AREVALO v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Noel L. Hillman on 6/27/2019. (rss, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DELMI AMANDA AREVALO,
1:18-cv-07675-NLH
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
WILLIAM A. SHEEHAN
24 SOUTH BROAD STREET
WOODBURY, NJ 08096
On behalf of Plaintiff
LAUREN DONNER CHAIT
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
6TH FLOOR
PHILADELPHIA, PA 19123
On behalf of Defendant

HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), regarding Plaintiff’s application for Disability
Insurance Benefits (“DIB”) 1 under Title II of the Social Security

1

DIB is a program under the Social Security Act to provide

Act.

42 U.S.C. § 423, et seq.

The issue before the Court is

whether the Administrative Law Judge (“ALJ”) erred in finding
that there was “substantial evidence” that Plaintiff was not
disabled at any time since her alleged onset date of disability,
October 1, 2011.

For the reasons stated below, this Court will

affirm that decision.
I.

BACKGROUND AND PROCEDURAL HISTORY
On May 30, 2013, Plaintiff, Demi Amanda Arevalo,

protectively filed an application for DIB, 2 alleging that she
became disabled on October 1, 2011.

Plaintiff claims that she

can no longer work in her prior jobs as a packager/handler for
food products, plastics packager, and assembly machine tender
because of her severe impairments of diabetes with neuropathy,
hypertension, arthritis, gall bladder disease, degenerative disc
disease of the lumbar spine, and depression.
Plaintiff’s initial claim was denied on March 12, 2014 and
upon reconsideration on May 22, 2014.

Plaintiff requested a

disability benefits when a claimant with a sufficient number of
quarters of insured employment has suffered such a mental or
physical impairment that the claimant cannot perform substantial
gainful employment for at least twelve months. 42 U.S.C. § 423
et seq.
2

A protective filing date marks the time when a disability
applicant made a written statement of his or her intent to file
for benefits. That date may be earlier than the date of the
formal application and may provide additional benefits to the
claimant. See SSA Handbook 1507; SSR 72-8.
2

hearing before an ALJ, which was held on July 6, 2016.
issued an unfavorable decision on February 1, 2017.

The ALJ

Plaintiff’s

Request for Review of Hearing Decision was denied by the Appeals
Council on February 14, 2018, making the ALJ’s February 1, 2017
decision final.

Plaintiff brings this civil action for review

of the Commissioner’s decision.
II.

DISCUSSION
A.

Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for social security benefits.
55 F.3d 900, 901 (3d Cir. 1995).

Ventura v. Shalala,

A reviewing court must uphold

the Commissioner’s factual decisions where they are supported by
“substantial evidence.”

42 U.S.C. §§ 405(g), 1383(c)(3);

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v.
Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v. Sullivan,
970 F.2d 1178, 1182 (3d Cir. 1992).
more than “a mere scintilla.”

Substantial evidence means

Richardson v. Perales, 402 U.S.

389, 401 (1971)(quoting Consolidated Edison Co. V. NLRB, 305
U.S. 197, 229 (1938)).
Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”

Id.

The inquiry is not whether the reviewing

court would have made the same determination, but whether the
3

Commissioner’s conclusion was reasonable.

See Brown v. Bowen,

845 F.2d 1211, 1213 (3d Cir. 1988).
A reviewing court has a duty to review the evidence in its
totality.
1984).

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

“[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’” Schonewolf v.
Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks
v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th
Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.
474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons for rejecting or discrediting competent evidence.”
Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing
Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)).

The Third

Circuit has held that an “ALJ must review all pertinent medical
evidence and explain his conciliations and rejections.”

Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Similarly, an ALJ must also consider and weigh all of the nonmedical evidence before him.

Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d
700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
court review:
4

Unless the [Commissioner] has analyzed all
evidence and has sufficiently explained the
weight he has given to obviously probative
exhibits, to say that his decision is
supported by substantial evidence approaches
an abdication of the court’s duty to
scrutinize the record as a whole to
determine whether the conclusions reached
are rational.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).

