KORCZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

MEMORANDUM OPINION & ORDER: ORDERED that the determination of the ALJ is VACATED and the case is REMANDED for further proceedings. Signed by Judge Renee Marie Bumb on 2/28/2017. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAMES N. KORCZ,
Plaintiff,

Civil No. 16-1039 (RMB)
MEMORANDUM OPINION & ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

BUMB, United States District Judge:
This matter comes before the Court upon an appeal by
Plaintiff James N. Korcz (the “Plaintiff”) from a denial of
social security disability benefits on March 30, 2015, which was
upheld by the Appeals Council on December 23, 2015.
8 [Dkt. No. 1].

Complaint ¶

For the reasons set forth below, the Court

vacates the decision of the Administrative Law Judge (“ALJ”) and
remands for proceedings consistent with this Memorandum Opinion
and Order’s reasoning.
I.

STANDARD OF REVIEW
When reviewing a final decision of an ALJ with regard to

disability benefits, a court must uphold the ALJ's factual
decisions if they are supported by “substantial evidence.”
Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§
405(g), 1383(c)(3).

“Substantial evidence” means “‘more than a

mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Cons.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Plummer v. Apfel,
186 F.3d 422, 427 (3d Cir.1999).
In addition to the “substantial evidence” inquiry, the
court must also determine whether the ALJ applied the correct
legal standards.

See Friedberg v. Schweiker, 721 F.2d 445, 447

(3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.
2000).

The Court's review of legal issues is plenary.

Sykes,

228 F.3d at 262 (citing Schaudeck v. Comm'r of Soc. Sec., 181
F.3d 429, 431 (3d Cir. 1999)).
“Disability” Defined
The Social Security Act defines “disability” 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 twelve months.”

42 U.S.C. § 1382c(a)(3)(A).

The Act

further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment or
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 kind of substantial gainful work which exists in
the national economy, regardless of whether such work
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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 a five-step, sequential
analysis for evaluating a claimant's disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i-v). In Plummer, 186 F.3d at 428,
the Third Circuit described the Commissioner's inquiry at each
step of this analysis:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § 1520(a). If a claimant is found
to be engaged in substantial activity, the disability
claim will be denied. Bowen v. Yuckert, 482 U.S. 137,
140 (1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show that
[his] impairments are “severe,” [he] is ineligible for
disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant's impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform [his] past relevant work. 20 C.F.R. §
404.1520(d).
The claimant bears the burden of
demonstrating an inability to return to [his] past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume [his]
former occupation, the evaluation moves to the final
step.

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At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R. § 404.1520(f).
The ALJ must show there are other jobs existing in
significant numbers in the national economy which the
claimant can perform, consistent with [his] medical
impairments, age, education, past work experience, and
residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant's impairments in
determining whether [he] is capable of performing work
and is not disabled. See 20 C.F.R. § 404.1523. The ALJ
will often seek the assistance of a vocational expert at
this fifth step. See Podedworny v. Harris, 745 F.2d 210,
218 (3d Cir. 1984).
II.

FACTUAL BACKGROUND
The Court recites only the facts that are necessary to its

determination on appeal, which is narrow.
Plaintiff was born in 1971, and was 37 years old on the
date of injury onset and 43 on the date of the ALJ’s disability
determination.

R. 16.

Plaintiff listed several conditions that

limited his ability to work: bipolar disorder, schizophrenia,
ADHD, alcoholism, obsessive compulsive disorder, scoliosis, and
kyphosis.
pounds.

R. 247.
Id.

At that time he was 6’1 and weighed 295

Plaintiff’s weight has fluctuated over the years.

His medical records indicate that he has been weighed variously
285 pounds, R. 316; 308 pounds, R. 343; 306 pounds, R. 416.
In examinations where specific clinical findings were
reported, no examining physician has ever included a diagnosis
of obesity, nor stated that obesity affects his day to day life.

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R. 317, 334-35, 416-417.

