BARCO v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Kevin McNulty on 8/28/15. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:15-0 106 (KM)

Olivin Gonzalez BARCO,
Plaintiff,

OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Olivin Gonzalez Barco brings this action pursuant to 42 U.S.C.

§

405(g) to review a final decision of the Commissioner of Social Security
(“Commissioner”) denying his claim for Title II Disability Insurance
Benefits (“DIB”). Barco alleges that he suffers from lumbar back disc
disease. (R.’ 125, ECF No. 5)
For the reasons set forth below, the AU’s decision is AFFIRMED.
I.

BACKGROUND
Barco seeks to reverse an AU’s finding that he was not disabled

from November 2, 2010 through the date of the AU’s decision, April 5,
2013. (R. 21—27)
Barco initially applied for DIB benefits on November 2, 2010. That
claim was first denied on October 4, 2011, and denied again on
reconsideration on November 2, 2010. On January 17, 2012, Barco filed
a request for a hearing. On December 19, 2012, a hearing was held, at
which Barco was represented by counsel and testified with the aid of a

“R.” refers to the pages of the administrative record filed by the
Commissioner as part of her answer. (ECF No. 6)

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Spanish interpreter. On April 5, 2013, Administrative Law Judge (“AU”)
Michal L. Lissek denied Barco’s application for DIB benefits. On
November 6, 2014, the Appeals Council denied Barco’s request for
review, making the AU’s decision the final decision of the Commissioner.
Barco now appeals that decision.
II.

DISCUSSION
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 he 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.

§

423(d)(1)(A).
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

properly 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),

4 16.920(c). If the claimant has a severe impairment, move to
step three.

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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), 4 16.920(d).

Step 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to
perform past relevant work. Id.

§ 404. 1520(e)—(f), 4 16.920(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), 4 16.920(g); see

Poulos v. Comm’r of 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.
Schaucleck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AU’s findings, as long as they
are supported by substantial evidence. Jones v. Barnhart, 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.”
Zirnsak 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).
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[I]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. Bamhart, 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 (“[W]e are mindful that we must not substitute our own judgment
for that of the fact finder.”).
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. Pocledworny v. Harris, 745 F.2d 210, 221 (3d
Cir. 1984); Bordes v. Commissioner, 235 F. App’x 853, 865—66 (3d Cir.
2007).
b. The AU’s decision
The AhJ concluded that from November 2, 2010, through April 5,
2013, Barco was not disabled. AU

Lissek’s determinations may be

summarized as follows.
At step one, the AL determined that Barco had not engaged in
J
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substantial gainful activity since November 2, 2010, his alleged disability
onset date. (R. 23)
At step two, the AU found that Barco has the following severe
impairments: “sequelae of a work accident include lumbar disc disease
and obesity.” (Id.)
At step three, the AU determined that none of Barco’s
impairments or combinations of impairments met or medically equaled

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the severity of one of the listed impairments in 20 C.F.R. Pt. 404 Subpt.
P, App. 1 (the “Listings”). (Id. 23—24)
Then the AU found that during the relevant time period, Barco
“ha[d] the residual functional capacity [“RFC”] to perform the full range of
light work as defined in 20 C.F.R. 404.1567(b).” (Id. 24—26)
At step four, the AU found that based on his RFC, Barco was
unable to perform any past relevant work. (Id. 26)
The AU determined since Barco was born on January 28, 1975
and was 35 years old, he was categorized as a “younger individual age
18—49, on the disability onset date.” (Id.)
The AU found that Barco was illiterate in English. (Id.)
The AU also found that “[t]ransferability of job skills is not
material to the determination of disability because applying the MedicalVocational Rules directly supports a finding of ‘not disabled,’ whether or
not the claimant has transferable job skills.” (Id.)
At step five, the AU considered Barco’s “age, education, work
experience, and residual functional capacity,” and found that “there are
jobs that exist in significant numbers in the national economy that
[Barco could] perform.” (Id. 26—27) As noted above, such a finding at step
five requires that benefits be denied.
c. Barco’s appeal

Barco argues that the AU (1) erred in the step three analysis; (2)
erred in the RFC determination; and (3) erred by not consulting a
vocational expert at step five. I disagree and find that substantial
evidence supports the AU’s conclusions.

