ROSSIGNOL v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Judge Claire C. Cecchi on 15-105. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANDRE ROSSIGNOL,

Civil Action No.: 2:15-cv-00105 (CCC)
Plaintiff,
OPINION

v.
COMMISSIONER Of SOCIAL SECURITY,
Defendant.

CECCHI, District Judge.
I.

INTRODUCTION

Before the Court is Plaintiff Andre Rossignol’s (“Plaintiff’) appeal seeking review of a
final determination by the Commissioner of the Social Security Administration (“Commissioner”)
denying his application for disability insurance benefits and supplemental security income under

§ 2 16(i), 223(d), and

1614(a)(3)(A) of the Social Security Act (“SSA”). The issue to be decided

is whether the Commissioner’s denial of benefits is supported by substantial evidence, for the
reasons set forth below, the decision of the Administrative Law Judge (“AU”) is affirmed in part,
vacated in part, and the matter is remanded for further proceedings consistent with this Opinion.
II.

BACKGROUND
A.

Procedural Background

Plaintiff applied for disability insurance benefits and supplemental security income on
April 21, 2011, alleging disability as of February 1, 2009. (Brief in Support of Plaintiff (“P1. Br.”),
ECF No. 11 at 1). The application was denied initially and upon reconsideration in September

2011 and April 2012, respectively. (Tr.’ at 91-93, 97-102). On May 7, 2013, a hearing was held
before AU Michael L. Lissek, during which Plaintiffs representative amended the alleged
disability onset date to January 1, 2011. (j at 17, 32). AU Lissek issued a decision on August
2, 2013 finding Plaintiff was not disabled, as defined by the $$A. (Id. at 22 (citing 20 CFR §S
404.1520(g) and 416.920(g))). The Appeals Council denied Plaintiffs request for review of the
decision on November 20, 2014. (Id. at 1). On January 6, 2015, Plaintiff instituted this action.
(ECFNo. 1).
B.

Factual Background

Plaintiff was born on February 29, 1960 in Haiti, where he attended school until the 9th
grade.2 (Tr. at 17, 51). Plaintiff moved to the United States in 1994 and attended night school,
where he learned to speak and read English. (Id. at 17). Plaintiff held a number of jobs since
arriving in the United States. (Id.) Within the fifteen years prior to his initial application, Plaintiff
worked as a machine operator at a steel company from 1996-2000, a hotel maintenance worker
from 1998-2001, and a taxi driver from 2001-2011. (j) Plaintiff states he stopped working in
February 2011 because he developed back pain after sitting for too long and he could not stay
awake while driving for more than three or four hours. (Id. at 17, 272).
Plaintiff lives with his wife and four of his six children. (Id. at 273). On a daily basis,
Plaintiff does housework, shops, drives his wife to the supermarket and laundromat, watches
television, reads books, and socializes with friends and family. (Id. at 15). Plaintiff attends church
three times a week. (Id.) In 2011, Plaintiff also reported he periodically travels to Haiti for two

“Tr.” refers to the certified record of the administrative proceedings. (ECF No. 8).
Plaintiff testified at the hearing that he finished 9th grade, but states elsewhere in the
record that he finished 10th grade, (Tr. at 273, 281), and 11th grade. (Id. at 321).
2
2

months at a time. (Id. at 15-20, 280-81, 336).
Plaintiffs initial application alleged disability due to chronic fatigue syndrome (“Cf 5”),
diabetes, depression, arthritis, and hypertension. (Id. at 16$). During the hearing, Plaintiffs
representative also identified narcolepsy, obstructive sleep apnea, and peripheral neuropathy as the
“main factors that

[] limit the Plaintiff.” (Id. at 3 3-34).

In 2006, Plaintiff underwent an all-night sleep study with Dr. Jeffrey S. Nahmias at Newark
Beth Israel Medical Center after a history of possible sleep apnea and a diagnosis by his
rheumatologist with possible CFS. (Id. at 241). Although Dr. Nahmias found there was no
evidence of sleep apnea, a multiple latency sleep test confirmed severe daytime somnolence. (j)
Dr. Nahmias stated “it appears he [is] suffering from narcolepsy,” and prescribed Provigil. (j4)
Plaintiff was referred by Beth Israel Medical Center to Trinitas Hospital for outpatient
treatment for depression symptoms, which he attended between November 2007 and August 2009.
(Id. at 310-11). He reported depression for about a year, pain from head to lower back, chronic
fatigue, and an inability to sit or stand for too long. (j at 311). Plaintiff also reported he was
having financial issues and problems with his children which were causing him distress. (j at
326).

