ROSA v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION fld. Signed by Judge Jose L. Linares on 9/20/13. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
VICTOR RAFAEL ROSA,
Plaintiff,
v.

Civil Action No. 12-5 176 (JLL)

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, District Judge.
Before the Court is Plaintiff Victor Rafael Rosa (“Plaintiff’ or “Claimant”)’s appeal
seeking review of a final determination by Administrative Law Judge (“AU”) Donna A. Krappa
denying her application for supplemental security income (“SSI”). The Court declines Plaintiffs
request for oral argument and, thus, resolves this matter on the Parties’ briefs pursuant to Local
Civil Rule 9.1(f). For the reasons below, the Court affirms the final decision of the
Commissioner of Social Security (the “Commissioner”).
I.

BACKGROUND
A.

Facts and Procedural History

Plaintiff was born on March 23, 1957, in Santo Domingo, Dominican Republic. R. at 30,
46.1 He moved to the United States in 1978 and
is an American citizen. Id. at 30, 34. Plaintiff
speaks Spanish. Id. at 28, 277. He has a partial elementary school education and is unable
to
either read or speak English. Id. at 30, 277, 280.

“R.” refers to the pages of the Administrative Record.

Plaintiff has worked sporadically over the years. Id. at 30-3 1, 37. He has worked as a
bodega owner, pocketbook distributor, and cleaner. Id. He most recently worked as an office
cleaner in 2005. Id. at 37. He claims that he both gets along with authority figures and can
follow written instruction “ok.” Id. at 162-63.
Plaintiff lives with, and is supported by, his daughter. Id. at 30. He helps shop for
groceries, pays bills, uses a checkbook, prepares meals for himself, and sometimes cleans their
apartment. Id. at 33, 160. Plaintiff’s daughter takes care of their laundry and does the cleaning
that requires more strength. Id. at 33. Plaintiff has a driver’s license, but alleges that he has not
driven in at least one year. Id. at 33, 160.
On November 28, 2008, Plaintiff filed an application for SSI with the Social Security
Administration (“SSA”). Id. at 114-16. The SSA denied Plaintiff’s application and subsequent
request for reconsideration. Id. at 46-47, 54-56. In response, Plaintiff filed a request for a
hearing before an AU with the Office of Disability Adjudication and Review (the “ODAR”). Id.
at 62-63.
Said hearing occurred before AU Krappa on August 16, 2010, in Newark, New Jersey.
Id. at 24. Patricia Sasona, an impartial vocational expert, testified at the hearing. Id. at 37-42.
Afier reviewing the facts of Plaintiff’s case, on September 13, 2010, AU Krappa issued a
decision finding that Plaintiff was not disabled from November 28, 2008, through the date of
2
decision. Id. at 16-23.
Plaintiff sought Appeals Council review. Id. at 9. The Appeals Council denied
Plaintiff’s request on June 22, 2012, rendering the AU’s decision the final decision of the

2

SSI benefits are not payable for any month prior to the month after the application for
such benefits is filed. 20

C.F.R. § 416.335.

2

Commissioner. Id. at 1-4. As a result, Plaintiff appealed to this Court on August 16, 2012.
Compi. at 1-3. This Court has jurisdiction to review this matter pursuant to 42 U.S.C.
B.

§ 405(g).

Medical Evidence for the Relevant Time Period

Plaintiff claims that he is disabled because of his (1) degenerative disc disease, (2) status
post colostomy reversal, (3) sleep apnea, and (4) dysthymic disorder. Plaintiff sugges that
ts
these health issues prevent him from walking further than three blocks, standing for longer
than
fifteen minutes, sitting for more than half an hour, and carrying more than ten pounds.
See R. at
31-32. A discussion of each of Plaintiff’s health issues follows.
1.

Degenerative Disc Disease

Plaintiff has had chronic back pain for many years. Id. at 328. In March 2009, State
consultant orthopedist Dr. Francky Merlin examined Plaintiff. Id. at 280-81. Dr. Merlin
noted
that Plaintiff had a normal station and gait, no difficulty getting up from the seated positio
n, no
difficulty getting on and off of the examining table, and unimpaired grasping strengt
h and
manipulative functions. Id. at 281. Dr. Merlin further noted that Plaintiff was able
to flex his
spine forward ninety degrees, perform a straight leg raise ninety degrees bilaterally,
squat, and
walk on his heels and toes. Id. In addition, Dr. Merlin noted that Plaintiff had norma
l responses
to light touch, pinprick, and vibration. id. However, Dr. Merlin noted that Plainti
ffs neck had
tenderness and a reduced range of motion—”lefi rotation 0-30 degrees, right rotatio
n 0-30
degrees, fiexion 0-30 degrees, and extension 0-30 degrees.” Id. Dr. Merlin diagno
sed Plaintiff
with joint pain. Id.
In August 2009, the Community Medical Center in Toms River, New Jersey
x-rayed
Plaintiff’s cervical and lumbar spines. Id. at 33 1-32. The x-ray of Plaintiff’s
cervical spine—his
neck—revealed no bone injury. Id. at 331. However, said x-ray revealed posteri
or soft tissue

