Filing 10

OPINION. Signed by Judge Jose L. Linares on 4/27/2015. (ld, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY MICHELLE DELEO, I Plaintiff, Civil Action No. 14-5503 (JLL) v OPINION COMMISSIONER OF SOCIAL SECURITY, Defendant. LINARES, District Judge. Before the Court is Plaintiff Michelle Deleo (“Pla intiff’)’s appeal of Administrative Law Judge (“AU”) Richard West’s decision deny ing Plaintiff’s applications for disability insu rance benefits (DIB) and supplemental security inco me (SSI). The Court has considered the submissions made in support of and in oppo sition to the instant appeal and decides this matt er without oral argument. Fed. R. Civ. P. 78. For the reasons set forth below, the Court remands this matter for further proceedings consisten t with this Opinion. I. BACKGROUND A. Plaintiff’s Mental and Physical Impairments 1. Physical Impairments Plaintiff maintains that she was disabled from October 5, 2007 through September 5, 2012 , the date the AU issued his adverse decision. (See ECF No. l). Plaintiff’s impairments are set forth below, chronologically, based upon the medical evidence contained in the record. 1 On September 28, 2007, Plaintiff gave birth to her daug hter via C-section at Hackensack University Medical Center (HUMC). (R. at 365-66). On October 5, 2007, Plaintiff was admitted to HUMC and treated by Dr. Douglas Benson for MSRA and necrotizing fasciitis. (Id. at 3 75-422). Plaintiff had her wound debrided on October 5, 2007 , and was brought into the operating room again on October 6, 2007 for a “washout.” (Id.). Plan tiffs wound was dressed with a vacuum assisted closure, or VAC, and she was subsequently put on the medication Vancomycin. (Id.). Plaintiff was discharged on October 19, 2007, with instr uctions to see Dr. Benson in one week and to follow up with Dr. Saber in the clinic in two weeks. (Id. at 375). On October 24, 2007, Plaintiff returned to HUM C to receive wound care and was discharged the same day. (Id. at 428-33). On Decembe r 11, 2007, Plaintiff was seen by a physician at HUMC, who indicated in a treatment note that Plain tiffs wound was healed and closed, with no signs of a hernia. (id. at 451). Another treatmen t note, dated January 15, 2008, indicated that Plaintiff had muscle weakness (hernia) in the area of debridement, but also indicated that Plaintiff should be able to resume activity and would possibly require plastic reconstruction in one year. (Id.). On February 26, 2008, during a routine visit to the clinic at HUMC, Plaintiff complained of psoriasis and was referred to a dermatologist. (Id. at 505). The treatment note from the February 26, 2008 visit also reveals that Plaintiff was told to follow up with a surgeon, Dr. Benson, for a hernia repair in May of 2008. (Id. at 506). The treat ment note also indicated that Plaintiff should use a truss to support her hernia, and that she had a 90-day “disability” due to her hernia. (Id.). On February 26, 2008, a form was completed by Dr. Nora Tossounia, certifying that Plaintiff was unable to engage in the WFNJ work requirement due to her primary diagnosis of necrotizing fasciitis as the site of the C-section and her alternative diagnosis of depression. (Id. at 487). Dr. Tossounia indicated that Plaintiff was not receiving treatment at the time she made her 2 report. (Id.). Dr. Tossounia also indicated that Plaintiff shou ld only perform sedentary work, and that she should lift no more than 20 pounds, and stand for no long er than 5 minutes at a time. (Id.). Although Dr. Tossounia’s report is dated February 26, 2008, it was not submitted into evidence until January 9, 2012, just days before her hearing before AU West. (Id.). On May 27, 2008, Plaintiff returned to the clinic, indicating that her psoriasis has not improved or responded to the medication prescribed at her last visit. (Id. at 502). Plaintiff was referred to a dermatologist as well as a surgeon regarding her hernia. (Id. at 503). On September 19, 2008, Plaintiff was seen by William K. Boss, Jr., who examined Plaintiff’s hernia and recommended abdominal wall reconstruction including a resection and dermal grafting. (Id. at 436). On December 3, 2008, Plaintiff returned to Dr. Boss for a second consultation. (Id. at 437). In his treatment notes, Dr. Boss indicated that Plaintiff did not stop smoking although she had promised to do so. (Id.). Dr. Boss noted that he explained the additional risks of smoking before a surgery to the