Although

an ALJ, as the fact finder, must consider and evaluate the
medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here
is no requirement that the ALJ discuss in its opinion every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004).
In terms of judicial review, a district court is not
“empowered to weigh the evidence or substitute its conclusions
for those of the fact-finder.”

Williams, 970 F.2d at 1182.

However, apart from the substantial evidence inquiry, a
reviewing court is entitled to satisfy itself that the
Commissioner arrived at his decision by application of the
proper legal standards.

Sykes, 228 F.3d at 262; Friedberg v.

Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris,
508 F. Supp. 791, 793 (D.N.J. 1981).
B.

Standard for DIB

The Social Security Act defines “disability” for purposes
of an entitlement to a period of disability and disability
insurance benefits as the inability to engage in any substantial
5

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 12 months.

See 42 U.S.C. §

1382c(a)(3)(A).
Under this definition, a Plaintiff qualifies as disabled
only if her physical or mental impairments are of such severity
that she is not only unable to perform her past relevant work,
but cannot, given her age, education, and work experience,
engage in any other type of substantial gainful work which
exists in the national economy, regardless of whether such work
exists in the immediate area in which 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)

(emphasis added).
The Commissioner has promulgated regulations 3 for
determining disability that require application of a five-step
sequential analysis.

See 20 C.F.R. § 404.1520.

This five-step

process is summarized as follows:
1.

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

3

The regulations were amended for various provisions effective
March 27, 2017. See 82 F.R. 5844. Social Security Rulings 962p, 96-5p, and 06-03p were rescinded. See 82 F.R. 15263. The
ALJ cited to these SSRs, but because the ALJ issued her decision
before this date, the amendments are not applicable to
Plaintiff’s appeal.
6

2.

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

3.

If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1 and has lasted or is expected to last for a
continuous period of at least twelve months, the
claimant will be found “disabled.”

4.

If the claimant can still perform work she has done in
the past (“past relevant work”) despite the severe
impairment, she will be found “not disabled.”

5.

Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience
to determine whether or not she is capable of
performing other work which exists in the national
economy. If she is incapable, she will be found
“disabled.” If she is capable, she will be found “not
disabled.”

20 C.F.R. § 404.1520(b)-(f).

Entitlement to benefits is

therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d
1150, 1153 (3d Cir. 1983).

In the first four steps of the

analysis, the burden is on the claimant to prove every element
of her claim by a preponderance of the evidence.

See id.

In

the final step, the Commissioner bears the burden of proving
that work is available for the Plaintiff: “Once a claimant has
proved that he is unable to perform his former job, the burden
shifts to the Commissioner to prove that there is some other

7

kind of substantial gainful employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.
Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C.

Analysis

At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since the alleged onset of
disability.

At step two, the ALJ found that Plaintiff had the

serve impairments of diabetes with neuropathy, hypertension,
arthritis, gall bladder disease, degenerative disc disease of
the lumbar spine, and depression.

At step three, the ALJ

determined that Plaintiff’s severe impairments or her severe
impairments in combination with her other impairments did not
equal the severity of one of the listed impairments.
The ALJ then determined that Plaintiff had the residual
functional capacity (“RFC”) to perform light work at the
unskilled level with certain restrictions. 4

4

The ALJ found

See 20 C.F.R. § 404.1568 (explaining that unskilled work “is
work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time”);
20 C.F.R. § 404.1567 (“Physical exertion requirements. To
determine the physical exertion requirements of work in the
national economy, we classify jobs as sedentary, light, medium,
heavy, and very heavy.”); 20 C.F.R. § 404.1567 (“Light work.
Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job
is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you
8

Plaintiff’s RFC to be as follows:
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) except the claimant cannot perform work
that requires English fluency. She can perform no climbing
of ladders, ropes, or scaffolds. The claimant can
occasionally climb ramps and stairs, balance, stoop, kneel,
crouch and crawl. She must avoid concentrated exposure to
temperature extremes, wetness and humidity and must avoid
all exposure to unprotected heights and dangerous moving
machinery. The claimant can perform simple routine work
involving simple work related decisions with few if any
work place changes.
(R. at 53.)
After considering a vocational expert’s testimony, the ALJ
concluded that Plaintiff’s RFC enabled her to perform her past
relevant work as she previously performed it as a packaging
handler of food products and assembly machine tender. 5
Plaintiff challenges the ALJ’s decision that she retained
the RFC to perform her past jobs.

