                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-2000

Morales v. Apfel
Precedential or Non-Precedential:

Docket 99-1938




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Filed August 22, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1938

WILLIAM MORALES, Appellant

v.

KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 98-5022)
District Judge: Honorable Anita B. Brody

Argued: April 25, 2000

Before: BECKER, Chief Judge, WEIS,
and OAKES,* Circuit Judges.

(Filed August 22, 2000)

       ERIC J. FISCHER, ESQUIRE
        (ARGUED)
       Breyer Office Park, Suite 110
       8380 Old York Road
       Elkins Park, PA 19027

Counsel for Appellant



_________________________________________________________________
* The Honorable James L. Oakes, United States Senior Circuit Judge for
the United States Court of Appeals for the Second Circuit, sitting by
designation.
       John M. Sacchetti
       Regional Chief Counsel
       Patricia M. Smith
       Deputy Chief Counsel
       Nicholas R. Cerulli (ARGUED)
       Kelly C. Connelly
       David M. Frazier
       Assistant Regional Counsel
       Office of the General Counsel
       Region III
       Social Security Administration
       P.O. Box 41777
       Philadelphia, PA 19101

       Michael R. Stiles
       United States Attorney
       John Pease
       Assistant United States Attorney
       Eastern District of Pennsylvania
       615 Chestnut Street
       Suite 1250
       Philadelphia, Pennsylvania 19106-
       4476

       Counsel for Appellee

OPINION OF THE COURT

OAKES, Senior Circuit Judge.

William Morales appeals the decision of the United States
District Court for the Eastern District of Pennsylvania
(Brody, Judge) approving and adopting the Report and
Recommendation of the United States Magistrate (Scuderi,
M.J.) affirming the Commissioner of Social Security's
conclusion that Morales is not entitled to Disability
Insurance Benefits (DIB) or Supplemental Security Income
(SSI) under Titles II and IV of the Social Security Act,
42 U.S.C. SS 401-433, 1381-1383f. Because the
Commissioner's decision is not supported by substantial
evidence, we reverse the district court.

                               2
BACKGROUND

I. Procedural History.

Morales filed applications for DIB and SSI on July 31,
1990, claiming disability starting August 15, 1989. His
application was initially denied on September 12, 1990,
and denied again on April 27, 1993, upon reconsideration
by the agency responsible for disability determinations.
More than two and a half years later, on May 12, 1993, the
Appeals Council denied Morales's application. Thereafter,
Morales, now represented by counsel, filed a request for an
administrative hearing which took place approximately a
year later on June 15, 1994. The Administrative Law Judge
(ALJ) denied Morales's application based on Morales's work
activity between May and September 1991 which the ALJ
determined disqualified Morales from DIB entitlement. The
Appeals Council denied Morales's request for review of the
ALJ's decision. Morales filed a civil action in the United
States District Court for the Eastern District of
Pennsylvania. The Commissioner conceded the inadequacy
of his prior administrative evaluation and on September 28,
1995, the district court remanded the case for further
evaluation.

A supplemental administrative hearing was held on April
9, 1997. On May 13, 1997, a second ALJ denied Morales's
application, finding that Morales was not disabled because
he could perform his past relevant work at all times after
his alleged disability onset date. The Appeals Council
denied Morales's appeal. Morales filed a second civil action
in the United States District Court for the Eastern District
of Pennsylvania. A United States Magistrate Report and
Recommendation issued on August 16, 1999, endorsing the
Commissioner's denial of benefits, was adopted, without
opinion, by the district court on September 23, 1999. This
appeal followed.

II. Facts.

Morales was born on December 1, 1960, and his life has
been marked by mental health problems and drug and
alcohol abuse. At the age of eight, Morales began to abuse
alcohol accompanied by marijuana, L.S.D., Valium, and
other drugs. Morales testified at the hearing that he had

                                3
completed a seventh-grade education, but had repeated the
grade three times.1 Morales last worked as a landscaper for
four months in 1991, when he earned $3462. Morales's
other past relevant work includes jobs as a laborer and a
packing line worker.

