United States District Court, D. New Jersey
L. WOLFSON UNITED STATES DISTRICT JUDGE
Friedman (“Ms. Friedman” or
“Plaintiff”), appeals from the final decision of
the Acting Commissioner of Social Security, Nancy A.
Berryhill (“Defendant”) denying Plaintiff
disability benefits under Title II of the Social Security Act
(the “Act”). After reviewing the Administrative
Record, the Court finds that the Administrative Law
Judge's (“ALJ”) assessment of Plaintiff's
mental impairments is not based on substantial evidence.
Accordingly, the matter is remanded on this limited basis.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
was born on February 14, 1996, and she was 13 years old on
the alleged disability onset date of January 1, 2010.
Administrative Record 58, 64 (hereinafter
“A.R.”). Plaintiff has a high school education.
January 29, 2014, Plaintiff applied for social security
disability insurance benefits, alleging disability beginning
on January 1, 2010. A.R. 58. Plaintiff's claims were
denied on April 23, 2014, A.R. 77-81, and again upon
reconsideration on April 9, 2015. A.R. 85-89. On April 20,
2015, Plaintiff requested a hearing, A.R. 90, which was held
on March 30, 2017, before ALJ Dennis O'Leary. A.R. 26-46.
The ALJ determined that Plaintiff was not disabled and denied
her claims for disability insurance benefits. A.R. 12-21.
Plaintiff requested review by the Appeals Council, which was
denied on March 19, 2018. A.R. 1-3. On May 18, 2018,
Plaintiff filed the instant appeal.
Review of the Medical Evidence
Feng and Dr. Chen
2010 through 2013, Shufang Feng, M.D. (“Dr.
Feng”) and Sydney Chen, M.D. (“Dr. Chen”)
treated Plaintiff primarily for non-musculoskeletal
complaints. More specifically, over the course of this
three-year period, Plaintiff's reported symptoms included
fever, ear pain, headache, stomach pain, cough, nasal/sinus
congestion, cold sores, skin rashes, asthma, swelling
underneath her chin, and difficulty sleeping. A.R. 275-295.
In May of 2013, more than eight months after her prior visit,
Plaintiff was provided with a medication refill for an
upcoming trip to Florida. A.R. 291. In 2014, during follow up
visits with Dr. Feng, Plaintiff's reported symptoms
continued to include nasal congestion, cough, sore throat,
fever, swollen glands, headache, and ear pain, in addition to
pleuritic chest and acute thoracic back pain. A.R. 261, 264,
266, 269, 271, 296, 299. In 2016, upon resuming her treatment
with Dr. Feng, Plaintiff complained of cough, sore throat,
and sinusitis. A.R. 500-03, 505-06. She was also provided
with a medication refill. A.R. 500.
the exception of upper thoracic spine and chest tenderness on
two separate occasions in 2014, A.R. 297, 300,
Plaintiff's physical examinations were generally
unremarkable and confined to non-musculoskeletal ailments,
including, among other things, occasional wheezing, nasal
congestion, fever, and skin rash. A.R. 275-300, 500-04.
Moreover, during the course of her treatment with Dr. Feng,
Plaintiff did not exhibit any psychological abnormalities and
she appeared alert with a normal mental status. A.R. 262,
265, 267, 270, 272, 288, 292, 295, 297, 300, 503.
2010 through 2017, Edward Allegra, II, M.D., (“Dr.
