NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19–1006

Maria Torres Nazario,

 Appellant

v.

Commissioner Social Security 

_________________________________

On Appeal from the United States District Court

for the District of New Jersey

(District Court No. 2:16-cv-05483) 

District Court Judge: Honorable Madeline Cox Arleo

Argued on September 17, 2019

(Opinion filed: November 20, 2019)

Before: KRAUSE, MATEY, and RENDELL, Circuit Judges

Jon C. Dubin (Argued)

Rutgers University

Urban Legal Clinic

123 Washington Street

Newark, NJ 07102

Counsel for Appellant
2

Jordana Cooper (Argued)

Social Security Administration

Office of General Counsel SSA/OGC/Region III

300 Spring Garden Street

6th Floor

P.O. Box 41777

Philadelphia, PA 19123

Counsel for Appellee

OPINIO N*

RENDELL, Circuit Judge.

Maria Torres Nazario (“Nazario”) appeals an order of the United States District 

Court for the District of New Jersey affirming an Administrative Law Judge’s (“ALJ”) 

denial of Nazario’s applications for Social Security Disability Insurance Benefits and 

Supplemental Security Income, which were initially denied by the Commissioner of the 

Social Security Administration (“the Administration” or “the Commissioner”). Because 

the ALJ’s judgment was not supported by substantial evidence, we reverse the District 

Court’s order and remand this case to the District Court with direction to remand the case 

to the Social Security Administration to award Nazario benefits.

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
3

I.1

In February 2012, Nazario began outpatient mental health treatment at Mount 

Carmel Guild Behavioral Health Center. Doctor Carla Hammond, M.D., became 

Nazario’s treating physician for her mental health issues.

The record contains Dr. Hammond’s various treatment notes documenting 

Nazario’s progress, prognosis, symptoms, and other aspects of Dr. Hammond’s 

treatment, which occurred during biweekly treatment sessions. On June 1, 2012, 

Dr. Hammond performed a full psychiatric evaluation of Nazario. Dr. Hammond found 

that Nazario suffered from anxiety, panic attacks, poor sleep, self-cutting, and arthritis

and increased Nazario’s prescription dosage. Dr. Hammond’s other treatment notes 

indicate that Nazario suffered from specific long-term mental issues in relation to

Dr. Hammond’s broader diagnosis that Nazario was depressed and anxious. 

Dr. Hammond noted that Nazario had suffered from physical and emotional abuse, rape, 

and molestation by family members and significant others. Dr. Hammond also noted that 

Nazario had attempted suicide and engaged in other dangerous behaviors such as selfmutilation.

On June 24, 2013, Dr. Hammond prepared a mental residual functional capacity 

(“RFC”) assessment. Dr. Hammond found that Nazario was “[u]nable to meet 

competitive standards” in three areas: completing a normal workday and workweek 

without interruptions from psychologically based symptoms; getting along with co-

 1 Because we write for the parties, who are familiar with the facts and the procedural 

posture to date, we only include what is necessary to explain our decision.
4

workers or peers without unduly distracting them or exhibiting behavioral extremes; and

responding appropriately to changes in routine work settings. App. 1067. Dr. Hammond 

also found that Nazario would not be able to understand and carry out complex 

directions. She indicated that Nazario’s condition would cause her to miss work more 

than four times a month, her impairment had lasted and could be expected to last more 

than twelve months, and her impairments were reasonably consistent with the symptoms 

and functional limitations described in the assessment.

