RIVERA v. COMMISSIONER OF SOCIAL SECURITY

Filing 22

OPINION FILED. Signed by Judge Noel L. Hillman on 12/19/16. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ORLANDO A RIVERA,
Plaintiff,
1:15-cv-05354-NLH
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
RICHARD LOWELL FRANKEL
BROSS & FRANKEL, PA
102 BROWNING LANE, BLDG C-1
CHERRY HILL, NJ 08003
On behalf of Plaintiff
ELIZABETH ANN CORRITORE
NAOMI B. MENDELSOHN
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
6TH FLOOR
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
Security Act.

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, January 22, 2010.

For the reasons stated below,

this Court will reverse that decision, and remand the matter for
further consideration of Plaintiff’s application consistent with
the direction of this Opinion.
I.

BACKGROUND AND PROCEDURAL HISTORY
On March 1, 2012, Plaintiff filed an application for

disability benefits, claiming that since January 22, 2010, he is
disabled and unable to work due to gout, tenosynovitis, status
post left ankle surgery, major depressive disorder,
schizoaffective disorder, bipolar disorder, generalized anxiety
disorder, and personality disorder. Previously, Plaintiff had
worked as a correction officer, a manager of a vehicle leasing
company, a security guard, and a health services coordinator.
After a hearing before an ALJ, it was determined that
Plaintiff was not disabled because he retained the residual
functional capacity to perform light work.
the decision.

Plaintiff appealed

The Appeals Council denied Plaintiff’s request

for review, thus rendering the ALJ’s decision as final.
Plaintiff now seeks this Court’s review.

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II.

DISCUSSION
A.

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).

Ventura v.

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)).

It

means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id.

The inquiry is not

whether the reviewing court would have made the same
determination, but whether the Commissioner’s conclusion was
reasonable.

See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988).
A reviewing court has a duty to review the evidence in its
totality.

See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

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1984).

“[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)).

The Third

Circuit has held that an “ALJ must review all pertinent medical
evidence and explain 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
court review:
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
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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
are rational.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).

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 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).
B.

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
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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.
1382c(a)(3)(A).

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)

(emphasis added).
The Commissioner has promulgated regulations for
determining disability that require application of a five-step
sequential analysis.

See 20 C.F.R. § 404.1520.

This five-step

process is summarized as follows:
1.

If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”

2.

If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”

3.

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
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claimant will be found “disabled.”
4.

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.”

5.

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
disabled.”

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.

See id.

In

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.

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Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C.

Analysis

In this case, the ALJ found that Plaintiff has not engaged
in substantial gainful activity since the alleged onset of
disability (Step One).

The ALJ next found that all of

Plaintiff’s ailments, listed above, were severe (Step Two). 1

The

ALJ then found that Plaintiff’s impairments did not meet the
medical equivalence criteria of listings 12.03, 12.04, 12.06, or
12.08 (Step Three).

At Step Four, the ALJ found that Plaintiff

had the residual functional capacity (RFC) to perform jobs at
the light exertional level, such as an assembler of plastic
hospital products, assembler of electrical equipment, and a
house cleaner, which jobs are in significant numbers in the
national economy (Step Five).
Plaintiff argues that the ALJ erred in his decision in
three ways:

(1) the ALJ did not account for all of Plaintiff’s

severe impairments, or perform a function-by-function analysis,
in determining Plaintiff’s RFC; (2) the ALJ improperly assigned
little weight to Plaintiff’s treating physician, Dr. Garcia; and
(3) the ALJ did not properly assess Plaintiff’s credibility.

1

The ALJ did not find Plaintiff’s hypertension or polysubstance
abuse to be severe impairments because they were wellcontrolled. Plaintiff does not dispute this finding.
8

The Court agrees with Plaintiff that the ALJ’s determination of
Plaintiff’s RFC, and the ALJ’s conclusion that Plaintiff is
capable of light work, are not supported by substantial
evidence, requiring remand for further assessment.
The Regulations define “light work” as:
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or
leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to
do substantially all of these activities. If someone can do
light work, we determine that he or she can also do
sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit
for long periods of time.
20 C.F.R. § 416.967(b).

Light work generally requires the

ability to stand and carry weight for approximately six hours of
an eight hour day.

SSR 83–10.

The ALJ concluded that Plaintiff was capable of performing
light work, but with the restrictions that the jobs (1) do not
have concentrated exposure to hazards such as unprotected
heights and moving machinery, and (2) are limited to unskilled
work involving routine and repetitive tasks, low stress,
occasional interaction with co-workers and supervisors, and no
interaction with members of the public.