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d. Analysis
I. AU’s step three analysis
Barco argues that the ALl erred in the step three analysis by (1)
erroneously concluding that Barco’s back pain does not meet the criteria
for Listing 1.04A; (2) rejecting the May 2012 report of Dr. Tiger; (3) not
considering the August 2013 evaluation of Dr. Tiger; and (4) not
considering Barco’s obesity in combination with his back problems. (P1.
Br. 10—23) I find no error in the AU’s step three analysis.
1. Listing 1.04 criteria
First, Barco argues that his back pain meets the requirements of
Listing 1.04. See Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P,
App. 1, Pt. A. Barco recounts isolated medical findings from Dr. Tiger
and Dr. Potashnik, but provides no explanation as to how these findings
meet the requirements of Listing 1.04. This Court is not permitted to
reweigh such medical evidence. And it is clear that the ALl had
substantial evidence for the step three conclusions. Specifically, the
opinions from Dr. Giordano and Dr. Potashnik support the ALl’s step
three conclusion that Barco cannot meet the Listing 1.04 requirements of
proving (A) nerve root compression; (B) spinal arachnoiditis; or (3)
lumbar spinal stenosis. (R. 23—35, 189—2 13, 233—43; Listing 1.04) These
opinions also support the AU’s conclusion that Barco’s back pain has
not “resulted in an inability to ambulate effectively.” (R. 23) Dr. Giordano
opined that Barco had done “exceptionally well” post-surgery and
specifically instructed Barco to “increase his exercises and activities.” (Id.
189—91) Dr. Potashnik concluded that in an eight hour day, Barco could
sit for eight hours, stand for six hours, and walk for eight hours total.
(Id. 236) The AU

properly relied on these opinions in the step three

analysis.

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2. Dr. Tiger’s May 2012 report
improperly rejected the May

Second, Barco argues that the AU
2012 report of Dr. Tiger. (R. 225—26)

An AU is free to credit one medical opinion over another, provided
that the AU

considers all of the evidence and gives reasons for

discounting the evidence he or she rejects. See Diaz v. Commissioner of
Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009); Plummer v. Apfel, 186
F.3d 422, 429 (3d Cir. 1999) (“An AL

.

.

may afford a treating

physician’s opinion more or less weight depending upon the extent to
which supporting explanations are provided.”); Adorno v. Shalala, 40
F.3d 43, 48 (3d Cir. 1994) (citations omitted) (An AU may “properly
accept some parts of the medical evidence and reject other parts, but she
must consider all the evidence and give some reason for discounting the
evidence she rejects.”). In this case, the AU

analyzed Dr. Tiger’s report

and gave reasons for assigning no weight to it. The AU noted that Dr.
Tiger’s opinion was inconsistent with other medical opinions from Dr.
Giordano (Barco’s treating physician) and Dr. Potashnik and that Dr.
Tiger’s report was likely biased, as it was prepared for the purpose of
Worker’s Compensation litigation •2 (Id. 25—26)
3. Dr. Tiger’s August 2013 report
Third, Barco argues that the AU

erred by not considering the

August 23, 2013 report from Dr. Tiger. (P1. Br. 10, 16, 31; R. 11—13 (Dr.
Tiger’s report)) This report was written after the AU

rendered the April 5,

2013 decision.
“[Elvidence that was not before the AL cannot be used to argue
that the AU’s decision was not supported by substantial evidence.”
For instance, Dr. Tiger opined that Barco “was never rehabilitated” postsurgery, whereas Dr. Giordano stated that l3arco recovered “exceptionally well.”
(R. 225, 189—9 1) Also, Dr. Tiger said Barco could not “do anything of an
exertional nature,” whereas Dr. Giordano specifically instructed Barco to
“increase his exercises and activities.” (Id.)
2

