Hernandez v. Saul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

NATALIE HERNANDEZ, ) CIVIL ACTION NO. 4:19-CV-1263

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

ANDREW SAUL, )

Defendant )

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Natalie Hernandez, an adult individual who resides within the

Middle District of Pennsylvania, seeks judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her applications for

disability insurance benefits and supplemental security income under Titles II and

XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant to

42 U.S.C. §405(g) and 42 U.S.C. §1383(c)(3).

This matter has been referred to me upon consent of the parties pursuant to

28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. After

reviewing the parties’ briefs, the Commissioner’s final decision, and the relevant

portions of the certified administrative transcript, I find the Commissioner's final

decision is supported by substantial evidence. Accordingly, Commissioner’s final

decision is AFFIRMED.

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II. BACKGROUND & PROCEDURAL HISTORY

On June 14, 2016, Plaintiff protectively filed applications for disability

insurance benefits and supplemental security income under Titles II and XVI of the

Social Security Act. (Admin. Tr. 17). In these applications, Plaintiff alleged she

became disabled as of April 1, 1976, but later amended her alleged onset date to

April 9, 2016. (Admin. Tr. 36). As of her amended alleged onset date, Plaintiff was

forty-six years old. She alleged she was disabled due to the following conditions:

anxiety, depression, migraines, high blood pressure, and history of seizures.

(Admin. Tr. 206). Plaintiff alleges that the combination of these conditions affects

her ability to lift, bend, stand, reach, walk, kneel, climb stairs, see, remember,

understand, following instructions, and get along with others. (Admin. Tr. 236).

Plaintiff has at least a high school education and is able to communicate in English.

(Admin. Tr. 25).

On January 7, 2017, Plaintiff’s applications were denied at the initial level of

administrative review. (Admin. Tr. 17). On January 12, 2017, Plaintiff requested

an administrative hearing. Id.

On March 5, 2018, Plaintiff, assisted by her counsel, appeared and testified

during a hearing before Administrative Law Judge Scott M. Staller (the “ALJ”).

(Admin. Tr. 32). On June 8, 2018, the ALJ issued a decision denying Plaintiff’s

applications for benefits. (Admin. Tr. 26). On July 20, 2018, Plaintiff requested

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review of the ALJ’s decision by the Appeals Council of the Office of Disability

Adjudication and Review (“Appeals Council”). (Admin. Tr. 159).

On July 21, 2018, the Appeals Council denied Plaintiff’s request for review.

(Admin. Tr. 9).

On July 22, 2019, Plaintiff initiated this action by filing a Complaint. (Doc.

1). In the Complaint, Plaintiff alleges that the ALJ’s decision denying the

applications is not supported by substantial evidence, and improperly applies the

relevant law and regulations. (Doc. 1, ¶ 13). As relief, Plaintiff requests that the

Court award benefits, or in the alternative remand this matter for a new

administrative hearing. (Doc. 1, ¶ 14).

On September 24, 2019, the Commissioner filed an Answer. (Doc. 7). In the

Answer, the Commissioner maintains that the decision holding that Plaintiff is not

entitled to disability insurance benefits was made in accordance with the law and

regulations and is supported by substantial evidence. (Doc. 7, ¶ 9). Along with her

Answer, the Commissioner filed a certified transcript of the administrative record.

(Doc. 8 et seq).

Plaintiff’s Brief (Doc. 11), the Commissioner’s Brief (Doc. 12), and

Plaintiff’s Reply (Doc. 13) have been filed. This matter is now ripe for decision.

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III. STANDARDS OF REVIEW

A. SUBSTANTIAL EVIDENCE REVIEW – THE ROLE OF THIS COURT

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, this Court’s review is limited to the question of whether

the findings of the final decision-maker are supported by substantial evidence in

the record. See 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3); Johnson v. Comm’r of

Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F. Supp. 2d 533,

536 (M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable

amount of evidence, but rather such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552,

565 (1988). Substantial evidence is less than a preponderance of the evidence but

more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A

single piece of evidence is not substantial evidence if the ALJ ignores

countervailing evidence or fails to resolve a conflict created by the evidence.

Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately

developed factual record, substantial evidence may be “something less than the

weight of the evidence, and the possibility of drawing two inconsistent conclusions

from the evidence does not prevent [the ALJ’s decision] from being supported by

substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 620

(1966).

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“In determining if the Commissioner’s decision is supported by substantial

evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304

F. Supp. 2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is

not whether Plaintiff is disabled, but whether the Commissioner’s finding that

Plaintiff is not disabled is supported by substantial evidence and was reached based

upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-

02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that

an ALJ’s errors of law denote a lack of substantial evidence.”) (alterations

omitted); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) (“The

Secretary’s determination as to the status of a claim requires the correct application

of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir.

1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.

Supp. 2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).

B. STANDARDS GOVERNING THE ALJ’S APPLICATION OF THE FIVE-STEP

SEQUENTIAL EVALUATION PROCESS

To receive benefits under the Social Security Act by reason of disability, a

claimant must demonstrate an inability to “engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A);

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42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); 20 C.F.R. §

416.905(a).1 To satisfy this requirement, a claimant must have a severe physical or

mental impairment that makes it impossible to do his or her previous work or any

other substantial gainful activity that exists in the national economy. 42 U.S.C. §

423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 404.1505(a); 20 C.F.R. §

416.905(a). To receive benefits under Title II of the Social Security Act, a claimant

must show that he or she contributed to the insurance program, is under retirement

age, and became disabled prior to the date on which he or she was last insured. 42

U.S.C. § 423(a); 20 C.F.R. § 404.131(a).

In making this determination at the administrative level, the ALJ follows a

five-step sequential evaluation process. 20 C.F.R. § 404.1520(a); 20 C.F.R. §

416.920(a). Under this process, the ALJ must sequentially determine: (1) whether

the claimant is engaged in substantial gainful activity; (2) whether the claimant has

a severe impairment; (3) whether the claimant’s impairment meets or equals a

listed impairment; (4) whether the claimant is able to do his or her past relevant

work; and (5) whether the claimant is able to do any other work, considering his or

1 Throughout this Report, I cite to the version of the administrative rulings and

regulations that were in effect on the date the Commissioner’s final decision was

issued. In this case, the ALJ’s decision, which serves as the final decision of the

Commissioner, was issued on June 8, 2018.

