MERENDINO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Noel L. Hillman on 5/27/2016. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 15-3900(NLH)
COMMISSIONER OF SOCIAL
RICHARD LOWELL FRANKEL
BROSS & FRANKEL, PA
102 BROWNING LANE, BLDG C-1
CHERRY HILL, NJ 08003
On behalf of Plaintiff
ELIZABETH ANN CORRITORE
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
PHILADELPHIA, PA 19123
On behalf of 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 under Title II of the Social
42 U.S.C. § 401, et seq.
The issue 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, which Plaintiff initially claimed was November 19,
2004, but subsequently amended to December 31, 2006, which is
also the date of last insured.
For the reasons stated below,
this Court will reverse the ALJ’s decision, and remand the
matter so that the ALJ can reconsider whether Plaintiff was
engaged in substantial gainful activity during his alleged onset
date through his date of last insured. 1
BACKGROUND AND PROCEDURAL HISTORY
On April 23, 2012, Plaintiff filed an application for
disability benefits, claiming that since December 31, 2006, he
has been disabled and unable to work due to three cervical
surgeries/fusions, two lumbar surgeries/fusions, multiple level
back and neck fusions, chronic pain, thoracic aortic aneurysm,
arthritis, depression, hypertension, COPD, chronic small vessel
changes in brain, and frequent falls.
Previously, Plaintiff had
served as a church minister and business manager.
Defendant’s brief notes that Plaintiff passed away during the
pendency of this appeal. If this is accurate, Plaintiff’s
counsel must file a substitution of party pursuant to Fed. R.
Civ. P. 25(a).
After a hearing before an ALJ, it was determined that
Plaintiff was not disabled.
The ALJ found that Plaintiff was
able to perform his past work as a minister and business
manager, or in the alternative, he retained the residual
functional capacity to perform light work.
The Appeals Council denied Plaintiff’s request
for review, thus rendering the ALJ’s decision as final.
Plaintiff now seeks this Court’s review.
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 Disability Insurance Benefits.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995).
A reviewing court
must uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”
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);
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Substantial evidence means more than “a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).
means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”
The inquiry is not
whether the reviewing court would have made the same
determination, but whether the Commissioner’s conclusion was
See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
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) (quoting Willbanks
v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th
Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.
474, 488 (1951)).
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)).
Circuit has held that an “ALJ must review all pertinent medical
evidence and explain his conciliations and rejections.”
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 non-
medical 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
Unless 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).
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 fact-finder.”
Williams, 970 F.2d at 1182.
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.
Sykes, 228 F.3d at
262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);
Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
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.
See 42 U.S.C. §
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 perform his past relevant
work, but cannot, given 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. § 1382c(a)(3)(B)
The Commissioner has promulgated regulations for
determining disability that require the application of a fivestep sequential analysis.
See 20 C.F.R. § 404.1520.
step process is summarized as follows:
If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”
If the claimant does not suffer from a “severe
impairment,” 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(b)-(f).
Entitlement to benefits is
therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary 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); see Olsen v.
Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
The ALJ issued a detailed decision that articulated his
reasoning, along with supporting record evidence, for why he
found that Plaintiff was not disabled as of December 31, 2006,
which is both the date he claims his disability began, amended
from November 19, 2004, and the last day of his insured status.
After setting forth the medical evidence and Plaintiff’s claims,
the ALJ determined that even though Plaintiff suffered from
severe impairments due to the residual effects of multiple
cervical spine and lumbar spine surgeries, the evidence did not
support Plaintiff’s claim that he was completely disabled due to
pain and physical impairments as of December 31, 2006.
found that Plaintiff was capable of performing his past work as
a minister and business manager.
In the alternative, the ALJ
found that Plaintiff could perform light or sedentary work, and
thousands of jobs existed in the national economy that Plaintiff
was capable of performing.
In his appeal, Plaintiff challenges four areas of the ALJ’s
decision: (1) Whether the ALJ erred in failing to perform a
function-by-function analysis as required by SSR 96-8; (2)
Whether the ALJ erred in assigning little weight to the opinion
of Plaintiff’s treating physician, Dr. Petinelli; (3) Whether
the ALJ erred in the determination of credibility and failed to
consider probative lay-evidence without comment; and (4) Whether
the ALJ failed to find a substantial number of the Plaintiff’s
impairments to be severe impairments, and erred in failing to
consider these impairments in the formulation of the RFC even if
they were non-severe.
