ROJAS-VELEZ v. COMMISIONER OF SOCIAL SECURITY

Filing 11

MEMORANDUM OPINION & ORDER vacating the determination of the Administrative Law Judge and the matter is REMANDED for further proceedings consistent with this Memorandum Opinion and Order; ORDERED that the Clerk shall CLOSE the file. Signed by Judge Renee Marie Bumb on 3/13/2017. (dmr)

[Docket No. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

MARIA E. ROJAS-VELEZ,
Plaintiff,

Civil No. 16-1324 (RMB)
MEMORANDUM OPINION & ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the appeal by
Plaintiff Maria E. Rojas-Velez (the “Plaintiff”) of the final
determination of the Commissioner of Social Security (the
“Commissioner”) denying Plaintiff’s application for social
security benefits [Docket No. 1].

For the reasons set forth

below, the Court VACATES the decision of the Administrative Law
Judge (the “ALJ”) and REMANDS for further proceedings consistent
with this Memorandum Opinion and Order.
I.

STANDARD OF REVIEW

A reviewing court must uphold the Commissioner’s factual
findings if they are supported by “substantial evidence,” even
if the court “would have decided the inquiry differently.”
Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Knepp v.

1

Apfel, 204 F.3d 78, 83 (3d Cir. 2000); see also 42 U.S.C.
§§ 405(g), 1383(c)(3).

“‘Substantial evidence’ has been defined

as ‘more than a mere scintilla.

It means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.’”

Dellapolla v. Comm’r of Soc. Sec., 662 F. App’x

158, 160 (3d Cir. 2016) (quoting Smith v. Califano, 637 F.2d
968, 970 (3d Cir. 1981) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971))).

Where the evidence is susceptible to “more

than one rational interpretation, the Commissioner’s conclusion
must be upheld.”

Ahearn v. Comm’r of Soc. Sec., 165 F. App’x

212, 215 (3d Cir. 2006) (citing Monsour Med. Ctr. v. Heckler,
806 F.2d 1185, 1190-91 (3d Cir. 1986)); see also New Jersey Bd.
of Pub. Utilities v. F.E.R.C., 744 F.3d 74, 94 (3d Cir. 2014).
In addition to the “substantial evidence” inquiry, the
reviewing court must also determine whether the ALJ applied the
correct legal standards.

See Mitton v. Comm’r of Soc. Sec.,

--- F. App’x ----, 2016 WL 6933937, at *1 (3d Cir. Nov. 28,
2016); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
Court’s review of legal issues is plenary.

The

Mitton, 2016 WL

6933937, at *1 (citing Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 292 (3d Cir. 2012)); Sykes, 228 F.3d at 262 (citing
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir.
1999)).

2

“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 that:
[A]n individual shall be determined to be under a
disability only if [her] physical or mental impairment
or impairments are of such severity that [she] is not
only unable to do [her] previous work but cannot,
considering [her] 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 exists in the immediate area in which
[she] lives, or whether a specific job vacancy exists
for [her], or whether [she] would be hired if [she]
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).

The Third Circuit has

described the Commissioner’s inquiry at each step of this
analysis, as follows:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § 404.1520(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).

3

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 [her] impairments are “severe,” [she] 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
[her]
past
relevant
work.
20
C.F.R.
§ 404.1520(d).
The claimant bears the burden of
demonstrating an inability to return to [her] past
relevant work.
Adorno v. Shalala, 40 F.3d 43, 46
(3d Cir. 1994).
If the claimant is unable to resume
[her] former occupation, the evaluation moves to the
final step.
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 [her] 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 [she] 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).
Plummer, 186 F.3d at 428.

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II.

FACTUAL AND PROCEDURAL BACKGROUND

The Court recites only the facts that are necessary to its
determination on appeal, which is limited to Plaintiff’s mental
impairments.
A. Medical History
In or around September 2011, Plaintiff began mental health
treatment at Nueva Vida Behavioral Health Center, where she met
regularly with therapist Gregorio Castro.

On September 30,

2011, Mr. Castro completed a Biopsychosocial Assessment
regarding Plaintiff.

According to this assessment, Plaintiff

reported that she left work due to back pain and had difficulty
sleeping.

Mr. Castro noted that Plaintiff presented with

depression and suicidal ideas.
325-26.

Administrative Record (“R.”)

His diagnostic impressions include recurrent major

depressive disorder, anxiety, and a GAF score of 50.

R. 329.

Plaintiff participated in individual therapy sessions with
Mr. Castro from September 2011 through at least January 2014,
often at least once a week.

