GIBBONI v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Judge Noel L. Hillman on 11/18/2022. (dmr)

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 1 of 15 PageID: 789

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID G., JR.,
Plaintiff,
v.

1:22-cv-01706-NLH
OPINION

COMMISSIONER OF SOCIAL
SECURITY, 1
APPEARANCES:
NIKHIL SHREERAM AGHARKAR
PIERRE PIERRE LAW PC
211 E. 43RD STREET
SUITE 608
NEW YORK, NY 10017
On behalf of Plaintiff
SHAWN CHEREE CARVER
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
6401 SECURITY BLVD
BALTIMORE, MD 21235
On behalf of the Commissioner
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

On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner
of the Social Security Administration (the “SSA”).
1

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 2 of 15 PageID: 790

Insurance Benefits (“DIB”) 2 under Title II of the Social Security
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 his alleged onset date of disability,
October 29, 2019.

For the reasons stated below, this Court will

remand this matter to the SSA for further proceedings consistent
with this Opinion.
I.

BACKGROUND AND PROCEDURAL HISTORY
On November 18, 2019, Plaintiff filed an application for

DIB, alleging that he became disabled on October 29, 2019.

This

application was filed after a different ALJ determined on
October 28, 2019 that Plaintiff was not disabled.

Notably,

Plaintiff claims that he cannot return to work as a heavy
equipment operator or truck driver because of his impairments of
meniscus tear, degenerative joint disease, a partial chondral
lesion on the medial side, medial femoral condyle, status post
right knee surgery, status post right hip surgery, chronic
calculous cholecystitis, lumbar degenerative disc disease with
spondylosis, mild to moderate foraminal stenosis, a shattered
DIB is a program under the Social Security Act to provide
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

2

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 3 of 15 PageID: 791

sacrum, and dysthymic disorder. 34

(ECF 10 at 2, 9).

Plaintiff’s claim was denied initially and upon
reconsideration.

(R. at 10).

Plaintiff requested a hearing

before an ALJ which was held on November 24, 2020.

(Id.)

April 14, 2021, the ALJ issued an unfavorable decision.

On

21).

(Id. at

Plaintiff’s Request for Review of Hearing Decision was

denied by the Appeals Council on February 23, 2022, making the
ALJ’s decision final.

(Id. at 1-3).

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.

On the alleged onset date, Plaintiff was 44 years old, which is
defined as a “younger person” (under age 50). 20 C.F.R. §
404.1563.
3

Plaintiff’s application for DIB did not claim dysthymic
disorder as an impairment. (R. at 212). Rather, the ALJ
independently determined that it was a non-severe impairment,
(R. at 13), and Plaintiff identifies dysthymic disorder as an
impairment in this appeal (ECF 10 at 9).
4

3

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 4 of 15 PageID: 792

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)).

It 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
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.”
4

Burnett

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 5 of 15 PageID: 793

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Similarly, an ALJ must also consider and weigh all 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:
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 factfinder, 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
5

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 6 of 15 PageID: 794

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
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.
1382c(a)(3)(A).

See 42 U.S.C. §

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).

The Commissioner has promulgated regulations for
determining disability that require application of a five-step
sequential analysis.

See 20 C.F.R. § 404.1520.
6

This five-step

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 7 of 15 PageID: 795

process is summarized as follows:
1.

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

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
7

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 8 of 15 PageID: 796

proved that he is unable to perform his former job, the burden
shifts to the Commissioner to prove that there is some other
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 October 29, 2019,
Plaintiff’s alleged onset date, and that Plaintiff met the
insured status requirement through December 31, 2019.
13).

(R. at

At step two, the ALJ found that Plaintiff’s impairments of

right knee degenerative joint disease and remote meniscus tear
status post surgeries, lumbar degenerative disc disease, status
post pelvic and right hip surgeries (remote), left lateral
epicondylitis, right cubital tunnel syndrome, and obesity were
severe. 5

(Id.)

In addition, the ALJ stated that he found

The Court notes that the list of impairments that the ALJ
analyzed is somewhat varied compared to the list of impairments
that Plaintiff presented in the disability report dated December
4, 2019 submitted in connection with Plaintiff’s application.
(R. at 211-20). The Court presumes from his independent review
of the record that the ALJ determined that his list of
impairments was most accurate. Indeed, that is consistent with
an ALJ’s duty to scrutinize the record for evidence of
impairments. Plummer v. Apfel, 186 F.3d 422, 433 (3d Cir. 1999)
(“In all cases, however, the ALJ has a duty to consider all
evidence of impairments in the record.”). Regardless, Plaintiff
does not identify as error the ALJ’s variation in the list of
impairments.
5

8

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 9 of 15 PageID: 797

Plaintiff’s impairment of dysthymic disorder to be non-severe.
(Id.)

