# SANTIAGO HERNANDEZ v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · September 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10269090

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RAMON SANTIAGO HERNANDEZ,
Plaintiff,
Civ. No. 19-18528 (KM)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Plaintiff Ramon Santiago Hernandez brings this action pursuant to 42
U.S.C. § 1383(c)(3) to review a final decision of the Commissioner of Social
Security, denying his claim for Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act, 42 U.S.C. § 1381. Santiago Hernandez
seeks to reverse the finding of the Administrative Law Judge (“ALJ”) that he has
not met the Social Security Act’s definition of disabled as of August 11, 2011,
the alleged onset date.
The question is whether the ALJ’s decision is supported by substantial
evidence. Specifically, Santiago Hernandez contends that (1) the evidence does
not support the ALJ’s finding that Santiago Hernandez had no exertional
limitations; (2) the ALJ failed to address Santiago Hernandez’s attendance in a
partial hospitalization program; and (3) the ALJ should have addressed
multiple forms of consistent opinion evidence.
For the reasons stated below, the decision of the ALJ is REVERSED and
REMANDED.
BACKGROUND1
Plaintiff Ramon Santiago Hernandez claims a variety of disabling
physical and psychological ailments. These include schizophrenic disorder,
which is characterized by nervousness, panic attacks, and hallucinations;
memory impairment; and “nightmares, depression, [and] bad thoughts.” (DE 8
at 5). There is evidence of a childhood marked by trauma and abuse, leading to
inability to function well in large groups of people, nervousness and panic
attacks. He also relates a series of physical assaults he suffered while serving
in prison. After a car accident in 2011, Santiago Hernandez has also had
problems with his back and shoulders.
A. Procedural History
On April 16, 2015, Santiago Hernandez applied for SSI benefits, alleging
an onset date of August 8, 2011. His claim was initially denied on August 21,
2015, and his motion to reconsider was denied on July 19, 2016. On August
17, 2016, Santiago Hernandez requested a hearing, which was held on May 31,
2018. (ALJ 1). Administrative Law Judge Dennis O’Leary rendered a decision
on August 8, 2018, finding that Santiago Hernandez was not disabled. (ALJ
18). On August 7, 2019, the Appeals Council denied Santiago Hernandez’s
request for review.
Santiago Hernandez’s Physical Condition
In February 2014, lumbar x-rays revealed that Santiago Hernandez’s
spine had undergone mildly degenerative changes. (Ex. 7).
In the spring of 2015, Santiago Hernandez was admitted to East Orange
General Hospital, where Dr. Joan Kowalle, a rheumatologist, diagnosed him
with chronic lower back pain, elevated rheumatoid factor, mild osteoarthritis,
and chronic back pain. (Ex. 7).

1 “DE __” refers to the docket entry numbers in this case. “Ex. __” refers to the
exhibit numbers of the administrative proceeding, which are located at DE 5. “ALJ”
refers to the decision of the administrative law judge, which is located at DE 5-2.
On June 30, 2015, Dr. Jose Bustillo, an internist at East Orange General
Hospital, noted that Hernandez Santiago had a limited range of motion with
abduction and adduction, external rotation, and internal rotation. Dr. Bustillo
diagnosed him with chronic pain of both shoulders, obesity, and a partial
rotator cuff tear. (Ex. 18).
In September 2015, Santiago Hernandez complained of hand pain to
neurologist Dr. Nizar Souayah, but the examination yielded no results. Follow-
up x-rays in March 2016 also yielded no results. (Ex. 9).
On March 11, 2016, Dr. Marc Weber of Essex Diagnostic Group
performed a consultative examination on and found that Santiago Hernandez
had “chronic diffuse pain of unclear etiology” and noted a “history of
generalized osteoarthritis.” Dr. Weber speculated that the “situation may reflect
fibromyalgia as well.” Dr. Weber ordered a lumbar MRI, which revealed only
slight hypertrophy. The same day, Dr. Stephen Toder, also of Essex Diagnostic
Group, noted that frontal and lateral views of Santiago Hernandez’s lumbar
spine showed a “very mild levoscoliotic curvature.” (Ex. 15).