Plaintiffs medications at this time were Ambien, for sleep; Enalapril Maleate and

Ambodipine Besylate for high blood pressure; and Cyclobenzapine and Tramadol for pain.

(I at

319). Plaintiff was also prescribed Effexor, an antidepressant, by Trinitas Hospital, which he
reported he stopped taking “because it did not work for him.” (Id. at 273, 310).
In August 2010, Plaintiff underwent a nocturnal polysomnogram with Dr. Nahmias, who
found upper airway resistance syndrome but no obstructive sleep apnea. (Id. at 236). That same
month, Dr. Nahmias performed a CPAP/Bi-Level Tritation Study, which demonstrated the CPAP
3

breathing machine to be a successful treatment. (Id. at 237-38). Dr. Nahmias recommended the
regular use of a CPAP. (Id.) In September 2010, Plaintiff reported that the combination of Ambien
and the CPAP “helped me so much,” and that he felt no fatigue the next day. (Id. at 244).
Plaintiff underwent a neurological exam on January 14, 2011 by Dr. Ying Todd Tao. (Id.
at 270). Dr. Tao stated Plaintiff complained of “shaking of his body and hands and also fatigue.”
(Id. at 269). Dr. Tao’s impression was Plaintiff had a tremor, fatigue, and probable peripheral
neuropathy. (Id. at 270). Further tests were recommended. (Id.)
On January 21, 2011, Plaintiff went to therapy for pain in his shoulder, but was unable to
participate because his heart rate was 116 and his treating physician, Dr. Altschuler, advised the
facility to hold therapy if his heartrate was over 100. (Id. at 19, 248). Instead, Plaintiff was sent
to the Emergency Department at Trinitas Hospital. (Id. at 249). Plaintiff stayed at the hospital
overnight and was released with a recommendation to follow up with his primary care physician.
(Id. at 249-54). Plaintiffs medications at this time were Diovan for hypertension, Glipizidse for
diabetes, Hydrocodone for pain, and Norvasc for high btood pressure. (Id. at 249).
Dr. Vipin Garg, a specialist in pulmonary and sleep medicine, examined Plaintiff in
February and March 2011 and diagnosed him with obstructive sleep apnea. (Id. at 242 -52). In
both assessments, Dr. Garg recommended Plaintiff should make efforts to lose weight. (Id.)
After filing for disability insurance benefits and supplemental security income, Plaintiff
was referred by the New Jersey Department of Disability Services for a mental status examination
to Dr. Ernesto Perdomo in August 2011. (Id. at 272). Plaintiff reported “feelings of sadness, no
energy, difficulty sleeping, no desire, no interest, no motivation.” (Id.) Dr. Permodo’s assessment
indicated there was no evidence of any thought disorder or psychosis; Plaintiffs short term
4

memory was fair; long-term memory was good; concentration was fair; association and abstraction
ability was concrete; and intelligence was average to low average. (j4 at 274). Dr. Permodo
diagnosed Plaintiff with dysthymic disorder and found his “main and dominant problems appear
to be medical due to chronic fatigue syndrome. His depression will increase his disability.” (j4
at 275).
Dr. Joseph DiLallo performed a medical exam of Plaintiff in September 2011, also at the
request of the New Jersey Department of Disability Services. (Id. at 280). The assessment
indicated Plaintiff took fourteen different medications on a daily basis.3 (Id. at 281). Dr. DiLallo
stated the quality of control for Plaintiff’s diabetes mellitus was “very good,” and that his high
blood pressure and hypertension were under good control, usually in the 140/80 range. (Id. at
283).
Plaintiff was also examined in September 2011 and April 2012 by two state agency
physicians and psychologists, each of whom indicated Plaintiff was not disabled. (Id. at 62, 74).
III.

LEGAL STANDARD
A.

Standard of Review

This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.

§ 405(g)

and 13$3(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its]

own factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011); see also 42 U.S.C.

§ 405(g).