On August 19, 1987, when Morales was twenty-six-years
old, he was diagnosed with a Dependent Personality Disorder2
and polysubstance dependence. Psychotherapy records
completed by Morales's treating psychiatrist, Roger Erro,
M.D., indicate that Morales is depressed, thinks often of
killing himself, and gets violently angry.

There is evidence in the record of Morales's drug and
alcohol dependence. On October 10, 1990, Morales received
treatment for drug and alcohol abuse. At the administrative
hearing, he testified that he drank a lot and once in a while
used cocaine. His attorney conceded that Morales has a
continuing major drug and alcohol problem.

Morales was incarcerated from 1989 to 1990 after a
conviction for threatening a police officer. While in prison,
he attempted suicide by cutting both his wrists. William
Clovis, M.D., of Hahnemann University Correctional Mental
Health Services Program consequently examined Morales
and described him as depressed with suicidal plans, poor
insight, and poor judgment. He diagnosed Morales with
psychoneurotic depression, treated him with Xanax,
Halcion, and later with Valium, and labeled his prognosis
as fair.

After Morales applied for disability benefits, he was
examined by a slew of psychologists and psychiatrists. He
was first referred to Luis Bird, M.D., from the Pennsylvania
Bureau of Disability Determination, who, after examining
_________________________________________________________________

1. At other places in the record, Morales stated that he had completed a
fifth-grade education and an eighth-grade education.

2. "A Personality Disorder is an enduring pattern of inner experience and
behavior that deviates markedly from the expectations of the individual's
culture, is pervasive and inflexible, has an onset in adolescence or early
adulthood, is stable over time, and leads to distress or impairment."
Diagnostic and Statistical Manual of Mental Disorders, 629 (4th ed.,
Amer. Psych. Assn. 1994).

                               4
Morales filed a report on August 30, 1990. During the
examination, Morales stated that since he had been out of
jail, he could not sleep and had "crazy ideas about hurting
himself." He also said that he had heard voices and had
other hallucinations when he was in jail in January 1990.
Dr. Bird noted Morales's mood was depressed and anxious.
He also noted Morales had a difficult time with the cognitive
part of the examination and that his general fund of
knowledge was quite poor. He concluded that Morales has
"an adjustment disorder with mixed emotional features"
and an impaired ability to concentrate, perform activities
within a schedule, make decisions, be aware of normal
hazards, and function when under stress or change.

On April 13, 1993, Morales underwent a second
psychiatric evaluation for the Pennsylvania Bureau of
Disability Determination with Richard Jaffe, M.D. During
this interview, Morales's sister acted as an interpreter. Dr.
Jaffe's report indicates that Morales was treated weekly at
a mental health center for the three years prior to the
evaluation and took Xanax three times a day. Dr. Jaffe
documented Morales's poor grooming and hygiene and
reported that Morales's ability to get along with others
appeared "markedly impaired." Relevant to Morales's ability
to work, Dr. Jaffe opined that Morales appeared to be
markedly irresponsible with a history of multiplefirings due
to poor performance on the job and poor interactions with
others. He also reported that Morales's ability to attend to
a task from beginning to end, to sustain a routine, to
perform at a certain pace, to make decisions, to react to
deadlines and schedules, and to maintain regular
attendance is poor. Finally, he opined that Morales is likely
to become physically abusive and threatening to others in
conflict situations.

Dr. Jaffe also suggested that he suspected Morales was
malingering3 during the examination. He reported that
_________________________________________________________________

3. "Malingering" is a medical term defined as the willful, deliberate, and
fraudulent feigning or exaggeration of the symptoms of illness or injury.
Dorland's Illustrated Medical Dictionary 982 (2d ed. 1994). The
Diagnostic and Statistical Manual of Mental Disorders notes that
individuals who suffer from Antisocial Personality Disorder may
"repeatedly lie . . . con others, or malinger." Diagnostic and Statistical
Manual of Mental Disorders, 646 (4th ed., Amer. Psych. Assn. 1994).

