United States District Court, D. New Jersey
L. WOLFSON UNITED STATES DISTRICT JUDGE.
Burke (“Plaintiff”), appeals from the final
decision of the Acting Commissioner of Social Security, Nancy
A. Berryhill (“Defendant”), denying Plaintiff
disability benefits under Title XVI of the Social Security
Act (the “Act”). After reviewing the
Administrative Record (“A.R.”), the Court finds
that the Administrative Law Judge's (“ALJ”)
determination of the residual functional capacity
(“RFC”) was not based on substantial evidence,
because the A.R. does not substantially support that
Plaintiff retains the physical capacity to perform medium
work. Accordingly, remand is warranted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
was born on October 11, 1959 and was 53 years old on the
alleged disability onset date of January 25, 2013. A.R. 79.
Plaintiff graduated from high school and completed 4 or more
years of college; however, based on the record, Plaintiff
does not appear to hold a college degree. A.R. 210. Prior to
her alleged disability, Plaintiff worked as a systems analyst
and assembler of electric accessories. A.R. 210.
March 18, 2013, Plaintiff applied for supplemental security
income, alleging disability beginning on January 25, 2013.
A.R. 174-82. Plaintiff's claims were denied on June 14,
2013, A.R. 93-97, and again upon reconsideration on August
27, 2013. A.R. 101-105. Thereafter, Plaintiff requested a
hearing, which was held by video conference on February 26,
2015, before ALJ Dennis Katz. A.R. 40, 42. The ALJ determined
that Plaintiff was not disabled and denied her claims for
supplemental security income. A.R. 34. Plaintiff requested
review by the Appeals Council, which was denied on January
11, 2017. A.R. 1-4. On March 16, 2017, Plaintiff filed the
Review of the Medical Evidence
March 9, 2013, Plaintiff admitted herself to the Emergency
Department at Barnabas Hospital with complaints of depression
and suicidal ideation without a plan or intent. A.R. 310.
Plaintiff was described as a “poor historian”
because of “acute intoxication”; however, during
an examination, she indicated that she suffers from
alcoholism, bipolar disorder, anemia, regularly uses tobacco,
but refrained from any intravenous drug use. A.R. 310-311,
315. Plaintiff stated that her bipolar disorder caused her to
experience “fluctuating suicidal ideation for many
years, ” which symptom was exacerbated by alcohol use.
A.R. 317. However, Plaintiff never acted or intended to act
on her suicidal thoughts, which her adult son and significant
other, with whom she lived, corroborated. A.R. 317, 319.
Despite Plaintiff's suicidal ideation, they stated that
she “never made any suicide attempt in the past,
” and her son “never [saw] any sign or indication
that she would act” on such thoughts. A.R. 317.
also reported various “stressors” during the
examination, including: unemployment, financial strain, the
recent death of her brother-in-law, and Hurricane Sandy's
severe impact on her family. A.R. 317. Plaintiff stated that
she had been unemployed for the past seven years and worries
excessively; however, her son and significant other provide
support and she sells her art as a freelancer. A.R. 317, 319.
Although a mental status evaluation revealed that
Plaintiff's appearance was disheveled and her sleep
quality was poor; her behavior was appropriate and
cooperative; her speech was normal in tone and rhythm; her
thought process was logical and coherent; her mood was
euthymic; her memory, knowledge, and orientation were
adequate and oriented in all three spheres; her impulse
control was normal; her reasoning, judgment, insight, and
perception were all fair; and she did not suffer from any
delusional thoughts or hallucinations. A.R. 320. The
examining physician determined that Plaintiff did not present
a danger to herself or others, and that she would benefit
from mental health treatment. A.R. 319. Plaintiff agreed to
obtain such treatment at Ocean Mental Health. A.R. 319.