3

calcifications, disc space narrowing in the C5-C6 and C6-C7 discs, and degenerative cervical
spondylitic change. Id. The x-ray of Plaintiffs lumbar spine revealed no bony injury, fracture,
or malalignment. Id. at 332. Said x-ray also revealed maintained vertebral body heights, intact
posterior elements, and degenerative lumbar spondylitic changes in the L5-S 1 disc. Id.
In September 2009, Dr. Mohammed Islam, Plaintiff’s treating physician, noted that
Plaintiff had no deformity or scoliosis in either his thoracic or lumbar spine. Id. at 333. Dr.
Islam also noted that Plaintiff had a normal full range of motion in all of his joints. Id. at 334.
Lastly, Dr. Islam noted that Plaintiff had normal sensation, reflexes, coordination, and muscle
strength and tone. Id. Plaintiff takes Tylenol. Id. at 34.
2.

Plaintiff’s Status Post Colostomy Reversal

On January 17, 2007, doctors at the Raritan Bay Medical Center performed a colostomy
on Plaintiff via Hartmann’s procedure to treat his perforated diverticulitis. Id. at 185, 257-5 8.
Nine months later, on September 10, 2007, Plaintiff again underwent surgery at Raritan Bay
Medical Center to reverse his colostomy by end-to-end anastomosis. Id. at 184. Despite this
history, during Plaintiffs office visits with Dr. Islam in May and August 2009, Plaintiff denied
experiencing gas, abdominal pain, abdominal bloating, diarrhea, changes in bowel habits,
constipation, dark tarry stools, or bloody stools. Id. at 322-23, 328-29. However, Plaintiff
testified at the August 16, 2010 hearing that he uses the bathroom about six times a day and
occasionally defecates while seated without realizing that he has done so. Id. at 35.
3.

Sleep Apnea

Plaintiff stated in his January 2009 function report that he suffered from “shortness of
breath” and “very sleepless nights.” Id. at 158. In March 2009, Dr. Merlin noted that Plaintiffs

4

lungs had no wheezing, rales, or ronchi.

Id. at 281. From May to September 2009, Dr. Islam’s

reports state that Plaintiff’s lungs were clear bilaterally to auscultation. Id. at 323, 329, 333. In
4
May 2009, Dr. Islam noted that Plaintiff denied sleep disturbances due to breathing, coughing,
shortness of breath, or excessive snoring. id. at 322-23. Nonetheless, at that time, Plaintiff
requested a sleep study, and Plaintiff’s daughter communicated to Dr. Islam that Plaintiff snored
heavily and experienced daytime sleepiness. Id. at 322. On September 14, 2009, Dr. Islam
diagnosed Plaintiff with mild obstructive sleep apnea. Id. at 334. Plaintiff testified at the
August 16, 2010 hearing that he has to attach himself to a machine to be able to sleep. Id. at 35.
4.

Dysthymic Disorder

A description of Plaintiff’s dysthymic disorder follows. In March 2009, State consultant
psychiatrist Dr. Pradip Gupta performed a mental status examination of Plaintiff. Id. at 277-79.
During said examination, Plaintiff told Dr. Gupta that he had been suffering from depression for
the past two years. Id. at 277. Plaintiff also indicated that he had never been hospitalized for
psychiatric reasons and that he was not taking antidepressants. Id. Ultimately, Dr. Gupta
diagnosed Plaintiff with dysthymic disorder and assigned him a Global Assessment of
5
Functioning (“GAF”) rating of fifty-five. Id. at 278.
6

Rales and ronchi refer to abnormal respiratory sounds. Mosby’s Medical, Nursing, & Allied Health
Dictionary
444, 1508 (6th ed. 2002) (hereinafter Mosby’s Dictionary).
Auscultation refers to the act of listening for sounds within the body to evaluate the condition of the
lungs,
typically through a stethoscope. Mosby’s Dictionary 161.
Dysthymic disorder refers to “a disorder of mood in which the essential feature is a chronic disturbance
of mood of
at least 2 years’ duration. It involves either depressed mood or loss of interest or pleasure in all or almost
all usual
activities and pastimes, and associated symptoms, but not of sufficient severity and duration to
meet the criteria of a
major depressive episode.” Mosby’s Dictionary 564.
6
The GAi Scale ranges from zero to one-hundred. American Psychiatric Association, Diagnostic
and Statistical
Manual of Mental Disorders 34 (4th ed. text rev. 2000) (hereinafter DSM-IV-TR). An individual’s
“GAF rating is
within a particular decile if either the symptom severity or the level of functioning falls within the
range.” Id. at 32.
“[Tin situations where the individual’s symptom seventy and level of functioning are discordant,
the final GAF
rating always retlects the worse of the two.” Id. at 33. “In most instances, ratings on the GAP Scale
should be for
the current period (i.e., the level of functioning at the time of the evaluation) because ratings of current
functioning
will generally reflect the need for treatment or care.” Id. A GAP rating of fifty-one to sixty indicates
that an

