MARTI v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Kevin McNulty on 8/6/2015. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Maria MARTI,

Civ. No. 2:14-2085 (KM)

Plaintiff,
OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Maria Marti brings this action pursuant to 42 U.S.C.
5 U.S.C.

§ 405(g) and

§ 1383(c)(3) to review a final decision of the Commissioner of

Social Security (“Commissioner”) denying her claim for Title II Disability
Insurance Benefits (“DIB”) and Title XVI Supplemental Security Income
(“SSI”). Marti alleges that she is unable to engage in substantial gainful
activity because she suffers from major depressive disorder, an anxiety
disorder, back and neck pain due to spinal disc injuries, and
neuropathy. (P1. Br.’ 6, ECF No. 9)
For the reasons set forth below, I am unable to say definitively that
all relevant evidence was properly considered. Therefore, the decision of
the able and conscientious AU

is REMANDED for clarification and

further proceedings consistent with this Opinion.

1
This brief and the Commissioner’s opposition were submitted pursuant
to L. Civ. R. 9.1.

1

I.

BACKGROUND
Marti seeks DIB and SSI benefits for a period of disability

beginning June 11, 2008. (R. 13, ECF No. 6) Her claims were first
2
denied on June 24, 2010, then denied again on reconsideration on
December 21, 2010. (Id.) On June 17, 2011, Marti filed a request for a
hearing. On May 2, 2012, a hearing was held, at which Marti was
represented by counsel and testified. Following the hearing, the record
was left open for thirty days so that Marti could submit additional
evidence, which she did. On October 24, 2012, Administrative Law Judge
(“AU”) Michal L. Lissek denied Marti’s application for SSI and DIB
benefits. (Id. 13—2 1) On February 10, 2014, the Appeals Council denied
Marti’s review, making the AU’s decision the “final decision” of the
Commissioner. Marti now appeals that decision.
II.

DISCUSSION
To qualify for Title II DIB benefits, a claimant must meet the

insured status requirements of 42 U.S.C.

§ 423(c). To be eligible for SSI

benefits, a claimant must meet the income and resource limitations of 42
U.S.C.

§ 1382. To qualify under either statute, a claimant must show

that she is unable to engage in substantial gainful activity by reason of
any medically determinable physical or mental impairment that can be
expected to result in death or that has lasted (or can be expected to last)
for a continuous period of not less than twelve months. 42 U.S.C.

§

423(d)(1)(A), 1382c(a)(3)(A).
a. Five-Step Process and this Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for
determining whether a claimant is entitled to benefits. 20 C.F.R.
“R.” refers to the pages of the administrative record filed by the
Commissioner as part of her answer. (ECF No. 7)

2

2

§

404.1520, 416.920. Review necessarily incorporates a determination of
whether the AU properly followed the five-step process prescribed by
regulation. The steps may be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in
substantial gainful activity since the onset date of the alleged
disability. 20 C.F.R.

§ 404.1520(b), 416.920(b). If not, move to

step two.
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.

§ 404.1520(c),

416.920(c). If the claimant has a severe impairment, move to
step three.
Step 3: Determine whether the impairment meets or equals
the criteria of any impairment found in the Listing of
Impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A. If so,
the claimant is automatically eligible to receive benefits; if
not, move to step four. Id.

§ 404.1520(d), 4 16.920(d).

Step 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to
perform past relevant work. Id.

§ 404.1520(e)—(f), 416.920(e)—(f). If

not, move to step five.
Step 5: At this point, the burden shifts to the SSA to
demonstrate that the claimant, considering her age,
education, work experience, and RFC, is capable of
performing jobs that exist in significant numbers in the
national economy. 20 C.F.R.

§ 404.1520(g), 416.920(g); see

Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91—92 (3d Cir.
2007). If so, benefits will be denied; if not, they will be
awarded.