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(R. at 18.)

In coming to this determination, the ALJ reviewed
Plaintiff’s medical records, statements by Plaintiff’s ex-wife
and his current partner, and Plaintiff’s testimony.

The ALJ

observed that two of Plaintiff’s severe impairments were
primarily responsible for affecting his ability to work in his
previous occupations.

One was Plaintiff’s depression and

anxiety, which manifested in isolation, suicidal thoughts,
including one attempt, paranoia and rage.

The other was

Plaintiff’s de Quervain’s tenosynovitis 2 in his left hand and
tendonitis in his lower extremities.

The ALJ concluded that

even though Plaintiff suffered from these severe conditions, his
complaints of their wholly disabling nature were not supported
by the medical evidence.
How the ALJ came to that conclusion was based on his error
in assessing Plaintiff’s RFC, when he assessed Plaintiff’s
mental and physical impairments separately, and failed to do so

2

Patients with de Quervain syndrome have painful tendons on the
thumb side of the wrist. Tendons are the ropes that the muscle
uses to pull the bone. You can see them on the back of your
hand when you straighten your fingers. In de Quervain syndrome,
the tunnel (the first extensor compartment) where the tendons
run narrows due to the thickening of the soft tissues that make
up the tunnel. Hand and thumb motion causes pain, especially
with forceful grasping or twisting.
http://www.assh.org/handcare/hand-arm-conditions/de-quervainsyndrome.
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in combination.

With regard to Plaintiff’s anxiety and

depression, the ALJ recognized that Plaintiff attempted suicide
in January 2013 by overdosing on Xanax and Trazadone.

The ALJ

noted that upon admission to the hospital, Plaintiff required
four-point restraints due to aggressive behavior against himself
and the staff.

The ALJ further noted that Plaintiff was

discharged four days later with a Global Assessment of
Functioning score (“GAF”) 3 of 50, which suggested that Plaintiff
had serious symptoms and serious difficulty in social and
occupational functioning.

The ALJ also noted that Plaintiff

later apologized for his behavior and reported feeling “good” on
the day of his discharge.

(R. at 20.)

The only other medical record that the ALJ considered after
Plaintiff’s January 2013 suicide attempt was by Plaintiff’s

3

The GAF Scale ranges from zero to one-hundred. An individual's
“GAF rating is within a particular decile if either the symptom
severity or the level of functioning falls within the range.”
“[I]n situations where the individual's symptom severity and
level of functioning are discordant, the final GAF rating always
reflects the worse of the two.” “In most instances, ratings on
the GAF Scale should be for the current period (i.e., the level
of functioning at the time of the evaluation) because ratings of
current functioning will generally reflect the need for
treatment or care.” Gulin v. Commissioner, 2014 WL 1466488, 4
n.2 (D.N.J. 2014) (citing American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 34 (4th
ed. text rev. 2000) (“DSM–IV–TR”)).
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treating physician, Dr. Garcia, who had been treating Plaintiff
bi-monthly since March 2010.

In October 2013, Dr. Garcia

assessed Plaintiff with a GAF of 45, which the ALJ attributed to
Plaintiff’s suicide attempt 10 months prior. 4
It is unclear whether the ALJ considered any mental health
records after October 2013, but to support his finding that
Plaintiff’s 45-50 GAF was a one-off assessment, and that
Plaintiff’s typical GAF was in the more functional 55-65 range 5
(R. at 22), the ALJ relied upon records from March 2010 through
May 2012 (R. at 19-20).

Plaintiff’s records fluctuated from

March 2010, when he was assessed a GAF of 50, to a GAF of 65 in
May 2012, which was assessed by a state consultative physician.
By January 2013, however, Plaintiff’s GAF was 25-35 when he was
admitted to the hospital, 50 upon discharge, and back to 45 when
he saw Dr. Garcia in October 2013.

This declining sequence of

4

A GAF rating of forty-one to fifty indicates that an individual
has Serious symptoms (e.g. suicidal ideation, severe obsessional
rituals, frequent shoplifting), or any serious impairment in
social, occupational, or school functioning (e.g., no friends,
unable to keep a job). DSM–IV–TR 34.
5

A GAF rating of sixty-one to seventy indicates that an
individual has “[s]ome mild symptoms (e.g. depressed mood and
mild insomnia), or has “some difficulty in social, occupational,
or school functioning (e.g., occasional truancy, or theft within
the household), but generally functioning pretty well, has some
meaningful interpersonal relationships.” DSM–IV–TR 34.
12

Plaintiff’s mental health status does not provide substantial
evidence to support the ALJ’s RFC assessment.
The ALJ also erred in Plaintiff’s RFC assessment by failing
to explain how Plaintiff’s physical impairments did not preclude
him from the requirements of light work.