Nevertheless,

These medications were: (1) Meprazole, (2) Lopressor/HCT, (3) $itaglitinlMetformin,
(4) Notriptylin, (5) Provigilo, (6) Tenazepam, (7) Effexor, (8) Hydrocodone,
(9) Therobec, (10) Spiriva, (11) Glipizide, (12) Simvastatin, (13) famotidine, and
(14) Cyclobenzaprine. (Tr. at 281).
5

the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
197$) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v. Astrue, No. 4:08-1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). In other words, under this deferential
standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir.
2007) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
B.

Determining Disability

Pursuant to the SSA, in order to be eligible for benefits, a plaintiff must show he is disabled
by demonstrating an inability to “engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected 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. §S 423(d)(1)(A), l3$2c(a)(3)(A). Taking into account the plaintiffs age, education,
and work experience, disability will be evaluated by the plaintiffs ability to engage in his previous
work or any other form of substantial gainful activity existing in the national economy. 42 U.S.C.

§ 423(d)(2)(A), 13$2c(a)(3)(B). A person is disabled for these purposes only if his physical or
6

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 exists in the national economy.

.

.

.“

42 U.S.C.

§

l3$2c(a)(3)(B).

Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 22$ F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.

§ 423(d)(3),
C.

1382(a)(3)(D).
Sequential Eva]uation Process

The Social Security Administration follows a five-step, sequential evaluation to determine
whether aplaintiffis disabled within the meaning of the statute. 20 C.F.R. §S 404.1520, 416.920.
First, the AU must determine whether the plaintiff is currently engaged in gainful activity. Sykes,
228 F.3d at 262. Second, if he is not, the AU determines whether the Plaintiff has an impairment
that limits his ability to work. Id. Third, if he has such an impairment, the AU considers the
medical evidence to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”). If it is, this results in a presumption of disability.

Id. If the

impairment is not in the Listings, the AU must determine how much residual functional capacity
(“RFC”) the applicant retains in spite of his impairment. Id. at 263. Fourth, the ALl must consider
whether the plaintiffs RFC is enough to perform his past relevant work. Id. fifth, if his RFC is
not enough, the AU must determine whether there is other work in the national economy the
7

plaintiff can perform. Id.
The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R.

§

404.l520(a)(4), 416.920(a)(4). The plaintiff bears the burden

of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five.
Sykes, 22$ f.3d at 263. Neither party bears the burden at step three. j at 263 n.2.
IV.

DISCUSSION: FIVE STEP ANALYSIS
A.

Step One: Substantial Gainful Activity

At step one, the AU determined “the Plaintiff has not engaged in substantial gainful
activity since February 1, 2009, the alleged onset date.” (Tr. at 14). Although not argued by
Plaintiff, this Court finds the AU’s finding at step one is not supported by substantial evidence.
Plaintiffs representative amended the alleged onset date at the hearing to January 1, 2011, stating
that because Plaintiff had in fact engaged in substantial gainful activity in 2009 (earning $9,282)
and 2010 (earning $12,038) an alleged onset date beginning in 2009 could not be reasonably
supported. (Id. at 32, 158) (“I would like to amend the onset date, because Mr. Rossignol had
substantial earnings in 2010. It was

{]

a little over $12,000. So we certainly can see that would

preclude finding a disability for that year.”). Thus, on remand, the AU should reconsider the
amendment made by Plaintiffs representative and Plaintiffs employment evidence on the record
as it is applicable to his determination at step one.
B.

Step Two: Severe Impairments

At step two, the AU determined Plaintiff had the following severe impairments: CFS,
diabetes mellitus, osteoarthritis, obstructive sleep apnea, and depression. (j at 14). Plaintiff
contends this decision is not supported by substantial evidence because it does not acknowledge
8

or discuss Plaintiff’s diagnoses of narcolepsy. (P1. Br. 11; Plaintiffs Statement of Contention
Letter Pursuant to Rule 9.1 (“P1. L.”), ECF No. 9). Defendant does not appear to respond to
Plaintiffs argument regarding hypertension. Regarding narcolepsy, Defendant contends “the AU
discussed Plaintiffs alleged narcolepsy throughout the decision,” and “the Commissioner notes
that nowhere in the record can she discern an actual diagnosis of narcolepsy.” (Defendant’s Brief
Pursuant to Local Civil Rule 9.1 (“Def. Br.”), ECF No. 14 at 11). Defendant also states “a mere
diagnosis of impairment is insufficient to establish disability,” and even assuming Plaintiff did
have an impairment due to narcolepsy, the state agency physicians both indicated Plaintiff “had
the residual functional capacity to perform a limited range of light work.” (Id.)
As Plaintiff points out, the second step of finding a severe impairment is a “de minimis’
test obligating the [Plaintiff]

.