5

Dr. Gupta noted that Plaintiff had a decreased and below average general fund of
knowledge, and poor abstracts and reasoning. Id. Dr. Gupta also noted that Plaintiff had poor
insight, the inability to perform serial sevens or threes, and the ability to remember only two out
of three objects—an umbrella, an apple, and a hat—after the passage of three minutes. Id.
Nonetheless, Dr. Gupta noted that Plaintiff could perform simple calculations and exhibited fair
remote memory. Id. In addition, Dr. Gupta noted that Plaintiff had a flat and constricted affect,
and decreased and below average intelligence and judgment. Id. However, Dr. Gupta noted that
Plaintiff could follow a three step command. Id. Furthermore, Dr. Gupta noted that Plaintiff
could not drive a car, take public transportation, or do much household cleaning or cooking. Id.
Lastly, Dr. Gupta noted that Plaintiff most likely could not handle money matters on his own and
that he held no signs of psychosis. Id. Yet, Dr. Gupta noted that Plaintiff “is independent in
daily activities and [activities of daily living “ADL”j independent.” Id.
At the August 16, 2010 hearing, Plaintiff testified that he was not then taking
antidepressants. Id. at 34. Plaintiff also testified that he had not attended depression therapy for
approximately eight months. Id. at 34-35.
II.

LEGAL STANDARD

A.

The Five-Step Process for Evaluating Whether a Claimant Has a Disability

Under the Social Security Act, the SSA is authorized to pay SSI to “disabled” persons.
42 U.S.C.

§ 1382(a). A person is “disabled” if “he is unable 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). A person is unable to engage in

individual has “[mjoderate symptoms,” e.g., “flat affect and circumstantial speech, [on occasional panic attacks,”
or
“moderate difficulty in social, occupational, or school functioning
Id. at 34.

6

substantial gainful activity when his physical or mental 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...

.“

42 U.S.C.

§ l382c(a)(3)(B).

Regulations promulgated under the Social Security Act establish a five-step process for
determining whether a claimant is disabled. 20 C.F.R.

§ 4l6.920(a)(1). At step one, the AU

assesses whether the claimant is currently performing substantial gainful activity. 20 C.F.R.

§

416.920(a)(4)(i). If so, the claimant is not disabled and, thus, the process ends. Id. If not, the
AU proceeds to step two and determines whether the claimant has a “severe” physical or mental
impairment or combination of impairments. 20 C.F.R.

§ 4l6.920(a)(4)(ii). Absent such

impairment, the claimant is not disabled. Id. Conversely, if the claimant has such impairment,
the AU proceeds to step three. Id. At step three, the AU evaluates whether the claimant’s
severe impairment either meets or equals a listed impairment. 20 C.F.R.

§ 41 6.920(a)(4)(iii). If

so, the claimant is disabled. Id. Otherwise, the AU moves on to step four, which involves three
sub-steps:
(1) the AU must make specific findings of fact as to the claimant’s residual
functional capacity [(“RFC”)j; (2) the AU must make findings of the physical
and mental demands of the claimant’s past relevant work; and (3) the AU must
compare the [RFCj to the past relevant work to determine whether claimant has
the level of capability needed to perform the past relevant work.
Burnett v. Comm ‘r ofSoc. Sec. Adinin., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted).
The claimant is not disabled if his RFC allows him to perform his past relevant work. 20 C.F.R.

§ 416.920(a)(4)(iv). However, if the claimant’s RFC prevents him from doing so, the AU
proceeds to the fifth and final step of the process. Id.

7

The claimant bears the burden of proof for steps one, two, and four. Sykes v. Apfel, 228
F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three “[bjecause
step three involves a conclusive presumption based on the listings.

.

.

.“

Id. at 263 n. 2 (citing

Bowen v. Yuckert, 482 U.S. 137, 146-47 n. 5, 107 5. Ct. 2287, 96 L. Ed. 2d 119 (1987)). The

AU bears the burden of proof for the final step. See id. at 263. The final step requires the AU
to “show [thatj 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 [RFCJ.” Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). In doing so,
“[t]he AU must analyze the cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled.” Id. (citation omitted). Notably,
the AU typically seeks the assistance of a vocational expert at this final step. Id. (citation
omitted).
B.

The Standard of Review: “Substantial Evidence”
7

This Court must affirm an AU’s decision if it is supported by substantial evidence. See
42 U.S.C.

§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla. 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, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 5. Ct. 206, 83 L.Ed. 126 (1938)). To
determine whether an AU’s decision is supported by substantial evidence, this Court must
review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). However,
this Court may not “weigh the evidence or substitute its conclusions for those of the fact-finder.”
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted). Consequently, this
Because the regulations governing SSI—20 C.F.R. § 416.920—are identical to those covering disability insurance
benefits—20 C.F.R. § 404.1 520—this Court will consider case law developed under both regimes. Rutherford
v.
Barnhart, 399 F.3d 546, 551 n. I (3d Cir. 2005) (citation omitted).