The ALJ noted

Plaintiff’s minimal difficulties in physical activities from
January 2010 through October 2012, including Plaintiff’s
collection of unemployment benefits and his attempts to obtain
employment, which was a condition of unemployment.

(R. at 21.)

These assessments appear to override Plaintiff’s diagnosis of
tenosynovitis in the left hand in April 2012.

He also suffered

from tendonitis in his right wrist at the same time.

(Id.)

Thus, even though Plaintiff’s physical impairments were
initially minimally limiting, they progressively worsened by
April 2012, where both of his wrists and hands were affected by
tenosynovitis/tendonitis.

As set forth above, light work

requires, “lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10
pounds,” and it requires either “a good deal of walking or
standing,” or “sitting most of the time with some pushing and
pulling of arm or leg controls.”

20 C.F.R. § 416.967(b).

The

ALJ did not articulate how Plaintiff would be capable of these

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requirements with his hand and wrist impairments.

Moreover, the

ALJ specifically limited Plaintiff to jobs that involved
“routine and repetitive tasks” (R. at 18), which prompted the
Vocational Expert to suggest that Plaintiff was capable of
assembler and cleaning jobs (R. at 23).

It is unclear how the

evidence, substantial or otherwise, supports the finding that
Plaintiff’s physical impairments rendered him capable of light
work, particularly under the ALJ’s modifications.
Finally, the ALJ’s assessment of Plaintiff’s RFC failed to
account for his age.

Plaintiff was 50 years old on January 22,

2010, the alleged onset date of his disabilities.

A “younger

person” is someone under age 50, and that person’s age is not
considered to “seriously affect [the] ability to adjust to other
work.”

20 C.F.R. § 404.1563(c).

For ages 45–49, that person

may be considered “more limited in their ability to adjust to
other work than persons who have not attained age 45.”

Id.

If

a person is “closely approaching advanced age (age 50–54),” a
person's age along with a severe impairment and limited work
experience will be considered to seriously affect the person's
ability to adjust to other work.

Id. § 404.1563(d).

The ALJ

noted Plaintiff’s age (R. at 7), but he did not explain how he
accounted for it in his RFC assessment.

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Based on the foregoing, the Court cannot find that the
ALJ’s assessment of Plaintiff’s RFC, and his ultimate
determination that Plaintiff was capable of light work, is
supported by substantial evidence.

The ALJ’s burden to set

forth on the record substantial evidence to support a conclusion
that the Plaintiff is capable of performing some kind of gainful
employment is not met here.
We note here that the Court’s conclusion does not mean,
however, that Plaintiff is entitled to benefits.

There is a

basis in the law that allows a district court to order the
payment of benefits instead of remanding the case for further
review, but a district court must also be certain that a
plaintiff is entitled to those benefits.

See Gilliland v.

Heckler, 786 F.2d 178, 184–85 (3d Cir. 1986) (citations omitted)
(explaining that the decision to direct the “award of benefits
should be made only when the administrative record of the case
has been fully developed and when substantial evidence on the
record as a whole indicates that the Claimant is disabled and
entitled to benefits”).

In this case, the Court cannot

independently determine Plaintiff’s RFC and articulate what jobs
he would be able to perform, if any.

See Williams v. Sullivan,

970 F.2d 1178, 1182 (3d Cir. 1992) (explaining that a district

15

court is not “empowered to weigh the evidence or substitute its
conclusions for those of the fact-finder”).

The Court is

confident that upon remand, the Commissioner will provide a
prompt determination, in accord with this Opinion, as to
Plaintiff's benefits application.
III. Conclusion
For the reasons expressed above, the ALJ's determination
that Plaintiff retained the residual functional capacity to
perform light work is not supported by substantial evidence.
Even though the ALJ may ultimately come to the same conclusion
upon reconsideration of Plaintiff's application, the ALJ must
properly support his decision.

Accordingly, the decision of the

ALJ is reversed, and the matter shall be remanded.
An accompanying Order will be issued.

Date: December 19, 2016
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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