CORDERO v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LORRAINE CORDERO, :

Plaintiff, : CIVIL ACTION

:

v. : NO. 20-cv-01868-RAL

:

KILOLO KIJAKAZI,1 :

Acting Commissioner of Social :

Security :

:

Defendant. :

AMENDED MEMORANDUM OPINION

RICHARD A. LLORET April 4, 2022

U.S. MAGISTRATE JUDGE

I. INTRODUCTION

An Administrative Law Judge (“ALJ”) denied Lorraine Cordero Social Security

benefits, after a district court remanded an earlier decision by a separate ALJ because of

errors. Ms. Cordero contends that the latest unfavorable decision was also reached in

error. Doc. No. 16 (“Pl. Br.”) at 2. Ms. Cordero argues that the ALJ: (1) Failed to properly

weigh the medical opinion evidence in a number of ways, and (2) failed to properly

evaluate Ms. Cordero’s subjective testimony. Id. at 4–33. The Acting Commissioner of

Social Security (“Commissioner”) responds that because the ALJ’s decision is

“[u]ltimately . . . supported by more than a scintilla of evidence (the low threshold

required by the ‘substantial evidence’ standard of review) (citation omitted) the Court

should affirm the ALJ’s decision.” Doc. No. 20 (“Def. Br.”) at 2.

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule

25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew Saul as

Defendant. No further action need be taken to continue this suit by reason of the last sentence of section

205(g) of the Social Security Act, 42 U.S.C. § 405(g).

On January 10, 2022, I ordered supplemental briefing on the issue of whether, if

the ALJ accepted the opinion of Ms. Cordero’s treating neurologist, it would have

supported a granting of disability benefits due to her epilepsy. Doc. No. 23. The parties

both supplied supplemental briefing on January 18, 2022. Doc. Nos. 24 and 25. Ms.

Cordero argues that acceptance of Dr. Lim’s opinion with regard to her epilepsy

diagnosis would support a finding of disability under the Listings. The Acting

Commissioner argues that acceptance of Dr. Lim’s opinion would not support a finding

of disability under Listing 11.02A or 11.02D because the ALJ pointed to places in the

record where Ms. Cordero failed to properly take her epilepsy medication, proving she

was not adhering to prescribed treatment. Doc. No. 25 at 2-3.

After careful review, I find that the ALJ’s decision was not supported by

substantial evidence. The ALJ improperly rejected the four treating specialists’ opinions,

all of which supported a disability finding. These failures were exacerbated by the ALJ’s

improper handling of Ms. Cordero’s lay testimony, including that submitted by her

mother. As a result of the ALJ’s errors, he improperly found Ms. Cordero not disabled.

Because the record is complete and supports a finding of disability, and remand would

serve no purpose, I will grant the Plaintiff’s request for review and enter an order

directing the payment of benefits.

II. PROCEDURAL HISTORY

Ms. Cordero filed a claim for disability insurance benefits (“DIB”) and

supplemental security income (“SSI”) on July 3, 2012.2 Administrative Record (“R.”)

142, 157, 321-34. She originally alleged a disability onset date of October 2, 2008. Id.3

Her application was initially denied in February 2013 and she requested a hearing

before an ALJ. R. 187-88. ALJ Craig De Bernardis held a hearing in March 2014, R. 66-

71, and a supplemental hearing on June 16, 2014, during which the Plaintiff and a

medical expert, Luka Cohen, Ph.D., testified. R. 40-65. ALJ De Bernardis found Ms.

Cordero was not disabled in a July 2014 opinion. R. 20-39. Plaintiff requested review of

the ALJ’s decision to the Appeals Council the following month. R. 19. The Appeals

Council denied the request for review in January of 2016. R. 1-9.

Following the Appeals Council denial, Ms. Cordero appealed to the Eastern

District of Pennsylvania. Accepting and adopting the report and recommendation of

Magistrate Judge Henry Perkin, United States District Judge Berle Schiller granted Ms.

Cordero’s request for review. R. 941. Judge Perkin’s report and recommendation to

Judge Schiller found that the ALJ (1) failed to examine the factors found in 20 CFR §

416.927(c)(1-6) in order to decide the appropriate weight to be given to the treating

source’s opinion, after the ALJ decided not to give that opinion controlling weight, R.

957; and (2) failed to evaluate or indeed mention the statement made by Ms. Cordero’s

2 The procedure by which the Social Security Administration evaluated medical opinions changed on

March 27, 2017. Ms. Cordero’s claim is reviewed using the regulations in place prior to March 27, 2017.

See 20 C.F.R. § 416.927, Evaluating opinion evidence for claims filed before March 27, 2017.

3 Ms. Cordero amended her disability onset date to April 5, 2010, before her second hearing, on April 11,

2019. R. 1081. Ms. Cordero was 30 years old on the alleged disability date. R. 1060. Born in March 1980,

she is now 41 years old.

mother. R. 958-60. These errors in the ALJ’s decision made meaningful review by the

Magistrate Judge impossible and required a remand to the Commissioner. R. 961.

Upon remand, a new ALJ was assigned, and another hearing was held, where Ms.

Cordero and a vocational expert testified. R. 852–911. Following the hearing, the new

ALJ issued another unfavorable opinion dated July 5, 2019. R. 817-42. Ms. Cordero’s

attorney filed a detailed letter objecting to the opinion on August 30, 2019. R. 1060-65.

By notice dated February 12, 2020, nearly eight years after Ms. Cordero filed her claim,

the Appeals Council determined it would not assume jurisdiction of the case.4 R. 801-07.

This appeal follows.5

III. FACTS

Ms. Cordero has a complicated and lengthy medical history. She has been treated

for a number of years by two neurologists for epileptic seizures and chronic migraine

headaches. She has also been treated by two board-certified psychiatrists for bipolar

disorder, depression, and anxiety. Her medical records, which include, along with

treatment records, a number of medical opinions by all her treating doctors as well as a

number of consulting doctors, span over two thousand pages.6 All four of Ms. Cordero’s

treating specialists provided opinions that support a finding of disability.

A. Claimant’s Background

4 In cases where, as here, an ALJ makes a decision after remand from the federal district court, the

decision is considered final (and thus again appealable to federal court) when no exceptions are filed and

the Appeals Council does not assume jurisdiction. See 20 C.F.R. § 404.984.

5 The matter was assigned back to Magistrate Judge Henry Perkin after Ms. Cordero took her second

appeal to the district court, and Ms. Cordero consented to having the case heard directly by the Magistrate

Judge. Doc. No. 11. On October 27, 2021, the case was reassigned to me, as Judge Perkin has retired. Doc.

No. 22.

6 Where necessary, I will discuss details of those medical records within my discussion of the legal issues.

Ms. Cordero was 34 years old on the date she was last insured—June 30, 2014.

She did not graduate from high school, but received her GED and went on to complete

two years of college. R. 321, 358, 373. The Commissioner has agreed that Ms. Cordero

has no past relevant work. R. 840.7 Ms. Cordero claims, and the Commissioner agrees,

that she has a total of seven severe impairments. R. 820.

B. The ALJ’s Decision

In reaching his decision, the second ALJ to review this case made the following

findings of fact and conclusions of law pursuant to Social Security’s five-step sequential

evaluation.8

At step one, the ALJ concluded that Ms. Cordero has not engaged in substantial

gainful activity since her alleged onset date of April 5, 2010. R. 820. At step two, the ALJ

determined that Ms. Cordero had seven severe impairments: 1) bipolar disorder, 2)

depressive disorder, 3) generalized anxiety disorder, 4) mood disorder, 5) seizure

disorder, 6) migraines/headaches, and 7) degenerative disc disease.9 R. 820. The ALJ

also found a number of non-severe impairments, including iron deficiency anemia, renal

calculus and mastitis, not resulting in any significant work-related functional limitations

7 Past relevant work is defined by the Social Security Administration as work done within the past 15

years, that qualifies as “substantial gainful activity,” and that lasted long enough for the claimant to have

learned to do it. 20 C.F.R. § 404.1560(b)(1) and 416.960(b)(1).

8 An ALJ evaluates each case using a sequential process until a finding of “disabled” or “not disabled” is

reached. The sequence requires an ALJ to assess whether a claimant: (1) is engaging in substantial gainful

activity; (2) has a severe “medically determinable” physical or mental impairment or combination of

impairments; (3) has an impairment or combination of impairments that meet or equal the criteria listed

in the Social Security Regulations and mandate a finding of disability; (4) has the residual functional

capacity to perform the requirements of his or her past relevant work, if any; and (5) is able to perform

any other work in the national economy, taking into consideration his or her residual functional capacity,

age, education, and work experience. See 20 C.F.R. § 416.920(a)(4)(i)–(v).

9 Only the ALJ’s handling of degenerative disc disease is not at issue here.

(R. 828); mild neurocognitive disorder (id.); borderline personality disorder (R. 829);

and substance abuse, which “has had no more than a minimal impact on the claimant’s

ability to perform work activity.” Id.10

At step three, the ALJ compared Ms. Cordero’s impairments to those contained

in the “Listings.”11 The ALJ concluded that none of Ms. Cordero’s impairments, alone or

in combination, met or equaled the criteria of any of the Listings. R. 829-31. Reaching

this conclusion, the ALJ specifically ruled out Listing § 11.02 (relating to epilepsy),

Listing § 1.04A (relating to cervical and lumbar spine impairments), and Listings §§

12.04, and 12.06 (relating to mental impairments). Id.

The sequential evaluation then proceeded to step four, prior to which the ALJ

determined Ms. Cordero’s residual functional capacity (“RFC”). 20 C.F.R. § 416.945(a).

To determine Ms. Cordero’s RFC, the ALJ reviewed the available medical opinion

evidence. Based on this review, the ALJ concluded that Ms. Cordero is able to perform

sedentary work, with some exceptions.12 R. 854. These exceptions include:

[Ms. Cordero] can occasionally climb ramps and stairs,

balance, stoop, kneel, crouch, and crawl; never climb

ladders, ropes, or scaffolds; never be exposed to work

10 I have found no evidence of recent substance abuse in this record, only a suggestion in the ALJ’s

opinion that in July 2010 Ms. Cordero reported to Lehigh Valley Community Mental Health Center

(LVCMHC) that she had self-medicated with alcohol and marijuana in the past, but that marijuana “made

her paranoid.” R. 824. There is no record cite in the decision, but it appears to refer to a patient history at

R. 617-31. I have not located any other reference to substance abuse in the record.

11 The regulations contain a series of “Listings” that describe symptomology related to various

impairments. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. If a claimant’s documented symptoms meet or equal

one of the listed impairments, “the claimant is conclusively presumed to be disabled.” Bowen v. Yuckert,

482 U.S. 137, 141 (1987). If not, the sequential evaluation continues to step four, where the ALJ

determines whether the impairments assessed at step two preclude the claimant from performing any

relevant work they may have performed in the past. Id.

12 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying

articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which

involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties.

Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are

met.” 20 C.F.R. § 404.1567.

involving unprotected heights, moving mechanical parts, or

operating a motor vehicle; occasionally be exposed to work

involving humidity, wetness, dust, odors, fumes, pulmonary

irritants, extreme cold, and vibration; no more than

moderate noise; can perform, use judgment, and tolerate

occasional changes in a routine work setting defined as that

consistent with routine and repetitive tasks; and can have

occasional interaction with supervisors, coworkers, and the

public.

R. 832.

In making this finding, the ALJ “considered all symptoms and the extent to which

these symptoms can reasonably be accepted as consistent with the objective medical

evidence and other evidence” as required by Social Security regulations 20 CFR §

404.1529 and SSR 16-3P. He also advised that he “considered opinion evidence in

accordance with the requirements of 20 CFR § 404.1527.” R. 832. Following this

recitation, the ALJ discussed Ms. Cordero’s testimony, concluding that “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 . .

.”. R. 833. The ALJ also wrote nearly seven pages detailing the opinions of numerous

treating and consulting physicians. He rejected all, or portions of, every opinion by a

treating or consulting examiner. R. 833-40. He gave Ms. Cordero’s mother’s third-party

function report “little weight.” R. 837.

The ALJ then found that Ms. Cordero has no past relevant work. R. 840. He

concluded that her past employment as a cashier, production assembler and home

health aide did not qualify as substantial gainful activity. Id.

Having found no past relevant work that Ms. Cordero could perform, the ALJ

proceeded to Step Five. Accepting the testimony of the vocational expert at the April 11,

2019 hearing, that jobs existed in sufficient numbers for a hypothetical individual who

could perform sedentary work, further limited by the physical limitations set forth in the

Residual Functional Capacity (RFC) finding, supra at 5, with mental limitations stated

as: “can perform, use judgment, tolerate occasional changes in routine work setting,

defined as that consistent with routine repetitive tasks; can have occasional interaction

with supervisors, coworkers and the public,” R. 900, the ALJ found Ms. Cordero not

disabled, as she could perform work as an “optical lens inserter,” a “table worker,” or a

“master,” as those terms are defined by the Dictionary of Occupational Titles.” R. 841-

42.13

Because the ALJ identified jobs Ms. Cordero could perform, he ultimately

concluded that Ms. Cordero is “not disabled.” R. 842.

IV. STANDARD OF REVIEW

A. Legal Standards.

Ms. Cordero has the burden of showing that the ALJ’s decision was not based on

“substantial evidence.” 42 U.S.C. § 405(g); Rutherford v. Barnhart, 399 F.3d 546, 552

(3d Cir. 2005). “Substantial evidence” is not a high standard. Biestek v. Berryhill, 139 S.

Ct. 1148, 1154 (2019). “It means—and means only—such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Id. (citations and

internal quotations omitted).

I exercise “plenary review over questions of law.” Newell v. Commissioner of

Social Security, 347 F.3d 541, 545 (3d Cir. 2003) (citation omitted). I must determine

whether the ALJ applied the proper legal standards in reaching the decision. See Coria

13 The Vocational Expert testified at the hearing in response to questioning by the ALJ with regard to

absences from sedentary, unskilled work. R. 904-05. He advised the ALJ that based on his experience and

knowledge, “absenteeism greater than one day per month would ultimately lead to no SGA [substantial

gainful activity].” Id. at 905. Likewise, the VE testified that being “off-task” for 20% of an eight-hour

workday would be work preclusive. Id. The ALJ did not discuss this testimony in his decision.

v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984); see also Trinh v. Astrue, 900 F. Supp. 2d

515, 518 (3d Cir. 2012) (citing to Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)).

Accordingly, I can overturn an ALJ's decision based on a harmful legal error even when

I find that the decision is supported by substantial evidence. Payton v. Barnhart, 416 F.

Supp. 2d 385, 387 (E.D. Pa. 2006) (citing Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983).

An ALJ must provide sufficient detail in his opinion to permit meaningful judicial

review. Burnett v. Commissioner of Social Security Admin., 220 F.3d 112, 120 (3d Cir.

2000). When dealing with conflicting medical evidence, the ALJ must describe the

evidence and explain his resolution of the conflict. As the Court of Appeals observed in

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999),

when a conflict in the evidence exists, the ALJ may choose whom to credit but

“cannot reject evidence for no reason or for the wrong reason.” Mason v. Shalala,

994 F.2d 1058, 1066 (3d Cir. 1993). The ALJ must consider all the evidence and

give some reason for discounting the evidence [she] rejects. See Stewart v.

Secretary of H.E.W., 714 F.2d 287, 290 (3d Cir.1983).

While it is error for an ALJ to fail “to consider and explain his reasons for

discounting all of the pertinent evidence before him in making his residual functional

capacity determination . . .”, Burnett, 220 F.3d at 121, an ALJ’s decision is to be “read as

a whole” when applying Burnett. See Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.