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As to all legal issues, this Court conducts a plenary review.
Schaudecku. Comm’rof Soc. Sec., 181 F.3d 429,431 (3dCir. 1999). As to
factual findings, this Court adheres to the AU’s findings, as long as they
are supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501,
503 (3d Cir. 2004) (citing 42 U.S.C.

§ 405(g)). Where facts are disputed,

this Court will “determine whether the administrative record contains
substantial evidence supporting the findings.” Sykes u. Apfel, 228 F.3d
259, 262 (3d Cir. 2000). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”
Zimsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (internal quotation
and citation omitted). That “is more than a mere scintilla but may be
somewhat less than a preponderance of the evidence.” Id. (internal
quotation and citation omitted).
[I]n evaluating whether substantial evidence supports the
AU’s findings.
leniency should be shown in establishing
the claimant’s disability, and
the Secretary’s
responsibility to rebut it should be strictly construed. Due
regard for the beneficent purposes of the legislation requires
that a more tolerant standard be used in this administrative
proceeding than is applicable in a typical suit in a court of
record where the adversary system prevails.
.

.

.

.

.

Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations
and quotations omitted). Nevertheless, the AU’s factual findings will not
be disregarded lightly. See Jones, 364 F.3d at 503 (citing 42 U.S.C.

§

405(g)); Zirnsak, 777 F.3d at 610—il (“[W]e are mindful that we must not
substitute our own judgment for that of the fact finder.”).
This Court may, under 42 U.S.C.

§ 405(g), affirm, modify, or

reverse the Secretary’s decision, with or without a remand to the
Secretary for a rehearing. Podedwomy v. Harris, 745 F.2d 210, 221 (3d
Cir. 1984); Bordes v. Commissioner, 235 F. App’x 853, 865—66 (3d Cir.
2007).

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Outright reversal with an award of benefits is appropriate only
when a fully developed administrative record contains substantial
evidence indicating that the claimant is disabled and entitled to benefits.
Podedworny, 745 F.2d at 22 1-222; Morales v. Apfel, 225 F.3d 310, 320
(3d Cir. 2000); see also Bantleon v. Comm’r of Soc. Sec., 2010 U.S. Dist.
LEXIS 99537, at *38.39 (D.N.J. 2010).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps
of the five step inquiry. See Podedworny, 745 F.2d at 22 1—22. Remand is
also proper if the AU’s decision lacks adequate reasoning or support for
its conclusions, or if it contains illogical or contradictory findings. See
Burnett v. Commissioner of SSA, 220 F.3d 112, 119-20 (3d Cir. 2000);
Leech v. Bamhart, 111 F. App’x 652, 658 (3d Cir. 2004) (“We will not
accept the AU’s conclusion that Leech was not disabled during the
relevant period, where his decision contains significant contradictions
and is therefore unreliable.”). It is also proper to remand where the AU’s
findings are not the product of a complete review which “explicitly’
weigh[s] all relevant, probative and available evidence” in the record.
Adomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994).
b. The AU’s decision
The AU

concluded that Marti was not disabled. AU

Lissek’s

determinations are as follows.
At step one, the AU determined that Marti had not engaged in
substantial gainful activity since June 11, 2008, her alleged disability
onset date. (R. 15)
At step two, the AU found that Marti had the following severe
impairments: “exogenous obesity, low back pain, neck pain, depression,
general anxiety disorder, and a history of physical abuse as a child.” (Id.)

