SMERALDO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 1/6/16. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Gwen Brown SMERALDO,
Civ. No. 14-7394 (KM)
COMMISSIONER OF SOCIAL SECURITY,
KEVIN MCNULTY, U.S.D.J.:
Gwen Brown Smeraldo brings this action pursuant to 42 U.S.C.
to review a final decision of the Commissioner of Social Security
(“Commissioner”) denying her claim for Title II Disability Insurance Benefits
(“DIB”). Smeraldo has been diagnosed with schizophrenia, paranoid type, and
alleges that she suffers from a chemical imbalance, paranoia, anxiety, and
depression. (See, e.g., R. 561 (ECF. No. 5); P1. Br. 2 (ECF No. 10))
For the reasons set forth below, the Administrative Law Judge’s (“ALT”)
decision is REMANDED for further proceedings consistent with this opinion.
Smeraldo seeks to reverse an AU’s finding that she was not disabled
from February 10, 2010, through December 31, 2010, Smeraldo’s date last
insured. (R. 16—24)
Smeraldo worked as a dietitian and dietary technician intermittently
from 1983 to 2004. (R. 31, 35—37) In April 1995, Smeraldo spent two weeks at
“R. “refers to the pages of the administrative record filed by the
Commissioner as part of his answer. (ECF No. 5)
Saint Barnabas Medical Center, where she was treated for a psychiatric
condition. (R. 254) Smeraldo spent another month in the Clara Maass Medical
Center in February and March of 1998, where she was again treated for a
psychiatric condition. (R. 213—14) Shortly thereafter, Smeraldo started
treatment with Dr. Iskandarani, who diagnosed her with schizophrenia,
paranoid type. (R. 314) Dr. Iskandarani has continued to monitor her condition
since the last hospitalization, seeing her approximately three times a year. (R.
Ms. Smeraldo initially applied for DIB benefits on May 22, 2012. (R. 133)
That claim was first denied on July 26, 2012 (R. 61, 73), and denied again on
reconsideration on December 3, 2012 (R. 72, 81). On January 11, 2013,
Smeraldo filed a request for a hearing. (R. 84) On August 1, 2013, an AU
a hearing, at which Smeraldo was represented by counsel. Both Smeraldo and
a vocational expert testified at the hearing. (R. 28—52) On November 18, 2013,
Administrative Law Judge (“AU”) Leonard Olarsch denied Smeraldo’s
application for DIB benefits. (R. 13—24) On September 25, 2014, the Appeals
Council denied Smeraldo’s request for review, making the AU’s decision the
final decision of the Commissioner. (R. 1—6) Smeraldo now appeals that
To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C.
§ 423(c). A claimant must show that she is
unable to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or that has lasted (or can be expected to last) for a continuous period of
not less than twelve months. 42 U.S.C.
A. Five-Step Process and this Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R.
§ 404.1520, 4 16.920.
Review necessarily incorporates a determination of whether the AU
followed the five-step process prescribed by regulation. The steps may be briefly
summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.
404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or combination
of impairments, is “severe.” Id.
§ 404.1520(c), 416.920(c). If the claimant has a
severe impairment, move to step three.
Step 3: Determine whether the impairment meets or equals the criteria
of any impairment found in the Listing of Impairments. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Pt. A. If so, the claimant is automatically eligible to receive
benefits; if not, move to step four. Id.
§ 404.1520(d), 416.920(d).
Step 4: Determine whether, despite any severe impairment, the claimant
retains the Residual Functional Capacity (“RFC”) to perform past relevant work.
§ 404.1520(e)—(f), 416.920(e)-(f). If not, move to step five.
Step 5: At this point, the burden shifts to the SSA to demonstrate that
the claimant, considering his age, education, work experience, and RFC, is
capable of performing jobs that exist in significant numbers in the national
economy. 20 C.F.R.
§ 404.1520(g), 416.920(g); see Poulos v. Comm’rof Soc.
