GREEN v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Jose L. Linares on 3/18/2015. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEVIN GREEN,
Civil Action No. 14-4228 (JLL)

Plaintiff,
v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, District Judge.
Currently before the Court is Plaintiff Kevin Gree

n (“Plaintiff”)’s appeal of Administrative

Law Judge (“AU”) Richard West’s decision
denying Plaintiff’s application for supplemental
security income. The Court has considere
d the submissions made in support of and in oppo
sition

to the instant appeal and decides this matter
without oral argument. Fed. R. Civ. P. 78. For
the
reasons set forth below, the Court remands for
further proceedings consistent with this opinion.

I.

BACKGROUND
A,

Plaintiffs Physical Impairments

Plaintiff maintains that he was disabled from
November 27, 2006 through April 15, 2009,
the day before he was able to return to
work as a case manager. (R. at 527)) Plain
tiff’s
impairments are set forth below, chronolo
gically, based upon the medical evidence cont
ained in
the record.

1

“R.” refers to the pages of the Administrativ
e Record.
1

Plaintiff began seeking treatment from Thalody Medical Associates in

2004 for bone pain.

(Id. at 341, 497-98). A bone density test was performed and revealed no left
hip bone density loss,
but showed evidence of osteopenia. As a result, Dr. Thalody recommended
that the Plaintiff take
calcium supplements. (Id.). Plaintiff was treated for pain in his hips
in August 2006, at which
point, tests results revealed no bone density loss and minimal osteoa
rtbritis. (Id. at 343). Dr.
Thalody prescribed medication and physical therapy for Plaintiff’s
bone pain and muscle spasms.
(Id. at 263-65, 333).
Plaintiff suffers from a seizure disorder. As such, in 2005, Dr. Thalod
y prescribed Dilantin
and phenobarbital for the treatment of said disorder. (Id. at 339).
Plaintiff also suffers from HIV. Medical records reflect that in
2005 his HW was under
control and his viral count was undetectable. (Id.).
In October 2005, Plaintiff was treated at Trinitas Hospital Emergency

Room for a headache

and followed up with Dr. Thalody who ordered an MRI, which reveale
d no harmful results. (Id. at
196). At a February 2006 appointment with Dr. Thalody, Plaintiff again
complained of headaches
and was given a referral to seek treatment from a neurologist.
(Id. at 494-495). Subsequently,
Plaintiff underwent an EEG in March 2006; his results were norma
l. (Id. at 195). At Plaintiff’s
February 2006 appointment with Dr. Thalody, the physician comple
ted a disability form for one
year—from February 20, 2006 through February 20, 2007. (Id. at
494).
On December 8, 2006, Plaintiff sought treatment at Trinitas Hospit
al Clinic, complaining
of palpitations, anxiety, memory problems, and an inability to
focus. (Id. at 202). Plaintiff was
diagnosed with medication toxicity due to elevated levels of Dilanti
n in his blood, and was advised
to not take the medication for 2 days. (Id. at 206-2 14).

2

On December 28, 2006, Plaintiff completed a Seizure Ques
tionnaire, a Function Report,
and a Disability Report. (Id. at 100-01). Plaintiff reported
that he was having multiple seizures
every month for the last 6 months, but could not indicate how
long the seizures lasted. (Id.). The
same seizure questionnaire was sent to the Plaintiff’s case man
ager, per the state agency’s request,
and the case manager indicated that she had not witnessed
any of Plaintiff’s seizures, but was
aware that he was taking medication to treat a seizure disorder.

(Id. at 102). In the Function Report,

Plaintiff indicated that he had no limitations caring
for his personal needs, used public
transportation to travel, was able to cook himself dinner,
and was able to remember to take his
medication without assistance. (Id. at 103-12). Plaintiff liste
d his daily activities as including:
making breakfast, taking his medication, going to church, resti
ng, attending doctors’ appointments
if necessary, reading the bible, attending spiritual groups
, and cooking himself dinner. (Id.).
Plaintiff further indicated that his impairments affect
his ability to lift, walk, climb stairs,
understand, squat, squat, sit, bend, kneel, stand, talk, reach,
and concentrate. (Id.). Additionally,
Plaintiff noted that his impairments affect his memory, abili
ty to follow directions, and complete
tasks. (Id.). The Disability Report shows that Plaintiff last
worked in December 2000, and that the
employment was discontinued because it was temporary
. (Id. at 122).
The Plaintiff, who suffers from Hepatitis C in addition to
his seizure disorder and HIV, is
also seen by Dr. Uwe Schmidt, a physician at the HIV Servic
es

