KULAS v. COMMISSIONER OF SOCIAL SECURITY
OPINION fld. Signed by Judge Susan D. Wigenton on 4/30/14. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 13-4790 (SDW)
April 30, 2014
COMMISSIONER OF SOCIAL SECURITY,
WIGENTON, District Judge.
Before this Court is Plaintiff Lisa Kulas’ (“Plaintiff”) appeal of the final administrative
decision of the Commissioner of Social Security (“Commissioner”), with respect to
Administrative Law Judge Dennis O’Leary’s (“ALJ”) denial of Plaintiff’s claim for Social
Security Disability Insurance Benefits (“SSDI”) pursuant to 42 U.S.C. § 405(g). This appeal is
decided without oral argument pursuant to Federal Rule of Civil Procedure 78. This Court has
subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under 28 U.S.C. §
1391(b). For the reasons stated below, the final decision of the Commissioner is vacated and
this matter is remanded for further proceedings.
Plaintiff is a resident of Avenel, New Jersey. (Compl. ¶ 2.) She previously worked as a
waitress, hostess, and bartender. (Id. ¶ 4; Pl. Br. 13.) On April 29, 2010, Plaintiff stated that she
was drinking, fought with a friend, and jumped out of a moving car. (R. 25.) She suffered
fractures to her “left humerus and humeral head and radial nerve palsy of the left arm with [a]
wound on the left forearm.” (Id.) That day, Plaintiff underwent surgery and was discharged on
May 4, 2010 in stable condition. (R. 25, 186.)
Following her injury, Plaintiff was examined and treated by Dr. Surrender M. Grover,
M.D. (“Dr. Grover”) from May 2010 through August 2010. (R. 25-27.) In his office notes, Dr.
Grover reports that Plaintiff complained of pain in her left arm and lower back. (Id.) Plaintiff
alleges that she has continued to suffer from severe orthopedic and neurological conditions since
April 29, 2010. (Compl. ¶¶ 5, 6.) Plaintiff asserts that she must soak in a hot bath for at least
one hour each day in order to move and that she cannot lift her left arm above her shoulder. (R.
On or about May 24, 2010, Plaintiff filed an application for SSDI benefits alleging
disability since April 29, 2010. (Compl. ¶ 4; R. 22.) The Social Security Administration (the
“SSA”) denied Plaintiff’s application initially and on reconsideration. (R. 22, 57-74.) Plaintiff
then requested a hearing before an ALJ. (Id. at 75-78.) A hearing was held on November 7,
2011. (Id. at 86, 94.) On February 1, 2012, Plaintiff’s claim was denied. (Compl. ¶ 8.) The
ALJ found that Plaintiff was not disabled at any time since April 29, 2010. (R. 27-28.) The
Appeals Council affirmed the ALJ’s denial on June 12, 2013. (Compl. ¶ 8.) Subsequently,
Plaintiff filed the instant appeal on August 9, 2013.
In social security appeals, this Court has plenary review of the legal issues decided by the
Commissioner. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Yet, this Court’s review of the
ALJ’s factual findings is limited to determining whether there is substantial evidence to support
those conclusions. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence
“does not mean a large or considerable amount of evidence, but rather such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552, 565 (1988) (internal quotations omitted).
Substantial evidence is “less than a preponderance of the evidence, but ‘more than a mere
scintilla’; it is ‘such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Bailey v. Comm’r of Soc. Sec., 354 F. App’x. 613, 616 (3d Cir. 2009) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Importantly, “[t]his standard is not met if the
Commissioner ‘ignores, or fails to resolve, a conflict created by countervailing evidence.’”
Bailey, 354 F. App’x. at 616 (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
However, if the factual record is adequately developed, “‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Daniels v. Astrue, No. 08-cv-1676, 2009 WL
1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). “The ALJ’s decision may not be set aside merely because [a reviewing court]
would have reached a different decision.” Cruz v. Comm’r of Soc. Sec., 244 F. App’x. 475, 479
(3d Cir. 2007) (citing Hartranft, 181 F.3d at 360). This Court is required to give substantial
weight and deference to the ALJ’s findings. See Scott v. Astrue, 297 F. App’x. 126, 128 (3d Cir.
2008). Nonetheless, “where there is conflicting evidence, the ALJ must explain which evidence
he accepts and which he rejects, and the reasons for that determination.” Cruz, 244 F. App’x. at
479 (citing Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)).