                               5
       [o]n attempting to test his sensorium, he was extremely
       uncooperative and appeared to be malingering on many
       responses. In comparing the current examination with
       that done by Dr. Bird, who was able to interview him
       in Spanish, it would appear that he was not making
       any efforts to answer questions correctly. He gave the
       incorrect day of the week and incorrectly said he was
       in Michigan, when asked where he was. He also
       reported being unable to remember his own birth date,
       which he was able to do with Dr. Bird before. He,
       likewise, was unable to recall three repeated items after
       several minutes, but the three answers he gave instead
       were similar to those asked. For example, he
       spontaneously remembered orange instead of red, and
       remembered chair instead of table. This suggested that
       he knew, in fact the correct responses and was
       deliberately giving incorrect answers.

Dr. Jaffe noted that evaluating Morales's cognitive ability
was not possible "due to what appeared to be deliberate
falsifying of responses on the part of the applicant." Despite
notes that Morales was malingering, Dr. Jaffe diagnosed
Morales with a personality disorder with both explosive and
anti-social features. Dr. Jaffe's diagnosis is consistent with
the Diagnostic and Statistical Manual of Mental Disorders
which states that malingering is a symptom of Antisocial
Personality Disorder. See Diagnostic and Statistical Manual
of Mental Disorders, 646 (4th ed., Amer. Psych. Assn.
1994). He indicated that Morales's prognosis was"probably
poor for any significant change over the next year, even
with on-going counseling at the APM Mental Health
Center."

Morales was next sent for cognitive testing to be
evaluated by psychologist Marged Lindner, Ph. D., with his
sister acting as interpreter. The resultant reportfiled on
April 19, 1993, indicates that Morales's IQ score is 51 with
a verbal score of 52 and a performance score of 55. These
scores are in the range of mild mental retardation. See
Diagnostic and Statistical Manual of Mental Disorders, 46
(4th ed., Amer. Psych. Assn. 1994). Dr. Lindner reported
that Morales's "ability to perform work-related activities
appears to be limited. He could understand, retain and

                               6
follow certain kinds of instructions and perform simple
repetitive tasks. His ability to relate to people is poor and
his ability to tolerate pressure is poor." Like Dr. Jaffe, Dr.
Lindner reported her doubt that Morales fully cooperated
with the testing. However, she gave credit to her measure of
Morales's IQ score.

Two reports assessing Morales's ability to perform work-
related tasks are also in the record. A Mental Residual
Functional Capacity Assessment form was completed on
September 10, 1990, by a non-examining state agency
psychologist, Joseph Barrett, Ph. D. After reviewing
Morales's medical record which, at this point in time, did
not include Dr. Lindner's or Dr. Jaffe's reports, Dr. Barrett,
a vocational psychologist, opined that Morales is"not
significantly limited" in the ability to perform the following
work-related activities: remember locations and work-like
procedures, understand and remember simple instructions,
ask simple questions or request assistance, maintain
socially appropriate behavior, take normal precautions, and
use public transportation. Dr. Barrett also opined that
Morales is only "moderately limited"4 in his ability to
perform the following: understand and remember detailed
instructions, carry out simple instructions, maintain
attention and concentration for extended periods, perform
activities within a schedule, maintain regular attendance,
and be punctual, sustain an ordinary routine without
special supervision, work in coordination with or in
proximity to others without being distracted, make simple,
work-related decision, complete a normal work week or
work day without interruption from psychologically based
symptoms, interact with the general public, accept
instructions and respond appropriately to criticism from
supervisors, get along with coworkers or peers, respond
appropriately to changes in the work setting, and set
realistic goals or make plans independently of others.
Finally, Dr. Barrett reported that Morales's ability to carry
out detailed instructions was "markedly limited." On April
21, 1993, Edward C. Brennan, M.D., a second physician
_________________________________________________________________

4. At the administrative hearing, the vocational expert, who relied on Dr.
Barrett's report to testify, defined "moderately limited" to mean the
claimant is unable to perform the task up to a third of the time.