Plaintiff, but ultimately decided to proc eed with the surgery with a different approach, attempting to avoid possible infection due to Plain tiff’s smoking. (Id.). On December 4, 2008, Dr. Boss and Dr. Benson performed Plaintiffs hernia repair. (Id. at 43 8-39). Outpatient visits on December 16, 2008 and December 22, 2008 reve aled that Plaintiffs wound healed well, and that no sign or symptoms ofinfection were prese nt. (Id. at 441). On January 20, 2009, Plaintiff was seen by Dr. Benson, who indicated that although Plain tiff complained of lower left quadrant pain, there was no sign of a hernia and her incision site looked good. (Id. at 449). On April 28, 2009, Plaintiff was seen by Dr. Benson, who indicated that Plaintiffs wound was well healed. (Id. at 449). At the April 28, 2009 visit, Plaintiff again complained of lower left quadrant pain when lifting her daughter; Dr. Benson subsequently advi sed Plaintiff to seek pain management and restrict lifting, (Id.). 3 On June 17, 2009, Dr. Joseph Damico reviewed the medical evid ence and indicated the Plaintiff’s incision was healing well following her hernia surg ery on December 4, 2008. (Id. at 462). He also indicated the Plaintiff had an RFC for light work. (Id.). On May 5, 2010, Plaintiff sought treatment from Dr. Amir Hann a for neck and lower back pain. (Id, at 529). Dr. Hanna’s treatment notes indicated Plain tiff had limited neck rotation and was also limited in bending forward. (Id. at 530). Dr. Hann a referred Plaintiff for an MRI of the cervical and lumbosacral spine, as well an EMG, nerve cond uction studies and a CT scan of her abdomen. (Id.). He also referred Plaintiff to the gynecology department to rule out pelvic adhesions and to the surgery department to rule out abdo minal adhesions. (Id.). The EMG study indicated no evidence of lumbar or cervical radiculopathy but , was consistent with peripheral neuropathy of the lower extremities. (Id. at 533). On May 28, 2012 Plaintiff underwent a CT scan which revealed an anteverted uterus containing a tiny and unremarkable cystic focus on the right, and an adnexal cyst on the left, with a questionable right -sided uterine fibroid on the right. (Id. at 509). A pelvic ultrasound was subsequently recommended . (Id.). On June 13, 2009, Dr. Jose Rabelo, a consulting internist for the state agency, reviewed the evidence provided by the Plaintiff, and recommended a Residual Functional Capacity (RFC) for light work, with restrictions including only occasional clim bing of ramps and stairs, and kneeling do to Plaintiff’s abdominal hernia. (Id. at 457,460). On February 12, 2010, Dr. Agop Artihlan completed a form asserting that Plaintiff was unable to engage in the WFNJ work requirement from February 12,2010 through August 12, 2010 because of illnesses including fibromyalgia, chronic pain syndrome, major depression, psychosis, lBS. dyspepsia and insomnia. (Id. at 483-84). On Octo ber 7, 2010 Dr. Artihian completed a similar 4 form, citing the same illnesses, indicating that Plaintiff was unable to work for a one year period beginning on October 7, 2010. (Id. at 479-80). On June 29, 2011, Plaintiff underwent a pelvic ultrasoun d which showed bilateral cysts and a suspected uterine fibroid. Subsequently, on July 30, 2011, Dr. Stefano Stella performed a diagnostic hysteroscopy, dilation and curettage, and endo metrial ablation. (Id. at 543). On October 19, 2011, Plaintiff was seen by a dermatolo gist, Dr. Karen Gordon. Dr. Gordon’s notes indicate that Plaintiff had psoriasis on the arms and legs and that Plaintiff did not exhibit any signs of depression, anxiety, or agitation. (Id. at 552-53). Dr. Gordon prescribed Plaintiff Ultravate PAC ointment, Methrotrexate, and Beth amethasone Diproprionate. (Id. at 554). Plaintiff returned to Dr. Gordon’s office to receive UVB phot otherapy a total of ten times between September and October 2011. (Id. at 560, 564, 566, 568, 570, 572, 574, 576, 578, 581). 