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At step three, the AU

determined that Marti’s impairments, alone

or in combination, did not meet or medically equal the severity of one of
the listed impairments in 20 C.F.R. Pt. 404 Subpt. P, App. 1 (the
“Listings”). (Id. 16)
At step four, the AU

found Marti’s residual functional capacity

(“RFC”) to be as follows:
[Marti can,j in an eight hour workday, sit up to six hours,
stand/walk up to two hours and lift/carry up to ten pounds
occasionally and five pounds frequently. [Marti] is able to
perform work involving no climbing ladders/scaffolds or
crawling; and no more than occasional bending and
crouching.
(Id. 17) Based on this RFC and the “side effects of medication and the
symptoms of depression, which interfere with [Marti’sl ability to
concentrate,” the AU found that Marti “is limited to work which can be
learned in one month or less and that involves simple instructions.” (Id.)
The AU found that Marti’s “anger issues and poor impulse control”
limited her “to occasional contact with supervisors and minimal contact
with the general public.” (Id.) The AU

noted that Marti “can work in

proximity of coworkers but not together with them.” (Id.) The AU

found

that Marti had no past relevant work, so her ability to perform it could
not be assessed. (Id. 20)
At step five, the AU

considered Marti’s “age, education, work

experience, and residual functional capacity,” and determined that she
could perform jobs that exist in significant numbers in the national
economy. (Id.) As noted above, such a finding at step five requires that
benefits be denied.
c. Marti’s appeal
Marti argues that the Commissioner’s decision is not supported by
substantial evidence. Specifically, Marti argues that the AU (1) failed to
address Listing 12.04 (Affective Disorders) in a case involving severe
6

depression at step three; (2) did not properly evaluate all of Marti’s
symptoms in assessing her RFC at step four; (3) failed to weigh medical
evidence in accordance with 20 C.F.R.

§ 404.1520b, 416.929, 404.1529,

and SSR 96-7p, 96-8p; and (4) failed to properly make credibility findings
as required by 20 C.F.R.

§ 416.929, 404.1529, and SSR 96-7p.

Because the record does not establish that the AU

sufficiently

analyzed several medical reports, I will remand this matter for further
proceedings.
d. Analysis
I.

The AU’s evaluation of medical evidence
(Plaintiffs Points II, III)

Marti argues that the AU failed to weigh all of the available
medical evidence in accordance with 20 C.F.R.

§ 404.1520b, 416.929,

404.1529, and SSR 96-7p, 96-8p. (P1. Br. 30—33) The AU’s opinion
contains no substantial discussion of records from several medical
sources.
A district court reviewing an AU’s decision “need[s] from the AU
not only an expression of the evidence [he] considered which supports
the result, but also some indication of the evidence which was rejected.”
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) (citing Dobrowolsky v.
Califano, 606 F.2d 403 (3d Cir. 1979)). The Third Circuit has repeatedly
explained that, without a clear indication from the AU

of the evidence

that was rejected and the reasons for rejecting it, a district court lacks a
sufficient basis to uphold the AU’s decision:
[U]nless the Secretary has analyzed all evidence and has
sufficiently explained the weight he has given to obviously
probative exhibits, to say that his decision is supported by
substantial evidence approaches an abdication of the courts
duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.

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Id. (quoting Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979))
(internal quotations omitted) see also Fargnoli v. Massanari, 247 F.3d 34,
40 (3d Cir. 2001) (finding “it impossible to determine whether the AU’s
finding.

is supported by substantial evidence” and noting that the

.

.

Court was “handicapped by the fact that the ALl has (1) failed to
evaluate adequately all relevant evidence and to explain the basis of his
conclusions and (2) failed to explain his assessment of the credibility of,
and weight given to, the medical evidence and opinions.”
may not “reject evidence for no reason or for the wrong

An AU

reason.” Id. at 706; see also Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999) (“the AU

may choose whom to credit but cannot reject evidence

for no reason or for the wrong reason”) (citation and quotation omitted).
Therefore, “an explanation from the AU

of the reason why probative

evidence has been rejected is required so that a reviewing court can
determine whether the reasons for rejection were improper.” Id. at 706—
07. This need for explanation is “particularly acute” when the AU

“has

rejected relevant evidence or when there is conflicting probative evidence
in the record.” Id. at 706.
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Marti names several medical source reports that the AU

either

omitted or did not sufficiently analyze. Several of the reports are lumped
Although some of the medical providers are therapists rather than
medical doctors, this does not disqualify their opinions or render them
irrelevant. They are clearly acceptable “[mjedical sources” under the “[o]ther
sources” category, which states that “[o]ther sources include, but are not
medical sources not listed in paragraph (a) of this section (for
limited to
therapists).” 20 CFR § 404.9 13, 404.1513. As the Social Security
example,
Administration has instructed:
Opinions from these medical sources, who are not technically
deemed ‘acceptable medical sources’ under our rules, are
important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other
relevant evidence in the file.
.