For instance, Dr. Francky Merlin, who

performed an October 4, 2010 consultative medical examination of
Plaintiff, R. 334-338, observed that Plaintiff’s abdomen was
obese, but “otherwise soft and nontender.”

R. 335.

neck, lungs, and heart were all normal, as well.

Plaintiff’s

Id.

Plaintiff’s station and gait were normal, and he had no
difficulty getting up from a sitting position or getting on and
of the exam table.

Id.

He was also able to complete several

other physical assessments, such as squatting and walking on his
heels and toes.

Id.

Likewise, when Plaintiff was evaluated in

June 2013 by Dr. Alan Friedman, he weighed 306 pounds and was
measured at six feet tall.

R. 416.

He performed well

physically during the examination, and was able to walk heel-totoe without issue, could walk on his toes and on his heels, and
could squat.

R. 417.

But, at other times, Plaintiff’s obesity has been cited as
a condition.

Plaintiff received a May 4, 2011 pre-placement

medical exam that disqualified him from certain work and was
found to have “Class III obesity with resting tachycardia.”
421.

On July 3, 2013, Dr. Deogracias Bustos, a state agency

medical consultant, reviewed the evidence and identified
Plaintiff’s impairments to include obesity.
determined it was “severe.”

Id.

R. 114.

He

Likewise, on September 20,

2013, Dr. Andrew Przybla reviewed and affirmed Dr. Bustos’s
5

R.

opinion that Plaintiff’s obesity was severe.

R. 116.

At the

time of Plaintiff’s hearing before the ALJ, he stated he was 6’2
and weighed 290 pounds.

R. 30.

III. ALJ DETERMINATION
The ALJ determined that Plaintiff was under a disability,
“but that a substance use disorder is a contributing factor
material to the determination of disability.”

Record (“R.”) 11.

As such, Plaintiff was determined not to be disabled under the
Social Security Act from the alleged onset date through the date
of the ALJ’s decision.

Id.

At Step One, the ALJ determined that Plaintiff had engaged
in substantial gainful activity since the alleged onset date of
January 1, 2009.

R. 13.

However, the ALJ also determined there

had been a twelve month period of inactivity.

Id.

At Step Two,

the ALJ determined that Plaintiff has the following severe
impairments: a back impairment, an affective disorder and a
substance addiction.

20 C.F.R. 404.1520(c).

R. 14.

At Step

Three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

R. 14.

Turning to the Step Four Residual Functional Capacity
(“RFC”) analysis, the ALJ determined that:

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After careful consideration of the entire record, the
undersigned finds that, based on all of the impairments,
including the substance use disorder, the claimant has
the residual functional capacity to perform medium work
as defined in 20 CFR 404.1567(a) except he is able to
perform occasional postural maneuvers except that he can
never climb ropes, ladders [or] scaffolds. He is unable
to meet the minimum psychiatric demands of competitive
work when abusing alcohol; he cannot interact with
supervisors, co-workers or the general public.
R. 15.

With this RFC assessment, the ALJ determined that

Plaintiff is unable to perform any past relevant work.

R. 16.

Finally, at Step Five, the ALJ determined that considering
Plaintiff’s age, education, work experience, and residual
functional capacity based on all of the impairments, “including
the substance use disorder, there are no jobs that exist in
significant numbers in the national economy that the claimant
can perform.”

Id.

However, the ALJ then addressed the impact

of the substance use disorder.

He found that if Plaintiff

ceased his substance use, his remaining limitations would
nevertheless cause more than a minimal impact on his ability to
perform basic work activities.

R. 17.

“Therefore, [Plaintiff]

would continue to have a severe impairment or combination of
impairments.”

R. 17.

Absent substance use, the ALJ determined

Plaintiff’s RFC would be “to perform medium work as defined in
20 CFR 404.1567(c) except he is limited to occasional postural
maneuvers except that he can never climb ropes, ladders,
scaffolds and is able to perform simple, repetitive tasks

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allowing for occasional interaction with co-workers, supervisors
and the general public.”

R. 17-18.

Remaining unable to perform

past work, R. 20, the ALJ determined Plaintiff would still be
able to perform “a significant number of jobs in the national
economy[.]”