Sec., 474 F.3d 88, 91—92 (3d Cir. 2007). If so, benefits will be denied; if not,
they will be awarded.
As to all legal issues, this Court conducts a plenary review. Schaudeck v.
Comm’rof Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to factual findings,
this Court adheres to the AL.J’s findings, as long as they are supported by
substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d Cir. 2004)
(citing 42 U.S.C.
§ 405(g)). Where facts are disputed, this Court will “determine
whether the administrative record contains substantial evidence supporting the
findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607, 610 (3d
Cir. 2014) (internal quotation and citation omitted). Substantial evidence “is
more than a mere scintilla but may be somewhat less than a preponderance of
the evidence.” Id. (internal quotation and citation omitted).
[l]n evaluating whether substantial evidence supports the AU’s
findings.., leniency should be shown in establishing the claimant’s
disability, and.., the Secretary’s responsibility to rebut it should be
strictly construed. Due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in this
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.
Reefer v. Barn hart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and
quotations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.
§ 405(g)); Zimsak, 777 F.3d at 610—11 (“[Wje are
mindful that we must not substitute our own judgment for that of the fact
This Court may, under 42 U.S.C.
§ 405(g), affirm, modify, or reverse the
Secretary’s decision, or it may remand the matter to the Secretary for a
rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’r of Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007).
Outright reversal with an award of benefits is appropriate only when a
fully developed administrative record contains substantial evidence that the
claimant is disabled and entitled to benefits. Podedworny, 745 F.2d at 221—
222; Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five step inquiry. See Podedwomy, 745 F.2d at 22 1—22. Remand is also proper
if the AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119—20 (3d Cir. 2000); Leech v. Barnhart, 111 F. App’x 652,
658 (3d Cir. 2004) (“We will not accept the AU’s conclusion that Leech was not
disabled during the relevant period, where his decision contains significant
contradictions and is therefore unreliable.”). It is also proper to remand where
the AU’s findings are not the product of a complete review which “explicitly’
weigh[s] all relevant, probative and available evidence” in the record. Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994).
B. The AU’s decision
Olarsch determined that Smeraldo’s date last insured (see
https://secure. ssa.gov/poms.nsf/lnx/042550 1320) was December 31, 2010,
and that the alleged disability onset date was February 10, 2010. (R. 18) The
concluded that from February 10, 2010, through December 31, 2010,
Smeraldo was not “under a disability within the meaning of the Social Security
Act.” (R. 16) The AU’s determinations may be summarized as follows.
At step one, the AU determined that Smeraldo had technically engaged
in substantial gainful activity during the period from her alleged disability
onset date through her date last insured. This activity, however, consisted only
of an unsuccessful work attempt. (R. 18)2 The ALl therefore moved on to step
2 Smeraldo testified before the ALT that she worked as a dietitian from February
2010 to May 2010 but they let her go because “[t]he job was so stressful and [she] felt
really scared and nervous. [She] couldn’t function.” (R.33) Smeraldo also testified that
she tried to work as a cashier in Shop-Rite in March 2013, but lasted only four days
because she was too anxious and nervous to properly scan arid bag the items. (R. 33—
At step two, the AU
found that Smeraldo had the following severe
impairment: “schizophrenia, paranoid type.” (R. 18) He added that the record
showed Smeraldo endured two hospitalizations related to her illness: the first
in 1995 for two weeks, and the second in 1998 for a month. (Id.) From
Smeraldo’s medical records (R. 2 13—15), the AU
gleaned that the
hospitalizations were for symptoms such as confusion, anxiousness, paranoia,
and depression with psychosis. (R. 18—19) After the first hospitalization she
was treated with antipsychotic medication. (R. 18) When she became pregnant,
however, she stopped taking her medication, which led to her second
hospitalization. (Id.) During the second hospitalization Smeraldo’s medication
was adjusted and her condition improved until she was discharged; thereafter
she was to receive outpatient treatment and medication management as
needed. (R. 19)
At step three, the AU determined that, through the date last insured,
none of Smeraldo’s impairments or combinations of impairments met or
medically equaled the severity of one of the listed impairments, 20 C.F.R. Pt.