April 21, 2013, Thomas Plahovinsak, Ph.D., performed a
consultative psychological evaluation on Plaintiff, during
which Plaintiff was interviewed on matters in relation to her
childhood, education, employment, health, and history of
alcohol abuse. A.R. 331. Dr. Plahovinsak subsequently
performed an assessment of Plaintiff's activities of
daily living (“ADL”):
Ms. Burke is capable of performing all ADL skills
independently and maintains a good regimen of doing them. She
does not have any physical problems that limit her ability to
stand, lift, walk, or bend. Household chores are shared with
her boyfriend; she also prefers to have his company when
going to the supermarket because crowds cause her to become
anxious. Ms. Burke is not in possession of a driver's
license because she allowed it to expire and is now fearful
to go to motor vehicle to have it renewed. Recreation time is
spent engaged in artwork or playing the guitar either alone
or with several friends.
A.R. 332. Dr. Plahovinsak continued the examination by
performing an assessment of Plaintiff's mental status,
Ms. Burke is a 53-year-old, twice divorced, Caucasian female,
who was driven to the evaluation by her boyfriend and arrived
punctually for it. She presented as anxious and tense, with
bouts of coughing occurring that she attributed to allergies;
the level of anxiety and coughing decreased as the interview
progressed. Overall, she was cooperative and enabled rapport
to be established. Ms. Burke appeared her stated age, was
attired in clean, casual clothing, and displayed satisfactory
grooming and hygiene; a strong smell of cigarettes emanated
from her. Ms. Burke was able to sit throughout the evaluation
without displaying any fidgeting or odd mannerisms, rose from
the chair unassisted, and displayed a steady gait. She was
verbal and served as a credible historian.
A.R. 332-33. Dr. Plahovinsak also made the following
observations: Plaintiff was oriented in all three spheres;
she had a clear sensorium; her speech was lucid and goal
directed; her thought processes were clear and coherent; she
did not show signs of a formal thought disorder; and she
denied hallucinations, delusions, and flashbacks, nor were
they suspected. However, Plaintiff experienced racing
thoughts that were intensified by her pattern of worrying,
and Plaintiff's speech was over productive and pressured.
A.R. 333. Dr. Plahovinsak further observed:
She acknowledged that she prefers predictability and is a
self-proclaimed ‘control freak.' She tends to
anticipate worse case scenarios, which increases her level of
anxiety. Crowds also cause her to become anxious because she
does not like to have people touching her or invading her
space. A history of compulsions/rituals was denied. Ms. Burke
has historically had mild to moderate problems managing
Ms. Burke displayed a tearful and tense affect that was
congruent to her mood, which was anxious and depressed. She
tends to become quickly and easily irritated, which includes
being impatient with herself. Anger results in bouts of
‘going off.' Ms. Burke sleeps in blocks of 3-4
hours, but has a history of insomnia in which she has been
awake for 72 hours consecutively. Her energy is currently low
while her appetite and libido are fair. She weighs 125 pounds
while standing 5'3''; she weighed 111 pounds last
A.R. 333. Towards the end of the examination, Dr. Plahovinsak
assessed Ms. Burke's level of cognitive functioning,
determining that it falls within “the average
range.” A.R. 333. Dr. Plahovinsak ultimately diagnosed
Plaintiff with generalized anxiety disorder, bipolar
disorder, and ruled out personality disorder not otherwise
specified. A.R. 333. In his concluding remarks, Dr.
Plahovinsak attested to the following: “[t]he prognosis
for Ms. Burke is favorable with treatment. She would be able
to follow directions at a complex level of difficulty and
would demonstrate moderate-significant problems interacting
with others. She would be able to manage her own funds if
money were awarded.” A.R. 333. Plaintiff was ultimately
assessed a GAF score of 60.
28, 2013, Alexander Hoffman, M.D., a state agency medical
consultant, conducted a physical examination on Plaintiff.
A.R. 334-336. Dr. Hoffman described Plaintiff as a
“thin [and] slightly hyper individual” who is
cooperative, good-natured, and capable of both following
directions and responding to questions in a lucid manner.
A.R. 335. During the examination, Plaintiff walked normally
without a cane and was capable of getting on and off the
medical table without requiring assistance. A.R. 335.
Plaintiff's skin appeared clear, with the exception of a
raised, discolored lesion on her left shoulder. A.R. 355. Dr.