Id.

As such, the ALJ determined “[t]he substance

use disorder is a contributing factor material to the
determination of disability because the claimant would not be
disabled if he stopped the substance use.”

R.21.

Accordingly,

“the claimant has not been disabled within the meaning of the
Social Security Act at any time from the alleged onset date
through the date of this decision.”
IV.

Id.

ANALYSIS
At step two of the familiar five-step process, the ALJ is

required to determine whether the claimant has a medically
determinable impairment that is “severe” or a combination of
impairments that is “severe”.

20 C.F.R. 404.1520(c).

An

impairment or combination of impairments is “severe” within the
meaning of the regulations if it significantly limits an
individual’s ability to perform basic work activities.
Likewise, an impairment or combination of impairments is “not
severe” when medical and other evidence establish only a slight
abnormality or a combination of slight abnormalities that would
have no more than a minimal effect on an individual’s ability to
work.

20 C.F.R. 404.1521; SSR 85-28, 96-3p, 96-4p.
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Here, Plaintiff contends the ALJ erred by failing to
consider his obesity as a severe condition.

In response, the

Commissioner argues that the mere presence of “obesity” is
insufficient – it must be shown that the obesity causes limiting
effects that demonstrate it to be a severe impairment.

SSR 02-

1P, 2002 WL 34686281, at *1. (terminology around obesity may
describe the extent of the obesity, but it does not “correlate
with any specific degree of functional loss.”).

Even if obesity

was severe, Defendant argues, the ALJ’s omission of any
discussion related to it is harmless.
As set forth in SSR 02-1P, which deals with obesity, Level
III BMI (BMI over 40) is termed “extreme” obesity.1
2002 WL 34686281, at *2.

SSR 02-1P,

Nevertheless, the Commissioner is

correct, as
[t]here is no specific level of weight or BMI that
equates with a ‘severe’ or a ‘not severe’ impairment.
Neither do descriptive terms for levels of obesity (e.g.
“severe,” “extreme,” or “morbid” obesity) establish
whether obesity is or is not a ‘severe’ impairment for
disability program purposes.
Rather, we will do an
individualized assessment of the impact of obesity on an
individual’s
functioning
when
deciding
whether
impairment is severe.
Id.

That said, “[o]besity is a risk factor that increases an

individual’s chances of developing impairments in most body
systems.

It commonly leads to, and often complicates, chronic

Plaintiff’s BMI was stated to be 42 in the state agency report.
R. 118.
1

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diseases of the cardiovascular, respiratory, and musculoskeletal
body systems.”

SSR 02-1P, 2002 WL 34686281, at *3.

As the SSR sets forth:, “we will consider obesity in
determining whether:


The individual has a medically determinable impairment. . .
.



The individual’s impairment(s) is severe. . . .



The individual’s impairment(s) meets or equals the
requirements of a listed impairment in the listings. . . .



The individual’s impairment(s) prevents him or her from
doing past relevant work and other work that exists in
significant numbers in the national economy.

However,

these steps apply only in title II and adult title XVI
cases. . . .
Id.
In an appeal arising from a denial of benefits, “remand is
appropriate ‘where relevant, probative and available evidence
was not explicitly weighed in arriving at a decision on the
plaintiff’s claim for disability benefits.’”

See A.B. v.

Colvin, 166 F. Supp. 3d 512, 518 (D.N.J. Feb. 16, 2016) (quoting
Dobromowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979)).
“Indeed, a decision to ‘award 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
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that the claimant is disabled and entitled to benefits.”

Id.

(quoting Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir.
1984)).

The Court finds that the ALJ’s exclusion of obesity

from the severity analysis (and the potential implications that
omission has for the remainder of the analysis) is problematic
in that it prevents the Court from determining that the decision
was not one based on substantial evidence.