2. Mental Impairments In November of 2010, a report of examination com pleted by Dr. Melvin Rand, Ph.D., indicated that Plaintiff began psychotherapy for depr ession on July 8, 2010. (Id. at 481-82). Plaintiff indicated that when Dr. Rand retired, Plain tiff began see Dr. Dora Ostrowski for medication management. (Id. at 583). Plaintiffs attor ney subsequently asked Dr. Ostrowski to submit a statement to be used at the hearing before the AU. (Id. at 584). On June 15, 2011 Dr. Ostrowski reported that Plaintiff stopped working to care for her ill mother, who eventually passed away, and that is what sparked Plaintiffs depression. (Id.). Dr. Ostrowski noted that Plaintiff had been placed on an antidepressants by a neurologist around the same time. (Id.). In her report Dr. Ostrowski found that Plaintiff suffered from major depression and anxiety. (Id.). The doctor noted that Plaintiffs concentration was poor and that her mood was sad. (Id.) Despite Plaintiffs diagnosis, Dr. Ostrowski noted that Plaintiff had no gross intellectual impairments, did not suffer 5 from delusional thinking of hallucinations, and maintaine d fair judgment and insight. (Id.). Dr. Ostrowski prescribed Ambien and Celexa, and urged Plain tiff to continue therapy, and take a year off of work. (Id.) After receiving Dr. Ostrowski’s 2011 report following the January 6th hearing, the AU requested that Plaintiff undergo a psychological evaluation , which was performed by Dr. Solomon Miskin on June 4, 2012. (Id. at 28, 588). During the initial portion of the examination by Dr. Miskin, Plaintiff reported that she was not experienc ing any psychotic symptoms and indicated that she had never been hospitalized for psychiatric reaso ns. (Id.). Plaintiff also reported that her medication was helpful and effective. (Id.). In his repo rt, Dr. Miskin notes that while Plaintiff had good comprehension, her mood was slightly anxious and mildly apprehensive. (Id.). Additionally, Dr. Miskin noted that Plaintiff was able to think abstr actly, multiply, add/subtract, spell words backwards, and successfully complete memory tests . (Id. at 580-90). Dr. Miskin also reported that Plaintiffs intelligence was average, and diagnose d her with mild to moderate major depressive disorder without psychotic features. (Id.). Dr. Misk in assigned Plaintiff a Global Assesment of Functioning (GAF) score of 55-60. (Id.) Following his examination of the Plaintiff on June 4, Dr. Miskin completed a Medical Source Statement of Ability to do Work-Related activities (Mental), where he indicated that Plaintiff had no limitation on her ability to remembe r and carry out both simple and complex instructions. (Id. at 592). Additionally, Plaintiff indic ated to Dr. Miskin that she had no limitation on the ability to interact appropriately with the publ ic, or coworkers and supervisors. (Id. at 593). 6 A. Procedural History On October 7, 2008, Plaintiff applied for DIB and SSI, alleging that she was disabled and unable to work since October 5, 2007. (R. at 270-75)’. Plaintiff’s applications were denied initially, and then again upon reconsideration. (Id. at 186-97). A hearing before AU James was held on December 2, 2010, in which Plaintiff was prese nt. (Id. at 58-82). At the request of Plaintiff’s counsel, the record was left open for 30 days following the hearing to produce additional evidence. (Id. at 61). Plaintiff failed to prod uce any new evidence, and on April 28, 2011, AU Andres issued a decision, finding that Plain tiff was not disabled. (Id. at 172-78). Plaintiff sought Appeals Council review, and on Sept ember 19, 2011, the matter was remanded so that the AU could reconsider Plaintiff’s men tal impairments, RFC, and to obtain supplemental evidence from a vocational expert (yE) . (Id. at 182). On January 6, 2012, AU Richard West held a supp lemental hearing, where Plaintiff and a VE both testified. (Id. at 83-164). The record was kept open for several days following the hearing so that Plaintiff could submit additional documents regarding her mental impairments. (Id. at 88). As such. Plaintiff submitted a statement by Dora J. Ostrowski, M.D., detailing Plaintiff’s treatment for depression. Subsequently, AU West requested a consultative psychiatric evaluation, which was performed by Dr. Solomon Miskin, on June 4, 2012. (Id. at 588). AU West proffered Dr. Miskin’s report to Plaintiff’s counsel, who then requ ested a supplemental hearing on July 9, 2012. (Id. at 361). On September 5, 2012, AU West issued a decision, finding that Plaintiff was not under a disability within the meaning of the Act from the alleged onset date of October 5, 2007, through the date of the decision. (Id. at 20-35). On November 8, 2012, Plaintiff requested Appeals Council review, urging the Appeals Council to vacate the decision of the AU and remand the case 1 “R.” refers to the pages of the Administrative Reco rd. 7 for a second supplemental hearing to allow for hypo thetical questions to be posed to the VE