Hoffman attested to the following:
Her head is normocephalic. Her pupils are equally reactive.
The extraocular movements full. Sclerea, cornea, and
conjunctivae were clear. Anterior chambers and fundi look
normal. Tympanic membranes clear. Pharynx clear. Dentition,
very poor with a lot of rotted teeth. The neck is supple.
There are no bruits. Chest is clear to percussion and
auscultation. No audible wheezes, rales, or rhonci.
Examination of the heart, regular rate and rhythm. Normal S1,
S2. No murmur. No friction rub. Abdomen is soft. Bowel sounds
present. No masses. No organomegaly. No CVA tenderness. Lower
extremities, no edema. No trophic change. Intact pulses.
Normal dorsiflexion and plantar flexion of the toes. Straight
leg raising goes to at least 65-70 degrees bilaterally.
Flexion at the knee is full. No swelling. No crepitus. She is
A.R. 335. Plaintiff had excellent grip, biceps, and triceps
strength, and displayed a full range of motion at the wrist,
elbow, and shoulder. A.R. 335. Plaintiff was capable of
bearing weight on both legs and performing a complete deep
knee bend, flexing fully at the waist, and walking on her
heels and toes. A.R. 335. Dr. Hoffman also administered an
EKG, yielding borderline results. A.R. 335.
13, 2013, George Bousvaros M.D., a state agency medical
doctor, independently reviewed Plaintiff's medical
records, and rendered an opinion as to Plaintiff's
exertional efforts. A.R. 73-74. In doing so, he determined
that Plaintiff was capable of performing a light range of
work, including: occasionally lifting and/or carrying up to
20 pounds, frequently lifting and/or carrying up to 10
pounds, standing and/or walking (with normal breaks) for a
total of approximately 6 hours in an 8-hour work day, sitting
(with normal breaks) for a total of approximately 6 hours in
an 8-hour workday, and pushing and/or pulling objects without
limitation. A.R. 73-74. Plaintiff did not have any postural,
manipulative, visual, communicative, environmental,
understanding, or memory limitations. A.R. 74.
August 26, 2013, Brady Dalton, Psy.D., a state agency
psychologist, independently reviewed Plaintiff's medical
records and rendered an opinion as to Plaintiff's ability
to perform sustained work activities over the course of a
normal workday/week. A.R. 84-91. In doing so, Dr. Dalton
adopted the prior medical findings, such as Plaintiff was
confined to the performance of light work, i.e.,
lifting and/or carrying up to 20 pounds and frequently
lifting and/or carrying up to 10 pounds. Specifically, Dr.
Dalton concluded that Plaintiff was not significantly limited
in her capacity to perform the following tasks: carry out
very short and simple instructions; carry out detailed
instructions; sustain an ordinary routine without special
supervision; make simple work-related decisions; ask simple
questions or request assistance; accept instructions and
respond appropriately to criticism from supervisors; maintain
socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness; recognize normal
hazards and take appropriate precautions; travel in
unfamiliar places or use public transportation; and set
realistic goals or make plans independently of others. A.R.
other hand, Dr. Dalton concluded that Plaintiff was
moderately limited in her capacity to perform the following
tasks: maintain attention and concentration for extended
periods; perform activities within a schedule; maintain
regular attendance, and being punctual within customary
tolerance; work in coordination with or in proximity to
others without being distracted by them; complete a normal
workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent
pace without unreasonable number and length of rest periods;
interact appropriately with the general public; get along
with coworkers or peers without distracting them or
exhibiting behavioral extremes; and respond appropriately to
changes in the work setting. A.R. 87-89. Dr. Dalton concluded
his assessment by indicating that Plaintiff,
“[a]lthough anxious and depressed, . . . retains the
ability to understand, remember, and execute instructions.
She can adapt to change and adjust to supervision in
environments where the emotional demands are modest.”
