GROSS v. COMMISSIONER OF SOCIAL SECURITY

Filing 23

MEMORANDUM, OPINION, ORDER Vacating the decision of the Administrative Law Judge and Remanding case for further proceedings, etc. Signed by Judge Renee Marie Bumb on 12/20/2018. (rss, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

KATHLEEN GROSS,
Civil No. 17-5413 (RMB)

Plaintiff,

MEMORANDUM OPINION & ORDER

v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

BUMB, United States District Judge:
This matter comes before the Court upon an appeal by
Plaintiff Kathleen Gross from a denial of social security
disability benefits on May 12, 2016, which was upheld by the
Appeals Council on June 27, 2017.

Plaintiff sets forth various

arguments as to why the denial was erroneous.

The Acting

Commissioner of Social Security (the “Commissioner”) argues that
the final decision was correct and should be upheld.
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
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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).
scintilla.

“Substantial evidence” means “‘more than a mere
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)).
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
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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 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,” 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,
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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).

II.

FACTUAL BACKGROUND
The Court recites the facts herein that are set forth by

Plaintiff in her moving brief which facts and are not contested
by the Defendant Commissioner.

The Plaintiff was born on

February 26, 1969, and was 42 years old at her alleged onset
date. (Tr. 155).1

She has a high school education with past work

experience as a pharmaceutical lab assistant from 1996 to
September 2011. (Tr. 318). Plaintiff was insured for the purpose
of DIB benefits only through December 31, 2016.

(Tr. 23, 313).

In February 2007, neurologist Dr. Mandel examined Ms. Gross
for ongoing neck, low back, and foot pain and hand numbness; she
was known to have a history of lumbar radiculopathy and

1

“Tr.” Refers to the record docketed at Docket Entry No. 8.
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degenerative changes of the cervical spine. (Tr. 577); see also
(Tr. 561-63, 858-70, 879-80). EMG and nerve conduction studies
were performed in both upper extremities, indicating “bilateral
carpal tunnel syndrome [and] evidence of chronic C5-6
radiculopathy[.]” (Tr. 578-79). Updated studies of the lower
extremities were also performed, with “evidence of acute L5
radiculopathy[.]” (Tr. 578-79). MRIs confirmed disc protrusions at
C4-5 and C5-6, with mild disc bulging at L5-S1. (Tr. 580-82).
Psychiatrist Dr. Kothari provided treatment from May
2007 through August 2, 2011, during which Ms. Gross was prescribed
Klonopin for anxiety but declined treatment with antidepressants;
historical notes indicate a diagnosis of Major Depression,
Recurrent, Moderate and Generalized Anxiety Disorder, with
delusions of parasites and trials of Cymbalta and Vistaril. (Tr.
659-88). In May and August 2011, Ms. Gross reported having
problems at work with her supervisor. (Tr. 659, 662). At her last
treatment visit, she continued on Klonopin as needed for anxiety,
and was noted to have an anxious to normal affect. (Tr. 659).
Plaintiff applied for SSDI and SSI, protectively on June 10,
2013, alleging disability as of September 21, 2011, due to
arthropathy, fibromyalgia, depression and anxiety, and other
conditions. (Tr. 153, 155, 286-99, 313). After her application was
denied initially and upon reconsideration by the State agency, she
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requested a hearing. (Tr. 153-252). A hearing was held before
Administrative Law Judge Karen Shelton (“ALJ”) on February 17,
2016, at which Ms. Gross appeared with counsel and vocational
witness William Slaven, III, testified at the Commissioner’s
request. (Tr. 62-116, 274). On May 12, 2016, the ALJ issued an
Unfavorable Decision finding Ms. Gross not disabled. (Tr. 21-31).
The ALJ found that Ms. Gross’ earnings of $132 in 2012 were not
substantial gainful activity. (Tr. 24).
The ALJ then found that despite severe,2 non-listing level
impairments of “dermatitis, dysfunction of major joints, lumbar
degenerative disc disease, spine disorders, fibromyalgia,
irritable bowel disease, affective disorder, anxiety disorder, and
somatoform disorder” (Tr. 24, 29-33) that Ms. Gross retained the
residual functional capacity to perform “sedentary work as defined
in 20 CFR 404.1567(a)[]” and:
can occasionally climb ramps and stairs, never climb
ladders, ropes or scaffolds, she can perform occasional
balancing, stooping, kneeling, crouching and crawling,
frequent handling and fingering, she can understand,
remember and carry out simple, routine and receptive
[sic] tasks, in a work environment free of fast paced
production requirements, involving