Mr. Castro’s notes from September

and October 2011 reflect that Plaintiff was depressed and
anxious and that Plaintiff suffered from suicidal ideas and
decreased energy and motivation.

R. 352-58.

Plaintiff also had

difficulty sleeping and was frustrated by her financial and
family situations.

R. 353-55.

Plaintiff continued to report

depression and trouble sleeping in November 2011.

5

R. 347,

350-51.

In December 2011, Mr. Castro noted that Plaintiff was

anxious due to economic problems and that she reported sleeping
poorly and becoming angry easily.

R. 346.

Mr. Castro also

noted that Plaintiff was anxious, had low energy, and that she
missed her family around the holidays.

R. 343-45.

In February 2012, Plaintiff repeatedly reported during her
therapy sessions that she was not sleeping well, had negative
thoughts, and was depressed.

R. 341-42.

felt overwhelmed, anxious, and hopeless.

Plaintiff reportedly
R. 337-40.

In March

2012, Plaintiff continued to feel anxious, depressed,
overwhelmed, and tired.

R. 331-35.

Beginning in March 2012, Plaintiff also began seeing
Dr. Lyda Monte, a psychiatrist at Nueva Vida, on a monthly
basis.

On March 2, 2012, Dr. Monte completed an Adult

Psychiatric Evaluation regarding Plaintiff.

Dr. Monte reported

that Plaintiff suffered from moderate depressed mood, anxiety,
and low energy, and that Plaintiff slept poorly.

She noted that

Plaintiff’s present illness began when her mother died in 2010.
Dr. Monte diagnosed Plaintiff with schizoaffective disorder,
PTSD, asthma, osteoporosis, and arthritis, and assigned
Plaintiff a GAF score of 50.

R. 317-19.

At the following

session, in April 2012, Dr. Monte noted “sleep good/+ voices”
and noted that Plaintiff’s mood was depressed.

6

R. 447.

In July and August 2012, Plaintiff’s therapist, Mr. Castro,
noted that Plaintiff was depressed, overwhelmed, and frequently
had low energy.

R. 437-43.

At times, Plaintiff cried during

their sessions.

R. 436, 439.

Mr. Castro also noted that

Plaintiff had poor concentration.

R. 435.

Mr. Castro’s progress notes from November and December 2012
indicate that Plaintiff continued to be anxious, depressed, and
lonely.

R. 430, 433-34.

Mr. Castro also noted that Plaintiff

did not pay attention to details and that she often misplaced
items.

R. 430-32.

He reported that Plaintiff had difficulty

remembering past events and that she was disorganized.

R. 429.

In January 2013, Mr. Castro noted again that Plaintiff had
difficulty concentrating, remembering and making decisions, and
that Plaintiff was anxious and worried.

R. 425-26.

continued to feel depressed, tired, and overwhelmed.

Plaintiff
R. 422-24.

In February 2013, Mr. Castro noted that Plaintiff was stressed
because of her family.

R. 419-20.

Dr. Monte also noted

increased depression in February 2013.

R. 445.

In March 2013,

Mr. Castro once again reported that Plaintiff had difficulty
remembering recent information and was highly distracted and
impulsive.

R. 414.

Plaintiff also reported feeling anxious,

irritable, depressed, and tired.

R. 413, 418.

In both March

and April 2013, Dr. Monte documented decreased depression and
good sleep.

R. 444-45.

In the following months, Mr. Castro

7

noted that Plaintiff continued to display low energy, lack of
concentration, and anxiety.
isolated and disappointed.

Plaintiff also reported feeling
R. 407-11.

In May 2013, Dr. Monte

once again noted decreased depression and better sleep.

R. 444.

On June 13, 2013, Dr. Monte completed a Mental Residual
Functional Capacity Form on Plaintiff’s behalf.

Dr. Monte

reported that Plaintiff’s impairments preclude performance of
the following tasks for 5% of an 8 hour workday: understanding,
remembering, and carrying out very short and simple
instructions, sustaining an ordinary routine without special
supervision, making simple work-related decisions, accepting
instructions and responding appropriately to criticism from
supervisors, getting along with coworkers or peers without
distracting them or exhibiting behavioral extremes, and
responding appropriately to changes in the work setting.
R. 404-06.
In June and July 2013, Mr. Castro’s progress notes indicate
that Plaintiff felt overwhelmed, depressed, anxious, and tired.
She continued to exhibit decreased energy levels and had
difficulty concentrating.

R. 567-71.

In August 2013, during

her therapy sessions, Plaintiff reported feeling anxious and
unfocused and having difficulty remembering things, paying
attention, and following directions.