In this June 2013 RFC report, Dr. Hammond made several direct medical 

observations that relate to her conclusions about Nazario’s mental residual functional 

capacity. Dr. Hammond found that Nazario’s symptoms of anxiety and depression had

“persisted but to [a] lesser extent.” App. 1065. In response to the prompt, “[d]escribe the 

clinical findings including results of mental status examination that demonstrate the 

severity of your patient’s mental impairment and symptoms,” Dr. Hammond noted

Nazario’s “[d]epressed mood + affect; poor motivation + energy.” Id. Hammond

described Nazario’s prognosis as “mediocre.” Id. Dr. Hammond also noted that Nazario 

suffered from a variety of symptoms that could support the conclusion that she would 

regularly miss work: “Anhedonia or pervasive loss of interest in almost all activities;” 

“Decreased energy;” “Generalized persistent anxiety;” “Impairment in impulse control;”

“Emotional withdrawal or isolation;” “Sleep disturbance;” and “Easy distractibility;”

among others. App. 1066.

On June 19, 2014, Advanced Practice Nurse Olayinka Aramide, a member of 

Nazario’s treating team at Mount Carmel Guild Behavioral Center, prepared a second 
5

mental RFC assessment. Aramide found that Nazario was “[u]nable to meet competitive 

standards” in performing at a consistent pace without an unreasonable number and length 

of rest periods and understanding, remembering, and carrying out detailed instructions. 

App. 1088–89. Aramide also found Nazario’s condition would cause her to miss more 

than four days per month of work, her impairment has lasted or will last more than twelve

months, and that her impairments are consistent with the symptoms of functional 

limitations described in Aramide’s assessment.

The record also contains reports and evaluations from several physicians who did 

not treat Nazario. For instance, on December 17, 2012, Dr. Steven Yalkowsky, Ph.D., a 

consultant physician who examined Nazario but did not treat her, performed a one-off

consultative psychological evaluation for the state disability agency in relation to 

Nazario’s application for Social Security benefits. Yalkowsky observed no “abnormal 

thought content” and found Nazario “logical, coherent, and goal directed.” App. 1009. 

Dr. Yalkowsky gave Nazario a Global Assessment of Functioning score of 55. 

Dr. Yalkowsky also noted that Nazario claims to suffer from self-isolation, panic attacks, 

self-destructive behavior, feelings of worthlessness, and sleep difficulties. Yalkowsky 

stated, “Ms. Torres does not have a driver’s license and further indicated that she had a 

panic attack while taking the road test. She further indicated that she generally avoids 

using public transportation because she finds it to be anxiety provoking; although, [she]

took the bus on this particular day.” App. 1009. Yalkowsky found no evidence of 

“malingering or other attempts at exaggerating her disability.” App. 1010.
6

On January 16, 2013, Dr. Joseph Bencivenne, Ph.D., a non-treating, nonexamining physician on staff at the New Jersey state disability agency, prepared a mental 

RFC assessment for Nazario. Dr. Bencivenne, after reviewing medical records available 

in January 2013, including available treatment notes from Dr. Hammond and the reports 

of consulting physicians like Dr. Yalkowsky (but not the 2013 or 2014 RFCs from 

Nazario’s treatment team), found Nazario had moderate limitations in her social 

functioning and concentration, pace, and persistence capacities. Dr. Bencivenne also 

found that Nazario suffered from only “mild” restriction of activities of daily living. 

App. 93.

On April 8, 2013, Dr. Robert Campion, Ph.D., a non-treating, non-examining

physician on staff at the New Jersey state disability agency, prepared an additional mental 

RFC assessment. He, like Dr. Bencivenne, did not examine Nazario and reviewed only

medical records available in April 2013 (which similarly did not include the 2013 or 2014 

RFCs from Nazario’s treatment team). Dr. Campion found that Nazario had moderate 

limitations in her social functioning and concentration, pace, and persistence capacities. 

Dr. Campion affirmed Dr. Bencivenne’s findings.

