpless and hopeless. (R. at 376 – 85). He was anxious, but cooperative.
(R. at 376 – 85). His affect was appropriate, he exhibited no thought disorders, his speech was
normal, and no flight of ideas was observed. (R. at 376 – 85). Plaintiff’s complaints of auditory
hallucination were considered questionable. (R. at 376 – 85). His insight and judgment were
fair, his memory was good, his intellect was at least average, and he had good abstract thinking.
(R. at 376 – 85). Plaintiff was assessed a GAF score of 40. (R. at 376 – 85).
Plaintiff was discharged on August 17, 2009. (R. at 376 – 85). During treatment,
Plaintiff claimed that his last suicide attempt left him in a coma for a week and he suffered
memory loss as a result. (R. at 376 – 85). Plaintiff stated that he had been receiving treatment at
Chestnut Ridge for the past two years. (R. at 376 – 85). He was noted to be dysphoric and
emotional during his hospital stay, and overreacted to environmental stressors. (R. at 376 – 85).
At the time of discharge he was considered to be more stable and he denied suicidal ideation. (R.
at 376 – 85). His discharge diagnosis was bipolar affective disorder. (R. at 376 – 85). His
10

GAF score was 50. (R. at 376 – 85). Plaintiff followed up at Chestnut Ridge on August 20,
2009. (R. at 397). He reported taking his medications, denied medication side effects,
hallucinations, or anger issues, had a good attention span, and was sleeping and eating well. (R.
at 397).
On September 22, 2009, following a move back to the Pittsburgh area, Plaintiff
underwent a medical evaluation with Jill Haltigan, M.D. (R. at 448 – 56). His diagnoses were
spinal stenosis, depressive disorder, and manic depressive disorder. (R. at 448 – 56). Dr.
Haltigan had not seen Plaintiff in several years. (R. at 448 – 56). She concluded that Plaintiff
should obtain x-rays and MRI’s of his back to determine the exact pathology. (R. at 448 – 56).
She noted that his left outer thigh had been numb for approximately six months. (R. at 448 –
56). Plaintiff explained that he had pain in his lower and middle back, problems with balance
when walking, and weakness and numbness in his legs; but he did not require assistance to walk
and he had not fallen in the past year. (R. at 448 – 56). Dr. Haltigan decided not to place
Plaintiff on narcotic pain medication until other options such as physical therapy and pain
management were tried. (R. at 448 – 56). She did place Plaintiff on Soma for his discomfort.
(R. at 448 – 56).
Dr. Haltigan reviewed Plaintiff’s history of psychological problems and found that he had
improved significantly and was without suicidal ideation. (R. at 448 – 56). She strongly
recommended that he continue with medication management and counseling. (R. at 448 – 56).
She observed that Plaintiff’s insight was poor with regard to how abnormal it is for an individual
at his age to require so many medications. (R. at 448 – 56).
C. Functional Assessments

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Plaintiff was evaluated by Lanny Detore, Ed.D., on September 9, 2008, on behalf of the
Bureau of Disability Determination. (R. at 344 – 51). Plaintiff explained that he was applying
for DIB and SSI due to pervasive bipolar disorder, depression and anxiety. (R. at 344 – 51). He
claimed to suffer panic attacks once or twice a day, potentially twice a week, every week or so.
(R. at 344 – 51). The feeling that others were watching him or making derisive comments about
him often preceded his panic attacks. (R. at 344 – 51). He also endorsed racing thoughts and
suboptimal sleep patterns. (R. at 344 – 51). Plaintiff reported attempted suicide and admission
to Western Psych in May of 2007 due to an overdose on aspirin. (R. at 344 – 51). He was
continuing with counseling at Chestnut Ridge. (R. at 344 – 51). He explained that following his
hospital admission in May of 2007, he engaged in counseling for two months, and was provided
prescription medication for approximately six or seven months. (R. at 344 – 51).
Plaintiff claimed that for the past five or six months he regularly attended monthly
medication checks, but he could not consistently attend therapy because he lacked transportation.
(R. at 344 – 51). He described attempting to maintain employment, but difficulty with panic
attacks and concentration prevented him from holding positions for any significant length of
time. (R. at 344 – 51). Plaintiff explained he had difficulty managing compulsive spending
urges and had accumulated substantial debts. (R. at 344 – 51). However, he experienced no
difficulties performing most activities of daily living. (R. at 344 – 51). He spent most of his
time watching movies or taking walks around town. (R. at 344 – 51).
Dr. Detore observed that Plaintiff was casually and neatly dressed, well-groomed, softspoken, had subdued affect, and did not smile. (R. at 344 – 51). Plaintiff was alert and oriented,
exhibited average intellect and memory, and had intact remote and recent memory, intact
abstract thinking, fair insight, and intact judgment. (R. at 344 – 51). Plaintiff did not describe
12

nightmares or ongoing dreams, reported no history of paranoia, and exhibited no psychotic
thought processes or delusions. (R. at 344 – 51).
Plaintiff could manage his own finances. (R. at 344 – 51). His prognosis was fair to
guarded due to the rapid phases of his bipolar disorder and the level of his depression. (R. at 344
– 51). Dr. Detore felt that plaintiff would experience an increase in symptoms if he attempted to
work at the time of the evaluation. (R. at 344 – 51). Plaintiff would experience some difficulty
functioning in a work setting, and would experience increased panic and anxiety in social
situations. (R. at 344 – 51). He also would have marked difficulty making judgments on simple
work-related decisions, and would have moderately marked limitation in interacting with the
public, co-workers, and supervisors, in responding appropriately to pressures in a usual work
setting, and in responding appropriately to changes in a routine work setting. (R. at 344 – 51).
On October 1, 2008, John Rohar, Ph.D., completed a mental residual functional capacity
(“RFC”) assessment. (R. at 352 – 55). Plaintiff was diagnosed with affective and anxiety
disorders. (R. at 352 – 55). Dr. Rohar concluded that Plaintiff was only moderately to not
significantly limited in all categories of functioning. (R. at 352 – 55). Dr. Rohar based his
determination upon a review of Plaintiff’s record and the opinion of Dr. Detore. (R. at 352 – 55).
Dr. Rohar found Dr. Detore’s opinions to be inconsistent with the totality of the evidence on
record, and accorded little weight to these findings. (R. at 352 – 55). Dr. Detore’s findings
purportedly were flawed due primarily to his almost exclusive reliance upon the subjective
complaints of Plaintiff. (R. at 352 – 55). They were an overestimation of Plaintiff’s true
limitations, because Plaintiff’s subjective complaints were considered to be inconsistent with the
record. (R. at 352 – 55). Plaintiff was found by Dr. Rohar to be capable of engaging in
substantial gainful activity. (R. at 352 – 55).
13