November 18, 2013, during a routine checkup, Plaintiff's
mental health provider sent her to the emergency room for
elevated blood pressure. A.R. 367, 369. Plaintiff had no
complaints, was not in any distress, and denied all of the
following symptoms: chest pain, headache, dizziness,
abdominal pain, nausea, vomiting, shortness of breath, and
palpitations, dysuria, muscle pain, or weakness. A.R. 369.
Her condition improved on that same day and Plaintiff was
discharged. A.R. 371.
November 20, 2013, Plaintiff underwent an intake assessment
at Ocean Mental Health, during which Plaintiff exhibited
“tangential speech, ” “racing thoughts,
” and a “somewhat elevated mood.” A.R. 391.
Plaintiff described difficulty sleeping, indicated that she
“sometimes forgets to eat, ” and presented the
following changes in her health status: “itching, pain
[in her] right shoulder[, ] and a teeth/gum problem.”
A.R. 391. Plaintiff stated that she was active in “AA
and would like to continue to be open to attending more
social events and be active in her community, ” and
that she was “taking care of her son who has
William's Syndrome . . . .” A.R. 391. A mental
status examination demonstrated that Plaintiff was alert and
oriented to person, place and time; appropriately dressed and
presented with good hygiene; cooperative; maintained good eye
contact; well developed; well nourished; ambulatory and in no
acute stress; denied auditory or visual hallucinations,
paranoia or delusions; denied any suicidal or homicidal
ideation or plan; and had intact insight. A.R. 391-392.
However, Plaintiff displayed some short-term memory
difficulty and poor judgment. A.R. 391-392. As treatment, the
examiner recommended a five day a week partial care day
program, as well as a psychiatric evaluation and medication
monitoring. A.R. 392.
January 10, 2014, Krystin Prasad, APN, performed a
psychiatric evaluation on Plaintiff. A.R. 396. As provided in
the medical notes, Plaintiff was 87 days sober at that time,
and, although she felt “off balance, ” she stated
that “the cob webs are gone[.]” A.R. 396.
Plaintiff recognized the she developed a drinking problem at
the age of 26, and that she was “killing herself”
as a result, but denied any current suicidal or homicidal
ideation. A.R. 396. Plaintiff was living with her significant
other, who she described as bipolar, as well as her
permanently disabled, 29-year-old son, both of whom were
unable to care for themselves. A.R. 396. Indeed, Plaintiff
indicated that “she can't trust them to turn on the
stove” and stated that she maintained the house,
grocery shopped, and cooked, but did not drive. A.R. 396.
During the examination, Ms. Prasad performed a mental status
evaluation revealing that Plaintiff was orientated in person,
place, and time; maintained good eye contact; her short and
long term memory were intact; she was focused on the need to
remain sober; she denied urges to cut herself or drink; her
mood was euthymic; her affect was full; her cognitive
functioning, knowledge, judgment, and insight were intact;
her speech was intact, although hyperverbal and pressured;
she appeared forthcoming and friendly; and she denied
auditory and visual hallucinations. A.R. 397-398. The medical
report also included a risk profile, demonstrating that
Plaintiff was not currently homicidal, suicidal, assaultive,
nor abusing any substances. A.R. 398. For treatment, Ms.
Prasad recommended that Plaintiff continue with her recovery
program and use Remeron, to which Plaintiff agreed. A.R. 399.
Ms. Prasad assessed a GAF score of 50. A.R. 399.
January 27, 2014, Plaintiff was admitted to the emergency
room with complaints of pain on the right side of her body,
emanating from her shoulder down to her hip, difficulty
breathing, and weakness in her legs. A.R. 364. A physical
examination revealed that Plaintiff was alert and in mild
distress, but did not look ill; had a normal range of motion
in her right shoulder, with no swelling; her joints, pulses,
speech, and gait were normal; her cranial nerves were intact;
and her strength was symmetric. A.R. 364. Plaintiff underwent
a chest x-ray and right shoulder x-ray which were both
normal. A.R. 365. Prior to being discharged, Plaintiff was
diagnosed with acute bronchitis and chronic right shoulder
pain, and prescribed ibuprofen, antibiotics, and a cough
syrup. A.R. 365-66.
