DELEO v. COMMISSIONER OF SOCIAL SECURITY

Filing 10

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

NOT FOR PUBLICATION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,
http://www.socialsecurity.gov/OP_Home/hallex/I0l/I-l-0-1.html. 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 http://www.ssa.gov/OP
_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’www.ssa.gov/OP
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.

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