Plaintiff was seen by Lindsey Groves, Psy.D., on November 11, 2009. (R. at 457 – 67).
After an interview and a review of Plaintiff's medical records, Dr. Groves diagnosed Plaintiff
with Bipolar disorder, panic disorder with agoraphobia, cognitive disorder, and borderline
personality disorder. (R. at 457 – 67). She noted that Plaintiff felt that therapy had not helped in
the past, and while his medications had helped, he still remained symptomatic. (R. at 457 – 67).
Dr. Groves’ prognosis for Plaintiff was highly guarded given the chronic nature of his
psychological conditions. (R. at 457 – 67). She determined that he would require ongoing
counseling and medication management. (R. at 457 – 67).
Dr. Groves further indicated that Plaintiff was one hundred percent disabled, met Social
Security listings for affective disorder, anxiety related disorders, and personality disorders, and
was incapable of engaging in substantial gainful activity. (R. at 457 – 67). She assessed a GAF
score of 50. (R. at 457 – 67). She noted that he was cooperative and compliant, made good eye
contact and had appropriate behavior, his thoughts were organized, and his insight was intact, but
his mood was dysphoric. (R. at 457 – 67). She found he had a history of poor memory, appetite
disturbance with weight change, sleep disturbance, personality change, mood disturbance,
emotional lability, hallucinations, recurrent panic attacks, anhedonia, paranoia, feelings of
guilt/worthlessness, difficulty concentrating, suicidal ideation/attempts, social withdrawal, blunt
affect, decreased energy, manic syndrome, obsessions/compulsions, irrational fears,
hostility/irritability, and pathological dependence/passivity. (R. at 457 – 67). She marked in her
findings that Plaintiff was moderately limited in activities of daily living, markedly limited in
maintaining social functioning and concentration, persistence, and pace, and suffered four or
more episodes of decompensation of extended duration. (R. at 457 – 67). Plaintiff’s ability to
use judgment, deal with work stress, and behave in an emotionally stable manner were all
14

considered to be poor. (R. at 457 – 67). Plaintiff’s other functional capabilities were rated as
fair to good. (R. at 457 – 67).
D. Administrative Hearing
At his hearing Plaintiff testified that he had lived with his mother in the Pittsburgh area
until August of 2007. (R. at 43). For approximately ten years, his mother’s and his primary
source of income was social security disability benefits. (R. at 54 – 55). Plaintiff thereafter
moved in with his now ex-boyfriend in Everson, Pennsylvania. (R. at 43). Plaintiff’s exboyfriend suffered from bipolar disorder and received social security disability benefits. (R. at
43, 55). The on-and-off relationship was traumatic and abusive. (R. at 44). Approximately two
months prior to his administrative hearing, Plaintiff broke up with his ex-boyfriend and relocated
to the home of a family friend in Pittsburgh where he rented a room. (R. at 43 – 45).
Plaintiff claimed he quit all of his past jobs as a result of panic attacks and anxiety, mood
swings, and difficulty dealing with other people. (R. at 34 – 35, 37). Plaintiff intermittently
worked throughout 2007, and for a portion of 2009. (R. at 35 – 36, 57 – 58). He did not
otherwise seek work after December of 2007 following a severe automobile accident wherein he
sustained injuries to his back and neck, and was in a coma. (R. at 38). Plaintiff no longer drove
as a result of the emotional trauma caused by the crash. (R. at 40). He made a full recovery and
was not limited by the injuries he sustained. (R. at 38).
Plaintiff did not believe he was capable of working because any attempts to return to the
workforce ended prematurely due to his panic and anxiety. (R. at 41, 59). He also found that
pre-existing spinal stenosis and resultant back pain prevented him from sitting or standing for
prolonged periods, and made his left leg mostly numb. (R. at 41). Despite having earlier
testified that the conditions arising from his car accident had completely resolved, he claimed
15

that as a result of being in a coma following the accident he lost his reflexes and his legs
constantly gave out. (R. at 42). He reported losing his balance easily and falling often. (R. at
42). Plaintiff asserted he had seen multiple doctors for his physical condition, but could not
remember their names or the treatments received. (R. at 53 – 54). He claimed to have been
treated for his physical conditions mostly by his primary care physician. (R. at 53).
Plaintiff reported having received psychiatric care from a Dr. Mullick at Western Psych
in the months preceding his hearing. (R. at 39 – 40). He also was receiving counseling from a
therapist by the name of Gerald Price through Western Psych. (R. at 39 – 40). Dr. Mullick had
increased Plaintiff’s dosage of his current prescription medications, and added another for
treatment of his psychological conditions. (R. at 41). Plaintiff did not complain of side effects
from his medications. (R. at 41).
Plaintiff admitted to being hospitalized from September 27 through October 7 of 2008
following an argument with his ex-boyfriend. (R. at 43 – 44). The ex-boyfriend was addicted to
narcotics and had become physically abusive with Plaintiff. (R. at 46). The ALJ characterized
much of Plaintiff’s treatment history as short stints in therapy following traumatic episodes with
his ex-boyfriend. (R. at 47, 52). However, once Plaintiff had stabilized psychologically, he
would quit seeking therapy. (R. at 47, 52). Plaintiff claimed that this pattern was the result of
difficulty finding transportation to and from therapy, and because he had a difficult time opening
up to others. (R. at 48, 52). Plaintiff further explained that although he had a driver’s license, he
did not have access to an automobile after his car was repossessed, there was no public
transportation available to him in Everson, and his mother was unable to drive him to
appointments because of the distance between Everson and Pittsburgh. (R. at 48 – 49). Plaintiff
did not follow through with an application for special transportation accommodation through the
16

state. (R. at 50).