—

Early Intervention Program at

Trinitas Hospital. (Id. at 125). Dr. Schmidt regularly mon
itors Plaintiffs blood levels, and in March
2007 a blood test showed Plaintiff’s HIV was under contro
l, with a CD4 of 666 and a viral load of
less than 50. (Id. at 379). In July 2007, Plaintiffs test
results show a CD4 of 877 and a viral load
of less than 50. (Id. at 375-76). A January 2008 blood test
revealed a CD4 of 725 with a viral load
of less than 50, and a follow up blood test in August of 2008
showed a CD4 of 739 and a viral load

3

of less than 50 as well. (Id. at 465, 475-76). Plaintiff’s final relev
ant blood test performed in
February 2009 showed a CD4 of 794 and a viral load of less than
48. (Id. at 455-56).
At the July 2009 hearing, Plaintiff testified that his HIV
, Hepatitis C, and seizures
prevented him from working during the relevant time perio
d. (Id. at 31).
B.

Mental Impairments

In October 2006, Plaintiff was seen at the Trinitas Hosp
ital Department of Behavioral
health for an intake assessment. (Id. at 413). According to
the Plaintiff, at that time he lived alone
in an apartment and performed daily activities such as Bibl
e reading, spiritual readings, attending
AA meetings, volunteering with HIV patients, and speaking
at schools regarding HIV and AiDS
prevention. (Id. at 413-23). At the time of intake, Plaintiff
also indicated that he graduated from
high school, was in the Army for a year and a half, worked in

the past as a welder, but was currently

unemployed. (Id. at 113, 416). The intake clinician indic
ated that Plaintiff was calm, cooperative,
well groomed, and had a neutral mood. (Id. at 419). She
also noted that Plaintiff’s intelligence
was average, his attention, concentration, and judgmen
t were good, and his thought process was
intact. (Id.). Additionally, the intake clinician reported
that Plaintiff’s speech was normal, his
memory and cognition were intact, and his insight was
fair. (Id.). Plaintiff also reported that he
was not experiencing hallucinations. (Id.). The intak
e clinician diagnosed Plaintiff with
generalized anxiety disorder, and set out a treatment plan
which included developing coping skills
to decrease anxiety and depression, and to feel com
fortable in social situations. (Id. at 422). The
clinician assigned a GAF score of 61. (Id.). As a resul
t of the assessment, Plaintiff agreed to meet
for therapy on a weekly or bi-weekly basis, but refused
to take any psychiatric medications. (Id. at
313). in December 2006, in response to a request for
documentation regarding the Plaintiff made
by the Division of Disability Determination Services,
Plaintiff’s case manager wrote a letter stating

4

that Plaintiff was receiving treatment for AIDS, HIV, chronic Hepatitis
C, extreme anxiety, and
depression at Trinitas Hospital. (Id. at 309).
In January 2007, Plaintiff received a psychiatric evaluation at Trinita
s Hospital in the
Department of Behavioral Health and Psychiatry. (Id. at 318). Record
s indicate that Plaintiff was
cooperative, well groomed, retained adequate judgment, and had
good frustration tolerance and
impulse control. (Id.). Additionally, the evaluating psychiatrist
noted that Plaintiff had adequate
attention and concentration, normal speech, an anxious effect, a goal
directed thought process, and
limited insight. (Id.). Although the record is not entirely clear,
apparently Plaintiff began taking
Lexapro, a psychiatric drug, as a result of the January 2007 evalua
tion, but in a later evaluation
Plaintiff indicated that no change had occurred. LId. at 315). In March
2007, Plaintiff’s Lexapro
dosage was increased, and during a May 2007 meeting with his
treating psychiatrist it appears as
though Plaintiff’s medication dosage remained the same. (Id. at
403).
In May 2007, the state agency requested a consultative mental
status evaluation of the
Plaintiffi which was performed by Ernesto Perdomo, Ph.D. (Id.
at 358-62). During his evaluation
Plaintiff indicated that he was HIV positive since at least 1995,
and had been diagnosed with AIDS
in 2002. (id. at 358). Plaintiff stated that he felt depressed
and irritable, and experienced panic
attacks twice per day. (Id. at 358-59). At the time of the evalua
tion, Plaintiff was taking Cymbalta,
was attending group therapy, and was adhering to his month
ly medication check schedule. (Id. at
359). Additionally, Plaintiff reported that he had four
seizures per month despite his use of
medication. (Id.). Plaintiff indicated that he stopped workin
g in 1994 due to his seizure disorder.
(Id.). In regards to his daily life, Plaintiff reported that he
spent most of his days at home, but used
public transportation to attend weekly bible study groups
, HIV support groups, and Sunday church