404, Subpt. P, App. 1, Pt. A (specifically,
19—20) The AL
§ 12.03, governing schizophrenia). (R.
§ 12.03(B), arrived at this determination by
finding that Smeraldo faced only mild restrictions as to daily living activities
(she was able to tend to her own personal needs, drive, take care of her
daughter, and do housework and shopping). (R. 19) She had only moderate
difficulties in social functioning (she talks on the phone with family members
and attends church). She has had moderate difficulties with concentration,
persistence, or pace (she can concentrate and handle money). (Id.) She has
extended episodes of decompensation. (Id.) Several of these
findings, however, were qualified by a finding to the effect of “when she is not
having an episode.” (Id.)
The Part A criteria are purposely set at a high level, to identify clear cases of
disability without further analysis. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A § 12.03,
governing schizophrenia, reads as follows:
The required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the requirements in
C are satisfied.
A. Medically documented persistence, either continuous or
intermittent, of one or more of the following:
1. Delusions or hallucinations; or
2. Catatonic or other grossly disorganized behavior; or
3. Incoherence, loosening of associations, illogical thinking, or
poverty of content of speech if associated with one of the following:
a. Blunt affect; or
b. Flat affect; or
c. Inappropriate affect;
4. Emotional withdrawal and/or isolation;
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
4. Repeated episodes of decompensation, each of extended
C. Medically documented history of a chronic schizophrenic,
paranoid, or other psychotic disorder of at least 2 years duration that
has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change
in the environment would be predicted to cause the individual to
then determined Smeraldo’s RFC, a determination that
overlapped in some respects with the Step 3 analysis. (See R. 20) The AU
found that her mental impairments limited her to “simple, routine, repetitive
tasks not performed in a fast-paced production environment involving only
simple work-related decisions and few work-place changes.” (IcL) In assessing
Smeraldo’s RFC, the AU
made two credibility assessments. The AU
Smeraldo’s own “statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible.” (R. 21) More importantly,
also decided to give the findings of Smeraldo’s treating psychiatrist, Dr.
Nimer Iskandarani, “only some weight.” (R. 22)
In doing so, the AU
relied to a great degree on the opinions of two state
agency physicians. (R2 1—22) He also noted the apparent stability in Smeraldo’s
condition and the conservative nature of her treatment. (Id.) The AU
opinions of the state agency physicians (R. 57, 67) that “the objective evidence
does not establish that the claimant would be precluded from all work activity”;
rather, Smeraldo’s RFC limits her to “unskilled work, in a slow paced
environment, with only simple decision-making and few changes in the
workplace.” (R. 22—23)
The AU concluded that, based on her RFC, Smeraldo was unable to
perform any past relevant work. (R. 23) The AU
further determined that, since
Smeraldo was born on December 2, 1958, and was 52 years old, she was
categorized as an “individual closely approaching advanced age, on the date
last insured.” (Id.) The AU
also noted that Smeraldo had a high school
education and was able to communicate in English. (Id.) The AU added that
“[t]ransferability of job skills is not material to the determination of disability
3. Current history of 1 or more years inability to function outside
a highly supportive living arrangement, with an indication of continued
need for such an arrangement.
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is ‘not disabled,’ whether or not the claimant has transferable
job skills.” (Id. citing SSR 82—4 1 and 20 C.F.R. Pt. 404, Subpt. P, App. 2)
At step five, the AU
considered Smeraldo’s “age, education, work
experience, and residual functional capacity,” and found that “there were jobs
that existed in significant numbers in the national economy that [Smeraldo]
could have performed.” (Id.) The AU relied on the vocational expert’s testimony
that a hypothetical person with the characteristics and abilities that the AU
found Smeraldo to possess could perform jobs such as microfilm mounter,
tabber, and mail sorter. (R. 24) Thus the AU
determined that a finding of “not
disabled” was appropriate, and Smeraldo was denied disability benefits. (Id.)