                               7
who did not personally examine Morales, summarily
affirmed Dr. Barrett's report.

Dr. Erro, Morales's treating psychiatric physician since
November 1991, also prepared a Mental Residual
Functional Capacity Assessment. He completed his
evaluation on September 16, 1993. Contrary to Dr.
Barrett's report, Dr. Erro reported that Morales's ability to
follow work rules, relate to co-workers, deal with the public,
use judgment, interact with a supervisor, function
independently, and maintain attention or concentration was
"seriously limited."5 In addition, his ability to deal with
work stresses, behave in an emotionally stable manner,
relate predictably in social situations, and demonstrate
reliability is rated by Dr. Erro as "poor or none."6 The
treatment records attached to the evaluation indicate that
Morales is stressed, anxious, manipulative, demanding, and
is treated with various psychotropic drugs. The records also
show that Morales does well on Xanax and that through
August 1993, his anxiety was under adequate control with
medication.

Morales testified at both of his hearings and told the ALJ
that he did not speak a lot of English. Morales testified that
he had seen a psychiatrist two times a month since he was
released from jail. He testified that he does not"have the
mind for a job" and that he was fired from the landscaping
job in 1991 because of problems with drugs, fighting, and
absenteeism. He testified that he was fired from every job
he ever had because of fighting. Morales also testified that
he heard voices that made him very angry and want to hit
things.

The ALJ concluded that Morales has a severe adjustment
disorder impairment in addition to a drug and alcohol
addiction. Furthermore, the ALJ found that Morales's
return to work in 1991 was substantial gainful activity
rather than an unsuccessful work attempt, stating that "I
am convinced that lack of motivation and social immaturity
_________________________________________________________________

5. "Seriously limited" is defined as the"ability to function in this area
is
seriously limited but not precluded."

6. "Poor to none" is defined as having"no useful ability in this area."

                               8
were the causes of leaving his last two jobs." The ALJ
rejected the reports of Dr. Erro and Dr. Jaffe and Dr.
Lindner's IQ scores, reasoning that the results reached by
these physicians were because Morales was "manipulative,
unmotivated, and possibly malingering" and that the IQ
scores "do not comport with claimant appearance and
demeanor or with the evidence in the record." The ALJ also
rejected Morales's testimony, finding that Morales was not
credible. The ALJ's decision indicates that the ALJ was
influenced by his impression of Morales as immature,
manipulative, and unmotivated. Based on the vocational
expert's testimony at the administrative hearing that a
hypothetical individual with Morales's age, education, work
experience, and the limitations described in the Mental
Residual Functional Capacity Assessment completed by Dr.
Barrett, could perform the jobs of laborer, landscaper, farm
laborer, and packing line worker, the ALJ found that
Morales could perform any of his past jobs. Accordingly, the
ALJ concluded that Morales was not disabled and denied
his applications for DIB and SSI.

DISCUSSION

In order to establish eligibility for social security DIB and
SSI, a claimant has the burden of demonstrating that he or
she is unable "to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or
which has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C.
S 423(d)(1)(A) (2000 Cum. Annual Pocket Part); 20 C.F.R.
S 416.905(a) (1999).

To determine whether a claimant is entitled to disability
benefits, the Commissioner applies a sequentialfive-step
inquiry pursuant to 20 C.F.R. S 404.1520.

       [T]he [Commissioner] determines first whether an
       individual is currently engaged in substantial gainful
       activity. If that individual is engaged in substantial
       gainful activity, he [or she] will be found not disabled
       regardless of the medical findings. If an individual is
       found not to be engaged in substantial gainful activity,

                               9
       the [Commissioner] will determine whether the medical
       evidence indicates that the claimant suffers from a
       severe impairment. If the [Commissioner] determines
       that the claimant suffers from a severe impairment, the
       [Commissioner] will next determine whether the
       impairment meets or equals a list of impairments in
       Appendix I of sub-part P of Regulations No. 4 of the
       Code of Regulations. If the individual meets or equals
       the list of impairments, the claimant will be found
       disabled. If he [or she] does not, the [Commissioner]
       must determine if the individual is capable of
       performing his [or her] past relevant work considering
       his [or her] severe impairment. If the [Commissioner]
       determines that the individual is not capable of
       performing his [or her] past relevant work, then he
       must determine whether, considering the claimant's
       age, education, past work experience and residual
       functional capacity, he [or she] is capable of performing
       other work which exists in the national economy.