.

.

to show that his impairment is not so slight that it could not

interfere with the ability to work.” (P1. Br. at 15). Indeed, Social Security Ruling (“SSR”) 85-28
explains, “[i]nherent in a finding of a medically not severe impairment.

.

.

is the conclusion that the

individual’s ability to engage in substantial gainful activity is not seriously affected. Before this
conclusion can be reached however an evaluation of the effects of the impairment on the person’s

ability to do basic work activities must be made.” 1985 SSR LEXIS 19, at *9.J0 (Jan. 1, 1985)
(emphasis added). Although the AU discusses Plaintiff’s narcolepsy and hypertension later on in his
decision, “[a] determination that [an] impairment is not severe requires a careful evaluation of the
medical findings which describe the impairment and an informed judgment about its limiting effects
on the individual’s physical and mental abilities to perform basic work activities.”

at *10.

Plaintiff argues “the AU was clearly confused as to the difference between obstructive
sleep apnea and narcolepsy.” (P1. Br. at 18). The AU’s discussion in step four indicates that this
is not the case, but rather that the AU did not find the Plaintiffs diagnosis of narcolepsy to be
9

credible.

(Tr. at 1$).

However, the brief discussion at a subsequent step does not provide

substantial evidence to support the AU’s finding at step two. The AU does not fully articulate
his determination that narcolepsy is not a severe impairment in his decision.
The Third Circuit requires “[ajn impairment
evidence establishes a slight abnormality

.

.

.

.

.

.

can be found ‘not severe’ only if the

which ha[s] ‘no more than a minimal effect on an

individual’s ability to work.” Newell v. Comm’r, 347 f.3d 541, 546 (3d Cir. 2003) (citing SSR
25-28, 1985 SSR LEXIS 19 at *67). In this case, the AU failed to explain why Plaintiffs
hypertension and narcolepsy do not affect Plaintiffs ability to perform work activities. As the
AU offered no explanation as to why he rejected these diagnoses as severe impairments, this Court
cannot offer any meaningful judicial review. See Wilson v. Astrue, No. 08-00007, 2009 U.S. Dist.
LEXIS 24326 (W.D. Pa. 2009) (remanding the case because the AU

failed to “articulate

adequately,” at step two, his reasons for discounting certain evidence). This Court remands the
case to the AU to provide an explanation at step two as to narcolepsy and hypertension.
C.

Step Three: Listed Impairments

At step three, the AU determined Plaintiffs impairments were not severe enough to meet,
either individually or in combination, any of the impairments in the Listings. (Tr. at 14). The AU
considered listings 1.02 (major dysfunction of a joint), 3.10 (sleep-related breathing disorders),
9.00 (endocrine disorders), and 12.04 (affective disorders). (Id.) The AU provided a brief
explanation for why each Listing was not met, discussing Listing 12.04 at length. (Id. at 14-150).
Plaintiff argues that step three is not supported by substantial evidence because the AU
failed to consider his impairments in combination. (P1. Br. at 19). Defendant argues the AU
addressed Plaintiffs narcolepsy throughout his decision, and that the AU “specifically discussed
10

Plaintiffs alleged impairments in combination, and the decision speaks for itself.” (Def. Br. at
12). Defendant further argues Plaintiff points to no specific error in the AU’s step three analysis.
Plaintiff does, however, point to the AU’s failure to consider CfS and narcolepsy in
combination with Plaintiffs other impairments. (P1. Br. at 22). Plaintiff argues “the decision was
unaware of a ruling requiring the consideration of [Cf S] with the other ‘complex of symptoms’
and comorbid impairments at step three.” (Id. at 22 (citing SSR 99-2p, 1999 $SR LEXIS 3 (Apr.
20, 1999))).