C. Smeraido’s appeal
Smeraldo identifies no significant error of law in the AU’s application of
the five-part analytical scheme. Her arguments for the most part challenge the
AU’s decision to grant “only some weight” to the findings of Smeraldo’s
treating physician, Dr. Iskandarani, during the AU’s evaluation of the medical
evidence and assessment of Smeraldo’s RFC. (See P1. Br. 12) Smeraldo asserts
that the AU
“placed his own opinion over that of the treating physician” and
failed to properly justify his findings with substantial evidence. (Id.)
Standard for Evaluating the Opinion of the Treating Physician
In general, the opinion of a medical professional who has treated the
claimant is entitled to deference. 20 CFR
§ 404.1527(c)(2)(”Generally, we give
more weight to opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s)...”); see also Plummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (“Treating physicians’ reports should be
accorded great weight, especially when their opinions reflect expert judgment
based on a continuing observation of the patients condition over a prolonged
period of time.” (internal quotation marks omitted)). The Third Circuit has held
that unless there is .ontradictory medical evidence in the record, an AU may
not reject a treating physician’s opinion. See Brownawell v. Comm’r of Soc. Sec,
554 F.3d 352, 355 (3d Cir. 2008). Further, an AU’s unsupported judgment,
speculation, or lay opinion is not sufficient to outweigh a treating physician’s
opinion. See Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000); see also
Plummer, 186 F.3d at 429 (“an AU
may not make speculative inferences from
But the opinion of a treating source must be given “controlling weight”
only when that opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the claimant’s] case record.” 20 CFR
§ 404.1527(c) (2).
Further, “[t]he law is clear.., that the opinion of a treating physician does not
bind the AU on the issue of functional capacity.” Brown v. Astrue, 649 F.3d
193, 197 (3d Cir. 2011). Rather, “[s]tate agent opinions merit significant
consideration as well.” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d
If the treating physician’s opinion is not accorded controlling weight, the
must weigh it, like any other medical opinion, in light of the factors set
forth in 20 CFR
§ 404.1527. See 20 CFR § 404.1527(c)(l-6)(ALJ must consider:
(i) the examining relationship between the claimant and the doctor; (ii) the
treatment relationship between the claimant and the doctor; (iii) the extent to
which the opinion is supported by relevant evidence; (iv) the extent to which
the opinion is consistent with the record as a whole; and (v) whether the doctor
providing the opinion is a specialist. Although “contradictory medical evidence
is required for an AU to reject a treating physician’s opinion outright, such an
opinion may be afforded more or less weight depending on the extent to which
supporting explanations are provided.” Plummer, 186 F.3d at 429 (citation
Smeraldo relies on Fargnoli v. Massanczri, 247 F.3d 34, 40 (3d Cir. 2001),
a Third Circuit case, as an example of an AU
not properly explicating the basis
of his conclusions regarding the treating physician’s opinion. (P1. Br. 13—14) In
Fargnoli, the Third Circuit remanded the case back to the ALJ because “the
AU’s sparse synopsis” of the record made his decision “impossible to review.”
247 F.3d at 42. Specifically, the Third Circuit found that the AU’s discussion
of the medical evidence regarding the treating physician was limited to “four
diagnostic tests and five treatment notes” but “the record reflect[edj over 115
pages of relevant, probative treatment notes.” Id. at 41—42. Thus, they “c[ould
not] tell if significant probative evidence was not credited or simply ignored.” Id.
at 42 (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000)
(quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).
The AU’s Evaluation
I have decided to remand this case. In doing so, I do not mean to criticize
the conscientious AU, whose opinion evinces careful consideration of the
matter. I nevertheless require further explanation of the AU’s decision to give
the treating physician’s evidence “only some weight” (R. 22; see Section II.B,
supra), as well as some other matters.
reviewed and summarized the major findings of Dr.
