WYATT v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION fld. Signed by Judge Stanley R. Chesler on 10/13/11. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
KEVIN WYATT,
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Plaintiff,
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v.
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COMMISSIONER OF SOCIAL
:
SECURITY,
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Defendant.
:
____________________________________:
Civil Action No. 10-6751 (SRC)
OPINION
CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Kevin Wyatt (“Plaintiff”) of
the final decision of the Commissioner of Social Security (“Commissioner”) determining that he
was not disabled under the Social Security Act (the “Act”). This Court exercises jurisdiction
pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of the parties without oral
argument, pursuant to L. CIV . R. 9.1(b), finds that the Commissioner’s decision will be vacated
and remanded for further proceedings.
I. BACKGROUND
The following facts are undisputed. Plaintiff was born in 1957. He has worked as a
shipping and receiving clerk, laborer, and stock supervisor. This case involves applications for
supplemental security income and disability insurance benefits filed on August 20, 2007.
Plaintiff’s claims were denied by the Commissioner initially and on reconsideration. Pursuant to
Plaintiff’s request, two hearings were held before Administrative Law Judge Michal Lissek (the
“ALJ”). The ALJ denied Plaintiff’s claim in an unfavorable decision issued on February 4, 2010.
After the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision, that
decision became final as the decision of the Commissioner of Social Security. Plaintiff then filed
the instant appeal of the Commissioner’s decision.
II. DISCUSSION
A.
Standard of Review
This Court has jurisdiction to review the Commissioner*s decision under 42 U.S.C.
§ 405(g). This Court must affirm the Commissioner*s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health and Human Services,
841 F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial
evidence is “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 Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is more than a mere scintilla of
evidence but may be less than a preponderance.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357,
360 (3d Cir. 2004). The reviewing court must consider the totality of the evidence and then
determine whether there is substantial evidence to support the Commissioner*s decision. See
Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 1981).
The reviewing court is not “empowered to weigh the evidence or substitute its
conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.
1992), cert. denied sub nom. Williams v. Shalala, 507 U.S. 924 (1993) (citing Early v. Heckler,
743 F.2d 1002, 1007 (3d Cir. 1984)). If the ALJ’s findings of fact are supported by substantial
evidence, this Court is bound by those findings, “even if [it] would have decided the factual
inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 35 (3d Cir. 2001); see also Hartranft v.
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Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
In determining whether there is substantial evidence to support the Commissioner*s
decision, the reviewing court must consider: “(1) the objective medical facts; (2) the diagnoses
and expert opinions of treating and examining physicians on subsidiary questions of fact; (3)
subjective evidence of pain testified to by the claimant and corroborated by family and neighbors;
(4) the claimant*s educational background, work history and present age.” Blalock v.
Richardson, 483 F.2d 773, 776 (4th Cir. 1973). “The presence of evidence in the record that
supports a contrary conclusion does not undermine the Commissioner’s decision so long as the
record provides substantial support for that decision.” Sassone v. Comm’r of Soc. Sec., 165 Fed.
Appx. 954, 955 (3d Cir. 2006) (citing Blalock, 483 F.2d at 775).
B.
Standard for Awarding Benefits Under the Act
The claimant bears the initial burden of establishing his or her disability. 42 U.S.C. §
423(d)(5). To qualify for DIB or SSI benefits, a claimant must first establish that he is needy and
aged, blind, or “disabled.” 42 U.S.C. § 1381. A claimant is deemed “disabled” under the Act if
he is unable to “engage in 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.” 42 U.S.C. §
423(d)(1)(A); see also Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). Disability is
predicated on whether a claimant’s impairment is so severe 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.” 42 U.S.C. §
423(d)(2)(A). Finally, while subjective complaints of pain are considered, alone, they are not
enough to establish disability. 42 U.S.C. § 423(d)(5)(A). To demonstrate that a disability exists,
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a claimant must present evidence that his or her affliction “results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically accepted
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
C.
The Five-Step Evaluation Process
Determinations of disability are made by the Commissioner, pursuant to the five-step
process outlined in 20 C.F.R. § 404.1520. The claimant bears the burden of proof at steps one
through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Gist v. Barnhart, 67 Fed. Appx.
78, 81 (3d Cir. 2003).