R. 563-66.

Mr. Castro’s

progress notes from September 2013 reflect that Plaintiff

8

suffered from anxiety and that Plaintiff felt overwhelmed and
upset.

R. 558, 562.

Mr. Castro continued to report that

Plaintiff was angry, stressed, and depressed in the following
months.

R. 557-58.
B. Function Reports

Plaintiff and her daughter also completed Function Reports
regarding Plaintiff’s activities of daily living.

In her

February 24, 2012 Function Report, Plaintiff reported that she
had difficulty getting up and that she required her daughter’s
assistance with most daily activities due to her severe pain.
R. 231-32.

She also noted that she often does not remember to

take her medications without assistance and that she does not
follow written or spoken instructions well.

R. 233-36.

Plaintiff’s adult daughter completed a Third Party Function
Report on February 24, 2012, in which she explained that she
must assist Plaintiff with most activities of daily life due to
Plaintiff’s significant pain.

R. 239.

She also noted that

Plaintiff frequently forgets to take her medications and is
“very forgetful”.

R. 241-42.

Plaintiff’s daughter reported

that Plaintiff does not follow spoken instructions or changes in
routine “well at all.”

R. 244-45.

On July 28, 2012,

Plaintiff’s daughter completed a second Third Party Function
Report, in which she noted that Plaintiff does not have any

9

problems with personal care, but requires assistance with and
reminders to take her medications.

R. 255-62.

C. Consultative Examinations
In 2012 and 2014, Plaintiff underwent several consultative
examinations in connection with her applications for social
security benefits.

On May 14, 2012, Dr. Robert Waters conducted

a mental status examination of Plaintiff.

Dr. Waters noted that

Plaintiff reported depression and anxiety and that Plaintiff
needed instructions repeated often, but could perform 3-step
directions.

Dr. Waters reported that Plaintiff displayed some

anxiety during the examination.

R. 362-64.

His diagnostic

impressions were major depressive disorder, recurrent, severe
with psychotic features, chronic/severe lower and upper back
pain, two herniated discs, asthma, and arthritis.

R. 364.

Finally, Dr. Waters opined that Plaintiff’s “severe limitations
are due to her physical status and mental status.

The

combination of her physical/medical conditions and her
depression and anxiety symptomatology, present her most
significant obstacles to adapting to a typical work
environment.”

R. 364.

Thereafter, on May 24, 2012, Dr. Ronald

Bagner physically examined Plaintiff and noted that Plaintiff
reported depression, as well as pain in the cervical area, back,
arms, and legs.

R. 366-67.

10

On January 9, 2014, Dr. Young B. Lee conducted a mental
status examination of Plaintiff.

Dr. Lee noted that Plaintiff’s

mood was moderately depressed and that her response time was
extremely slow.

In assessing the severity of Plaintiff’s mental

impairments, Dr. Lee reported: “Psychiatric examination showed
signs of mild degree of affective disorder.
disorder noted.

No thinking

She is able to follow directions.

to maintain meaningful conversations.
relationship is limited.
be mild-to-moderate.”

She is able

Her interpersonal

Her psychiatric impairment appears to

R. 577.

Dr. Lee found that Plaintiff

suffered from depressive disorder and “probably low intellectual
functioning.”

R. 577.

On June 4, 2014, Plaintiff was psychologically evaluated by
Dr. Kenneth Goldberg, who administered a WAIS-IV examination.
The examination revealed that Plaintiff’s full-scale IQ is 61,
which is below the bottom first percentile rank.

R. 584.

Dr. Goldberg opined that Plaintiff “is a woman who appears to
have suffered both mental and physical pain over the course of
her life.

She was referred for an IQ test.

range of mild mental disability.”

She tests in the

R. 585.

D. Application for Social Security Benefits
On or about February 16, 2012, Plaintiff filed applications
for social security disability benefits and supplemental
security income, alleging an onset date of June 1, 2010.

11

R. 194-207.

The claims were denied initially on July 2, 2012,

and upon reconsideration on November 13, 2012.
139-44.

R. 125-30,

Thereafter, on December 13, 2012, Plaintiff requested a

hearing before an ALJ.

R. 145-49.

On December 17, 2013, ALJ

Mark G. Barrett held a hearing, at which Plaintiff appeared with
her attorney, Alan Polonsky, Esq., and a Spanish-language
interpreter, and provided testimony.
testimony was provided.

R. 37-62.

No vocational expert

The ALJ issued an

unfavorable decision on September 23, 2014.

