CORDERO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Noel L. Hillman on 12/19/2014. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 13-7068(NLH)
COMMISSIONER OF SOCIAL
ADRIENNE FREYA JARVIS, ESQUIRE
800 NORTH KINGS HIGHWAY
CHERRY HILL, NEW JERSEY 08034
Counsel for Plaintiff
SERGEI ADEN, ESQUIRE
SOCIAL SECURITY ADMINISTRATION
OFFICE OF GENERAL COUNSEL
26 FEDERAL PLAZA
NEW YORK, NY 10278
Counsel for Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), to review the final decision of the Commissioner of the
Social Security Administration, denying Plaintiff’s application
for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act.
42 U.S.C. § 401, et seq..
before the Court is whether the Administrative Law Judge (“ALJ”)
erred in finding that there was “substantial evidence” that
Plaintiff was not disabled at any time since his alleged onset
date of disability, January 7, 2008.
For the reasons stated
below, this Court will reverse the decision of the ALJ and
remand the matter for further proceedings.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff was born on January 9, 1970.
(R. at 242.) He
completed the ninth grade in Puerto Rico and took special
(R. at 45.)
does not speak English.
He understands some English but
From 1999 to 2007, Plaintiff
worked in a factory, first as a “floor person” and then on the
(R. at 270.)
Plaintiff filed applications for DIB and Supplemental
Security Income in June 2010, claiming that he was unable to
work as of January 7, 2008.
(R. at 242-47.)
advised by letter dated November 29, 2010 that he was granted
Supplemental Security Income based on a finding that Plaintiff
was disabled as of July 1, 2010.
(R. at 75.)
Also on November
29, 2010, Plaintiff was advised that his claim for DIB was
denied on the basis that there was insufficient evidence to find
his condition disabling on any date through December 31, 2008,
the date he was last insured.
(R. at 70.)
reconsideration of his claim for DIB, but this request was
denied on March 3, 2011.
(R. at 98.)
Plaintiff thereafter sought a hearing by an Administrative
Law Judge (hereafter, “ALJ”).
On April 9, 2012, a hearing began
before the assigned ALJ was continued because Plaintiff became
(R. at 62.)
before another ALJ.
A hearing was then held on July 13, 2012
(R. at 39.)
The second ALJ issued a
written decision in which he determined that Plaintiff was not
(R. at 25-31.)
Plaintiff appealed the decision.
Appeals Council reviewed the ALJ’s decision and denied
Plaintiff’s request for review, thus rendering it final. (R. at
Plaintiff now seeks this Court’s review of the ALJ’s denial
of his application for DIB.
The Medical Evidence Before the ALJ
The medical evidence consists of, inter alia, emergency
room records, radiology records, the medical report of Steven
Klein, D.O., and progress notes from Osborn Family Health
Plaintiff’s appeal focuses primarily on the report of
Dr. Klein, a physician for the State of New Jersey Department of
Labor and Workforce Development, Division of Disability
(R. at 401-404.)
Dr. Klein conducted a
physical examination of Plaintiff on January 31, 2008.
report, Dr. Klein noted that Plaintiff is 5 feet, 11 inches
tall, weighs 273 pounds, and complains of asthma.
also noted the following:
Reduced grip strength of 3/5 with Plaintiff’s left
upper extremities and 4/5 with his right upper
Positive acromioclavicular shear test;
Reduced range of left shoulder abduction at fifty
percent, with nonspecific shoulder pain;
Reduced forward flexion limited to fifty degrees;
Bilateral side bending limited to ten degrees;
Pathological Romberg’s sign;
Inability to walk heel-to-toe; and
(R. at 403.)
In his report, Dr. Klein then stated that “[o]n
the basis of the above evaluation, this individual suffers from:
A 2-month known history of non-insulin dependent
The need for vision correction.
Very palpable thyroid.
Decreased movement of his lumbosacral spine, possibly
due to some nonspecific osteoarthritic problem.”
Plaintiff also refers to notes from the Osborn Family
Health Center, where Plaintiff was treated in July and October
(R. at 549-552.)