At the first step of the evaluation process, the Commissioner must determine whether the
claimant is currently engaged in substantial gainful activity.1 20 C.F.R. § 404.1520(b). If a
claimant is found to be engaged in such activity, the claimant is not “disabled” and the disability
claim will be denied. Id.; Yuckert, 482 U.S. at 141.
At step two, the Commissioner must determine whether the claimant is suffering from a
severe impairment. 20 C.F.R. §§ 404.1520(a)(ii), (c). An impairment is severe if it
“significantly limits [a claimant’s] physical or mental ability to do basic work activities.” Id. In
determining whether the claimant has a severe impairment, the age, education, and work
experience of the claimant will not be considered. Id. If the claimant is found to have a severe
impairment, the Commissioner addresses step three of the process.
At step three, the Commissioner compares the medical evidence of the claimant’s
impairment(s) with the impairments presumed severe enough to preclude any gainful work, listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1594(f)(2). If a claimant’s
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Substantial gainful activity is “work that involves doing significant and productive
physical or mental duties; and is done (or intended) for pay or profit.” 20 C.F.R. § 404.1510.
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impairment meets or equals one of the listed impairments, he will be found disabled under the
Social Security Act. If the claimant does not suffer from a listed impairment or its equivalent,
the analysis proceeds to step four.
In Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20, 120 n.2 (3d Cir. 2000), the
Third Circuit found that to deny a claim at step three, the ALJ must specify which listings2 apply
and give reasons why those listings are not met or equaled. In Jones v. Barnhart, 364 F.3d 501,
505 (3d Cir. 2004), however, the Third Circuit noted that “Burnett does not require the ALJ to
use particular language or adhere to a particular format in conducting his analysis. Rather, the
function of Burnett is to ensure that there is sufficient development of the record and explanation
of findings to permit meaningful review.” (Id.) An ALJ satisfies this standard by “clearly
evaluating the available medical evidence in the record and then setting forth that evaluation in
an opinion, even where the ALJ did not identify or analyze the most relevant listing.” Scatorchia
v. Comm’r of Soc. Sec., 137 Fed. Appx. 468, 471 (3d Cir. 2005).
Step four requires the ALJ to consider whether the claimant retains the residual functional
capacity to perform his past relevant work. 20 C.F.R. § 404.1520(e). If the claimant is able to
perform his past relevant work, he will not be found disabled under the Act. In Burnett, the
Third Circuit set forth the analysis at step four:
In step four, the ALJ must determine whether a claimant's residual functional
capacity enables her to perform her past relevant work. This step involves three
substeps: (1) the ALJ must make specific findings of fact as to the claimant's
residual functional capacity; (2) the ALJ must make findings of the physical and
mental demands of the claimant's past relevant work; and (3) the ALJ must
compare the residual functional capacity to the past relevant work to determine
whether claimant has the level of capability needed to perform the past relevant
2
Hereinafter, “listing” refers to the list of severe impairments as found in 20 C.F.R. Part
404, Subpart P, Appendix 1.
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work.
Burnett, 220 F.3d at 120. If the claimant is unable to resume his past work, and his condition is
deemed “severe,” yet not listed, the evaluation moves to the final step.
At the fifth step, the burden of production shifts to the Commissioner, who must
demonstrate that there are other jobs existing in significant numbers in the national economy
which the claimant can perform, consistent with his medical impairments, age, education, past
work experience, and residual functional capacity. 20 C.F.R. §§ 404.1512(g), 404.1560(c)(1). If
the ALJ finds a significant number of jobs that claimant can perform, the claimant will not be
found disabled. Id.
When the claimant has only exertional limitations, the Commissioner may utilize the
Medical-Vocational Guidelines found in 20 C.F.R. Part 404, Subpart P, Appendix 2 to meet the
burden of establishing the existence of jobs in the national economy. These guidelines dictate a
result of “disabled” or “not disabled” according to combinations of factors (age, education level,
work history, and residual functional capacity). These guidelines reflect the administrative notice
taken of the numbers of jobs in the national economy that exist for different combinations of
these factors. 20 C.F.R. Part 404, Subpart P, Appendix 2, Paragraph 200.00(b). When a
claimant’s vocational factors, as determined in the preceding steps of the evaluation, coincide
with a combination listed in Appendix 2, the guideline directs a conclusion as to whether an
individual is disabled. 20 C.F.R. § 404.1569; Heckler v. Campbell, 461 U.S. 458 (1983). The
claimant may rebut any finding of fact as to a vocational factor. 20 C.F.R. Part 404, Subpart P,
Appendix 2, Paragraph 200.00(b).