8

Court may not set an AU’s decision aside, “even if [it] would have decided the factual inquiry
differently.” Hartranftv. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations omitted).
III.

DISCUSSION
At step one, the AU found that Plaintiff “ha[d] not engaged in substantial gainful activity

since November 28, 2008, the application date...

.“

R. at 18. At step two, the AU found that

Plaintiff’s degenerative disc disease and status post colostomy reversal were severe impairments.
Id. The AU also found that Plaintiffs dysthymic disorder and mild sleep apnea were not severe
impairments. Id. At step three, the AU found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed impairments. Id. at
19. At step four, the AU found that Plaintiff had the RFC to perform medium work that is
simple, unskilled, and repetitive. Id. As Plaintiff had no past employment that qualified as
“prior relevant work,” the AU continued to step five. Id. at 22. At step five, the AU found that
there were jobs existing in significant numbers in the national economy that Plaintiff could
perform. Id. Thus, the AU concluded that Plaintiff was not disabled. Id. at 23. Plaintiff
contends that the AU erred at steps two, three, four, and five. The Court addresses each of
Plaintiffs contentions in turn.
A.

Whether the AU Properly Found that Plaintiffs Dysthymic Disorder Was a NonSevere Impairment at Step Two

Plaintiff contends that the AU erred at step two by finding that Plaintiffs dysthymic
disorder was not a severe impairment. P1. Br. at 16. The AU supported this finding by
noting
that Dr. Gupta found in his March 2009 examination of Plaintiff that he: (1) could follow
a
three-step command; (2) was independent in his ADL; (3) held no signs of psychosis; (4)
could
perform simple calculations; (5) exhibited fair remote memory; (6) denied undergoing
any
psychiatric treatment; (7) had never been psychiatrically hospitalized; and (8) was not
taking
9

anti-depressants at that time. R. at 18. In further support of her conclusion, the AU referen
ced
some of Plaintiff’s responses to the January 2009 function report. Id. The AU noted that
Plaintiff stated in said report that he could drive, pay bills, use a checkbook, get along with
authority figures, and follow written instructions. Id.
Plaintiff asserts that the above facts referenced by the AU in support of her severity
finding were inadequate in light of other relevant findings made by Dr. Gupta. P1. Br. at 16-18.
Specifically, Dr. Gupta’s seven findings that Plaintiff had: (1) a decreased and below averag
e
general fund of knowledge; (2) poor abstracts and reasoning; (3) decreased and below averag
e
intelligence and judgment; (4) poor insight; (5) the inability to perform serial sevens or
threes;
(6) the ability to remember only two out of three objects—an umbrella, an apple, and a hat—
after the passage of three minutes; and (7) a flat and constricted affect. P1. Br. at 16-18; R. at
278. Plaintiff emphasizes that the AU also omitted the GAF rating of fifty-five that Dr.
Gupta
assigned to Plaintiff. P1. Br. at 18; R. at 278. Likewise, Plaintiff alleges that the AU cherry
picked from the comment section of Dr. Gupta’s evaluation, which states in relevant part:
The patient came here with a friend who brought the patient here. The patient
does not drive a car. The patient cannot take public transportation. The patient
cannot do much household cleaning or cooking. The patient is independent in
daily activities and ADL independent. The patient most likely cannot handle
money matters on his own... The patient is currently not on any medications
for depression or anxiety and does not have any insurance at this point.
.

P1. Br. at 18-19; R. at 278. The AU cherry picked, according to Plaintiff, becaus she
e
referenced only Dr. Gupta’s comment that Plaintiff was “independent in daily activiti
es and ADL
independent.” P1. Br. at 18-19. In short, Plaintiff asserts that the AU erred at step
two by
engaging in a selective recitation of the record.
The step-two inquiry into severity “is a de minimis screening device to dispos of
e
groundless claims.” Newell v. Comm ‘r ofSoc. Sec., 347 F.3d 541, 546 (3d Cir.
2003) (citations
10

omitted). An impairment is “severe” if the evidence presented by a claimant demonstrates more
than a “slight abnormality,” having “more than a minimal effect” on the claimant’s ability to do
“basic work activities.” McCrea v. Comm ‘r ofSoc. Sec., 370 F.3d 357, 360 (3d Cir. 2004)
(citations omitted); Newell, 347 F.3d at 546 (citations omitted); SSR 85-28. “Basic work
activities” are “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R.

§ 416.92 1(b).

These include:
(1)
(2)
(3)
(4)
(5)

“Physical functions;”
“Capacities for seeing, hearing, and speaking;”
“Understanding, carrying out, and remembering simple instructions;”
“Use ofjudgment;”
“Responding appropriately to supervision, co-workers and usual work
situations;” and
(6) “Dealing with changes in routine work setting.”

