LOPEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 10

OPINION. Signed by Judge Jose L. Linares on 9/20/2013. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EVELYN LOPEZ,

Civil Action No. 12-7238 (JLL)

Plaintiff,
v.

OPINION

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
LINARES, District Judge.
Presently before the Court is Plaintiff Evelyn Lopez (“Plaintiff’)’s Appeal seeking
review of a final detennination by Administrative Law Judge (“AU”) Joel H. Friedman denying
her application for Supplemental Security Income (“SSI”). The court has jurisdiction to review
this matter pursuant to 24 U.S.C.

§ 405(g). No oral argument was heard. Fed. R. Civ. P. 78. For

the reasons set forth below, this Court concludes that the Commissioner’s determination is not
supported by substantial evidence and is hereby reversed and remanded.
I.

FACTS AND PROCEDURAL HISTORY

Plaintiff is a 53-year-old woman who filed an application for SSI on August 30, 2004,
alleging disability beginning on that date. (R. 17.)’

Plaintiff alleged that she was disabled

because of “kidney stones, high blood pressure, angina, irregular heart beat, lower back and
swollen body.”

(R. 32.)

Her application was denied on March 31, 2005 and again upon

reconsideration on July 12, 2005. Id. Plaintiff then filed a request for a hearing on July 20,
2005.

The hearing was held on September 26, 2006 before AU Dennis O’Leary. Id.

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

A

supplemental hearing was held at which a medical expert, Dr.
Martin Fechner, and a vocational
expert appeared and testified. Id. On April 9, 2007, the AU
concluded that Plaintiff was not
disabled. Id. at 17-26.
Plaintiff requested an appeal of the AU’s decision. The App
eals Council denied review
on June 30, 2009. Id. at 5-8. Plaintiff appealed to the District
Court, which approved a Consent
Order to reverse and remand the decision of the Commiss
ioner. Id. at 713-14. Pursuant to this
Order, the Appeals Council issued a Remand Order on Sept
ember 14, 2010. Id. at 715-19. A
new hearing was held before AU Joel H. Friedman on Dece
mber 21, 2010. Id. at 704. Dr. Pat
Green, a vocational expert, testified at the hearing. Id. In
his opinion dated September 21, 2011,
the AU denied disability benefits, finding that Plaintiff’s Resi
dual Functional Capacity (“RFC”)
was compatible with certain light work. Id. at 711.
In reaching this conclusion, the AU found that Plaintiff had
been engaged in substantial
gainful activity from 2008 through the first quarter of 2011.
As a result, the AU restricted his
analysis to the time period when Plaintiff was not enga
ged in such activity, from 2004 through
2007. Next, the AU found that Plaintiff had the seve
re impairments of atypical chest pain,
hypertension, arthritis, depression, and anxiety, but
that these impairments did not meet or
exceed the listed requirements. Id. at 707-8. The AU deter
mined that Plaintiff had the RFC to
perform light work, specifically “work involving no more
than simple, routine jobs in a low
contact setting, and not requiring contact with the genera
l public.” Plaintiff was unable to
“perform work involving more than.. .the occasion
al stooping, crouching or crawling; and
involving climbing of.. ladders, ropes, scaffolds or
exposure to hazards such as dangerous
machinery or unprotected heights.” Id. at 708.
The AU found that, as a result of these
restrictions, Plaintiff was unable to perform her past
relevant work. Id. at 710. Relying on Dr.
.

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Green’s responses to hypothetical questions, the AU found that there
were light, unskilled jobs
in significant number in the economy that Plaintiff could perform, finding
Plaintiff not disabled.
Id. at 711.
After the Appeals Council declined jurisdiction on September
19, 2012, Plaintiff filed
this timely appeal on November 21, 2012, challenging the AU ‘s determ
ination that Plaintiff was
not disabled. (P1. Br. 1-2.)
II.

STATEMENT OF THE LAW
A. Standard of Review

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” and

“means such relevant evidence as a reasonable mind might
accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
The court defers to the findings
and conclusions of the AU, but has the “duty to scrutinize
the record as a whole to determine
whether the conclusions reached are rational” and supported
by substantial evidence. Gober v.
Matthews, 574 F.2d 772, 776 (3d Cir. 1978).

The 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). Courts should “review cases for
errors of law ‘without regard to
errors’ that do not affect the parties’ ‘substantial rights.” Shinse
ki v. Sanders, 556 U.S. 396, 407
(2009) (citing Kotteakos v. United States, 328 U.S. 750, 759 (1946)
).
B. The Five-Step Evaluation Process

Under the Social Security Act, a claimant must demonstrate
that he is disabled based on
an inability “to engage in any substantial gainful activity
by reason of any medically
determinable physical or mental impairment which has lasted
or can be expected to last for a

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continuous period of not less than twelve months.” 42 U.S.C.

§ 1382c(a)(3)(A). A person is

disabled for these purposes only if 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 substantial gainful work which
exists in the national
economy.” 42 U.S.C.

§ 1382c(a)(3)(B).

The Social Security Administration has established a fivepart sequen
tial evaluation
process for determining whether a complainant is disabled. 20 C.F.R.