5

services. (Id. at 360). He also stated that he cared for his personal needs
and hygiene depending on

his mood. (id.).
In his report, Dr. Perdomo indicated that the Plaintiff had a depressed
mood, but appeared
to be casually dressed and well groomed. (Id.). Plaintiff was able
to understand and follow
moderately complex instructions. (Id.). The doctor also reported that Plainti
ff spoke coherently
and relevantly, denied hallucinations, had no evidence of thought disord
er or psychosis, had an
organized thought process, was well oriented, and had an approp
riate affect. (Id.). Although
Plaintiff’s intelligence was in the very low average range, he
had fair memory, adequate
vocabulary, good concentration, and association and abstraction abilitie
s. (Id.). Dr. Perdomo also
reported that Plaintitff seemed to have an “underlying personality
disorder.” (Id. at 361).
Following the evaluation, Plaintiff was given a GAF score of 50
to 55. (Id. at 362).
On May 31’ 2007, Michael DAdamo, Ph.D. completed a Menta
l Residual Function
Capacity (RFC) assessment for the Plaintiff. (Id. at 364-66). In review
ing the medical records and
evidence provided, Dr. DAdamo found that Plaintiff was not
significantly limited in setting
realistic goals, sustaining an ordinary routine without special
supervision, getting along with
coworkers, or working in coordination or proximity to others.
(Id.). Dr. DAdamo’s assessment
also indicated that Plaintiff was not significantly limited in making
simple work related decisions,
responding appropriately to changes in the work setting, or
understanding, remembering, and
carrying out detailed instructions. (Id.).

Additionally, Dr. DAdamo found that Plaintiff has

moderate limitations in completing a normal workweek, mainta
ining attention and concentration
for extended periods, and performing activities within
a schedule. (Id.).

In evaluating the

Plaintiffs RFC, Dr. DAdamo concluded that “despite some
limitations in stress tolerance and
concentration, he possesses the RFC [from] a psych viewpo
int to adapt and be productive on a
6

job.” (Id. at 366). Additionally, Dr. DAdamo concluded that Plaintiff
was able to understand,
retain, and execute simple instructions, as well as relate in an appropriate
manner with others, and
make social adaptions on the job. (Id.). In the RFC evaluation, Dr. DAdam
o also concluded that
the Plaintiff would be “best equipped for job tasks which do not deman
d a lot of mental effort.”
(Id.).
C.

Procedural History

On December 15, 2006, Plaintiff filed an application with
the Social Security
Administration for supplemental security income. (Id. at 84-90)
.

On his initial application,

Plaintiff alleged that his disability began on October 20, 2006;
however, the application was
amended to reflect a closed period of disability from beginning on
November 27, 2006 through
April 15, 2009, the day prior to Plaintiffs return to work. (Pl.’s Br.
2). Plaintiffs application was
initially denied, and denied again upon Reconsideration. (R.
at 46-47). Plaintiff requested a
hearing to review his application, which was held on July 20, 2009
before AU James Andres. (Id.
at 26), On November 2, 2009, AU Andres issued a decision denyin
g Plaintiffs application,
finding that Plaintiff was not disabled because he retained the capaci
ty to perform medium work
activity. (Id. at 11-20). Following the unfavorable decision,
Plaintiff sought Appeals Council
review and was denied. (Id. at 1). Plaintiff then filed suit in
this Court, and on March 30, 2011,
the matter was remanded on consent for further review by an
AU. (Id. at 552-53). The Appeals
Council issued its Remand Order on January 25, 2012, and
ordered that further consideration of
the Plaintiffs RFC (Residual Function Capacity) was necess
ary. (Id. at 556-58).
On January 15, 2013, and June 14, 2013, hearings were held before
AU Richard West. (Id.
at 523-51). At the June 2013 hearing, a vocational expert
was asked to determine whether a job
in the national economy existed for a hypothetical individual