Plaintiff maintained that despite his difficulties with transportation and lack of

consistent counseling, he never stopped taking prescription medication. (R. at 59).
Generally, Plaintiff stated he did not feel emotionally stable enough to seek new
relationships. (R. at 52). He described having severe mood swings at times, and claimed to have
considered killing his mother in their home, stopping when he suddenly realized what he was
doing. (R. at 60). He did not sleep well, getting approximately three hours of sleep per night,
only four to five nights a week. (R. at 38 – 39). Plaintiff blamed his insomnia on racing
thoughts and frequent panic attacks. (R. at 39). His only hobby or activity was listening to
music. (R. at 40). He admitted to considerable indebtedness: $8,000.00 outstanding on his
repossessed vehicle, and outstanding debt on five credit cards – with one card having a balance
of $1,000.00. (R. at 50 – 51).
Following Plaintiff’s testimony, the ALJ asked the vocational expert to characterize
Plaintiff’s former jobs. (R. at 62 – 63). The vocational expert reported that Plaintiff’s past
employment included that of a light exertional, semi-skilled “automobile self-serve service
station attendant,” a light exertional, unskilled “housekeeping cleaner,” a light exertional,
unskilled “fast food worker,” and a medium exertional, unskilled “stores laborer.” (R. at 63 –
64). The ALJ asked whether a person of Plaintiff’s age, educational background, and
employment experience could perform Plaintiff’s past relevant work, or any other jobs existing
in significant numbers in the national economy, if he or she had no exertional or postural
limitations and could ask simple questions, accept instruction, and perform and function in a
production-oriented environment, but would be required to avoid exposure to workplace hazards
such as dangerous moving machinery and unprotected heights due to problems with
concentration, and would be limited to simple, one to three-step tasks of a routine and repetitive
17

nature, performed in a stable work environment requiring only occasional independent decision
making, occasional interaction with the public, and occasional interaction with co-workers due to
difficulty with concentration. (R. at 64 – 65).
The vocational expert responded that such a person would be capable of returning to
Plaintiff’s past relevant work as a housekeeping cleaner and stores laborer. (R. at 65). Further,
such a person would be eligible for employment as a “dining room attendant,” with 339, 588
positions available in the national economy, as a “kitchen helper,” with 381,127 positions
available, and as a “hospital cleaner,” with 341,370 positions available. (R. at 66). The ALJ
followed by asking whether employment would be available to a hypothetical person with the
limitations claimed by Plaintiff at the hearing. (R. at 67). The vocational expert replied that no
jobs would be available to such a person. (R. at 68). In response to questioning by Plaintiff’s
attorney, the vocational expert also stated that a person with an inability to deal with minimal
stress, an inability to miss/be tardy for work no more than twice a month on an ongoing basis, an
inability to stay on task at least ninety percent of a given work day, or an inability to make
simple work-related decisions, would be precluded from maintaining substantial gainful
employment. (R. at 68 – 70).
IV.

STANDARD OF REVIEW

Judicial review of the Commissioner's final decisions on disability claims is provided by
statute. 42 U.S.C. §§ 405(g)5 and 1383(c)(3).6 Section 405(g) permits a district court to review
the transcripts and records upon which the determination of the Commissioner is based.

5

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 ...
18

This Court's review is limited to determining whether the Commissioner's decision is
"supported by substantial evidence." 42 U.S.C. § 405(g); 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 ALJ's findings of fact are supported by substantial evidence, they are conclusive.
42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. A district court cannot conduct a de novo
review of the Commissioner's decision nor re-weigh the evidence of record. Palmer v. Apfel,
995 F. Supp. 549, 552 (E.D. Pa. 1998); see also Monsour Medical Center v. Heckler, 806 F.2d
1185, 90-91 (3d. Cir. 1986) ("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."). In other
words, as long as the Commissioner's decision is supported by substantial evidence, it cannot be
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).
6

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).

19

set aside even if this Court "would have decided the factual inquiry differently." Hartranft v.
Apfel, 181 F.3d 358, 360 (3d Cir. 1999). To determine whether a finding is supported by
substantial evidence, however, the district court must review the record as a whole. See 5 U.S.C.
§ 706.
To support his or her ultimate findings, an administrative law judge must do more than
simply state factual conclusions. He or she must make specific findings of fact. Stewart v.
Secretary of Health, Education & Welfare, 714 F.2d 287, 290 (3d Cir. 1983). The administrative
law judge must consider all medical evidence in the record and provide adequate explanations
for disregarding or rejecting evidence. Weir on Behalf of Weir v. Heckler, 734 F.2d 955, 961 (3d
Cir. 1984); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).
To be eligible for social security benefits under the Act, a claimant must demonstrate
that he 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 or can be
expected to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A),
1382c(a)(3)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986); see also Stunkard v.
Secretary of Health & Human Services, 841 F.2d 57, 59 (3d Cir. 1988); Kangas v. Bowen, 823
F.2d 775, 777 (3d Cir. 1987). A claimant is considered to be unable to engage in substantial
gainful activity "only if his [or her] physical or mental impairment or impairments are of such
severity that he [or she] is not only unable to do his [or her] previous work but cannot,
considering his [or her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A),
1382c(a)(3)(B).