The ALJ held a hearing after which he issued a decision denying Nazario’s 

applications on December 8, 2014. During the course of the hearing, Nazario testified 

that: she obtained an online degree because her impairments made her unable to attend 

requisite classes, suffers from panic attacks triggered intermittently by a wide variety of 

daily occurrences, experiences a loss of interest in activities, feels isolated, sleeps only 

four to five hours a night, and prefers “just laying down in [her] bed alone, in the dark,”
7

App. 80. Nazario testified that she only leaves her home to do errands like food shopping 

and clothes shopping when her family takes her out and that she does not interact with 

friends; she needs someone else to call her in the morning to get her up to get her children 

out to school; and she sometimes misses therapy sessions because she is unable to 

interact with others or get out of bed. Nazario also testified that she had engaged in selfmutilation as recently as a month before the hearing.

The ALJ found that Nazario “has the following severe impairments: degenerative 

disc disease, right knee arthritis, systemic lupus erythematous, hypothyroidism, obesity, 

depression and migraines.” App. 48. The ALJ found that the severity of Nazario’s 

mental impairments, considered singly and in combination, do not meet or medically 

equal the criteria of the Social Security Administration’s listed impairments. The ALJ 

found that Nazario had “moderate restriction” in “activities of daily living;” “moderate 

difficulties” in “social functioning” and “concentration, persistence, or pace;” and no 

episodes of decompensation. App. 50. The ALJ seemed to be impressed that she had 

completed a degree online and was raising two children.

The ALJ submitted a nine-page interrogatory to the vocational expert with three 

alternative hypotheticals. The first hypothetical stated Nazario’s limitations as having 

occasional interaction with coworkers, supervisors, and the general public and asked if 

Nazario could work; the vocational expert responded affirmatively. However, the ALJ 

also submitted two alternative interrogatories: to the second interrogatory, with a sixhour-per-day limitation on work, the vocational expert responded that “working only 6 

hours per day would preclude all work,” App. 300; to the third interrogatory, with a 
8

limitation that Nazario would “require a minimum of two absences per month,” 

App. 301, the vocational expert responded that “absence of 2 days per month would 

preclude all work,” App. 302.

After describing Nazario’s treatment and the results of her consultations and 

evaluations by non-examining physicians, the ALJ’s analysis led him to the conclusion 

that “[t]he claimant’s depression and anxiety do not support a finding of disability.” 

App. 55. Instead, the ALJ found:

Based on the testimony of the vocational expert, the undersigned concludes 

that, considering the claimant’s age, education, work experience, and 

residual functional capacity, the claimant is capable of making a successful 

adjustment to other work that exists in significant numbers in the national 

economy. A finding of “not disabled” is therefore appropriate . . . .

App. 57.

The District Court affirmed the Social Security Administration’s decision to deny 

Nazario benefits. After describing the factual and procedural history of Nazario’s 

application and identifying the relevant legal standard, the District Court ruled that the 

ALJ was justified in according less weight to Nazario’s treating team because the ALJ’s 

decision was supported by other record evidence and because the June 2013 Hammond 

RFC and the June 2014 Aramide RFC were both check-box reports. The District Court

also rejected Nazario’s various arguments that the ALJ’s decision was defective because 

the ALJ failed to: properly craft the hypotheticals he submitted to the vocational expert; 

correctly evaluate Nazario’s credibility as a witness; appropriately develop the factual 

record; and consider the cumulative effect of Nazario’s impairments. Nazario timely 

appealed.
9

II.2

The Social Security Administration reviews applications for disability benefits by 

conducting a five-step analysis. First, it decides whether the claimant is engaged in 

substantial gainful activity. See Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986). 

Then, if the applicant is not, it decides whether he or she suffers from a severe 

impairment or a combination of impairments that is severe. Id. Next, it reviews a list of 

impairments that preclude gainful work. Id. at 583–84. If the claimant’s impairment is 

not on that list, the Administration determines whether the claimant has the residual 

functional capacity to perform their past relevant work, i.e., “that which [the] individual 

is still able to do despite the limitations caused by his or her impairment(s).” Fargnoli v. 

Massanari, 247 F.3d 34, 40 (3d Cir. 2001) (quoting Burnett v. Comm’r of Soc. Sec. 