Plaintiff points out that the

assembly machine tender job, where she worked in an assembly

must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he
or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to
sit for long periods of time. . . .”).
5

Because the ALJ concluded that Plaintiff was capable of
performing her past relevant work, the ALJ did not need to
continue to step five of the sequential step analysis. Benjamin
v. Commissioner of Social Security, 2019 WL 351897, at *4 n.9
(D.N.J. 2019) (citing Valenti v. Commissioner of Social Sec.,
373 F. App’x 255, 258 n.1 (3d Cir. 2010); 20 C.F.R. §
404.1520(b)-(f)).
9

line making windows, was performed when she was 48-49 years old,
and the package handler job was performed when she was 53-54
years old.

She left the package handler job in October 2011

because “she could not handle it any more.”

Because of her

inability to communicate in English 6 and her advancing age, along
with her inability to perform work at the light exertional
level, Plaintiff argues that the ALJ erred in concluding she was
capable of still working in those jobs.
Under SSA regulations, a claimant’s age and literacy in

6

Plaintiff was born in El Salvador and was only in school
through the second grade. She had been working in the United
States for 12 years at the time of her disability onset date,
and she speaks Spanish, but says she can understand and speak
minimal English. The SSA regulations address a claimant’s
English literacy and education:
(5) Inability to communicate in English. Since the
ability to speak, read and understand English is generally
learned or increased at school, we may consider this an
educational factor. Because English is the dominant
language of the country, it may be difficult for someone
who doesn't speak and understand English to do a job,
regardless of the amount of education the person may have
in another language. Therefore, we consider a person's
ability to communicate in English when we evaluate what
work, if any, he or she can do it. It generally doesn't
matter what other language a person may be fluent in.
(6) Information about your education. We will ask you
how long you attended school and whether you are able to
speak, understand, read and write in English will also
consider other information about how much formal or
informal education you may have had through previous work,
community projects, hobbies, and any other activities,
which might help you to work.
20 C.F.R. § 404.1564(b)(5) and (6).
10

English are two factors an ALJ must consider in determining
whether a claimant is disabled.

The relevant regulations

provide:
(g) Individuals approaching advanced age (age 50-54)
may be significantly limited in vocational adaptability if
they are restricted to sedentary work. When such
individuals have no past work experience or can no longer
perform vocationally relevant past work and have no
transferable skills, a finding of disabled ordinarily
obtains. . . . For this age group, even a high school
education or more (ordinarily completed in the remote past)
would have little impact for effecting a vocational
adjustment unless relevant work experience reflects use of
such education.
(h)(1) The term younger individual is used to denote
an individual age 18 through 49. For individuals who are
age 45-49, age is a less advantageous factor for making an
adjustment to other work than for those who are age 18-44.
Accordingly, a finding of “disabled” is warranted for
individuals age 45-49 who:
(i) Are restricted to sedentary work,
(ii) Are unskilled or have no transferable skills,
(iii) Have no past relevant work or can no longer
perform past relevant work, and
(iv) Are unable to communicate in English, or are able
to speak and understand English but are unable to read or
write in English.
Appendix 2 to Subpart P of Part 404—Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Sec. 201.
Thus, under these regulations, a claimant will ordinarily
be found disabled if she is:

(1) 50-54 years old, (2) has no

past work experience, cannot perform her past work, or has no
transferrable skills, and (3) is limited to sedentary work.
11

When the same factors are met for a claimant who is 45-49 years
old, but the claimant is also considered illiterate in English,
that claimant will ordinarily be found disabled as well.
Accepting Plaintiff’s argument that she is illiterate in
English, 7 and recognizing that Plaintiff was in the 45-54 age
range, Plaintiff fails to meet the other factors for presumptive
disability.