These records indicate that Plaintiff
was obese, had hypertension, hypothyroidism, Type 2 diabetes,
and elevated cholesterol.
Plaintiff reported weight
gain, fatigue, and that he falls asleep easily.
(R. at 550.)
The ALJ also had the testimony of Plaintiff from a hearing
in July 2012.
At that time, Plaintiff testified that he “lost
[his] nerves,” has depression, diabetes, a blackened lung, and
high blood pressure.
(R. at 43.)
Plaintiff also noted problems
with his heart, his thyroid, and his legs.
that he was diagnosed with these conditions in 2008 and 2009.
He further testified that his legs constantly fall asleep
(R. at 45), that he has difficulty sleeping because he cannot
breathe when he lies down (R. at 47), that he uses a special
asthma machine to put air into his nose at night (id.), that he
could not walk long distances as of the hearing date but could
walk “[a]ll the time” in 2008 (R. at 53), 1 and that he first
started using a cane six months to a year prior to the hearing
(R. at 54.)
The ALJ’s Finding
The ALJ found that although Plaintiff had several medically
determinable impairments, including non-insulin dependent
Despite this testimony, Plaintiff also testified that after he
stopped working in 2008, he had problems walking because he had
back pain shooting down into his legs, and that he would have to
stop two to three times per block when walking. (R. at 53.)
diabetes mellitus, hypertension, high cholesterol, vision
impairment, obesity, mild degenerative changes at the lumbar
spine, and a thyroid condition, these impairments or combination
of impairments were not “severe” under the applicable
(R. at 27.)
According to the ALJ, Plaintiff did
not have an impairment or combination of impairments that
significantly limited Plaintiff’s ability to perform basic workrelated activities for twelve consecutive months.
In so finding, the ALJ concluded that Plaintiff’s
statements “concerning the intensity, persistence and limiting
effects of [his] symptoms are not credible to the extent they
are inconsistent with finding that the claimant has no severe
impairment or combination of impairments[.] . . .”
(R. at 30.)
The ALJ noted in this regard that Plaintiff’s medical treatment
in 2008 was scarce, that he did not comply with prescribed
medications, and that he did not use “any measures besides
The ALJ also noted that no treating or
consulting medical source reported that Plaintiff had been
disabled for at least twelve consecutive months.
Accordingly, the ALJ Pico that Plaintiff was not entitled to
Standard of Review
Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for social security benefits.
55 F.3d 900, 901 (3d Cir. 1995).
Ventura v. Shalala,
A reviewing court must uphold
the Commissioner’s factual findings where they are supported by
42 U.S.C. §§ 405(g), 1383(c)(3);
Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v.
Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
means more than “a mere scintilla.”
Richardson v. Perales, 402
U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)(quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 83
L. Ed. 126 (1938)).
It means “‘such relevant evidence as a
reasonable mind might accept as adequate to support a
Id. (quoting Consol. Edison Co., 305 U.S. at 229,
59 S. Ct. 206).
A reviewing court has a duty to review the evidence in its
See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
“[A] court must ‘take into account whatever in the
record fairly detracts from its weight.’” Schonewolf v.
Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (internal
When faced with conflicting evidence, the Commissioner
“must adequately explain in the record his reasons for rejecting
or discrediting competent evidence.”
Ogden v. Bowen, 677 F.
Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786
F.2d 581 (3d Cir. 1986)).
The Third Circuit has held that an
“ALJ must review all of the pertinent medical evidence,
explaining his conciliations and rejections.”
Burnett v. Comm’r
of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Similarly, “an ALJ must also consider and weigh all of the nonmedical evidence before him.”
Id. (citing Van Horn v.
Schweiker, 717 F.2d 871, 873 (3d Cir. 1983); Cotter v. Harris,
642 F.2d 700, 707 (3d Cir. 1981)).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
“[U]nless the [Commissioner] has analyzed
all evidence and has sufficiently explained
the weight he has given to obviously
probative exhibits, to say that his decision
is supported by substantial evidence
approaches an abdication of the court's
‘duty to scrutinize the record as a whole to
determine whether the conclusions reached
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting
Arnold v. Sec’y of HEW, 567 F.2d 258, 259 (4th Cir. 1977)).