of Plaintiffs education and age, with

the limitations that he only perform medium work, avoid climbi
ng ladders, ropes, and scaffolds,
7

avoid ordinary workplace hazards, have occasional interactio
n with the general public, and
occasionally exercise independent decision making. (Id. at 534-35
). The vocational expert
determined and testified that the hypothetical individual coul
d perform work as a meat clerk,
kitchen helper, or hand packager. (Id.).
AU West issued a decision on July 19, 2013 denying Plain
tiffs claim for supplemental
security income, citing Plaintiffs ability to perform medium
work. (Id. at 506-18). Plaintiff sought
review of the decision, and on April 29, 2014, the App
eals Council denied Plaintiff’s request,
rendering the AU’s decision the final decision of the Commiss
ioner. (Id. at 500-02). As a result,
Plaintiff appealed to this Court on July 3, 2014. (Compl., ECF
No. 1). This Court has jurisdiction
to review this matter pursuant to 42 U.S.C.

II.

§ 405(g).

LEGAL STANDARD

A.

The Five-Step Process for Evaluating Whether a Claiman
t Has a Disability

Under the Social Security Act, the Administration is authorize
d to pay disab

ility insurance

benefits to “disabled” persons. 42 U.S.C.

§ 423(a), 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 resul
t 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. §
423(d)(l)(A), l382c(a)(3)(A). A person is unable to enga
ge in substantial gainful activity when
his physical or mental impairments are “of such seve
rity that he is not only unable to do his
previous work but cannot, considering his age, educ
ation, and work experience, engage in any
other kind of substantial gainful work which exists in
the national economy. . ..“ 42 U.S.C.
§
423(d)(2)(A), 1 382c(a)(3)(B).

8

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

§ 404.1520(a)(l), 416.920(a)(1). At step

one, the AU assesses whether the claimant is currently performing substa
ntial gainfu

l activity. 20

C.F,R,

§ 404.1520(a)(4)(f), 416.920(a)(4)(i). If so, the claimant is not disabled and, thus, the

process ends. 20 C.F.R.

§ 404.1 520(a)(4)(f), 41 6.920(a)(4)(i). If not, the AU proceeds to step

two and determines whether the claimant has a “severe” physic
al or mental impairment or
combination of impairments. 20 C.F.R.

§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Absent such

impairment, the claimant is not disabled.

20 C.F.R.

§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

Conversely, if the claimant has such impairment, the AU procee
ds to step three. 20 C.F.R.

§§

404.1 520(a)(4)(ii), 41 6.920(a)(4)(ii). At step three, the AU
evaluates whether the claimant’s
severe impairment either meets or equals a listed impairment. 20
C.F.R.
416.920(a)(4)(iii).

If so, the claimant is disabled. 20 C.F.R.

§ 404.1520(a)(4)(iii),
§ 404.l520(a)(4)(iii),

41 6,920(a)(4)(iii). 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
[RFC]; (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 whethe
r
claimant has the level of capability needed to perform the
past
relevant work.
Burnett v. Comm ‘r ofSoc. Sec. Admin., 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.

§

404, 1520(a)(4)(iv), 416.920(a)(4)(iv). However, if the claima
nt’s RFC prevents him from doing
so, the AU proceeds to the fifth and final step of the proces
s. 20 C.F.R.

§ 404.1520(a)(4)(iv),

416. 920(a)(4)(iv).
The claimant bears the burden of proof for steps one throug
h four. Poulos

i’.

Comm ‘r of

Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (citing Ramirez
v. Barnhart, 372 F.3d 546, 550 (3d Cir.
9

2004). “At step five, the burden of proof shifis to the.

.

.

Administration to show that the claimant

is capable of performing other jobs existing in significant numbe
rs in the national economy,
considering the claimant’s age, education, work experience, and
[RFC].” Id. (citing Ramirez, 372
F.3d at 551).

