HARRISON v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

MEMORANDUM, OPINION, ORDER Vacating the decision of the Administrative Law Judge; Case is REMANDED for further proceedings; Directing Clerk to close this case, etc. Signed by Judge Renee Marie Bumb on 2/26/2019. (rss, )

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

BRIAN HARRISON,
Plaintiff,

Civil No. 18-1540 (RMB)

v.

MEMORANDUM OPINION & ORDER

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon an appeal by
Plaintiff Brian Harrison (“Plaintiff”), seeking judicial review
of the final determination of the Commissioner of Social
Security (the “Commissioner”) denying Plaintiff’s application
for social security disability insurance benefits.

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.

PROCEDURAL HISTORY
On January 29, 2013, Plaintiff protectively filed an

application for disability insurance benefits under Title II of
the Social Security Act, alleging disability due to Crohn’s

disease, irritable bowel syndrome, depression, anxiety, chronic
back and hip pain, and a sleep disorder, with an onset date of
August 1, 2012.

The claim was initially denied on September 11,

2013, and again upon reconsideration on January 18, 2014. Record
of Proceedings (“R.P.”) at 15.

On February 3, 2016, Plaintiff

testified at an administrative hearing held before
Administrative Law Judge Nycole Watson.

At the hearing,

Plaintiff was represented by his attorney, Paul Tendler.

The

ALJ also heard testimony from a vocational expert.
On December 14, 2016, the ALJ issued a decision denying
Plaintiff’s claim for benefits, based on testimony from the
vocational expert that jobs existed in the economy for
individuals with non-exertional limitations. R.P. at 27-28.

On

December 6, 2017, the Appeals Council denied Plaintiff’s request
for review, rendering the ALJ’s decision as final. R.P. at 1-3.
Plaintiff now seeks this Court’s review.

II.

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

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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
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.

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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, 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
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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).
III. FACTUAL BACKGROUND
The Court recites only the facts that are necessary to its
determination on appeal, which is narrow.

Plaintiff worked as a

middle school teacher from 1998 through June 2009. R.P. at 42.
Although Plaintiff completed a master’s degree in instructional
technology in 2012 and briefly worked part-time, he has not been
employed full-time since June 2009.
A. Plaintiff’s Medical History and Testimony
At the administrative hearing, Plaintiff testified that he
suffers from Crohn’s disease, irritable bowel syndrome, anxiety,
depression, and ankylosing spondylitis. R.P. at 43.

Plaintiff

was diagnosed with Crohn’s disease around 2000 and eventually
required a bowel resection surgery in 2010. Id.

Plaintiff

testified that he has also developed arthritic conditions in
multiple parts of his body as a result of his Crohn’s disease.
Plaintiff’s depression and anxiety date back to the early 2000s,
but Plaintiff was also hospitalized during a major depressive

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episode in 2013. Id.

Although Plaintiff’s medical records

indicate that he is obese, Plaintiff did not testify as to any
impairments related to his weight.
Plaintiff claims that his medical impairments have
substantially limited his ability to work and perform daily
activities.

Plaintiff testified that his Crohn’s and depression

forced him to miss work and negatively impacted his ability to
hold his job as a middle school teacher.

According to

Plaintiff, his medical conditions worsened in 2009 and he began
receiving reprimands from his employer for poor attendance.
[R.P. at 56-57].

Plaintiff states that in June 2009, the school

asked him to resign if he did not feel that he was healthy
enough to meet their expectations and continue to work. Id.
After leaving his job as a middle school teacher, Plaintiff
testified that he sought a masters degree, which he hoped would
improve his future job prospects.

However, Plaintiff contends

that his worsening health and the bowel resection surgery
disrupted his coursework, forcing him to complete most courses
from home. R.P. at 57-58.

Plaintiff last worked for Stockton

College in a temporary summer role during the Summer of 2012,
reformatting and editing documents in Adobe Acrobat. Id. at 5051.

Plaintiff states that his health deteriorated while he was

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pursuing his masters degree, rendering him unable to use the
degree for its intended purpose. Id. at 58.
Plaintiff testified that his medical conditions have also
negatively impacted his ability to perform daily tasks.
Plaintiff explained that during a typical day, he drives his
daughter to her bus stop down the block, but then returns home
to watch television and nap, helps his wife set the table for
dinner, and uses the computer for as long as he can without
becoming too stiff. R.P. at 66-67.