Before the Court can assess substantively whether
substantial evidence supports the ALJ’s decision on these four
issues, the Court finds that the matter must be remanded so that
the ALJ can establish concretely the first step in the
sequential step analysis – i.e., whether Plaintiff engaged in
substantial gainful activity for the 12 months preceding the
disability onset date.
The Social Security Act provides that disability insurance
benefits are entitled to:
Every individual who—
(A) is insured for disability insurance benefits (as
determined under subsection (c)(1)),
(B) has not attained retirement age (as defined in section
. . .
(D) has filed application for disability insurance
(E) is under a disability (as defined in subsection (d)).
42 U.S.C. § 423(a).
The term “disability” means—
(A) 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 . . . .
42 U.S.C. § 423(d)(1)(A).
Thus, the law requires that the first step in determining
whether an individual is entitled to disability benefits, after
confirming that the individual satisfies the other (A) through
(D) requirements, is that the individual has not engaged in any
substantial gainful activity for twelve months.
the step one analysis in this case, the ALJ explained:
The claimant testified that in 2002, he was selfemployed and worked at Gloucester County Community Church.
He testified that he was later listed as an employee of the
church performing the same duties that he performed when he
was self-employed. He was a co-pastor of the church. He
was responsible for the financial matters of the church and
also the recovery ministries. He supervised one employee.
He oversaw the 12 step programs. He taught, counseled and
The claimant testified that he earned $30,000.00 in
cash as a salary. The other $35,000.00 he earned each year
included a housing allowance provided in cash. He paid no
federal taxes on this income or the housing allowance. He
paid federal taxes on the salary. No FICA taxes were
withheld because of the religious connection. His income
was exempt from FICA tax.
The claimant testified that when he worked for Durand
Academy, he was the business manager. He was responsible
for the entire accounting function for the school and the
church. He had no pastoral duties there.
The claimant's earnings record reveals that he earned
self-employment income in the amount of $27,950.12 in 2004
and $29,951.40 in 2005, $25,386.00 in 2006, and thereafter
between 2007 and 2011 his income ranged between $26,257.73
and $28,088.73 each year (Exhibit 8D). I note that
substantial gainful activity as defined by the Agency
ranged from $10,800.00 in 2007 to $12,000.00 in 2011.
The undersigned does not make a definitive assessment
at this step. Because the undersigned decided the case on
disability grounds, for judicial efficiency, the
undersigned does not make a determination whether the
claimant's post alleged onset date earnings constitute
substantial gainful activity. Instead, the undersigned
assumes, for the purposes of judicial economy, that the
work related activity after December 31, 2006 does not
constitute substantial gainful activity. Should this case
be returned for additional evaluation, this issue must be
revisited and dispositively assessed.
As a result, the undersigned concludes that the
claimant worked after the alleged disability onset date but
this work activity did not rise to the level of substantial
(R. at 20-21.)
Even though the Court appreciates the ALJ’s focus on the
substance of Plaintiff’s impairments, since the assessment of a
claimant’s impairments constitutes the heart of a disability
benefits claim, the Social Security Act prohibits disability
benefits from being awarded to a person who has engaged in any
substantial gainful activity within 12 months of his alleged
disability onset date.
42 U.S.C. § 423(d)(1)(A).
step in the sequential step analysis, mandated by law, cannot be
bypassed without a conclusive determination.
The case law is sparse on this issue, but several courts
have noted the requirement of a definitive step one assessment.
For example, in Ellis-Clements v. Comm'r of Soc. Sec., No. 2:10CV-230, 2011 WL 2884870, at *8 (D. Vt. July 18, 2011), the ALJ
“inexplicably failed to apply Test One in determining whether
Plaintiff engaged in SGA.”
The Commissioner’s appeal brief
conceded the ALJ’s failure to make a step one determination, but
argued that “Plaintiff clearly engaged in SGA because ‘the
record shows that her countable income for 2009 ... is
considered substantial income.’”
The court found that the ALJ’s
“failure to apply Test One is more than a mere technical error
which may be cursorily overlooked by the Court,” explaining:
First, it is unclear whether the ALJ or DRB is even
permitted to omit analysis under Test One and progress
immediately to analysis under Tests Two and Three. As
noted by the District of Delaware, “there is little case
law on whether the ALJ can skip Test One and find that
plaintiff did engage in substantial gainful activity under
Tests Two or Three.” Schlosser v. Astrue, 546 F. Supp. 2d
at 669 n.7 (citing Hobson v. Apfel, No. Civ. A. 00–346–JJF,
2001 WL 34368379, at *6 (D. Del. Feb. 28, 2001)). Second,
if anything, the DRB's decision to analyze Plaintiff's
claim solely under Tests Two and Three implies a finding
that Plaintiff did not engage in SGA under Test One, given
that the second and third tests are generally applied only
where analysis under the first test “clearly establishe[s]
that the self-employed person is not engaging in SGA on the
basis of significant services and substantial income.” SSR
83–34, at *9; see Camper v. Sullivan, No. C–88–0721 FMS,
1991 WL 352422, at *2 (N.D. Cal. Nov. 6, 1991) (“tests two
and three need not be considered if test one establishes
Ellis-Clements, 2011 WL 2884870, at *8.
