SANTIAGO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 5/5/16. (cm )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 15—0612 (KM)
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
KEVIN MCNULTY, U.S.D.J.:
David Santiago 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 Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C.
§ 40 1—434. For the reasons set forth below, the
Administrative Law Judge’s (“AU”) decision is AFFIRMED.
Mr. Santiago seeks to reverse an AU’s finding that he was not disabled
from March 30, 2011, the alleged onset date, through September 23, 2013. He
applied for DIB in February 2012, claiming a complete inability to work based
on the sequelae of a fracture to his left ankle, back issues, and obesity. (R. 61)1
His application was denied initially on April 30, 2012 (R. 125—29), and upon
reconsideration on June 13, 2012 (R. 131—37). In July 2012, AU
Krappa conducted an administrative hearing, at which Mr. Santiago testified
and was represented by counsel. (R. 76—106) AU Krappa sent interrogatories
Pages of the administrative record (ECF no. 5) are cited as “R.
to and received additional evidence from Patricia Sasona, a vocational expert,
who concluded that Santiago could perform his past relevant work as a car
driver. (R. 227—44, 61—71) Those results were sent to Mr. Santiago’s counsel,
who did not submit anything in addition. (R. 61, 245—46)
On September 23, 2013, AU
Krappa issued her decision denying Mr.
Santiago’s DIB application. (R. 61—71). The Appeals Council denied Santiago’s
request for review (R. 10—16), rendering the AU’s decision the final decision of
STANDARD OF REVIEW AND REQUIRED FIVE STEP ANALYSIS
To qualify for Title II DIB benefits, a claimant must meet the insured
status requirements of 42 U.S.C.
§ 423(c). To be eligible for SSI benefits, a
claimant must meet the income and resource limitations of 42 U.S.C. § 1382.
To qualify under either statute, 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.
§ 423(d)(1)(A), 1382c(a)(3)(A); see, e.g., Diaz v.
Comm’rof Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A. Standard of Review
As to all legal issues, this Court conducts a plenary review. Schaudeck 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. 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.” Zirnsak v. Colvin, 777 F.3d 607, 610 (3d
Cir. 2014) (internal quotation marks 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 marks and citation
[IJn evaluating whether substantial evidence supports the AU’s
leniency should be shown in establishing the claimant’s
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. Barnhart, 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)); Zirrisak, 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’rof Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007) (not precedential).
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 221—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’rof 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.”) (not precedential). It is also proper
to remand where the AU’s findings are not the product of a complete review
which “explicitly weigh[sj all relevant, probative and available evidence” in the
record. Adomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation
B. The AU’s Five-Step Analysis
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 regulations.
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), 4 16.920(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. (Those Part A criteria are purposely set at a high level,
to identify clear cases of disability without further analysis.) 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.
§ 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 her 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.
AL Krappa properly followed that five step process. Her conclusions may
be summarized as follows.
At step one, the AU determined that Mr. Santiago had not engaged in
substantial gainful activity in the relevant period. At step two, the AU found
that Mr. Santiago’s status post injury of the left foot/ankle, disorder of the
back, and obesity were “severe.” (R. 64)
At step three, the AU
determined that Ms. Figueroa’s impairment or
combinations of impairments did not meet or medically equal the severity of
one of the listed impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A. (R. 64
¶ 4) In particular, AU Krappa considered Listing 1.06 and concluded that
medically acceptable imaging did not indicate a fracture and that the evidence
did not demonstrate inability to ambulate effectively.
The ALl then determined Mr. Santiago’s RFC:
After careful consideration of the entire record, the undersigned
finds that the claimant is capable of the exertional demands of light
work as defined under The Regulations; specifically, he is able to:
lift/carry 20 pounds, occasionally and 10 pounds frequently;
stand/walk for 6 hours in an eight hour work day; sit for 6 hours
in an 8-hour work day (if given the opportunity at the 45 minute-i
hour mark to stand and stretch for 3—5 minutes); and perform
unlimited pushing and pulling within the weight restriction given.