Despite Plaintiffs contention, S$R 99-2p defines Cf S as “a systemic disorder

consisting of a complex of symptoms.” (Id. at *1). Regarding step three, the ruling simply states
that “specific findings in each case should be compared to any pertinent listing to determine
whether medical equivalence may exist” and that psychological manifestations of Cf S should be
considered in the mental disorder listings. (Id. at * 12-13).
The decision states the discussion of Listing 12.04 is a consideration of the “severity of the
[C]laimant’s mental impairments, singly and in combination.” (Tr. at 15). However, “[a] blanket
statement that an AU has considered evidence is not the same thing as an AU actually discussing
the evidence.” Moore v. Comm’r of Soc. Sec., No. 2:11—05369, 2013 WL 941558, at *4 (D.N.J.
Mar. 8, 2013). The rest of the step three analysis fails to mention Plaintiffs other impairments,
including Cf5, and their effect as a whole on Plaintiffs functioning.
When a claimant’s individual impairments do not satisfy the specific criteria of the listings,
the AU is required to assess whether a combination of the impairments is medically equal to a
listing. 20 C.F.R.

§

404.1 526(b)(3). To be medically equivalent, a combination of impairments

must be at least equal in severity and duration to a listed impairment. j In setting forth his
decision, “[t]he AU must adequately explain findings on equivalence.” McCarthy v. Comm’r of
11

Soc. Sec., No. 95-4534, 1999 U.S. Dist. LEXIS 7551, at *37 (D.N.J. May 19, 1999). In Torres v.
Commissioner of Social Security, the Third Circuit found that ‘[w]hule the AU explained why
[Plaintiffs] impairments do not meet Appendix I listings individually, he failed to conduct a
proper 20 C.F.R.

§ 404.1526(b) analysis.” 279 F. App’x 149, 152 (3d Cir. 2002). The Court found

the AU’s “entire combination analysis” of “one cursory paragraph” to be inadequate.

Id.

Similarly, here, although the AU addressed Plaintiffs five impairments individually, he did not
adequately consider them in combination. As such, this Court cannot provide a meaningful
judicial review of his findings regarding medical equivalence. Therefore, the Court remands this
case for the AU to determine whether the combination of Plaintiff s impairments medically equals
one of the listings.
U.

Step Four

At step four, the AU determined the Plaintiff had the RFC to perform light work, explained
in detail below, and Plaintiff was unable to perform past relevant work.
1.

Residual Functioning Capacity

The AU determined Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except [Plaintiff]
can occasionally bend, and never climb ladders or scaffolds. He is limited to work not
involving driving or exposure to dangerous machinery. In addition, [Plaintiff] must avoid
all exposure to temperature extremes, high humidity, and excessive amounts of dust and
other known pulmonary irritants. Further, [Plaintiff] is limited to work that can be learned
in 1 month or less, involving simple tasks, and not requiring great amounts of decision
making during the workday.
(Tr. at 16-17).
Plaintiff argues this determination is not supported by substantial evidence for three
reasons: (1) there is no evidence in the record to support a finding that Plaintiff is capable of lifting
12

ten to twenty pounds and walking six to eight hours a day; (2) Plaintiffs sleep apnea is eliminated
from consideration notwithstanding $SR 82-59; (3) the AU recognizes no restrictions caused by
Cf 5, narcolepsy or depression; and (4) the AU does not mention that the state agency physicians
found that Plaintiff suffers from hypertensive vascular disease. (P1. Br. at 24-25, P1. L.). The
Court will address each argument in turn.
first, this Court finds the AU’s determination that Plaintiff is capable of lifling ten to
twenty pounds and walking six to eight hours a day is supported by substantial evidence. Pursuant
to 20 C.f.R.

§

404.1529, 416.929, the AU must follow a two-part process when considering a

claimant’s symptoms in making his RFC finding. Initially, the AU must determine whether the
claimant suffers from an underlying “medically determinable impairment that could reasonably be
expected to produce [Plaintiffs] symptoms.” 20 C.F.R.

§ 404.1529(b), 416.929(b).

AU must “evaluat[e] the intensity and persistence of [Plaintiffs] symptoms.

.

.

the extent to which [those] symptoms limit [Plaintiffs] capacity for work.”

Second, the

and determin[e]
20 C.F.R. §S

404.1 529(c), 416.929(c). The Third Circuit has held that “serious consideration” must be given to
the claimant’s statements about her symptoms. Smith v. Califano, 637 F.2d 96$, 972 (3d Cir.
1981); Welch v. Heckler, 80$ f.2d 264, 270 (3d Cir. 1986).
“Allegations of pain and other subjective symptoms must be supported by objective
medical evidence.” Hartranfl, 181 F.3d at 362 (citing 20 C.F.R.

§

404.1529). Such an inquiry

necessarily requires that the ALl determine “the extent to which a claimant is accurately stating
the degree of pain or the extent to which he or she is disabled by it.”