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Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001). “[Wlhen the
claimant seeks to rely on evidence that was not before the AU, the
district court may remand to the Commissioner but only if the evidence
is new and material and if there was good cause why it was not
previously presented to the AU.” Id. at 593.
Barco has not attempted to demonstrate that Dr. Tiger’s additional
report is new and material or that there was good cause for not
presenting a second report from Dr. Tiger to the AU. In any case, Dr.
Tiger’s August 2013 report is largely similar to his May 2012 report, in
which he opined that Barco’s back surgery resulted in 85% of partial
total disability. (R. 225—26) The AU

analyzed this report and gave it no

weight, as it was inconsistent with the other medical opinions in this
case and was prepared for the purpose of litigation. (Id. 2 5—26) Dr. Tiger’s
August 2013 report was similarly prepared for the purpose of litigation
and expresses many of the same opinions as the May 2012 report. (Id.
11—13) Moreover, Dr. Tiger’s August 2013 report includes statements
regarding Barco’s condition on August 23, 2013, which is after the time
period the AU

considered. Remand based on this new report is therefore

inappropriate.
4. Barco’s obesity
Fourth, Barco argues that the AU

did not sufficiently analyze his

obesity. (P1. Br. 12, 17—23) To the contrary, the AU considered Barco’s
obesity in combination with Barco’s back impairment at step three. (R.
24) It was not error to consider obesity only in combination with Barco’s
back impairment, as there is no separate listing for obesity. Rather, the
regulations provide that obesity is to be analyzed in combination with a
claimant’s other impairments. SSR 02-ip, 2000 WL 628049 (S.S.A. Sept.
12, 2002).
Moreover, Barco did not list obesity as one of the physical
impairments that limited his ability to work in his application for

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disability benefits. (R. 125) And Barco does not offer any record citations
to document any effects of his obesity or explain in what way obesity
should affect any of the steps of the analysis. See SSR 02- ip, 2000 WL
628049 at *6 (S.S.A.) (An AU “will not make assumptions about the
severity or functional effects of obesity combined with other
impairments.”); Rutherford v. Bamhart, 399 F.3d 546, 553 (3d Cir. 2005)
(concluding that remand was not appropriate even though an AU

did

not specifically mention a claimant’s obesity because (1) the claimant
had not explained how obesity would affect the AU’s five—step analysis;
(2) the claimant only generally alleged that her obesity “makes it more
difficult for her to stand, walk and manipulate her hands and fingers”;
and (3) the AU’s based his opinion on “voluminous medical evidence.”).
For the foregoing reasons, the ALT’s step three analysis is
supported by substantial evidence.
ii. AU’s RFC evaluation
Barco argues that the AU

erred in the RFC determination by (1)

improperly concluding that Barco was capable of performing light work
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and (2) improperly evaluating Barco’s subjective complaints of pain. (P1.
Br. 23—31) I find that substantial evidence supports the AU’s RFC
analysis.
1. Requirements of light work
The ALT found that during the relevant time period, Barco “ha[d]
the residual functional capacity [“RFC”] to perform the full range of light
work as defined in 20 C.F.R. 404.1567(b).” (R. 24—26) This was not in
error. Light work is defined as follows:
Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a
Barco also reiterates his arguments about Dr. Tiger’s reports and his
obesity. As explained in the preceding section, I find these arguments
unpersuasive.

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job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of
these activities.
20 C.F.R. § 404.1567. Dr. Giordano (Barco’s treating physician) and Dr.
Potashnik both opined that Barco was capable of doing the activities
described in this definition. Specifically, Dr. Giordano noted that Barco
ambulated without a limp, was capable of standing erect, had a good
prognosis for recovery, and had good strength in all motor groups. (R.
189—213) Dr. Giordano further opined that no further treatment was
needed for Barco as of November 2, 2010, that Barco should practice
proper fitness, and that Barco was capable of doing a “lighter profession”
(as opposed to Barco’s previous work, which was physically demanding).
(Id. 189) The only restrictions Dr. Giordano placed on Barco were to