R. 19-32.

On

February 12, 2016, the Appeals Council denied Plaintiff’s
request for review of the ALJ’s decision, making the ALJ’s
decision the final determination of the Commissioner.
III.

R. 1-7.

THE ALJ’S DETERMINATION

On September 23, 2014, the ALJ determined that Plaintiff
was not disabled under the Social Security Act from the alleged
onset date through the date of the ALJ’s decision.

R. 19-32.

At Step One, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity since her alleged onset
date of June 1, 2010.

R. 21.

At Step Two, the ALJ determined

that Plaintiff suffered from the following severe impairments:
arthralgia, major depressive disorder, anxiety disorder, and
intellectual disability.

R. 21.

The ALJ further found that

Plaintiff’s asthma and chronic sinusitis were not severe
impairments.

R. 22.

At Step Three, the ALJ determined that

12

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.

In

making this determination, the ALJ considered Listings 1.02,
1.04, 12.04, 12.05, and 12.06.

R. 22-24.

Before turning to Step Four, the ALJ assessed Plaintiff’s
Residual Functional Capacity (“RFC”) and determined that:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b), except she can never
climb ladders, ropes or scaffolds; she can frequently
balance; she can occasionally climb stairs, balance,
stoop, kneel, crouch, or crawl; she must avoid
concentrated exposure to hazards, such as unprotected
heights and moving mechanical parts; and she is limited
to unskilled work, involving simple, repetitive tasks
and one to two step instructions.
R. 24.

Then, at Step Four, the ALJ determined that Plaintiff

had no past relevant work.

R. 31.

Finally, at Step Five, the ALJ concluded that Plaintiff was
not disabled because there are jobs in the national economy that
Plaintiff can perform.

R. 31-32.

The ALJ relied upon Medical

Vocational Rule 202.20, 20 CFR Part 404, Subpart P, Appendix 2,
as a framework.

The ALJ reasoned as follows:

When the claimant cannot perform substantially all of
the exertional demands of work at a given level of
exertion and/or has nonexertional limitations, the
medical-vocational rules are used as a framework for
decisionmaking unless there is a rule that directs a
conclusion of “disabled” without considering the
additional exertional and/or nonexertional limitations

13

(SSRs 83-12 and 83-14).
If the claimant has solely
nonexertional limitations, section 204.00 in the
Medical-Vocational Guidelines provides a framework for
decisionmaking (SSR 85-15).
If the claimant had the residual functional capacity to
perform the full range of light work, considering the
claimant’s age, education, and work experience, a
finding of “not disabled” would be directed by
Medical-Vocational Rule 202.20. However, the additional
limitations have little or no effect on the occupational
base of unskilled light work.
Social Security
Regulations state that limitations on the ability to
climb ladders, ropes or scaffolds, crawl, stoop, crouch,
kneel, and be exposed to unprotected heights and moving
machinery do not significantly erode the occupational
base for light work (SSR’s 85-15, 83-14).
Additionally, the Medical-Vocational Guidelines state
that the functional capacity to perform a full range of
light work includes the functional capacity to perform
sedentary as well as light work. Approximately 1,600
separate sedentary and light unskilled occupations can
be identified in eight broad occupational categories,
each occupation representing numerous jobs in the
national economy. These jobs can be performed after a
short demonstration or within 30 days, and do not require
special skills or experience. The functional capacity
to perform a wide or full range of light work represents
substantial work capability compatible with making a
work adjustment to substantial numbers of unskilled jobs
and, thus, generally provides sufficient occupational
mobility even for severely impaired individuals who are
not of advanced age and have sufficient educational
competences for unskilled work.
The undersigned finds that claimant’s limitation for
unskilled work has no effect on claimant’s occupational
base, as the Medical-Vocational Guidelines represent
solely unskilled jobs.
R. 31-32.

The ALJ did not consider any vocational expert

testimony or other similar evidence at this step.

14

IV.

ANALYSIS

On appeal, Plaintiff raises three issues.

First, Plaintiff

contends that the ALJ erred at Step Three by failing to properly
consider Listing 12.05C and improperly concluding that there was
no evidence that Plaintiff’s mental impairment developed prior
to age 22.

Next, Plaintiff argues that the ALJ’s RFC

determination did not properly account for Dr. Goldberg’s
opinions, including the IQ test results.

Finally, Plaintiff

claims that the ALJ’s reliance on the Medical-Vocational
Guidelines without vocational testimony or other similar
evidence to find Plaintiff not disabled at Step Five was
improper and not supported by substantial evidence.