Id. “The Commissioner’s denial at step two, like one made at any other step in the sequential
analysis, is to be upheld if supported by substantial evidence on the record as a whole.” McCrea,
370 F.3d at 361 (citing Williams, 970 F.2d at1182). Consequently, the issue that this Court must
now address is whether “no reasonable person could fail to conclude” that Plaintiffs dysthymic
disorder was “severe’ under the de minimis interpretation of that term currently endorsed by the
Commissioner.” Id. at 362. In doing so, this Court must resolve any reasonable doubts over
severity in favor of Plaintiff. Newell, 347 F.3d at 547.
The Commissioner argues that the AU reasonably found that Plaintiffs dysthymic
disorder was not a severe impairment. Def. Br. at 6. The Commissioner asserts that the AU was
under no obligation to discuss the seven findings from Dr. Gupta’s examination highlighted by
Plaintiff. Id. The Commissioner contends that because these seven findings had no impact on
Plaintiffs ability to perform basic work activities, they were irrelevant to the severity
determination. Id. Not so. For instance, Plaintiffs decreased and below average intelligence

11

and judgment would have “more than a minimal effect” on Plaintiff’s “use ofjudgment,” a basic
work activity. 20 C.F.R.

§ 416.921(b)(4); R. at 278. Likewise, Plaintiff’s poor insight, abstracts,

and reasoning would have “more than a minimal effect” on Plaintiff’s “understanding, carrying
out, and remembering [of] simple instructions,” also a basic work activity. 20 C.F.R.

§

416.92 l(b)(3); R. at 278. Consequently, this Court fmds that the AU erred in finding that
Plaintiff’s dysthymic disorder was not severe. Resolving reasonable doubts over severity in
favor of Plaintiff, the evidence presented by Plaintiff demonstrated “more than a minimal effect”
on his ability to do “basic work activities.” McCrea, 370 F.3d at 360 (citations omitted); Newell,
347 F,3d at 546-47 (citations omitted).
That being said, this Court does not remand this matter on this ground. The Third Circuit
has indicated that an AU’s erroneous finding that some of a claimant’s impairments are not
severe at step two is harmless if the AU finds that the claimant has other severe impairments.
Salles v. Comm ‘r ofSoc. Sec., 229 Fed. App’x 140, 145 n. 2 (3d Cir. 2007) (citing Rutherford v,
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)). Here, the AU found that Plaintiff’s degenerative
disc disease and status post colostomy reversal were severe impairments. R. at 18. Moreover,
the Commissioner correctly points out that “although the AU found that Plaintiff’s mental
impairment was not severe, she nonetheless considered it at the remaining steps of the sequential
evaluation process.

.

.

.“

Def. Br. at 8 (citing R. at 19). The AU did so by limiting Plaintiff to

“simple, unskilled, and repetitive” work in her decisional RFC. R. at 19. Accordingly, the
AU’s erroneous finding at step two was harmless.
B.

Whether the AU Properly Found That Plaintiff Did Not Have an Impairment or
Combination of Impairments That Met or Medically Equaled a Listed Impairment

Plaintiff next contends that the AU erred at step three. Plaintiff argues that the ALl did
not properly assess whether each of Plaintiff’s severe impairments, or the combination thereof,
12

met or medically equaled a listed impairment. P1. Br. at 21-23. An AU must “fully develop the
record and explain his findings at step three, including an analysis of whether and why [each of
claimant’s] impairments, or those impairments combined, are or are not equivalent in severity to
one of the listed impairments.” Burnett, 220 F.3d at 120. The Third Circuit has expressed
concern that an AU might not have satisfied the demands of Burnett when he merely stated that
“[nb treating or examining physician has mentioned findings equivalent in severity to the
criteria of any listed impairment. Particular consideration was given to Listing 1.00
(musculoskeletal system).” Fargnoli v. Massanari, 247 F.3d 34, 40 n.4 (3d Cir. 2001).
Similarly, the AU here stated in a conclusory fashion:
The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments . . . . In making this
finding I considered the fact that no treating or examining physician has
mentioned findings that are the same or equivalent in severity to the criteria of
any listed impairment, nor does the evidence show signs or findings that are the
same or equivalent to those of any listed impairment. I paid particular attention to
the Listing Sections 1.04 (Disorders of the Spine) and 5.00 (the Digestive
System).
R. at 19. In light of this similarity, the AU did not satisfy Burnett.
This error does not warrant remand, though. In a comparable case, the Third Circuit held
that “the AU’s conclusory statement in step three was harmless.” Rivera v. Comm ‘r ofSoc.
Sec., 164 Fed. App’x 260, 263 (3d Cir. 2006). The Rivera court reasoned that there was
“abundant evidence supporting the position taken by the AU, and comparatively little
contradictory evidence.” Id. The same can be said here.
The AU ‘s decision provided abundant evidence that Plaintiff’s degenerative disc disease
did not meet or medical equal an impairment listed in Section 1.04.8 See R. at 20-22.
The AU