2004); Caruso v. Commr. of Soc. Sec., 99 Fed. Appx. 376, 379–80 (3d Cir. 2004)

(unpublished) (examination of the opinion as a whole permitted “the meaningful review

required by Burnett,” and a finding that the “ALJ’s conclusions [were] . . . supported by

substantial evidence.”) The issue is whether, by reading the ALJ’s opinion as a whole

against the record, the reviewing court can understand why the ALJ came to her

decision and identify substantial evidence in the record supporting the decision. Id. at

379. I must rely on the record developed during the administrative proceedings along

with the pleadings in making my determination. Trinh, 900 F.Supp.2d at 518; see also

42 U.S.C. § 405(g). I may not weigh the evidence or substitute my own conclusions for

those of the ALJ. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). I

must also defer to the ALJ’s evaluation of evidence, assessment of the witnesses, and

reconciliation of conflicting expert opinions. Diaz v. Comm'r of Soc. Sec., 577 F.3d 500,

506 (3d Cir. 2009).

B. The Instructions Contained in the Remand.

Magistrate Judge Perkin issued a Report and Recommendation on March 12,

2018, in which he instructed that on remand, the ALJ must comply with the

requirements of 20 C.F.R. § 416.927(c)(1-6) in any instance where he declines to give a

treating source’s opinion controlling weight. R. 957. Judge Perkin specifically stated that

the ALJ is required to discuss:

The examining relationship, the treatment relationship, including the

length of the treatment relationship and the frequency of examination,

nature and extent of the treatment relationship, the supportability of the

medical opinion, the consistency of the medical opinion with the record,

the specialization of the treater, and any other factors that tend to support

or contradict the medical opinion.

Id. He found that the original ALJ failed to discuss these steps in rejecting the opinion of

treating psychiatrist Dr. Raghavendra Siragavarapu in the original decision, as well as

noting that, “it is likewise unclear how much weight, if any, the ALJ actually assigned to

the opinion of Plaintiff’s treating psychiatrist.” Id. Judge Perkin found that because of

this error, meaningful review of the ALJ’s decision was not possible. R. 960.

Judge Perkin also recommended remand because the ALJ “completely failed to

mention the statement made by Plaintiff’s mother on behalf of Plaintiff.” R. 958. He

noted that at the time, the Plaintiff’s mother “lives with [Ms. Cordero] and observes her

every day, but there is no mention of this statement by the ALJ in his decision.” R. 959.

Judge Perkin noted this failure is error “because an ALJ must consider all relevant

evidence when determining an individual’s residual functional capacity, including

medical records, observations made during formal medical examinations, descriptions

of limitations by the claimant and others, and observations of the claimant’s limitations

by others,” citing 20 C.F.R. §§ 404.1529, 416.929, 404.1545(a)(1), (3), 416.945 (a)(1),

(3); Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001); Van Horn v. Schweiker, 717

F.2d 871, 873 (3d Cir. 1983). Judge Perkin noted that, “[o]rdinarily, the failure to

consider third-party statements constitutes reversible error,” citing Diggs v. Colvin, No.

13-cv-4336, 2015 WL 3477533 at *3 (E.D. Pa. May 29, 2015) (Schmehl, J.) (citing

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 122 (3d Cir. 2000)); Zerbe v. Colvin, 2014

WL 2892389 (M.D. Pa. June 26, 2014).

I will examine the second assigned ALJ’s decision with the instructions provided

by Judge Perkin in the earlier remand in mind.

V. DISCUSSION

A. The ALJ’s opinion was not based on substantial evidence.

ALJ Ryan Hoback wrote a 26-page, single-spaced opinion, in which he detailed

some of Ms. Cordero’s treatment records by four specialists, neurologists Dr. Lim and

Dr. Malik, and psychiatrists Dr. Siravaragapu and Dr. Lirag. Each of the four treating

specialists provided opinions in which they detailed Ms. Cordero’s severe impairments,

and rendered opinions that supported a finding that Ms. Cordero is unable to sustain

full-time employment. With respect to each of the four specialists’ opinions, however,

ALJ Hoback assigned “little weight.” The ALJ’s reasons for disregarding the opinions,

however, are legally flawed and lack support in the record. Ultimately, the ALJ reached a

conclusion that Ms. Cordero retained the residual functional capacity to perform

sedentary work, based on this flawed reasoning.

1. The ALJ’s use of “noncompliance.”

The ALJ rejected the opinions of all four treating doctors, as well as some of the

consulting examiners’ opinions, for the stated reason that each opinion failed to take

into consideration Ms. Cordero’s “noncompliance” with her treatment. R. 835, 838,

840. This was error, and resulted in the ALJ improperly weighing the opinions of all

four of Ms. Cordero’s treating specialists.

The term “noncompliance” is used in two distinct ways by the Social Security

Administration when evaluating disability. First, there is the “official” use of the term,

pursuant to the Social Security Regulations. Second, ALJ’s frequently use the term

“noncompliant” in a more colloquial sense, as a reason to reject some or all of a

claimant’s subjective testimony with respect to the severity of her impairments. Here,

the ALJ conflated the two, using “noncompliance” as a reason to reject the medical

opinions of her treating doctors, without conducting the proper analysis pursuant to the

Regulations. This was error.

The Social Security Administration provides a specific outline to Administrative

Law Judges who believe a claimant is noncompliant with treatment. Before relying upon

“noncompliance” as a basis to deny benefits, an ALJ is required, pursuant to SSR 82-59,

to address the following:

SSA may make a determination that an individual has failed to follow

prescribed treatment only where all of the following conditions exist:

1. The evidence establishes that the individual’s impairment precludes

engaging in any substantial gainful activity (SGA) . . .; and

2. The impairment has lasted or is expected to last for 12 continuous months

from onset of disability or is expected to result in death; and

3. Treatment which is clearly expected to restore capacity to engage in any

SGA (or gainful activity, as appropriate) has been prescribed by a treating

source; and

4. The evidence of record discloses that there has been refusal to follow

prescribed treatment.

Where SSA makes a determination of “failure,” a determination must also be

made as to whether or not failure to follow prescribed treatment is justifiable.

Treatment Must be Prescribed by Claimant's Treating Source

A treating source(s) is any duly licensed physician(s) who is actually attending

to the claimant’s or beneficiary’s medical needs. Where the individual does not

have an attending physician, the treating physician(s) in the hospital, clinic, or

other medical facility where the individual goes for medical care will be

considered the treating source.

Titles II & XVI: Failure to Follow Prescribed Treatment, SSR 82-59 (S.S.A. 1982).

My review of Ms. Cordero’s file has uncovered no treatment, prescribed by a

treating source, that is “clearly expected to restore capacity to engage in any SGA.”

Rather, a fair reading of the record as a whole reveals multiple specialists prescribing

various medications and treatments in an attempt to give Ms. Cordero some relief from

her multiple severe impairments. On numerous occasions, these treatments or

medications provided no relief, or worse, caused harm.14 Rather than “noncompliance,”

14 On at least two occasions, Ms. Cordero was taken to the emergency room with painful kidney stones,

caused by her medications. See R. 1305-24; 1445-85. On multiple occasions, Ms. Cordero reported to her

treating physicians that she stopped taking medication because it was causing serious weight gain. R. 399,

467, 561,653, 721. The file records Ms. Cordero’s weight, at various times, as between 126 and 220

a reading of the record as a whole demonstrates “trial and error” on the part of multiple

specialists treating multiple impairments.15 The ALJ’s error in not undertaking the

required “noncompliance” analysis is certainly not harmless, because this record could

never support a finding that Ms. Cordero rejected treatment that would have cured her.

Her counsel pointed out as much in a detailed letter to the Appeals Council in an effort

to convince them to correct this obvious error by the ALJ:

[I]t is fundamentally unclear how the claimant can be deemed

“noncompliant,” when the treatment record consists of thousands of pages of

treatment notes and 42 medical exhibits. The ALJ himself noted on multiple

occasions that the record showed the claimant was taking her medications

(Decision, p. 7). A noncompliance evaluation is essential, because it appears that

in this instance it is simply the ALJ making an assertion he had no authority or

expertise to make. The actual record (specifically, the record the ALJ cited to

assert that the claimant was noncompliant) showed that despite taking her

medications, the claimant was still experiencing seizures (Exhibit 42F/47). The

record itself shows early on that the claimant actually had “good compliance”

with her medication regimen and still continued to experience issues (Exhibit

14F/49).

Letter by Charles Binder, Esq., dated August 30, 2019, to the Appeals Council, R. 1062.

The ALJ’s repeated statements that Ms. Cordero’s treating physicians failed to

take her “noncompliance” into account in rendering their respective opinions is also

belied by the facts in the record. This is not a case in which the patient either hides her

“noncompliance” from her physician, or flatly refuses to undergo treatment that her

pounds. Id.; R. 581, 1159. Therefore, her physicians rightly monitored any sudden weight changes when

treating her.

15 For instance, on April 22, Dr. Lim’s progress notes included a report that Ms. Cordero expressed worry

that the drug valproate was causing weight gain, but agreed to abide by Dr. Lim’s decision on which

medication to start next. R. 1579. “She has a difficult time following directions to take medications three

times a day (gabapentin) because she will forget her afternoon dose.” Id. “She has tired (sic) so many

medications for her depression and anxiety including Cymbalta, Zoloft, Prozac, Buspar, Lithium, Xanax,

Klonopin, Seroquel and many others.” Id. In the narrative, Dr. Lim stated that, “Ms. [Cordero] severely

needs better psychiatric control of her anxiety. But, her pessimism is interfering with her willingness to

participate in therapy.” R. 1583.

doctor tells her will cure her impairment. Rather, the medical records contain instances

where Ms. Cordero reported directly to her treating physicians that she had stopped

taking a particular medication, because it was not working, it was causing serious weight

gain, or, in at least one instance, because her insurance no longer covered its cost. See

e.g., R. 644, 696. In each instance, the physicians worked with Ms. Cordero in an

attempt to find a treatment that would work, without debilitating side effects. Therefore,

although the treating specialists’ opinions did not specifically discuss changes in

medication, or failure to take medication, all of the treating doctors were well aware of

the difficulties Ms. Cordero experienced with her treatments, when those opinions were

rendered. The ALJ cites to no instance in which a treating physician states that, if Ms.

Cordero would only take her medication, her impairments would vanish, and my review

of the record finds no such statement.

It is especially problematic for an ALJ to so casually apply a “noncompliant” label

to a claimant suffering from severe psychiatric problems. As noted in SSR 16-3p, 2016

WL 1119029, the decreased insight and judgment accompanying severe mental

impairments may be a reason that medication or treatment protocols are not strictly

followed. Additionally, psychiatric medications frequently cause severe side-effects, as

was the case here, where Ms. Cordero suffered weight fluctuations of nearly 100 pounds.

Such side effects may cause an individual to avoid a particular prescription medication,

and SSR 16-3p specifically directs that such reason for noncompliance should be taken

into consideration.16 Federal courts have repeatedly noted that the mental impairment

itself may cause the noncompliance, as “people with serious psychiatric problems are

16 Although Ms. Cordero’s claim was filed prior to the issuance of this Ruling, ALJ Hoback stated in his

opinion that he reviewed the Ruling and followed its guidance. R. 832.

often incapable of taking their prescribed medications consistently.” Martinez v. Astrue,

630 F.3d 693, 697 (7th Cir. 2011). “[I]t is a common phenomenon that a patient

functions well with medication, yet because of the mental illness itself, lacks the

discipline or capacity to follow the regime the medication requires.” Olmstead v. L.E. ex

rel. Zimring, 527 U.S. 581, 610 (1999) (Kennedy, J., concurring). It can hardly be

surprising that an individual also attempting to manage epileptic seizures and

intractable migraine headaches with medication would be in a worse position to manage

her psychiatric medications than one dealing with psychiatric impairments alone.

Here, the ALJ’s rejection of the opinions of all four treating physicians because,

in part, he believed Ms. Cordero was “noncompliant” with her prescribed treatment, and

the physicians failed to take noncompliance into account in rendering their respective

opinions, was error. As a result, the ALJ failed to give appropriate weight to the opinions

of Ms. Cordero’s four treating specialists.

In contrast to the definition of “noncompliance” used in the Social Security

Regulations, an ALJ may also use evidence of a claimant’s failure to take prescribed

medication as a factor in analyzing a claimant’s credibility. The Third Circuit has found

this use of the term “noncompliance” to be appropriate. See Vega v. Comm’r of Soc.

Sec., 358 F. Appx. 372, 375 (3d Cir. 2009):

However, it was not Vega’s noncompliance with her treatment that was the

basis for the denial of benefits; rather, it was her residual functional capacity to

return to sedentary work. Viewed in the context of the ALJ’s findings as a whole,

his reference to Vega’s noncompliance shows that he treated it as a factor in

analyzing the credibility of Vega’s testimony. Because an ALJ may consider a

claimant less credible if the individual fails to follow the prescribed treatment

plan without good reason, see SSR 96–7p, this was not improper.

Id. (Emphasis added). See also Showell v. Colvin, No. 14-cv-7081, 2016 WL 3599569

(E.D. Pa. Jul. 1, 2016) (Schmehl, J.) (upholding ALJ’s decision where plaintiff’s

neuropathy symptoms improved when compliant with his doctor’s recommendations,

and “aside from Plaintiff’s own testimony, the medical record was devoid of any

limitations on Plaintiff’s ability to stand and/or walk.”). That is not what happened here.

Instead, the ALJ dismissed vast swaths of medical opinion evidence with a laconic

mention of “noncompliance,” without doing the analysis required under the regulations.

It was legal error to ignore the required analysis. And my own review of the record

convinces me that it does not support a finding of “noncompliance” in the sense defined

by the regulations.

2. The ALJ improperly handled the treating doctors’ opinions.

It is well-settled that an ALJ should give “treating physicians’ reports great

weight, ‘especially when their opinions reflect expert judgment based on a continuing

observation of the patient’s condition over a prolonged period of time.’” Brownawell v.

Comm’r. of Soc. Sec., 554 F.3d 352, 355 (3d Cir. 2008), quoting Morales v. Apfel, 225

F.3d 310, 317 (3d Cir. 2000) and Plummer, 186 F.3d at 429. Contradictory evidence is

required in order for an ALJ to reject a treating physician’s opinion outright. Id. Here,

not one, but four treating specialists considered Ms. Cordero to be severely impaired,

and each provided opinions supported by treatment notes of multiple years’ duration.

Indeed, pursuant to Social Security Regulations, the ALJ must assign controlling

weight to any well-supported treating source medical opinion unless the ALJ identifies

substantial inconsistent evidence. See 20 C.F.R. § 404.1527(c)(2). The Third Circuit

consistently holds that lay reinterpretation of medical evidence is not substantial

evidence to decline to adopt a treating source medical opinion. Burns v. Colvin, No.

1:14–CV–1925, 2016 WL 147269 (M.D. Pa. Jan. 13, 2016) (internal citations omitted).

The Regulations retained, rather than abrogated, this precedent. Id. Thus, the ALJ may

not assign less than controlling weight to a well-supported treating source medical

opinion with lay reinterpretation of medical evidence.

The ALJ rejected the majority of the four treating physicians’ opinions in favor of

giving “partial weight” to the opinion of Luka W. Cohen, Ph.D.,17 as well as several

consulting physicians who were not specialists in psychiatry or neurology, and who

rendered their opinions prior to the first hearing in 2014. I examine each opinion, and

the treatment records on which they were based, in detail. This serves to illustrate that

the treating physicians’ opinions were well founded and that the ALJ’s dismissal of the

opinions based on Ms. Cordero’s supposed “noncompliance” was not only error, but

harmful. The exercise also satisfies me that reversal, and not remand, is the proper

remedy in this case.

a. The Treating Physicians’ Records and Opinions.

i. Dr. Kuei-Cheng Lim.

Dr. Kuei-Cheng Lim18 of St. Luke’s University Hospital’s Neurology Associates

treated Ms. Cordero for epilepsy and migraine headaches beginning in August of 2014.

R. 1224. Records for Dr. Lim contain detailed notes of his treatment of Ms. Cordero for

both epilepsy and migraines.

17 The Commissioner incorrectly identifies Dr. Cohen as an “M.D.” (medical doctor) in her brief. Resp. at

4. Dr. Cohen has a Ph.D. according to the record. R. 40. A Google search on February 16, 2022 for “Luka

W. Cohen,” using both “M.D.” and “Ph.D.” turned up no results. The Commissioner cites Dr. Cohen’s

testimony as the only evidence used by the ALJ as contradictory to the treating physicians, and I can find

no other medical evidence in the record or in the ALJ’s opinion that he relies upon as substantial evidence

which is contradictory to the treating specialists’ opinions.