Admin., 220 F.3d 112, 121 (3d Cir. 2000)). Finally, if the claimant cannot return to past 

work, the Administration determines whether the claimant’s impairment precludes 

adjustment to any other available work. See Brewster, 786 F.2d at 584. If the claimant is 

unable to adjust to any available work, she is entitled to benefits.

We review the Administration’s final decision under the substantial evidence 

standard. We ask if the decision is supported by “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Hartranft v. Apfel, 181 F.3d 

358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). 

Substantial evidence requires “more than a mere scintilla” but less than a preponderance 

 2 The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g) and we have 

jurisdiction pursuant to 28 U.S.C. § 1291.
10

of the evidence. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated 

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We do not “weigh the evidence or 

substitute [our] conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 

1178, 1182 (3d Cir. 1992). A single piece of evidence:

will not satisfy the substantiality test if the [Commissioner] ignores, or fails 

to resolve, a conflict created by countervailing 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 v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).

III.

A. The ALJ’s decision is not supported by substantial evidence.

Nazario argues on appeal that the Administration’s decision to deny her benefits is 

not supported by substantial evidence. For a number of reasons outlined below, we 

agree.

First, the ALJ ignored probative medical evidence from the reports of Nazario’s 

treating team. Although the ALJ’s decision states that “[t]he record is devoid of any 

treating source statement” that contradicts his finding that Nazario’s depression and 

anxiety did not amount to a disability, App. 55, there is in fact a substantial amount of

highly probative, contradictory evidence from Nazario’s treatment team that did exist in 

Dr. Hammond’s treatment notes and elsewhere—but the ALJ failed to address it.

In Morales, we stated:

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 
11

patient’s condition over a prolonged period of time. . . . The ALJ must 

consider the medical findings that support a treating physician’s opinion that 

the claimant is disabled. 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.

Morales, 225 F.3d at 317 (internal quotation marks and citations omitted). We have also 

held that although the government “may properly accept some parts of the medical 

evidence and reject other parts,” the government must “provide some explanation for a 

rejection of probative evidence which would suggest a contrary disposition.” Adorno v. 

Shalala, 40 F.3d 43, 48 (3d Cir. 1994).

The ALJ ignored Dr. Hammond’s finding that Nazario did not meet competitive 

standards in two areas of social functioning: getting along with co-workers without 

unduly distracting them or exhibiting behavioral extremes and responding appropriately 

to changes in a routine work setting. Dr. Hammond’s finding that Nazario would be 

unable to meet competitive standards in these social categories is probative evidence that 

adds to Nazario’s other day-to-day social functioning issues like her panic attacks and 

self-reported tendency to “snap,” App. 52. The ALJ also ignored that Dr. Hammond 

responded to the prompt, “Describe the clinical findings including results of mental status 

examination that demonstrate the severity of your patient’s mental impairment and 

symptoms” by noting Nazario’s “[d]epressed mood + affect; poor motivation + energy.” 

App. 1065. Over the course of treatment, Dr. Hammond noted that Nazario suffers from 

a variety of symptoms that could support the conclusion that she would regularly miss 

work: “Anhedonia or pervasive loss of interest in almost all activities;” “Decreased 
12

energy;” “Generalized persistent anxiety;” “Emotional withdrawal or isolation;” and 

“Sleep disturbance,” among others. App. 1066. Similarly, Nurse Amaride found in her 

mental residual functional capacity report that Nazario suffered from “[r]ecurrent severe 

panic attacks manifested by a sudden unpredictable onset of intense apprehension, fear, 

terror, and sense of impending doom” occurring two to three times per week. App. 1087.

The ALJ’s failure to address Hammond’s and Amaride’s findings on these issues—or to 

address the vocational expert’s related responses to the ALJ’s alternative hypotheticals—

suffices to show that his decision to reject the opinions of Nazario’s treatment team did

not satisfy the substantial evidence standard.