§ 404.1520, 416.920.

First, the Commissioner of Social Security (“the Commissione
r”) decides whether the
complainant is currently engaging in substantial gainful activity.
If the complainant meets this
test, then the Commissioner must determine whether the complainant’
s impairments or
combination of impairments are severe.

If the impairment is determined to be severe, the

Commissioner must then decide whether the complainant suffers from
a listed impairment or its
equivalent.

If he does not, the Commissioner must then decide whether,
based on the

complainant’s “residual functional capacity” (“RFC”), the complainant
is able to perform his
past relevant work. If the complainant is unable to perform said
work, then the Commissioner
must proceed to the final step. Up to this point, the burden falls
upon the complainant to prove
his disability. See Wallace v. Sec’y of Health & Human Servs.,
722 F.2d 1150, 1153 (3d Cir.
1983). If the complainant has carried his burden of proof to
this stage, the burden shifts to the
Commissioner to prove that other work exists in significant numbe
rs in the national economy
that the plaintiff could perform given his RFC, age, education,
and past work experience. 20
C.F.R.

§ 404.1 520(a)(4)(v). If the Commissioner provides sufficient evidence to satisfy this

burden, the plaintiff is not disabled. Id.
III.

DISCUSSION

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Plaintiff makes several allegations in support of her instant appeal.
First, she alleges that
the AU erred at step two by not considering whether Plaintiffs
foot and ankle problems were
severe impairments. Second, Plaintiff claims that the AU erred
at step three by not comparing
“the combination of Plaintiffs severe impairments [and specifi
cally her severe physical
impairments] to the requirements of the listings.” Third, Plain
tiff claims that the AU erred at
step four by failing to justify both the exertional RFC for light
work and the non-exertional RFC
for simple, routine low contact jobs. At this step, Plaintiff alleges
that the AU left out probative
evidence related to the consultative examination of Plaintiff
by Dr. Oleg Frank in 2005 and
improperly “condense[d] plaintiffs depression and anxiety
disorders into a convenient and
familiar formula. [that is] outlawed in third-circuit opinions.”
Fourth, Plaintiff alleges that “the
. .

required pain evaluation is absent from the decision.”

Finally, Plaintiff claims that the

Commissioner failed to sustain his burden at step five, as the
“jobs recited based on a faulty RFC
cannot be utilized to satisfy the Commissioner’s burden.”
The Court will address Plaintiffs arguments related to steps
two and three of the AU’s
analysis. Because the Court finds merit in Plaintiffs conten
tion that the AU’s determination at
step three was not based on substantial evidence, the
Court need not address Plaintiffs
arguments relates to steps four and five.
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A. Any Error at Step Two Is Harmless

The first issue raised on appeal is whether the AU proper
ly determined that Plaintiffs
foot and ankle problems were not severe impairments.
Plaintiff argues that the AU did not
consider whether Plaintiffs foot and ankle problems were
severe impairments and, thus, failed to
weigh medical evidence relating to her lower extremities.
The only record Plaintiff points to
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However, it would be advisable for the Commissioner
to give further consideration to these issues on remand. See
infra note 3.

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from the relevant time period (2004-2007) is a 2005 report in which
Dr. Frank found that
Plaintiff had “trouble with heel-to-toe walking” due to a history of foot
surgery, “decreased
vibratory sensation” in her left lower extremity, an antalgic gait and
station, and occasional
swelling in her legs. (P1. Br. 14, 17; R. 284-85.) Dr. Frank conclu
ded, however, that Plaintiff
was able to “sit, stand, [and] walk.” (R. 285.)
Having carefully considered the parties’ arguments, and the decision
of the AU, the
Court concludes that, even if the AU erred by failing to consider whethe
r Plaintiffs foot and
ankle problems were severe, the error was harmless because the AU
found that Plaintiff had
severe impairments and continued the sequential analysis. (R. 707);
Salles v. Comm ‘r of Soc.
Sec., 229 Fed. Appx. 140, 145 n.2 (3d Cir. 2007) (citing Rutherford v. Barnha
rt, 399 F.3d 546,
553 (3d Cir. 2005)); Williams v. Comm’r of the SSA, 2013 U.S. Dist.
LEXIS 118525, at *46..49

(D.N.J. 2013); accord Carpenter

i’.

Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“any error

here became harmless when the AU reached the proper conclusion that
[plaintiff] could not be
denied benefits conclusively at step two and proceeded to the next step”);
Lewis v. Astrue, 498
F.3d 909, 911(9th Cir. 2007) (“the AU considered any limitations posed
by the [impairment] at
Step 4. .[A]ny error that the AU made in failing to include the [impai
rment] at Step 2 was
. .

harmless”). When an AU proceeds past step two and makes an RFC
determination, at that point
the AU must consider the combined effect of all the plaintiffs
impairments, whether or not
those impairments were deemed severe. See 20 C.F.R.

§ 404.1523 (the Commissioner “will

consider the combined effect of all [plaintiffs] impairments withou
t regard to whether any such
impairment, if considered separately, would be of sufficient severit
y”). Accordingly, remand is
not warranted to reconsider the step-two determination.