18 Dr. Lim is board-certified in neurology in Pennsylvania and New Jersey, and specializes in the

treatment of epilepsy and headaches. https://www.doximity.com/pub/kuei-cheng-lim-md.

In April 2017, after Ms. Cordero suffered a bad fall during an epileptic seizure,

Dr. Lim ordered a prolonged hospital stay in an effort to monitor her on a constant basis

in order to capture a seizure in real time. On her admission to the hospital, Dr. Lim

detailed Ms. Cordero’s medical history, noting that she had “intractable” epilepsy, with

recurrent generalized convulsions 1 to 3 times per month “despite trials of four

antiseizure medications and [the surgical insertion of] a vagus nerve stimulator.” R.

1537. He also found it notable that Ms. Cordero had “memory problems and poor

concentration/attention,” which resulted in her incorrectly taking her medications or

self-discontinuing medication. R. 1540.19 A prior hospital stay had failed to capture a

seizure but an EEG confirmed “left frontal discharge,” consistent with earlier EEG

studies confirming “generalized discharges.” R. 1537.

Dr. Lim also noted that Ms. Cordero’s “daily headaches” were not relieved by

doses of doxepin, zolpidem, or zaleplon. Id. Those headaches continued through her

hospital stay and were not relieved by doses of Fioricet. Id. Dr. Lim documented that

Ms. Cordero’s headaches had been treated with “a number of preventative medications,

verapamil, topiramate, magnesium, riboflavin and Botox. There has not been significant

change to headache frequency or severity.” R. 1540. Despite treatment Ms. Cordero

19 During Ms. Cordero’s April 2017 hospital stay to monitor her epilepsy, she was also evaluated by

Thomas Sugalski, Ph.D., a psychologist and clinical neuropsychologist. R. 1549-50. Dr. Sugalski identified

impairments in Ms. Cordero’s general cognitive functioning, attention/concentration, frontal

systems/executive functioning, language functioning, memory functioning, and visuo-spatial abilities. R.

1549. The report included a Cognitive Functioning Summary and Emotional Functioning Summary,

which documented “deficits/weaknesses in auditory and visual memory systems, auditory vigilance and

selective attention, information processing speed, visual attention and tracking[.]” R. 1550. Dr. Sugalski’s

official impression included mild neurocognitive disorder, major depressive disorder, generalized anxiety

disorder, and R/O borderline personality disorder. His recommendations included weekly counseling to

decrease depressive cognitions and improve coping ability, biofeedback training to decrease anxiety, and

cognitive-behavioral intervention to identify triggers for anxiety and management strategies. Id. He

believed Ms. Cordero is “a candidate for psychotropic medications for depression and anxiety as deemed

appropriate by her physician.” Id.

continued to experience headaches 2-3 times a week, each lasting all day with a

component of nausea, relieved only by retreating to a quiet dark room. A five-day course

of Dexamethasone was administered, without significant improvement to headache

frequency or quality. Sumatriptan also failed to relieve or decrease the frequency of her

headaches. Dr. Lim noted that, “[s]he even had a cervical anterior spinal diskectomy for

suspected cervicalgia (C6-7 central protrusion disc herniation with near cord

compression),” which also did not relieve her chronic daily headaches. R. 1540.

Dr. Lim weaned Ms. Cordero off of her seizure medication and deprived her of

sleep during her hospital stay in an attempt to trigger a seizure,20 without success. He

noted that Ms. Cordero exhibited severe anxiety, “to the point that she was restless,

constantly tapping her legs, and feeling hot.” Id.

Dr. Lim completed a “seizures impairment questionnaire” in January 2019 for

Ms. Cordero’s attorneys. R. 1224-29, 1259-64.21 Dr. Lim advised that Ms. Cordero

suffered from “focal unaware seizures” and “tonic-clonic [grand mal] [epileptic] seizures

that are not controlled.” R. 1224. She suffers one to two seizures per month. R. 1225. He

has treated Ms. Cordero with Lamotrigine and phenobarbital, however, he was forced to

reduce the Lamotrigine in January 2019 due to “medication combination” causing blood

level issues. R. 1226. He opined that the seizures are “lifelong,” and they cause Ms.

Cordero to be tired and confused for “a couple of” hours after they occur. Id. He opined

that her symptoms are severe enough to interfere with her attention and concentration

“frequently,” and she is therefore capable of only “low stress” in a work setting. R. 1227.

20 The ALJ incorrectly stated that during this hospital stay, “her chronic insomnia was not present during

this admission, as she is able to initiate and maintain prolonged periods of sleep.” R. 828.

21 These appear to be two copies of the same form.

Dr. Lim had no reason to suspect that Ms. Cordero “faked” her symptoms or was

otherwise malingering, and he advised that she had long running, “overwhelming

anxiety, difficulty with memory, focus, and frequent headaches,” which contributed to

his opinion that she is unable to hold down full-time employment. Id. Additionally, her

“intractable epilepsy” was, in Dr. Lim’s opinion, work-preclusive. Id.

At R. 834-35, the ALJ discussed Dr. Lim’s treatment records and opinion

regarding Ms. Cordero’s epilepsy and migraine headaches. The ALJ noted that Dr. Lim

opined that Ms. Cordero’s symptoms “would frequently interfere with her attention and

concentration,” and that “[s]he would be absent from work two to three times per month

and would need breaks from the workplace due to headaches.” R. 834. He also described

Dr. Lim’s medical assessment form “stating that the claimant was disabled for unknown

duration due to recurrent seizures occurring at least one to three times per month,” and

that her “diagnoses include localization related symptomatic epilepsy and epileptic

syndromes with complex partial seizures [and] intractable and chronic migraine without

aura.” R. 835. The ALJ included a lengthy paragraph relating information from Dr. Lim

on March 7, 2019, which included Dr. Lim’s detailed information concerning the effects

of her seizures, and providing specific limitations with regard to her inability to work at

heights, operate machinery or a motor vehicle, or tolerate temperature extremes due to

her intractable epilepsy, that her symptoms would “frequently interfere with her

attention and concentration,” that she could tolerate only “low work stress,” and that

she suffered from “overwhelming anxiety and [has] difficulty with memory, focus, and

frequent headaches.” Id. The ALJ acknowledged that Dr. Lim stated that Ms. Cordero “is

unable to work due to intractable epilepsy.”22 Id.

Despite the ALJ acknowledging all of these detailed findings, his actual analysis

and discussion of Dr. Lim’s treatments and opinions was short, giving “little weight to

these opinions from Dr. Lim.” His reasoning for completely discounting the detailed

opinion and lengthy records of her treating neurologist was limited to the following:

They do not adequately address and fully consider the effects of her

noncompliance with treatment. Moreover, they do not include a function by

function assessment, are not consistent with the record as a whole as previously

discussed, and ultimately the opinion as to disability is reserved to the

Commissioner.

Id.23 The failure to properly analyze “noncompliance” was error.

ii. Dr. Bushra Malik.

Just as he did with Dr. Lim’s opinion, the ALJ wrote in detail on Ms. Cordero’s

years of treatment with Dr. Bushra Malik,24 and then dispatched Dr. Malik’s opinion

with a cursory mention of Ms. Cordero’s supposed “noncompliance.” This was error.

Dr. Malik treated Ms. Cordero beginning in at least January 2011 for headaches

and seizures. R. 507-510. Dr. Malik ordered an EEG on January 20, 2011, which

confirmed the presence of generalized sharp-and-wave and spike-and wave activity,

22 This paragraph of the ALJ’s opinion includes the statement, without page cite, that Ms. Cordero “is

compliant with her medication.” R. 835.

23The ALJ’s suggestion that Dr. Lim’s opinion and records did not provide a “function by function

assessment” is perplexing, since the ALJ actually included Dr. Lim’s detailed information concerning the

effects of her seizures and headaches, as just described. Id. The ALJ’s failure to properly address the

supposed noncompliance was error, and not harmless.

24 Dr. Bushra Malik is board-certified in neurology and licensed in Pennsylvania and New Jersey.

https://www.doximity.com/pub/bushra-malik-md.

which demonstrated the presence of a generalized seizure disorder. R. 512. This appears

to be the earliest medical evidence of Ms. Cordero’s epilepsy in the record.

Dr. Malik had been regularly seeing Ms. Cordero for treatment every three

months from January 2011 through January 2019 when the doctor prepared a

questionnaire for Ms. Cordero’s attorney detailing the plaintiff’s treatment for tension

and migraine headaches. While Ms. Cordero sometimes experiences tension headaches

on a daily basis, her much more serious migraine headaches are documented at four to

five per month, each lasting more than one day, and frequently causing vomiting, as well

as a complete inability to handle light or sound, requiring Ms. Cordero to retreat to a

dark room. R. 1215-16.

Dr. Malik treated Ms. Cordero’s headaches with Botox injections, and in January

2019 Dr. Malik advised that these injections had somewhat decreased the frequency of

her migraines. R. 1218.25 Dr. Malik advised that in January 2019 she prescribed Toradol,

Compazine and sumatriptan injections for pain relief. R. 1217. She also stated that Ms.

Cordero had previously tried, without success: Topamax 150 mg, Keppra 300 mg,

Oxycarbazapine 300 mg, Lyrica, Buspirone, Inderal, Verapamil, gabapentin, Lamictal,

Olanzapine, Tizanidine, Protriptyline, Effexor, Fioricet, Maxalt, Naproxen,

Dexamethasone, and Excedrin for relief of her headaches. R. 1218. Dr. Malik opined that

based on her long-term relationship with Ms. Cordero, she believed she would be

incapacitated from performing even basic work more than three times per month. R.

1219.

The ALJ gave Dr. Malik’s opinion “little weight” because:

25 Ms. Cordero testified, however, that they provided little in the way of pain relief when she did get a

migraine headache. R 884-85.

It is not consistent with [the] record as a whole as previously discussed. The

records show the claimant has not been complaint (sic) with treatment. She also

cares for herself and her child. She performs regular tasks at home.

R. 835. This was error, and not harmless.

iii. Dr. Siragavarapu.

The ALJ erroneously dismissed the opinion of Board-certified Psychiatrist

Raghavendra Siragavarapu,26 who treated Ms. Cordero’s bipolar disorder, depression,

and anxiety, monthly for nearly three years, from June 2011 until March 2014, before

completing a psychiatric/psychological impairment form on March 4, 2014. While the

form is structured as a “check-the-box” analysis, it is backed up by detailed records of

Ms. Cordero’s27 monthly visits with Dr. Siragavarapu, as well as a colleague,

Sachidanand D. Kamtam, M.D., whose name appears on a number of the session notes

in the file. R. 717-9, 721.28

26 Dr. Siragavarapu is board-certified in psychiatry and is affiliated with Temple University Hospital.

https://www.doximity.com/pub/raghavendra-siragavarapu-md.

27 The majority of these records refer to the Plaintiff by the name “Lorraine Saad.” There is no indication

in the record that Ms. Cordero and Ms. Saad are not the same individual.

28 The form, which was prepared by attorneys Binder and Binder, a firm specializing in Social Security

disability, included categories that correspond to the “Paragraph A” criteria in Listing 12.04, Depressive,

bipolar and related disorders (see 12.00B3), which requires a doctor’s finding that a patient satisfies

Paragraph A, along with either Paragraph B, or C (discussed infra at n. 36, p. 27). The Paragraph A

criteria are:

A. Medical documentation of the requirements of paragraph 1 or 2:

1. Depressive disorder, characterized by five or more of the following:

a. Depressed mood;

b. Diminished interest in almost all activities;

c. Appetite disturbance with change in weight;

d. Sleep disturbance;

e. Observable psychomotor agitation or retardation;

f. Decreased energy;

g. Feelings of guilt or worthlessness;

h. Difficulty concentrating or thinking; or

i. Thoughts of death or suicide.

2. Bipolar disorder, characterized by three or more of the following:

a. Pressured speech;

b. Flight of ideas;

c. Inflated self-esteem;

Dr. Siragavarapu diagnosed Ms. Cordero as suffering from bipolar disorder,29

depression, and generalized anxiety disorder. R. 741. He noted her current GAF score

(in March 2014) matched her lowest GAF score for the past year, at approximately 35-

40.30 Id. Her prognosis for improvement was “guarded.” Id. The doctor listed the

clinical findings, all of which are backed up by the treatment notes, as: (1) appetite

disturbance with weight change;31 (2) mood disturbance; (3) emotional lability; (4)

recurrent panic attacks; (5) feelings of guilt/worthlessness; (6) decreased energy; (7)

d. Decreased need for sleep;

e. Distractibility;

f. Involvement in activities that have a high probability of painful consequences that are not

recognized; or

g. Increase in goal-directed activity or psychomotor agitation.

29 “Bipolar disorder” includes Bipolar I disorder, formerly referred to as “manic-depressive disorder” or

affective psychosis, differing from the classical description to the extent that neither psychosis nor a

lifetime experience of a major depressive episode is a requirement. The definition also includes “Bipolar II

disorder,” which requires a lifetime experience of at least one episode of major depression and at least one

hypomanic episode. Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, 2013 (“DSM-V”),

p. 123.

30 Although Global Assessment of Functioning, (“GAF”) scores are no longer used as a diagnostic tool for

assessing a patient’s functioning due to their questionable probative value, see DSM-V, p. 16, when a

claimant exhibits low GAF scores (consistently under 50) for long periods of time, and when multiple

physicians agree that the claimant has such low scores, there is nothing in the case law that forbids my

taking that into account as a factor in determining whether the ALJ properly evaluated a claimant’s

medical history. See e.g. Rivera v. Astrue, 9 F.Supp.3d 495, 504-05 (E.D. Pa. 2014) (Savage, J.) (“the

Third Circuit has yet to address in a precedential opinion whether an ALJ’s failure to discuss

numerous GAF scores requires remand. The district courts in the Third Circuit have repeatedly held that

the ALJ’s failure to specifically discuss a GAF score that supports serious impairments in social or

occupational functioning is cause for remand.” (Collecting cases - citations omitted)). The GAF scale is

“used by mental health professionals to assess current treatment needs and provide a prognosis.” Nixon v.

Colvin, 190 F. Supp. 3d 444, 447 (E.D. Pa. 2016) (quotations omitted). A score of “50 or below indicates

serious symptoms, while a GAF score of 51 through 60 indicates moderate symptoms.” Id. In recent years,

the GAF scale has “fallen somewhat into disfavor,” however the Social Security Administration continues

to receive and consider GAF in medical evidence and adjudicators consider GAF scores with all of the

relevant evidence in the case file. Nixon, 190 F. Supp. 3d at 447 (quotations omitted). See Ven Ouk v.

Berryhill, No. CV 16-5509, 2018 WL 1898766, at *5 (E.D. Pa. Apr. 20, 2018). Here, the Plaintiff’s GAF

scores never were above 50, and usually hovered in the 35-45 range. Had the ALJ’s opinion not suffered

from so many other errors, I would have included a detailed discussion of the ALJ’s dismissal of Ms.

Cordero’s consistently low GAF scores, as another reason for rejecting the opinion.

31 Plaintiff, who is approximately five feet, seven inches tall, has documented weights in the record at

various times that fluctuate between as high as 220 pounds and as low as 126 pounds. See e.g., R. 1154,

1177.

generalized persistent anxiety; and (8) hostility and irritability. R. 742. Her most

prevalent symptoms were racing thoughts, panic attacks and insomnia. R. 743. In

response to a specific inquiry on the form, Dr. Siragavarapu (and all of her other

physicians) advised that Ms. Cordero does not present as a “malingerer.”32 R. 747. In her

treating psychiatrist’s opinion, Ms. Cordero’s symptoms and limitations were reasonably

consistent with her documented conditions. R. 743.