Iskandarani’s two reports including, inter alia, Dr. Iskandarani’s opinion that
Smeraldo “had poor or no ability to perform many of the mental abilities
needed to perform unskilled work.” Id. Dr. Iskandarani found that Smeraldo
had manifested paranoia; anxiety; fear; flat affect; non-productive speech, poor
energy, concentration, and attention span; poverty of thought; average
intelligence; fair memory; and limited judgment. (R. 22 citing R. 236—37, 264—
65) Specifically with respect to potential employment, Dr. Iskandarani
determined that Smeraldo
had poor or no ability to perform many of the mental abilities
needed to perform unskilled work, including but not limited to the
following: remembering work-like procedures; understanding,
remembering and carrying out complex as well as very short and
simple instructions; maintaining attention for two-hour segments;
sustaining an ordinary work routine; making simple work-related
decisions; performing at a consistent pace without an
unreasonable number and length of rest periods; and asking
simple questions or requesting assistance.
(R. 22 citing R. 268)
Dr. Iskandarani opined that Smeraldo would be absent from work more
than three times per month, and experienced marked restrictions in performing
daily living activities, moderate difficulties in social functioning, and constant
deficiencies in concentration, persistence, and pace. (R. 22 citing R. 267, 270)
Dr. Iskandarani’s reports note other deficiencies, not specifically
discussed in the AU’s opinion, including, inter alia, symptoms of mood
disturbance, loss of intellectual ability of 15 TQ points or more, recurrent panic
attacks, difficulty thinking or concentrating, time or place disorientation,
illogical thinking or loosening of associations; persistent irrational fears,
pathological dependence or passivity; poor or no ability to complete a normal
workday and workweek without interruptions from her psychological
symptoms, respond appropriately to changes in a normal work setting, or deal
with normal work stress; and continual episodes of deterioration or
decompensation in work or work-like settings. (R. 265, 268—71)
Dr. Iskandarani is a specialist; he is in a long standing professional
relationship with the patient; he has examined her first hand and is familiar
with her condition; he gives specific reasons for his conclusions; his opinions
arc consistent with his diagnosis and the evidence. In short, his opinion has
significant indicia of reliability. See 20 CFR
§ 404. 1527(c)(l-6).
In discounting Dr. Iskandarani’s opinion, the AU noted, for example,
that Smeraldo only visited Dr. Iskandarani about three times a year; that she
was on medication and had not been hospitalized since 1998; and that the
reviewing state agency physicians, who reviewed Smeraldo’s claim, concluded
that she was in partial remission. (R. 21—22)
Some factors give me pause in accepting the AU’s analysis under the
substantial evidence standard of review.
First, the diagnosis is schizophrenia, paranoid type, a serious mental
impairment. I am aware that mental conditions are increasingly treated as
spectrum disorders, and that medication may blunt their effect, but I believe
more discussion is required in order for me to accept that such a condition
nevertheless permits Ms. Smeraldo to work. There is very substantial evidence
that Smeraldo has been unable to work (and has tried and failed to hold jobs,
including unskilled ones) for a period long preceding any application for
disability benefits, as well as afterwards. See note 2, supra. Dr. Iskandarani,
who has treated Smeraldo for many years, has given a specific and detailed list
of potentially disabling symptoms. These support his conclusions of, e.g.,
marked daily living restrictions; moderate social functioning difficulties;
constant deficiencies of concentration, persistence, or pace; and continual
extended episodes of decompensation. (R. 270—71)
Second, the state agency physicians concluded that her symptoms were
not as serious as those described by Dr. Iskandarani. These conclusions do not
seem to be based on any independent examination of Ms. Smeraldo. (See R.