Although an ALJ, as the fact finder, must consider and evaluate
the medical evidence presented, Fargnoli, 247 F.3d at 42,
“[t]here is no requirement that the ALJ discuss in its opinion
every tidbit of evidence included in the record,” Hur v.
Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004).
In terms of
judicial review, a district court is not “empowered to weigh the
evidence or substitute its conclusions for those of the factfinder.”
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.
1992), cert. denied, 507 U.S. 924, 113 S. Ct. 1294, 122 L. Ed.
2d 685 (1993).
However, apart from the substantial evidence
inquiry, a reviewing court is entitled to satisfy itself that
the Commissioner arrived at his decision by application of the
proper legal standards.
Friedberg v. Schweiker, 721 F.2d 445,
447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793
Standard for Disability Insurance Benefits
The Social Security Act defines “disability” for purposes
of an entitlement to a period of disability and disability
insurance benefits as the “inability 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.”
U.S.C. § 423(d)(1)(A).
Under this definition, a plaintiff
qualifies as disabled “only if his physical or mental
impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education,
and work experience, engage in any other type of substantial
gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.”
42 U.S.C. §
The Commissioner has promulgated regulations for
determining disability that require application of a five-step
See 20 C.F.R. § 404.1520.
process is summarized as follows:
If the claimant currently is engaged in substantial
gainful activity, he will be found “not disabled.”
If the claimant does not suffer from a severe
medically determinable impairment, or if he fails to
meet the duration requirement in 20 C.F.R. § 404.1509,
or if he does not have a combination of impairments
that is severe and meets the duration requirement, he
will be found “not disabled.”
If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1 and has lasted or is expected to last for a
continuous period of at least twelve months, the
claimant will be found “disabled.”
If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”
Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience
to determine whether or not he is capable of
performing other work which exists in the national
economy. If he is incapable, he will be found
“disabled.” If he is capable, he will be found “not
20 C.F.R. § 404.1520(a)(4).
Entitlement to benefits is
therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step evaluation involves a shifting burden of
See Wallace v. Sec’y of Health & Human Servs., 722 F.2d
1150, 1153 (3d Cir. 1983).
In the first four steps of the
analysis, the burden is on the claimant to prove every element
of his claim by a preponderance of the evidence.
the final step, the Commissioner bears the burden of proving
that work is available for the Plaintiff: “Once a claimant has
proved that he is unable to perform his former job, the burden
shifts to the [Commissioner] to prove that there is some other
kind of substantial gainful employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987).
The Step-Two Determination
As mentioned above, at step two of the five-step inquiry,
the ALJ must determine whether the claimant has a medically
severe impairment or conditions of impairment.
Newell v. Comm’r
of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (citations
Rather than focusing on what constitutes a severe
impairment, the Social Security Regulations and case law focus
on what is “not severe.”
“‘[A]n impairment is not severe
if it does not significantly limit [the claimant’s] physical
ability to do basic work activities.’”
Id. (internal quotations
“Basic work activities are ‘abilities and aptitudes
necessary to do most jobs, including, for example, walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying
Id. (internal quotation omitted).
The purpose of the step-two inquiry is to dispose of
Newell, 347 F.3d at 546.
Therefore, an ALJ
may only find that an impairment or combination of impairments
is “not severe” if “the evidence establishes a slight
abnormality or a combination of slight abnormalities which have
When a claimant has two or more concurrent impairments, the
impairments should be considered in combination to determine
whether the combined effect is severe, even if each impairment
may itself be non-severe. 20 C.F.R. § 404.1522-23.
‘no more than a minimal effect on an individual’s ability to
In other words, if the claimant presents evidence
of anything more than a “slight abnormality,” then the claimant
meets his burden at step two and the ALJ should continue to step
three of the sequential evaluation.
“Reasonable doubts on
severity are to be resolved in favor of the claimant.”