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her age, education, work experience and residual functional capacity (“RFC”). 20

C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4).

Between steps three and four, the ALJ must also assess a claimant’s RFC.

RFC is defined as “that which an individual is still able to do despite the

limitations caused by his or her impairment(s).” Burnett v. Comm’r of Soc. Sec.,

220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §

404.1520(e); 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.920(e); 20 C.F.R. §

416.945(a)(1). In making this assessment, the ALJ considers all the claimant’s

medically determinable impairments, including any non-severe impairments

identified by the ALJ at step two of his or her analysis. 20 C.F.R. § 404.1545(a)(2);

20 C.F.R. § 416.945(a)(2).

At steps one through four, the claimant bears the initial burden of

demonstrating the existence of a medically determinable impairment that prevents

him or her in engaging in any of his or her past relevant work. 2 U.S.C. §

423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i) (incorporating 42 U.S.C. § 423(d)(5) by

reference); 20 C.F.R. § 404.1512(a); 20 C.F.R. § 416.912(a); Mason, 994 F.2d at

1064. Once this burden has been met by the claimant, it shifts to the

Commissioner at step five to show that jobs exist in significant number in the

national economy that the claimant could perform that are consistent with the

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claimant’s age, education, work experience and RFC. 20 C.F.R. § 404.1512(b)(3);

20 C.F.R. § 416.912(b)(3); Mason, 994 F.2d at 1064.

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significant among these legal benchmarks is a requirement that the

ALJ adequately explain the legal and factual basis for this disability determination.

Thus, to facilitate review of the decision under the substantial evidence standard,

the ALJ's decision must be accompanied by “a clear and satisfactory explication of

the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

Conflicts in the evidence must be resolved and the ALJ must indicate which

evidence was accepted, which evidence was rejected, and the reasons for rejecting

certain evidence. Id. at 706-707. In addition, “[t]he ALJ must indicate in his

decision which evidence he has rejected and which he is relying on as the basis for

his finding.” Schaudeck v. Comm’r of Soc. Sec., 181 F. 3d 429, 433 (3d Cir. 1999).

IV. ANALYSIS

Plaintiff raises the following issues in her brief:

(1) Substantial Evidence does not support the ALJ’s evaluation of the

opinion evidence; and

(2) The ALJ’s multiple errors with symptom evaluation compel reversal.

(Doc. 11, p. 1).

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A. THE ALJ’S DECISION DENYING PLAINTIFF’S APPLICATIONS

In his June 2018 decision, the ALJ found that Plaintiff met the insured status

requirement of Title II of the Social Security Act through September 30, 2021.

(Admin. Tr. 19). Then, Plaintiff’s applications were evaluated at steps one through

five of the sequential evaluation process.

At step one, the ALJ found that Plaintiff did not engage in substantial

gainful activity at any point between April 9, 2016 (Plaintiff’s amended alleged

onset date) and June 8, 2018 (the date the ALJ decision was issued) (“the relevant

period”). (Admin. Tr. 19). At step two, the ALJ found that, during the relevant

period, Plaintiff had the following medically determinable severe impairment(s):

bipolar disorder and generalized anxiety disorder. (Admin. Tr. 19). The ALJ also

found that Plaintiff has the following medically determinable non-severe

impairments: hypertension, back pain, foot pain, bilateral soft tissue hand masses,

and gallstones. (Admin. Tr. 20-21). At step three, the ALJ found that, during the

relevant period, Plaintiff did not have an impairment or combination of

impairments that met or medically equaled the severity of an impairment listed in

20 C.F.R. Part 404, Subpart P, Appendix 1. (Admin. Tr. 21).

Between steps three and four, the ALJ assessed Plaintiff’s RFC. The ALJ

found that, during the relevant period, Plaintiff retained the RFC to engage in all

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ranges of work work as defined in 20 C.F.R. § 404.1567 and 20 C.F.R. § 416.967

except that:

Claimant is able to understand, remember, and carry out simple 1-2

step instructions and make judgments on simple work-related

decisions; could occasionally interact with coworkers, supervisors,

and the public in a routine work setting; and is limited to occasional

decision-making and occasional changes in a routine work setting.

(Admin. Tr. 22).

At step four, the ALJ found that, during the relevant period, Plaintiff could

not engage in her past relevant work. (Admin. Tr. 25). At step five, the ALJ found

that, considering Plaintiff’s age, education and work experience, Plaintiff could

engage in other work that existed in the national economy. Id. To support his

conclusion, the ALJ relied on testimony given by a vocational expert during

Plaintiff’s administrative hearing and cited the following three (3) representative

occupations: Bench Assembler (DOT #706.684-022); Packing Line Worker (DOT

#753.687-038); Production Solderer (DOT #813.684-022). (Admin. Tr. 25-26).

B. WHETHER THE ALJ PROPERLY EVALUATED CRNP CANAL’S OPINION

ABOUT PLAINTIFF’S MENTAL LIMITATIONS

In this case, several sources provided opinions about the limitations resulting

from Plaintiff’s mental impairments, including: treating psychiatrist Raymond

Johnson, M.D. (“Dr. Johnson”); Certified Registered Nurse Practitioner Stephanie

Canal (“CRNP Canal”); consultative examiner Tommy Davis, Ph.D. (“Dr. Davis”);

Page 10 of 36

and State agency psychological consultant Alex Siegel, Ph.D (“Dr. Siegel”).

Plaintiff’s first argument pertains to the ALJ’s evaluation of CRNP Canal’s

opinion.