§

(citing 20 C.F.R.

404.1529(c)). In making such credibility determinations, the AU is given great discretion, and

his findings are entitled to judicial deference. See generally Holley v. Comrn’r of Soc. Sec., 590
13

F. App’x 167, 169 (3d Cir. 2014) (noting that an AU’s credibility determinations regarding
claimant’s statements are entitled to deference); see also Metz v. Fed. Mine Safety & Health
Review Comm’n, 532 F. App’x 309, 312 (3d Cir. 2013) (“Overturning an AU’s credibility
determination is an ‘extraordinary step,’ as credibility determinations are entitled to a great deal
of deference.”).
Here, the AU determined Plaintiffs “statements concerning the intensity, persistence and
limiting effects of [his] symptoms are not entirely credible.” (Tr. at 1$). The decision explains
even though Plaintiff claims he cannot sit for longer than one to two hours without becoming
excessively tired, upon examination by Dr. Dilallo, at the request of the New Jersey Department
of Disability Services, Plaintiff “did not present as having any extreme severe chronic fatigue
during the history or physical examination.” (Id.) Additionally, although Plaintiff reported that
he could not walk for longer than four to five blocks without suffering pain, Dr. Dilallo found that
Plaintiff had “good pulses, excellent deep venous return and no evidence of large or superficial
varicosities and no brawny edema, stasis, dermatitis, or ulceration. He was able to squat and walk
on heels and toes very well.” (Id.) Regarding Plaintiffs arthritis pain, the AU explained that Dr.
Dilallo “found no decreased range of motion or deformities of the neck, knees, hips or lower back;
and he had no extreme significant tenderness, swelling, heat or evidence of inflammation.” (Ic!. at
19). Additionally, the AU relied upon two state agency physicians who opined in September 2011
and April 2012 that Plaintiff could lift ten to twenty-five pounds and walk for six hours in an eighthour workday. (j at 20).
The Court finds that the medical evidence provides substantial support for the AU’s
determination that Plaintiff is able to lift ten to twenty-five pounds and walk six hours in an eight
14

hour workday. The AU is not required to “make specific, written findings on dozens of individual
work function categories.

.

.

.

In his or her written opinion, the AU need only articulate how the

evidence in the record supports the [RFC] determination, discuss the claimant’s ability to perform
sustained work-related activities, and explain the resolution of any inconsistencies in the record.”
Bencivengo v. Comm’r of Soc. Sec., 2000 U.S. App. LEXIS 38785, at *6 (3d Cir. Dec. 7, 2000).
In this case, the AU explained he did not find Plaintiffs reports wholly credible, and relied instead
on the reports of Dr. Dilallo and the state agency physicians.
Second, Plaintiffs argument that the AU’s elimination of sleep apnea from consideration
was not supported by substantial evidence is unavailing. Plaintiff argues SSR 82-59, which
provides an analysis of justifiable causes for failure to follow prescribed treatment, requires the
AU to give full consideration to Plaintiffs sleep apnea despite the fact that Plaintiff did not use
the CPAP machine, the prescribed treatment. (P1. L. (citing SSR 82-59, 1982 LEXIS 25 (April
20, 1980)). However, “that ruling applies only when, unlike this case, the Commissioner has found
that Plaintiff would otherwise be disabled, but does not grant benefits because a claimant has
refused to follow a proscribed treatment expected to restore the claimant’s ability to work.”
Bowers v. Colvin, 2014 U.S. Dist. LEXIS 87493, at *22 (D.N.J. June 27, 2014) (citing Lozada v.
Bamhart, 331 F. Supp. 2d 325, 340 (E.D. Pa. 2004) (“[B]ecause the AU found that Plaintiff does
not have a disabling impairment, Ruling 82-59 is not applicable here.”)).
In Vega v. Commissioner of Social Security, the Third Circuit found SSR 82-59 to be
inapplicable explaining, “it was not [Plaintiffs] noncompliance with her treatment that was the
basis for the denial of benefits; rather, it was her [RFC] to return to sedentary work.” 358 F. App’x
372, 375 (3d Cir. 2009). The Court continued, “[v]iewed in the context of the AU’s finding as a
15