B.

The Standard of Review: “Substantial Evidence”
2

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 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (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 Court may not set an AU’s decision aside,

“even if [it] would have decided the

factual inquiry differently.” Hartranfl v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999) (citations
omitted).

III.

DISCUSSION
At step one, the AU found that Plaintiff had not engage
d in substantial gainful activity

throughout the relevant time period. (R. at 511). At step
two, the AU found that Plaintiff had four

2

Because the regulations governing supplemental securit
y income—20 C.F.R. § 416.920—are
identical to those covering disability insurance beneflt
s—20 C.F.R. § 404.1 520—this Court will
consider case law developed under both regimes. Ruther
ford v. Barnhart, 399 F.3d 546, 551 n. 1
(3d Cir. 2005) (citation omitted).
10

severe impairments: (1) HIV, (2) Hepatitis C, (3) depression, and (4) seizure
s. Jd. at 512). At step
three, the AU found that Plaintiff did not have an impairment or combi
nation of impairments that
met or medically equaled one of the listed impairments. (Id.). At
step four, the AU found that
Plaintiff had the RFC to perform medium work, with the except
ions that he could not climb
ladders, ropes, or scaffolds, and that he should avoid all ordinary workp
lace hazards. (Id. at 51316). The AU then concluded that the Plaintiff had no past relevan
t work history. Lastly, at step
five, the AU found that, considering Plaintiffs age, education,
work experience, and RFC, there
were a significant number of jobs existing in the national econom
y that Plaintiff could perform.
(Id. at 516).
Plaintiff contends that the AU’s description of the procedural history
in his decision is
incorrect, and that on this basis alone remand is necessary. (Pl.’s Br.
10-13). In addition, Plaintiff
contends that the AU erred at steps three and four ofhis analysis,
and therefore his decisio

n should

be reversed or in the alternative, remanded for further review. (P1.’s
Br. 13-25).
The Court will address Plaintiffs arguments related to the procedural

history and step three

of the AU’s analysis. Because the Court finds merit in Plainti
ffs contention that the AU’s
determination at step three was not based on substantial eviden
ce, the Court need not address
Plaintiffs arguments relating to step four of the AU’s analysis.
A.

Any Error in Description of Procedural History is Harmless

Plaintiff contends that remand is appropriate due to the AU’s
lack of accuracy in the
procedural history portion of his decision. (P1’s. Br.
10-13).

Plaintiff alleges that the AU

intentionally avoided providing details of Plaintiffs absenc
es, as well as an accurate description
of the procedural history, in order to present a more favora
ble depiction that would support his
decision. (P1’s. Br. 13).

11

The AU’s decision states that Plaintiff failed to appear at a scheduled
hearing on May 8,
2012, and then again when the hearing was rescheduled for October
16, 2012. (R. at 509). The
decision further reads that Plaintiff was not present at the June 14,
2013, and that pursuant to the
Social Security Administration regulations, the AU determined
that Plaintiff was a nonessential
witness. (Id.). The AU

‘5

decision states that June hearing proceeded without Plaintiff, but
with

representation by his attorney, James Langton. LId.).
The administrative record and transcript reflect that the AU’s descrip

tion of the procedural

history in this matter is inaccurate. The record indicates that
the AU, in his procedural history
portion of the decision, failed to mention a January 15, 2013 hearing
in which Plaintiff failed to
appear. Additionally, the transcript indicates that Plaintiff was,
in fact, present at the June 14,
2013 hearing. The transcript also shows that at the June 14,
2013 hearing, a discussion between
the AU and Plaintiffs attorney took place regarding Plaintiffs
ability to testify. Both the AU
and Plaintiffs attorney decided that Plaintiffs testimony would

not be valuable due to his physical

3
condition and the large lapse in time between the filing of the applica
tion and the hearing.
Although the AU’s description of the procedural history is not
entirely accurate, Plaintiff
has the burden of showing how the error harmed him. See Shinse
ki v. Sanders, 556 U.S. 396, 409
(2009). “[Tjhe burden of showing that an error is harmful norma
lly falls upon the part attacking
the agencys determination.” (Id.). Here, Plaintiff has failed
to articulate an argument as to how
the AU’s errors harmed him. Plaintiff contends that the AU
deliberately altered his rendition of
the procedural history to prejudice the Plaintiff, but has proffer
ed no evidence to substantiate his
speculation in this regard; thus this Court finds this conten
tion has no merit. The Plaintiff also
argues that the AU should have explained the reasons
for Plaintiffs absence at the various