20

The Social Security Administration ("SSA"), acting pursuant to its legislatively delegated
rulemaking authority, has promulgated a five-step sequential evaluation process for the purpose
of determining whether a claimant is "disabled" within the meaning of the Act. The United
States Supreme Court summarized this process as follows:
If at any step a finding of disability or non-disability can be made, the SSA will
not review the claim further. At the first step, the agency will find non-disability
unless the claimant shows that he is not working at a "substantial gainful activity."
[20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find nondisability unless the claimant shows that he has a "severe impairment," defined as
"any impairment or combination of impairments which significantly limits [the
claimant's] physical or mental ability to do basic work activities." §§
404.1520(c), 416.920(c). At step three, the agency determines whether the
impairment which enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled; if so, the claimant
qualifies. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the
list, the inquiry proceeds to step four, at which the SSA assesses whether the
claimant can do his previous work; unless he shows that he cannot, he is
determined not to be disabled. If the claimant survives the fourth stage, the fifth,
and final, step requires the SSA to consider so-called "vocational factors" (the
claimant's age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(c).
Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 157 L.Ed.2d 333 (2003) (footnotes
omitted); see also 20 C.F.R. § 404.1520. If the claimant is determined to be unable to resume
previous employment, the burden shifts to the Commissioner (Step 5) to prove that, given the
plaintiff's mental or physical limitations, age, education, and work experience, he or she is able
to perform substantial gainful activity in the national economy. Doak v. Heckler, 790 F.2d 26,
28 (3d Cir. 1986).
In an action in which review of an administrative determination is sought, the agency's
decision cannot be affirmed on a ground other than that actually relied upon by the agency in

21

making its decision. In Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 67
S. Ct. 1575, 91 L.Ed. 1995 (1947), the Supreme Court explained:
When the case was first here, we emphasized a simple but fundamental rule of
administrative law. That rule is to the effect that a reviewing court, in dealing
with a determination or judgment which an administrative agency alone is
authorized to make, must judge the propriety of such action solely by the grounds
invoked by the agency. If those grounds are inadequate or improper, the court is
powerless to affirm the administrative action by substituting what it considers to
be a more adequate or proper basis. To do so would propel the court into the
domain which Congress has set aside exclusively for the administrative agency.
Chenery Corp., 332 U.S. at 196. The United States Court of Appeals for the Third Circuit has
recognized the applicability of this rule in the Social Security disability context. Fargnoli v.
Massanari, 247 F.3d 34, 44, n. 7 (3d Cir. 2001). Thus, the Court's review is limited to the four
corners of the ALJ's decision.
V.

DISCUSSION

The ALJ found that Plaintiff suffered from the medically determinable severe
impairments of bipolar disorder, anxiety disorder, panic disorder with no severe agoraphobia and
obesity. (R. at 11). These impairments limited Plaintiff to jobs not involving exposure to
workplace hazards such as dangerous moving machinery and unprotected heights, and requiring
only simple, one to three-step tasks of a routine, repetitive nature, in a stable work environment,
provided there would be only occasional independent decision making, interaction with coworkers, and interaction with the public. (R. at 17 – 18). Plaintiff would, however, be capable
of asking simple questions, accepting instructions, and performing and functioning in production
oriented jobs. (R. at 17 – 18). Consistent with the testimony of the vocational expert, Plaintiff
was determined to be capable of engaging in his past relevant work, as well as a significant
number of jobs in the national economy. (R. at 20 – 21).

22

Plaintiff contends the ALJ erred in failing to find Plaintiff disabled at Step 3 and in
formulating an incomplete hypothetical and RFC assessment. (ECF No. 9 at 16 – 24). He
further argues that new evidence not considered by the Appeals Counsel, despite its significantly
probative value, merits remand for consideration by the ALJ. (Id.). Defendant urges the court to
conclude that the ALJ’s decision was supported by substantial evidence, and to deny Plaintiff’s
request for remand, because the new evidence would have had no effect on the ALJ’s ultimate
conclusions. (ECF No. 13 at 10 – 19).
Plaintiff specifically argues that medical records contained in Exhibit 17F7 constituted
new evidence justifying remand for consideration by the ALJ in accordance with Matthews v.
Apfel, 239 F.3d 589, 592 (3d Cir. 2001). (ECF No. 9 at 16). While a fair portion of the evidence
in Exhibit 17F was generated shortly before the hearing and the ALJ's decision, the court need
not determine whether the evidence meets all of the requirements to warrant a remand on this
basis alone because the remaining aspects of the record demonstrate that a remand is warranted
for independent reasons. On remand Plaintiff can seek to develop the record with all probative
evidence bearing on the period of disability under consideration.
Plaintiff’s arguments regarding the sufficiency of the ALJ’s hypothetical and RFC
assessment, as well as the ALJ’s determination that Plaintiff did not meet any of the listings at
Step 3 and had the residual functional capacity to return to forms of his prior work at Step 4, will
be discussed together, because the ALJ improperly discounted or disregarded evidence that
impacted each significantly. When rendering a decision, an ALJ must provide sufficient
explanation of his or her final determination to provide a reviewing court with the benefit of the
factual bases underlying the ultimate determination on disability. Cotter v. Harris, 642 F.2d 700,
7

Exhibit 17F; R. at 532 – 64.
23

705 (3d Cir. 1981) (citing S.E.C. v. Chenery Corp., 318 U.S. 80, 94 (1943)). The ALJ must
discuss and provide sufficient explanation regarding his or her assessments of probative and
relevant evidence bearing on a claimant’s disability status, and when rejecting or discounting
such evidence the ALJ must provide a sufficient level of analysis to allow the reviewing court to
determine whether any such rejection or discounting was proper. Johnson v. Comm’r of Soc.
Sec., 529 F.3d 198, 203 – 04 (3d Cir. 2008) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
121 (3d Cir. 2000) ("In making a residual functional capacity determination, the ALJ must
consider all evidence before him.... Although the ALJ may weigh the credibility of the evidence,
he must give some indication of the evidence which he rejects and his reason(s) for discounting
such evidence."). This is particularly true where there is conflicting probative evidence in the
record. Id. (citing Cotter, 642 F.2d at 706 (“[T]here is a particularly acute need for some
explanation by the ALJ when s/he has rejected relevant evidence or when there is conflicting
probative evidence in the record.”)). In the present case, the ALJ failed to meet these standards.
In general, the ALJ determined that a longitudinal view of the record failed to support
Plaintiff's reports of disabling panic attacks and mood swings. He further determined that
Plaintiff had exaggerated the nature and extent of his limitations and his reports of such
limitations were not supported by the reports from the treating sources. He made a finding that
Plaintiff had "a secondary gain motivation" that was evident from his poor earnings record and
his primary support while growing up.8 Plaintiff had "little motivation" to seek employment,
apparently due to the lack of "a role model in his life who has worked." (R. at 19).
8