Additionally, pursuant to 42 U.S.C. § 423(d)(2)(B), the Commissioner, in the five-step
process, “must analyze the cumulative effect of the claimant’s impairments in determining
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whether she is capable of performing work and is not disabled.” Plummer v. Apfel, 186 F.3d
422, 428 (3d Cir. 1999). Moreover, “the combined impact of the impairments will be considered
throughout the disability determination process.” 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. § 1523.
However, the burden still remains on the Plaintiff to prove that the impairments in combination
are severe enough to qualify him for benefits. See Williams v. Barnhart, 87 Fed. Appx. 240, 243
(3d Cir. 2004) (placing responsibility on the claimant to show how a combination-effects analysis
would have resulted in a qualifying disability).
D.
Plaintiff’s Appeal
Plaintiff begins by asserting, without explanatory detail, that the ALJ’s decision is
unreviewable because the ALJ explained no findings. This vague, blanket condemnation of the
ALJ’s decision does not appear to be justified by the record.
Plaintiff has nicely outlined his main argument on appeal as follows:
(1) Plaintiff suffers tremors (2) those tremors are “severe” according to the
medical evidence of record and the ALJ’s own findings. (3) Any finding of
severity means by definition that more than a minimal restriction exists (4) thus
plaintiff’s tremors impose more than a minimal restriction in the use of his hands
(5) the vocational expert testified that no jobs existed which could be performed
in the presence of “any problem with the use of the hands”. (6) This testimony
occurred at the fifth step of the sequential evaluation where it is the government’s
burden to establish the existence of jobs. (7) The only way to so establish in the
presence of non-exertional impairments is through the testimony of a vocational
expert. (8) The Commissioner picked the vocational expert. (9) That vocational
expert testified that on the basis of the ALJ’s own finding of severity with regard
to tremors of the hands plaintiff would be unable to meet the production quotas of
any of the jobs recited. (10) The Commissioner has failed to meet his burden at
the fifth step. (11) Plaintiff has established his disability through the testimony of
the Commissioner’s own vocational expert on the basis of the ALJ’s own severity
findings. (12) The ALJ failed to mention any of this in her administrative
decision.
(Pl.’s Br. 21-22.) This outline is very helpful because it makes it easy to see the flaw in
Plaintiff’s argument, which is the third proposition: “Any finding of severity means by definition
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that more than a minimal restriction exists.” Plaintiff has misunderstood the meaning of “severe”
at step two.
The Third Circuit has explained the analysis at step two as follows:
The step-two inquiry is a de minimis screening device to dispose of groundless
claims. An impairment or combination of impairments can be found “not severe”
only if the evidence establishes a slight abnormality or a combination of slight
abnormalities which have no more than a minimal effect on an individual’s ability
to work. Only those claimants with slight abnormalities that do not significantly
limit any “basic work activity” can be denied benefits at step two. If the evidence
presented by the claimant presents more than a “slight abnormality,” the step-two
requirement of “severe” is met, and the sequential evaluation process should
continue. Reasonable doubts on severity are to be resolved in favor of the
claimant.
Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (citations omitted); accord
McCrea v. Commissioner, 370 F.3d 357, 360 (3d Cir. 2003) (“The burden placed on an applicant
at step two is not an exacting one. . . . Any doubt as to whether this showing has been made is to
be resolved in favor of the applicant.”).
Thus, under Newell, the ALJ’s determination that Plaintiff’s “intermittent tremulousness”
was a severe impairment at step two means only that the claimant presented evidence sufficient
to at least raise the possibility that he has more than a slight abnormality in this regard. Plaintiff
has pointed to no law to support the proposition that finding a severe impairment at step two has
any impact on a claimant’s burden at step four – nor is this Court aware of any. It is highlighting
the obvious to note that steps two and four are different steps, and that it is frequently the case
that an ALJ finds a severe impairment at step two, but does not find that said impairment limits
the claimant’s residual functional capacity at step four.