.

.

.

.

.

Titles II & XVI: II & XVI: Considering Opinions & Other Evidence from Sources
Who Are Not “Acceptable Med. Sources” in Disability Claims; Considering
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together and mentioned only in passing in a single sentence: “[Marti’s]
mental limitation as described at Exhibits 8F, 22F, 24F and 25F were
accommodated in the above residual functional capacity.” (R. 20) Some of
the evidence contained in these reports appear to contradict the AU’s
findings as to Marti’s residual functional capacity as well as the severity
of her impairment. Remand is therefore appropriate so that the AU

can

deal with that evidence explicitly.
Evidence to be considered and weighed on remand should include
the following:
1. Dr. Wei Wang; medical records
The AU did not sufficiently consider or discuss the report of Dr.
Wei Wang, a clinician at the Hoboken University Medical Center—
Community Mental Health Center. The Commissioner concedes that “the
AU

did not specifically discuss Dr. Wang’s report in his decision,” but

argues that “any error was harmless.” (Def. Br. 14, ECF No. 10)
Dr. Wang evaluated Marti on June 14, 2010. (R. 373) Dr. Wang
found that Marti was “subdued and sad”; was “not very into grooming”;
had “psychomotor retardation”; was “depressed and sad and tearful
throughout the session”; had occasional “circumstantial” thought
processes; was “mildly paranoid”; suffered from “active hallucinations,
mostly around her dead son”; had poor impulse control; had “chronic
passive suicidal wishes.” (R. 374) Dr. Wang diagnosed Marti with major
4
depressive disorder; rule out borderline personality disorder; and a GAF
Decisions on Disability by Other Governmental & Nongovernmental Agencies,
SSR 06—03P (S.S.A. Aug. 9, 2006).
A GAF (Global Assessment Functioning) score is a scale used by the
American Psychiatric Association to evaluate mental disorders. See Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed.
2000) (DSM-IV).
4

A GAF score in the range of 31—40 indicates “[sjome impairment in reality
OR major impairment in several areas, such as
testing or communication.
work or school, family relations, judgement, thinking, or mood.”
.

.

9

score around 40. (Id.) Dr. Wang’s report, though unanalyzed, would be
relevant to at least two portions of the AU’s analysis: (1) whether Marti’s
impairments meet or equal the criteria of any impairment found in the
Listing of Impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A; and
(2) Marti’s residual functional capacity.
2. Linda Werbel; medical records
The AU

also did not analyze Marti’s medical records from Dr.

Linda Werbel, a Licensed Clinical Social Worker at the Hoboken
University Community Mental Health Center. (R. 357—372) Certain
aspects of Ms. Werbel’s report confirm the AU’s findings; others,
however, cut the other way. Ms. Werbel notes, for example, that Marti
has suicidal thoughts monthly and that Marti feels hopeless and
anxious. (R. 370) Whether the AU

chooses to accept or reject such

evidence, reasons must be given.
3. Dr. Royston Cruickshank and Elizabeth O’Brien,
RN, MA; medical records
The AU also omitted analysis of notes and records from the Jersey
City Medical Center by Dr. Royston Cruickshank and Elizabeth O’Brien,
RN, MA. (R. 5 13—538) Ms. O’Brien, who saw Marti on many occasions,
wrote that Marti had a constricted affect and poor impulse control, and
that her GAF score was 41-50. (R. 517, 524) Dr. Cruickshank wrote that
Marti suffered from chronic pain that had her taking Vicodin daily, that
she was always angry and had poor impulse control, and that her GAF
score was in the range of 40—50. (R. 528—29)