Plaintiff had no contact with his father. Plaintiff's mother had a history of depression, panic
disorder and agoraphobia which had rendered her disabled while Plaintiff was a young child.
Plaintiff's maternal grandfather suffered a disabling stroke and was paralyzed when Plaintiff was
10 or 11. (R. at 335 - 36).
24

With respect to the psychological opinions and limitations assessment of Dr. Groves, the
only practicing clinical psychologist to have examined Plaintiff and/or all of the medical records
detailing Plaintiff's ongoing history and treatment, the record included approximately ten pages
of findings based upon a review of Plaintiff’s medical record and an extensive in-person
evaluation of Plaintiff. (R. at 457 – 67). In discussing Dr. Groves’ opinions and assessments,
the ALJ posited that prior evidence to support her conclusion that Plaintiff suffered a cognitive
and/or personality disorder was not in the record and these manifestations of Plaintiff's emotional
health were not evident from the earlier evaluations at Chestnut Ridge. He also reiterated that
the ultimate determination of disability under the Act is reserved for the ALJ. (R. at 15, 19).
The ALJ rejected Dr. Groves’ findings pursuant to the explanation that she had only
evaluated Plaintiff for approximately one hour and had based a portion of her findings on
medical records not ultimately submitted to the ALJ. (R. at 19). Dr. Groves’ findings also
apparently were substantially discounted due to her reliance upon Plaintiff’s subjective
complaints and supposedly because the longitudinal record did not support her conclusions. (R.
at 19). And the longitudinal picture indicated that Plaintiff's depression and anxiety were related
to situational and relationship problems and Plaintiff improved whenever he was compliant with
his prescribed medication protocol. (R. at 16). Beyond this general conclusion, however, the
ALJ discussed very few of the detailed findings of Dr. Groves, and failed to provide much in the
way of record evidence to contradict said findings. Such summary and ipse dixit reasoning fails
to discharge the ALJ's duty to develop and examine the probative evidence of record, weight that
evidence and provide adequate explanation for why certain evidence has been credited and other
evidence has been rejected.
25

As an initial matter, the ALJ's logic that Dr. Groves' reliance on her examination of
Plaintiff made her assessment of his mental and emotional health suspect falls short of satisfying
the above-referenced standards. It is well settled that in the context of psychiatric and
psychological impairments, the ALJ may reject the opinions and assessments of treating and
examining physicians only on the basis of contradictory medical evidence. Morales, 225 F.3d at
317-18. Of course, in doing so "an ALJ may not make speculative inferences from medical
reports." Plummer, 186 F.3d at429 (citing Smith v. Califano, 637 F.2d 968, 972 (3d Cir.1981)).
"In addition, an ALJ is not free to employ her own expertise against that of a physician who
presents competent medical evidence." Id. (citing Ferguson v. Schweiker, 765 F.2d 31, 37 (3d
Cir.1985)); accord Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984) (The ALJ should not
substitute his lay opinion for the medical opinion of experts or engage in "pure speculation"
unsupported by the record.). Where conflicting evidence exists, the ALJ may choose whom to
credit but "cannot reject evidence for no reason or for the wrong reason." Plummer, 186 F.3d
at429 (citing Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)). In other words, an AALJ
cannot . . disregard [the import of competent medical evidence] based solely on his own
amorphous impressions, gleaned from the record, and from his evaluations of the claimant=s
credibility.@ Morales, 225 F.3 at 318 (quoting Kent v. Schweiker, 710 F.2d 110, 115 (3d Cir.
1983)). And Athe principle that an ALJ should not substitute his lay opinion for medical opinion
of experts is especially profound in a case involving a mental disability.@ Id. at 319.
Here, the treating and examining psychologists/psychiatrists were trained in psychology
and psychiatry. That training would have included the skills necessary to detect malingering or
exaggeration. The examining psychologists and psychiatrists all arrived at essentially the same

26

diagnoses and assessment of plaintiff=s ability to function. These mental health care experts
consistently recognized significant conditions and limitations over a two year period of time.
Plaintiff was evaluated by Dr. Tavoularis in May of 2008 and over a period of time
examination and counseling produced diagnoses that typically included depression, bipolar
disorder and anxiety disorder. (R. at 338 – 43, 397 – 447). His GAF scores as assessed by these
mental health experts likewise ranged from 40 to a high of 55, which was not indicative of an
individual who can cope with the rigors of substantial gainful activity on a systematic and
sustained basis. (R. at 335 – 43, 397 – 447). During this time Plaintiff was hospitalized at
Western Psych for a second time, diagnosed with depression and given a low GAF score of 20 at
admission and a high score of 50 at discharge, all of which is additional medical evidence that is
consistent with the records from Chestnut Ridge. (R. 371 – 73, 468 – 530).
Furthermore, the record contains no affirmative evidence reflecting a longitudinal
improvement in plaintiff=s mental or emotional health in the months preceding Dr. Goves'
assessments. Plaintiff experienced a second admission to Western Psych on October 1, 2008.
And while he did enjoy a brief period of improvement in the late winter and spring of 2009, he
had a third admission for poor mental health on August 12, 2009, at Highlands Hospital, which
lasted for five days. During this time Plaintiff continued to seek treatment at Chestnut Ridge,
which provided a well-developed record that supported Dr. Groves' review and assessment in
November of 2009.
Against this backdrop the ALJ's attempt to discount Dr. Groves' November 2009 opinions
and assessments based on the reasoning that Plaintiff's condition would not be disabling if he
merely avoided an ongoing relationship and/or further interaction with his ex-boyfriend cannot
stand. Without any support for such a cause and effect analysis in the medical evidence of the
27