On September 9, 2016, practitioners at Premier Orthopaedics and Sports
Medicine noted that the range of motion in Santiago Hernandez’s shoulders
was severely limited, and they diagnosed him with frozen-shoulder syndrome.
(Ex. 19).
In November 2016, Santiago Hernandez reported to Dr. Bustillo that
physical therapy had at least temporarily relieved his shoulder pain. A follow-
up examination revealed that he had limited upper extremity motion but
retained full strength. In October 2017, Dr. Bustillo reported that Santiago
Hernandez’s rotator cuff tear was asymptomatic and that he had no limitations
in movement. (Ex 18).
Santiago Hernandez’s Psychological Condition
On July 17, 2015, Dr. Kim Arrington performed a consultative exam,
noting that Santiago Hernandez had borderline to low-average intelligence and
that, due to mood fluctuations, his judgment ranged from fair to poor. Dr.
Arrington predicted that Santiago Hernandez would have “difficulty performing
simple tasks due to low motivation” and that he would struggle “learning new
tasks and performing complex tasks due to problems with motivation and poor
memory.” She also observed that he would “have difficulty maintaining a
regular schedule due to hypervigilance.” Dr. Arrington diagnosed Santiago
Hernandez with PTSD and noted that he would “need support managing funds
due to self-reported difficulty with money management.” She also concluded
that Santiago Hernandez could follow and understand simple directions and
instructions, would have difficulty performing simple tasks due to low
motivation, would be able to maintain attention and concentration but would
struggle to learn new tasks and perform complex tasks, and would have
difficulty maintaining a regular schedule. His difficulties, she opined, appeared
to be attributable to mood fluctuations and anxiety. (Ex. 6).
In September 2015, Dr. Erin Zerbo, a psychiatrist at University Hospital
in Newark, New Jersey, noted that Santiago Hernandez had auditory
hallucinations, forgetfulness, and a history of panic attacks. She believed that
he was “mentally disabled and []not able to work.” She diagnosed him with
schizoaffective disorder, major depressive disorder, PTSD, and delirium. (Ex. 9).
On February 2, 2016, Linda Gable-Gaston, an advanced nurse
practitioner at East Orange General Hospital, noted that Santiago Hernandez
had adjustment disorder, PTSD, and schizoaffective disorder and suggested
that these diagnoses would limit his ability to participate in gainful
employment or occupational training. Gable-Gaston found that Santiago
Hernandez had psychomotor retardation, could not stand, and had severe
psychiatric symptoms. An MRI suggested that he might have Burford complex.
(Ex. 11).
On March 7, 2016, Dr. Ronald Silikovitz performed a consultative exam
and noted that Santiago Hernandez could not identify the day, date, month,
year, or the current president or governor. Santiago Hernandez could not spell
“world” backwards, could not repeat a two-digit sequence backwards or
complete a “serial seven task.” Santiago Hernandez also laughed at
inappropriate times during the examination and had difficulty maintaining eye
contact. Dr. Silikovitz diagnosed him with paranoid schizophrenia,
hallucinations, mixed anxiety, severe depressions, and PTSD, and stated that
he was not capable of managing his own funds. (Ex. 14).
On April 18, 2016, Hernandez Santiago was admitted to New Essecare of
New Jersey (“Essecare”) in Orange, New Jersey and began attending a partial
hospitalization program several times a week. (Ex. 22).
On May 18, 2018, Cecilia Horner, a licensed social worker, noted that
Santiago Hernandez had been diagnosed with schizoaffective disorder and
PTSD. Homer opined that clients with these diagnoses might have problems
functioning well in the workplace. Horner also noted that Santiago Hernandez
did not have a substantial work history and had never held a job for more than
a few months. (Ex. 23).