Second, in support of his finding that Nazario’s depression and anxiety did not 

require a finding of disability, the ALJ cited two early-2013 reports prepared by nonexamining, non-treating physicians, Dr. Bencivenne and Dr. Campion.3

 However, 

neither Dr. Bencivenne nor Dr. Campion had access to all of Nazario’s medical records. 

Neither Dr. Bencivenne nor Dr. Campion had access to two important pieces of evidence: 

Dr. Hammond’s June 2013 RFC report and Nurse Amaride’s June 2014 RFC report, 

neither of which had been completed at the time of their non-examining evaluations in 

 3 The ALJ’s decision specifically states that the ALJ “concurs with the assessment of the 

DDS psychological consultants [Bencivenne and Campion] who opined that the claimant 

had [no] more than a moderate limitation in [social functioning].” App. 50. The ALJ 

also concluded that his “conclusion is consistent with the assessment of the DDS medical 

consultants [Bencivenne and Campion] who opined that the claimant could perform the 

simple tasks of unskilled work.” Id. Finally, the ALJ maintained that his “residual 

functional capacity assessment is supported by . . . [t]he assessment of the highly credible 

State Agency medical and psychological consultants only with respect that the claimant 

was not disabled.” App. 55.
13

2013. As such, the Bencivenne and Campion reports reached conclusions that did not 

incorporate the entire treatment record.4

The reports of non-examining physicians are generally given less weight than 

those of examining and treating physicians. See Morales v. Apfel, 225 F.3d 310, 320 (3d 

Cir. 2000) (“[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.” (alteration in original) (citation and internal 

quotation marks omitted)); Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 357 (3d 

Cir. 2008). Where the non-examining physician does not have access to the whole 

record, the non-examining physician’s evaluation is entitled to even less weight. For 

instance, in Morales, we noted that the non-examining physicians’ “report was prepared 

without the benefit of an examination of Morales, [an examining physician’s] report, 

[another examining physician’s] tests, and [the treating physician’s] work-skills 

assessment.” Morales, 225 F.3d at 320. As a result, in that case we ruled that the ALJ’s 

reliance on the non-examining physician’s report did not “meet the substantiality test.” 

Id.

Here, the ALJ’s reliance on the non-examining evaluations of Dr. Bencivenne and 

Dr. Campion rather than Dr. Hammond and Nurse Aramide similarly did not satisfy the 

substantial evidence standard. Because Dr. Bencivenne and Dr. Campion did not have 

 4 Drs. Bencivenne and Campion did, however, have access to Hammond’s treatment 

notes at the time of their reports, which Bencivenne and Campion analyzed and 

incorporated.
14

access to two crucial pieces of evidence—the June 2013 Hammond RFC and the June 

2014 Amaride RFC—their reports were not entitled to more weight than the reports of 

Nazario’s treating team without substantially more explanation and analysis than what 

the ALJ offered in this case.

Third, in support of his finding that Nazario’s depression and anxiety did not 

indicate that she suffered from a disability, the ALJ twice cited to Dr. Hammond’s 

comments in her treatment notes that Nazario’s condition was “stable.” In his summary 

of Dr. Hammond’s notes, the ALJ stated:

When seen on January 18, 2013, Dr. Hammond noted that the claimant was 

doing well on her psychiatric regimen; that she was sleeping well; that her 

appetite was ok; that her energy level was good; and that she was compliant 

with prescribed treatment. Dr. Hammond stated that the claimant was stable. 

Subsequent progress notes continued to note that the claimant was doing 

well.

App. 52. Later on, the ALJ specifically noted that “[i]n fact, treating psychiatrist 

Hammond opined that the claimant was stable.” App. 55. But stability does not equate 

to a specific medical condition. Indeed, someone can be stable with a chronic disabling 

malady or stable on a particular day or in a certain environment.