The Court

addresses each argument in sequence.
A. Step Three: Listing Level 12.05C
At Step Three of the sequential analysis, the ALJ must
determine whether the claimant’s impairment or combination of
impairments is of a severity to meet or medically equal the
criteria of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

“For a claimant to show [her] impairment

matches a listing, it must meet all of the specified medical
criteria.

An impairment that manifests only some of those

criteria, no matter how severely, does not qualify.”

Jones v.

Barnhart, 364 F.3d 501, 504 (3d Cir. 2004) (quoting Sullivan v.
Zebley, 493 U.S. 521, 530 (1990)) (emphasis in original).

15

If a

claimant’s impairments meet or medically equal one of the listed
impairments, the ALJ must find the claimant to be disabled.

On

the other hand, if the claimant’s impairments do not meet or
medically equal a listing level impairment, the analysis
proceeds to the RFC determination and then Step Four.
Plaintiff argues that the ALJ’s determination at Step Three
is not supported by substantial evidence because the ALJ did not
adequately evaluate Listing 12.05C.

Specifically, Plaintiff

claims that the ALJ “summarily concluded, against good reason
and Social Security regulations, that there was no evidence of
an intellectual disability with an onset prior to the
Plaintiff’s attainment of age twenty-two (22),” as required to
meet Listing 12.05C.

Pl. Br. at 16 [Docket No. 8].

Listing 12.05C provides as follows:
Intellectual disability: Intellectual disability refers
to
significantly
subaverage
general
intellectual
functioning with deficits in adaptive functioning
initially manifested during the developmental period;
i.e., the evidence demonstrates or supports onset of the
impairment before age 22. The required level of severity
for this disorder is met when the requirements in A, B,
C, or D are satisfied. . . . C. A valid verbal,
performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an
additional and significant work-related limitation of
function . . . .
20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ found, in relevant part, that Plaintiff did not
satisfy the criteria of Listing 12.05 because “Claimant was

16

42 years old on the alleged onset date.

There is no evidence of

an intellectual disability with an onset prior to her attainment
of age 22.”

R. 24.

Plaintiff does not genuinely dispute that

there is no evidence that demonstrates or supports the onset of
her impairment before age 22.

Instead, Plaintiff contends that

the ALJ should have assumed that Plaintiff’s IQ has been
constant since age 16, pursuant “Social Security policy” set
forth in Listing 112.00D(10).

Pl. Br. at 16-17.

This section,

however, is irrelevant to Plaintiff’s case as it addresses
mental disorders and intellectual disability in children under
age 18.

See 20 C.F.R. Part 404, Subpart P, Appendix 1,

§ 112.00D(10).1
The Third Circuit has rejected a rebuttable presumption
that a current mental impairment existed before age 22.

Indeed,

the Third Circuit has held that the claimant bears the burden of

1

Listing 112.00A states: “Introduction: The structure of
the mental disorders listings for children under age 18
parallels the structure for the mental disorders listing for
adults but is modified to reflect the presentation of mental
disorders in children. The listing for mental disorders in
children are arranged in 11 diagnostic categories [including]
intellectual disability (112.05).” Listing 112.00D(10), in
turn, provides: “IQ test results must also be sufficiently
current for accurate assessment under [Listing] 112.05.
Generally, the results of IQ tests tend to stabilize by the age
of 16. Therefore, IQ tests results obtained at age 16 or older
should be viewed as a valid indication of the child’s current
status, provided they are compatible with the child’s current
behavior.” 20 C.F.R. Part 404, Subpart P, Appendix 1 (emphasis
added).
17

establishing the existence of an intellectual disability during
the developmental period.

Cortes v. Comm’r of Soc. Sec., 255

F. App’x 646, 652 (3d Cir. 2007) (citing Williams v. Sullivan,
970 F.2d 1178, 1185 (3d Cir. 1992)); Markle v. Barnhart,
324 F.3d 182, 188-89 (3d Cir. 2003).

To satisfy this burden,

“it is unnecessary to produce intellectual testing (or other
contemporary evidence) prior to age [22].

The claimant need

only produce evidence that demonstrates or supports onset of the
impairment before age 22.”

Cortes, 255 F. App’x at 652-53.

Plaintiff has pointed to no evidence in the record which
demonstrates or supports that her intellectual impairments
presented prior to age 22.