avoid repetitive bending and lifting over forty pounds. (Id.) Dr. Potanshik
noted that Barco walked with a normal gait, drove, could lift up to twenty
pounds frequently, could sit and walk for eight hours in an eight hour
day, and could stand for six hours in an eight hour day. (Id. 233—43)
These opinions support the AU’s conclusion that Barco was able to
perform the full range of light work.
2. Barco’s subjective complaints of pain
Barco also questions the AU’s evaluation of his subjective
complaints of pain. (P1. Br. 27—31)
Social Security Regulation 96-7P provides:
In determining the credibility of the individual’s statements,
the adjudicator must consider the entire case record,
including the objective medical evidence, the individual’s
own statements about symptoms, statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant

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evidence in the case record. An individual’s statements about
the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his or her ability to
work may not be disregarded solely because they are not
substantiated by objective medical evidence.
Rather, the AU’s credibility determination “must contain specific
reasons for the finding on credibility, supported by the evidence in the
case record.” SSR 96-7P; see also 20 C.F.R. § 404.1529(b), 4 16.929(b).
The AU found that Barco’s medically determinable impairments
could reasonably be expected to cause his alleged symptoms, but that
his statements regarding the intensity, persistence, and limiting effects of
him symptoms were not entirely credible. (R. 24—26) Specifically, the AU
noted that the medical evidence did not support Barco’s allegations, and
that Barco’s own reported activities of daily living were inconsistent with
his claim of total disability. (Id. 26) Drs. Giordano and Potashnik
rendered opinions that were consistent with Barco’s ability to perform
light work, as explained above. And Barco himself reported that he could
lift up to forty pounds; that he spends his day showering, cooking,
walking around the block, and watching television; that he is able to do
laundry, household repairs, ironing, and landscaping; and that he can
drive and shop for groceries. (Id. 139—46) The AU’s evaluation of Barco’s
subjective complaints of pain is thus supported by substantial evidence.
iii. AU’s step five determination

Barco argues that the AU

should have consulted a vocational

expert at step five. (P1. Br. 31—38) Under the circumstances, the AU was
not required to do so.
At step five, the AU used the Medical-Vocational Guidelines
(“Grids”) to find that there were jobs in the national economy that Barco
could have performed. (R. 26—27) He did not consult a vocational expert.

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The Third Circuit has instructed that an AU may rely on the Grids
and need not consult a vocational expert when a claimant has only
exertional limitations.
Exertional limitations are those that affect the “ability to
for sitting, standing,
meet the strength demands of jobs
lifting, carrying, pushing, and pulling.” 20 C.F.R. §
walking,
404. 1569a(a). Nonexertional limitations are any other
and..
postural limitations.
limitations, including.
environmental limitations. Id.; SSR 96-9p. When a claimant
has solely exertional limitations, his disability status is
determined by the Medical—Vocational Guidelines “without
reference to additional evidence.” [Sykes v. Apfel, 228 F.3d
259, 269 (3d Cir. 2000)].
...

.

.

.

.

See Breslin v. Comm’r of Soc. Sec., 509 F. App’x 149, 154 (3d Cir. 2013);
see also Raymond v. Comm’r of Soc. Sec., No. CIV. 2:12-05660 WJM,
2014 WL 1783098, at *4 (D.N.J. May 5, 2014) (applying Breslin and
concluding that an AU did not need to consult a vocational expert even
when a claimant has non-exertional limitations, provided that an
occupational base was not significantly eroded by those non-exertional
limitations).
The AU correctly held that Barco retained the RFC to do the full
range of light work as defined in 20 C.F.R. 404.1567(b). Because Barco
suffers only from exertional limitations, the AU

then appropriately relied

on the Grids at step five. The AU was not required to consult a
vocational expert.
III.

CONCLUSION
For the foregoing reasons, the AU’s decision is AFFIRMED.

Dated: August 28, 2015

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KEVIN MCNULTY

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United States District th(dge

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