Moreover, regarding the postural and environmental demands of
work, I find that the claimant is able to perform jobs: that require
occasional use of ladders, ropes, or scaffolds; that require frequent
(as opposed to unlimited) use of ramps or stairs; and that require
occasional balancing, stooping, but no kneeling, crouching, and/or
At step four, based on that RFC, as well as Mr. Santiago’s age, education,
and employment history, AUJ Krappa determined that he was not capable of
performing past relevant work as a truck driver, but did remain capable of
performing his past relevant work as a car driver. (R. 71
6) This conclusion
rested in part on the evidence of Ms. Sasona, the vocational expert, who stated
that the job of car driver does not require the performance of functions
exceeding Mr. Santiago’s RFC. (R. 71, R. 237-44)
Based on that step 4 finding, benefits were denied without the need for a
step 5 analysis.
Due process I denial of review of new evidence
Santiago first claims that the denial of Appeals Council review, as it
interacted with his change of representative, resulted in a denial of due process
and failure to consider post-hearing evidence. (See P1. Br. points I, VII) That
post-hearing evidence allegedly documented Dr. Jakubowicz’s June 2014
diagnosis of Complex Regional Pain Syndrome. (P1. Br. point VII, p.23)
According to Santiago, the Appeals Council “fail[edl to review the new and
material evidence from the prior attorney, which provided a significant new
diagnosis explaining the Plaintiff’s symptoms.” (P1. Br. 12) That “new diagnosis”
of Complex Regional Pain Syndrome (“CRPS”), says Santiago, might well have
convinced the AU
to credit his subjective complaints and reach a different
Change of representative, request for records,
failure to submit brief
rendered her decision on September 23, 2013. On October 16,
2013, Santiago filed a request for review by the SSA Appeals Council. (R. 56)
That request was filed through his non-attorney case representative, James
Reeves, who had also assisted at Santiago’s hearing before the AU.
On October 31, 2013, the SSA sent Reeves and Santiago a letter. (R. 46)
That letter denied Santiago’s request for copies of exhibits or digital recordings
of the case records. The request was denied because the case records were
available online. (R. 47)
The same letter granted Reeves’ request for an extension of time to
submit “more evidence or a statement about the facts and the law in this case.”
(Id.) The extension was granted for 25 days only, and the letter warned that the
SSA “will not allow more time to send information except for very good
reasons.” (Id.) The letter also enclosed a copy of instructions for using the
online case processing system, and barcodes to be used in submitting
materials. (R. 51—53) The letter was sent to Reeves, and cc’d to Mr. Santiago at
his home address. (48, 49)
Reeves did take advantage of the SSA’s grant of leave to file additional
evidence. In particular, he submitted records of post-hearing treatment by Dr.
Brian Jakubowicz, dating from January—June 2014. (R. 19—46) Those records
are described in more detail below.
Nearly a year later, by a written form dated September 29, 2014, and
filed October 2, 2014, Santiago appointed his current counsel, Ms. Mazur, as
his representative. (R. 18) Ms. Mazur attaches copies of fax correspondence
between herself and the Appeals Council. (ECF nos. 10, 14-1) The upshot
seems to be as follows:
On October 1 and/or 6, 2014, Ms. Mazur faxed to the Appeals Council a
copy of a letter to Reeves terminating his representation; an Attorney Fees
Agreement between Santiago and Mazur; and an appointment of Mazur as
representative. (ECF no. 14-1 at 11—17) On October 10, 2014, Mazur faxed to
the Appeals Council an amended request for review of the AU’s decision. (ECF
no. 14-1 at 7—8) In the grounds for review section, Mazur typed in a request to
be furnished the audio and exhibit CDs and barcodes, and asked for 60 days to
Confusingly, this insert appears to address either or both of two situations: “We
are forwarding a copy of the file and/or hearing recording to you on a compact disc
(CD), as requested or your request for an extension of time to submit additional
material (e.g., additional evidence and/or contentions) has been granted.” The letter
makes it clear that only the second applies; the request to supply a physical copy of
the record was denied.