To meet Listing 1.04, Plaintiff must show that he has a:
Disorder[] of the spine (e.g.,.. . degenerative disc disease.
root (including the cauda equina) or the spinal cord. With:

13

. .), resulting in compromise of a nerve

noted that Dr. Merlin’s March 2009 examination found that Plaintiff had a normal station and
gait, unimpaired grasping strength and manipulative functions, negative straight leg raising, the
ability to squat, and the ability to toe and heel walk. Id. The AU also noted that Dr. Merlin
found that Plaintiff had no sensory, reflex, motor, or muscle strength loss. Id. Furthermore,
the
AU noted that Dr. Merlin found that Plaintiff had no difficulty getting up from the seated
position, or getting on and off of an examining table. Id. The AU noted, however, that Dr.
Merlin found that Plaintiffs neck had tenderness and a reduced range of motion. Id.
The AU also referred to the August 2009 x-rays of Plaintiff’s cervical and lumbar spines
.
Id. at 20-21. The AU noted that the x-ray of Plaintiffs cervical spine revealed posteri
or soft
tissue calcifications, disc space narrowing in the C5-C6 and C6-C7 discs, degenerative cervica
l
spondylitic change, and no fractures. Id. at 21. The AU also noted that the x-ray of Plainti
ffs
lumbar spine revealed degenerative lumbar spondylitic changes at the L5-S 1 disc. Id. at
20-21.
However, the AU noted that the same x-ray revealed maintained vertebral body height
s, intact
posterior elements, and no fracture or malalignment. Id. Lastly, the AU referred to Dr.
Islam’s
September 2009 examination, which stated that Plaintiff had a full range of motion
in all of his
joints, as well as normal sensation, reflexes, coordination, muscle strength, and muscle
tone. Id.
Likewise, the AU’s decision provided abundant evidence that Plaintiffs status post
colostomy reversal did not meet or medical equal an impairment listed in Section
5.00. The AU

A. Evidence of nerve root compression characterized by nuero-anatomic distribution
of pain,
limitation of motion of the spine, motor loss (atrophy with associated muscle weakness
or muscle
weakness) accompanied by sensory or reflex loss and, if there is involvement
of the lower back,
positive straight-leg raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by
appropriate medically acceptable imaging, manifested by severe burning or painful
dysesthesia,
resulting in the need for changes in position or posture more than once every 2
hours; or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings
on appropriate
medically acceptable imaging, manifested by chronic nonradicular pain and weakness,
and
resulting in inability to ambulate effectively, as defined in 1 .00B2b
20 C.F.R. Part 404, Subpart P, Appendix 1, Section 1.04.

14

stated that “[t]he record reflects no post-operative complication stemming from the claimant’s
colostomy reversal; indeed, at the time of a physical examination on August 14 2009, by Hobart
Medicine the claimant denied experiencing gas, abdominal pain, diarrhea, any change in bowel
habits, constipation, dark tarry stools, and/or bloody stools.

..

.“

Id. at 20 (emphasis in original).

Thus, as the AU’s error at step three was harmless, the Court does not remand on this ground
.
Rivera, 164 Fed. App’x at 263.
C.

Whether the AU’s Decisional RFC is Supported by Substantial Evidence

Plaintiff also contends that the AU’s decisional RFC was not based on substantial
9
evidence. See P1. Br. at 27. RFC is defined as the most that a claimant can still do despite
the
limitations caused by his impairment(s). 20 C.F.R.

§ 416.945(a)(1). In this matter, the AU

determined that Plaintiff had the following RFC:
The claimant is capable of the exertional demands of medium work as defined
under the Social Security Regulations; specifically, he is able to: lift/carry 25
pounds occasionally and 50 pounds frequently; stand/walk for 6 hours in an eight
hour work day; sit for 6 hours in an eight hour work da’; and perform unlimited
pushing and pulling within the weight restriction given. Furthermore, I find that
the claimant is able to perform jobs that are simple, unskilled, and repetitive.
R. at 19.
An AU must consider all pertinent and probative evidence before her when makin
g her
RFC determination. Johnson v. Comm ‘r ofSoc. Sec., 529 F.3d 198, 203-04 (3d Cir.
2008)
(citing Burnett, 220 F.3d at 121 and Cotter v. Harris, 642 F.2d 700, 705-07 (3d
Cir. 1981)).
Here, as discussed above in Section III. B. of this opinion, the AU considered:
(1) Dr. Merlin’s
March 2009 State orthopedic consultative examination; (2) the August 2009
Community

Plaintiff speculates that the AU based her decisional RFC solely on the vocational
expert’s response to the AU’s
hypothetical question at the August 16, 2010 hearing: “It is only after the VE
answered the AU’s lone hypothetical
with three ‘medium’ jobs that the AU ‘decided’ that Plaintiff could perform no
more than medium work.” The
Court will not entertain Plaintiffs speculation of the AU ‘S motive. Accordingly,
the Court instead interprets
Plaintiff’s speculation as a contention that the AU’s decisional RFC was not based
on substantial evidence.