In April 2019, Hernandez Santiago was admitted to the emergency
department at University Hospital in Newark, due to paranoia and self-harm.
Doctors determined that he had PTSD, schizophrenia, and insomnia. (Ex. 20).
B. The ALJ’s Decision
Judge O’Leary reviewed the administrative record and found that:
1. Santiago Hernandez had not engaged in substantial gainful activity
since April 16, 2015, the date he filed his application; (ALJ 10)
2. Santiago Hernandez had the following severe impairments: organic
mental disorder; affective disorders; schizoaffective disorder;
anxiety; PTSD; and a partial bilateral shoulder cuff tear; and that
the back disorder was a “non-severe” impairment; (ALJ 10)
3. Santiago Hernandez did not have an impairment or combination of
impairments that met or medically equaled the severity of one of
the impairments listed in 20 CFR Part 404, Subpart P, App. 1;
(ALJ 10–12)
4. Santiago had the following residual function capacity: no exertional
limitations and could therefore perform heavy work but could not
frequently lift his arms bilaterally over his head and was limited to
jobs of a simple and repetitive nature, due to a reduced ability to
concentrate and focus; and that he was limited to jobs with no
direct contact with the public and minimal contact with coworkers
and supervisor; that Santiago Hernandez could perform his past
relevant work as a warehouse worker and hand packager and that
these jobs do not require the performance of work-related activities
precluded by his residual functional capacity; (ALJ 12–18) and that
5. Santiago Hernandez had not been under a Social Security Act-
eligible disability since April 16, 2015, the date that he filed his
application. (ALJ 18)
Santiago Hernandez filed the complaint in this case on September 30,
2019. (DE 1).
DISCUSSION
A. Standard of Review
As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the ALJ’s findings, as long as they are
supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will
“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zirnsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
omitted).
When there is substantial evidence to support the ALJ’s factual findings,
this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C.
§ 405(g)); Zirnsak, 777 F.3d at 610-11 (“[W]e are mindful that we must not
substitute our own judgment for that of the fact finder.”). This Court may,
under 42 U.S.C. § 405(g), affirm, modify, or reverse the Commissioner’s
decision, or it may remand the matter to the Commissioner for a rehearing.
Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm’r of
Soc. Sec., 235 F. App’x 853, 865–66 (3d Cir. 2007).
In reaching a decision, an ALJ is only required to addressed relevant
examinations, opinion evidence, and the claimant’s complaints. See Cotter v.
Harris, 650 F.2d 481, 482 (3d Cir. 1981) (An ALJ is only required to “indicate
that s/he has considered all the evidence, both for and against the claim, and
provide some explanation of why s/he has rejected probative evidence. . . .
[T]he ALJ is not required to supply a comprehensive explanation for the
rejection of evidence; in most cases, a sentence or short paragraph would
probably suffice.”).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five-step inquiry. See Podedworny, 745 F.2d at 221–22. Remand is also proper
if the ALJ’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119–20 (3d Cir. 2000).
B. The Social Security Act and the Five-Step Process
To qualify for SSI, a claimant must meet income and resource
limitations, and show that “he is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 1383c(a)(3)(A). A person is deemed unable to engage in substantial
gainful activity
only if his physical or mental impairment or impairments are of
such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists in
the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied
for work. For purposes of the preceding sentence (with respect to
any individual), “work which exists in the national economy”
means work which exists in significant numbers either in the
region where such individual lives or in several regions of the
country.
42 U.S.C. § 1382c(a)(3)(B).
Under the authority of the Social Security Act, the Administration has
established a five-step evaluation process for determining whether a claimant
is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. This
Court’s review necessarily incorporates a determination of whether the ALJ
properly followed the five-step process prescribed by regulation. The steps may
be briefly summarized as follows:
Step One: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.
§§ 404.1520(b), 416.920(b). If yes, the claimant is not disabled. If not, move to
step two.