Dr. Siragavarapu was asked to assess Ms. Cordero’s capacity to handle various

situations using a rating scale that digressed from “no evidence of limitation” to

“markedly limited” in her ability to handle the basic skill described. R. 743. The skills

were grouped into (1) understanding and memory; (2) sustained concentration and

persistence; (3) social interactions; and (4) adaptation skills. R. 744-45.33 He rated Ms.

Cordero’s ability to handle the following skills as “markedly limited,” in the following

areas:

(1) Understanding and memory:

• The ability to remember locations and work-like procedures.

• The ability to understand and remember one or two step instructions.34

(2) Sustained concentration and persistence:

• The ability to carry out detailed instructions.35

• The ability to maintain attention and concentration for extended periods.

32 Miriam Webster’s online dictionary defines “malinger” as: “to pretend or exaggerate incapacity or

illness (as to avoid duty or work).” https://www.merriam-webster.com/dictionary/malingerer.

33 These categories roughly correspond to the “Paragraph B” criteria detailed at n.36, page 27, infra.

34 For the corresponding, “ability to understand and remember detailed instructions,” Dr. Siragavarapu

stated that he did not have available evidence to rate his patient, suggesting that he had never progressed

beyond one- or two-step instructions with Ms. Cordero.

35 In this corresponding category of “sustained concentration,” as opposed to the first category of

“understanding and memory,” Dr. Siragavarapu found a moderate limitation in her ability to carry out

simple one- or two-step instructions—indicating that if given a simple instruction, Ms. Cordero could

carry it out immediately, but that her ability to remember and carry out instructions over time was

impaired.

• The ability to perform activities within a schedule, maintain regular

attendance, and be punctual within customary tolerance.

• The ability to work in coordination with or proximity to others without

being distracted by them.

• The ability to make simple work-related decisions.

(3) Social interactions:

• The ability to interact appropriately with the general public.

• The ability to ask simple questions or request assistance.

• The ability to get along with co-workers or peers without distracting them

or exhibiting behavioral extremes.

• The ability to maintain socially appropriate behavior and to adhere to

basic standards of neatness and cleanliness.

(4) Adaptation:

• The ability to be aware of normal hazards and take appropriate

precautions.

• The ability to set realistic goals or make plans independently.

Id. at 744-46. 36

36 These categories parallel those found at Paragraph B of Listing 12.04, which requires the ALJ to

determine what level of limitation plaintiff's mental impairment imposes on his ability to perform

activities of daily living, maintain social functioning, and maintain concentration, persistence and pace,

and whether she has had repeated episodes of decompensation for extended duration.

Paragraphs B and C of Listing 12.04 read as follows:

12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial

manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life;

it generally involves either depression or elation. The required level of severity for these disorders is

met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.

1. ...

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration;

Or

C. Medically documented history of chronic affective disorder of at least 2 years' duration that has

caused more than a minimal limitation of ability to do basic work activities, with symptoms or

signs currently attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment that even a minimal

increase in mental demands or change in the environment would be predicted to cause the

individual to decompensate; or

3. Current history of one of more years' inability to function outside a highly supportive living

arrangement, with an indication of continued need for such an arrangement.

20 C.F.R. § 404, subpt. P., app. 1, § 12.04.

...

1. Activities of Daily living include adaptive activities such as cleaning, shopping, cooking, taking

public transportation, paying bills, maintaining a residence, caring appropriately for your

grooming and hygiene, using telephones and directories, and using a post office. In the context of

your overall situation, we assess the quality of these activities by their independence,

On the date the opinion form was prepared, Ms. Cordero was taking Ambien,

Lithium, Seroquel XR, and Buspar for her psychological impairments. R. 746. Dr.

Siragaravapu believed that Plaintiff experienced episodes of deterioration or

decompensation in a work- or work-like setting, causing her to withdraw from the

situation or experience exacerbation of signs and symptoms. Id. His three years of

sessions documented that Ms. Cordero experienced both “good” and “bad” days, and

that she was likely incapable of tolerating even “low stress” work. He estimated that she

would be absent from work more than three times per month as a result of her

appropriateness, effectiveness, and sustainability. We will determine the extent to which you are

capable of initiating and participating in activities independent of supervision or direction.

We do not define “marked” by a specific number of different activities of daily living in which

functioning is impaired, but by the nature and overall degree of interference with function. For

example, if you do a wide range of activities of daily living, we may still find that you have a marked

limitation in your daily activities if you have serious difficulty performing them without direct

supervision, or in a suitable manner, or on a consistent, useful, routine basis, or without undue

interruptions or distractions.

§ 12.00(C)(1).

2. Social functioning refers to your capacity to interact independently, appropriately, effectively,

and on a sustained basis with other individuals. Social functioning includes the ability to get along

with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers.

You may demonstrate impaired social functioning by, for example, a history of altercations,

evictions, firings, fear of strangers, avoidance of interpersonal relationships, or social isolation.

...

We do not define “marked” by a specific number of different behaviors in which social functioning is

impaired, but by the nature and overall degree of interference with function. For example, if you are

highly antagonistic, uncooperative, or hostile but are tolerated by local storekeepers, we may

nevertheless find that you have a marked limitation in social functioning because that behavior is

not acceptable in other social contexts.

§ 12.00(C)(2).

3. Concentration, persistence, or pace refers to the ability to sustain focused attention and

concentration sufficiently long to permit the timely and appropriate completion of tasks commonly

found in work settings. Limitations in concentration, persistence, or pace are best observed in work

settings, but may also be reflected by limitations in other settings. In addition, major limitations in

this area can often be assessed through clinical examination or psychological testing. Wherever

possible, however, a mental status examination or psychological test data should be supplemented

by other available evidence.

...

We must assess your ability to complete tasks by evaluating all the evidence, with an emphasis on

how independently, appropriately, and effectively you are able to complete tasks on a sustained basis.

We do not define “marked” by a specific number of tasks that you are unable to complete, but by the

nature and overall degree of interference with function.

§ 12.00(C)(3).

impairments or treatment. R. 748. Dr. Siragavarapu’s treatment notes span

approximately 110 pages and contain notations consistent with the statements made by

the doctor in his opinion.

The ALJ listed all of the areas in which Dr. Siragavarapu found Ms. Cordero had a

marked limitation, as well as the several areas in which he found a moderate limitation.

R. 838. The ALJ gave the opinion “little weight.” Dr. Siragavarapu provided a second

opinion on July 12, 2014, apparently as part of his monthly treatment records, although

it is difficult to tell as the document, R. 800, is a single page, beginning with “Section II”

at the top, and separated in the record as Exhibit No. 21F, and not a part of Exhibit 20F,

which are monthly session progress notes. The single page notes that Ms. Cordero is

“temporarily disabled – 12 months or more,” from June 27, 2011 to July 17, 2015, as a

result of a primary diagnosis of “bipolar disorder (unintelligible).” The document states

that the assessment is based upon a review of her medical records and is dated July 17,

2014. The ALJ gave “little weight to this opinion. It does not include a function by

function assessment and ultimately the opinion as to disability is reserved to the

Commissioner.” R. 839.

The ALJ dismissed the opinion of Dr. Siragavarapu with the following statement:

The opinion is inconsistent with the record as a whole as previously discussed

and internally inconsistent. For example, the extreme mental limitations are not

consistent with the routine and conservative treatment the claimant has received

nor the routinely adequate mental status examinations. See e.g., Exhibits 9F, 14F,

19F and 20F). Additionally, the doctor opined as to significant mental limitations

while simultaneously opining the claimant could manage benefits in her own best

interests. It also does not consider the claimant’s noncompliance with treatment.

R. 838. There are multiple errors contained in this single paragraph. The errors

completely negate the ALJ’s reasons for failing to give controlling weight to this opinion.

First, the ALJ’s statement that Dr. Siragavarapu’s findings regarding Ms.

Cordero’s mental limitations were “not consistent with [her] routine and conservative

treatment” is not supported by substantial evidence. It may be appropriate for a doctor

or other qualified expert to form an opinion that one would expect to see a more

aggressive treatment history for a medical issue. Such an opinion would be based upon

the doctor’s years of medical training and clinical experience, and it would enable him to

form a general guideline about the relationship of aggressive treatment history and

severity of the particular disorder. Such an opinion is often offered by an examining or

consulting physician and can form the basis of an ALJ’s determination that the level of

treatment is not commensurate with the limitations identified by the treating physician.

But the ALJ is not free to “go it alone.” It is not permissible for an ALJ to arrive at such a

conclusion, absent substantial support in the medical evidence in the record before him.

Conservative treatment for a particular condition may mean that aggressive treatment

does not offer much hope of success, or that more radical treatments don’t exist, rather

than indicate that the condition is mild. Botox injections and a diskectomy for migraines

do not strike me as either routine or conservative. Neither does implantation of a vagus

nerve stimulation device to assist with seizures. Or years of taking powerful

psychotropic drugs that have profound side effects. If these are routine and conservative

treatments, it would take a qualified specialist to say so.

As Ms. Cordero notes in her reply brief, suggesting that a given treatment for a

mental impairment is “conservative” is particularly perilous. Pet. Rep. at 1, n.1. (“The

history of brain surgery as a treatment for mental illness is not one the psychiatric

community is proud of. See Ethical Considerations of Psychosurgery: The unhappy

Legacy of the pre-frontal Lobotomy” (citation omitted)). Unlike a claimant who has

been treated for a mental impairment with only talk therapy, Ms. Cordero has been

treated with countless doses of psychotropic medications in an effort to control her

severe bipolar disorder, anxiety, and depression. The conclusion by this ALJ that Ms.

Cordero’s years of treatment with Dr. Siragavarapu were “routine and conservative” is

not supported by substantial evidence. There is no support for this conclusion in the

medical record, as the medical record sets forth years of treatment for Ms. Cordero’s

mental impairments without suggesting whether the treatments are aggressive or

conservative in nature. Therefore, the ALJ’s first reason for rejecting the treating

physician’s opinion is legally invalid.

Second, the ALJ’s record citation, (“[s]ee e.g., Exhibits 9F, 14F, 19F and 20F”),

without reference to specific page numbers, is unhelpful to me for purposes of review.

For example, Exhibit 9F consists of 55 pages of psychiatric sessions/progress notes from

Lehigh Valley Community Mental Health Center (LVCMHC), while Exhibit 14F consists

of 56 pages of records from the same mental health facility. All of these records contain

multiple findings, which supported the psychiatrists’ continued prescriptions for

psychotropic medications in an effort to alleviate Ms. Cordero’s significant symptoms

related to depression and bipolar disorder. Exhibits 19 and 20F consist of just eight

pages of treatment records from LVCMHC between March 4, 2014 and April 12, 2014,

and January 7, 2014 and April 17, 2014, respectively, (and appear to be two copies of the

same four pages of records). While they do note that on March 4, 2014 and April 17,

2014, Ms. Cordero was appropriately dressed and cooperative, they also noted that she

was depressed and anxious, with only fair insight and judgment (March 4, 2014); and

she reported having had a seizure, while continuing to suffer from anxiety and

depression (April 17, 2014). On both dates, Ms. Cordero was receiving psychotropic

medications including Lithium, Seroquel XR, and Buspar, as well as Ambien for sleep.

R. 792-99. Thus, the records cited do not support the ALJ’s conclusion—that the

medical evidence does not support the treating doctor’s opinion. In fact, they do.

Next, the ALJ writes that, “the doctor opined as to significant mental limitations

while simultaneously opining the claimant could manage benefits in her own best

interests.” Ms. Cordero’s counsel pointed out the incoherence of this statement in his

detailed letter to the Appeals Council seeking their reversal of the ALJ’s decision. R.

1061. Accepting the ALJ’s statement on its face would mean that any individual entitled

to benefits would need a legal representative to manage those benefits on the claimant’s

behalf. The Social Security Administration has no such requirement. The ability to

balance a checkbook and handle one’s finances does not necessarily correlate with the

ability to handle full-time employment. Therefore, this statement provides no support

for the ALJ’s rejection of the treating doctor’s opinion. The Social Security

Administration’s own regulations state as much.

[T]he fact that you have done, or currently do, some routine activities without

help or support does not necessarily mean that you do not have a mental disorder

or that you are not disabled. For example, you may be able to take care of your

personal needs, cook, shop, pay your bills, live by yourself, and drive a car. You

may demonstrate both strengths and deficits in your daily functioning.

20 C.F.R. Pt. 404, Appendix 1 of Subpart P § 12.00(D)(3)(a). The Third Circuit has

consistently maintained that evidence of an ability to perform some activities of daily

living outside the stresses of a work environment will not override the opinion of

treating doctors that a mental impairment is disabling in a work setting. See Morales,

225 F.3d at 319; Smith v. Califano, 637 F.2d 968, 971 (3d Cir. 1981) (“Disability does not

mean that a claimant must vegetate in a dark room excluded from all forms of human

and social activity.”).

Evidence in this record verifies that Ms. Cordero cannot live by herself, had her

driver’s license revoked because of uncontrolled seizures, and needs assistance to

perform personal needs like obtaining groceries and cooking. Using the doctor’s

suggestion that Ms. Cordero could “manage her own benefits” as a reason to deny those

benefits was error, pursuant to the Administration’s regulations. A claimant may be

capable of some activities of daily living, without contradicting the opinion of a treating

mental health specialist that she suffers from a work-preclusive mental impairment. See

Bauer v. Astrue, 532 F.3d 606, 608-09 (7th Cir. 2008).37 The ALJ’s dismissive treatment

of the subjective evidence presented by Ms. Cordero during her testimony, and in the

third party report of Ms. Cordero’s mother, exacerbated his error. Had the ALJ

appropriately weighed this evidence of the severe limitations Ms. Cordero faces in her

activities of daily living, he could not have used phrases such as “manages her own

benefits,” and “cares for herself,” as a counter-weight to the medical evidence supplied

37 While not precedential in the Third Circuit, the circumstances of the Seventh Circuit’s decision in

Bauer are strikingly similar to those presented here, making Judge Posner’s words recommended

reading:

Many of the reasons offered by the administrative law judge for discounting the evidence of Drs.

Caspary and Chucka suggest a lack of acquaintance with bipolar disorder. For example, the judge

noted that the plaintiff dresses appropriately, shops for food, prepares meals and performs other

household chores, is an “active participator [sic] in group therapy,” is “independent in her

personal hygiene,” and takes care of her 13–year–old son. This is just to say that the plaintiff is

not a raving maniac who needs to be locked up. She is heavily medicated, and this enables her to

cope with the challenges of daily living, and would doubtless enable her to work on some days.

But the administrative law judge disregarded uncontradicted evidence that the plaintiff's son

cooks most meals, washes the dishes, does the laundry, and helps with the grocery shopping. And

Caspary and Chucka, having treated the plaintiff continuously for three years, have concluded

that she cannot hold down a full-time job.

Bauer v. Astrue, 532 F.3d 606, 608–09 (7th Cir. 2008).

by Ms. Cordero’s psychiatrists that her impairments severely affect her ability to handle

full-time employment.

Finally, the ALJ uses his fall-back reason—that Ms. Cordero is “noncompliant”

with her treatment as a reason to discount the opinion. Curiously, the records cited in

the preceding sentence (exhibits 9F, 14F, 19F and 20F) indicate that Ms. Cordero was

compliant with her medication, making a “noncompliance” notation by the ALJ at this

juncture particularly puzzling. See R. 796, (“tolerating meds well”), and 798 (“compliant

w/ meds”). Both quotes were handwritten notations made by Dr. Siragavarapu.

Therefore, again on both a factual and legal basis, this final “reason” for failing to accept

the opinion of Ms. Cordero’s treating psychiatrist was error.

The ALJ provided not a single legitimate reason for giving “little weight” to Dr.

Siravaragapu’s opinion that Ms. Cordero suffered from a mental impairment that caused

“marked” limitations in categories sufficient to support an award of benefits. The

rejection of this treating specialist’s opinion was error.

iv. Dr. Enrique Lirag

The ALJ erred by dismissing the opinion of Dr. Enrique Lirag, Ms. Cordero’s

other treating psychiatrist, in several of the same ways as he erred in dismissing Dr.

Siragavarapu’s opinion.