At step three, the ALJ determined that Plaintiff’s

impairments individually or in combination with one another did
not equal the severity of one of the listed impairments.

(Id.

at 13-14).
The ALJ next determined that Plaintiff had the residual
functional capacity (“RFC”) to perform work at the sedentary
level, 6 with some additional limitations.

(Id. at 14).

At steps

four and five, the ALJ determined that there were a significant
number of jobs that existed in the national economy that
Plaintiff could perform such as final assembler, lens inserter,
addresser, call out operator, surveillance system monitor, and
election clerk.

(Id. at 20).

Plaintiff cites to three assignments of error: (1) the ALJ
failed to properly evaluate Plaintiff’s medically determinable
mental impairment of dysthymic disorder; (2) the ALJ failed to
properly evaluate the opinion evidence and failed to identify
the evidence on which he based the RFC assessment; and (3) the
ALJ failed to properly evaluate the subjective symptoms and
Plaintiff’s testimony.

(See ECF 10 at 10-28).

The Court takes

each argument in turn.
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.”).
6

9

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 10 of 15 PageID: 798

i.

Whether the ALJ failed to properly evaluate
Plaintiff’s medically determinable mental impairment
of dysthymic disorder.

Plaintiff argues that it was error for the ALJ not to
evaluate his mental impairment of dysthymic disorder pursuant to
20 C.F.R. § 404.1520a(a), specifically the Psychiatric Review
Technique (the “PRT”) in determining that Plaintiff’s impairment
was non-severe. 7

(ECF 10 at 10-13).

Plaintiff further contends

that the ALJ erred by not incorporating the limitations
associated with his dysthymic disorder in the RFC analysis.
(Id. at 13).

Notably, the Commissioner concedes that the ALJ

failed to evaluate Plaintiff’s dysthymic disorder pursuant to
the proper technique at step two, but argues that the error was
harmless because the ALJ’s opinion as a whole enables meaningful
judicial review.

(ECF 12 at 12).

The Court agrees with Plaintiff that the ALJ’s failure to
follow the PRT and subsequent failure to mention Plaintiff’s
To properly consider Plaintiff's mental impairments at steps
two and three, an ALJ is required to undertake a “Paragraph B”
assessment. See Marrollo v. Commissioner of Social Security,
2020 WL 3046317, at *5 (D.N.J. 2020) (“In considering a
claimant's mental impairments, an ALJ is required to review
paragraph B areas of mental functioning, which include: (1)
understand, remember, or apply information; (2) interact with
others; (3) concentrate, persist, or maintain pace; and (4)
adapt or manage oneself. A marked limitation is where a
claimant's functioning in an area independently, appropriately,
effectively, and on a sustained basis is seriously limited. An
extreme limitation is where a claimant is not able to function
in an area independently, appropriately, effectively, and on a
sustained basis.”).
7

10

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 11 of 15 PageID: 799

mental limitations in the RFC show that the ALJ’s opinion was
not supported by substantial evidence.

As stated above, as a

threshold matter, an ALJ must adequately explain his reasoning
in a decision before a reviewing court may determine the
decision was supported by substantial evidence.
at 776.

Gober, 574 F.2d

Indeed, there must be enough in the ALJ’s opinion to

give a court sitting on appeal to conduct a meaningful judicial
review. Sykes, 228 F.3d at 266 (ALJ must provide reasons for how
he weighed the evidence in the record).
In this case, the ALJ stated that Plaintiff’s dysthymic
disorder was non-severe because it “did not cause more than
minimal limitation in the claimant’s ability to perform basic
mental work activities and/or does not meet the durational
requirement[.]”

(R. at 13).

He also stated that Plaintiff’s

diagnosis was remote in that it occurred prior to the relevant
period, he did not get treatment, and did not complain of mental
health impairments during the relevant period.

(Id.)

The ALJ

did not offer further explanation beyond that.

Caselaw on this

type of fact pattern is limited but at least one court in the
Third Circuit has held that a PRT analysis so deficient that the
Court cannot access the ALJ’s reasoning requires remand.

Hayes

v. Berryhill, No. 3:17-CV-00648, 2018 WL 3596858, at *9 (M.D.
Pa. June 20, 2018), report and recommendation adopted, No. 3:17CV-648, 2018 WL 3584698 (M.D. Pa. July 26, 2018) (“Given the
11

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 12 of 15 PageID: 800

ALJ's failure to employ the special technique standards, and
document specific findings regarding the four broad areas of
functioning, the Court is left to surmise how the ALJ found that
Ms. Hayes's mental health impairments caused no ‘more than
minimal’ limitations on her ability to work.”).
The Court also is not prepared to characterize this error
as harmless as it permeates the rest of the ALJ’s decision,
particularly the RFC analysis.

Even though the ALJ identified

Plaintiff’s dysthymic disorder as a medically determinable
impairment, the RFC analysis contains no allusion to any mental
impairments whatsoever.