The Ellis-Clements court also noted that the Eighth Circuit
has held “there can be no dispute that SSR[s are] binding on the
The Secretary's failure to consider its own
ruling[s] constitutes a plain abuse of discretion,” Carter v.
Sullivan, 909 F.2d 1201, 1202 (8th Cir. 1990), and the D.C.
Circuit has stated that “an agency's failure to follow its own
regulations is fatal to the deviant action,” Union of Concerned
Scientists v. Atomic Energy Comm'n, 499 F.2d 1069, 1082 (D.C.
Ellis-Clements, 2011 WL 2884870, at *3 n.1.
Here, it is apparent by the ALJ’s own words that he was
uneasy with not making a “definitive assessment” at step one
because he cautioned that “[s]hould this case be returned for
additional evaluation, this issue must be revisited and
(R. at 21.)
As a court in this
District observed when it affirmed the Commissioner’s step one
denial of a claimant’s disability benefits application despite
the claimant’s argument that he did not need to meet the twelve
month durational requirement prior to being entitled to
If a claimant were entitled to Disability Benefits prior to
adjudication of disability based on the belief his or her
disability was expected to last twelve months, regardless
of his or her participation in substantial gainful
activity, the Secretary would automatically skip to step
two. Step one would be rendered extraneous because a
determination of disability would always depend on the
severity of the illness. For a claimant to be initially
determined disabled, he or she must meet the five step
sequential evaluation. As required by step one, the
claimant must not be engaged in substantial gainful
Monahan v. Sec'y of Health & Human Servs., No. 91-CV-5565,
1993 WL 795258, at *11 (D.N.J. Aug. 9, 1993).
The five-step analysis that an ALJ must employ to assess an
individual’s claim for disability benefits is sequential for
One, it would be a waste of time for an ALJ to
painstakingly review a claimant’s medical records, hold a
hearing, enlist the assistance of a vocational expert, and then
write a decision assessing a claimant’s impairments and his
residual functional capacity to perform work, only to thereafter
determine that the claimant did not meet the threshold elements
of a proper insured status or a lack of substantial gainful
activity during preceding twelve months.
Similarly, it would be
a waste of this Court’s time – and amount to an advisory opinion
- to determine whether to reverse an ALJ’s decision or directly
award benefits to the claimant if the claimant is not even
entitled to benefits in the first place. 2
Step one performed
first purposefully saves administrative and judicial resources.
Another reason for the sequential step analysis is that a
finding at step one informs the following four steps.
claimant was capable of performing substantial gainful activity
within the time frame of his disability benefits claim, that
activity would suggest that the claimant was capable of work and
In this case, the ALJ notes that Plaintiff
received significant income during the period for which he is
Even though Plaintiff and Defendant focus on the substance
of the ALJ’s decision from steps two through five, both
A district court, after reviewing the decision of the
Secretary, may, under 42 U.S.C. § 405(g), affirm, modify, or
reverse the Secretary's decision with or without a remand to the
Secretary for a rehearing. Podedworny v. Harris, 745 F.2d 210,
221 (3d Cir. 1984).
reference the step one issue.
Defendant begins her brief by
suggesting that the ALJ did not err in declaring that Plaintiff
was not disabled because Plaintiff earned around $66,000 per
year until 2012, which evidences his ability to work during the
relevant time period.
In response, Plaintiff questions why the
ALJ effectively skipped over step one, but argues that he should
be given the benefit of the ALJ’s action.
The Court cannot sua sponte determine whether Plaintiff
satisfies step one - the ALJ must do so, definitively.
Court must therefore reverse the ALJ’s decision, and remand the
matter to the ALJ so that he can make the dispositive step one
assessment he acknowledged was needed.
For the reasons expressed above, the ALJ’s determination
that Plaintiff is not totally disabled as of December 31, 2006
must be reversed and remanded because step one of the sequential
step analysis must be established prior to the assessment of
steps two through five.
An accompanying Order will be issued.
Date: May 27, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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