In addition to considering the severity of any medically
determinable impairments at step two, an ALJ must also consider
whether such impairments or combination of impairments meet the
duration requirement of 20 C.F.R. § 404.1509.
provides: “Unless your impairment is expected to result in
death, it must have lasted or must be expected to last for a
continuous period of at least 12 months.”
20 C.F.R. § 404.1509.
If a claimant does not have a severe medically determinable
physical or mental impairment that meets the duration
requirement in § 404.1509, or a combination of impairments that
is severe and meets the duration requirement, the ALJ must find
that the claimant is not disabled.
20 C.F.R. § 404.1520(a)(4).
According to the ALJ, the objective medical evidence did
not support Plaintiff’s allegation of disability, and he
therefore denied Plaintiff’s claim at step two of the sequential
Plaintiff argues that the ALJ’s finding was
erroneous for a multitude of reasons, which the Court addresses
Analysis of Dr. Klein’s January 2008 Report
Plaintiff argues that the ALJ erroneously imputed to Dr.
Klein an opinion that Plaintiff did not have a “severe”
(Pl.’s Br. 9.)
In his decision, the ALJ wrote that
“Dr. Klein found no severe impairments after finishing the
examination of the claimant.”
(R. at 29.)
Plaintiff, Dr. Klein never concluded that Plaintiff’s
impairments were not severe, and the ALJ therefore
mischaracterized the evidence.
(Pl.’s Br. 10.)
report of Dr. Klein does not expressly address the severity of
But in stating that Dr. Klein found no
“severe” impairments, it appears the ALJ was merely summarizing
the findings in Dr. Klein’s report.
The ALJ clearly considered
the substance of Dr. Klein’s report, not just a conclusion
regarding severity contained therein.
The Court does not find
the statement at issue in the ALJ’s decision undermines the
evidence on which the opinion rests.
That said, although the ALJ apparently considered the
report of Dr. Klein in its entirety, the Court finds that the
ALJ failed to cite substantial evidence to support his finding
that the medically determinable impairments identified in Dr.
Klein’s report were not severe.
In considering severity, the
ALJ found that Plaintiff failed to demonstrate that any of the
impairments satisfied the duration requirements of 20 C.F.R.
404.1509, without any discussion of the effect of any of the
impairments, or combination of impairments, on Plaintiff’s
ability to perform basic work activities pursuant to 20 C.F.R. §
404.1520(a) and 20 C.F.R. § 404.1521-23.
(R. at 27.)
appears that the ALJ collapsed the severity inquiry into one
analysis – i.e., he found that because none of the impairments
lasted more than twelve months, they were “not severe,”
irrespective of their impact on Plaintiff’s ability to perform
basic work activities.
Although Plaintiff argues that the ALJ’s determination of
severity was erroneous, neither party specifically focuses on
the duration issue even though the ALJ clearly was concerned
about duration in assessing severity.
In this regard, the ALJ
first noted that Plaintiff “did not have an impairment or
combination of impairments that significantly limited the
ability to perform basic work-related activities for 12
consecutive months; therefore, [Plaintiff] did not have a severe
impairment or combination of impairments.”
(R. at 27.)
said: “In terms of the claimant’s alleged pain and other
symptoms, the claimant failed to prove that he had an impairment
or combination of impairments that has lasted at least 12
consecutive months beginning on January 7, 2008, through the
date last insured[.]”
(R. at 30.)
The ALJ likewise stated: “As
for the opinion evidence, no treating or consulting medical
source has reported that the claimant has been disabled for at
least 12 consecutive months, beginning at alleged onset date
through the date last insured.”
In summarizing his
decision, the ALJ again noted: “There has been no longitudinal
treatment for at least 12 consecutive months, nor does the
record demonstrates [sic] severity of any of the conditions on
or before December 31, 2008.”
The Court has reviewed the record on appeal and notes that
the medical records contain evidence that Plaintiff suffered
from several medically determinable conditions that were likely
to have lasted more than twelve months. 3
The Commissioner argues that Plaintiff’s complaints to Dr.