Step Two: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id. §§ 404.1520(c), 416.920(c). If not,
the claimant is not disabled. If the claimant has a severe impairment, move to
step three.
Step Three: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt.
404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high
level to identify clear cases of disability without further analysis). If so, the
claimant is automatically eligible to receive benefits; if not, move to step four.
Id. §§ 404.1520(d), 416.920(d).
Step Four: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform past
relevant work. Id. §§ 404.1520(e)–(f), 416.920(e)–(f). If yes, the claimant is not
disabled. If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering his age, education, work
experience, and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g); see
also Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so,
benefits will be denied; if not, they will be awarded.
C. Analysis
Santiago Hernandez identifies three issues in the ALJ’s decision that he
alleges constitute reversible error. He argues that (1) the evidence does not
support the ALJ’s finding that he had no exertional limitations; (2) the ALJ
failed to address his attendance in a partial hospitalization program; and (3)
the ALJ should have addressed multiple forms of consistent opinion evidence.
(DE 8 at 17–24).
Finding of no exertional limitations
Santiago Hernandez alleges that the ALJ did not effectively or
qualitatively consider his osteoarthritis and that this caused the ALJ to mis-
designate his exertional limitations. (DE 8 at 17–19).
Santiago Hernandez bears the burden of proving that he does not have
the residual functional capacity to perform substantial gainful activity. See 42
U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.945(a)(3); see also Bowen v. Yuckert, 482
U.S. 137, 146 n.5 (1987) (“It is not unreasonable to require the claimant, who
is in a better position to provide information about his medical condition, to do
so.”); Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (“The
claimant bears the ultimate burden of establishing steps one through four.”)
(citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004)).
Santiago Hernandez did not meet that burden at the hearing, and the
ALJ determined that his residual function capacity allowed him to perform jobs
available in the national economy. See 20 C.F.R. § 416.927(d)(2); see also
Chandler v. Comm’r Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The ALJ – not
treating or examining physicians or State agency consultants – must make the
ultimate disability and residual functional capacity determinations.”). At the
hearing, the ALJ made finding based on the relevant evidence, which included
medical records, medical source opinions, and Santiago Hernandez’s
allegations and description of his limitations. See 20 C.F.R. §§ 416.945(a),
416.946(c).
The ALJ’s written decision contains a detailed summary of the evidence
related to Santiago Hernandez’s osteoarthritis and the conditions associated
with that limitation. Specifically, the decision references hospital visits and
other treatments that occurred in February 2014; April, May, June, and
September 2015; March, April, June, September, and November 2016; and
October 2017. In addition, the ALJ discussed the following physical symptoms
and conditions: bilateral hand osteoarthritis; back pain with radiation to the
left lower extremity; numbness of the fingers; severe lower back and left leg
pain; left hand joint and wrist pain with tingling; chronic back pain; numbness
in the left arm and left lower abdomen; joint pain and arm numbness; chronic
diffuse pains of unclear etiology and notation; levoscoliosis and mild
degenerative lumbar spine changes; and bilateral shoulder partial cuff tear.
The ALJ’s decision also acknowledged and considered the following procedures
that practitioners had performed to diagnose Santiago Hernandez’s conditions:
lumbar x-rays; lumbar spine MRI; and electrodiagnostic testing. The ALJ also
acknowledged an October 2017 report, in which Santiago Hernandez’s treating
physician reported that the shoulder issues were asymptomatic and did not
limit his movements.
In a thorough analysis, the ALJ considered the evidence and determined
that Santiago Hernandez’s partial cuff tear was severe, but he also reasoned
that Santiago Hernandez’s back conditions were non-severe and did not limit
his ability to perform basic work activities. The ALJ’s reasoned decision relied
upon substantial evidence to support his conclusions. The Social Security Act
imposes a deferential standard of review with respect to the ALJ’s factual
findings, and there is no evidence that the ALJ overlooked or disregarded any
crucial evidence. Accordingly, the ALJ’s finding that Santiago Hernandez’s
osteoarthritis did not fully disable him is not grounds for remand.