56.) And even the state consultants found certain symptoms to be more serious
than the AU
did. Also the state consultants’ conclusion, relied on by the ALl,
that “the claimant’s treating physician’s report was consistent with a finding of
an ability to meet the demands of unskilled work” requires more explanation.
(R. 21) Dr. Iskandarani’s report, fairly read, does not support that assertion.
The AU found mild restrictions of daily living; moderate restrictions of social
functioning and concentration, persistence, or pace; and no extended episodes of
decompensation. (R. 19) The state agency physicians differed in that they only found
mild restrictions of social functioning, but they found one or two extended episodes of
decompensation. (R, 57, 68)
The only other proffered support is a somewhat circular reference on
reconsideration: “Reviewed original MER, which supports the initial finding.
There is no new MER.” (R. 70)
Third, the AU’s decision relies on Smeraldo’s conservative treatment
schedule (she sees Dr. Iskandarani about three times a year). Hers, however, is
a chronic condition, not very amenable to the “talking cure” of regular
psychoanalysis; it may well be that periodic monitoring of medication is the
most that can profitably be done (or the most that insurance will cover). I am
unable to discern whether the treatment schedule is atypical or indicative of a
less serious condition. Dosages of medications are not indicated in the AU’s
Fourth, certain evidence cited in connection with the analysis of 20
C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A (specifically,
§ 12.03, governing
schizophrenia) falls short of substantiality. As to daily living activities, the cited
evidence of only “mild” impairment is perhaps substantial (she tends to her
personal needs, drives, takes care of her daughter, does housework and
shopping). (R. 19) As to social functioning, however, the finding of only
“moderate” (rather than “marked”) difficulty is more suspect. (IcL) The only
evidence cited is that Smeraldo talks on the phone with family members and
attends church, but neither having a phone conversation nor occupying a pew
tends to suggest substantial social functioning. (Id.) In finding only “moderate”
difficulties with concentration, persistence, or pace, the opinion states only
that she can concentrate (a conclusory statement) and handle money. (Id.)
Again, this evidence falls short of being substantial. The opinion states that
Smeraldo has experienced no extended episodes of decompensation. (Id.) The
medical evidence is to some extent conflicting, but the AU’s conclusion
appears to go beyond the Commissioner’s side of that conflict: the state agency
physicians found one or two extended episodes of decompensation. (R. 57, 68).
Several of these findings, moreover, were qualified by statements to the effect of
“when she is not having an episode.” (R. 19) That is too broad a qua]ifier to
permit me to take the findings at face value.
A final note. The analysis of steps three and four tends to overlap, but on
remand they should be approached distinctly. Even in advance of the RFC
analysis (where the AU
and the parties have appeared to focus their efforts),
there is much to suggest that a finding for the applicant on Step 3 might be
For the foregoing reasons, the AU’s decision is REMANDED for further
proceedings consistent with this opinion.
Dated: January 6, 2015
United States District Judge
The Commissioner addressed the AU’s review of step three (Def. Br. 5—7 (ECF
No. 11)), Smeraldo stressed on reply that she “did not make [a step three] argument.
but rather stated that the AU failed to properly evaluate plaintiff’s mental
impairments” (P1. Reply 1 (ECF No. 12)). Either way, whether the AU properly
evaluated the medical evidence is the dispositive issue.
Smeraldo further argues that the AU posed hypotheticals to the vocational
expert that failed to include all of Smeraldo’s limitations. (P1. Br. 16) The AU may base
a hypothetical on the conditions he finds to be supported by the record. I am
remanding, however, based on errors at the earlier steps of the analysis, so I do not
reach this contention, I do note that Smeraldo’s lawyer posed hypotheticals based on
Dr. Iskandarani’s full diagnosis, and that the vocational expert acknowledged that
such a hypothetical individual “would not be able to be employed in the competitive
labor market.” (R. 49-50)
I note that Smeraldo also applied for Title XVI Supplemental Security Income
on June 19, 2012 (R. 127) (see P1. Br. 9)
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