Klein concerned asthma and not musculoskeletal conditions, but
an ALJ may consider any impairments about which he receives
evidence even if the impairment is not listed in the claimant’s
application for DIB. Rutherford v. Barnhart, 399 F.3d 546, 55253 (3d Cir. 2005) (citing Skarbek v. Barnhart, 390 F.3d 500, 504
(7th Cir. 2004)).
records from August 13, 2007 indicate that Plaintiff has “[n]ew
onset diabetes” (R. at 395), Dr. Klein’s report in January 2008
states that Plaintiff had a two-month known history of noninsulin dependent diabetes mellitus (R. at 403), and reports
from Osborne Family Medical Center in July and October 2008
indicate that Plaintiff had Type 2 diabetes mellitus (R. at 549,
Given these records, there was evidence that Plaintiff
had diabetes for at least ten months, starting at his alleged
disability date in January 2008 through October 2008.
it is not clear to the Court how the ALJ concluded that there
was substantial evidence that Plaintiff’s diabetes was not
expected to last twelve months.
See 20 C.F.R. § 404.1509
(impairment “must have lasted or must be expected to last for a
continuous period of at least 12 months.”).
Thus, the ALJ’s
conclusion that Plaintiff’s diabetes failed to meet the duration
requirement is not supported by substantial evidence.
Likewise, the Court finds that there was not substantial
evidence that Plaintiff’s hypertension, high cholesterol,
thyroid condition and obesity were not likely to last more than
“Both type 1 and type 2 [diabetes mellitus] are chronic
disorders that can have serious, disabling complications that
meet the duration requirement.” 20 C.F.R. Pt. 404, Subpart A,
twelve months in duration, when the aforementioned medical
records document the existence of these conditions at least from
January 2008 through October 2008.
(See R. at 403 5, 549-50 6,
Hypertension, high cholesterol, thyroid conditions and
obesity are medically determinable impairments that could,
depending on the severity and effects, result in a disability
20 C.F.R. Pt. 404, Subpart A, Appendix 1, ¶¶
3.00(I) (obesity), 4.00(H) (hypertension and hyperlipidemia),
The ALJ’s decision does not address any
of these conditions in detail, does not mention their physical
effects on Plaintiff, if any, and does not consider their
effects, either individually or in combination, on Plaintiff’s
ability to perform basic work activities.
20 C.F.R. § 404.1521
Dr. Klein’s report of January 2008 notes that Plaintiff had
hypertension, elevated cholesterol, and a “very palpable
thyroid.” (R. at 402.) As to obesity, although Dr. Klein did
not expressly conclude in his report that Plaintiff was “obese,”
he noted that Plaintiff is five feet, eleven inches tall and
reported that he was 273 pounds. (Id.) Plaintiff argues that
he was “obese” pursuant to the Social Security Regulations,
which define obesity as having a body mass index over 30,
because Plaintiff’s body mass index was 37. (Pl.’s Br. 9 n.4.)
The October 2008 records from Osborne Family Medical Center
indicate that Plaintiff was obese and had hypertension, elevated
cholesterol, and a thyroid condition. (R. at 549-50.)
The July 2008 records from Osborne Family Medical Center
indicate that that Plaintiff was obese and had hypertension,
elevated cholesterol, and hypothyroidism. (R. at 551-52.)
(impairment is not severe if it does not significantly limit
ability to perform basic work activities).
Plaintiff had also reported to Dr. Klein that he had asthma
since age fourteen, and the report of Dr. Klein from January
2008 and the records from Osborne Family Medical Center in July
2008 both indicate that Plaintiff has asthma, which records
support a finding that Plaintiff could have met the duration
requirement of 20 U.S.C. § 404.1509.
Nonetheless, the ALJ
concluded that asthma was not a severe impairment,
notwithstanding the absence of any discussion concerning its
effect on Plaintiff’s ability to perform basic work activities. 8
Moreover, if the ALJ did consider the severity of the seven
medically determinable impairments at issue independently of
their duration, his written decision does not sufficiently set
forth the rationale for finding these conditions -- either
With respect to the findings in Dr. Klein’s report concerning
vision and decreased movement of Plaintiff’s lumbosacral spine,
the Court notes that Plaintiff does not cite any other medical
records that discuss these conditions during the relevant time
period. With respect to visual disorders, a report of an eye
examination is required to be evaluated by an ALJ. 20 C.F.R.