Attendance at partial hospitalization program
Santiago Hernandez faults the ALJ for failing to consider that he
attended a partial hospitalization program at Essecare. (DE 8 at 18). Santiago
Hernandez alleges that the effect of this hospitalization program was work-
preclusive and that the ALJ’s rejection of this argument constitutes harmful
error. (DE 8 at 19).
To the contrary, the ALJ considered Santiago Hernandez’s partial
hospitalization program and rejected its effect when he made findings of fact.
The ALJ acknowledged that Santiago Hernandez has psychiatric issues, which
the program helped to ameliorate, but he also noted (1) that the program was a
condition of Santiago Hernandez’s lifetime parole and (2) that Santiago
Hernandez visited the facility more often than he was required to.
Further evidence that the ALJ considered Santiago Hernandez’s
attendance at Essecare is the fact that the ALJ cited the Essecare records as
substantive evidence. The ALJ noted that according to Essecare, Santiago
Hernandez interacted with other patients, made plans for the future, and
expressed interest in work opportunities. The ALJ used this evidence to
determine that Santiago Hernandez retained some residual functional capacity,
namely, to do “simple, repetitive work, with no direct public contact and
minimal contact with coworkers and supervisors.”
Santiago Hernandez challenges the interpretation of the ALJ and of the
Commissioner:
First, [the Commissioner] highlight[s] that the Plaintiff’s attendance
of the partial hospitalization program is a condition of his parole.
This does nothing to acknowledge whether the program is work-
preclusive beyond further attempting to highlight Plaintiff’s
previous incarceration (discussed further below). Irrespective of
whether or not the program is a condition of his parole, Plaintiff is
in attendance from 9 AM to 2:45 PM three to five days a week.
Even when reduced to the minimum weekly time allowed through
his parole, three days a week at the above mentioned hours is
clearly still work-preclusive, as this would require him to be called
out of full-time work at least 12 times per month. The VE testified
that missing three or more days of work per month or would be
work-preclusive. Additionally, at no point did the ALJ address what
impact, if any, the claimant’s partial hospitalization program would
have on in ability to perform work during certain work shifts, such
as day or night. Therefore, the Vocational Expert was not asked,
nor did they testify about any possible erosion the jobs cited would
have due to the Plaintiff’s inability to work day shifts versus night
shifts. Limitations which prevent Plaintiff from working a full
workday constitutes a disability within the meaning of the act.
(DE 12 at 2–3 (citing Johnson v. Harris, 612 F.2d 993, 998 (5th Cir. 1980);
Kangas v. Bowen, 823 F.2d 775 (3d Cir. 1987) (emphasis added) (citations to
record omitted)).
However, the law does not sweep as broadly as Santiago Hernandez
would have it. Many applicants might have competing obligations or scheduling
conflicts, even unavoidable ones, that would interfere with regular employment.
Neither Johnson nor Kangas, however, equates an obligation, even a court-
imposed one, with a disability within the meaning of the Social Security Act. In
Johnson, the plaintiff’s physical capabilities—not a court-mandated treatment
program as such—limited his ability to work a full day:
Johnson has submitted additional evidence on appeal which he
claims supports his position. This is a medical examination report
by Johnson’s treating physician dated March 13, 1978, and a May
24, 1979, statement by that physician stating that Johnson’s
condition limits his productive activity to four hours a day.
Moreover, this physician does not expect Johnson’s condition to
improve. It has been held that a physical limitation which prevents
a claimant from working a full work-day, minus a reasonable time
for lunch and breaks, constitutes a disability within the meaning of
the Act.
Johnson, 612 F.2d at 998 (emphasis added). The court in Johnson clearly
stated that a physical limitation that prevents an individual from working is a
disability within the meaning of the Social Security Act. Santiago Hernandez’s
reliance on Johnson is therefore inapt.