Ms. Cordero first went to Haven House for psychiatric treatment on October 15,

2016, although she apparently did not begin to see Dr. Lirag until several months later.

See infra. On October 15, she was interviewed by Lauren Higgins, MA, who prepared a

detailed intake report. R. 1185-91. Ms. Cordero advised that she lived with her boyfriend

of eleven years and her two children, ages 21 and 9. R. 1185. Her mother, who previously

lived with her, passed away in 2015. Id. She reported becoming angry, causing her to

“slam[] things, yell[], and isolate[]. Id. Her anger sometimes caused her to “black-out”

but she reported she was now able to control herself better to avoid this extreme. Her

neurologist recommended that she return to psychiatric treatment, which she stopped

when LVCMH closed. Id. She reported epileptic seizures “a couple times a month,” and

stated that she lost her driver’s license due to the seizures. Id. Her sleep is

“inconsistent,” causing her to “pace back and forth” during the night. Id. She denied

suicidal ideation but stated “that if her children were not around it would be better to

go.” Id. She had not attempted suicide. Id. She does not leave her home except when

“she has to.” Id. Other than cigarettes, Ms. Cordero does not exhibit addictive behavior

and does not have any history of substance abuse. R. 1187.

Ms. Cordero first saw Dr. Lirag38 on May 1, 2017. R. 1154. Dr. Lirag wrote a

complete report on this date, describing the then 37-year old’s history of treatment,

obtained “from the patient, records from her PCP and neurologist, and also the Haven

House outpatient assessment.” R. 1176. Ms. Cordero advised that she was formerly a

patient of Lehigh Valley Community Mental Health (LVCMH) [Dr. Siragavarapu] “until

they no longer accepted her insurance.” Id. She then attended Bet-El Counseling

Services but was unhappy with her treatment there and she therefore stopped treatment

in early 2016. Id. In the interim, she continued to see her neurologist, who prescribed

sleep medications and anti-anxiety medications until she could find a new psychiatrist.

Id. She described manic episodes lasting three to five days when she is hyperactive and

cannot sleep, and depressive periods when “she isolates, can’t sleep, is anhedonic, lacks

energy and desire to do things, just stays in her room, and has crying spells and self-

38 Dr. Enrique Lirag, like Dr. Siragavarapu, is board-certified in psychiatry. https://www.haven-

house.com/mental-health-services/outpatient/enrique-lirag-md/.

deprecating thoughts.” Id. Ms. Cordero advised that she began getting migraine

headaches in elementary school. She sees a specialist for her migraines and a different

specialist for her epilepsy. Id. at 1177. She has a vagal nerve stimulation device

implanted to assist with her seizures. Id. In May 2017, her current medications were

Sumatriptan, Lamictal 300 mg AM and Depakote, as well as a Ferrous Sulfate

supplement. Her weight at that time was 145 pounds, down from a high of 220 pounds.

Id.

Dr. Lirag’s treatment recommendation after he took the above-described patient

history read:

This is a patient with epilepsy who is on two anticonvulsants that are also used

for bipolar disorder, but she is still having a lot of mood swings and depression so

we will give her a trial of Latuda at this time starting at 20 mg after dinner and

titrate accordingly. I discussed the benefits and side effects of Latuda to include

the potential for weight gain, metabolic syndrome, and abnormal involuntary

movements. As far as her sleep, we will put her back on Ambien 10 mg h.s. PRN;

no Trazodone yet. For anxiety she may continue Hydroxyzine that was prescribed

by her neurologist and is to call me if she needs a higher dose. . . . follow-up in

three weeks.

R. 1178.

Dr. Lirag’s treatment notes are handwritten and frequently difficult to read,

however, most of the notes that are readable indicate continued problems. For example,

the notes from June 5, 2017 indicate that she was sleeping well at that time with the

assistance of Ambien, but that her neurologist had stopped Klonopin because it was not

working and switched her to Depakote, which caused her to suffer an increase in weight.

R. 1184. Despite the change, she still was having seizures and her anxiety had increased.

Id. The progress notes for July 14, 2017 indicate Ms. Cordero was having increased

mood swings, and she needed Ambien to sleep. R. 1183. She stated that her main

concern at the time was her anxiety. Id. She advised of an increase in daytime sedation,

but had no increase in appetite. Id. The doctor described her as “tired looking.” Id.

The progress notes for November 11, 2017 note poor sleep lately due to Ms.

Cordero having seizures. R. 1182. The dosage of an unintelligible drug was increased and

a second drug (possibly phenobarbitol) was added. Id. Although “friendly” and

“cooperative,” Ms. Cordero was “tearful” during the visit. Id. Dr. Lirag increased Ms.

Cordero’s Latuda dosage and took other action which is unintelligible in the progress

notes. Id.

The progress notes for January 19, 2018 indicate that Ms. Cordero had run out of

her medications and was “not well,” and noted that her brother recently committed

suicide. R. 1181. The rest of the page is unintelligible. The progress notes from May 11,

2018 indicate that Ms. Cordero had transportation problems that caused her to miss an

appointment. R. 1180. She was unable to tolerate Latuda due to GI upset. Id. Although

Ms. Cordero was “friendly” and “cooperative,” the doctor noted “leg shaking.” Id. The

progress notes for June 4, 2018 stated, “[s]he lost a lot of w[eigh]t, no appetite. 156 [to]

138 lbs in 1 ½ months.” R. 1179. “Axis 3 (unintelligible) psychomotor retarded,

tremors.” Id. “(Unintelligible) ^ anxiety (unintelligible).” Id. A partially intelligible note

indicates that Dr. Lirag increased Ms. Cordero’s Vraylor dosage, but instructed her

“don’t take Ambien after Vraylar. If still not asleep after 1 hour, take Ambien.” Id.

After treating Ms. Cordero monthly for over a year for her Bipolar II disorder and

generalized anxiety disorder, Dr. Lirag completed a psychiatric/psychological

impairment questionnaire on July 2, 2018. R. 1193. Dr. Lirag, like previous treating

psychiatrist Dr. Siravaragapu, found that Ms. Cordero exhibited clinical signs and

symptoms of (1) appetite disturbance with weight change; (2) feelings of

guilt/worthlessness; (3) generalized persistent anxiety; and (4) decreased energy.

Additionally, Dr. Lirag found Ms. Cordero suffered from a depressed mood, manic

syndrome, difficulty thinking or concentrating, easy distractibility, anhedonia/pervasive

loss of interest, motor tension, psychomotor retardation, and sleep disturbances. R.

1194. He noted that Ms. Cordero received no significant improvement in her symptoms

even on a high dose of Klonopin, and she continued to suffer from symptoms of severe

anxiety, chronic tension, tremulousness with constant leg shaking, an inability to think

straight, forgetfulness, and depression. R. 1195.

Dr. Lirag also specifically stated that Ms. Cordero was not a malingerer and had

likely suffered from her symptoms since she was approximately 27 years old.39 R. 1193.

He diagnosed her with Bipolar II disorder and generalized anxiety disorder pursuant to

a DSM-5 evaluation, with psychosocial factors of multiple family stressors and health

issues. Id. Her medications on the date the questionnaire was completed were Vraylar,

Klonopin, Lamictal, phenobarbital, and Ambien. Id.

Similar to Dr. Siragavarapu, Dr. Lirag found Ms. Cordero had “marked

limitations” in the following areas:

(1) Understanding and memory:

• The ability to remember locations and work-like procedures.

• The ability to understand and remember one or two step instructions.

• The ability to understand and remember detailed instructions.

(2) Sustained concentration and persistence:

• The ability to carry out detailed instructions.

• The ability to maintain attention and concentration for extended periods.

• The ability to work in coordination with or proximity to others without

being distracted by them.

• The ability to complete a workday without interruptions from

psychological symptoms

39 Ms. Cordero would have been 38 on the date the report was prepared.

• The ability to perform at a consistent pace without rest periods of

unreasonable length or frequency.

(3) Social interactions:

• The ability to interact appropriately with the general public.

Dr. Lirag found Ms. Cordero exhibited “moderate to marked limitations” in

several additional categories.40 With regard to “adaptation,” Dr. Lirag found that Ms.

Cordero had moderate degrees of limitation in all four categories.41 R. 1197. Dr. Lirag

estimated her symptoms would cause Ms. Cordero to miss work more than three times

per month and opined that she had suffered from her impairments since age 27. R. 1198.

Approximately six months later, Dr. Lirag completed the same impairment

questionnaire a second time, on February 20, 2019, and noted that Ms. Cordero’s

treatment sessions were less frequent at every eight weeks. R. 1248. Her diagnosis

remained the same, Bipolar II disorder and generalized anxiety disorder. Id. His

estimate of the number of days Ms. Cordero would miss from work due to her symptoms

remained at more than three times per month, and he continued to believe that “the

available clinical and objective findings detailed in the questionnaire [were] reasonably

40 Those categories are:

(2) Sustained concentration and persistence:

• The ability to carry out simple instructions.

• The ability to perform activities within a schedule, maintain regular attendance, and be

punctual within customary tolerance.

• The ability to sustain an ordinary routine without supervision.

• The ability to make simple work-related decisions.

(3) Social interactions:

• The ability to accept instructions and respond appropriately to criticism from supervisors.

41 The adaptation categories are:

(4) Adaptation:

• The ability to respond appropriately to workplace changes.

• The ability to be aware of normal hazards and take appropriate precautions.

• The ability to travel to unfamiliar places or use public transportation.

• The ability to set realistic goals or make plans independently.

consistent with [the] patient’s symptoms and functional limitations.” R. 1198, 1252. A

function-by-function comparison of the two forms shows that Ms. Cordero displayed

some improvement by February 2019 in social interactions and her ability to adapt to

the workplace, exhibiting none-to-mild limitations in her ability to respond

appropriately to criticism from supervisors, maintain socially appropriate behavior,

adhere to basic standards of neatness, set realistic goals and make plans independently.

R. 1251.

Nevertheless, Dr. Lirag believed Ms. Cordero continued to have marked

limitations in remembering locations and work-like procedures; understanding and

remembering detailed instructions; carrying out detailed instructions; maintaining

attention and concentration for extended periods; making simple work-related

decisions; completing a workday without interruptions from psychological symptoms;

and performing at a consistent pace without rest periods of unreasonable length or

frequency. Id.

The ALJ dismissed all of Dr. Lirag’s treatment records and analyses in both

opinion forms in a few sentences:

The undersigned gives little weight to these opinions. These opinions are

about 7 months apart and the records fail to show a severe worsening of her

impairments. There is no reasonable explanation from the record concerning the

changes between the two opinions. She also continued to have periods of

noncompliance.

R. 840.

As noted by Ms. Cordero in her initial brief, the medical records support all of the

findings of the two treating psychiatrists. Pl. Br. at 10. The Plaintiff cites to dozens of

locations in the record that confirm the two doctors’ findings that Ms. Cordero suffers

from all of the abnormalities associated with her bipolar, depression, and anxiety

disorders, including: appetite disturbance, sleep disturbance, mood abnormalities,

lability and mood swings, panic attacks, decreased energy or motivation, irritability,

manic symptoms, abnormal thinking or concentration, loss of interest, psychomotor

abnormalities and restlessness. (Citations to the record omitted). Id.

The rejection of Dr. Lirag’s opinion is even less defensible than the rejection of

Dr. Siravaragapu’s opinion. Other than noncompliance, the ALJ’s only stated reason for

rejecting the opinions of Dr. Lirag were that his two opinion forms differed in some

respects with no specific reasons described by the doctor, and no indication that Ms.

Cordero’s condition severely worsened. R. 840. But there is no requirement that a

doctor make such a finding of deterioration to support an award of benefits. As argued

by Ms. Cordero in her initial brief, fluctuation in symptoms over time is not unusual in

the longitudinal treatment of bipolar disorder, and neither opinion is inconsistent with

the supporting medical records. Pl. Br. at 15. Therefore, this reason for the rejection of

the treating specialist’s opinion is based solely on the ALJ’s lay opinion.

Ms. Cordero argues in her brief that the ALJ improperly rejected these two

treating psychiatrists’ well-supported opinions, giving more weight to doctors who, in

some instances, never examined Ms. Cordero. Pl. Br. pp. 8-21. She correctly argues that

the Social Security regulations require an ALJ who fails to accept a well-supported

medical opinion by a treating physician, must take into account that physician’s

examining relationship, the treatment relationship, supportability, consistency, and

specialization. Pl. Br. at 9, citing 20 C.F.R. § 404.1527(c)(2)-(6) and § 416.927(c)(2)-(6).

I agree that the ALJ did not address any of these categories with respect to either

of these board-certified psychiatrists, who both personally treated the Plaintiff for at

least two years, and whose records in each instance supported the opinion, when read as

a whole. Instead, the ALJ substituted his own lay opinion of the medical evidence,

repeatedly relying on “noncompliance” as a reason to reject the opinions of these

qualified physicians. This error is particularly striking, given that the remand from the

district court specifically instructed the ALJ to comply with these regulations when

assessing the treating physicians’ reports.

While the Commissioner is correct that an ALJ is not categorically obligated to

accept a medical expert’s testimony, the ALJ here committed reversible error by relying

on his own lay opinion to reject the medical evidence supporting the medical experts’

opinions, and failing to take into consideration both psychiatrists’ examining

relationship, treatment relationship, supportability, consistency, and specialization.

Indeed, although the ALJ repeatedly stated that the doctors’ opinions were “inconsistent

with the record as previously discussed,” the longitudinal records of her treating

specialists were remarkably consistent over time, and my review of the entire opinion

fails to turn up either a helpful discussion by the ALJ of the “inconsistent records” that

support his finding, or citation to medical records that document such differences.

A treating physician’s opinion may be rejected if there is contradictory medical

evidence, Plummer, 186 F.3d at 429, if there is insufficient clinical data to support it, see

Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985), or if the opinion is contradicted

by the physician’s own treating notes or the patient’s activities of daily living, see Smith

v. Astrue, 359 F. App’x 313, 316–17 (3d Cir. 2009) (not precedential). On the other

hand, the ALJ is not permitted to make speculative inferences from medical reports or

“employ her own expertise against that of a physician who presents competent medical

evidence.” Plummer, 186 F.3d at 429. If an ALJ decides to reject medical opinion

evidence, he may not do so for “no reason or for the wrong reason.” Id. (quoting Mason

v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)). When weighing medical opinion

evidence, an ALJ may consider the claimant’s daily living activities, such as childcare.

See Rae v. Berryhill, No. 17-967, 2018 WL 3619247, at *5 n.7 (W.D. Pa. July 30, 2018);

Gonzales v. Colvin, 191 F. Supp. 3d 401, 423–25 (M.D. Pa. 2015) (discussing at length

case law regarding the appropriate use of activities of daily living evidence, particularly

in the context of childcare).

The ALJ used the Plaintiff’s apparent ability to care for her child as one of the

reasons to discount both the subjective evidence presented by the Plaintiff and the

doctors’ expert opinions. See R. 833 (rejecting the Plaintiff’s testimony with regard to

the limitations caused by her impairments), “[A]s indicated by the above medical

records, when she is complaint (sic) with treatment, her impairments are well

controlled. She also cares for herself and her child;” 835 (rejecting the opinion of Dr.

Malik) “[s]he also cares for herself and her child. She performs regular tasks at home.”

The Commissioner argued that this reasoning on the part of the ALJ provided a

legitimate reason to accept his rejection of Dr. Malik’s opinion with regard to the effects

of Ms. Cordero’s debilitating migraines on her ability to handle full-time employment.

Comm. Resp. at 12 (“The ALJ additionally cited Plaintiff’s demonstrated ability to

provide care for herself and her school-aged child, and regularly perform household

chores.”)