404, Subpart P, Appendix 1, ¶ 102.00(4). The medical records do
not contain a report of an eye examination, and therefore the
ALJ had no evidence to evaluate any alleged vision disorders.
With respect to Plaintiff’s lumbosacral spine impairment, there
are no medical records to demonstrate that Plaintiff’s limited
movement lasted or was likely to last more than twelve months.
individually or in combination -- were not severe.
above, an impairment is not severe if it does not significantly
limit the claimant’s physical ability to do basic work
20 C.F.R. § 404.1521(a).
The ALJ’s decision is
devoid of analysis concerning the physical effect of any of
Plaintiff’s medically determinable impairments, nor does the
decision address the combined effect of any of the impairments.
The decision does not analyze Plaintiff’s ability to perform
“basic work activities” in light of the impairments.
the Court is unable to ascertain whether there was substantial
evidence to support the ALJ’s finding. 9
The Court notes the Commissioner’s argument that the ALJ
relied on a lack of evidence in finding that Plaintiff failed to
show he was significantly limited in his ability to perform
Plaintiff also argues that the ALJ misstated the January 2008
report of Dr. Klein, having written in his final decision that
Dr. Klein found “no abnormalities” when the report detailed a
number of abnormalities. (Pl.’s Br. 9.) Dr. Klein’s report
recounts several issues based upon his physical examination of
Plaintiff. These include limitations in movement, such as
limited shoulder movement, reduced grip strength, and an
inability to perform heel-to-toe movement. (R. at 402-03.) The
ALJ did not mention, much less discuss, these abnormalities in
his written decision and it is thus unclear whether they were
considered. On remand, the ALJ should discuss these
abnormalities in determining whether they support a finding of
basic work activities.
(Def.’s Br. Pursuant to Local Rule 9.1
A lack of medical evidence is “very strong evidence” that a
claimant was not disabled, because a claimant must show not just
diagnosis, but functional limitations.
Lane v. Comm’r of Soc.
Sec., 100 F. App’x 90, 95-96 (3d Cir. 2004).
Even in Lane,
however, where none of the claimant’s treating physicians opined
that the claimant was unable to work, the ALJ concluded that the
claimant’s impairment was severe and proceeded through the fivestep sequential evaluation.
By contrast, in the present case
the ALJ never addressed Plaintiff’s ability to perform basic
work activities given the diagnoses in the medical records.
Accordingly, the Court will remand the case for further
analysis and explanation concerning the step two determination.
Plaintiff argues that the ALJ failed to give his testimony
proper credence, but the Court rejects this assertion.
pain, Plaintiff testified that he experienced various forms of
pain, and the ALJ clearly addressed that testimony.
(R. at 28-
As already mentioned, the ALJ found that Plaintiff
suffered from seven medically determinable impairments.
Nevertheless, the ALJ noted that Plaintiff’s inaction
concerning his medical conditions seemed to belie his assertion
that any of the seven impairments, or combination thereof, was
disabling as of the relevant time period.
(R. at 30.)
specifically noted that Plaintiff’s treatment in 2008 was “very
scarce,” 10 that Plaintiff did not have surgery in 2008, and that
In Newell, the Third Circuit addressed the relevance of
infrequent medical visits in determining whether a claimant is
disabled. The Third Circuit noted Social Security Regulation
96-7p, which states that an ALJ “‘must not draw any inferences
about an individual’s symptoms and their functional effects from
a failure to seek or pursue regular medical treatment without
first considering any explanations that the individual may
provide . . . that may explain infrequent or irregular medical
visits or failure to seek medical treatment.’” Newell, 347 F.3d
at 547. In Newell, the Third Circuit found “adequate” the
plaintiff’s explanation that she failed to seek treatment
because she could not afford treatment. Id. By contrast, here,
the record indicates that Plaintiff did not consistently take
his medication because he could not afford it, but there is no
evidence concerning a failure to seek treatment due to lack of
That said, the Court notes that the ALJ cited the medical
records concerning Plaintiff’s “non-compliance” as a basis for
discrediting Plaintiff’s alleged pain and other symptoms. (R.