Brewster v. Heckler, 786 F.2d 581, 583-84 (3d Cir. 1986)
(internal citations omitted).7 The claimant bears the burden
of establishing that he or she is incapable of performing his
or her past relevant work due to a physical or mental
impairment. See Kent v. Schweiker, 710 F.2d 110, 114 (3d
Cir. 1983). In this case, the ALJ concluded that Morales
retained the ability to perform his past relevant work as a
_________________________________________________________________

7. The regulations dealing specifically with mental impairments further
require the Commissioner to record the pertinent symptoms and effect of
treatment to determine if an impairment exists. See 20 C.F.R.
S 404.1520a(b)(1) (1999). If an impairment is found, the Commissioner
must analyze whether certain medical findings relevant to the claimant's
ability to work are present or absent. See 20 C.F.R. S 404.1520a(b)(2).
The Commissioner must then rate the degree of functional loss in certain
areas deemed for work including daily living, social functioning,
concentration, persistence or pace, and deterioration in work-like
settings. See 20 C.F.R. S 404.1520a(b)(3). If the mental impairment is
considered "severe," the Commissioner must determine if it meets a
listed mental disorder. If it is severe but does not equal a listed
disorder,
the Commissioner must conduct a residual functional capacity
assessment. See 20 C.F.R. S 404.1520a(c)(3). At each level of
administrative adjudication, a Psychiatric Review Treatment Form must
be completed. See 20 C.F.R. S 404.1520a(d).

                               10
landscaper and consequently was not disabled under the
statute.

Our review of the Commissioner's final decision denying
Morales disability benefits is not plenary. We are bound to
the Commissioner's findings of fact if they are supported by
substantial evidence in the record. See 42 U.S.C. S 405(g)
(2000 Cum. Annual Pocket Part); Plummer v. Apfel , 186
F.3d 422, 427 (3d Cir. 1999); Hartranft v. Apfel , 181 F.3d
358, 360 (3d Cir. 1999); Jones v. Sullivan, 954 F.2d 125,
127-28 (3d Cir. 1997); Daring v. Heckler, 727 F.2d 64, 68
(3d Cir. 1984). "Substantial evidence" is defined as "more
than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Plummer, 186 F.3d. at 422 (citing Ventura v.
Shalala, 55 F.3d 900, 901 (3d Cir, 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
citation omitted))). As this Court has stated previously,

       our decisions make clear that determination of the
       existence vel non of substantial evidence is not merely
       a quantitative exercise. A single piece of evidence will
       not satisfy the substantiality test if the [Commissioner]
       ignores, or fails to resolve, a conflict created by
       counterveiling evidence. Nor is evidence substantial if it
       is overwhelmed by other evidence -- particularly
       certain types of evidence (e.g., that offered by treating
       physicians) -- or if it really constitutes not evidence
       but mere conclusion.

Kent, 710 F.2d at 114; Gilliland v. Heckler, 786 F.2d 178,
183 (3d Cir. 1986). Despite the deference due to
administrative decisions in disability benefit cases,
"appellate courts retain a responsibility to scrutinize the
entire record and to reverse or remand if the
[Commissioner]'s decision is not supported by substantial
evidence." Smith v. Califano, 637 F.2d 968, 970 (3d Cir.
1981).

The Commissioner argues that its finding that Morales
could return to his past relevant work is supported by
substantial evidence in the record and must be affirmed.
Our review of the record, however, convinces us that the
ALJ erred in applying the relevant legal standards to the

                               11
facts of this case. In particular, the ALJ improperly
supplanted the opinions of Morales's treating and
examining physicians with his personal observation and
speculation. His subsequent reliance on the testimony of a
vocational expert that did not consider this evidence,
therefore, does not meet the substantiality test.