Plaintiff alleges that he is

often in too much pain to sleep all the way through the night.
Id. at 64-65.
Plaintiff states that he no longer feels capable of helping
with many household chores, explaining that he has difficulty
doing laundry or emptying the dishwasher due to pain when he
bends down.

He also stated that he is no longer able to mow the

lawn. R.P. at 58.

Although Plaintiff can drive, he testified

that he feels uncomfortable being in the car for more than
twenty minutes because he becomes stiff and becomes anxious
about needing to be near a bathroom. Id. at 23.
Plaintiff explained that his physical ailments have
exacerbated his depression and anxiety.

Plaintiff stated that

his medical conditions have made him contemplate suicide because
he felt “very useless” to his family. R.P. at 54.

Plaintiff

claims that he wanted to work, but felt physically unable to do
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so, and finally decided to apply for disability benefits at the
encouragement of those around him. Id. at 52.

B. The ALJ’s Decision
At Step One of the sequential evaluation process, the ALJ
found that Plaintiff did not engage in substantial gainful
activity during the period from his alleged onset date of August
1, 2012 through his last insured date of December 31, 2014. R.P.
at 17.

At Step Two, the ALJ concluded that Plaintiff’s

ankylosing spondylitis, Crohn’s disease, and generalized anxiety
disorder qualified as “severe” impairments through the date last
insured. Id. at 17-20.

The ALJ also noted Plaintiff’s obesity

and major depressive disorder, but found that neither
constituted severe impairments under the regulations.
At Step Three, the ALJ determined that Plaintiff did not
have an impairment or combination of impairments that met or
equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. R.P. at 20.

In making

that determination, the ALJ considered Listings 1.04 (disorders
of the spine), 5.06 (inflammatory bowel disease), 12.06 (anxiety
disorder).
Next, the ALJ evaluated Plaintiff’s Residual Functional
Capacity(“RFC”) and found that through the date last ensured,

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Plaintiff had the RFC to perform a range of light work as
defined in 20 C.F.R. 404.1567(b):
He was able to occasionally lift 20 pounds and frequently
lift and/or carry 10 pounds. He could stand and/or walk for
about six hours in an eight-hour workday and sit for about
six hours in an eight-hour workday. He would have needed
the ability to change positions at will at the workstation
when needed. His ability to push/pull was the same as for
lifting/carrying. He could climb ramps/stairs frequently.
He needed to avoid climbing ladders/ropes/scaffolds. He
needed to avoid crouching, kneeling, or crawling but could
have occasionally balanced on level surfaces. He would have
been required to work five minutes from a restroom, do no
more than frequent handling bilaterally, and avoid
concentrated exposure to humidity. He could have understood
and carried out simple and routine task[s] but not at the
production-rate pace.
R.P. at 23.
At Step Four, the ALJ found that Plaintiff was unable to
perform any past relevant work as a teacher due to “moderate
limitation in maintaining concentration, persistence or pace.”
R.P. at 27.

Considering Plaintiff's age, education, work

experience, and RFC as determined, the ALJ found at Step Five
that there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform.

In particular,

the ALJ relied upon the testimony of the vocational expert, who
testified that under the ALJ’s proposed RFC, Plaintiff would be
able to perform certain jobs, including mail clerk (2,900
regional positions), office helper (2,000 regional positions),
and router (76,000 regional positions).

Using the medical-

vocational rules as a framework, the ALJ found that Plaintiff
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was not disabled under sections 216(i) and 223(d) of the Social
Security Act. Id. at 27-28.
IV.