Allegra”) diagnosed and treated Plaintiff for juvenile
rheumatoid arthritis (“JRA”). During periodic
appointments every two to four months, Plaintiff reported
mild to severe chronic pain, swelling, and/or stiffness in
various areas of her body, including her neck, lower back,
hip, knees, elbows, wrists, hands, fingers, shoulders,
ankles, feet, and toes. A.R. 327, 330, 333, 335, 337, 339,
341, 343, 345, 347, 349, 351, 353, 355, 357, 359, 361, 363,
365, 367, 369, 371, 374, 376, 379, 381, 383. According to
Plaintiff, her symptoms would usually occur between one to
two hours in the morning, and, as a result, she would
sometimes have difficulty walking, dressing, and getting in
and out of her bed. A.R. 327, 330, 379, 381, 383. In
addition, Plaintiff complained of non-musculoskeletal
abnormalities. These constituted fever, fatigue, and
weakness, and, on various occasions, Plaintiff stated that
she felt anxious, depressed, agitated, and/or worried
excessively. A.R. 337, 339, 341, 343, 345, 347, 349, 351,
353, 355, 357, 361, 363, 365, 367, 369, 372, 374, 376, 379,
appointments with Dr. Allegra, Plaintiff appeared well
developed, well nourished, and well groomed, A.R. 327, 330,
333, 339, and her physical examinations revealed the
following medical conditions: tenderness, crepitus (cracking
or popping sounds in the joints), synovitis (inflammation),
and effusion (fluid). A.R. 335-83. More specifically,
notwithstanding a small number of exceptions, Plaintiff
exhibited tenderness in her wrists, knees, and lumbosacral,
cervical, and trapezius regions, while her crepitus,
synovitis, and effusion were similarly confined to certain
specific areas, such as her wrists, fingers, and
knees. A.R. 327, 330, 333, 335, 337, 339, 341,
343, 345, 347, 349, 351, 353, 355, 357, 359, 361, 363, 365,
367, 369, 371, 374, 376, 379, 381, 383. Moreover, on an
infrequent basis, Plaintiff's physical examinations
demonstrated a positive jump sign and a reduced range of
motion in her lumbosacral region, and, on only one occasion,
Plaintiff's left straight leg raise tested positive at 30
degrees. A.R. 345. As a result of Plaintiff's
examinations, Dr. Allegra rendered various medical diagnoses,
including monoarticular and polyarticular JRA, fibromyalgia,
and osteoarthrosis in the left leg and knee. A.R. 328, 331,
333-34, 336, 337-38, 339, 342-43, 345, 348-49, 351, 354-56,
357, 359, 361, 363, 365, 367, 370, 372, 375, 377, 379, 38-82,
March 9, 2017, Dr. Allegra completed a two-page form which
she received from Plaintiff's counsel, titled
“Seelig law Offices, LLC Treating Doctor's Patient
Functional Assessment To Do Sedentary Work.” A.R. 325.
Dr. Allegra provided responses to the document's
pre-drafted questions, in the form of check marks, which
indicated that Plaintiff was limited to the following
work-related tasks during the course of an eight-hour
workday: standing and/or walking for a total of less than two
hours; sitting for a total of less than six hours; and
lifting and/or carrying more than five pounds, but less than
ten pounds, for a total of two hours and twenty minutes. A.R.
325-26. Dr. Allegra, in addition, checked answers which
indicated that certain limitations would “interfere
with [Plaintiff's] ability to perform” work-related
tasks, including: frequent breaks of 15 minutes or more
during the workday; pain which prevents her from working for
eight hours; medications that interfere with her ability to
function in the work setting; difficulty concentrating, as
she would be off task for more than 10% of the workday; and
an average of three or more sick days per month. A.R. 326.
Although the form concluded with a question that asked
“[p]lease indicate the diagnostic and clinical findings
that support your opinion, ” Dr. Allegra failed to
provide an explanation in connection with Plaintiff's
alleged inability to perform sedentary work. A.R. 326.
Indeed, Dr. Allegra crossed out a section intended for her
notes from Barbara Jortner, Psy.D. (“Dr.
Jortner”), indicate that she treated Plaintiff for
psychological ailments in 2016 and 2017. A.R. 472, 480-88,
494-99. During her initial intake assessment in March of
2016, Plaintiff complained of anxiety, depression, obsessive
compulsive disorder, and reported that it was difficult to
leave her home because of her arthritis and health problems.
A.R. 495. Plaintiff also underwent a mental status exam which
demonstrated the following results: she was cooperative and
appeared neat; she was oriented in all three spheres; her
motor functioning and speech were normal; her affect was
full; she denied suicidal and homicidal ideation; she did not
exhibit any perceptual abnormalities; she was estimated to
have average intelligence; and her judgment and insight were
intact; however, her mood was depressed and anxious; her
thought process was circumstantial at times, her thought
content was obsessive and compulsive; her concentration and
recent memory were impaired; and her attention varied. A.R.
496-99. Dr. Jortner concluded her assessment by diagnosing
Plaintiff with the following psychological impairments: panic
disorder, social anxiety, and major depressive disorder. A.R.
Jortner's progress notes from March through June of 2016,
and March through February of 2017, demonstrate that
Plaintiff reported various psychological symptoms and
stressors. A.R. 473-75, 480-88. Those documents also provide
a summary of the clinical procedures that Plaintiff
underwent, and a one-to two-sentence “special
note” from Dr. Allegra, including a note from April of
2016 indicating that Plaintiff was traveling to Punta Cana
for a wedding. A.R. 480-88. Plaintiff's final appointment
with Dr. Jortner occurred in March of 2017, during which
treatment notes indicate that Plaintiff provided Dr. Allegra
with paperwork from her “SSD lawyer.” A.R. 473.
March 9, 2017, Dr. Jortner completed a form from
Plaintiff's counsel, titled “Medical Assessment of
Ability To Do Work-Related Activities (Mental), ”
wherein she opined that Plaintiff is “unable to meet
competitive standards” in performing certain
work-related tasks, including using judgment and maintaining
personal appearance. A.R. 469-72. Moreover, according to Dr.