April 8, 2014, Plaintiff scheduled an appointment with
Bernard Wayman, M.D, seeking a referral to an orthopedic
doctor for right shoulder and joint pain. A.R. 377. Plaintiff
stated that the was experiencing these symptoms for five
months and described their severity as a seven. A.R. 377.
Plaintiff's “constant, localized, sharp, and
dull” joint pain worsened with activity and weight
bearing, and improved with rest and acetaminophen. A.R. 377.
A general physical examination revealed that Plaintiff's
right anterior shoulder exhibited tenderness and a reduced
range of motion, although Plaintiff denied any
cardiovascular, respiratory, gastrointestinal, and
psychological symptoms, including chest discomfort,
racing/skipping heartbeat, leg pain on walking, insomnia,
anxiety, and thoughts of suicide. A.R. 378. Additionally,
Plaintiff's head, eyes, ears, nose, mouth, neck, lungs,
heart, pulses, extremities, attention span, and concentration
were normal. A.R. 378-79. Dr. Wayman ultimately diagnosed
Plaintiff with a right shoulder strain, depression, and a
tobacco dependency. A.R. 380-81. Dr. Wayman prescribed
Tylenol Arthritis Pain and Remeron, encouraged Plaintiff to
stop smoking, and referred her to an orthopedist. A.R. 381.
Plaintiff was scheduled for a follow-up appointment in three
28, 2014, during her follow up appointment, Plaintiff
indicated that she felt well and was applying Voltaren gel,
which “work[ed] for her shoulder
[osteoarthritis].” A.R. 372. Although Plaintiff
expressed dissatisfaction with her living and working
situations, she denied insomnia, depression, anxiety, and
thoughts of suicide, as well as cardiovascular, respiratory,
and gastrointestinal symptoms. A.R. 373. Dr. Wayman
determined that Plaintiff's tobacco dependency was
“unchanged, ” but her depression and alcoholism
“improved, ” as she reported being seven months
sober, was seeking counseling five days a week, and denied
“feeling down” and a sense of
“hopelessness.” A.R. 372, 374-75. Dr. Wayman
encouraged Plaintiff to stop smoking, lose weight, and
exercise regularly. A.R. 375.
August 2, 2014, Plaintiff was admitted to the hospital after
experiencing chest pain. Plaintiff's EKG revealed an
“acute inferior myocardial infarction with ST
reciprocal ST-depression” and she was subsequently
brought to the catherization lab, where Dr. Sanjiv Sobti,
M.D., performed a cardiac catheterization procedure with
stent placement. A.R. 347, 351-52. A cardiac catheterization
study showed multivessel coronary artery disease. A.R. 355.
Following the procedure, Plaintiff was admitted to the
hospital, where she “did well” and
“gradually ambulated.” A.R. 352. Plaintiff was
discharged ten days later, instructed to stop smoking, and
prescribed various medications, including Metoprolol,
Vistaril, Remeron, Ecotrin, Effient, and Lipitor. A.R. 363.
Dr. Sobti scheduled a follow-appointment approximately one
week later, during which a physical exam revealed:
Plaintiff's breathing sounds were clear; her cardiac
rhythms were regular; her heart sounds were normal; and she
did not have murmurs. A.R. 349. Dr. Sobti determined that
Plaintiff's “condition was stable, ” and he
recommended that she continue her medications. A.R. 349-50.
August 27, 2014, Renuka Tank, M.D., a psychiatrist at Ocean
Mental Health, completed an examination report form on
Plaintiff's behalf. A.R. 394. Dr. Tank indicated that
Plaintiff had a history of alcohol abuse, developed a
dependency on alcohol, was bipolar, was ambulatory, was
unable to work for a twelve-month period, and was a likely
candidate for Supplemental Security Income. A.R. 394-95.
Review of Disability Determinations
March 18, 2013, Plaintiff applied for social security
disability benefits, alleging disability beginning on January
25, 2013. A.R. 174-82. On June 14, 2013, the Social Security
Administration denied Plaintiff's claim for disability
benefits. A.R. 93-97. The ...