The ALJ found that Ms. Gross’ other impairments of
gastroesophageal reflux disease (“GERD”), gynecological
impairments, headaches/temporomandibular pain (“TMJ”), carpal
tunnel syndrome, floating cysts in hands, hyperlipidemia,
hyperthyroidism, pituitary microadenoma, mastodynia, acute
bronchitis, sinusitis, pharyngitis, left breast cyst, dysuria, and
abdominal pain” were non-severe. (Tr. 24-29).
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only simple work related decisions with few, if any,
work place changes. She can work for 2 hours before
needing a break, can have occasional contact with
supervisors, and work with co-workers in proximity but
not on joint or shared tasks, working primarily with
things rather than people and occasional contact with
the public, which is brief and superficial in nature.
(Tr. 34). The ALJ found that Ms. Gross’ allegations of symptoms
and limitations were “not entirely consistent with the medical
evidence and other evidence in the record for the reasons
explained in this decision.” (Tr. 35). The ALJ further found Ms.
Gross was not able to return to her past relevant work. (Tr. 53).
However, the ALJ found that Ms. Gross could perform a significant
number of other sedentary jobs as an assembler – optical goods
(DOT 713.687-018), addressing clerk (DOT 209.587-010 but as
described by Mr. Slaven), and cutter (DOT 249.587-014). (Tr. 54).
Ms. Gross requested review of the ALJ’s decision with the Appeals
Council,3 which was denied on June 22, 2017. (Tr. 1-7, 391-92).
Accordingly, the ALJ’s decision became the final decision of the
Commissioner.
III.

ALJ’S DETERMINATION
Relevant to the issues presented on appeal, and as described

above, the ALJ found at step four that Plaintiff retained the
residual functional capacity to perform “sedentary work as defined
in 20 CFR 404.1567(a).”
[R.P., p. 18]
IV.

ANALYSIS
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Plaintiff first argues that despite the ALJ finding that her
affective and anxiety disorders were severe impairments, she
failed to set forth how she weighed the opinion of Dr. Mintzer, a
licensed psychologist.

Dr. Mintzer opined that Ms. Gross’

impairments were “expected to last for the next 12 months,” that
her “limitations are caused by a combination of physical health
problems and psychological problems;” that overall her
“limitations are moderate to severe in degree,” and her “prognosis
appears to be guarded.”

(Tr. 692 (emphasis added))

Plaintiff

contends that Dr. Mintzer’s opinion was not reconciled with the
ALJ’s residual functional capacity allowing for the performance of
“simple, routine and receptive tasks” with occasional tasks with
others.

(Tr. 34)

The Commissioner responds that the ALJ took

note of Dr. Mintzer’s findings in her decision, and even noted his
GAF score assessment of 55.

The Commissioner also contends that

Dr. Mintzer did not offer an “opinion” about Plaintiff’s ability
to work.
Plaintiff replies that the Commissioner appears to be giving
a post hoc rationale for the ALJ’s decision.

The Court agrees.

There is nothing in the ALJ’s decision to determine how the ALJ
weighed Dr. Mintzer’s opinion.

The psychologist found that

Plaintiff had a GAF score of 55 and even with such score,
Plaintiff’s limitations are moderate to severe with a guarded
prognosis.

Moreover, such impairments would be expected to last
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for a year.

Yet, the ALJ offered no explanation of how she

afforded “great weight” to the GAF score of 55 “which is
consistent with [her] conclusions reflecting no more than moderate
limitations.”