DISCUSSION
On appeal, Plaintiff makes several arguments to challenge

the ALJ’s determination that Plaintiff is not disabled.
Specifically, Plaintiff argues that the ALJ erred in: (1)
finding that obesity and depression were not “severe”
impairments at Step Two; (2) finding that Plaintiff did not
suffer from an impairment, or combination of impairments, that
met the requirements of a Listing at Step Three; (3) finding
that Plaintiff had the RFC to perform range of light work; and
(4) finding that Plaintiff could engage in alternative work
activities at Step Five. See Plaintiff’s Brief (“Pl.’s Br.”), p.
19).
A. Findings Related to Depression and Obesity
Plaintiff argues that the ALJ committed a reversible legal
error in failing to find that Plaintiff’s obesity and depression
constituted “severe” impairments at Step Two. See Pl.’s Br., p.
23-24.

The ALJ’s decision notes that the “evidence of record

cites obesity and major depressive disorder as impairments,” but
found that “there is no support for finding that either
condition causes more than minimal functional limitations and
negatively affects the claimant’s ability to perform the normal
demands of work.” R.P. at 20.

Plaintiff argues that the ALJ’s
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failure to deem these impairments “severe” at Step Two was not
harmless, because it prevented the impairments from being (1)
considered for a Listing at Step Three and (2) properly weighted
towards the ALJ’s RFC determination. See Pl.’s Br., p. 23-25.
Upon review of the record, the Court agrees with Plaintiff that
the ALJ’s determination that Plaintiff’s depression was nonsevere was not supported by substantial evidence.
The ALJ’s decision notes that Plaintiff started treatment
at Cape Counseling Services in 2013 for “severe, recurrent major
depressive disorder without psychotic features, generalized
anxiety disorder, and mood disorder due to irritable bowel
syndrome.” R.P. at 20.

Curiously, the ALJ’s decision states

that there are no reports of “any inpatient psychiatric
hospitalizations or participation in day treatment programs.”
Id. at 20, 22.

This statement is contradicted in the transcript

from the administrative hearing. See R.P. at 43, 44, 57.
Indeed, Plaintiff’s medical records also include a Cape
Counseling Psychiatric Screening Evaluation, which indicates
that Plaintiff was hospitalized for a major depressive episode
on December 16, 2013. R.P. at 629.

The report notes that

Plaintiff had “an extensive history of depression” and, on this

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instance, reported “suicidal ideation with a plan to use a sword
to end his life.” Id.
The Commissioner argues that even if the ALJ “erroneously
concluded that some of [Plaintiff’s] other impairments were nonsevere, any error was harmless.”

See Salles v. Comm'r of Soc.

Sec., 229 F. App'x 140, 145 n.2 (3d Cir. 2007)(citing Rutherford
v. Barnhart, 399 F.3d 546, 553 (3d Cir.2005).

However, in both

Salles and Rutherford, the ALJ’s “non-severe” finding was
harmless because the ALJ had properly accounted for the nonsevere impairments when setting the RFC. See Murphy v. Colvin,
2014 WL 6065749, at *15 (D.N.J. Nov. 12, 2014).
This Court finds that the ALJ committed a reversible error
by determining that Plaintiff’s depression was non-severe
without considering Plaintiff’s extensive history of depression
and his hospitalization for a major depressive episode in 2013.
The failure to consider this relevant evidence potentially
impacted the ALJ’s disability analysis at later steps of the
sequential process because the ALJ did not evaluate whether
Plaintiff’s depression qualified for a Listing and may not have
assigned proper weight to Plaintiff's combination impairments
when assessing his ability to work.
As to obesity, this Court finds that the ALJ did not err in
finding that finding that Plaintiff’s obesity was non-severe, as

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Plaintiff never alleged, and his medical records are devoid of,
any specific obesity-related functional limitations.

B. Failure to Satisfy a Listing at Step Three
The ALJ’s decision contains a discussion of three Listings,
1.04 (disorders of the spine), 5.06 (inflammatory bowel
disease), 12.06 (anxiety disorder), but finds that Plaintiff’s
impairments do not meet the criteria for those Listings.