Jortner, Plaintiff lacked the “useful ability to
function” in the following areas: abiding with work
rules; relating to co-workers; dealing with the public;
interacting with supervisors; dealing with work stresses;
functioning independently; maintaining attention and
concentration; complete detailed, non-complex, and simple job
instructions; behaving in an emotionally stable matter;
relating predictably in social situations; and demonstrating
reliability. A.R. 469-72.
March 25, 2015, at the request of the administration, Dr.
Mariam Rubbani performed a physical examination upon
Plaintiff. Dr. Rubbani observed that Plaintiff was well
developed, well nourished, obese, in no apparent distress,
and followed directions. Moreover, upon examination, she
reported the following findings:
Shoulder ranging was limited in all planes tested and she has
bilateral positive Neer impingement signs. Elbow ranging was
full bilaterally. Wrist ranging was full. There is no atrophy
in her hands. She does have ulnar deviated digits in her
hands bilaterally Grip and pinch strength are decreased to
3/5. She is able to separate papers. She can make a fist and
oppose fingers and fully extend her hands, but these are
painful. There is no erythema in the hands and there is some
mild edema. Knee ranging is full bilaterally with some edema
about the joint. No. medial or lateral joint line tenderness.
No. crepitus. No. erythema . . . . Hip ranging is limited in
forward flexion. The remainder of planes range of motion are
full. Ankle ranging is full bilaterally.
304. Dr. Rubbani also indicated that Plaintiff's
“straight leg raising is negative bilaterally. Squats
less than halfway down. She is unsteady walking on her heels
and on her toes. There is no sensory loss in bilateral upper
or lower extremity dermatomes. There is no reflex loss in
bilateral biceps, triceps, or patellar tendon.”
Finally, in concluding her physical assessment, Dr. Rubbani
determined that Plaintiff's condition was consistent with
rheumatoid arthritis and lumbar myofascial spasm.
April 8, 2015, State agency medical consultant Mary McLarnon,
M.D. (“Dr. McLarnon”), independently examined
Plaintiff's medical records, and rendered an opinion as
to Plaintiff's exertional limitations. A.R. 71-74. More
specifically, Dr. McLarnon noted that Plaintiff could
occasionally lift and/or carry up to 20 pounds, frequently
lift and/or carry up to 10 pounds, stand and/or walk (with
normal breaks) for a total of approximately 4 hours in an
8-hour workday, and sit (with normal breaks) for a total of
approximately 6 hours in an 8-hour workday, and can push
and/or pull objects. Furthermore, Dr. McLarnon indicated that
Plaintiff could occasionally crawl, and climb ropes, ladders,
and scaffolds; and she could frequently climb ramps/stairs,
stoop, kneel, and crouch without any difficulty balancing.
A.R. 72. According to Dr. McLarnon, her findings were
consistent with a light/sedentary residual functional
capacity assessment. A.R. 70.
Review of the Testimonial Record
Third Party Function Report
February 6, 2016, Deana Alles (“Ms. Alles”),
Plaintiff's mother, completed a Third Party Function
Report, wherein she provided information in connection with
her daughter's daily activities and exertional abilities.
A.R. 170-77. More specifically, according to Ms. Alles,
Plaintiff's pain and discomfort cause her difficulty
falling sleep, but during the course of the day, she attends
the gym, in some degree, in order to alleviate joint
stiffness, reads, and watches television. A.R. 170. Moreover,
prior to her alleged disability, Ms. Alles indicated that her
daughter was capable of attending school and related
functions, socializing with friends, and was generally more
independent. A.R. 171.
her ability to provide personal care, Ms. Alles opined that
her daughter “sometimes” has difficulty dressing,
styling her hair, and shaving. A.R. 171. Ms. Alles indicated
that her daughter relies on a “shower chain” to
bathe, requires reminders to take her medication, and is
unable to open childproof bottles. A.R. 171. However, Ms.
Alles stated that her daughter was capable of feeding herself
and using the bathroom without the need for assistance. A.R.
her ability to perform house and yard work, Ms. Alles stated
that her daughter's “extreme inflammation, pain,
and fatigue” precludes her from performing such tasks,
including chores. A.R. 172-73. However, Ms. Alles indicated
that her daughter was able to “go outside” two to
three times a week, for short periods of time, and possessed
the ability to drive herself and shop “in stores”
for at least thirty to sixty minutes, as well as by phone,
email, and computer. A.R. 173.
her hobbies and interests, Ms. Alles stated that her daughter
enjoys reading, journalism, watching television, playing
board games, and baking. A.R. 174. Moreover, according to Ms.
Alles, her daughter began “reading and
journalism” after her JRA became “more
severe.” A.R. 174. As to Plaintiff's social
activities, Ms. Alles indicated that her daughter talks and
visits “her friends and family” on a weekly
basis, and regularly goes to her aunt's house and Barnes