Similarly, in Kangas, the plaintiff had a lung disease that prevented him
from continuing to work at the machine shop and foundry where he had been
employed. 823 F.2d at 776. The plaintiff’s lung disease required frequent and
unpredictable hospitalizations, each of which was followed by a significant
recovery period, during which he was physically unable to work:
Before the Secretary was evidence that Kangas had been
hospitalized six times in a sixteen-month period for problems with
his lungs. The medical advisor, in uncontroverted testimony,
stated that Kangas “has had frequent lung infections requiring
hospitalization, sometimes every two to three months.” Each
hospitalization requires a subsequent one to two week recovery
period at home. Despite this evidence, the Secretary found that
Kangas could engage in substantial gainful activity because there
was a wide range of sedentary work that he could perform.
We believe that the Secretary failed to consider Kangas’ frequent
need for hospitalization in his finding that Kangas was not
disabled because he could engage in substantial gainful activity.
Although the medical advisor testified that Kangas was capable of
performing work activity when he was not suffering an
exacerbation, “sporadic or transitory activity does not disprove
disability.”
Kangas, 823 F.2d at 777–78 (citations omitted) (footnote omitted). Johnson and
Kangas demonstrate that a limitation that prevents a claimant from working a
full workday constitutes a disability within the meaning of the Social Security
Act if the limitation is a physical one and occurs sporadically. Here, Santiago
Hernandez’s limitation satisfied neither criterion. To be sure, he had some
physical limitations, but the ALJ addressed those by noting Santiago
Hernandez’s residual functional capacity. However, as the ALJ found, Santiago
Hernandez’s physical limitations alone did not prevent him from working a full
day. Moreover, Santiago Hernandez’s partial hospitalization obligations were
not sporadic and unpredictable; to the contrary, they were clearly scheduled
with discrete beginning and end times. The ALJ considered this evidence and
acted within his discretion when he found that Santiago Hernandez’s
attendance at the partial hospitalization program did not affect his physical or
mental limitations beyond that which the finding of residual functional
capacity had already established.
Consistent opinion evidence
Finally, Santiago Hernandez alleges that the ALJ improperly gave little
weight to the opinions of Gable-Gaston, Horner, and Drs. Zerbo and Silikovitz.
(DE 8 at 21–22). Santiago Hernandez points in particular to the following
evidence:
• Dr. Zerbo, Santiago Hernandez’s treating physician, wrote “[w]e
believe [Santiago Hernandez] is mentally disabled and is not able to
work.”
• Dr. Silikovitz, Santiago Hernandez’s consultative examiner, noted
that Santiago Hernandez could not identify the day, date, month,
or year and did not know who the current president or governor
was.
• Gable-Gaston opined that Santiago Hernandez had PTSD,
schizoaffective disorder, and adjustment disorder.
• Horner noted that “clients with [Santiago Hernandez’s] diagnoses
may have problems functioning well in the workplace.”
When an ALJ considers medical evidence, the opinion of a medical
professional who has treated the claimant is generally entitled to deference. 20
CFR §§ 404.1527(c)(2) & 416.927(c)(2 ) (“Generally, we give more weight to
opinions from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture of
your medical impairment(s)”). But the opinion of a treating source must be
given “controlling weight” only when that opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the claimant’s] case
record.” Id. The Third Circuit has held that unless there is contradictory
medical evidence in the record, an ALJ may not reject a treating physician’s
opinion. See Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 355 (3d Cir.
2008). An ALJ’s unsupported judgment, speculation, or lay opinion is not
sufficient to outweigh a treating physician’s opinion. Morales v. Apfel, 225 F.3d
310, 317 (3d Cir. 2000).