http: / /www.omh.ny. gov/ omhweb/ childservice/ mrt/ global_assessmentjunctio
ning.pdf
A GAF score of 41—50 indicates “[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., no friends,
unable to keep a job).”
https: / /www. omh .ny. gov/ omhweb / childservice/mrt/ global_assessment_functi
oning.pdf
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Some of these notes are consistent with the AU’s determinations

(e.g., that Marti has poor impulse control), but others seem to contradict
it (e.g., Marti’s GAF scores). On remand, the AU should explain the
reasons for accepting or rejecting the contradictory components of this
evidence.
ii. The AU’s step three analysis (Plaintiffs Point I)
Marti next argues that (1) the AU

failed to address Listing 12.04

(affective disorders) in the step three analysis, which was mandatory
since Marti suffers from severe depression; and (2) the AU

did not

provide adequate explanation for the step three findings. (P1. Br. 21—23)
Because the AU’s step three analysis may change based on the AU’s
review of the evidence on remand, I do not dwell on this argument.
At Step 3 of the sequential analysis, the AU

evaluated Marti’s

impairments to determine if they met or equaled an impairment in the
Listing of Impairments in Appendix 1. 20 CFR

§ 404.1520(a)(4)(iii).

Specifically, the AU discussed the criteria of Listings 12.06 (anxietyrelated disorders) and 12.09 (substance addition disorders). Because
Listing 12.09 is clearly inapplicable in this case (Marti does not allege
that she suffers from substance addition), I assume that 12.09 was
merely a typographical error and that the AU

intended to cite 12.04

(affective disorders). This error, if that is what it is, does not appear to be
substantive; the paragraph B criteria are identical for listings 12.09 and
12.04, and the AU found that Marti’s impairments do not meet the
paragraph B criteria. Nevertheless, as I say, this analysis may change
based on the AU’s review of the evidence on remand. Any step three
reanalysis should incorporate the AU’s consideration of all relevant
evidence, and should cite the correct listings.

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iii. The AU’s evaluation of Marti’s credibility
(Plaintiff’s Point IV)
Finally, Marti argues that the AU did not give sufficient
consideration to Marti’s own testimony or explain why it was not
credible. (P1. Br. 34—36) The AU’s evaluation of Marti’s testimony is
limited to the following statement: “After careful consideration of the
evidence, the undersigned finds that the claimant’s medical determinable
impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above residual functional capacity
assessment.” (R. 17)
The Social Security Regulations are clear as to how credibility
determinations must be made:
It is not sufficient for the adjudicator to make a single,
conclusory statement that “the individual’s allegations have
been considered” or that “the allegations are (or are not)
credible.” It is also not enough for the adjudicator simply to
recite the factors that are described in the regulations for
evaluating symptoms. The determination or decision must
contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to
any subsequent reviewers the weight the adjudicator gave to
the individual’s statements and the reasons for that weight.
Titles II & Xvi: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, SSR 96-7P (S.S.A. July 2, 1996).
At the May 2, 2012 hearing, Marti testified that her concentration
is poor, that she sleeps during the day because of the medication she
takes, that she relies on an alarm on her phone to remind her to shower,
that she does not want to be around family and friends, that she has
crying spells, that going out in public makes her feel as though she’s
“getting shut off oxygen,” and that she suffers from anxiety attacks

12

almost every day she goes out. (R. 44-48) On remand, the AL.J should
explain the reasons for accepting or rejecting the relevant components of
Marti’s testimony.
III.

CONCLUSION
For the foregoing reasons, the AU’s decision is REMANDED for

further proceedings consistent with this Opinion.
Dated: August 6, 2015

KEVIN MCN LTY
United States District Ju ge

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