submit a brief along with new and material evidence. (fri. at 8) On November 6,
2014, Reeves sent a letter to SSA confirming that he had been terminated as
Santiago’s representative. (R. 17) On November 14, 2014, Mazur submitted
duplicate copies of earlier papers; requested copies of the exhibit file, media file
and barcodes; and asked the Appeals Council to “see that we are allowed
access to this case on ERE.” (ECF no. 14-1 at 5)
On November 26, 2014, Mazur again faxed the Appeals Council stating
that she had not received the audio file, exhibit file, and barcodes as requested.
According to the fax, “Becky at the inquiries number” had earlier told Mazur
that those materials had been “forwarded to [Santiago’s] prior attorney on Oct
30, 2014.” (ECF no. 14-1 at 3) Mazur states or implies that it was as a result
of the SSA’s failure to send her the case file that she did not file a brief with the
Two weeks later, on December 9, 2014, the Appeals Council filed its
notice of denial of review. (R. 10—16)
Appeals Council’s consideration of additional records
As noted above, Reeves did submit to the Appeals Council the records of
post-hearing treatment by Dr. Jakubowicz. Indeed, the Appeals Council, in an
order, stated that it had “received additional evidence which it is making part of
the record” as Exhibit 6F. (R. 15) That Order specifically incorporates Dr.
Jakubowicz’s treatment records from June 2014, which contain the “new
diagnosis” of CRPS that is the basis of Santiago’s argument here.
In January—June 2014 (i.e., after the AU’s decision, while the request for
review was pending), Mr. Santiago was treated by Dr. Brian Jakubowicz of
This may be a misunderstood reference to the letter of October 31, 2013 (not
2014) addressed to Santiago’s non-attorney representative (not “prior attorney”),
described at p. 6 & n.2 above.
The Appeals Council’s decision states that all of the treatment records from
January—June 2014 were considered. (R. 11)
Total Pain Care in Paterson, NJ. Reeves submitted records of Dr. Jakubowicz’s
treatment to the Appeals Council, requesting that those records be considered
as post-hearing evidence.
Dr. Jakubowicz had apparently treated Mr. Santiago before. (The initial
report, dated January 10, 2014, states that Santiago had returned “after a
hiatus of six months.”) (R. 45) In January 2014, Jakubowicz diagnosed
Santiago with lumbar radiculopathy and “possible peripheral neuropathy.” He
noted that Santiago walks with a cane. (R.45—46)
On February 10, 2014, Dr. Jakubowicz performed a Left L5-S1
transforaminal epidural steroid injection under fluoroscopic guidance. The
stated diagnosis was lumbar radiculitis. (R. 22, 42)
At a visit on March 4, 2014, Santiago reported no improvement as to the
left foot pain. The doctor adjusted his medication (Lyrica, Ki compound,
ibuprofen) and recommended that a neurologist “help differentiate the
peripheral component from the radicular component.” The doctor noted that
Santiago “may have CRPS type I at this point, but the distribution of pain is
very specific over the left foot vs extending from the injured area, diffusely and
involving the entire foot.” (R. 40—41) A visit on April 8, 2014, did not produce
any new diagnosis.
On April 23, 2014, Dr. Jakubowicz performed a Left L5-S1
transforaminal epidural steroid injection under fluoroscopic guidance. The
preoperative and postoperative diagnosis was lumbar radiculitis. (R. 21)
Visits on May 6, 2014, and May 30, 2014, did not produce an altered
diagnosis, although medication was adjusted. (R. 31—39)
An apparent reference to Complex Regional Pain Syndrome. (Santiago’s counsel
substitutes the word “Chronic” for “Complex.”) Type I refers to CRPS that occurs after
an illness or injury that did not directly damage nerves. See
www.mayoclinic.org/ diseases-conditions / complex-regional-painsyndrome/basics / causes / con-20022844.