The ability to care for one’s children may be used “to discount credibility if it

contradicts a claimant’s limitations or symptoms.” Gonzales, 191 F. Supp. 3d at 425; see

also Rutherford v. Barnhart, 399 F.3d 546, 555 (3d Cir. 2005) (concluding that the

ALJ’s decision to discount claimed side effects of drowsiness based on inconsistencies in

the record, including testimony that claimant cared for her child and grandchild, was

supported by substantial evidence). However, “[t]he ability to care for children, alone,

does not inherently indicate that a claimant possesses the ability to perform on a regular

and continuing basis in a work setting.” Gonzales, 191 F. Supp. 3d at 424; see also Rae,

2018 WL 3619247, at *5 n.7 (“Although it is not improper for an ALJ to consider

reported activities of daily living in assessing credibility, it likewise is well-established

that the ability to perform activities of daily living does not always correspond with the

ability to carry out sustained work-related mental activities in a work setting on a

regular and continuing basis.”). It is unclear how the fact that Ms. Cordero lives with her

23 year-old niece and 11 year-old daughter, for whom she provides some care, supports

the ALJ’s rejection of Drs. Siravaragapu’s and Lirag’s findings that Ms. Cordero has

marked limitations in her ability to remember and follow even simple instructions,

interact with coworkers, or even travel regularly to a jobsite. Caring for one’s own

children is not substantial evidence of one’s ability to handle full-time employment. The

work environment and dynamic among colleagues significantly differ from the

environment and dynamic with one’s children or partner. Therefore, the ALJ’s reliance

on Ms. Cordero’s family dynamic again failed to support his rejection of medical opinion

evidence with an adequate explanation.

Drs. Siragavarapu and Lirag are both licensed psychiatrists, an accepted source of

medical opinion evidence, and both treated Ms. Cordero for extended periods of time.

To accept the testimony of Dr. Cohen, discussed infra at 52-6, over these two treating

psychiatrists, as is argued by the Commissioner, is simply wrong on this record. Dr.

Cohen was not privy to years of consistent medical evidence, and his testimony was, at

best, factually inaccurate. Likewise, the ALJ’s suggestion that Ms. Cordero functions

well on her own is wholly belied by the record as a whole, which supports Ms. Cordero’s

contention that she relies heavily on her family for support, handles activities of daily

living only sporadically, and is often not able to leave her own darkened bedroom. These

well-documented circumstances do not support a finding that the Plaintiff would be

capable of leaving her home to travel to even an unskilled, sedentary, full-time job.

For these reasons, the ALJ’s decision is legally flawed and not supported by

substantial evidence.

b. Consulting Physicians.

i. Dr. Thomas Lane.

Thomas W. Lane, Ph.D., a licensed psychologist, conducted a psychological

evaluation on May 19, 2011. Of note in Dr. Lane’s report was a finding that Ms. Cordero

could remember zero of three items after 45 minutes, R. 582, and she endorsed a labile

mood with considerable depression and irritability when describing her psychiatric

history. R. 581. She reported experiencing anxiety throughout the day, as well as

forgetfulness and confusion. She also reported insomnia and pacing at night. Id. Ms.

Cordero appeared obese but reported a weight loss of 60 pounds during the previous

year. R. 581. Dr. Lane estimated her GAF Score on that date to be 45. R. 582. Dr. Lane

described her judgment and insight as only “fair.” Id.

Dr. Lane opined that Ms. Cordero had marked limitations in her ability to carry

out detailed instructions, responding appropriately to work pressures in a usual work

setting and responding appropriately to changes in a routine work setting. R. 585. He

rated Ms. Cordero as having a moderate limitation in every other rating category:

understand and remember short, simple instructions; carry out short, simple

instructions, understand and remember detailed instructions, make judgments on

simple work-related decisions; interact appropriately with the public; interact

appropriately with supervisors, and interact appropriately with co-workers. Id. Dr. Lane

supported his conclusions with medical findings including increased forgetfulness and

confusion following onset of a seizure disorder in January 2011; poor short-term

memory; acute bouts of anxiety experienced on a daily basis, secondary to a mood

disturbance and panic without agoraphobia, and increased worry associated with

managing her recently-diagnosed seizure disorder. Id.

The ALJ gave Dr. Lane’s findings partial weight, finding the “opinion is based on

a one-time interaction without the benefit of any meaningful record review.” R. 836. The

ALJ specifically found that the “marked” limitation findings were “inconsistent with the

record as a whole as previously discussed. Her treatment records do not document such

severe limitations.” R. 837. The ALJ’s conclusion essentially points to 2,000 pages of

record and says the “marked” limitations are inconsistent with the records. The added

phrase “as previously discussed” is no more helpful. The ALJ’s opinion is a catalog of

severe illness with a batch of conclusory “noncompliance” findings thrown in,

untethered from the requirements of the regulations. If the ALJ’s conclusion is based on

something other than his finding of “noncompliance,” I have not been able to find it in

the record. The record is certainly not “inconsistent” with marked limitations. I find the

ALJ’s decision does not permit meaningful review. If the ALJ’s finding is based

predominantly on his “noncompliance” mantra, which I suspect it is, then it is error, and

harmful, for the reasons I have explained.

ii. Dr. Sherman.

On August 23, 2018 Ronald Sherman, Ph.D. conducted a consultative

psychological evaluation at the request of Ms. Cordero’s counsel. R. 1199-1212. Dr.

Sherman reviewed Plaintiff’s chart prior to the evaluation, and after interviewing her,

Dr. Sherman diagnosed Ms. Cordero with bipolar disorder (unspecified), generalized

anxiety disorder, and obsessive-compulsive characteristics. He opined her current GAF

score was 45. He completed a check-box form in which he opined her limitations were

“marked” in a total of 18 separate categories, including almost every category under

“concentration and persistence,” “social interactions,” and “adaptation.” R. 1208. He

opined that she would be unable to maintain employment, and would miss work more

than three days per month due to her psychological symptoms. R. 1209. Although the

ALJ discussed Dr. Sherman’s consultative examination and opinion at R. 828, he did

not discuss what weight he gave the opinion. This was error.

iii. Dr. Nader.42

Dr. Joseph Nader, M.D. performed a Disability examination on May 25, 2011. R.

588-92. Dr. Nader was a cardiologist in Allentown, Pennsylvania (he died on February

2, 2021) affiliated with St. Luke’s Hospital. 43 Dr. Nader opined that Ms. Cordero’s

prognosis was “fair,” and that she suffered from (1) seizure disorder that appears stable;

(2) migraine headaches; (3) personality changes with bipolar depression; and (4)

chronic low back pain. R. 591. He recommended that she continue with Keppra 500 mg

twice daily, continue taking Zoloft and attend psychiatric counseling, and have an x-ray

of her lumbar spine. R. 592.

42 Dr. Nader’s conclusions were geared toward Ms. Cordero’s physical, rather than mental, limitations,

and are included here for the limited purpose of demonstrating the ALJ’s decision not to give any

physician’s opinion more than passing consideration.

43 See https://www.healthgrades.com/physician/dr-joseph-nader-3f6xn.

Dr. Nader opined that given her back pain, Ms. Cordero would be limited to

standing and walking for one hour or less in an eight-hour workday and sitting less than

six hours. R. 593. He limited her frequent lifting and carrying to 2-3 pounds. Id.

The ALJ gave little weight to Dr. Nader’s opinion, finding that the limitations he

suggested were necessary in Ms. Cordero’s ability to lift and carry objects, her postural

limitations, and suggested limitations on her ability to work around moving machinery,

vibration, and temperature extremes, were “not consistent with the record as a whole as

previously discussed” and were “internally inconsistent,” in that “even the claimant

admitted at the hearing she is capable of some cooking, chores, watching TV, and that

she spends her day pacing around.” R. 833-34. Cooking, home chores, and watching TV

is not the same as working. As for the catch phrase “not consistent with the record as a

whole as previously discussed,” the phrase is a label, not analysis, and does not permit

meaningful review, for reasons discussed above.

iv. Thomas Fink, Ph.D. and James Vizza, Psy.D.

Two state agency reviewing psychologists provided opinions in 2011, Dr. Fink in

June and Dr. Vizza in August. The fact that the reports were rendered in 2011 means

they have little or no value when it comes to weighing the treating psychiatric or

neurologic evidence between 2011 and 2019. The ALJ discussed their reports at R. 837.

Dr. Fink opined that Ms. Cordero suffered from severe anxiety and affective

disorder, but could perform “simple work.” The ALJ gave Dr. Fink’s opinion “partial

weight” as it was “generally consistent with [the] record as a whole,” but the record now

contained additional records not reviewed by Dr. Fink, and “the mental health listings

have been since updated.” Id. Similarly, Dr. Vizza, who provided two reports, the first in

August 2011 and the second a year later in August 2012, found Ms. Cordero suffered

from severe anxiety and affective disorder, but had only moderate limitations in several

categories, and could perform simple work. The ALJ gave the same “partial weight” to

Dr. Vizza’s two opinions, for the same reasons, acknowledging the years of additional

records and the change in the mental health listings since the reports were written. Id.

v. Drs. Waldron, Bermudez, and Hutsko.

Three additional state agency consultations were made part of the file prior to the

first hearing and prior to the first opinion’s issuance. Theodore Waldron, D.O. examined

Ms. Cordero in June 2011. He opined that Ms. Cordero could perform light work with

certain limitations. The ALJ gave this opinion “partial weight,” but stated that

“additional records have been received into evidence since the opinion was rendered.

For example, the claimant’s seizure disorder warrants greater hazard precautions than

that opined by the doctor.” R. 834.

Dr. Minda Bermudez, M.D., examined Ms. Cordero for the state agency in

September 2011. She opined that Ms. Cordero could perform medium work while

abiding by “the standard seizure precautions.” The ALJ again gave the state agency

consultant’s opinion “partial weight,” and gave as his reason:

It is broadly consistent with the records but not entirely consistent with the

record as a whole as previously discussed because additional records have been

received into evidence since the opinion was rendered. For example, the doctor’s

opinion on hazard precutions is supported but the exertional limitations are not.

Id.

Finally, the ALJ detailed Dr. Joseph Hutsko’s consultative examination on

November 8, 2012, during which Ms. Cordero detailed her seizure activity to that point

R. 823. (Ms. Cordero experienced only one verified seizure in 2010 until they returned

in 2014, see records of Dr. Lim, R. 1125). She described migraine headaches which

occurred up to five times per week, with visual aura and left side pain and numbness. Id.

Dr. Hutsko provided a detailed list of work conditions that would apply to Ms. Cordero,

and the ALJ gave the opinion “partial weight.” R. 834. His reasons for limiting the

opinion’s weight to partial included that it was based on a one-time interaction, and was

“only partially consistent with the record as a whole as previously discussed and the

doctor’s own examination.” Id.

c. Ms. Cordero’s other Hospitalizations and Medication History.44

Nothing in Ms. Cordero’s other hospitalizations and medication history is

inconsistent with the opinions of the four treating physicians.

On January 13, 2011, Ms. Cordero was admitted to the hospital via the emergency

room after her husband witnessed a nocturnal seizure at approximately 6:00 a.m. R.

548. She was given intravenous Solu-Medrol, Robaxin and Compazine for a severe

headache, which did resolve with these IV medications. R. 549. She was told to avoid the

large dosages of Aleve that she had been using in an attempt to relieve her severe

headaches, but was not given prescriptions for any medications—instead she was

advised to seek assistance from her primary care physician.45

44 This recitation is not a complete listing of all of Ms. Cordero’s trips to the hospital, or all of her

medications. The records for St. Luke’s Hospital span more than 800 pages, and what follows is a

summary of a few of the instances in which Ms. Cordero required medical treatment above and beyond

that provided by her treating specialists.

45 It does not appear that Ms. Cordero received any such assistance from her primary physician, however.

Handwritten records with an unintelligible signature dated January 19, 2011 are contained in the record

at Exhibit 4F, pp. 560-61, which are listed as “[t]reating records, dated 01/19/2011 to 03/10/2011 from

LVPG Allentown Medical Associates.” They discuss both Ms. Cordero’s headaches and seizures, indicate

that Ms. Cordero failed to bring her hospital stay records with her, and with regard to medications

indicate only, “continue Keppra until sees neurology.” Other than a note that appears to state that Ms.

Cordero would be given a Naproxen injection there is no indication that she was given any prescriptions

for her chronic headaches. “LVPG” stands for “Lehigh Valley Physician Group, which is a part of the

Lehigh Valley Health Network, and is a primary care physician’s office. See https://www.lvhn.org/about-

us/lehigh-valley-physician-group-lvpg.

On January 20, 2011, records from Lehigh Magnetic Imaging Center, who

performed a brain MRI and EEG on that date, listed her medications as Keppra,

Compazine and Robaxin. R. 512. This does not appear to be a complete list of

medications. (The report states, “other medicines include . . .”). Id. Records from St.

Luke’s Neurological Associates signed by Christen F. Kutz, MS and Bushra I. Malik,

M.D., list new medications as Keppra 500 mg, Anaprox DS 550 mg, Flexeril 10 mg,

Magnesium 250 mg, Riboflavin 100 mg, and Levetiracetam 500 mg. Dosages of each

medication appear to be different with the single exception of Magnesium and

Levetiracetam, both of which are to be taken “1 po bid.” R. 510.

A “Patient Medication Discharge Report” dated March 21, 2011 from St. Luke’s

Hospital46 list Ms. Cordero’s medications as:

Flexeril – 10 mg – Every 8 hours as needed.

Gabapentin – 100 mg – Daily.

Keppra – 500 mg – Every morning.

Keppra – 1,000 mg – Every evening.

Magnesium – 250 mg – 2 times per day.

Naproxen – 550 mg – Every 12 hours as needed.

R. 572.

A medication list dated May 14, 2014, (approximately the same time-frame as

the medical opinion of Dr. Siragavarapu in March 2014) from St. Luke Neurology

Associates, Dr. Nancy Diaz, M.D., lists Ms. Cordero as also being prescribed, at various

times: Abilify (Aripiprazole), Benztropine Mesylate (Cogentin), Clonazepam (Klonopin),

Colace, Cyclobenzaprine HCl (Flexeril), Dicyclomine HCl (Bentyl), Gabapentin, Geodon,

Hydroxyzine Pamoate (Vistaril), Levetiracetam (Keppra), Methocarbamol (Robaxin),

46 Ms. Cordero went to St. Luke’s Hospital on this date for chest pain. R. 574-79.

Naproxen, Naproxen Sodium, Prilosec OTC, Prochlorperazine Maleate (Compazine),

Propranolol HCl (Inderal), and one final drug which could not be read due to the poor

quality of the copy. R. 791. Although marked as “1 of 2” pages, just the first page is in the

record at 791. Each of these medications were started between January and August of

2011.

Ms. Cordero was admitted to St. Luke’s Hospital through the emergency room on

November 14, 2016 with severe abdominal pain. Testing revealed a ureteral stone. R.

1308. Upon admission, she underwent a surgical procedure to remove the stone which

was 7mm in diameter. R. 1323-24.

Her discharge medication list as of November 16, 2016 documented that she was

started on ciprofloxacin (Cipro) 500 mg every twelve hours for five days, and tamsulosin

(Flomax) once per day at dinner for 30 days. These were to be added to her current

medications of: Lamotrigine ER 250 mg, (take 500 mg daily “until discontinued”);

Olanzapine (Zyprexa) 2.5 mg daily “as needed;” Topiramate ER (Qudexy XR) 150 mg

twice per day “until discontinued;” Iron polysaccharides (Niferex) 150 mg daily “until

discontinued;” and Onabotulinumtoxin A (Botox) 100 units by infiltration route once

every three months. R. 1305.

Six weeks later, on December 31, 2016, Ms. Cordero was again brought to St.

Luke’s Hospital in Bethlehem via ambulance with severe left-side abdominal pain. R.

1445. She was diagnosed with a kidney stone. R. 1449, 1452. Naproxen 500 mg

(Naprosyn) twice daily with meals, ondansetron 4 mg (Zofran-ODT), every eight hours

for nausea, and oxycodone-acetaminophen 5-325 mg (Percocet) for pain, were all added

to her drug regimen upon discharge. R. 1485.

d. Dr. Cohen, Testifying Expert.

ALJ Hoback continued to rely upon the testimony of Luka Cohen, Ph.D., from the

first administrative hearing in June 2016, giving his testimony “partial weight.” See R.