The ALJ rejected Dr. Erro's opinion that Morales was
"seriously limited" in his ability to perform work-related
tasks and accepted instead the opinion of non-examining
physician Dr. Barrett as reaffirmed by Dr. Brennan. Dr.
Erro, who had treated Morales from January 1991 through
September 1993, concluded that Morales's ability to follow
work rules, relate to co-workers, deal with the public, use
proper judgment, interact with a supervisor, function
independently, and maintain attention or concentration was
"seriously limited." He also concluded that Morales's ability
to deal with work stress, behave in an emotionally stable
manner, relate predictably in social situations, and
demonstrate reliability was "poor to none." The ALJ rejected
Dr. Erro's evaluation based on his personal observations of
Morales at the administrative hearing, the evidence in the
record of malingering, and notations in Dr. Erro's treatment
notes that Morales was stable and well controlled with
medication.

A cardinal principle guiding disability eligibility
determinations is that the ALJ accord 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."
Plummer, 186 F.3d at 429 (quoting Rocco v. Heckler, 826
F.2d 1348, 1350 (3d Cir. 1987)); see also Adorno v. Shalala,
40 F.3d 43, 47 (3d Cir. 1994); Jones, 954 F.2d at 128; Allen
v. Bowen, 881 F.2d 37, 40-41 (3d Cir. 1989); Frankenfield
v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988); Brewster, 786
F.2d at 585. Where, as here, the opinion of a treating
physician conflicts with that of a non-treating, non-
examining physician, the ALJ may choose whom to credit
but "cannot reject evidence for no reason or for the wrong
reason." Plummer, 186 F.3d at 429 (citing Mason v. Shalala,
994 F.2d 1058, 1066 (3d Cir. 1993)). The ALJ must
consider the medical findings that support a treating

                                12
physician's opinion that the claimant is disabled. See
Adorno, 40 F.3d at 48. 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
405, 408 (3d Cir. 1988); Kent, 710 F.2d at 115.

The ALJ's refusal to credit Dr. Erro's opinion was not
based on objective medical evidence. The ALJ rejected Dr.
Erro's opinion simply because he did not believe Morales's
testimony at the hearing and because Dr. Jaffe and Dr.
Lindner noted that Morales appeared to be malingering in
their examinations of him. Although an ALJ may consider
his own observations of the claimant and this Court cannot
second-guess the ALJ's credibility judgments, they alone do
not carry the day and override the medical opinion of a
treating physician that is supported by the record. Dr. Erro,
who had treated Morales for three years, concluded that
Morales was markedly limited in a number of work-related
activities. This opinion is supported by the conclusions
reached by Dr. Jaffe and Dr. Lindner. The ALJ cannot, as
he did here, disregard this medical opinion based solely on
his own "amorphous impressions, gleaned from the record
and from his evaluation of [the claimant]'s credibility." Kent,
710 F.2d at 115.

Dr. Jaffe's and Dr. Lindner's mentions of malingering also
do not justify rejecting outright Dr. Erro's opinion. Despite
Dr. Jaffe's and Dr. Lindner's observations of possible
malingering on the part of Morales, Dr. Jaffe ultimately
concluded that Morales suffered from a "personality
disorder with explosive and anti-social features" and Dr.
Lindner gave Morales an IQ score of 51, a range that
classifies him as at least mildly mentally retarded. Dr. Jaffe
specifically determined that Morales's ability to attend to a
job from beginning to end, to sustain a routine, perform at
a certain pace, make decisions, react to deadlines and
schedules, and maintain proper attendance is "poor." The
ALJ ignored the ultimate conclusions and medical
symptomatology in these reports that lend support to Dr.