whole, his reference to [Plaintiffs] noncompliance shows that he treated it as a factor in analyzing
the credibility of [Plaintiffs] testimony.” Id. The Court concluded, “[bJecause an AU may
consider a claimant less credible if the individual fails to follow the prescribed treatment plan
without good reason, this was not improper.” Id. (citing SSR 96-7p, 1996 SSR LEXIS 4).
Similarly, in this case, the AU referenced Plaintiffs noncompliance with his prescribed
treatment of the CPAP machine treatment for his obstructive sleep apnea in the context of the
AU’s analysis of Plaintiffs credibility. (Tr. at 18-19). The AU concluded Plaintiff was not
disabled based upon his assessment that Plaintiffs RFC allowed him to return to light work. (Id.
at 16-20). Therefore, this Court finds the AU’s consideration of Plaintiffs noncompliance with
the CPAP treatment was proper in his analysis of Plaintiffs credibility.

$ Vega, 358 F. App’x

at 372. Further, SSR 82-59 is not applicable because the AU did not find Plaintiff would otherwise
be disabled aside from his noncompliance with the obstructive sleep apnea treatment. See Bowers,
2014 U.S. Dist. LEXIS 87493, at *22.
Next, the Court finds the AU’s determination that Plaintiff is not limited by narcolepsy is
supported by substantial evidence, but the AU’s dismissal of CF5 and depression without
explanation is not. As to narcolepsy, the AU stated he does not find Plaintiffs complaints
regarding daytime fatigue to be credible, as this is contradictory to Plaintiffs hearing testimony in
September 2010 that the CPAP “helped me so much” and that he did not feel fatigue the next day.
(Tr. at 18). The AU also noted Plaintiff “denied sleep attacks, cataplexy, sleep paralysis or
hypnagogic hallucinations,” and that he “suffers from several ailments that have fatigue as a
symptom.” (Id. at 18-19). As such, the AU’s finding that Plaintiffs alleged narcolepsy does not
limit his ability to work is supported by substantial evidence.
16

Regarding Cf S and depression, however, the AU does not discuss how these diagnoses
affect Plaintiffs RFC. The AU noted Plaintiff was diagnosed with Cf S in September 2011 and
July 2012; and that Plaintiff was treated for depression from 2007-2009; and Plaintiff was
diagnosed with dysthymic disorder in August 2011 and depression in September 2011. (Tr. at 1820). The AU, however, appears to dismiss these diagnoses based on Plaintiffs trip to Haiti, stating
that Plaintiff “reported he generally enjoyed life and traveled periodically to Haiti for 2-month
long vacations, most recently in February 2011.” (Tr. 20). The AU does not provide any other
explanation, apart from Plaintiffs trip to Haiti, for the rejection of the multiple diagnoses of
depression or Cf S. Without such explanation, this Court cannot provide a meaningful judicial
review of the AU’s decision that Cf S and depression do not affect Plaintiffs RFC. Therefore,
on remand, the AU should provide a more detailed explanation for the rejection of Plaintiffs
diagnoses of CFS and depression and the effect of these impairments on Plaintiffs RfC.
Lastly, this Court finds the AU dismissed medical evidence of Plaintiffs hypertension
without sufficient analysis as to whether this impairment affected his RFC. The AU stated he
afforded the opinions of the state agency physicians “great weight,” and accepted many of their
findings. (Tr. 20). Although both state agency physicians diagnosed Plaintiff with hypertensive
cardiovascular disease, the AU

did not sufficiently explain or conclude how Plaintiffs

hypertension affected his RFC. (Id. at 19). See Wilson, 2009 U.S. Dist. LEXIS 24326, at *40
(“An administrative law judge cannot pick and choose parts of a physician’s opinion without
providing specific reasons for rejecting other parts.”) (citing fetters v. Astrue, No. 07-256J, 2009
U.S. Dist. LEXIS 18346, at *10il (W.D. Pa. Mar. 11, 2009); Ward-White v. Astrue, No. $-071616 GGH, 2009 U.S. Dist. LEXIS 18088, at *20 (E.D. Ca. Mar. 10, 2009)). This lack of analysis
17

precludes the opportunity for this Court to provide meaningful judicial review, On remand, the
AU should discuss Plaintiffs hypertension and its effect on Plaintiffs RFC.
2.

Relevant Past Work

The AU determined Plaintiff was unable to perform any past work, explaining each of
Plaintiffs prior occupations required medium exertion, while Plaintiffs RFC indicated he can
perform only light work. (Id. at 16, 21).
E.