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B. At Step Three, the AU Failed to Compare Plaintiff’s Severe
Physical Impairments
to the Listed Impairments

At step three, if the claimant’s impairment or group of impairments
is found to be one of
the Listed Impairments in 20 C.F.R.

§ 404, Subpart P, Appendix 1 or is found to be the medical

equivalent of a Listed Impairment, then the claimant is automatically
deemed disabled. 20
C.F.R.

§ 404.1520(e). Here, in conducting his step-three analysis, the AU found that Plaintiffs

severe medical conditions did not meet or medically equal one of the
Listed Impairments, but
failed to provide any reasons for this determination as to Plaintiffs
physical impairments.
It is established law in this circuit that in making a step-three determ
ination the AU must
indicate the evidence he found persuasive and that which he rejected,
as well as his reasons for
doing so. See Cotter v. Harris, 642 F.2d 700, 705-7 (3d Cir. 1981).
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“The AU has a duty to
hear and evaluate all relevant evidence in order to determine whethe
r an applicant is entitled to
disability benefits. The AU’s decision must be in writing and contain
findings of fact and a
statement of reasons in support thereof.” Id. at 704. At step two of
his analysis, the AU found
that Plaintiff had the following severe impairments: atypical chest
pain, hypertension, arthritis,
depression, and anxiety. (R. 707.) At step three, the AU stated
that Plaintiffs “impairments,
singly or in combination, do not meet or equal the regulatory require
ments of any listing.” Id.
The AU laid out his reasoning as to why Plaintiffs mental impair
ments did not meet or equal a
listed impairment, but did not even mention Plaintiffs atypical
chest pain, hypertension, or
It is worth noting that this problem recurs throughout the AU’s
opinion and is not confined to his analysis at step
three. For example, when determining Plaintiff’s RFC for the
step-four analysis, the AU did not address any
medical records containing evidence (or lack thereof) of Plainti
ff’s physical impairments during the relevant period
(2004-2007) other than x-rays of Plaintiff’s chest taken on June
10, 2006. (R. 708-10.) Among the extensive
medical records are the consultative examination conducted in
March 2005 by Dr. Frank and numerous hospital
visits. (R. at 164-468.) The AU acknowledged the 2006 medica
l assessment of Plaintiff by Dr. Fechner, but
declined to detail any findings related to physical impairments
contained therein. (R. 477-85; 709.) “The disparity
between the actual record and the AU’s sparse synopsis of it
makes it impossible.. .to review the AU’s decision, for
[the Court] cannot tell if significant probative evidence was
not credited or simply ignored.” Fargnoli V. Halter, 247
F.3d 34, 42 (3d Cir. 2001) (citing Burnett, 220 F.3d at 121)
(internal quotation marks omitted).
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arthritis, or why such impairments did or did not meet or equal a listed
impairment. A
conclusory statement that none of Plaintiff’s “impairments, singly
or combination, meet or equal
the regulatory requirements of any listing” is insufficient to withsta
nd a substantial evidence
standard. (R. at 707.); see Burnett v. Comm’r ofSoc. Sec. Admin.,
220 F.3d 112, 119 (3d Cir.
2000). In Burnett, this circuit held that an AU’s determination would
be set aside if it “merely
stated a summary conclusion that [claimant] ‘s impairments did
not meet or equal any Listed
Impairment,’ without identifying the relevant listed impairments,
discussing the evidence or
explaining his reasoning.” Id. (quoting Clifton v. Chater, 79 F.3d
1007 (10th Cir. 1981)).
The conclusory statement provided by the AU in step three provid
es no basis for the
Court to evaluate his findings and therefore the Court will reverse
and remand the case for a
discussion of the evidence and an explanation of reasoning suppor
ting a determination that
Plaintiff’s severe impairments do not meet or medically equal
a listed impairment. “On remand,
the AU shall fully develop the record and explain his findings at
step three, including an
analysis of whether and why [Plaintiff’s]

.

.

.

impairments, or those impairments combined, are

or are not equivalent in severity to one of the listed impairments.
” Burnett, 220 F.3d 120. This
Court is not “empowered to weigh the evidence or substitute its
conclusions for those of the factfinder.” Williams, 970 F.2d at 1182. Similarly, “[c]ourts cannot
exercise their duty of review
unless they are advised of the considerations underlying the action
under review.

. . .

[T]he orderly

functioning of the process of review requires that the grounds
upon which the administrative
agency acted be clearly disclosed and adequately sustained.”
Cotter, 642 F.2d at 705 n.7 (citing
SEC v. C’henety corp., 318 U.S. 80, 94 (1943)). For these reason
s, the Court will reverse the
judgment of the AU and remand fbr further proceedings.
IV. CONCLUSION

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Based on the reasons set forth above, Plaintiff Evelyn Lope
z’s appeal to this Court to
reverse the Commissioner’s decision or to remand the claim
to the Commissioner is granted.
An appropriate Order accompanies this Opinion.

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Date:

//

}se L. Linares
United States District Judge

September2O13

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