regarding the consultative examination performed by Dr. Miskin. (Id. at 362). On July 3, 2014, the Appeals Council denied Plaintiffs request for review. (Id. at 1-5). As a result, Plaintiff appealed to this Court on September 3, 2014. (See ECF No. 1). This Court has jurisdiction to review this matter pursuant to 42 U.S.C. 405(g). § H. LEGAL STANDARD A. The Five-Step Process for Evaluating Whether a Clai mant Has a Disability Under the Social Security Act, the Administration is authorized to pay disability 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 activ ity by reason of any medically determinable physical or mental impairment which can be expe cted to result 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 unab le to engage in substantial gainful activity when 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 kind of substantial gainful work which exist s in the national economy. 42 U.S.C. § 423(d)(2)(A), 13 82c(a)(3)(B). . ..“ Regulations promulgated under the Social Secu rity Act establish a five-step process for determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(l), 4l6.920(a)(l). At step one, the AU assesses whether the claimant is curre ntly performing substantial gainful activity. 20 C.F.R. § § 404.1 520(a)(4)(f), 41 6.920(a)(4)(i) . If so, the claimant is not disabled and, thus , the process ends. 20 C.F.R. § 404.1520(a)(4)(f), 416.920(a)(4)(i). If not, the AU proceeds to step 8 two and determines whether the claimant has a “sev ere” physical or mental impairment or combination of impairments. 20 C.F.R. § § 404.1 520(a)(4)(ii), 41 6.920(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 proceeds to step three. 20 C.F.R. § 404.1 520(a)(4)(ii), 416.920(a)(4)(ii). At step three , the AU evaluates whether the claimant’s severe impairment either meets or equals a liste d impairment. 20 C.F.R. § 404.1 520(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Otherwise, the AU moves on to step four, which involves three sub-steps: (I) the AU must make specific findings of fact as to the claimant’s [RFCJ; (2) the AU must make findings of the phys ical and mental demands of the claimant’s past relevant work; and (3) the AU must compare the [RFC] to the past relevant work to deter mine whether 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), 4l6.920(a)(4)(iv). However , if the claimant’s RFC prevents him from doing so, the AU proceeds to the fifth and final step of the process. 20 C.F.R. § § 404.1 520(a)(4)(iv), 41 6.920(a)(4)(iv). The claimant bears the burden of proof for steps one through four. Poulos v. Comm ‘r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (citin g Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004). “At step five, the burden of proof shift s to the. Administration to show that the claim ant is capable of performing other jobs existing in significant numbers in the national econ omy, considering the claimant’s age, education, work experience, and [RFC}.” Id. (citing Ramirez, 372 F.3d at 551). . 9 . B. The Standard of Review: “Substantial Evidence” 2 This Court must affirm an AU’s decision if it is supp orted 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 migh t accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quo ting 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 evid ence 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.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations omitted). III. DISCUSSION At step one, the AU found that the Plaintiff has not engaged in any substantial gainful activity since October 5, 2007, the alleged onse t date. (R. at 25). At step two, the AU found that Plaintiff had severe impairments including staph infection, hernia, hepatitis C, fibromyalgia, psoriasis, depression, and anxiety. (Id.). At step three, the AU found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of 2 Because the regulations governing supplemental security income—20 C.F.R. 416.920—are § identical to those covering disability insuranc e benefits—20 C.F.R. § 404.1 520—this Court will consider case law developed under both regimes. Rutherford v. Barn hart, 399 F.3d 546, 551 n. I (3d Cir, 2005) (citation omitted). 