(R. at 14-19).

Non-severe impairments,

such as Plaintiff’s dysthymic disorder, must be addressed in the
RFC.

Hancock v. Colvin, No. CIV. 13-4424 RBK, 2014 WL 6799791,

at *8 (D.N.J. Dec. 2, 2014) (“If the ALJ were to have determined
that any of Plaintiff's conditions besides the anxiety disorder
were medically determinable, even if he found these impairments
non-severe, he would still be required to consider them in
formulating the RFC.”).
These errors are not harmless because the Court is left to
speculate both at steps two and three and for the RFC analysis
how the ALJ determined that Plaintiff’s dysthymic disorder was a
non-severe impairment that caused no more than a minimal
limitation and how it fit in an RFC analysis about the most that

12

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 13 of 15 PageID: 801

Plaintiff could do. 8

Id. (remanding because “it is unclear

whether the ALJ considered any of Plaintiff's other mental
impairments in formulating the RFC”); Diguglielmo v. Comm'r Soc.
Sec. Admin., No. CV 17-03985 (RMB), 2020 WL 5036214, at *2
(D.N.J. Aug. 25, 2020) (“Even if an impairment is found to be
non-severe at Step Two, the ALJ must still take it into
consideration in determining the Plaintiff's RFC. An ALJ's
failure to do so constitutes harmful error.”).

In coming to

this conclusion, the Court acknowledges that the record is very
sparse in terms of medical support for the mental impairments.
The Commissioner’s reliance on cases such as D.C. v. Comm'r of
Soc. Sec., No. CV 20-2484 (RBK), 2021 WL 1851830, at *5 (D.N.J.
May 10, 2021) for the proposition that where an ALJ concludes a
mental deficiency is minimal or negligible at step two, it is
not error to exclude it from the RFC is misplaced. The
Commissioner is right that as a general matter an ALJ does not
need to mention a mental deficiency that is found to be
negligible at steps two and three. See id. (“Where the ALJ
concludes that a claimant's deficiency is ‘so minimal or
negligible that ... it would not limit her ability’ to perform
required work tasks, the ALJ may exclude that deficiency or
limitation from the RFC without error.”) (quoting Ramirez v.
Barnhart, 372 F.3d 546, 555 (3d Cir. 2004)). But such a
conclusion must follow a proper analysis at steps two and three,
particularly the PRT analysis. See D.C., 2021 WL 1851830 at *3
(“In making this finding the ALJ considered the four broad areas
of mental functions set forth in the regulations[.]”). The
overall touchstone for an ALJ’s decision is that the ALJ must
explain the limitations that they assign to a claimant. Hess v.
Comm'r Soc. Sec., 931 F.3d 198, 209 (3d Cir. 2019) (“[A] wide
range of limitation language is permissible, regardless of what
the ALJ found at earlier steps of the analysis, so long as the
chosen limitation language is explained.”). The Court is simply
left to guess as to how the ALJ arrived at his conclusion on
mental limitations and is not empowered to parse the record to
come to its own conclusion.
8

13

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 14 of 15 PageID: 802

However, for the Court to weigh the sparseness of the record as
a reason to find any error harmless would be an impermissible
usurpation of the ALJ’s role as factfinder.

Williams, 970 F.2d

at 1182 (a district court is not “empowered to weigh the
evidence or substitute its conclusions for those of the factfinder.”).

As it stands, the Court is left to guess as to which

portions of the record convinced the ALJ that the dysthymic
disorder caused only a minimal impairment and how that
impairment factored into his ultimate finding.

Hayes, 2018 WL

3596858 at *9. (“Further, although an ALJ's determination at
step two may ultimately be justified, the absence of any
articulation of the basis for them (and the failure to
explicitly undertake the special technique before making these
findings) leaves the Court unable to provide meaningful
review.”) (internal quotation marks omitted).
Because the Court finds it cannot conduct a meaningful
review, it also cannot opine on Plaintiff’s other arguments, and
it will therefore remand this matter to the SSA for further
consideration.

Braker v. Comm'r of Soc. Sec., No. CV 16-0170-

BRM, 2017 WL 374476, at *14 (D.N.J. Jan. 26, 2017) (“Because
assessing a claimant's credibility requires a holistic review of
the entire record, full consideration of the evidence of
Plaintiff's pulmonary impairments may affect the ALJ's
credibility determination on remand.”).
14

Case 1:22-cv-01706-NLH Document 15 Filed 11/21/22 Page 15 of 15 PageID: 803

III. Conclusion
For the reasons expressed above, the decision of the ALJ
will be remanded for further consideration of Plaintiff’s mental
impairments consistent with this Opinion.

Nothing in this

Opinion should be construed as opining on the ultimate outcome
in this matter.
An accompanying Order will be issued.

Date: November 18, 2022
At Camden, New Jersey

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

15