Step Five: Adjustment to Other Work

At step five, the AU posed two hypothetical questions to a vocational expert (“yE”)
regarding Plaintiffs ability to adjust to other work considering Plaintiffs RFC, age, education and
work experience. (Id. at 21). The AU determined, “[c]onsidering [Plaintiffs] age, education,
work experience, and residual functional capacity, there are jobs that exist in significant numbers
in the national economy that [Plaintiff] can perform.” (j at 21). The AU found Plaintiff can
perform the job of inspector/packer, labeler, and sealing machine operator. (Id. at 22).
Plaintiff argues (1) the AU failed to construct a hypothetical which reasonably conveyed
the extent of Plaintiffs mental limitations; and (2) that the Dictionary of Occupational Titles
descriptions of the positions the VE determined Plaintiff was capable of performing are
inconsistent with Plaintiffs RFC. (P1. Br. at 29-30).
The AU posed two hypothetical questions to the vocational expert. (Tr. at 223-24). first,
the AU proposed a hypothetical individual
can do a job that does not involve driving or working around heavy or dangerous
machinery. He can do work that does not involve contact with extremes in
temperature, high humidity or excessive amounts of dust or known pulmonary
irritants. He can bend occasionally and cannot climb ladders or scaffolds. He is
limited to work that can be learned in 1 month or less and that involves simple
instructions. He can do jobs that do not require great amounts of decision making
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during the day.
(Tr. at 223). Relying on this hypothetical, the VE determined there was work existing in significant
numbers in the national and regional economies that Plaintiff could perform.
Next, the AU asked the VE to assume the same limitations as the first hypothetical and to
also consider the additional limitation: “[b]ased on excessive daytime sleepiness [the hypothetical
individualJ is unable to keep a regular work schedule without an unreasonable number of
unscheduled absences totaling more than 4 times per month.” (Id. at 224). With this limitation,
the VE found Plaintiff would be unable to perform work available in significant numbers in the
national and regional economies due to the fact that “absences of that frequency are beyond a
reasonable standard.” (Id.)
An AU’s hypothetical questions “must reflect all of a claimant’s impairments that are
supported by the record.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.1987). If the
hypothetical question does not include “medically undisputed evidence of specific impairments”
in the record, then “the expert’s response is not considered substantial evidence.” Bums v.
Barnhart, 312 f.3d 113, 123 (3d Cir. 2002) (citing Podedwomy v. Harris, 745 F.2d 210, 21$ (3d
Cir. 1984). In his opinion, the AU stated that evidence on the record “demonstrates continued
symptoms of body aches, fatigue, daytime somnolence, and difficulties with memory and
concentration.” (Tr. 20). Although an AU is not required “to submit to the vocational expert
every impairment alleged by a claimant,” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.
2005), the AU already noted the evidence demonstrated symptoms of excessive sleepiness.
Therefore, the first hypothetical, which did not include Plaintiffs impairment of sleepiness was
not supported by the record and the VE’s response cannot be considered substantial evidence.
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Additionally, the AU’s second hypothetical which did include Plaintiffs daytime
sleepiness, asked the VE to consider the effect this impairment would have if it caused Plaintiff to
be absent more than four times per month. (Tr. at 224). As the AU did not identify evidence on
the record which suggested the effect Plaintiffs sleepiness would have on his absences per month,
meaningful review is precluded. Therefore, the decision must be vacated and this matter remanded
for further consideration.5
V.

CONCLUSION
For the foregoing reasons, the AU’s decision that Plaintiff is not disabled within the

meaning of the Social Security Act is vacated in part, affirmed in part, and remanded further
administrative proceedings consistent with this Opinion. An appropriate order accompanies this
Opinion.

DATED: December

7

,

2016

CLAIRE C. CECCHI, U.S.D.J.

Plaintiff also argues the VE’s opinion is contradictory to the DOT and the RFC provided. (P1.
Br. at 30). Plaintiff contends that although the AU provided Plaintiff could not operate dangerous
machinery, the VE found him capable of performing occupations which require operating
dangerous machinery. Additionally, Plaintiff argues that although the AU stated Plaintiff could
not be exposed to pulmonary irritants, the VE found Plaintiff was able to perform occupations
involving exposure to pulmonary irritants. As the AU’s decision at step five is vacated and
remanded on the grounds provided above, these additional issues are for the AU’s consideration
on remand.
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