This Court has scoured the

administrative record and finds no such evidence from which the
ALJ could have determined that Plaintiff carried her burden of
establishing onset of her intellectual disability before age 22.
In light of the record, the Court finds that the ALJ’s
determination at Step Three that Plaintiff does not meet or
medically equal Listing 12.05C because “[t]here is no evidence
of an intellectual disability with an onset prior to her
attainment of age 22” is supported by substantial evidence and
shall not be disturbed.
B. Residual Functional Capacity
Plaintiff also contends that the ALJ’s RFC determination is
not supported by substantial evidence because the ALJ “never

18

gave proper consideration to the results of the IQ test insofar
as he never discussed the results [] of this test or how they
relate to the claimant’s Residual Functional Capacity.”

Pl. Br.

at 19.
The ALJ noted that Dr. Goldberg administered an IQ test on
Plaintiff in June 2014 and summarized Dr. Goldberg’s findings,
in relevant part, as follows:
Cognitive testing revealed a verbal comprehension score
of 61, working memory of 66, general ability of 63, and
full scale IQ of 61, all in the extremely low range of
cognitive functioning. Dr. Goldberg found that claimant
tested in the range of mild mental disability.
He
diagnosed claimant with mental disability and depressive
disorder, NOS.
R. 29.

Additionally, the ALJ noted that “[a]lthough claimant

had cognitive testing in the extremely low range of functioning,
Dr. Goldberg found only a mild mental disability.”

Plaintiff

argues that, in his RFC determination, the ALJ did not properly
evaluate the IQ scores found by Dr. Goldberg.

Plaintiff also

contends that the ALJ improperly substituted his lay
interpretation of “mild” in the context of Dr. Goldberg’s
finding that Plaintiff suffered from “mild mental disability”.
Plaintiff explains that “‘[m]ild mental disability’ does not
mean mild in terms of functioning contrary to the Administrative
Law Judge’s law beliefs,” but rather, according to the DSM-IV,
indicates significant mental impairment.

19

Pl. Br. at 19-20.

“[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 are rational.”

Gober v. Matthews,

574 F.2d 772, 776 (3d Cir. 1978) (quoting Arnold v. Sec’y of
Health, Ed. & Welfare, 567 F.2d 258, 259 (4th Cir. 1977))
(internal quotations omitted); see also Martin v. Comm’r of Soc.
Sec., 547 F. App’x 153, 158 (3d Cir. 2013); Guerrero v. Comm’r
of Soc. Sec., 2006 WL 1722356, at *3 (D.N.J. June 19, 2006)
(“The ALJ’s responsibility is to analyze all the evidence and to
provide adequate explanations when disregarding portions of
it.”), aff’d 249 F. App’x 289 (3d Cir. 2007).

The Court finds

that the ALJ did not explain what, if any, weight he gave to
Dr. Goldberg’s opinions and findings, especially his finding
that Plaintiff had a full-scale IQ score of 61, which was in the
bottom 0.5 percentile of the population.

R. 584.

As a result,

it is unclear to this Court whether the non-exertional
limitations in the RFC determination were intended to account
for Dr. Goldberg’s findings or whether the ALJ overlooked those
findings in developing the RFC.
Accordingly, remand is necessary for the ALJ to adequately
explain the weight given to Dr. Goldberg’s opinions and to

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incorporate those opinions, as the ALJ deems appropriate, into
the RFC determination.

On remand, the ALJ should rely upon

competent medical evidence in assessing the severity and
implications of mild mental disability, rather his lay
interpretation of the word “mild” in this context.

See Morales

v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000) (“The principle that
an ALJ should not substitute his lay opinion for the medical
opinion of experts is especially profound in a case involving a
mental disability.”).
C. Step Five: Reliance upon Medical-Vocational
Guidelines without Vocational Expert Testimony or
Other Similar Evidence
Finally, Plaintiff argues that the ALJ erred at Step Five
in relying solely upon the Medical-Vocational Guidelines as a
framework to determine non-disability without vocational expert
testimony or notice of his intent to rely on a relevant Social
Security Ruling (“SSR”).

Generally, the claimant has the burden

of establishing disability at each step of the sequential
process; however, the “Commissioner bears the burden of proof
for the last step.”

Sykes, 228 F.3d at 263 (citing Bowen v.

Yuckert, 482 U.S. 137, 146 n. 5 (1987)).

At the fifth step, the

ALJ must demonstrate that 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 that jobs exist in

significant numbers in the national economy which the claimant

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can perform, consistent with her medical impairments, age,
education, past work experience, and RFC.

Id.

To carry the burden at Step Five, the ALJ may utilize the
Medical-Vocational Guidelines set forth in 20 C.F.R. Part 404,
Subpart P, Appendix 2.

As the Third Circuit has explained,

“[t]he grids [in the Medical-Vocational Guidelines] consist of a
matrix of four factors--physical ability, age, education, and
work experience--and set forth rules that identify whether jobs
requiring specific combinations of these factors exist in
significant numbers in the national economy.”
at 263.