On

appeal, Plaintiff argues that the ALJ’s decision lacks
sufficient reasoning to justify her conclusion that no Listings
were satisfied, under the standard set forth in Burnett v.
Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000).
Specifically, Plaintiff claims that the ALJ’s “thin to bordering
on non-existent” analysis consists of merely “a statement of the
requirements and a conclusion that the requirements are not
met.” Brief at 26.
The Burnett standard “does not require the ALJ to use
particular language or adhere to a particular format in
conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 505
(3d Cir. 2004). As long as an ALJ provides a sufficient
explanation of findings to permit a meaningful review, he or she

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has satisfied the Burnett standard. Id. See also Diaz v. Comm'r
of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
Although the ALJ conducted a comprehensive analysis of
Listing 5.06 with citations to substantial evidence from
Plaintiff’s medical history, R.P. at 20-21, the ALJ’s discussion
of Listings 1.04 and 12.96 lacked that same degree of detail.
First, the analysis of Listing 1.04 consisted of little more
than a recitation of the Listing’s technical requirements along
with a conclusory statement that “claimant’s back disorders lack
the degree of severity required to satisfy the criteria.” Id. at
20.

Next, the ALJ’s analysis of Listing 12.06 once again

incorrectly states that Plaintiff had no history of
hospitalization for psychiatric treatment. Id. at 22.

As

previously noted, the record reflects a hospitalization for a
major depressive episode in 2013.

In an otherwise thorough

analysis of Listing 12.06, this Court cannot conclude that the
ALJ’s conclusion was based upon substantial evidence given this
material misstatement of fact.

Therefore, on remand, the ALJ

must address these deficiencies in the analysis of Listings 1.04
and 12.06, and support any conclusions with sufficient

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references to relevant evidence from Plaintiff’s medical
history.

C. The ALJ’s RFC and Alternate Work Determinations
Plaintiff also alleges that the ALJ’s RFC determination “is
not supported by any reasonable view of the medical evidence and
testimony taken as a whole.” Pl.’s Br., p. 29.

Based on this

Court’s finding that the ALJ overlooked elements of Plaintiff’s
extensive history of depression, including the 2013
hospitalization due to suicidal ideation, the Court agrees with
Plaintiff that the ALJ’s RFC determination overlooked material
aspects of Plaintiff’s medical history and, therefore, was not
based upon substantial evidence.
The ALJ also relied upon evidence that Plaintiff took two
trips to Disney World with his family to support the ALJ’s
conclusion that “there is no objective support for the
diminution of [Plaintiff’s] daily activities as attested at the
hearing.” R.P. at 25.

The ALJ noted “[t]his presumably active

trip to an extremely large amusement park would occur while he
was alleging total disability.”

Although the ALJ correctly

identified that Plaintiff’s trips to Disney Word raise questions
about his credibility, the ALJ failed to ask Plaintiff questions
about this trip at the administrative hearing and develop the
record on that issue.

It is quite possible that these trips to

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Disney World were quite difficult and required substantial
accommodations.

Indeed, a review of Plaintiff’s medical record

from October 29, 2013 indicates that Plaintiff was “esp.
concerned since he’s going to Disney World next wk and is having
a rectal pain/urgency and if doesn’t go immediately, pain is
much worse and has great anxiety.” R.P. at 511.

If the ALJ

chooses to rely upon these trips in determining Plaintiff’s RFC,
the ALJ must further develop the record.
This Court finds that in formulating the RFC, the ALJ’s
analysis was not supported by substantial evidence and may have
improperly weighed Plaintiff’s history of depression.

Because

the ALJ’s RFC determination necessarily impacts the findings
related to Plaintiff’s ability to work, this Court need not
reach that issue.

V.

CONCLUSION
Because the ALJ’s decision overlooked elements of

Plaintiff’s extensive history of depression and misstated
Plaintiff’s record of mental health treatment, the Court cannot
determine whether the ALJ’s disability analysis was, as a whole,
based upon substantial information.

Furthermore, the ALJ’s

failure to cite to specific contradictory medical evidence from
the record in the analysis of Listings 1.04 and 12.06 prevents
the Court from ascertaining the basis for the ALJ’s Step Three

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conclusions.

Although the ALJ’s final conclusions could very

well remain unchanged, the Court is unable to meaningfully
review the ALJ’s determinations without further discussion of
the aforementioned issues.

Therefore, the Court will vacate the

ALJ’s decision and remand for further proceedings.
ACCORDINGLY, it is on this 26th day of February 2019,
hereby
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 Order; and it is
further
ORDERED that the Clerk of the Court shall close this case.

DATED: February 26, 2019

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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