Santiago focuses on the Operative Report of June 11, 2014. On that
date, Dr. Jakubowicz performed a left lumbar sympathetic nerve block under
fluoroscopic guidance. (R. 19) The Operative Report contains a preoperative
and postoperative diagnosis of “Complex regional pain syndrome [CRPS] of the
lower left extremity.” Id.
On June 27, 2014, Dr. Jakubowicz reported alleviation of pain, with
greater than 50% relief overall. Once again, however, the diagnosis is “LS
without any peripheral neuropathy seen on EMG.”
The doctor, as he did before June 11, 2014, states only that Santiago “may
have CRPS type 1 at this point with a sympathetically maintained component.”
(R. 26—27) The final item is a July 7, 2014 report of a missed appointment. (R.
The claim here is that a denial of procedural due process prevented the
Appeals Council from considering the post-hearing diagnosis of CRPS. I
disagree that there was a denial of due process. I also hold that any procedural
error was harmless because the Appeals Council did consider the proffered
evidence and validly concluded that it was not relevant.
First—although I do not rest my decision on this basis alone—there is no
clear basis for this Court to review Appeals Council procedures as such. See
Section I.A, supra (summary of standards of review under 42 U.S.C.
This Court has statutory authority to review final decisions of the agency.
An applicant dissatisfied by the AU’s decision may, of course, seek
Appeals Council review. 20 C.F.R.
§ 404.900. “[T]he regulations provide that
the Appeals Council will grant review only if it finds that the AU’s decision ‘is
contrary to the weight of the evidence currently of record.” Matthews v. Apfel,
239 F.3d 589, 59 1—92 (3d Cir. 2001). But if the Appeals Council, as in this
case, denies review, the AU’s decision becomes the final decision of the SSA.
It is that final decision—the AU’s decision—that this Court reviews under the
standards of 42 U.S.C.
As to such review, the Court’s options are limited.
To summarize the options open to the district court, when the
Appeals Council has denied review the district court may affirm,
modify, or reverse the Commissioner’s decision, with or without a
remand based on the record that was made before the AU
(Sentence Four review). However, when 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 (Sentence Six review).
Matthews, 239 F.3d at 593. Review of the Appeals Council’s interstitial decision
to deny review fits very awkwardly, if at all, within that scheme. See Mays v.
Bamhart, 78 F. Appx 808, 814 (3d Cir. 2003) (Appeals Council’s failure to
consider applicant’s brief and its denial of review are not within the court’s
statutory authority to review final decisions of the SSA).
Second, there was no denial of due process in any event. On October 16,
2013, a request for review by the SSA Appeals Council was filed by Santiago’s
prior representative, James Reeves. (R. 56) Reeves sought a physical copy of
the record of the case, but the request was denied in favor of online electronic
access. On October 31, 2013, the SSA granted Santiago (perReeves) a 25-day
extension of time to submit any briefing or supplemental evidence. Reeves did
not submit any legal argument, but he did submit the post-hearing evidence of
Dr. Jakubowicz’s 2014 CRPS diagnosis. The October 31, 2013 letter to Reeves
granting the 25-day extension warned that no further extensions would be
granted except “for very good reasons.” Santiago was cc’d on the relevant
It was not until a year later that Santiago dismissed Reeves and hired his
current counsel, who attempted to restart the clock on the administrative
appeal. Counsel requested physical copies of the administrative record (already
denied a year before). She requested an extension of time to submit a brief and
new evidence (already granted a year before, but for a period of only 25 days).
Counsel states, with dubious support, that Reeves then possessed the relevant
records. No evidence of efforts to obtain the records from Reeves appears. Nor
does counsel state any legal basis for the proposition that her belated retention
required the Appeals Council to restart the clock on a year-old appeal that was
on the brink of being decided.