If the opinion of a treating physician, in particular, is not accorded
controlling weight, the ALJ must justify that finding in light of the factors for
weighing medical opinions which are set forth in 20 CFR §§ 404.1527 &
416.927. See 20 CFR §§ 404.1527(c)(1–6), 416.927(c)(1–6) (ALJ must consider:
(i) the examining relationship between the claimant and the doctor; (ii) the
treatment relationship between the claimant and the doctor; (iii) the extent to
which the opinion is supported by relevant evidence; (iv) the extent to which
the opinion is consistent with the record as a whole; and (v) whether the doctor
providing the opinion is a specialist). Although “contradictory medical evidence
is required for an ALJ to reject a treating physician’s opinion outright, such an
opinion may be afforded more or less weight depending on the extent to which
supporting explanations are provided.” Plummer v. Apfel, 186 F.3d 422, 429 (3d
Cir. 1999) (citation omitted).
Two of the relevant opinions were rendered by Gable-Gaston, an
advanced nurse practitioner, and Horner, a social worker. (See p. 4, supra.)
The ALJ permissibly reasoned that these opinions of non-physicians were
entitled to less weight than those of the doctors. See 20 C.F.R. § 416.913(d)(1).
Moreover, the ALJ noted that the opinions of both were equivocal in some
respects. Gable-Gaston noted that Santiago Hernandez’s partial hospitalization
program would disable him only through February 2017. Similarly, Horner
suggested, but did not conclusively aver, that Santiago Hernandez might have
problems holding down a job.
The real difficulty lies in the ALJ’s treatment of the diagnoses of the
physicians, which were fairly consistent across the board. The most benign was
that of Dr. Arrington, who diagnosed Santiago Hernandez with PTSD, and
noted that this would limit (though perhaps not preclude) work activities. Dr.
Zerbo, a psychiatrist, diagnosed him with schizoaffective disorder, major
depressive disorder, PTSD, and delirium, and opined that he would not be able
to work. Dr. Silikovitz diagnosed him with paranoid schizophrenia,
hallucinations, mixed anxiety, severe depressions, and PTSD. Dr. Silikovitz
noted that Santiago Hernandez failed some basic tests of mental functioning,
such as reversing a two-digit sequence, naming the current president, or
stating today’s date. In an April 2019 emergency room visit, doctors diagnosed
Santiago Hernandez with PTSD, schizophrenia, and insomnia.
The ALJ assigned minimal weight to Dr. Zerbo’s notes, because the
record also showed that Santiago Hernandez was able to function in society by
interacting with and helping others and by using public transportation without
supervision. The syndromes described by Dr. Zerbo and others, however, are
not inconsistent with, e.g., taking public transportation or episodic social
interactions.
The ALJ discounted Dr. Silikovitz’s account of Santiago Hernandez’s
limitations. The ALJ considered Santiago Hernandez’s behavior in the
examination “to be a pretty obvious example of simulating mental illness.” (ALJ
at 34). Frankly, as a medical lay person I share the ALJ’s skepticism of the
claimant’s sudden inability to perform the most rudimentary mental tasks. But
it is not our opinion that counts. One of the professional skills of a psychiatrist
is the identification of malingering and assessment of its psychological
significance. There is no medical opinion of malingering in this record; in so
finding, the ALJ was not sifting the medical opinions, but in effect rendering
his own medical opinion based on the same evidence that was before the
doctor.2

2 This was not, by the way, a credibility determination based on the claimant’s
testimony at the hearing. The ALJ explicitly based his determination on what he read
in the doctor’s notes and reached a medical conclusion that diverged from that of the
doctor.
In most respects, I would uphold the ALJ’s decision. As to his weighing of
the opinions of the doctors, however, I think further development is required.
The reasons given did not furnish a sufficient basis for discounting a fairly
consistent battery of medical opinions. I do not mean to dictate a result. On
remand, the ALJ may proceed as he sees fit; he may obtain additional medical
evidence, or simply reweigh the evidence of record, giving more explicit and
valid reasons for crediting or not crediting it.
CONCLUSION.
Accordingly, the decision of the ALJ is REVERSED and the matter is
REMANDED for further proceedings consistent with this opinion.
A separate order will issue.
Dated: September 2, 2020

/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10269090. Public record. Not legal advice.