On February 19, 2018, CRNP Canal completed a fill-in-the-blank/check-box

“Mental Impairment Questionnaire.” (Admin. Tr. 815-823). In Section II of that

Questionnaire, CRNP Canal was asked to answer a series of questions about

Plaintiff’s ability to do work-related activities on a day to day basis in a regular

work setting. CRNP Canal assessed that Plaintiff would be unable to satisfactorily

perform the following activities: remembering work-like procedures; maintaining

attention for a two-hour segment; sustaining an ordinary routine without special

supervision; working in coordination with or proximity to others without being

unduly distracted; completing a normal workday and workweek without

interruptions from psychologically based symptoms; performing at a consistent

pace without an unreasonable number of rest periods; accepting instructions and

responding appropriately to criticism from supervisors; responding appropriately to

changes in a routine work setting; dealing with normal work stress; and being

aware of normal hazards and taking appropriate precautions. Id. In the same

questionnaire, CRNP Canal assessed that Plaintiff would be expected to be less

than 80% as efficient when compared to an average worker, and that Plaintiff

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would be expected to miss approximately four days of work per month due to her

impairments or treatment. Id.

The ALJ gave “little” weight to the opinion of CRNP Canal. In doing so he

explained:

As for the remainder of the opinion evidence, the undersigned gives

little weight to the February 2018 opinion of Stephanie B. Canal,

indicating the claimant as unable to perform a great number of work-

related functional activities satisfactorily; as expected to be less than

80 percent efficient as an average worker; and as likely to be absent

from work more than 4 days a month due to her impairments or

medical treatments (Exhibit 23F). The opinion’s narrative explanation

refers to symptoms and clinical findings that are not reflected in the

claimant’s treatment records and describes potential side effects to

medications that the claimant specifically denied suffering.

Additionally, the degree of limitation is inconsistent with the

claimant’s admissions to her providers in the record regarding the

efficacy of her medications and treatments and is further inconsistent

with the claimant’s grossly normal mental status examination

findings.

(Admin. Tr. 24).

Plaintiff argues that the ALJ’s evaluation of CRNP Canal’s opinion is

improper for three reasons: (1) the ALJ did not give adequate consideration to the

opinion under 20 C.F.R. § 404.1527(c)(2) and 20 C.F.R. § 416.927(c)(2); (2) the

ALJ erred by characterizing Plaintiff’s mental status examinations as “grossly

normal”; and (3) the ALJ was required to recontact CRNP Canal for clarification. I

will address each argument below.

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1. Whether CRNP Canal’s Opinion is Entitled to Greater Weight

under 20 C.F.R. § 404.1527(c)(2) and 20 C.F.R. §

416.927(c)(2)

With respect to her first argument, Plaintiff contends:

the ALJ failed to evaluate Ms. Canal’s opinion in accordance with the

checklist of factors that C.F.R. 404.1527 (d) provides. Here, many of

these consideration favor crediting Ms. Canal’s opinion: Ms. Canal is

a nurse practitioner practicing out of Youth Advocate Programs,

where Hernandez received care since December 2016. (Tr. 547-80)

See 404.1527(c)(2)(“Generally, we give more weight to medical

opinions from your treating sources, since these sources are likely to

be the medical professionals most able to provide a detailed,

longitudinal picture of your medical impairment(s) and may bring a

unique perspective to the medical evidence that cannot be obtained

from the objective medical findings alone or from reports of

individual examinations, such as consultative examination or brief

hospitalizations.”).

(Doc. 11, pp. 10-11).

The Commissioner responds:

Deciding what weight to accord to various medical source opinions is

reserved to the Commissioner. 20 C.F.R. §§ 404.1527, 416.927;

Social Security Ruling (SSR) 06-3p, 2006 WL 2329939. The

Commissioner classifies medical source opinions into two categories

“acceptable medical sources” and “other sources;” a nurse practitioner

is an “other source.” 20 C.F.R. §§ 404.1513, 416.913. Only acceptable

medical sources can be “treating sources” within the meaning of the

Commissioner’s regulations. 20 C.F.R. §§ 404.1502, 416.902; SSR

06-3p. Thus, Nurse Practitioner Canal is neither an acceptable medical

source, nor a treating source within the meaning of the

Commissioner’s regulations.

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(Doc. 12, pp. 7-8).2

I construe Plaintiff’s argument as alleging that the ALJ erred by failing to

accord CRNP Canal’s opinion weight under 20 C.F.R. §§ 404.1527(c)(2) and

416.927(c)(2)—the only specific provision cited by Plaintiff in her argument. This

provision of the regulations is commonly referred to as the “treating physician

rule” and states as follows:

(c) How we weigh medical opinions. Regardless of its source, we will

evaluate every medical opinion we receive. Unless we give a treating

source's medical opinion controlling weight under paragraph (c)(2) of

this section, we consider all of the following factors in deciding the

weight we give to any medical opinion.

. . . .

(2) Treatment relationship. Generally, we give more weight to

medical opinions from your treating sources, since these

sources are likely to be the medical professionals most able to

provide a detailed, longitudinal picture of your medical

impairment(s) and may bring a unique perspective to the

medical evidence that cannot be obtained from the objective

medical findings alone or from reports of individual

examinations, such as consultative examinations or brief

hospitalizations. If we find that a treating source's medical

opinion on the issue(s) of the nature and severity of your

impairment(s) is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case

record, we will give it controlling weight. When we do not give

2 I note that SSR 06-03p was rescinded and was not relied upon by the ALJ when

the final decision was issued in this case. Revisions to Rules Regarding the

Evaluation of Medical Evidence, 82 FR 5844-01, 5845 (Jan. 18, 2017). In its place,

the Social Security Administration “added regulatory test in 404.1527(f) and

416.927(f) about how to consider and articulate the consideration of opinions by

medical sources who are not acceptable medical sources. Id. at 5844

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the treating source's medical opinion controlling weight, we

apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of

this section, as well as the factors in paragraphs (c)(3) through

(c)(6) of this section in determining the weight to give the

medical opinion. We will always give good reasons in our

notice of determination or decision for the weight we give your

treating source's medical opinion.

20 C.F.R. § 404.1527(c)(2) (emphasis added); see also 20 C.F.R. 416.927(c)(2)

(same). In this context, the term “treating source” means “your own acceptable

medical source who provides you, or has provided you, with medical treatment or

evaluation and who has, or has had, an ongoing treatment relationship with you.”