10 the listed impairments in 20 CFR Part 404, Subp art P, Appendix 1. (Id.). At step four, the AU found that Plaintiff has the RFC to perform sede ntary work, with specific limitations, and that she is unable to perform her past relevant work. (Id. at 26). Additionally, at step four the AU foun d that Plaintiff’s “medically determinable impa irments could reasonably be expected to caus e the alleged symptoms; however the Plaintiff’s state ments concerning the intensity, persistence, and limiting effects of these symptoms are not cred ible to the extent they are inconsistent with the RFC assessment.” (Id.). At step 5 of the evaluation , the AU found that there were jobs existing in significant numbers in the national economy that Plaintiff could perform. KId. at 27). Thus , the AU concluded that Plaintiff was not disabled. (Id. at 30). Plaintiff proffers five arguments for the Court’s consideration. First, Plaintiff contends that her due process rights were violated when the AU refused her request for a supplemental hearing following admittance of new evidence post -hearing. (P1’s. Br. 12). Second, Plaintiff argu es that the AU failed to give the opinion of the Plain tiff’s treating physician sufficient weight regarding her diagnosis of “poor concentration.” (Id. At 13). Next, Plaintiff alleges that the AU failed to identify her peripheral neuropathy of the lowe r extremities at step two, and thus failed to fully consider the impairment at step three alon e or in combination with Plaintiffs other impairments, or when formulating Plaintiff’s RFC. (Id. at 14). Additionally, Plaintiff argues that the AU failed to consider Plaintiffs rheumatoid arthritis, skin impairments, or flap and mesh insertions as impairments in any of the steps of the sequ ential evaluation process. (Id. at 16). Last ly, Plaintiff contends that the AU failed to take the frequency of Plaintiff’s bathroom visits, along with her peripheral neuropathy into account when formulating Plaintiffs RFC. (Id. at 17). The Court will first address Plaintiff’s alleg ed due process violation argument. How ever, because the Court finds merit in Plaintiff’s contention that the AU failed to consider her peripheral 11 neuropathy at stages two, three, four and five of the analysis, the Court need not address Plaintiffs other arguments. A. Whether Plaintiffs Due Process Rights Were Viol ated When the AU Failed to Grant a Request For a Supplemental Hearing Plaintiff argues that her due process rights were viola ted when the AU ignored her request for a supplemental hearing following admittan ce of new medical evidence post-hearing. (Id. at 12). Plaintiff concedes that the AU proffered the medical report obtained post-hearing as required by the HALLEX, however, Plaintiff asserts that the AU did not grant Plaintiffs request for a supplemental hearing, also required by the HAL LEX. (Id.). Defendant claims that the AU is not required to grant Plaintiff a supplemental hear ing unless “it is determined by the AU that such questioning is needed to inquire fully into the issues.” (Defs. Br. 15); HALLEX 1-2-7-30. Defendant argues that the AU fully develope d the record and determined that no further questioning, nor a supplemental hearing were necessary, and thus no due process violation occurred. (Id.). According to its statement of purpose, the SSA ’s Hearings, Appeals and Litigation Law Manual (“HALLEX”) is intended to convey “guiding principles, procedural guidance and information to the Office of Hearings and App eals (“OHA”) staff. It also defines procedures for carrying out policy and provides guid ance for processing and adjudicating claim s at the Hearing, Appeals Council, and Civil Action levels.” HALLEX § 1-1-0-1, Purpose, Plaintiff cites the porti on of the HALLEX which address post-hearing evidence and supplemental hearings, 1-2-7 -30(H), § which reads in pertinent part; “. . . [ijf the claimant requests a supplemental hearing, the AU must grant the request, unless the AU receives additional documentary evidence that supports a fully favorable decision . .“. HALLEX 1-2-7 -30(H), Proffer Procedures: Action on Rece § ipt of ... . 