Sykes, 228 F.3d

“Where a claimant’s qualifications correspond to the

job requirements identified by a rule, the guideline direct a
conclusion that work exists that the claimant can perform.”

Id.

The Third Circuit has also held, however, that where a
claimant has both exertional and non-exertional impairments, the
ALJ cannot rely upon the grids in the Medical-Vocational
Guidelines alone to determine non-disability.

Id. at 273.

The

ALJ must also obtain “the testimony of a vocational expert or
other similar evidence, such as a learned treatise,” in order to
carry his burden at the fifth step.

Id.

Alternatively, the ALJ

must provide the claimant with notice that he intends to take
official notice of the fact that the claimant’s non-exertional
impairments do not erode the occupational base, and the claimant
must have an opportunity to oppose that conclusion.

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Id.

This principle is also embodied in Social Security
Acquiescence Ruling (“AR”) 01-1(3), which states that:
In making a disability determination or decision at
step 5 of the sequential evaluation process . . . , we
cannot use the grid rules exclusively as a framework for
decisionmaking when an individual has a nonexertional
limitation(s).
Before denying disability benefits at
step five when a claimant has a nonexertional
limitation(s), we must:
(1) take or produce vocational evidence such as from a
vocational expert, the DOT or other similar evidence
(such as a learned treatise); or
(2) provide notice that we intend to take or are taking
administrative notice of the fact that the particular
nonexertional limitation(s) does not significantly erode
the occupational job base, and allow the claimant the
opportunity to respond before we deny the claim.
This Ruling does not apply to claims where we rely on an
SSR that includes a statement explaining how the
particular
nonexertional
limitation(s)
under
consideration in the claim being adjudicated affects a
claimant’s occupational job base. When we rely on such
an SSR to support our finding that jobs exist in the
national economy that the claimant can do, we will
include a citation to the SSR in our determination or
decision.
In Allen v. Barnhart, the Third Circuit clarified that, if
the ALJ “wishes to rely on an SSR as a replacement for a
vocational expert, it must be crystal-clear that the SSR is
probative as to the way in which the nonexertional limitations
impact the ability to work, and thus, the occupational base.”
417 F.3d 396, 407 (3d Cir. 2005) (emphasis added).

The Third

Circuit further explained that “the claimant should have the
opportunity to consider whether it wishes to attempt to undercut

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the Commissioner’s proffer [of an SSR] by calling claimant’s own
expert.

Obviously, this requires notice in advance of the

hearing.”

Id. at 407-08.

Where advance notice is not given,

“close scrutiny to the ALJ’s reliance on a Ruling as satisfying
the Commissioner’s burden at Step 5” is required.

Id. at 408.

Here, the ALJ’s RFC assessment limited Plaintiff to
performing light work, except that she can never climb ladders,
ropes or scaffolds; she can frequently balance; she can
occasionally climb stairs, balance, stoop, kneel, crouch, or
crawl; she must avoid concentrated exposure to hazards; and she
is limited to unskilled work involving simple, repetitive tasks
and one to two step instructions.

R. 24.

At Step Five, the ALJ reasoned as follows:
If the claimant had the residual functional capacity to
perform the full range of light work, considering the
claimant’s age, education, and work experience, a
finding of “not disabled” would be directed by
Medical-Vocational Rule 202.20. However, the additional
limitations have little or no effect on the occupational
base of unskilled light work.
Social Security
Regulations state that limitations on the ability to
climb ladders, ropes or scaffolds, crawl, stoop, crouch,
kneel, and be exposed to unprotected heights and moving
machinery do not significantly erode the occupational
base for light work (SSR’s 85-15 and SSR 83-14).
Additionally, the Medical-Vocational Guidelines state
that the functional capacity to perform a full range of
light work includes the functional capacity to perform
sedentary as well as light work. Approximately 1,600
separate sedentary and light unskilled occupations can
be identified in eight broad occupational categories,
each occupation representing numerous jobs in the
national economy. These jobs can be performed after a

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short demonstration or within 30 days, and do not require
special skills or experience. The functional capacity
to perform a wide or full range of light work represents
substantial work capability compatible with making a
work adjustment to substantial numbers of unskilled jobs
and, thus, generally provides sufficient occupational
mobility even for severely impaired individuals who are
not of advanced age and have sufficient educational
competences for unskilled work.
R. 31-32.
Plaintiff contends that her restriction to unskilled work
involving simple, repetitive tasks and one to two step
instructions is a non-exertional limitation that may
significantly erode the base of light unskilled work.