It appears to this Court that Plaintiff would like to use the step two finding to relieve him
from the burden of proving at step four that his intermittent tremulousness limits his ability to
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work. Such relief is not available under Third Circuit law, and, at step four, Plaintiff bore the
burden of proving this.3 On review, this Court asks whether the ALJ’s determination that
intermittent tremulousness did not limit Plaintiff’s ability to work was supported by substantial
evidence.
It is at this point, however, that the defects in the ALJ’s decision become apparent: the
ALJ did not focus on the question of whether the tremulousness was limiting, nor does the
decision carefully review the relevant evidence regarding Plaintiff’s tremulousness. Instead,
what this Court finds is that the ALJ documented that consultative examiner Dr. Makhija
reported Plaintiff’s tremulousness, but stopped there. (Tr. 13, 14, 265, 267.)
The ALJ appears to have overlooked a number of important pieces of evidence in the
record. The ALJ appears to have overlooked the fact that Dr. Makhija was sufficiently concerned
about the tremulousness that one of his diagnoses was “Rule out Parkinson Disease.” (Tr. 267.)
Also, consultative examiner Dr. Flaherty reviewed Dr. Makhija’s report and stated: “He was
tremulous and the doctor thought Parkinson’s should be ruled out.” (Tr. 284.) Consultative
examiner Dr. Eisenstadt, under the heading “Neurological Disability,” wrote “Tremors and
weakness of arms + legs.” (Tr. 316.) Consultative examiner Dr. Stoller, a neurologist, also
reported Plaintiff’s tremulousness, and ruled out a diagnosis of Parkinson’s disease. (Tr. 288,
310.) In answer to the question, “Are there any other conditions which limit this individual’s
ability to do work related activities?” Dr. Stoller wrote: “tremor in hands 2E to anxiety.” (Tr.
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Plaintiff’s argument overlooks the important differences between the second and fourth
steps under Third Circuit law. At step two, the Third Circuit gives the claimant the benefit of the
doubt; at step four, it does not. This alone changes the burden of proof so greatly that a
determination that an impairment is severe at step two cannot control the outcome of the residual
functional capacity analysis at step four.
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291.)
Thus, the ALJ appears to have overlooked a substantial piece of evidence from Dr. Stoller
that Plaintiff’s tremulousness limited his ability to work. Furthermore, this Court finds a
substantial body of medical evidence of record that the ALJ failed to discuss in his decision. In
the face of so many doctors finding the tremulousness to be medically significant, the ALJ cannot
merely skip over the issue.
The Regulations state: “We will assess your residual functional capacity based on all of
the relevant medical and other evidence.” 20 C.F.R. § 404.1545. The failure of an ALJ to follow
this Regulation constitutes a ground for remand, as in Fargnoli:
The ALJ must consider all relevant evidence when determining an individual’s
residual functional capacity in step four. . . [W]e do expect the ALJ, as the
factfinder, to consider and evaluate the medical evidence in the record consistent
with his responsibilities under the regulations and case law. His failure to do so
here leaves us little choice but to remand for a more comprehensive analysis of
the evidence consistent with the requirements of applicable regulations and the
law of this Circuit.
Fargnoli v. Halter, 247 F.3d 34, 41-42 (3d Cir. 2001). In the instant case, the ALJ failed to
consider and evaluate all the medical evidence relating to Plaintiff’s tremulousness in the record
– especially Dr. Stoller’s finding that his tremulousness limited his ability to work. Following
Fargnoli, the case will be remanded to the Commissioner so that the ALJ may conduct a more
comprehensive analysis of the evidence.
The Court notes that the ALJ’s failure to consider all the evidence regarding
tremulousness may well not be harmless error. Plaintiff argues that, at step five, given the crossexamination of the vocational expert, Dr. Feinstein, the Commissioner might not have been able
to carry his burden of proof that there exist jobs in significant numbers for someone with
Plaintiff’s characteristics, including limitations of hand use, and this may well be so.
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This Court finds that the ALJ erred at step four by failing to consider all relevant
evidence. The decision of the Commissioner will be vacated, and the case remanded to the
Commissioner for further proceedings in accordance with this Opinion.
III. CONCLUSION
For the reasons stated above, this Court finds that the Commissioner’s decision is
vacated. and the case is remanded to the Commissioner for further proceedings in accordance
with this Opinion.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: October 13, 2011
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