20 C.F.R. § 404.1527(a)(2) (emphasis added); 20 C.F.R. § 416.927(a)(2) (same).

At the time the ALJ issued his decision in this case acceptable medical sources

included: licensed physicians (M.D. or D.O.); licensed psychologists; licensed

optometrists (for vision impairments only); licensed podiatrist (for foot and ankle

only); and qualified speech-language pathologists. Licensed advanced practice

nurses are not considered to be acceptable medical sources unless the application

was filed on or after March 27, 2017. 20 C.F.R. § 404.1502(a)(7); 20 C.F.R. §

416.902(a)(7). The applications in this case were filed on June 14, 2016. Therefore,

CRNP Canal’s opinion is not, as a matter of law, entitled to controlling weight

under the treating physician rule.

2. Whether the ALJ Improperly Characterized the Mental Status

Examination Findings as “Grossly Normal”

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With respect to her second argument, Plaintiff contends:

contrary to the ALJ’s finding, Ms. Canal’s opinion was consistent

with the record: Supportive signs and symptoms include depressed

mood, social isolation, excessive sleep, little interest in doing things,

low motivation, history of verbal and physical abuse, panic attacks,

helplessness, sleep disturbances, discomfort around crowds, fatigue,

appetite disturbance and trouble concentrating. (Tr. 638, 647, 651,

668, 676, 683, 685) Ms. Canal’s opinion is also consistent with the

opinions of treating psychiatrist Dr. Johnson: During a psychiatric

evaluation in January 2017, Hernandez complaint of anxiety. (Tr. 572-

73) Examining psychiatrist R. Johnson, MD diagnosed major

depressive disorder and PTSD. (Tr. 577) In a letter dated January 12,

2017, R. Johnson MD noted that Hernandez was unable to maintain

employment due to depression and panic attacks. (Tr. 446) Given Ms.

Canal’s longitudinal treatment history with Hernandez and the

consistency of his opinion with the medical evidence—the ALJ erred

in failing to afford Ms. Canal’s opinion great weight.

(Doc. 11, pp. 11-12).

The Commissioner responds:

The ALJ further discounted Ms. Canal’s opinions because they were

inconsistent with mental status examinations (Tr. 24). Indeed, Dr.

Johnson observed on mental status examination that Plaintiff [sic]

speech was normal in rate, volume, articulation, and coherence (Tr.

575, 632). He observed that Plaintiff retained normal thought

processes with no hallucinations, delusions, preoccupations with

violence, homicidal or suicidal ideation or obsessions (Tr. 575-76,

632-33). He observed that Plaintiff maintained intact judgment and

insight (Tr. 576, 633). Dr. Johnson observed that Plaintiff was

oriented to person, place, and time (Tr. 576-77). He observed that

Plaintiff displayed intact recent and remote memory, attention and

concentration, and general knowledge (Tr. 577). He observed that

Plaintiff’s affect was full range and appropriate to content (Tr. 577).

Similarly, Dr. Davis observed on his mental status examination that

although Plaintiff’s affected [sic] was restricted and her mood was

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anxious, her posture and motor behavior were normal and Plaintiff’s

eye contact was appropriate (Tr. 408). Dr. Davis observed that

Plaintiff’s speech was fluent and clear and her expressive and

receptive language was adequate (Tr. 408). He observed that Plaintiff

displayed only mildly impaired attention, concentration, and recent

and remote memory skills (Tr. 408). Although Dr. Davis found that

Plaintiff’s cognitive functioning was below average to average with

limited general fund of information, he concluded that Plaintiff still

retained fair insight and judgment (Tr. 409).

(Doc. 12, pp. 9-10).

In her argument, Plaintiff cites to several records to support her position that

the ALJ inaccurately characterized her mental status examinations as “grossly

normal.” The first three records cited by Plaintiff are therapy notes from January

13, 2017, July 13, 2017, and October 17, 2017. (Admin. Tr. 638, 647, 651).

Although these notes provide insight as to the progress made by Plaintiff in

treatment, they do not provide objective mental status examinations. Therefore,

these records do not undermine the ALJ’s characterization of Plaintiff’s mental

status examination findings as “grossly normal.”

On November 16, 2016, Plaintiff was examined by behavioral health after

being assessed with a score of 23 on a Patient Health Questionnaire for Depression

(“PHQ-9”).3 Psychologist Charles Goins recorded the following assessment:

3 A PHQ-9 score of 23 corresponds with severe depression. PHQ-9 Questionnaire

for Depression Scoring and Interpretation Guide,

https://www.med.umich.edu/1info/FHP/practiceguides/depress/score.pdf (last

Page 17 of 36

Natalie was referred to BH for consult due to PHQ9 score of 23. She

denied SI, Intent, or plan. Hopelessness was denied. Natalie reported

her history of depression and anxiety. Reported symptoms included

low motivation, depressed mood, sleep problems, fatigue, inconsistent

appetite, low self esteem, low concentration, discomfort around

crowds, and sluggish movement. Identified stressors included death of

father this summer, chronic medical issues, conflict with housemate,

recent move from NY, inability to work due to medical issues,

unemployment, finances. Natalie denied any history of self harm and

she denied any history of participating in IP psychiatric treatment,

outpatient mental health therapy. Substance abuse issues were denied.

She reported that she was prescribed sertraline by her previous pcp

but Natalie stopped taking it as she believed that it made her

nauseated. Natalie acknowledged that she experienced verbal abuse

by housemate but denied safety concerns and declined support today

for finding emergency housing/shelter options. Help booklet provided.

She reported that she received significant support from her adult

children and Natalie reported that she would contact crisis if

experiencing unsafe thoughts or urges.

(Admin. Tr. 685).

On December 22, 2016, Plaintiff presented for a behavioral health follow up.

(Admin. Tr. 683). Psychologist Charles Goins recorded the following assessment:

Natalie retuned to BH for follow up. PHQ9 score was 23 and she

denied SI, HI, intent, or plan. Hopelessness was denied. Natalie

reported that injection had resulted in reduction in pain levels (rated as

7) and increased mobility. Sleep problems continue to have negative

impact on daily functioning. When to CMU and was given psychiatry

appt for Youth Advocate for 1/12 at 1:30pm. She has a therapy appt at

Youth Advocate for next Tues 12/27. Natalie has increased time spent

outside by attending Church and connecting with female peer who

visited 2/7/2020). Any score above 14 “warrants treatment for depression, using

antidepressant, psychotherapy and/or a combination of treatment. Id.