treating and examining mental health providers/consultants, such reasoning amounts to nothing
more than a rank lay opinion that cannot supply substantial evidence and runs counter to the
principles in Morales that an established mental disability cannot be dismissed based on the
substitution of lay opinion and rank speculation.
The ALJ's attempt to attribute Plaintiff's claimed limitations to a secondary desire for
monetary gain and the lack of an affirmative wage earner as a role model suffer from the same
shortcomings. There was not even a scintilla of evidence to support these attributions as being
actual causes of Plaintiff's impairments or his claimed limitations. Furthermore, the trained
medical experts indicated Plaintiff was motivated to overcome his poor mental health and
Plaintiff attempted to return to the workforce for two days a week in the Spring of 2009 when he
enjoyed a brief respite of better health. This affirmative evidence directly undermined the ALJ's
speculative inferences.
Moreover, Dr. Groves' examination of Plaintiff and her review of his medical records led
her to render the diagnoses of bipolar disorder, panic disorder with agoraphobia, cognitive
disorder, and borderline personality disorder. (R. at 457 – 67). She noted a long list of
symptoms and behaviors that were quite consistent with the impairments and limitations noted
by Dr. Tavoularis, which included appetite disturbance with weight change, sleep disturbance,
personality change, mood disturbance, emotional lability, recurrent panic attacks, anhedonia,
paranoia, feelings of guilt/worthlessness, difficulty concentrating, suicidal ideation/attempts,
social withdrawal, blunt affect, decreased energy, manic syndrome, obsessions/compulsions,
irrational fears, hostility/irritability, and pathological dependence/passivity. (R. at 457 – 67).
These behaviors and symptoms were consistent with and evidenced by Plaintiff’s cyclical bouts
of poor mental health noted in the treatment records generated at Chestnut Ridge as well as the
28

records generated from Plaintiff’s repeated hospitalizations. Thus, Dr. Groves' extensive
findings and assessments were significantly supported by all other mental healthcare providers
who actually examined Plaintiff and reviewed his history of ongoing mental health treatment on
a longitudinal continuum.
The only consulting expert who examined Plaintiff at the Commissioner’s request
likewise rendered findings and assessments that were consistent and in line with those of Dr.
Groves. Psychologist Detore evaluated Plaintiff in September of 2008 and determined that he
had a fair to guarded prognosis due to the rapid phases of his bipolar disorder and the degree of
his depression. (R. at 344 – 51). Dr. Detore formed the opinion that Plaintiff would experience
difficulty in a work setting and experience increased panic and anxiety in social situations,
assessments that appear to be supported by a longitudinal review of the record.
Against this backdrop, the summary conclusions reached by John Rohar, Ph.D., did not
supply substantial evidence that directly undermined Dr. Groves' opinions, assessments and
limitations. Dr. Rohar conducted a record review on October 1, 2008. As of that date Plaintiff's
medical records appear to have consisted of Plaintiff's initial hospitalization at Western Psych in
March of 2007, his follow-up care at St. Margaret Hospital, emergency room visits at Frick
Hospital and Wesley Health Center and the initial assessment by Dr. Tavoularis at Chestnut
Ridge. They could not have included the significant body of medical evidence generated from
Plaintiff's second hospitalization at Western Psych from October 1 through October 7, 2008, his
third hospitalization from August 12, through August 17, 2009, at Highlands Hospital, and his
ongoing treatment at Chestnut Ridge from December of 2008 through August of 2009, all of
which would have been available to Dr. Groves in November of 2009.

29

Furthermore, Dr. Rohar's assessments were limited to completing a check-the-box form
and the rendering of summary conclusions with no explanation as to what had been considered,
the manner and degree to which any particular piece of medical or other evidence was credited or
discredited and the reasons for doing so, and a comparison or contrasting with the remaining
body of evidence. In other words, it constituted mere conclusion without any supporting
explanation. It is well-settled that such assessments have minimal probative force, see Brewster
v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986), particularly where they are in conflict with much
of the remaining medical evidence. Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (single
piece of evidence is not substantial where it is overwhelmed by other evidence); accord Morales,
225 F.3d at 320.
Of course, the ALJ’s summary dismissal of a large body of probative and consistent
medical evidence going to the heart of Plaintiff’s claimed disability based on the same reasoning
and without detailed comparisons, contrasts and evaluations of the determinations by those who
have been trained to provide competent mental health care does not discharge the ALJ’s duty to
engage in a sufficient discussion of the entire record and provide adequate explanations for why
a body of highly probative medical evidence has been rejected. In other words, in this setting
the ALJ=s personal observations and assessments of the claimant and/or his credibility and
clandestine motivation lack probative force and cannot supply a sufficient basis for rejecting the
critical and enlightened assessments by the examining and treating mental health providers.
Morales, 225 F.3 at 319 (AThis Court has said before that an ALJ=s personal observations of the
claimant carry little weight in cases involving medically substantiated psychiatric disability.@).
Given the fairly uniform body of medical evidence by the treating and examining mental health
care professionals, the ALJ was not at liberty to reject the substantial body of consistent opinions
30

and assessments as it existed at the time of the hearing without significant contrary objective
medical evidence that took into account all of the medical evidence as it existed.
The ALJ also was not at liberty to reject summarily Plaintiff's subjective complaints and
reports of limitations. The Act recognizes that under certain circumstances the subjective
reporting of limitations may in itself may be disabling:
[a]n individual's statement as to pain or other symptoms shall
alone not be conclusive evidence of disability ...; there must be
medical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that result from anatomical,
physiological or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence
required to be furnished under this paragraph (including
statements of the individual or his physician as to the
intensity and persistence of such pain or other symptoms
which may reasonably be accepted as consistent with
the medical signs and findings), would lead to a
conclusion that the individual is under disability.
42 U.S.C. § 423 (d)(5)(A); Green v. Schweiker, 749 F.2d 1066 (3d Cir. 1984). The United States
Court of Appeals for the Third Circuit has set forth a four-prong standard to be used by district
courts when reviewing assessments of the Commissioner based on subjective reports of
significant limitations: (1) subjective complaints are to be seriously considered, even where not
fully confirmed by objective medical evidence; (2) subjective complaints may support a claim
for disability benefits and may be disabling; (3) when such complaints are supported by medical
evidence, they should be given great weight; and finally, (4) where the claimant's testimony
about the reported limitation is reasonably supported by medical evidence, the ALJ may not
discount the limitation without contrary medical evidence. Ferguson v. Schweiker, 765 F.2d 31
(3d Cir. 1985).
31