                                13
Erro's opinion and chose instead to draw his own medical
conclusion based solely on a credibility determination and
the pieces of the examination reports that supported this
determination. The Commissioner cannot reject Dr. Erro's
medical opinion simply by having the ALJ make a different
medical judgment. Here, the objective medical conclusions
of Dr. Jaffe and Dr. Lindner support, rather than
contradict, Dr. Erro's assessment. Because the ALJ's
rejection of Dr. Erro's opinion based on the scant evidence
of malingering is a function of lay speculation that is
overwhelmed by counterveiling medical expert evidence, the
ALJ did not give proper weight to Dr. Erro's opinion.

The ALJ also erred by ignoring Dr. Jaffe's conclusions
about Morales's work ability and the IQ scores reported by
Dr. Lindner. The only reason provided for the ALJ's
rejection of Dr. Jaffe's opinion is his conclusion that these
results are unreliable because Morales is manipulative. As
we have explained, this credibility determination is not
objective medical evidence and not an acceptable basis
standing alone for rejecting an examining physician's
conclusion. For the same reason, the ALJ incorrectly
refused to consider Morales's IQ score. The ALJ reasoned
that the "IQ scores do not comport with claimant
appearance and demeanor or with the evidence in the
record" and reasoned that Morales had lied about his
education, could follow the plots of daytime television
shows, and "that a person with an IQ in the 50s could not
function in a normal work environment as claimant was
able to do so when it suited him." An ALJ cannot reject IQ
scores based on personal observations of the claimant and
speculative inferences drawn from the record. Certainly, no
doctor in the record made any statement which would
support the ALJ's speculation that "[a] person with an IQ in
the 50s could not function in a normal work environment
as claimant was able to do when it suited him." Because
Dr. Jaffe's conclusions and the IQ scores were not
discredited based on objective medical evidence, they
should have been fully considered in assessing Morales's
ability to perform his past work.

Nor was it proper for the ALJ to reject Dr. Erro's opinion
based on Dr. Erro's notation that Morales was stable with

                                14
medication. The relevant inquiry with regard to a disability
determination is whether the claimant's condition prevents
him from engaging in substantial gainful activity. See 42
U.S.C. S 423(d)(1)(A). For a person, such as Morales, who
suffers from an affective or personality disorder marked by
anxiety, the work environment is completely different from
home or a mental health clinic. Dr. Erro's observations that
Morales is "stable and well controlled with medication"
during treatment does not support the medical conclusion
that Morales can return to work. Dr. Erro, despite his
notation, opined that Morales's mental impairment
rendered him markedly limited in a number of relevant
work-related activities. Other information in the treatment
records supports this opinion. Thus, Dr. Erro's opinion that
Morales's ability to function is seriously impaired or
nonexistent in every area related to work shall not be
supplanted by an inference gleaned from treatment records
reporting on the claimant in an environment absent of the
stresses that accompany the work setting.

The principle that an ALJ should not substitute his lay
opinion for the medical opinion of experts is especially
profound in a case involving a mental disability. This Court
has said before that an ALJ's personal observations of the
claimant "carry little weight in cases . . . involving medically
substantiated psychiatric disability." Daring , 727 F.2d at
70. Conceivably, malingering and manipulation are
symptoms of the anti-social personality disorder, from
which, the record indicates, Morales suffers. See Diagnostic
and Statistical Manual of Mental Disorders, 646 (4th ed.
Amer. Psych. Assn. 1994) ("individuals with Antisocial
Personality Disorder . . . may repeatedly lie, use an alias,
con others, or malinger."). Thus, these symptoms support,
rather than contradict Dr. Erro's, Dr. Jaffe's, and Dr.
Lindner's ultimate conclusions. Accordingly, the ALJ's
conclusory rejection of Dr. Erro's opinion based on three
years of treating Morales was improper. Dr. Erro's
evaluation and opinion, the IQ scores, and Dr. Jaffe's
conclusions should have been fully considered by the ALJ
in evaluating whether Morales is capable of performing
substantial gainful employment.