In Morales, we held that it was not “proper for the ALJ to reject [the treating 

physician’s] opinion based on [the treating physician’s] notation that Morales was stable 

with medication.” Morales, 225 F.3d at 319. Instead, because “the work environment is 

completely different from home or a mental health clinic,” the treating physician’s 

“observations that [the claimant] is ‘stable and well controlled with medication’ during 

treatment does not support the medical conclusion that [the claimant] can return to work.” 
15

Id. Here, the ALJ’s reliance on Hammond’s treatment note that Nazario was “stable” 

therefore does not satisfy the substantial evidence standard.5

Fourth, the ALJ inappropriately relied on evidence about Nazario’s in-home 

activities of daily living without explaining how they contradict a finding that Nazario 

suffers from work-related disability. Specifically, the ALJ stated that his residual 

functional capacity finding “is supported by . . . the claimant’s activities of daily living,” 

App. 55, which the ALJ described as follows:

Although the claimant testified that she depends on family members to take 

her run errands [sic] and that she never goes food shopping alone, the 

evidentiary record indicates that the remainder of her activities of daily living 

are fully functional. . . . [S]he is able to take care of herself and her minor 

children, listen to Christian music, watch television, prepare meals and 

perform household chores such as cleaning, ironing and doing the laundry.

App. 50. The ALJ also highlighted that Nazario “was able to obtain a college degree 

online.” Id.

In Smith v. Califano, we held that “[d]isability does not mean that a claimant must 

vegetate in a dark room excluded from all forms of human and social activity. . . . It is 

well established that sporadic or transitory activity does not disprove disability.” 637 

F.2d 968, 971–72 (3d Cir. 1981). Nazario’s activities of daily living took place in 

Nazario’s home at her own pace. Just because Nazario was not “excluded from all forms 

of human and social activity” and engaged in “sporadic or transitory activity” does not 

 5 Although the ALJ in this case also culled from Dr. Hammond’s treatment notes “that 

[Nazario] was sleeping well; that her appetite was ok; [and] that her energy level was 

good,” App. 52, these more specific observations suffer from the same flaw as the 

observation that Nazario was “stable”—they do not obviously translate from the 

treatment setting to the work setting without more substantial analysis.
16

mean that she is not disabled for work purposes. Id. Without more explanation as to how 

her activities would translate to the workplace, Nazario’s daily in-home activities 

(especially activities like “listening to Christian music”) are not substantial evidence that 

Nazario is not disabled.

This flaw in the ALJ’s reasoning had a domino effect that infected his hypothetical 

to the vocational expert. The hypotheticals described Nazario as being able to “have 

occasional interaction with coworkers, supervisors and the general public.” App. 297, 

299, 301. The ALJ put a positive spin on her social skills and did not sufficiently explain 

why he chose to describe Nazario’s social limitations in this way despite the various 

pieces of evidence indicating that Nazario had substantially more serious social 

limitations and problems with activities of daily living.

B. Nazario is entitled to benefits.

We will reverse the District Court’s decision with direction to the District Court to 

direct the Administration to award benefits. We may direct a district court to award 

benefits “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.” Morales, 225 F.3d at 320 (internal quotation marks and citations 

omitted). The record relating to Nazario’s disability is unlikely to benefit from further 

development. Id. In fact, the record, especially the vocational expert’s answers to the 

ALJ’s second and third hypotheticals, contains substantial evidence that Morales suffers 

from a severe mental disability that renders her unable to engage in substantial gainful 

activity. Additionally, Nazario’s application for benefits, which was filed more than 
17

seven years ago, has been delayed. Id. And the delay in Nazario’s case has not been 

caused by “any error of the claimant.” Id. In our view, substantial evidence supports a 

finding by the Administration that Nazario is disabled and entitled to disability benefits.

IV.

We will reverse the District Court’s judgment with direction to the District Court 

to remand the case to the Social Security Administration to award benefits to Nazario.