In

Plaintiff’s view, this required the ALJ to obtain vocational
expert testimony or other similar evidence or to give her notice
of his intention to rely upon an SSR that states that such
non-exertional limitations do not erode the occupational base.
Relying on SSR 85-15, the Commissioner argues that the
grids take administrative notice of unskilled jobs in the
economy and that Plaintiff’s non-exertional limitations, i.e.
her limitation to unskilled work involving simple, repetitive
tasks and one to two step instructions, are encompassed in the
limitation to unskilled work.

SSR 85-15 states that “[t]he

basic mental demands of competitive, remunerative, unskilled
work include the abilities (on a sustained basis) to understand,
carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work

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situations; and to deal with changes in a routine work setting.
A substantial loss of ability to meet any of these basic
work-related activities would severely limit the potential
occupational base.”
It is not for this Court, however, to determine whether
Plaintiff’s non-exertional limitations to work involving simple,
repetitive tasks and one to two step instructions are or are not
coextensive with unskilled work, as defined in SSR 85-15.
Rather, this determination should be made by the ALJ, either
with the assistance of vocational expert testimony or similar
evidence or by proffering an SSR in advance to Plaintiff.
Allen, 417 F.3d at 407-08.

In his decision, the ALJ relied upon

SSR 85-15 for the proposition that Plaintiff’s limitations with
regard to climbing, crawling, stooping, crouching, kneeling, and
being exposed to heights and machinery did not significantly
erode the occupational base for unskilled light work.

R. 31.

The ALJ, however, did not rely upon SSR 85-15 in his decision to
determine that Plaintiff’s restriction to work involving simple,
repetitive tasks and one to two step instructions did not erode
the base of unskilled light work in the national economy.

In

fact, there is no discussion whatsoever of whether or how
Plaintiff’s restrictions to work involving simple, repetitive
tasks and one to two step instructions impacted the occupational

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base for light unskilled work, let alone how SSR 85-15 addresses
those non-exertional limitations.
This falls short of the Third Circuit’s requirement that
the ALJ make “crystal-clear that the SSR is probative as to the
way in which the nonexertional limitations impact the ability to
work, and thus, the occupational base.”
at 407.

See Allen, 417 F.3d

The ALJ should have obtained vocational expert

testimony or other similar evidence, or given Plaintiff notice
in advance of the hearing that he intended to rely upon
SSR 85-15.

See, e.g., Meyler v. Comm’r of Soc. Sec.,

238 F. App’x 884, 890 (3d Cir. 2007) (remanding, after closely
scrutinizing ALJ’s reliance on SSR at Step Five, for further
elaboration at Step Five where “the ALJ relied upon SSR 85-15
and SSR 83-10 without calling a vocational expert, and without
providing advance notice to [plaintiff] so she could call her
own vocational expert”); Sykes, 228 F.3d at 273; Allen, 417 F.3d
at 407-08; Kuznetsov v. Astrue, 2012 WL 11028, at *8 (W.D. Pa.
Jan. 3, 2012) (remanding for reconsideration of Step Five
determination and finding that “ALJ’s generalized citation to
SSR 85-15 will not suffice”).
For this reason, the Court finds that the ALJ’s
determination at Step Five that there are jobs that exist in
significant numbers in the national economy that Plaintiff can
perform, relying solely on Medical-Vocational Rule 202.20, is

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not supported by substantial evidence.

Remand is, therefore,

required for the ALJ to properly evaluate whether jobs exist in
the national economy that Plaintiff would be capable of
performing, given all of her exertional and non-exertional
limitations, as set forth in her RFC.

“This can be accomplished

by noting how SSR 85-15 is relevant and controlling--if that is
indeed the case--or by obtaining the individualized assessment
that SSR 85-15 seems to prefer by way of a vocational expert.”
Allen, 417 F.3d at 407.

On remand, if the ALJ chooses to rely

upon an SSR once again, advance notice should be given to
Plaintiff.

See id. at 407-08 (“urg[ing] that, as a matter of

fairness, alerting a claimant to the relevant rule in advance
will always be appropriate.”).
ACCORDINGLY, FOR THE REASONS SET FORTH ABOVE, IT IS HEREBY,
on this 13th day of March 2017,
ORDERED that the determination of the Administrative Law
Judge is VACATED, and the matter is REMANDED for further
proceedings consistent with this Memorandum Opinion and Order;
and it is further
ORDERED that the Clerk of the Court shall CLOSE the file in
the above-captioned matter.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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