839. According to the Commissioner’s responsive brief, Dr. Cohen provided the only

medical evidence relied upon by ALJ Hoback to counter the rejection of Ms. Cordero’s

four treating specialists’ opinions. Com. Resp. at 4-5. ALJ De Bernardis, the ALJ who

heard Ms. Cordero’s case the first time, called Dr. Cohen himself to testify as a medical

expert. Because the second ALJ continued to rely on this testimony, despite the fact that

Dr. Cohen did not testify at the second hearing, nor opine on any of the hundreds of

pages of medical records that became part of the record between the first and second

hearing, Dr. Cohen’s testimony warrants brief discussion here.

Dr. Cohen testified that, based only on his review of the record, Ms. Cordero “has

a bipolar disorder that would be potentially reversible with medication and she refused

to take [the medication].” R. 52. The doctor insisted that Ms. Cordero “refused” to take

Abilify, Risperdal, and Depakote, and that she had been “noncompliant.” Id. He also

testified that Ms. Cordero had taken “diet pills” and more Xanax than prescribed,

making her “volitionally noncompliant with her treatment.” R. 53. He testified that she

was “mildly impaired,” based on the fact that: “she dusts; she shops, she cleans; she

drives a car up until at least May.” Id.47 Dr. Cohen further opined that Ms. Cordero had a

moderate impairment in concentration, persistence and pace, again based in part on the

fact that “until recently” she could drive a car, which requires “a great deal of

47 The evidence is undisputed that Ms. Cordero lost her driver’s license as a result of her epileptic seizures

prior to the first hearing, and she has never been able to regain the license, as the seizures have never

been completely controlled.

concentration.” Id. Dr. Cohen stated that Ms. Cordero had a “moderate impairment

overall,” and that the “medical records are contradictory.” Id.48 When Ms. Cordero

attempted to respond by stating that she “had not took (sic) Xanax in years,” she was

ignored by the ALJ. Id.

Upon questioning by Ms. Cordero’s attorney, who pointed out that the treating

psychiatrist had opined Ms. Cordero had a very low GAF score and “marked” difficulties

in a number of categories, Dr. Cohen’s response was:

Well, she only diagnosed her with a mood disorder which is potentially first—

that’s even diagnosed with a bipolar disorder, panic attacks. I can tell you I did

some of the original research with Dr. Volpe (phonetic) in the ‘70’s on panic

disorder, and it’s potentially reversible with the correct treatment. She doesn’t

take her medications properly . . .

R. 54. At this point, Dr. Cohen was again interrupted by Ms. Cordero, stating, “yes, I do,

I take my medications, . . .” and her attorney advised her to not interrupt the

proceedings. R. 55. When the attorney pointed out to Dr. Cohen that there were “a

couple of items that, at times, that you cited . . . where there was . . . noncompliance,”

Dr. Cohen again disagreed, without citation to the record, that “it’s global

noncompliance with treatment,” citing refusal to take Abilify and Depakote, prompting a

frustrated Ms. Cordero to again interrupt and state that she did, in fact, take Abilify, but

it was stopped “because it wasn’t working.” Id. The doctor responded that Ms. Cordero

“abused her Xanax and abused diet pills,” at which point the attorney attempted to

regain control of the proceeding by stating, “[a]ll right, all right, and nevertheless,

though, that in the psychiatric and psychological impairment questionnaire that the

48 This statement was made dismissively and Dr. Cohen did not cite to any evidence in the record to

support the statement.

Claimant’s treating psychiatrist also opined very similarly to the consultative examiner,

in fact, with additional marked limitations . . .”. R. 55-56.

Although it appeared that Dr. Cohen had not read the report in question, he

nevertheless dismissed its lack of any indication that Ms. Cordero was noncompliant

with her treatment by saying, “well, it’s in the treatment record. It [the opinion form]

doesn’t ask the question.” R. 57. After some continued back-and-forth between the

attorney and Dr. Cohen, in which the attorney pointed out that apparently Dr. Cohen

had not read several of the available pages of record, the attorney ended her questioning

by asking, “I’m curious Dr. Cohen, as to how the Claimant’s treating psychiatrist would

conclude the complete opposite of you and,” but was unable to finish her question, as

she was cut off by Dr. Cohen’s stating, “I don’t know that. All I know is I’m reading the

records as a whole and there’s no marked functional limitations as I told you.” R. 58.

The attorney gave up her questioning, and the ALJ asked whether Dr. Cohen had seen

“any explanation in 16F [the treating psychiatrist’s opinion form] for any of the

checkmarks to (inaudible)?” to which Dr. Cohen responded, “[n]o, they didn’t explain

things. They just checked.” R. 59.

It is rare to see such a contentious transcript in a Social Security Administrative

proceeding, which are non-adversarial by design. ALJ’s are tasked with assuring that the

record has the most complete collection of evidence concerning a claimant’s asserted

impairments as possible. “An ALJ’s principal responsibilities are to hold full and fair

hearings and to issue legally sufficient and defensible decisions.” HALLEX I-2-0-5.

(Hearing Office Chief Administrative Law Judge, Administrative Law Judge, and

Hearing Office Staff Responsibilities). Despite this transcript revealing that the

testifying “medical expert” had neither read all of the available records, (and, obviously,

would not have been privy to the several years of medical records documenting Ms.

Cordero’s treatment between the first and second hearings) nor did he appear

particularly interested in taking all of them into account, ALJ Hoback mentions this

testimony at several points throughout his opinion, which was written some four years

after Dr. Cohen testified. The ALJ appears to use it as the sole example of his repeated

reference to “inconsisten[cy] with the record as a whole,” and “noncompliance,” in his

rejection of all of Ms. Cordero’s treating specialists.

ALJ Hoback said of Dr. Cohen’s testimony, “[t]he undersigned gives partial

weight to this opinion. Dr. Cohen did not review all the records prior to the hearing then

available and additional records have been received since the doctor testified including

an update to the mental health listings.” R. 839. The Commissioner argues that it is ALJ

Hoback’s adoption of this opinion testimony by Dr. Cohen in the first hearing, over that

of Ms. Cordero’s two treating psychiatrists, that justifies my acceptance of the ALJ’s

opinion in toto. Com. Resp. at 4 (“The ALJ appropriately declined to adopt the

respective opinion evidence from Plaintiff’s treating psychiatrists, Raghavendra

Siragavarapu, M.D., and Enrique Lirag, M.D., whose extreme assessments comported

with a finding of Social Security Disability, and permissibly granted more weight to the

opinion of psychiatrist Luka W. Cohen, M.D. (sic), the medical expert who testified at

the hearing.”).

As noted in the Plaintiff’s opening brief, Doc. No. 16, p. 16, “Dr. Cohen had not

reviewed any of Plaintiff’s psychiatric treatment records after July 2012, seven years

prior to the ALJ decision at issue in this appeal.” (Emphasis in original). Nevertheless,

ALJ Hoback cited to Dr. Cohen’s conclusions as a basis for rejecting the opinions of Ms.

Cordero’s treating specialists as “not consistent with the record as a whole,” a phrase the

ALJ uses six times, always to suggest that the treating or consulting doctor in question

was incorrect in his or her opinion that Ms. Cordero suffers from a particular medical

issue. Despite the frequent use of the label “inconsistent,” the ALJ never actually cites to

the location in the record that is “inconsistent” with the (remarkably consistent) medical

opinions of the treating physicians. See e.g., R. 833, 834, 835, 837, 838, 840.

My review of the record emphatically contradicts the notion that the treating

physicians’ opinions are inconsistent with the record, in whole or in part, and the notion

that Ms. Cordero was noncompliant with her medications. Virtually every doctor who

examined Ms. Cordero, whether treating or consulting, found her medical impairments

to be severe and work-preclusive. It is only the combative and dismissive testimony of

Dr. Cohen, apparently based upon his research into panic disorders from fifty years ago,

that the Commissioner cites as the counterweight to the years of medical evidence

backing up the detailed opinions of Ms. Cordero’s doctors that she suffers from a host of

work-preclusive medical maladies.

The ALJ’s assessment of the medical opinion evidence with respect to Ms.

Cordero’s mental impairments was erroneous.

3. The ALJ improperly handled Plaintiff’s subjective evidence.

Like her treating physicians’ records and opinions, Ms. Cordero’s own reporting

of her ongoing health struggles have been consistent through the years. On February 15,

2011, Ms. Cordero filled out a “New Patient Neurologic History and Physical” form in

which she was asked to check on a form “problems that you are experiencing now.” R.

543. Ms. Cordero stated that she had issues with (1) appetite; (2) nausea and vomiting;

(3) head/neck/back pain; (4) anxiety and mood swings; (5) neurological symptoms of:

headache with nausea/vomiting, lightheadedness, seizures, flashing lights, snoring, and

awakening at night; (6) mental status symptoms of: confusion and memory problems;

(7) numbness and weakness in her face; (8) other muscle weakness, pain and tingling.

Id. She was given injections of Compazine and Toradol on that date. R. 545. Ms. Cordero

advised that she had returned to taking Aleve after leaving the hospital, having run out

of the medications she was given while in the hospital. R. 549. Although she denied

having any seizures that she knew of after being placed on Keppra, she recalled episodes

of confusion, memory loss, and staring spells over the past several months. Id. Ms.

Cordero was suffering from a severe headache at the time of her examination. R. 550.

Her Keppra dosage was doubled and the comments state that she was told to

discontinue Aleve and “try Flexeril 10 mg q8hrs and/or anaprox 550 mg q12 hours as

needed for pain,” and she was told to keep a “headache diary.” Id.

Ms. Cordero testified at the April 11, 2019 hearing that she lives with her 23 year

old niece, (who was raised by Ms. Cordero’s mother and herself in her home), her 11-

year old daughter, and her 88 year old grandfather. R. 863-64. An aunt comes to the

house every day to assist her and her grandfather. She lost her driver’s license “six years

ago” and never got it back because of her epileptic seizures. R. 865. She told the ALJ that

her seizures come without warning, and have caused her to hurt herself several times. R.

871. She does not leave the house because of her seizures. Id. Her migraine headaches

last multiple days at a time and neither narcotics or “regular pills” relieve them. R. 871-

72.

Ms. Cordero does not cook beyond heating soup or a frozen meal in the

microwave or oven, her daughter does the cooking. R. 872. She handles housekeeping

chores like sweeping and making the bed “little by little.” R. 873. She does not take out

the trash, cut grass, or shovel snow. Id. She does not do the grocery shopping, her

daughter orders the groceries on line and picks them up.49 She suffers from panic

attacks in stores so she does not go unless absolutely necessary, and she does not attend

religious services or visit family or friends. R. 874. She has no patience to watch a movie

or read books but she watches other television. R. 874-75. She does not use social media

but occasionally talks on the phone. R. 876-77. She passes the time at home by “pacing.”

R. 877. She has dogs but does not exercise them as she simply lets them into her “big

yard.” R. 878.

In response to her attorney’s questioning, Ms. Cordero described her seizures,

which she estimated occurred four or five times per month, the last being the day before

the hearing. R. 878. Her seizures frequently trigger headaches, and cause her to be

confused or fall and hurt herself. R. 879. The medication she takes for the seizures,

lamotrigine and phenobarbitol, cause kidney stones as a side effect. R. 880.

Ms. Cordero receives Botox injections every three months and takes preventive

medications in an effort to stop her migraine headaches, without success. R. 883-84. A

bad migraine causes her to vomit all day, she is unable to eat and must retreat to a dark

room. They can last two to three days, and she has them three to four times per month.

R. 884-85.

Ms. Cordero’s psychological symptoms include paranoia that keeps her from

being around other people or even leaving the house. R. 886. She experiences anxiety in

the form of sweating and pacing. R. 887. Treatment with Klonopin “scared” her because

they are “downers.” Id. She took Xanax in the past but asked her doctor to stop them

because they are addictive. R. 887-88. Because of her anxiety and panic attacks, which

49 Although not clarified by the ALJ, it appears Ms. Cordero refers to her 23 year-old niece as her

“daughter,” since it is unlikely an 11-year old would do the bulk of the cooking or retrieve groceries

purchased online.

can cause her heart to race, she leaves the house only when it is “mandatory,” and

someone must go with her. R. 889. Ms. Cordero described experiencing obsessive

behavior such as repeatedly wiping a table when she is “hyper,” but will often start

something and forget to finish it. R. 890.

Ms. Cordero described memory problems that began before her mother passed

away in 2002 and have gotten worse since that time. Her depression increased after her

mother’s death. R. 891. Her brother’s suicide in January 2019 also increased her

depression, as did the loss of a cousin in October 2018. R. 892. She has “weight issues,”

and described being a top weight of 232 pounds, getting down to 126 pounds on the day

of the hearing. R. 893.

Ms. Cordero said that her daughter plays basketball at school, and although she

had not yet had a game, Ms. Cordero would want to attend if she does have one. R. 895.

(In his opinion, the ALJ misquoted Ms. Cordero as saying “she attends basketball games

with her child,” using this as a reason that Ms. Cordero is not as disabled as she claims

to be. R. 831.) Although she briefly discussed her asthma and back problems, Ms.

Cordero told the ALJ that her main issues were her epileptic seizures, her psychological

limitations, and migraine headaches. R. 896.

Ms. Cordero’s mother completed a Third Party Function Report while she lived

with Ms. Cordero. R. 402-09. (Nelly Moina, Ms. Cordero’s mother, died of cancer prior

to the second hearing, one of several family stressers noted as a psychosocial factor). R.

1177, 1193. The ALJ recited the information contained in Ms. Cordero’s mother’s third-

party function report, completed before her death on August 4, 2012, when she resided

with Ms. Cordero. R. 837. He serially listed all of the adverse information contained in

that report. Id. Then he rejected the information contained in the report as warranting

only “little weight.” Id. The ALJ’s reasoning was:

The written statement was not given under oath. The author is also not a medical

professional and a layperson, is not competent to make a diagnosis or argue the

severity of the claimant’s symptoms in relationship to the claimant’s ability to

work or the side effects of medications. Most importantly, the statement is not

fully supported by the clinical or diagnostic medical evidence as previously

discussed. The claimant’s treatment records do not document such severe

limitations and she has been noncompliant with treatment.

R. 837-38.

The description of the information contained in the third-party function report

does not actually contain a “diagnosis,” nor does it “argue the severity of claimant’s

symptoms,” although it does describe Ms. Cordero’s behavior as “down,” and

“argumentative.” Ms. Moina said that her daughter could not sleep at night, and advised

that Ms. Moina assisted in the care of Ms. Cordero’s baby. She stated that her daughter

“would forget that she was cooking,” and could not drive due to anxiety attacks.50 Ms.

Moina would need to remind her daughter to change her clothes. Ms. Cordero could

only “prepare simple meals such as cereal and sandwiches.” Ms. Cordero could dust,

sweep and wash dishes, but “her motivation was always down and depressed.” Ms.

Cordero “did not like to be around people and would only go out if she had an

appointment. She did not socialize with others.” Ms. Cordero “would become frustrated

at times and was forgetful. She had difficulty handling stress due to her mood swings.

She had a poor ability to handle changes. She also became very shaky and nervous

around others.” R. 837.

50 The report was written before Ms. Cordero lost her driver’s license due to her uncontrolled epileptic

seizures.

The ALJ concluded the third-party testimony was inconsistent with the record as

a whole. He does not point to any particular inconsistency in the record. That does not

permit meaningful review. My review of the record did not reveal any inconsistency,

certainly not with the record as a whole. Once again, the ALJ includes a mention of Ms.

Cordero’s supposed noncompliance as a reason for rejecting her mother’s testimony.

This was error. Ms. Cordero was not “noncompliant” under the regulations.

B. The ALJ Erred By Not Considering Whether Ms. Cordero’s Epilepsy

Was Severe at Step Two

Because I found the ALJ’s reliance on Ms. Cordero’s “noncompliance” with

treatment to have been improperly used by the ALJ in rejecting the opinion of treating

neurologist Dr. Lim, I requested supplemental briefing from the parties on the issue of

whether or not an acceptance of Dr. Lim’s opinion with regard to Ms. Cordero’s epilepsy

would have supported a finding of disability pursuant to § 11.02.