In considering an appeal from a denial of benefits, remand is appropriate “‘where
relevant, probative and available evidence was not explicitly weighed in arriving at a decision on
the plaintiff’s claim for disability benefits.’” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d
Cir. 1979) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976)). Indeed, a
decision to “award benefits should be made only when the administrative record of the case has
been fully developed and when substantial evidence on the record as a whole indicates that the
claimant is disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 221-22 (3d
Cir. 1984) (citations omitted).
An individual will be considered disabled under the Social Security Act if he or she is
unable to “engage in any substantial gainful activity (“SGA”) by reason of any medically
determinable physical or mental impairment” lasting continuously for at least twelve months. 42
U.S.C. § 423(d)(1)(A). The physical or mental impairment must be severe enough to render the
individual “not only unable to do his previous work but [unable], considering his age, education,
and work experience, [to] engage in any kind of substantial gainful work which exists in the
national economy[.]” Id. § 423(d)(2)(A). A claimant must show that the “medical signs and
findings” related to his or her ailment have been “established by medically accepted clinical or
laboratory diagnostic techniques, which show the existence of a medical impairment that results
from anatomical, physiological, or psychological abnormalities which could reasonably be
expected to produce the pain or other symptoms alleged[.]” Id. § 423(d)(5)(A).
In determining disability, the SSA utilizes a five-step sequential analysis. See 20 C.F.R.
§ 416.920; see also Cruz, 244 F. App’x. at 479. At step one, the ALJ must determine whether
the claimant is engaging in substantial gainful activity (“SGA”). See 20 C.F.R. 416.920(b).
Next, at step two, the ALJ must determine whether the claimant has a medically determinable
severe impairment or a severe combination of impairments. See 20 C.F.R. 416.920(c). At step
three, the ALJ must “compare the claimant’s medical evidence to a list of impairments presumed
severe enough to negate any gainful work.” Caruso v. Comm’r of Soc. Sec., 99 F. App’x. 376,
379 (3d Cir. 2004). At step four, the ALJ must determine whether the claimant has the RFC to
perform the requirements of his past relevant work. See 20 C.F.R. 416.920(f). “Past relevant
work” means work performed within the fifteen years prior to the date that disability must be
established. See id. At the last step, step five, the Commissioner must determine whether the
claimant is able to do any other work considering his RFC, age, education, and work experience.
See 20 C.F.R. § 416.920(g).
A determination of non-disability at steps one, two, four, or five in the five-step analysis
ends the inquiry. See 20 C.F.R. § 416.920. A determination of disability at steps three and five
results in a finding of disability. See id. Contrarily, if an affirmative answer is determined at
steps one, two, or four, the SSA proceeds to the next step in the analysis. See id.
The issue Plaintiff raises on appeal is whether the Commissioner’s decision is supported
by substantial evidence. (Pl. Br. 2.)
A. Step One:
Whether Plaintiff has performed any “substantial gainful
SGA is defined as work activity that is both substantial and gainful. “Substantial work
activity” is work activity that involves doing significant physical or mental activities. See 20
C.F.R. 416.972(a). If an individual engages in SGA, she is not disabled regardless of the
severity of her physical or mental impairments. See Bowen v. Yuckert, 482 U.S. 137, 140
(1987). If the individual is not engaging in SGA, the ALJ proceeds to the next step. See id.
Here, the ALJ properly found that Plaintiff has not engaged in SGA since April 29, 2010,
the alleged onset date of disability. (R. 24.)
B. Step Two: Whether Plaintiff has a “severe” impairment or combination of
impairments affecting her ability to do basic work activities
An impairment or combination of impairments is “severe” within the meaning of the
regulations if it significantly limits an individual’s ability to perform basic work activities. See
20 C.F.R. 416.921. An impairment or combination of impairments is not severe when medical
and other evidence establish only a slight abnormality or combination of abnormalities that
would have a minimal effect on an individual’s ability to work. See id. If the claimant does not
have a severe impairment or severe combination of impairments, she is not disabled. See 20
C.F.R. 416. 972(c). If the claimant has a severe impairment or severe combination of
impairments, the analysis proceeds to the third step. See id.
Here, the ALJ determined that Plaintiff suffered severe impairments including the
comminuted and unstable multiple displaced fracture of the left humerus and humeral head and
back pain resulting from contusions. (R. 24.) The ALJ found that these impairments were
severe because they caused significant limitations on the claimant’s physical ability to do basic
work activities. (Id.)