To conclude that Morales could perform his past work,
the ALJ also relied on the fact that Morales worked as a

                               15
landscaper for a total of four months in 1991. The ALJ
hastily concluded that Morales terminated this employment
on his own volition because of laziness. There is no
evidence to support the ALJ's conclusion except his own
speculative judgment. The employer's note in the record
states only that Morales quit the job and does not provide
any further explanation. The evidence in the record
supports the conclusion that the symptoms of Morales's
personality disorder made working with others impossible
and Morales's effort at landscaping was an unsuccessful
work attempt. It bears repeating that the question posed by
a disability determination is whether the claimant can
engage in substantial gainful activity. An attempt to work
that ultimately fails because of the symptoms of the
disability is not substantial gainful activity. Thus, the fact
that Morales managed to work for four months does not,
standing alone in contrast to significant evidence of
disability, preclude a finding that Morales is disabled.

The ALJ's conclusion that Morales can return to his past
relevant work must be reversed. Shorn of its rhetoric, this
determination rests solely on a rejection of medically-
credited symptomatology and opinion, the ALJ's personal
observations and speculation, and the testimony of a non-
examining vocational expert who considered only a
hypothetical based on Dr. Barrett's check-list report written
in 1990, long before the record was complete, and only
summarily approved in 1993. The Brennan/Barrett report
indicates that Morales is only "moderately limited" in work-
related activities. This classification was reached only by a
review of the record and is contradicted by the opinions of
Dr. Erro, Dr. Jaffe, and Dr. Lindner. Furthermore, the
Brennan/Barrett check-list-style report was prepared
without the benefit of an examination of Morales, Dr. Jaffe's
report, Dr. Lindner's tests, and Dr. Erro's work-skills
assessment. "[I]t is well established that the opinions of a
doctor who has never examined a patient `have less
probative force as a general matter, than they would have
had if the doctor had treated or examined him.' " Brewster,
786 F.2d at 585 (quoting Podedworny v. Harris , 745 F.2d
210, 217 (3d Cir. 1984) (internal quotations omitted)).
Furthermore, a single piece of evidence is not substantial if
the Commissioner failed to resolve a conflict created by

                               16
counterveiling evidence or if it is overwhelmed by other
evidence -- particularly that offered by a treating physician.
See Gilliland, 786 F.2d at 183, Kent, 710 F.2d at 114.
"Vocational expert testimony alone does not provide the
necessary substantial evidence from which to deduce a
capacity to engage in substantial gainful activity when
there is overwhelming evidence to the contrary in the
record." DeLeon v. Secretary of Health and Human Services,
734 F.2d 930, 934-35 (2d Cir. 1984). Because the ALJ did
not give proper consideration to the opinions of Dr. Erro,
Dr. Jaffe, and Dr. Lindner, all of which present
counterveiling evidence to the Brennan/Barrett evaluation,
the vocational expert testimony does not meet the
substantiality test.

The question remaining is whether this case should be
remanded to the Commissioner for further administrative
proceedings or reversed with direction to the District Court
that benefits be awarded. This case, like many others
involving disability determinations, has suffered
considerable inexplicable delays, see Plummer , 186 F.3d at
435, and we hesitate to add further abeyance. Morales has
had two hearings before an ALJ followed by two petitions to
the appeals council, two appeals to the district court, and
the present appeal to the court of appeals. The disability
determination has already taken ten years and the record
is unlikely to change. Furthermore, the delay in this case
has been caused by deficiencies that are not attributable to
any error of the claimant. See Podedworny, 745 F.2d at
223. Moreover, the extensive medical record, wrongly
rejected by the ALJ, is substantial evidence that Morales
suffers from a severe mental disability that renders him
unable to engage in substantial gainful activity. In
Podedworny, this Court 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." Id. at 222. In our view, that test is met
here. Because substantial evidence dictates a finding by the
Commissioner that Morales is disabled and entitled to
disability benefits, we reverse the judgment of the district

                               17
court and do not remand this case for further
administrative proceedings.

III. CONCLUSION

For the foregoing reasons, this Court will reverse the
district court's grant of summary judgment and remand
this case to the district court with directions to award
appellant the benefits to which he is entitled from August
15, 1989.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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