In evaluating such limitations, an ALJ must accord subjective complaints the same
treatment as objective medical reports, in that he must weigh all the evidence before him and
explain his or her reasons for crediting and/or rejecting such evidence. Burnett v. Commissioner
of Social Security, 220 F.3d 112, 122 (3d Cir. 2000). In doing so serious consideration must be
given to subjective complaints where a medical condition exists that could reasonably produce
such complaints. Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d Cir. 1993). When medical
evidence provides objective support for the subjective complaint, the ALJ can only reject such a
complaint by providing contrary objective medical evidence. Mason, 994 F.2d at 1067-68. And
"in all cases in which pain or other symptoms are alleged, the determination or decision rationale
must contain a thorough discussion and analysis of the objective medical and the other evidence,
including the individual's complaints of pain or other symptoms and the adjudicator's personal
observations. The rationale must include a resolution of any inconsistencies in the evidence as a
whole and set forth a logical explanation of the individual's ability to work." Schaudeck v.
Commissioner of Social Security, 181 F.3d 429, 433 (3d Cir. 1999) (citing S.S.R. 95-5p at 2
(1995)). An ALJ also must give a claimant's subjective description of his or her inability to
perform light or sedentary work serious consideration when this testimony is supported by
competent evidence. Id.
Here, the record was replete with diagnoses and confirmation of numerous mental health
impairments that could be expected to produce the limitations reported by Plaintiff to the treating
and examining mental health providers and the ALJ. The natural of the impairments could well
be expected to produce the limitations reflected in the treatment and consulting records and
recounted by Plaintiff at the hearing. Each of the trained mental health providers that interacted

32

with Plaintiff did not question the existence of the reported limitations and each treating source
sought to render effective treatment to reduce those limitations.
The ALJ also glossed over the almost continual fluctuation in Plaintiff’s psychological
impairments, including the ongoing effort to find effective combinations of psychological
medications and therapy. The ALJ asserted that Plaintiff’s anxiety was under control as long as
Plaintiff was "medication compliant," when quite often the medical record and Plaintiff’s own
statements indicated otherwise. The ALJ regularly attributed Plaintiff’s hospitalizations to
altercations with his boyfriend, but failed to indicate how this behavior was inconsistent with the
expected effects of his diagnosed impairments and conditions – making what was in essence a
medical conclusion when stating that his depression and anxiety were purely situational. (R. at
16). And even assuming this assessment had some validity with regard to Plaintiff's periodic
episodes of decompensation, the ALJ failed to explain the medical evidence used to reject the
medically established proposition that Plaintiff's inability to handle conflict and maintain social
relationships extended to the stresses of the workplace, at least as to Plaintiff's ongoing mental
health in November of 2009.
The ALJ also failed to explain how the constant search for a successful combination of
medication and therapy was consistent with an ability to meet the rigors of substantial gainful
employment on an ongoing and sustained basis. By the time Plaintiff was evaluated by Dr.
Groves, his list of daily medications included Tegretol, Lamictal, Zofran, Xanax, Dolobid,
Inderal LA, Loratdine, Prinzide, Klonopin, Prevacid, Medizine, Maxalt, Soma and Ventalin. (R.
at 461). Even though Plaintiff did not generally complain of medication side effects, the record
was replete with instances wherein medications needed to be adjusted and/or changed due to
issues with effectiveness. This was consistent throughout the period of time under review.
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While Plaintiff’s inability to access funds for proper medication also led to problems with
medication effectiveness, this was far from the only source of difficulty in finding a course of
treatment that would provide effective treatment on a long-term basis. In this regard the ALJ
failed to detail a complicated medical record in a thorough manner to account for this consistent
and troubling aspect of the medical evidence. Remand is therefore required.
With respect to the numerous GAF scores found in the record, the ALJ provided an even
less thorough discussion, basing the decision to reject the validity of the scores outright on
nothing other than broad generalizations that lacked the support of specific references to the
record. (R. at 19). The ALJ reasoned that such scores generally are unreliable and not entitled to
any meaningful consideration because from his perspective and experience mental health care
providers could assign (and had assigned) wildly divergent scores within a relatively short period
of time with no justified basis for doing so. Of course, the ALJ failed to point to any such
discrepancy in the instant record and except on a few occasions and for a brief period Plaintiff's
GAF scores consistently were 50 or lower, measurements that the ALJ acknowledged are
considered to be object findings of a significant impairment. But having summarily rejected
such scores as unreliable and unworthy of any credence, the ALJ’s discussion only referenced
the few higher GAF scores, presumably to bolster the final disability findings. The ALJ failed to
even mention the numerous lower scores, including many scores in the 20s and 40s.
GAF scores are probative evidence that should be addressed by an ALJ, even if such
scores – standing alone – would not satisfy a claimant’s burden of proving disability. Pounds v.
Astrue, 772 F. Supp. 2d 713, 725 - 26 (W.D. Pa. 2011). An ALJ cannot merely discount such
scores based on his own personal opinion that they generally are unreliable and untrustworthy.
Here, the array of low scores and the consistency over time were more than sufficient to warrant
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meaningful consideration of the same in assessing whether Plaintiff had met his burden.
Rejecting such scores as unreliable generally based on personal experience, focusing only upon a
select handful of the highest GAF scores, and summarily rejecting numerous scores that suggest
serious mental impairment, likewise was error justifying remand. Id.
The ALJ likewise appears to have employed an incorrect standard in conducting his
review of the record. Judicial review of the Commissioner's decision addresses three issues: (1)
whether the Commissioner applied the proper legal standards; (2) whether the findings of fact
upon which the determination rests are supported by substantial evidence; and (3) whether the
findings of fact resolved the crucial issues. Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir.
1983) ("However, 'even if the Secretary's factual findings are supported by substantial evidence,
this court may review whether the administrative determination was made upon correct legal
standards.'") (quoting Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J.1981) (citations omitted));
Strickland v. Harris, 615 F.2d 1103, 1108 (5th Cir. 1980) ("The ALJ's conclusion of law will not
be disturbed on judicial review (a) if it was reached through application of proper legal
standards, (b) if the fact findings upon which it is based are supported by substantial evidence,
and (c) if it was based on findings of fact which resolve the crucial issues."). Consideration of
the second and third issues presupposes that the correct legal principles have been applied to the
facts. In the disposition below the ALJ references Plaintiff's failure (1) "to establish any
continuous 12 month period since his alleged onset date during which his functional limitations
associated with his impairments . . . have been of a level of severity to establish the presence of a
presumptive disability" and (2) "to establish any continuous 12 month period since his alleged
onset date during which the claimant's impairments have precluded his performance of the range