C. Step Three: Whether Plaintiff’s impairment matches or is equivalent to a listed
At step three, when a claimant’s impairments meet or equal a listing, “disability is
conclusively established and the claimant is awarded benefits.” Knepp, 204 F.3d at 85. The
Third Circuit requires the ALJ to “fully develop the record and explain his findings at step
three.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000). The ALJ is
required to issue more than just a conclusory statement that a claimant does not meet the listings.
See Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir. 2001) (citing Burnett, 220 F.3d at 119-20).
In the instant matter, Plaintiff argues that the ALJ must compare the combined effect of
all of Plaintiff’s impairments with one or more of the Commissioner’s listings per Burnett v.
Cms’r of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000) and 20 CFR 404.1526 (a). Plaintiff
contends the ALJ’s decision does not evidence such an analysis. In Burnett, the Third Circuit
vacated and remanded the case and held that “on remand, the ALJ shall fully develop the record
and explain his findings at step three, including an analysis of whether and why [Plaintiff’s] back
and knee impairments, or those impairments combined, are or are not equivalent in severity to
one of the listed impairments.” 220 F.3d at 120. Further 20 CFR 404.1526 states:
If you have a combination of impairments, no one of which meets
a listing . . . we will compare your findings with those for closely
analogous listed impairments. If the findings related to your
impairments are at least of equal medical significance to those of a
listed impairment, we will find that your combination of
impairments is medically equivalent to that listing.
20 C.F.R. § 404.1526.
Here, the ALJ solely states that “the claimant does not have an impairment or a
combination of impairments that meet or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
The ALJ does not include any analysis regarding why Plaintiff’s
impairments and/or combined impairments do not meet or medically equal the severity of the
listed impairments. Accordingly, this Court remands this case for a new hearing. On remand, the
ALJ must fully develop the record and explain his findings at step three.
D. Informed Waiver of Representation
While the Supreme Court has not recognized a constitutional right to counsel at a Social
Security Hearing, a claimant has a statutory right to counsel at such a hearing per 42 U.S.C. §
406. Vivaritas v. Comm'r of Soc. Sec., 264 F. App’x 155, 157 (3d Cir. 2008) (citing 42 U.S.C. §
406; 20 C.F.R. § 404.1705). Further, “[t]he claimant must be given notice of the right to counsel
and can waive this right only by a knowing and intelligent waiver.” Id. The ALJ has a
heightened duty when the plaintiff is unrepresented. “In Hess v. Secretary, [the Third Circuit
Court of Appeals] suggested that, when a claimant is not represented by counsel, the hearing
officer may have a duty to take a more active role in obtaining the information necessary for a
determination on the question of disability.” Gachette v. Weinberger, 551 F.2d 39, 41 (3d Cir.
1977) (citing Hess, 497 F.2d 837, 841 (3d Cir. 1974)). This more active role means “the ALJ
has a duty to help the claimant develop the administrative record and ‘must scrupulously and
conscientiously probe into, inquire of, and explore for all the relevant facts.’” Vivaritas, 264 F.
App’x at 157-58 (quoting Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)).
In the instant matter, Plaintiff argues that the ALJ “did not even attempt to elicit an
informed waiver of the plaintiff’s right to representation.” (Pl. Br. 9.) Here, when Plaintiff
asked the ALJ if she would be better off with an attorney, the ALJ responded “well that is up to
you, you know it is kind of an individual thing. I am just required to tell you this so I am telling
you this.” (R. 32.) Moreover, the ALJ knew Plaintiff had engaged an attorney that did not
appear for the hearing and that the Plaintiff had been trying to reach her attorney. (R. 33.) The
ALJ did not adjourn the hearing to allow the time to contact Plaintiff’s attorney. Further, as the
hearing transcript hearing indicates, Plaintiff was not fully informed of the issues in the case, the
hearing process, or the burden of proof. She was also not advised that she could object to the
ALJ’s hypotheticals. Because it is unclear as to whether Plaintiff provided a knowing waiver of
representation, it is appropriate for this matter to be remanded.
For the reasons stated above, the final decision of the Commissioner is vacated and this
matter is remanded for further proceedings consistent with this opinion.
s/Susan D. Wigenton, U.S.D.J.
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