Williams v. Comm’r

of Social Sec., 2008 WL 539056, at *2 (D.N.J. Feb. 25, 2008)
(“In this case it is clear that the ALJ has failed to fully
develop the record as to Williams’s obesity and the effect that
it had on her ability to engage in gainful employment during the
twenty months between her first and second applications.”).
There is simply no indication in the decision of the ALJ that
Plaintiff’s obesity was taken into account at Step Two and
beyond.
The Court disagrees with the Commissioner’s position that
such error is harmless.

Although it is certainly true that

where an ALJ’s opinion finds other conditions severe, the
analysis can proceed beyond Step Two, as it did here, it is also
true that “the combined effects of obesity with other
impairments can be greater than the effects of each of the
impairments considered separately.”
34686281, at *1.

SSR 02-1P, 2002 WL

Just because the analysis proceeded past Step

Two, or just because the ALJ’s RFC is equally limiting to the
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state agency physicians, does not inoculate the decision from
needing to consider Plaintiff’s obesity.

An adjudicator should

“consider the effects of obesity not only under the listings but
also when assessing a claim at other steps of the sequential
evaluation process, including when assessing an individual’s
residual functional capacity.”

Id.

The Court cannot conclude

that such consideration was made here.
All of this is not to say that Plaintiff’s weight requires
a finding of severe obesity; it is simply to say that evidence
regarding Plaintiff’s obesity needs to be considered and weighed
in relation to the remainder of the evidence in the record.
Eskridge v. Astrue, 569 F. Supp. 2d 424, 439 (D.N.J. Aug. 7,
2008) (“In the case at bar, the ALJ did not explain if or how
plaintiff’s alleged obesity figured into her determination at
any point of the five step process, nor did she adopt the
recommendations of doctors who were aware of plaintiff’s
obesity; consequently, the court remands to the ALJ for
consideration of whether plaintiff is obese and, if so, how
consideration of this impairment effects the other steps of the
disability determination sequence.”).2

It may well be the case

The Court does note that “[r]emand on the sole ground to
reconsider obesity . . . is only required when it would affect
the outcome of the case.” Eskridge, 569 F. Supp. 2d 424, 439.
However, in this case, given the determination that obesity is
severe by state agency physicians and that it is associated with
resting tachycardia, among other issues, the determination on
2

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that the ALJ will arrive at the same decision after he properly
considers the obesity of Plaintiff.

At this juncture, however,

the ALJ must set forth his consideration of Plaintiff’s obesity.
As such, the Court vacates the decision of the ALJ and remands
for proceedings consistent with the above analysis.3
ACCORDINGLY, it is on this 28th day of February, 2017,
ORDERED that the determination of the Administrative Law
Judge is VACATED and the case is REMANDED for further
proceedings consistent with this Memorandum Opinion; and it is
further

that issue may (or may not) effect the outcome. Diaz v. Comm’r
of Social Sec., 577 F.3d 500, 504 (3d Cir. 2009) (noting, in
regard to Rutherford v. Barnhart, a case in which failure to
consider obesity was not grounds for remand, that “We then
concluded that Rutherford’s claim would fail in any event,
because Rutherford never argued that her obesity impacted her
job performance.”). Here, the record, if only mildly, supports
the notion that Plaintiff’s obesity affects his job performance.
R. 421 (“Your examination was noted for the following
abnormalities that preclude work as a hazardous waste laborer: .
. . (2) Class III obesity with resting tachycardia (fast heart
rate)[.]”). Further, Plaintiff was found to have the severe
impairment of a back disorder. Diaz, 577 F.3d at 504
(“[Plaintiff’s] morbid obesity would seem to have exacerbated
her joint dysfunction as a matter of common sense, if not
medical diagnosis.”). “SSR 02-1P also underscores the interplay
between obesity and joint dysfunction, mobility, and
musculoskeletal function.” Id.
3 The Court does not reverse and award benefits.
“The decision
to direct the district court 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.” Payton
v. Barnhart, 416 F. Supp. 2d 385, 390 (E.D. Pa. 2006) (quoting
Podedworny v. Harris, 745 F.2d 210, 221-222 (3d Cir. 1984)).
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ORDERED that the Clerk of the Court is directed to close
the case file on this matter.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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