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of work detailed above on a regular and continuous basis, eight hours a day for five days per
week." (R. at 16, 20).
Of course, as noted above to be eligible for benefits under the Act, a claimant must
demonstrate 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 or can be expected to last for a continuous period of at least 12 months. 42 U.S.C. §
423(d)(1)(A), 1382c(a)(3)(A) (emphasis added); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir.
1986); see also Stunkard v. Secretary of Health & Human Services, 841 F.2d 57, 59 (3d Cir.
1988); Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). The ALJ's disposition makes no
attempt to address whether the medical evidence establishes that as of November of 2009
Plaintiff suffered from a combination of medically determinable mental impairments which were
producing disabling limitations that could can be expected to last for a continuous period of
twelve months from that or any prior point in time. The inability to ascertain with some level of
confidence that the ALJ measured Plaintiff's claims in conjunction with this component of the
applicable standard of review supplies an additional ground warranting remand.
Finally, the ALJ drew negative inferences from the fact that Plaintiff had received recent
treatment from Psychiatrist Mullick, Dr. Groves reviewed records from this treatment and the
records had not been submitted to the ALJ for review and evaluation. The ALJ was made aware
of this ongoing treatment both at the hearing and through the submission of Dr. Groves' report
and findings. Notwithstanding the propinquity of this treatment, the ALJ did not ask Plaintiff to
submit any records from this treatment provider, nor did he take any steps to obtain the records.
Instead, within two months of the hearing he merely drew the inference that they did not support
Plaintiff's application and/or Dr. Groves' opinions and assessments (and by implication were
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inconsistent with the treatment records from Chestnut Ridge in that they suggested the presence
of additional and/or more severe and debilitating limitations), even though the records were
generated by the most recent treating source and Dr. Groves' submission indicated they were the
most recent assessments of Plaintiff's impairments, directly addressed Plaintiff's current
symptoms and limitations and established disabling limitations.
The ALJ fell short in his duty to develop the record fully when he failed to ascertain
whether there were records generated from the treatment and then drew negative inferences
because whatever was reviewed by Dr. Groves was not submitted for his review. It is well
settled that an ALJ has a duty to develop the record adequately, even where the claimant is
represented by counsel. See Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir.2005); Boone v.
Barnhart, 353 F.3d 203, 208 n. 11 (3d Cir.2004) (collecting cases). This is particularly true
where the record provides affirmative evidence indicating that additional development may be
needed to determine impairment severity in conjunction with mental impairments and any
resulting limitations. Baker v. Barnhart, 2005 WL 2847689, * 11 (W.D. Pa. Oct. 28, 2005)
(citing 20 C.F.R. § 416.920(a)). Here, the ALJ did not request that any records from the recent
treatment with Dr. Mullick be submitted or even offer to keep the record open for a period of
time so Plaintiff could obtain and submit those records. The ALJ's review of Dr. Groves'
residual functional capacity assessment clearly indicated that Dr. Mullick had recently assessed
the severity of Plaintiff's impairments and rendered findings identifying additional impairments
in the form of a cognitive impairment and borderline personality disorder. And while the ALJ
dismissed any basis in the record for a cognitive impairment, Plaintiff had reported symptoms
that were consistent with such a diagnosis after his October 1, 2008 "near fatal" overdose leading
to a coma and respiratory failure. As previously noted, such information necessarily was not
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available to Dr. Rohar or Dr. Detore and was not taken into account by any other medical source.
It was contrary to the beneficent purposes of the Act to seize on the opportunity to draw negative
inferences about these additional bases for the symptoms and limitations claimed by Plaintiff and
highlighted by Dr. Groves without any effort to obtain competent medical evidence about them.
As there are additional bases warranting remand, the ALJ should further develop the record,
consistent with his duties, by exploring all available medical evidence (and any additional
medical evidence deemed appropriate) on how these additional mental impairments contribute to
Plaintiff's limitations or otherwise impact his ability to engage in substantial gainful activity.
VI.

CONCLUSION

In light of the ALJ’s failure to address properly all of the relevant evidence of record and
indicate clearly that the proper legal principles were employed, the court cannot conclude that
the decision at Step 3 was supported by substantial evidence, or that the hypothetical or RFC
assessment were truly reflective of Plaintiff’s credibly established limitations. Accordingly,
Plaintiff’s Motion for Summary Judgment will be granted to the extent it seeks a remand;
Defendant’s Motion for Summary Judgment will be denied; the decision of the ALJ will be
vacated; and the case remanded for further proceedings consistent with this opinion. “On
remand, the ALJ shall fully develop the record [for the entire period of disability under
consideration] and explain [his or her] findings . . . to ensure that the parties have an opportunity
to be heard on the remanded issues and prevent post hoc rationalization.” Thomas v.
Commissioner of the Social Security Administration, 625 F.3d 798, 800 – 01 (3d Cir. 2010);

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accord Ambrosini v. Astrue, 727 F. Supp.2d 414, 432 (W.D. Pa. 2010). Appropriate orders will
follow.

Date: February 2, 2012

s/ David Stewart Cercone
David Stewart Cercone
United States District Judge

cc.

E. David Harr, Esquire
Albert Schollaert, AUSA
(Via CM/ECF Electronic Mail)

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