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gave her a ride. She identified a book store in her area that she would

like to go to read. Natalie developed plan to attend Church Saturday.

BH praised Natalie for her active and successful efforts at managing

her treatment/recovery process. She has ample food due to attending

food bank. She reported that she had gained some degree of friendship

with the female companion of housemate that she had friction with.

Natalie shared that she was reluctant to follow through with CMU

worker developed plan for her to go to shelter in order to be moved

onto the list for housing. She reported her improved self esteem at

being better able to complete ADL’s as desired. She accepted praise

for the gains in her appearance and active input to discussion. No BH

follow up will be scheduled due to scheduled transition to specialized

outpatient services.

(Admin. Tr. 683). On January 12, 2017, Plaintiff was examined by Psychologist

Raymond Johnson, Ph.D. (Admin. Tr. 575-77). Dr. Johnson noted the following

findings on mental status examination: normal speech; normal thought processes;

no suicidal or homicidal ideation; intact judgment; orientation to person, place, and

time; intact recent and remote memory; intact attention and concentration; intact

general knowledge; appropriate affect; and restricted ability to abstract. Id. Dr.

Johnson was unable to assess Plaintiff’s mood. Id. On June 6, 2017, Plaintiff was

examined during a routine medical appointment. (Admin. Tr. 676). The treatment

note from that examination suggests that Plaintiff reported anxiety and sleep

disturbances. Id. The only objective finding related to Plaintiff’s mental

impairments, however, is that Plaintiff was oriented to time, place, and person. Id.

On October 4, 2017, Plaintiff sought medical treatment for abdominal pain.

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(Admin. Tr. 667). The treatment note from that examination documents a score of

16 on the Patient Health Questionnaire for Depression. (Admin. Tr. 668).4

Reviewing this evidence, I find that the ALJ did not mischaracterize

Plaintiff’s mental status examination findings when he described as “grossly

normal.” Accordingly, I find that the ALJ’s decision to discount CRNP Canal’s

opinion on that basis is supported by substantial evidence.

3. Whether the ALJ was Required to Recontact CRNP Canal for

Clarification

With respect to her third argument, Plaintiff contends:

if the ALJ was unable to discern how Ms. Canal’s opinion was

supported, given that the record contained Ms. Canal’s treatment

records, the ALJ should have recontacted Ms. Canal to contain further

explanation of the opinion. Barnett v. Barnhart, 381 F.3d 664, 669 (7th

Cir. 2004), quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.

1996)(“If the ALJ though he needed to know the basis of [medical]

opinions in order to evaluate them, he had a duty to conduct an

appropriate inquiry, for example, by subpoenaing the physicians or

submitting further questions to them.”).

(Doc. 11, pp. 10-12).

The Commissioner responds:

Plaintiff also asserts that the ALJ should have re-contacted Ms. Canal

to obtain further explanation of her opinions (Pl.’s Br. at 11). The ALJ

was under no such obligation. Effective March 26, 2012, the

Commissioner revised the regulations on recontacting medical

4 A PHQ-9 score between 15 and 19 is indicative of moderately severe depression.

PHQ-9 Questionnaire for Depression Scoring and Interpretation Guide,

https://www.med.umich.edu/1info/FHP/practiceguides/depress/score.pdf (last

visited 2/7/2020).

Page 20 of 36

sources, and eliminated 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1).

See Buckner v. Astrue, 2012 WL 5392255, at *11, n.4 (W.D. Pa. Nov.

5, 2012). Prior to this amendment, the regulations stated that medical

sources must be recontacted when “the report from [the] medical

source contains a conflict or ambiguity that must be resolved, the

report does not contain all the necessary information, or does not

appear to be based on medically acceptable clinical and laboratory

diagnostic techniques.” 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1)

(2011). The regulations controlling at the time of the ALJ’s decision

explain that “if any of the evidence in your case record, including any

medical opinion(s) and prior administrative medical findings, is

inconsistent, we will consider the relevant evidence and see if we can

determine whether you are disabled based on the evidence we have.”

20 C.F.R. §§ 404.1520b(b)(1); 416.920b(b)(1). In other words, the

ALJ was entitled to reply on the evidence that he had to determine

whether Plaintiff was disabled, and was not required to recontact any

medical source. The revised governing regulation further explain [sic]

that an ALJ “may” recontact a medical source. 20 C.F.R. §§

404.1520b(b)(2)(i), 416.920b(b)(2)(i) (emphasis added). Under the

controlling regulations, there is never an obligation to recontact a

medical source. Accordingly, under the governing regulation in effect

at the time of Plaintiff’s decision, the ALJ was under no obligation to

recontact Ms. Canal.

(Doc. 12, pp. 10-11).

The regulations on this subject explain that, after the ALJ reviews all of the

evidence, he or she makes findings about what that evidence shows. 20 C.F.R. §

404.1520b; 20 C.F.R. § 416.920b. If the ALJ cannot make a determination because

the evidence in the record is incomplete or inconsistent the ALJ may take the

following actions:

(1) If any of the evidence in your case record, including any medical

opinion(s) and prior administrative medical findings, is inconsistent,

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we will consider the relevant evidence and see if we can determine

whether you are disabled based on the evidence we have.

(2) If the evidence is consistent but we have insufficient evidence to

determine whether you are disabled, or if after considering the

evidence we determine we cannot reach a conclusion about whether

you are disabled, we will determine the best way to resolve the

inconsistency or insufficiency. The action(s) we take will depend on

the nature of the inconsistency or insufficiency. We will try to resolve

the inconsistency or insufficiency by taking any one or more of the

actions listed in paragraphs (b)(2)(i) through (b)(2)(iv) of this section.

We might not take all of the actions listed below. We will consider

any additional evidence we receive together with the evidence we

already have.

(i) We may recontact your medical source. We may choose not

to seek additional evidence or clarification from a medical

source if we know from experience that the source either cannot

or will not provide the necessary evidence. If we obtain medical

evidence over the telephone, we will send the telephone report

to the source for review, signature, and return;

(ii) We may request additional existing evidence;

(iii) We may ask you to undergo a consultative examination at

our expense (see §§ 416.917 through 416.919a); or

(iv) We may ask you or others for more information.

