PALOMO v. COMMISISONER OF SOCIAL SECURITY
OPINION. Signed by Judge Stanley R. Chesler on 4/27/15. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
COMMISSIONER OF SOCIAL
Civil Action No. 14-3444 (SRC)
CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Sergio Palomo (“Plaintiff”)
of the final decision of the Commissioner of Social Security (“Commissioner”) determining that
he was not disabled under the Social Security Act (the “Act”). This Court exercises jurisdiction
pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of the parties without
oral argument, pursuant to L. CIV. R. 9.1(b), finds that the Commissioner’s decision will be
vacated and remanded for further proceedings in conformity with this Opinion.
In brief, this appeal arises from Plaintiff’s application for disability insurance and
supplemental security income benefits, alleging disability beginning June 15, 2007. A hearing
was held before ALJ Hilton R. Miller (the “ALJ”) on September 20, 2012, and the ALJ issued an
unfavorable decision on September 28, 2012, finding Plaintiff not disabled. After the Appeals
Council denied Plaintiff’s request for review, the ALJ’s decision became the Commissioner’s
final decision, and Plaintiff filed this appeal.
In the decision of September 20, 2012, the ALJ found that, at step three, Plaintiff did not
meet or equal any of the Listings. At step four, the ALJ found that Plaintiff retained the residual
functional capacity to perform light work when assisted by a cane. At step four, the ALJ also
found that this residual functional capacity was sufficient to allow Plaintiff to perform his past
relevant work as a security guard. The ALJ also made an alternative disability determination. In
the alternative, at step four, the ALJ found that Plaintiff retained the residual functional capacity
to perform sedentary work, and that he could not perform his past relevant work. At step five,
the ALJ determined, based on the testimony of a vocational expert, that there are other jobs
existing in significant numbers in the national economy which the claimant can perform,
consistent with his medical impairments, age, education, past work experience, and residual
functional capacity. The ALJ concluded that the two alternative analyses reached the same
result: Plaintiff was not disabled within the meaning of the Act.
As Plaintiff contends, both of the ALJ’s approaches to the disability determination are
problematic. As to the “security guard with cane” scenario, the ALJ reasoned as follows. In this
scenario, Plaintiff retains the residual functional capacity to perform light work, but with the
additional limitation of a cane to assist with walking. The ALJ heard testimony from a
vocational expert on the subject of whether Plaintiff could perform his past relevant work as a
security guard. The expert stated that Plaintiff could perform his past work as a security guard.
(Tr. 60.) The expert was then questioned by Plaintiff’s counsel, and the expert stated that the
security guard job he had in mind was a “patrol guard” position, an employee who does rounds
and spends much of the day walking. (Tr. 61.) When Plaintiff’s counsel asked the expert
whether a person who walked at two-thirds of the normal rate and used a cane could perform this
job, the expert said that such a person could not do so. (Tr. 63-64.) Plaintiff then testified that,
when he worked as a security guard, he had to make rounds. (Tr. 65.)
The ALJ concluded that Plaintiff retained the residual functional capacity to perform his
past work as a security guard. This determination is not supported by substantial evidence.
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is more than a mere
scintilla of evidence but may be less than a preponderance.” McCrea v. Comm’r of Soc. Sec.,
370 F.2d 357, 360 (3d Cir. 2004). The reviewing court must consider the totality of the evidence
and then determine whether there is substantial evidence to support the Commissioner’s
decision. See Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 1981). The Commissioner relies on
the evidence from the vocational expert, but this evidence is not adequate to support the
conclusion that Plaintiff can perform the work of a patrol guard. Although the vocational expert
did initially testify that Plaintiff could do so, when asked about whether someone with slightly
lower walking speed could perform the job, the expert said that person could not.
The ALJ did not address the question of Plaintiff’s walking speed in the opinion, and it
appears to be an open question whether Plaintiff has sufficient ability to walk to perform his past
relevant work as a patrol guard. The Commissioner’s opposition brief contains a helpful
summary of the medical evidence, and it shows that medical reports have consistently remarked
on abnormalities in Plaintiff’s gait since 2008: Dr. Rubbani in 2008 (Tr. 396), Dr. Prosad in 2009
(Tr. 401), Dr. Hidalgo in 2009 (Tr. 408), physical therapist Hsu in 2010 (Tr. 413), and Dr.
Hidalgo again in 2011 (Tr. 421). The reports from the two state agency consultants, who
reviewed the medical records, found exertional and postural limitations related to walking. (Tr.
85, 96.) Several examining physicians reported that Plaintiff walked with a limp and used a
Given this record, this Court cannot say that the determination that Plaintiff can walk
well enough to be a patrol guard is supported by substantial evidence – especially in light of the
testimony from the vocational expert that a person who walks at a slower speed cannot do that
job. The Commissioner’s opposition brief points to no evidence which supports a determination
that, despite the need for a cane to walk, Plaintiff can walk fast enough and well enough to be a
patrol guard. Of the ALJ’s two approaches to the disability analysis, the first is not supported by
As to the second approach, the ALJ asked the vocational expert whether there were
sedentary jobs that Plaintiff could perform, and the vocational expert said that there were.
Plaintiff argues, however, that Medical Vocational rule 201.17 mandates a finding of disability,
inasmuch as Plaintiff was between the ages of 45 and 49, unable to communicate in English, and
had only performed unskilled work. The Commissioner, in opposition, argues that the
vocational rules are applied at step five, and the alternative approach did not reach step five.
This is not correct. The ALJ’s alternative analysis proceeds as follows: at step four, Plaintiff
retains the residual functional capacity to perform sedentary work. The record shows that
Plaintiff’s previous work as a security guard should be classified as light work, not sedentary
work. Because, on this alternative theory, Plaintiff does not retain the residual functional
capacity to perform his past relevant work, the analysis must proceed to step five. If Plaintiff is
The Commissioner also argues that Plaintiff has waived any challenge to the step four
determination because it was not raised in the opening brief. This is simply untrue.
viewed as having the residual functional capacity for sedentary work only, the ALJ erred by not
applying Medical Vocational rule 201.17 at step five.
Plaintiff argues that, because of this error in the application of Medical Vocational rule
201.17, the Commissioner’s decision should be reversed and the case remanded solely for the
determination of benefits. The Sixth Circuit has held:
If a court determines that substantial evidence does not support the Secretary's
decision, the court can reverse the decision and immediately award benefits only
if all essential factual issues have been resolved and the record adequately
establishes a plaintiff's entitlement to benefits.
Faucher v. Secretary of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). This Court is
not persuaded that this is an appropriate case to order an award of benefits. There is a material
factual issue which needs to be resolved: given Plaintiff’s difficulties with walking, does
Plaintiff retain the residual functional capacity to perform his past relevant work? This Court
concludes that the Commissioner’s determination is not supported by substantial evidence, and
the Commissioner’s decision will be vacated. The case will be remanded to the Commissioner
for further proceedings in accordance with this Opinion.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: April 27, 2015
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?