First, the ALJ did not limit Plaintiff to sedentary

work, but rather light work.

Second, the ALJ found that

Plaintiff was capable of performing her past work.

Plaintiff

states in conclusory fashion that she cannot perform light work,
and she cannot perform her past jobs, but she does not point to
specific evidence in the record that the ALJ improperly
considered or failed to consider to support her contention.

It

is Plaintiff’s burden to do so to prove that she is disabled.
See Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014)
(providing that the claimant always bears the burden of
establishing by the preponderance of the evidence (1) that she
is severely impaired, and (2) either that the severe impairment
meets or equals a listed impairment, or that it prevents her
from performing her past work); 20 C.F.R. § 404.1520(b)-(f).
To address Plaintiff’s inability to communicate in English,

7

The ALJ did not find Plaintiff to be illiterate in English, but
considered it a factor in determining Plaintiff’s RFC. (R. at
53.)
12

the Court notes that the ALJ considered it in the RFC
determination, Plaintiff had been able to obtain and maintain
her prior jobs with the same level of English literacy, and
Plaintiff’s jobs were unskilled, which type of jobs are
minimally impacted by a claimant’s illiteracy.

See Appendix 2

to Subpart P of Part 404—Medical-Vocational Guidelines, 20
C.F.R. Part 404, Sec. 201. (“While illiteracy or the inability
to communicate in English may significantly limit an
individual's vocational scope, the primary work functions in the
bulk of unskilled work relate to working with things (rather
than with data or people) and in these work functions at the
unskilled level, literacy or ability to communicate in English
has the least significance.”).
The Court finds that Plaintiff’s challenge to the ALJ’s
decision amounts to a simple disagreement rather than a lack of
record evidence to support her decision.

Plaintiff’s feeling

that the ALJ’s decision was “an abuse of discretion resulting in
a miscarriage of justice” (Docket No. 12 at 10) without more is
insufficient to show that the ALJ’s decision was not supported
by substantial evidence.

See, e.g., Perkins v. Barnhart, 79 F.

App’x 512, 514–15 (3d Cir. 2003) (“Perkins's argument here
amounts to no more than a disagreement with the ALJ's decision,
which is soundly supported by substantial evidence.”); Moody v.
Commissioner of Social Security Administration, 2016 WL 7424117,
13

at *8 (D.N.J. 2016) (“[M]ere disagreement with the weight the
ALJ placed on the opinion is not enough for remand.”); Grille v.
Colvin, 2016 WL 6246775, at *8 (D.N.J. 2016) (“Distilled to its
essence, Plaintiff's argument here amounts to nothing more than
a mere disagreement with the ALJ's ultimate decision, which is
insufficient to overturn that decision.”).
Moreover, the Court does not find after an independent
review of the record that any error in the ALJ’s decision that
would warrant reversal.

See, e.g., Desorte v. Commissioner of

Social Security, 2019 WL 1238827, at *6 (D.N.J. 2019) (citing
Richardson, 402 U.S. at 401; Daring, 727 F.2d at 70) (“This
Court must review the evidence in its totality, and take into
account whatever in the record fairly detracts from its weight.
Plaintiff has not provided the Court with specific evidence that
detracts from the ALJ’s RFC assessment, which the Court finds on
its independent review to be reasonable and substantially
supported.”); Barnes v. Commissioner of Social Security, 2018 WL
1509086, at *4 (D.N.J. 2018) (“Plaintiff does not make any
specific contentions as to where the ALJ erred and this Court’s
own independent review finds no error.

On the contrary, the

Court’s review of the ALJ’s decision finds that the ALJ properly
followed the standards set forth above, and that the ALJ’s
decision was supported by substantial evidence.”).
Consequently, the Court finds that the ALJ’s determination
14

that Plaintiff was not totally disabled as of October 1, 2011 is
supported by substantial evidence.

The decision of the ALJ is

therefore affirmed.
An accompanying Order will be issued.

Date: June 27, 2019
At Camden, New Jersey

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

15