The record indicates that Plaintiff suffered a stroke between
2011 and 2012. (R. at 526).
12

hearings, however no statute or regulation requires the AU to do so. Furthe
rmore, Plaintiff argues
that he was harmed because he was not afforded the opportunity to testify at

his hearing. However,

evidence in the record shows that Plaintiffs counsel had the opportunity
to call upon Plaintiff for
testimony, but declined to do so. (R. at 528). Because Plaintiff’s counse
l declined to have Plaintiff
testify at the hearing, any harm that could have come from the
AU’s error in describing the
procedural history was rendered moot. (R. at 528). Although the
AU’s decision may not have
accurately set forth the procedural history of this case, this Court finds

that the errors were harmless

and did not affect the outcome of the decision. See Fisher v. Bowen
, 869 F.2d 1055, 1057 (7th Cir.
1989) (“No principle of administrative law or common sense require
s us to remand a case in quest
of a perfect opinion unless there is reason to believe that the remand
might lead to a different
result”); Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999) (“We
have consistently held that a
deficiency in opinion-writing is not a sufficient reason for setting
aside an administrative finding
where the deficiency had no practical effect on the outcome of the

case.”). Accordingly, this Court

declines to remand this matter based upon any procedural inaccu
racies.
B.

Whether the AU’s Step Three Finding is Based on Substantial
Evidence

Plaintiff does not challenge the AU ‘s findings at step one or two
of his analysis. However,
PlaintitY makes several arguments in support of his contention
that the AU’s step three analysis is
flawed. (Pl.’s Br. 13-15). First, Plaintiff claims that the AU failed
to consider Plaintiffs Hepatitis
C diagnosis in conjunction with his HW diagnosis as an opport
unistic disease. (Id.). Plaintiff also
argues that although the AU decided that his Hepatitis C was
a severe impairment at step two, at
step three of the analysis, the AU failed to mention anythin
g about the Hepatitis C diagnosis.
Additionally, Plaintiff contends that the AU did not consid
er all of his severe impairments in

13

combination while comparing them to the Listings to determine
whether the severity of the
impairment or combination thereof equaled or medically equaled a Listed
Impairment. (Id.).
1.

Hepatitis C is Not a Listed Opportunistic Disease

Plaintiff argues that the AU failed to consider his Hepatitis
C in conjunction with his HIV,
in comparison to the Listed Impairments. (Id.). Specifically,
Plaintiff asserts that Listing
14.08(d)(5) requires the AU to deem a person with HIV
and opportunistic disease, such as
Hepatitis C, disabled. (Id.). However, Hepatitis C is no longer
listed as an opportunistic disease
in Listing 14.08. 20 C.F.R

§ 404 Subpart P, Appendix 1 Listing 14.08. Therefore, any argument

that the AU should have viewed Plaintiffs Hepatitis C as an opport
unistic disease coupled with
Plaintiffs HIV is without merit.
2.

The AU Failed to Compare Plaintiffs Severe Impairment
of Hepatitis C to
the Listed Impairments

At step three, if the Plaintiff’s impairment or group of impairments
is found to be one of
the Listed Impairments, 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
impairments did not meet or medically
equal one of the Listed Impairments, but he failed to provid
e reasons for this determination
specifically with respect to Plaintiffs Hepatitis C impairment.
(R. at 5 12-13).
Defendant argues that even though the AU did not explici
tly address the Hepatitis C
impairment in his step three analysis, the error was harmle
ss because Plaintiff does not meet the
requirements of the Listings. (P1’s. Br. 13).
In this circuit, it is well established law that in making
a decision at step three of the
analysis, the AU must indicate the evidence he found persua
sive, and that which he rejected, as
well as his reasons for doing so. See Cotter 642 F.2d at
705-07. In other words, “[tjhe AU has a
14