15

Medical Center x-rays of Plaintiff’s cervical and lumbar spines; and (3) Dr. Islam’s treatm
ent
records from 2009. R. at 20-2 1. The AU also considered Plaintiff’s daily routine, claims
concerning his exertional abilities, and dysthymic disorder. Id. at 19. Notably, the AU
found
that Plaintiff’s alleged functional limitations stemming from her degenerative disc disease
were
not credible:
While the record reflects that the claimant had complained of lower back pain for
the past few years and while he testified that he has problems with almost all
exertional activities. [Sicj his spinal MRI reports and musculoskeletal
examinations have revealed little to no abnormalities. Though the claimant has
minimal degenerative spinal changes and only a mildly decreased cervical
motion, nothing in the record corroborates his alleged extreme functional
limitations.
Id. at 22. As the AU has provided “more than a mere scintilla” of relevant eviden
ce in support

of her decisional RFC, this Court finds that her RFC was based on substantial eviden
ce.
D.

Whether the AU’s Findings at Step Five are Supported by Substantial Evidence

Plaintiff contends that the AU did not support her findings at step five with substa
ntial
evidence because of two shortcomings. See P1. Br. at 24-3 6. First, Plaintiff argues
that the
AU ‘s hypothetical question to the vocational expert was not based on substantial
evidence. See
Id. at 29. Second, Plaintiff argues that the AU improperly decided this case
under the grid rules.
Id. at 29-30. A discussion of each argument follows.

1.

Whether the AU’s Hypothetical Question to the Vocational Expert was
Based on Substantial Evidence

Plaintiff contends that the AU’s hypothetical question to the vocational expert
did not
encompass three key findings made by State consultant Dr. Jane Shapir
o in her psychiatric
review of Plaintiff. See P1. Br. at 29. First, Dr. Shapiro’s finding that
Plaintiff had a depressive

16

syndrome characterized by anhedonia or pervasive loss of interest in almost all activit
10 sleep
ies,
disturbance, psychomotor agitation or retardation,” decreased energy, and difficu
lty
concentrating or thinking. R. at 287. Second, Dr. Shapiro’s finding that Plaintiff had
moderate
difficulties in maintaining social functioning. Id. at 294. And, third, Dr. Shapiro’s
finding that
Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace. Id.
An AU ‘s hypothetical question to a vocational expert “must reflect all of a claima
nt’s
impairments that are supported by the record; otherwise the question is deficient and
the expert’s
answer to it cannot be considered substantial evidence.” Chrupcala v. Heckler, 829
F.2d 1269,
1276 (3d Cir. 1987) (citations omitted). “[G]reat specificity’ is required when an AU
incorporates a claimant’s mental or physical limitations into a hypothetical.” Ramirez v.
Barnhart, 372 F.3d 546, 554-55 (3d Cir. 2004) (citing Burns v. Barnhart, 312 F.3d
113, 122 (3d

Cir. 2002). However, there are limits to the required level of specificity. In McDo
nald v. Astrue,
the Third Circuit held that an AU’s hypothetical question limiting a claimant to “simpl
e, routine
tasks” adequately reflected Plaintiff’s “moderate limitations with [respect to] his ability
to
maintain concentration, persistence, and pace.” 293 Fed. App’x 941, 946-47 (3d
Cir. 2008). In
holding so, the Third Circuit distinguished that case from Ramirez, where it had
“held that a
hypothetical requiring that the [claimant’s] work be limited to ‘simple one to
two step tasks’ was
inadequate because it did not take into account that the claimant ‘often suffered
from deficiencies
in concentration, persistence, or pace.” Id. at 947 n. 10 (quoting Ramirez, 372 F.3d
at 554
(emphasis in original)).
o Anhed
onia refers to “the inability to feel pleasure or happiness in response to experie
nces that are ordinarily
pleasurable.” Mosby’s Dictionary 99.
‘Examples of psychomotor agitation include “the inability to sit still, pacing, hand-w
ringing; or pulling or rubbing
of the skin, clothing, or other objects
American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 163 (5th ed. 2013). Examples of psychomotor retardation include
“slowed speech, thinking, and
body movements; increased pauses before answering; speech that is decrea
sed in volume, inflection, amount or
variety of content, or muteness
Id.