(3) When there are inconsistencies in the evidence that we cannot

resolve or when, despite efforts to obtain additional evidence, the

evidence is insufficient to determine whether you are disabled, we

will make a determination or decision based on the evidence we have.

20 C.F.R. § 404.1520b(b); 20 C.F.R. § 416.920b(b). The evidentiary record in this

case includes over 500 pages of medical records, opinions by four sources, along

with statements by Plaintiff about her limitations and day-to-day functioning.

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Although this evidence undoubtedly contains inconsistencies, the shortcomings in

the opinions submitted by CRNP Canal do not make this record (as a whole)

insufficient. Because the record as a whole was sufficient for the ALJ to reach a

conclusion, remand is not required. See Grier v. Berryhill, No. 18-386, 2019 WL

2870728, at *10 (D. Del. July 3, 2019) (citing Campell v. Colvin, 2016 WL

4503341, at *3 (W.D. Pa. Aug. 29, 2016) (“An ALJ may only consider

recontacting a treating physician, where the evidence is consistent but there is

insufficient evidence to determine whether a claimant is disabled or after weighing

the evidence the ALJ cannot reach a conclusion about whether a claimant is

disabled. The ALJ, however, is not obligated to do so.”)). Accordingly, I am not

persuaded that remand is required so that the ALJ can recontact CRNP Canal.

C. WHETHER THE ALJ PROPERLY EVALUATED PLAINTIFF’S STATEMENTS

ABOUT HER SYMPTOMS

Next, Plaintiff argues that the ALJ failed to properly evaluate Plaintiff’s

statements about her mental health related symptoms and limitations, including

allegations about mood, mania and social interaction. In an adult function report

form completed by Plaintiff, and received by the Social Security Administration on

August 22, 2016, Plaintiff was asked to answer a series of questions about her

symptoms and limitations. On that form, Plaintiff reported that she: has anxiety

and can’t be around too many people; cries for no reason; has days where she can’t

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get out of bed and doesn’t want to shower due to depression; just wants to be left

alone; does not engage in any social activities; has problems getting along with

family, friends, neighbors and others because “they just annoying”; and was fired

from one job because she didn’t get along with her boss. (Admin. Tr. 233-240).

During the administrative hearing, Plaintiff made the following statements

about these symptoms:

Q Why do you claim that you can no longer work?

A Well, I have—I get panics [sic] attacks. I get—I have a

situation that I have—on my feet. I have severe depression

where I’m always most of the time depressed. And I have other

health issues like I get severe migraines and high blood

pressure.

. . . .

Q . . . How often do you get panic attacks?

A I get them like twice a week. I try to have them under control

with my medication

Q And do you know why you get the panic attacks?

A Well, I –sometimes I get them because I—there is a lot of

arguments in the house.

. . . .

Q And how does your depression affect you?

A It affects my—sorry, I’m nervous. It affects my thoughts and

communication.

. . . .

Q Do you take your medications regularly as prescribed?

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A Yes.

Q Do they relieve your symptoms?

A They relieve, yes.

. . . .

Q Do you have any problems getting along with other people?

A No.

. . . .

Q Do you have any thoughts of harming other people?

A No, never.

. . . .

Q Okay. But the panic attacks, how long do they last when you

get them?

A Like a good fifteen minutes.

Q And how does it feel when you get a panic attack?

A Oh, my gosh, I feel like my heart is going to come out my

mouth, and I start shaking. I am short of breath.

Q Do you—are panic attacks and anxiety attacks the same thing

for you?

A I believe so.

Q Okay. And what do you do to try and make a panic attack go

away once it starts? Do you have any techniques or things that

you do?

A Yeah, I try in my breathing, like my therapist tells me.

Q And the medications that you take, how are they helping with

your panic attacks?

Page 25 of 36

A They help me pretty much.

Q Okay.

A They ease me down a little bit.

Q What do you mean by that? Do they change the number of them

that you have?

A They like—I drink them, and it takes a little bit but it slowly

brings me down from my anxiety, little by little.

Q So you—not only do you do the breathing, you take the

medication when you get a panic attack?

A Yes, I do.

Q Okay. Do you get crying spells?

A Yes, I do.

Q How often?

A Most of the time, I’m—how often is like three or our times a

day.

Q Do you know what triggers one? Do you know what a trigger is

for your crying spells?

A I think a lot—

Q Is there a thought that, or certain things that trigger them?

A Yes, I live with other people, and they constantly having

problems, and I just with I had my own so I can be able to be in

peace. I’m sorry.

. . . .

Q Do you have mood swings?

A Yeah.

Page 26 of 36

Q What moods do you have mood swings of? What do they swing

between?

A Sometimes I can be okay, and then next I can be irritated,

agitated.

Q And do you get flashbacks?

A Yes.

Q How often do you get them?

A I get them like maybe twice a week.

Q Do you know what triggers a flashback for you?

A Thinking too much. I can get a lot of nightmares at night too.

. . . .

Q And do you have any idea how long a flashback lasts for you?

A I have no idea. I just—it’s in—like an instant flashback, and I

just try to distract myself.

Q What—how do you feel after a flashback’s over?

A I don’t—I feel a little nervous—

Q How long—

A --agitated.

Q Okay. How long does that last after you have a flashback?

A Like 10 minutes.

(Admin. Tr. 41-53).

In his decision, the ALJ found that although “the claimant’s medically

determinable impairments could reasonably be expected to cause the alleged

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symptoms. . . the claimant’s statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely consistent with the medical

evidence and other evidence in the record.” (Admin. Tr. 22-23). The ALJ

explained:

The medical evidence does not support the allegations regarding the

intensity, persistence, or limiting effects of the claimant’s

impairments. Though the record shows the claimant suffers from

mental health impairments, her impairments are not established until 7

months after her alleged onset date. Additionally, the claimant’s

treatment notes show that her mood and mania symptoms are well-

controlled with medications and that her medications do not cause any

adverse side-effects. Moreover, the claimant’s mental status

examinations reveal little evidence of any significant impairment in

attention, concentration, or memory as alleged by the claimant. The

claimant’s examination records further show she interacts

appropriately and clearly despite her alleged social anxiety. The

medical evidence does not support the claimant’s allegations.