at 30.) One of the medical records the ALJ relied upon for this
conclusion was a progress note dated August 15, 2007, which
states that Plaintiff “has been noncompliant with his
medications secondary to finances” and that Plaintiff “would
most likely not be compliant with insulin” because he “has
problems paying for medication[.]” (R. at 559.) The other
medical record relied upon by the ALJ indicated that Plaintiff
was “noncompliant” but contains no further explanation
concerning the nature of noncompliance. (R. at 549.) Although
the record later states that Plaintiff did not follow a diet (R.
at 550), it is not clear that the earlier reference to
noncompliance concerned diet rather than medication. To the
extent the ALJ drew an inference about Plaintiff’s symptoms
based on his failure to take medications, when there is evidence
in the record explaining that Plaintiff’s failure to take
medications was due to a lack of finances, the ALJ erred in part
Plaintiff did not attempt to address his conditions by, for
example, lying flat on his back, standing intermittently or
sleeping on a board.
Because the ALJ made a credibility
determination and discussed the basis for his decision, the
Court gives this finding “great deference” and will not overturn
the ALJ’s decision.
See Metz v. Fed. Mine Safety & Health
Review Comm'n, 532 F. App’x 309, 312 (3d Cir. 2013)
(“Overturning an ALJ's credibility determination is an
‘extraordinary step,’ as credibility determinations are entitled
to a great deal of deference.”)(internal citation omitted); Atl.
Limousine, Inc. v. NLRB, 243 F.3d 711, 718 (3d Cir. 2001)
(“where credibility determinations are based on the ALJ's
assessment of demeanor, those determinations are entitled to
great deference as long as relevant factors are considered and
Opinion of Medical Experts
Finally, Plaintiff contends that the ALJ should have
obtained testimony from medical experts given that Dr. Klein did
not express an opinion about Plaintiff’s functional limitations.
in weighing credibility. The Court, however, cannot conclude
that the ALJ erred in the ultimate finding that Plaintiff was
not credible given all of the other evidence upon which the ALJ
relied in making his determination.
(Pl.’s Br. 13-14.)
Plaintiff contends that the ALJ did not
understand Dr. Klein’s objective examination findings and a
medical expert would have been able to interpret such findings.
(Id. at 14.)
The Court rejects this argument as well.
SSR 83–20 states
that “[i]n addition to determining that an individual is
disabled, the decisionmaker must also establish the onset date
SSR 83–20, 1983 WL 31249, at *1.
Circuit has applied SSR 83-20 and required a medical advisor
when “the impairment at issue is slowly progressing and the
alleged onset date is so far in the past that obtaining adequate
medical records is impossible.”
Thelosen v. Comm’r of Soc.
Sec., 384 F. App’x 86, 91 (3d Cir. 2010).
In this case, there
is no dispute about the date of onset of January 7, 2008 and no
deficiency in the medical records.
Therefore, this is not a
case requiring a medical expert.
In determining whether there is substantial evidence to
support an ALJ’s decision concerning disability insurance
benefits, the Court defers to the ALJ’s evaluation of the
evidence, assessment of credibility of witnesses, and
reconciliation of conflicting evidence.
Diaz v. Comm’r of Soc.
Sec., 577 F.3d 500, 506 (3d Cir. 2009).
However, in this case,
the ALJ failed to provide a sufficiently detailed explanation
for the findings in his August 14, 2012 decision, so the Court
is unable to determine whether the decision was supported by
Consequently, it is necessary to remand
the case to the Commissioner for further consideration and
The decision of the ALJ will be reversed, and
remanded for further consideration consistent with this Opinion.
An accompanying Order will be issued.
Dated: December 19, 2014
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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