17

Turning to the case before this Court, the AU asked the vocational expert to assum
ea
hypothetical individual with Plaintiff’s background limited to “simple, unskilled
and repetitive”
work. R. at 37-3 8. This limitation is substantively the same as that posed by the
AU in
McDonald, which limited the claimant to “simple, routine tasks.” 293 Fed. App’x
at 946-47.
Thus, like the Third Circuit in McDonald, this Court holds that the AU’s hypoth
etical question
adequately reflected Plaintiff’s moderate difficulties in maintaining concentration
, persistence, or
pace.
Still at issue is whether the AU’s hypothetical question adequately reflect Plainti
ed
ff’s
other limitations—his moderate difficulties in maintaining social functioning
and depressive
syndrome. See P1. Br. at 29. This Court holds that the AU’s hypothetical did
so. In addition to
limiting Plaintiff to “simple, unskilled and repetitive tasks,” the AU’ s hypoth
etical provided for
the following limitations: three scheduled breaks of at least fifleen minutes, schedu
led at the
convenience of the employer; occasional changes in work setting; and occasio
nal contact with
the public.’ R. at 37-38. Limiting Plaintiff to occasional contact with the
2
public sufficiently
encompassed his moderate difficulties in maintaining social functioning. Likew
ise, the ALl’s
hypothetical sufficiently encompassed the relevant characteristics stemming
from Plaintiff’s
depressive syndrome—decreased energy and difficulty concentrating or thinkin
g. See
McDonald, 293 Fed. App’x at 946-47.

2

The AU asked the vocational expert the following:
I’d like you to assume someone of Mr. Rosa’s age, educational background
and work history.
And assume that this person can perform work at all exertional levels. Howev
er, the person is
limited to jobs that are simple, unskilled and repetitive. Jobs that would
permit three scheduled
breaks, scheduled at the convenience of the employer during the day; each
of at least 15 minute’s
duration. Jobs that require only an occasional change in work setting during
the workday, and
only occasional contact with the general public. With those restrict
ions, would there be any jobs
that a person could perform in the regional and national economies?

R. at 37-38.

18

Relatedly, Plaintiff contends that the AU’s hypothetical did not adequately reflect
Plaintiff’s impairments because the AU did not tell the vocational expert
that Plaintiff did not
speak English. P1. Br. at 30. Plaintiff’s contention is unavailing. Although
the vocational expert
testified over the phone at the August 16, 2010 hearing, she had the opport
unity to hear an
exchange between the AU and Plaintiff. R. at 36-37. Plaintiff testified throug
h an interpreter
during this exchange. See id. at 26. Thus, the vocational expert was aware
of Plaintiff’s
deficiency in English. Moreover, the AU’s hypothetical question to the vocatio
nal expert
instructed her “to assume someone of Mr. Rosa’s age, educational background
and work
history.” Id. at 37-38. These instructions were sufficiently descriptive to encom
pass Plaintiff’s
language barrier given the facts of this case.
Lastly, Plaintiff notes that his exertional impairments—his degenerative disc
disease and
status post colostomy reversal—yielded no exertional restrictions in the ALl’s
hypothetical
question to the vocational expert. See P1. Br. at 27. Instead, the ALl instruc
ted the vocational
expert to assume a person that could “work at all exertional levels.” R. at
37. As a result,
Plaintiff asserts that the ALl’s hypothetical was not based on substantial eviden
ce. See P1. Br. at
27-28. Again, “[a] hypothetical question must reflect all of a claimant’s
impairments that are
supported by the record.

..

.“

Chrupcala, 829 F.2d at 1276 (citations omitted) (emphasis

added). Here, the AU later found in her decision that Plaintiff’s alleged
functional limitations
originating from her degenerative disc disease were not credible. R. at 22.
The AU also later
found in her decision that the record reflected no post-operative complications
stemming from
Plaintiff’s colostomy reversal. Jd. at 20. As discussed above, in Section
s III A and B, the AU

19

provided substantial evidence in support of these findings. Accordingly, the AU’s
hypothetical
question reflected all of Plaintiff’s impairments that were supported by the
3
record.’
2.

Whether the AU Improperly Decided This Case Under the Grid Rules

Plaintiff argues that the AU improperly decided this case under the grid rules
at step five.
P1. Br. at 29-30. The Court need not address this issue. An AU’s reliance on a vocatio
nal
expert’s response to a properly posed hypothetical question “satisfies the AU’s burden
of
establishing there are jobs available which the claimant can perform given her ‘severe
’
disability.” Plummer, 186 F.3d at 431. Here, the AU properly relied on the vocatio
nal expert’s
response to her hypothetical question when the AU found that there were jobs existin
g in
significant numbers in the national economy that Plaintiff could perform at step five.
R. at 23.
Thus, any errors made by Plaintiff in applying Rule 203.18 would not affect the outcom
e of this
case. Rutherford, 399 F.3d at 553 (not requiring remand “because it would not affect
the
outcome of the case.”).
IV.

CONCLUSION

The Court has reviewed the entire record and, for the reasons discussed above, finds
that
the AU ‘s determination that Plaintiff was not disabled was supported by substantial
evidence.
An appropriate order accompanies this opinion.

DATED: Septemberj 2013
LINARES

‘

Because there was substantial evidence in support of the AU’s statement that Plaintiff
could perform work at all
exertional levels in her hypothetical question, the AU’s subsequent decision
to limit Plaintiff to medium work in her
decisional RFC, at worst, gave Plaintiff the benefit of the doubt. Thus, this alleged inconsistency
does not warrant
remand.

20