(Admin. Tr. 24).

Plaintiff argues that the ALJ’s analysis of Plaintiff’s statements about her

symptoms is flawed for three reasons: (1) the ALJ applied a clear and convincing

evidence standard instead of the required preponderance of the evidence standard;

(2) the ALJ improperly found that a doctor’s observation that Plaintiff’s condition

was “controlled with medication” supported the conclusion that Plaintiff could

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work; and (3) the ALJ improperly relied on his own lay opinion to discount the

opinion of CRNP Canal.5

1. Whether the ALJ Applied the Wrong Evidentiary Standard in

Evaluating Plaintiff’s Statements about her Symptoms

With respect to her contention that the ALJ applied the wrong evidentiary

standard, Plaintiff argues:

In evaluating Hernandez’s symptoms, the ALJ stated that her

allegations were “not entirely consistent with the medical evidence

and other evidence in the record”. (Tr. 22, 23) The “not entirely

consistent” standard implies that the ALJ used a clear and convincing

evidence standard. But, and ALJ must decide a case based upon a

preponderance of the evidence standard. Moreover, the ALJ’s

decision contains no discussion of which allegations he found

consistent with the record. The ALJ’s symptom evaluation violates

SSR 16-3p which states that ALJs will consider the consistency of a

claimant’s allegations with the medical and other evidence, but it does

not mandate that the claimant’s allegations be completely consistent

with the record. See SSR 16-3p (“In determining whether an

individual is disabled, we consider all of the individual’s symptoms,

including pain, and the extent to which the symptoms can reasonably

be accepted as consistent with the objective medical and other

evidence in the individual’s record”) (emphasis added).

(Doc. 11, pp. 12-13).

Although the Commissioner generally responded that the ALJ’s evaluation

of Plaintiff’s statements about her symptoms was correct, the Commissioner did

not address Plaintiff’s allegation that the ALJ applied the wrong evidentiary

5 I note that the second and third arguments in Plaintiff’s “symptom evaluation”

section do not relate to the ALJ’s evaluation of Plaintiff’s testimony about her

symptoms. Instead, they appear to address the evaluation of medical opinion

evidence.

Page 29 of 36

standard when evaluating Plaintiff’s statements about her symptoms. Nonetheless,

I am not persuaded that the ALJ’s use of the phrase “not entirely consistent with

the medical evidence and other evidence in the record,” suggests that the ALJ

applied a clear and convincing evidence standard.

The Commissioner’s regulations define “symptoms” as the claimant’s own

description of his or her impairment. 20 C.F.R. § 404.1502(1); 20 C.F.R.

§ 416.902(i); SSR 96-4p, 1996 WL 374187. A symptom, however, is not a

medically determinable impairment, and no symptom by itself can establish the

existence of such an impairment. SSR 96-4p, 1996 WL 374187. The ALJ is not

only permitted, but also required, to evaluate the credibility of a claimant’s

statements about all symptoms alleged and must decide whether and to what extent

a claimant’s description of his or her impairments may be deemed credible. In

many cases, this determination has a significant impact upon the outcome of a

claimant’s application, because the ALJ need only account for those symptoms –

and the resulting limitations – that are credibly established when formulating his or

her RFC assessment. Rutherford, 399 F.3d at 554. To facilitate this difficult

analysis, the Commissioner has devised a two-step process that must be undertaken

by the ALJ to evaluate a claimant’s statements about his or her symptoms.

First, the ALJ must consider whether there is an underlying medically

determinable impairment that can be shown by medically acceptable clinical and

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laboratory diagnostic techniques that could reasonably be expected to produce the

symptom alleged. 20 C.F.R. § 404.1529(b); 20 C.F.R. § 416.929(b). If there is no

medically determinable impairment that could reasonably produce the symptom

alleged, the symptom cannot be found to affect the claimant’s ability to do basic

work activities. 20 C.F.R. § 404.1529(b); 20 C.F.R. § 416.929(b); SSR 96-4p,

1996 WL 374187; SSR 16-3p, 2016 WL 1119029.

Second, the ALJ must evaluate the intensity, persistence, and limiting effects

of the symptoms which can be reasonably attributed to a medically determinable

impairment. 20 C.F.R. § 404.1529(c)(1); 20 C.F.R. § 416.929(c)(1). Symptoms

will be determined to reduce a claimant’s functional capacity only to the extent that

the alleged limitations and restrictions “can reasonably be accepted as consistent

with the objective medical evidence and other evidence.” 20 C.F.R.

§ 404.1529(c)(4); 20 C.F.R. § 416.929(c)(4). However, an ALJ will not reject

statements about the intensity, persistence, or limiting effects of a symptom solely

because it is not substantiated by objective evidence. 20 C.F.R. § 404.1529(c)(3);

20 C.F.R. § 416.929(c)(3). Instead, the ALJ will evaluate the extent to which any

unsubstantiated symptoms can be credited based on the following factors: the

claimant’s daily activities; the location, duration, frequency, and intensity of the

claimant’s pain or other symptoms; any factor that precipitates or aggravates the

claimant’s pain or other symptoms; the type, dosage, effectiveness, and side effects

Page 31 of 36

of any medication the claimant takes or has taken to alleviate his or her pain or

other symptoms; any treatment, other than medication, the claimant receives or has

received for relief of his or her pain or other symptoms; any measures the claimant

uses or has used to relieve his or her pain or other symptoms (e.g., lying flat on

your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and

any other factors concerning functional limitations and restrictions due to pain or

other symptoms. 20 C.F.R. § 404.1529(c)(3); 20 C.F.R. § 416.929(c)(3).

An ALJ’s findings based on the credibility of a claimant are to be accorded

great weight and deference, since an ALJ is charged with the duty of observing a

witness’s demeanor and credibility. Frazier v. Apfel, No. 99-CV-715, 2000 WL

288246, at *9 (E.D. Pa. Mar. 7, 2000) (quoting Walters v. Comm’r of Soc. Sec.,

127 F.3d 525, 531 (6th Cir. 1997)). An ALJ is not free to discount a claimant’s

statements about his or her symptoms or limitations for no reason or for the wrong

reason. Rutherford, 399 F.3d at 554.