12 Comments After Proffer, found at _Home/hallex/1-02/1-2-7-30.htm l (Last visited April 1, 2015). Defendant, however, relie s on § 1-2-7-30(B) of the HALLEX, which states that a proffer letter must Give the claimant a time limit to object to, com ment on or refute the evidence, submit a written statement as to the facts and law that the claimant believes apply to the case in light of the evidence submitted, submit written questions to be sent to the author(s) of the proffered evidence or exercise his or her right s with respect to requesting a supplemental hearing, and the oppo rtunity to crossexamine the author(s) of any post[-hearing report(s) if it is determined by the AU that such questioning is needed to inquire fully into the issues. HALLEX § 1-2-7-30(H), Proffer Procedures: The Proffer Letter, found http :/ Home/hallex/I-02/1-2-7’ 1 3 0.html (Last visited April 1, 2015). Though both Parties in the instant matter cite to prov isions of the HALLEX in favor of their respective arguments, “[t]he United States Court of Appeals for the Third Circuit has held that manuals promulgating official Social Secu rity policy and operating instructions, such as HALLEX, “do not have the force of law.” See Muh ammad v. Astrue, 2009 U.S. Dist. LEXIS 116519, (citing Edelman v. Commissioner ofS ocial Security, 83 F.3d 68, 71 n.2 (3d Cir. 1996 ,),) (éiting Schweiker v. Hansen, 450 U.S. 785, 789, 101 S. Ct. 1468, 67 L. Ed. 2d 685 (1981)). Furthermore, in Bordes v. Comm ‘r ofSoc. Sec. , the Third Circuit Court of Appeals held that a claimant’s argument that the Appeals Council’ s actions did not comply with HALLEX and were “fundamentally unfair were without merit”. Bord es v. Comm’r ofSoc. Sec., 235 Fed. Appx. 853, 858 (3d. Cir. 2007). However, the Court in Bord es, noting that the HALLEX does not create judicially enforceable rights, acknowledged that the United States Court of Appeals for the Fifth Circuit has taken a different approach regarding the enforceability of HALLEX policies and procedures on judicial review. (Id. at 859). That is, the Fifth Circuit has held that if preju dice to 13 at the claimant [plaintiff] results from a violation of HALLEX procedures, the determination “can not stand,” and thus in some instances the Court could remand as a result of the AU’s failure to adhere to HALLEX’s guidelines. Id. (quoting New ton v. Apfel, 209 F.3d 448,459-60 (5th Cir. 2000)). While it did not adopt the Fifth Circ uit’s analysis, the Court of Appeals in Bordes nonetheless held that, even under the Fifth Circuit’s approach, the claimant had not shown that it was prejudiced by the Appeals Cou ncil’s failure to comply with its own policies and was therefore not entitled to reversal or remand. Muhammad v. Astrue, 2009 U.S. Dist . LEXIS 116519 (citing Newton v. Apfel, 209 F.3d 448, 459-60 (5th Cir. 2000)). Plaintiff argu es that she should have been afforded the opportuni ty for a supplemental hearing and to question the VE based on new evidence brought into reco rd, and a new RFC. Here, because the Plaintiff 3 has failed to articulate how she was prejudiced by the AU’s decision to deny Plaintiff’s requ est for a supplemental hearing, her argument fails . B. Whether the AU Failed to Consider Plaintiffs Peripheral Neuropathy at Any Stage of the Sequential Evaluation Process Plaintiff argues that the AU failed to consider her bilateral peripheral neuropathy of the lower extremities at any stage of the sequ ential evaluation process, despite the fact that the AU mentioned the ailment in his decision. (P1’ s. Br. 14). Specifically, Plaintiff asserts that due to evidence submitted post-hearing, the AU should have categorized Plaintiffs perip heral neuropathy as a severe impairment at step two of the analysis. (Id.). Further, Plaintiff argues that To the extent Plaintiff argues that she shou ld be afforded the opportunity to be hear d at a supplemental hearing in light of additiona l medical evidence brought into record post-hearing regarding her peripheral neuropathy, the Cou rt rejects this argument. Plaintiff’s neuropat hy was in fact discussed at the January 6 hearing, and Plaintiff had the opportunity to discu ss the ailment with both the AU, and the VE upon ques tioning. In any event, as this Court remands this case for the reasons articulated herein, it need not make a determination on this issue. 14 because the AU failed to find peripheral neuropat hy a severe impairment at step two, the AU’s determinations at step three, four, and five are cons equently flawed. (Id. at 16). At the outset, the Court notes some discrepancies in Plaintiffs argument. Plaintiff asserts in her brief that the AU did not know of Plaintiffs peripheral neuropathy diag nosis until after the January 6, 2012 hearing. (Id. at 15). This assertion is incorrect. (R. at 89.). Plaintiffs counsel discussed the peripheral neuropathy diagnosis at the outset of the January 6, 2012 hearing. (Id.) . Later in the hearing, the AU and Plaintiffs spok e again about Plaintiffs peripheral neuropathy, and she offered testimony regarding the pain she was feeling from