In response, Ms. Cordero argued that Dr. Lim’s opinion verified that she suffered

from generalized tonic-clonic seizures one to two times per month despite compliance

with treatment. R. 1224-25. Doc. No. 24, p. 2. Because his treatment spanned a period

from August 2014 to March 2019, and Ms. Cordero has never succeeded in stopping her

seizures, she meets the requirements of § 11.02A, as she suffers from seizures one to two

times per month for at least three months despite treatment. Therefore, she argues, a

finding of disability is required pursuant to 20 C.F.R. § 404.1520(a)(4)(iii) and

416.920(a)(4)(iii).

The Commissioner maintained in her supplemental briefing that the ALJ’s

finding that Ms. Cordero failed to comply with her treatment means that she does not

meet Listing 11.02A or 11.02D because both listings require a finding that seizures

persist despite adherence to prescribed treatment. Doc. No. 25, pp. 2-3. The

Commissioner recites several places in the record where there are indications that Ms.

Cordero did not take one or more of her medications. See, e.g., R. 1540, 1784, 1792,

1795, 1845. While these citations are accurate, they do not change the fact that her

treating physician has verified that, outside of these isolated documented events, his

patient continues to suffer from one to three seizures per month, despite treatment. His

opinion and records further document that her medications require frequent changes in

dosage or substitutions, and he has yet to find a combination of medications that keep

her from experiencing seizures. Because her treating doctor rendered his opinion with

knowledge of instances in which Ms. Cordero did not achieve perfect compliance with

her complex medication protocol, his opinion should not have been dismissed by the

ALJ. The ALJ’s focus on a few instances when Ms. Cordero did not take prescribed

medication amounts to “cherry-picking,”51 especially notable because the medical record

is 2,000 or so pages long and years in the making. I will therefore decline to accept the

Commissioner’s position on this issue as my own.

At step two, the ALJ is required to consider the medical severity of any

impairment. See 20 C.F.R. § 416.920(a)(4)(ii). Here, the ALJ’s reason for rejecting Dr.

Lim’s medical records and opinion that document Ms. Cordero’s intractable epilepsy are

legally invalid, as the ALJ did not, and indeed could not, satisfy the requirements of SSR

82-59, concerning noncompliance. While the ALJ did cite to isolated incidents where

Ms. Cordero advised medical personnel that she did not take her medication (or could

51 “Cherry-picking” is a term used to describe selective citation of the record to support an opinion that is

not supported by a fair and complete review of the entire record. See Smith v. Berryhill, No. 17-2661, 2018

WL 7048069, at *9 (E.D. Pa. Nov. 27, 2018) (Hey, MJ) (collecting cases). See also Rosa v. Berryhill, No.

16-5923, 2018 WL 1442893 (E.D. Pa. Jan. 31, 2018) (Lloret, MJ), report and recommendation

adopted, No. 16-5923, 2018 WL 1426964 (E.D. Pa. Mar. 22, 2018) (Robreno, J).

not recall if she did), the ALJ did not have substantial evidence in the form of a

physician’s opinion, or records from a neurologist, that contradicted Dr. Lim’s opinion

with respect to her epilepsy. There is only one doctor in this record who treated Ms.

Cordero for epilepsy, and he is the only doctor who offered an opinion with respect to

that condition. Rejecting his opinion, when there was no other opinion in the record to

contradict it, was error. The Third Circuit rejected such action on the part of the ALJ in

Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988):

Here three treating physicians, crediting Frankenfield’s subjective complaints,

which are consistent with the tests they conducted, determined that he is

disabled. The Secretary cannot reject those medical determinations simply by

having the administrative law judge make a different medical judgment. Rather,

the medical judgment of a treating physician can be rejected only on the basis of

contradictory medical evidence. Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979).

The administrative law judge refers to no such evidence.

The Commissioner appears to suggest in her original responsive brief that the

testimony of Dr. Cohen establishes substantial evidence that rebuts the opinion of Dr.

Lim. See Com. Resp. at 4-5, arguing that the ALJ properly rejected the treating

physicians’ opinions by “permissibly grant[ing] more weight to the opinion of

psychiatrist Luka W. Cohen, M.D., (sic),” and citing to no other contradictory evidence.

But Cohen provided no testimony whatsoever concerning Ms. Cordero’s epilepsy. His

testimony was limited to the treatment of her bipolar and anxiety disorders, and the

dubious conclusion that, based on his own research “from the 70’s,” her failure to

properly take her medication was the sole reason that her “panic” disorder remained an

issue.

“In choosing to reject the treating physician’s assessment, an ALJ may not make

‘speculative inferences from medical reports’ and may reject ‘a treating physician’s

opinion outright only on the basis of contradictory medical evidence’ and not due to his

or her own credibility judgments, speculation or lay opinion. Plummer, 186 F.3d at

429; Frankenfield v. Bowen, 861 F.2d at 408; Kent v. Schweiker, 710 F.2d 110, 115 (3d

Cir. 1983).” Morales, 225 F.3d at 317–18 (3d Cir. 2000). The opinion of Dr. Lim with

regard to Ms. Cordero’s epilepsy should have been assigned controlling weight. Instead,

the ALJ substituted his lay opinion for that of Ms. Cordero’s treating physician, making

speculative inferences on the basis of isolated records indicating Ms. Cordero may have

missed doses of medication. The ALJ substituted his own speculation for that of the

treating physician. On this basis he failed to accept Ms. Cordero’s epilepsy diagnosis at

step two, finding that she did not meet Listing 11.04A. This was error.

The final determination of whether a claimant met or equaled a Listing is a

decision reserved to the ALJ. See 20 C.F.R. §§ 404.1527, 416.927; Schwartz v. Halter,

134 F. Supp. 2d 640, 659 (E.D. Pa. 2001). Because this is ultimately the ALJ’s decision,

the ALJ does not have to accept a medical expert’s opinion that the claimant equaled a

Listing. Schwartz, 134 F. Supp. 2d at 659 (“The ALJ is therefore not required to accept

the findings of agency medical or psychological consultant as to whether an individual’s

impairment is equivalent in severity to any listed impairment.”). However, as with any

other medical opinion evidence, the ALJ must consider the opinion and afford it proper

weight. Id. (“[A] physician or psychologist designated by the Commissioner must give an

opinion, based on the evidence, on the issue of equivalence; such opinion must be

received into the record as expert opinion evidence; and the ALJ must give it

appropriate weight.”); see also Cadillac v. Barnhart, 84 Fed. App’x 163, 167–68 (3d Cir.

2003) (not precedential) (finding the ALJ’s rejection of a reviewing medical expert’s

equivalency testimony to be insufficiently supported). Here, there is no contradictory

medical evidence supporting the ALJ’s decision that Ms. Cordero does not suffer from

one to two seizures per month despite treatment.

My analysis does not end there. Failing to find an impairment to be severe is a

harmless error when the ALJ does not deny benefits at this stage and properly considers

the condition in the remaining analysis. See Rutherford v. Barnhart, 399 F.3d 546,

552–53 (3d Cir. 2005) (failing to determine the severity of a condition at stage two was

harmless because the ALJ properly considered it in the evaluation of the claimant’s

limitations); Salles v. Comm’r of Soc. Sec., 229 Fed. App’x 140, 145 n.2 (not

precedential) (“Because the ALJ found in [claimant’s] favor at Step Two, even if he had

erroneously concluded that some of her other impairments were non-severe, any error

was harmless.”) (citing Rutherford, 339 F.3d at 553)).

Had the ALJ properly considered the severity of Ms. Cordero’s epilepsy in the

latter stages of his analysis, the error might have been harmless, because Ms. Cordero

was not denied benefits at step two and her epilepsy was considered in the remaining

steps. See Rutherford, 339 F.3d at 552–53. The ALJ mentioned Ms. Cordero’s epilepsy

in partially rejecting the opinion of a consulting examiner who rendered an opinion that

did not take her seizure disorder into account. R. 834 (opinion of Dr. Waldron). In

determining Ms. Cordero’s RFC prior to step four, however, the ALJ did not appear to

consider Dr. Lim’s opinion at all with respect to her uncontrolled seizures, as none of

the limitations placed in the RFC relate to her seizure disorder, with the possible

exception of noting that she is unable to drive. R. 832. This coincides with the ALJ

consistently rejecting evidence of Ms. Cordero’s uncontrolled epileptic seizures because

she was “noncompliant” with her medications. Because this statement is both factually

wrong, in that Dr. Lim, her treating neuorlogist, specifically stated that Ms. Cordero was

“compliant” with her medications, and wrong as a matter of law pursuant to the

Administration’s own regulations in conducting a noncompliance analysis, I do not find

the ALJ’s error at step two harmless.

C. The ALJ failed to address Ms. Cordero’s ability to maintain a 40-

hour work week.

In determining whether a claimant has residual functional capacity, the ALJ must

weigh whether the claimant can engage in “sustained work activities in an ordinary work

setting on a regular and continuing basis.” SSR 96-8p, Titles II & XVI: Assessing

Residual Functional Capacity in Initial Claims, 1996 WL 374184, at *2 (July 2, 1996).

The Social Security Administration has defined a “regular and continuing basis” as

comprising of work lasting “8 hours a day, for 5 days a week, or an equivalent work

schedule.” Id. There was overwhelming evidence in this record that Ms. Cordero is

unable to maintain such a schedule, yet the ALJ failed to conduct any sort of analysis as

to why all of this evidence was rejected. Instead at Step 4, the ALJ stated:

After careful consideration of the evidence, the undersigned finds that the

claimant’s medically determinable impairments could reasonably be expected to

cause the alleged symptoms; however, 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 for the

reasons explained in this decision.

Specifically, as indicated by the above medical records, when she is complaint

(sic) with treatment, her impairments are well controlled. She also cares for

herself and her child. . . .

R. 833. What the ALJ fails to do anywhere in his decision is discuss how Ms. Cordero

can engage in “sustained work activities in an ordinary work setting on a regular and

continuing basis,” when virtually every one of her treating doctors have stated that her

impairments would require her to miss work more than three days per month.52

During the hearing, the vocational expert (“VE”) testified that based on his

experience and knowledge, “absenteeism greater than one day per month would

ultimately lead to no SGA.” R. 905. Likewise, the VE testified that being “off-task” for

20% of an eight-hour workday would be work preclusive. Id. Yet, the ALJ never

mentions this testimony in his decision, nor wrestles with how the two thousand pages

of medical records and four specialists’ opinions confirming that Ms. Cordero would

miss three or more days per month as a result of each impairment, can be reconciled

with the VE’s testimony in order to support his finding that Ms. Cordero is capable of

handling sedentary work. I find that the ALJ erred in failing to analyze whether Ms.

Cordero could work a full-time job on a regular and continuing basis, in light of evidence

of her several severe impairments.

D. The Commissioner’s Final Decision Is Reversed and This Matter

Remanded with Direction to Award Benefits.

Because the ALJ committed reversible error at multiple places in his decision, the

question remains whether I should award benefits or remand the case for further

proceedings. As detailed above, the ALJ improperly rejected the opinion of Dr. Lim,

which support a finding that Ms. Cordero’s seizure disorder equaled Listing 11.02A.

Likewise, the rejection of Drs. Siravaragapu’s and Dr. Lirag’s opinions with regard to the

severity of Ms. Cordero’s mental impairments also caused the ALJ to err in failing to

52 Since different doctors have opined she would miss more than three days of work per month for

different impairments, it is conceivable Ms. Cordero would miss six to nine days of work per month if she

suffered her usual three epileptic seizures, two to three headaches, each of two to three days duration, and

episodes of severe depression and anxiety, which may or may not relate to her bipolar episodes of mania

and depression which affect her ability to sleep.

award benefits at steps four and five. The ALJ improperly relied on his own lay

judgment and applied the wrong legal criteria when analyzing the evidence and the

opinions of these board-certified physicians. Therefore, the decision was a product of

harmful legal error, unsupported by substantial evidence, and should be reversed.

On the record as it stands now, there is substantial evidence that Ms. Cordero

meets a Listing and is entitled to receive benefits. The Court of Appeals for the Third

Circuit has instructed that “[t]he decision to direct the district court to award benefits

should be made only when the administrative record of the case has been fully

developed and when substantial evidence in the record as a whole indicates that the

claimant is disabled and entitled to benefits.” Podedworney v. Harris, 745 F.2d 210,

221-22 (3d Cir. 1984); see Morales, 225 F.3d at 320. The record has been fully

developed in this case, through two rounds of appeal. I have explained in some detail

what the record reveals about Ms. Cordero’s medical conditions. The question now is

who shall bear the burden of the ALJ’s legal errors. I conclude it should be the

Commissioner, not Ms. Cordero.

Ms. Cordero has made out a prima facie case, by substantial evidence, that her

combination of conditions equal at least Listing § 11.02A.53 Where according to the

Listings a claimant is disabled and entitled to benefits, courts, including our Court of

Appeals, have directed the award of benefits rather than remanding for further

proceedings. See Allen v. Bowen, 881 F.2d 37 (3d Cir. 1989); see generally Lester v.

Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (April 9, 1996) (noting that

claimant “meets or equals Listing § 12.04 and is entitled to a conclusive presumption of

53 While I do not conclude that the opinions of the treating psychiatrists would possibly support a finding

of disability pursuant to the psychiatric Listings 12.04 and 12.06, it is likely that a rigorous review of those

findings, had they been properly weighed and accepted by the ALJ, would have supported such a finding.

disability. No purpose would be served by remanding for further proceedings.”);

Sorenson v. Bowen, 888 F.2d 706, 713 (10th Cir. 1989) (“‘Outright reversal and remand

for immediate award of benefits is appropriate when additional fact finding would serve

no useful purpose.’” (quoting Williams v. Bowen, 844 F.2d 748, 760 (10th Cir. 1988));

Espinosa v. Colvin, 953 F. Supp. 2d 25, 38 (D.D.C. 2013) (remarking on motion for

reconsideration that “[g]iven the certainty in the record as to plaintiff’s disability, the

Court did not err in remanding solely for an award of benefits rather than for further

administrative proceedings”) (citing Martin v. Apfel, 118 F. Supp. 2d 9, 18 (D.D.C.

2000), which remanded for benefits where the ALJ’s “ultimate conclusion that

[plaintiff] was not disabled was not based on substantial evidence” but instead was

“arrived at by irrationally disregarding highly probative evidence[.]”).

The Court of Appeals has held that where there has been inordinate delay,

coupled with an existing record that contains substantial evidence supporting a finding

of disability, a reversal with direction to award benefits is appropriate, rather than a

remand for further proceedings. See Morales, 225 F.3d at 320 (inexplicable delays not

attributable to the claimant, a record that is unlikely to change, and substantial evidence

that claimant suffers from a severe mental disability). The Court of Appeals had this to

say, in a similar context:

The Secretary, in effect, asks this court for a second chance to prove

his case . . . . We see no reason, however, why the Secretary should

be afforded such an additional opportunity. This is not a case

where, for example, the legal standard was unclear . . . or the

Secretary did not have an opportunity to consider a new policy . . . .

The Secretary was given full opportunity to develop the

administrative record in this case. . . . Where as here the claimant

established a prima facia case of entitlement, the record was fully

developed, and there is no good cause for the Secretary’s failure to

adduce all the relevant evidence in the prior proceeding, we see no

reason to remand for further fact finding.

Allen, 881 F.2d at 44. A remand in this case would afford the Commissioner a third

“chance to prove [her] case.” Id. There are good reasons not to extend the Commissioner

yet another bite at the apple. There is nothing to suggest that a remand would serve to

fill in a substantial hole in the medical records. See Morales, 225 F.3d at 320 (record

unlikely to change on remand).

Ms. Cordero filed her claim in 2012, nine years ago. She appealed the first

unfavorable opinion, and the case was remanded by the district court because of the

ALJ’s failure to properly consider her doctors’ opinions, as well as the subjective

evidence. On remand, the second ALJ all but ignored the direction from the district

court to consider the doctors’ well-reasoned opinions, finding all of them flawed “given

the record as a whole,” when in fact the record supported those opinions. Tho

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