As noted above, the Commissioner’s regulations merely require that a

claimant’s symptoms be “reasonably”—as opposed to entirely—consistent with

objective medical evidence to be credited. Plaintiff argues that the ALJ applied the

wrong standard based on his use of popular boilerplate “not entirely consistent”

language. Nonetheless, I am not persuaded by Plaintiff’s argument that use of this

boilerplate phrase requires remand in this case. Similar arguments involving bad

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boilerplate have been raised in this court, and in others across the country. Courts

have generally concluded that the use of “bad boilerplate” in an ALJ’s evaluation

of a claimant’s statements does not automatically undermine or discredit an ALJ’s

ultimate conclusion. Ronald B. v. Saul, No. 18-CV-5881, 2019 WL 3778070 at *5

(N.D. Ill. Aug. 12, 2018). This type of error is harmless so long as the ALJ points

to information that justifies his or her conclusion. Id. Although the ALJ’s decision

in Ronald B. was ultimately remanded because the ALJ’s “explanation failed to

build an ‘accurate and logical bridge’ between the evidence and her conclusions,”

that certainly is not the case here. As quoted in section IV.C.1. of this Opinion, the

ALJ relied on the unremarkable findings by clinicians on mental status

examination, the effectiveness of Plaintiff’s medications, and Plaintiff’s

demonstrated ability to interact with others in a clinical setting to discount her

testimony that her impairments cause crippling social anxiety, as well as frequent

uncontrolled mood swing, panic attacks, and anxiety attacks that would prevent her

from working. Accordingly, I find that the ALJ’s use of bad boilerplate in his

credibility assessment does not require remand in this case.

2. Whether the ALJ Improperly Inferred that Plaintiff’s stability

on medication meant that Plaintiff could work, and Improperly

Relied on his own Lay Opinion to Discount CRNP Canal’s

Assessment

Page 33 of 36

Plaintiff’s second and third arguments in the “Symptom Evaluation” section

of her brief do not appear to relate to symptom evaluation. Instead, they both

address the ALJ’s evaluation of medical opinion evidence. As such, I will address

them together. Specifically, Plaintiff argues:

the ALJ noted that treatment notes show that Hernandez’s mood and

mania were well-controlled with medication. (Tr. 24) However, the

ALJ failed to note that having a controlled condition does not mean

that the claimant is not disabled. See Morales v. Apfel, 225 F.3d 310,

319 (3d Cir. 2000) (the Court found that a doctor’s observations that a

patient is “stable and well controlled with medication” during

treatment did not support the medical conclusion that the patient could

return to work.)

the ALJ remarked that the examination records show that Hernandez

interacted appropriately and clearly despite her alleged social anxiety.

(Tr. 24) But, the ALJ impermissibly substituted his lay opinion for the

opinion of treating source Ms. Canal who was specifically tasked with

evaluating Hernandez’s ability to interact with others, not her ability

to be polite to a doctor. Here, the ALJ cited no medical evidence

whatsoever and relied on anecdotal evidence to reject Ms. Canal’s

opinion. This is relevant because Hernandez complained of social

isolation. (Tr. 638, 647, 651)

As the ALJ provided no reasonable basis for discounting Hernandez’s

allegations, his decision must be reversed.

(Doc. 11, pp. 11-14).

Although the Commissioner generally responded that the ALJ’s evaluation

of Plaintiff’s statements about her symptoms was correct and addressed other

arguments related to the evaluation of CRNP Canal’s opinion, the Commissioner

did not address Plaintiff’s allegations.

Page 34 of 36

In support of her “second” and “third” arguments, Plaintiff relies on Morales

v. Apfel, 225 F.3d, 310 (3d Cir. 2000). In Morales, the record included opinions by

one nontreating psychologist (Dr. Jaffe), one nontreating psychiatrist (Dr. Linder),

one treating psychiatrist (Dr. Erro), and two nonexamining psychologists (Dr.

Barrett and Dr. Brennan). The opinions by Dr. Jaffe, Dr. Linder, and Dr. Erro

included significantly more serious mental limitations than the opinions of Dr.

Barrett and Dr. Brennan. Also significant in this case, Dr. Jaffe noted he suspected

the claimant of malingering, but that malingering was a symptom of one of the

claimant’s diagnosed mental conditions. The ALJ in Morales accepted the opinions

of Dr. Barrett and Dr. Brennan, and rejected all others based on the ALJ’s own

impression that the claimant was “manipulative, unmotivated, and possibly

malingering,” and that the claimant’s IQ scores did not “comport with claimant

appearance and demeanor.” Id. at 314. The Third Circuit held that the ALJ’s

rejection of the opinions by Dr. Jaffe, Dr. Linder, and Dr. Erro was not supported

by substantial evidence because the ALJ’s refusal to credit these opinions was not

based on objective evidence, and instead was merely based on the ALJ’s own

“amorphous impressions.” Id. at 318. After concluding that these opinions were

improperly rejected, the Third Circuit remanded because “the ALJ did not give

proper consideration to the opinions of Dr. Erro, Dr. Jaffe, and Dr. Lindner, all of

which present counterveiling [sic] evidence to the Brennan/Barrett evaluation.” Id.

Page 35 of 36

at 319. Unlike in Morales, the ALJ in this case cited to evidence in the record

including Plaintiff’s mental health treatment records and the opinions of doctors

Davis (Ex. 4F) and Siegel (Exs. 1A, 2A) (whose opinions he accorded great

weight) before concluding that Plaintiff was not disabled. Accordingly, I am not

persuaded that remand is required under Morales.

V. CONCLUSION

For the reasons stated herein, Plaintiff’s request for the award of benefits, or

in the alternative a new administrative hearing is DENIED as follows:

(1) The final decision of the Commissioner should be AFFIRMED.

(2) Final judgment should be issued in favor of Andrew Saul,

Commissioner of Social Security.

(3) An appropriate order shall issue.

Date: June 22, 2020 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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