the ailment. (Id. at 109-110). This lack of accuracy in portrayal of the record does not affect the analysis of Plaintiffs argument, but this Court finds the errors are important to note . In determining whether an impairment is seve re at Step Two, the Third Circuit has laid out the following analysis: “The step-two inquiry is a de minimis screening device to dispose of groundless claims. An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality or a com bination of slight abnormalities which have no more than a mini mal effect on an individual’s ability to work. Only those claim ants with slight abnormalities that do not significantly limit any “basic work activity” can be denied benefits at step two. If the evidence presented by the claimant presents more than a “slight abno rmality,” the steptwo requirement of “severe” is met, and the sequential evaluation process should continue. Reasonable doubts on severity are to be resolved in favor of the claimant.” Newell v Comm ofSoc. Sec., 347 F.3d 541, r t 546 (3d Cir. 2003) (citations omitted). “The burden placed on an applicant at step two is not an exacting one.. .an applicant need only dem onstrate something beyond ‘a slight abnormality or a com bination of slight abnormalities which would have 15 no more than a minimal effect on an individual’s abili ty to work.” Feliciano v. Astrue, 2012 U.S. Dist. LEXIS 100913, (citing McCrea v. Comm’r ofS oc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). In the instant case, Plaintiff provided documen tation regarding her bilateral peripheral neuropathy of the lower extremities to the AU at the hearing (that were later entered into evidence), as well as direct testimony from the Plaintiff regarding the pain and limitations that resulted from her diagnosis. (R. at 109, 533) . Plaintiff testified that her entire “lower area” is constantly in pain due to her peripheral neuropat hy. (Id. at 109). Although there is a small amo unt of evidence referencing the peripheral neuropathy in the record, it is clear to this Court that Plaintiff met her burden of proof in showing that her peripheral neuropathy was beyond a sligh t abnormality, and that a more than minimal effec t on Plaintiffs ability to work may have been present. In Jones v. Barnhart, 364 F.3d 501 (3d Cir. 2004 ), the Third Circuit explained that, while an AU is not required to “use particular lang uage or adhere to a particular format in cond ucting his analysis,” the decision “read as a whole” must be capable of providing meaningful judic ial review. (Id. at 505). Here, without the AU having fully addressed the medical and testi monial record referencing Plaintiffs peripheral neuropat hy, the Court cannot conduct meaningful judicial review of the AU’s Step Two findings, nor entir ety of the decision. See e.g. Sincavage v. Barn hart, 171 Fed.Appx. 924, 925 (3d Cir. 2006) (rem anding where AU failed to discuss, in Step Two analysis, medical reports recognizing that claim ant suffered from panic attacks and failed to assess the impact of those attacks on the claimant’s ability to work). Indeed, the AU did men tion the “new evidence” of peripheral neuropathy in his decision when formulating Plain tiffs RFC, however the ALT failed to address the impa irment anywhere else in the decision. This does not coincide with the dicta of Jones. Should the AU have determined at Step Two that Plaintiff 16 suffered from the severe impairment of periphera l neuropathy, the entire sequential evaluation would have changed. Therefore, the Court will rema nd this case for a discussion of the evidence and an explanation of the AU’s reasoning supp orting a determination regarding Plaintiffs peripheral neuropathy. IV. CONCLUSION The Court has reviewed the entire record, and for the reasons discussed above, finds that the AU’s lack of analysis regarding Plain tiffs peripheral neuropathy is not supported by substantial evidence. Accordingly, the Court rema nds this matter to the AU. On remand, the Court directs the AU to consider Plaintiffs peripheral neur opathy at step two. If the AU determines that Plaintiff has a severe impairment of perip heral neuropathy at step two, the AU is furth er directed to move forward with the sequential evalu ation process, while considering Plaintiffs peripheral neuropathy at each subsequent step. An appropriate Order accompanies this opinion. Date:April7 2015 L. Linares, U.S.D.J. 17

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