duty to hear and evaluate all relevant evidence in order to determine
whet

her an applicant is entitled

to disability benefits. The AU’s decision must be in writing and cont
ain findings of fact and a
statement of reasons in support thereof.” (Id. at 704). In this rega
rd, the AU is required to “fully
develop the record and explain his finding at step three, inclu
ding an analysis of whether and why
[each of the Plaintiffs] impairments, or those impairments com
bined, are or are not equivalent in
severity to one of the listed impairments.” Burnett, 220 F.3d
at 120. The AU is not required to use
specific language or cite to specific to Listings in his step three
analysis. Jones v. Barnhart, 364
F.3d 501, 505 (3d Cir. 2004). However, the AU’s decis
ion “read as a whole” must permit
meaningful judicial review of its step three determination by
developing the record and explainin

g

its findings. Id.
Here, at step two of his analysis, the AU found that Plain
tiff had the severe impairments
of HIV. Hepatitis C, seizures, and depression. (R. at 512).
At step three, the AU stated that
Plaintiff’s impairment or combination of impairments did
not meet or

medically equal the severity

of one of the Listed Impairments. (Id.). The AU laid out his
reasoning as to why Plaintiffs HIV,
seizures, and depression did not meet or equal a liste
d impairment, but he did not mention
Plaintiffs Hepatitis C impairment, or, in particular, why
the Hepatitis C impairment did or did not
meet or equal a listed impairment. (Id.). At step four of his
analysis the AU states that “[a]lthough
the [Plaintiff] suffered HIV, a seizure disorder, and Hepa
titis C, there is no evidence which
demonstrates that his condition was completely disab
ling during his alleged closed period.” (R. at
514). Notably, the AU ‘s step four analysis explicitly
references Hepatitis C, but does not indicate
what evidence, if any, was weighed in regards to Plain
tiffs Hepatitis C at step three. Read as a
whole, the entire decision does not indicate whet
her any consideration was given to Plaintiffs
Hepatitis C at step three.

15

“In Burnett, this circuit held that an AU’s determination would
be set aside if it ‘merely
stated a summary conclusion that [Plaintiff’s] impairments did not
meet or equal any Listed
Impairment’, without identifying the relevant listed impairments,
discussing the evidence, or
explaining his reasoning.” 220 F.3d at 119 (quoting Clflo
n v. Chater, 79 F.3d 1007 (lOth Cir.
1981)). Here, the AU did not make a summary conclusion,
and did in fact explain his reasoning
for Plaintiffs severe impairments of HIV, depression, and seizure
s. However, the AU neglected
to fuiiy explain whether or not any consideration was given
to Plaintiff’s Hepatitis C diagnosis in
his step three analysis, or anywhere in his decision. Omitti
ng a relevant impairment entirely
without discussing any evidence or explaining the reasoning
behind the omission is akin to the
summary conclusion Burnett precludes. (Id.). Because of this
omission, this Court has no way of
assessing whether the AU’ s determination at step three was

based upon substantial evidence given

that there is no indication before the Court whether the AU
weighed, accepted, or dismissed any
evidence regarding Plaintiffs Hepatitis C. Therefore, the
Court will remand this case for a
discussion of the evidence and an explanation of his
reasoning supporting a determination
regarding whether Plaintiffs Hepatitis C does or does
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 [Plai
ntiffs Hepatitis C] impairment[], or
[Plaintiffs] impairments combined, are or are not equiva
lent in severity to one of the listed
impairments.” Lopez v. Colvin, No. 12-7238, 2013 U.S.
Dist. 134929, at *12 (D.N.J. Sept. 20,
2013) (citing Burnett, 220 F.3d 120).

IV.

CONCLUSION

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_______________________

The Court has reviewed the entire record, and for the reasons discussed
above, finds that
the A U ‘s determination at step three—that Plaintiffs severe impairments
did not meet or
medically equal a listed impairment—is not supported by substantial eviden
ce. Accordingly, the
Court remands this matter to the AU. On remand, the Court directs
the AU to consider all
Plaintiffs impairments at step three, and to explain his findings specifi
cally regarding Plaintiffs
Hepatitis C diagnosis. If the AU determines that Plaintiff has a severe
impairment or combination
of severe impairments that meet or medically equal a listed impairment,
the AU is further directed
to continue on with the sequential evaluation process. An approp
riate Order accompanies this
opinion.

Date:March/9

2015
Jose4. Uinares, U.S.D.J.

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