(Tr. 53)

In other words, on what basis did she

reject Dr. Mintzer’s contrary opinion that Plaintiff had a GAF
score of 55 with “moderate to severe” limitations?
Nothing in the ALJ’s decision suggests that the ALJ
considered Dr. Mintzer’s contrary finding. If the ALJ did consider
such evidence and rejected it, she must say so and articulate a
reason.

Cf. Stewart v. Sec’y of Health, Educ. & Welfare of U.S.,

714 F.2d 287, 290 (3d Cir. 1983) (“In this instance the ALJ failed
to provide any explanation for his implicit rejection of Stewart’s
testimony regarding the effects of the [opioid] medication he took
[for his back pain].

Had he credited his testimony, the ALJ would

have had to conclude, in view of the vocational expert’s
testimony, that Stewart’s ability to perform light or sedentary
work was doubtful.

This in turn might well have led to the

conclusion that the claimant was disabled.

In view of the ALJ’s

complete failure to explain whether Stewart’s testimony concerning
the effects of his medication was not credited or simply ignored,
and his failure to offer any justification for his action, we will
remand the case to the district court with instructions to remand
it to the ALJ for reconsideration and further findings.”); see
generally, Figueroa v. Sec’y of Health, Ed. & Welfare, 585 F.2d
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551, 554 (1st Cir. 1978) (“At very least, the administrative law
judge should have made a finding on appellant’s claim regarding
[medication] side effects, making it possible for a reviewing
tribunal to know that the claim was not entirely ignored.

We

conclude, therefore, that good cause is shown to remand to the
Secretary.”).
“The Third Circuit has held that access to the Commissioner’s
reasoning is [] essential to a meaningful court review.”

Sanford

v. Comm’r of Soc. Sec., No. CIV. 13-0366 NLH, 2014 WL 1294710, at
*2 (D.N.J. Mar. 28, 2014)(citing Gober v. Matthews, 574 F.2d 772,
776 (3d Cir. 1978));

see also Stockett v. Comm’r of Soc. Sec.,

216 F. Supp. 3d 440, 456 (D.N.J. 2016)(“The Third Circuit
‘requires the ALJ to set forth the reasons for his
decision.’”)(quoting Burnett v. Comm’r of Soc. Sec. Admin., 220
F.3d 112, 123 (3d Cir. 2000))(Bumb, D.J.).

The Court cannot

determine on the present record why the ALJ did not discuss the
conclusions of Dr. Mintzer. It may well be the case that, upon
remand, the ALJ will arrive at the same ultimate decision that
Plaintiff is not disabled.

At this juncture, however, the ALJ must

provide additional explanation for the decision.
Plaintiff also contends that the ALJ further erred in
selectively rejecting the opinions of all treating sources.
Court does not agree.

A review of the voluminous record
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The

demonstrates that the ALJ thoroughly summarized the objective
medical evidence and set forth the weight she assigned to the
opinions.

The fact that this Court may have decided the inquiry

differently is not a basis for this Court to find that the ALJ’s
decision as to these opinions was not supported by substantial
evidence.

See Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.

2001)(“Where the ALJ’s findings of fact are supported by
substantial evidence, we are bound by those findings, even if we
would have decided the factual inquiry differently.”)
Finally, Plaintiff contends that the ALJ erred in assessing
her credibility because the ALJ provided her own lay opinion of
how Plaintiff’s objective test results would compare to other
hypothetical individuals.

The Court agrees.

As set forth in the

ALJ’s opinion, the ALJ appears to have discredited Plaintiff’s
complaints of elevated pain levels based upon “complaints of those
individuals having significantly more pathology.”
cannot do.

This the ALJ

See, e.g., Shannon v. Commissioner of Social Security,

2016 U.S. Dist. LEXIS 127923, *42-43 (D.N.J. 2016).

Accordingly,

this matter will be remanded on this ground as well.
ACCORDINGLY, it is on this 20th day of December 2018,
ORDERED that the decision of the Administrative Law Judge is
VACATED and the case is REMANDED for further proceedings
consistent with this Memorandum Opinion; and it is further
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ORDERED that the Clerk of Court shall close this case.

s/Renée Marie Bumb___
RENÉE MARIE BUMB
United States District Judge

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