Third, any arguable procedural error was harmless. The primary injury
of which Santiago complains is that the Appeals Council failed to consider the
post-hearing CRPS diagnosis of Dr. Jakubowicz. That is plainly incorrect. The
Appeals Council, in an order, incorporated that very evidence into the record,
assigned it Exhibit no. 6F, and stated that it would be considered. (R. 15) The
Appeals Council’s decision cites the new evidence and states reasons for
treating it as immaterial. (R. 11)
Fourth, the Appeals Council validly discounted this post-hearing
evidence. The AU’s decision finds that there was no disability through
September 23, 2013. The Appeals Council was empowered to consider afteracquired evidence, but only to the extent it was relevant to the pre-September
23, 2013 period of disability. That is, any evidence submitted to the Appeals
Council must be “new and material’ evidence that relates to the period on or
before the date of the AU’s hearing decision. See 20 C.F.R.
Matthews, 239 F.3d at 591—92. The Appeals Council considered this new
evidence but found it was not relevant to the period of disability:
We also looked at
the records from Total Pain Care dated
January 10, 2014 to July 7, 2014 (23 pages). The Administrative
Law Judge decided your case through September 23, 2013. This
new information is about a later time. Therefore, it does not affect
the decision about whether you were disabled beginning on or
before September 23, 2013.
If you want us to consider whether you were disabled after
September 23, 2013, you need to apply again.
The Appeals Council’s decision was well founded. Doctor Jakubowicz’s
reports date from the first half of 2014, well after the period of disability. Two
reports contain a tentative statement that Santiago “may have CRPS type I at
this point.” (E.g., R. 27, 41) Those statements—not even diagnoses—are
explicitly confined to “this point” in time, and say nothing about Santiago’s
condition during the period of disability. The single Operative Report that lists
CRPS as a diagnosis is dated June 11, 2014, and it contains nothing to
indicate that a CRPS diagnosis would have been appropriate at any time before
September 23, 2013. I note also that this is a report of a procedure, not a
diagnostic report; the report of Santiago’s next visit, on June 27, 2014, returns
to the tentative “may
at this point” language. (R. 27)
If this new evidence were presented to me as an original matter, my
standard for remanding the case would be similar. A so-called “sentence six”
remand under 42 U.S.C.
§ 405(g) is appropriate only when the new evidence is
material. Matthews, 239 F.3d at 592—93; Wilkins v. Sec’y, Dep’t of Health &
Human Servs., 953 F.2d 93, 96 n.3
Cir. 1991). For me, as for the Appeals
Council, the timing element is central to materiality: “An implicit materiality
requirement is that the new evidence relate to the time period for which
benefits were denied, and that it not concern evidence of a later-acquired
disability or of the subsequent deterioration of the previously non-disabling
condition.” Szubak v. Sec’y of Health & Human Serus., 745 F.2d 831, 833 (3d
Cir. 1984)(quoting Ward v. Schweiker, 686 F.2d 762, 765
This new evidence, even taken on its own equivocal terms, does not
relate to the pre-September 23, 2013 period of disability. It is not material.
Accordingly, Mr. Santiago’s appeal is denied to the extent it rests on his
claim that the Appeals Council denied him due process and wrongfully failed to
consider the post-hearing diagnosis of CRPS.
Mr. Santiago next claims that the AU failed to properly evaluate or weigh
his subjective claims as to the severity of his symptoms.
A claimant’s subjective complaints merit careful consideration, but the
is not required to accept them uncritically. Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 363 (3d Cir. 2011) (citing 20 C.F.R.
§ 4 16.929). Rather, the AU
is required to assess whether and to what degree such complaints are credible.
See SSR 96-7p, 1996 WL 374186, at *4
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 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.
Such credibility determinations are reserved for the AU:
[W]hile an AU must consider a claimant’s subjective
complaints, an AU has discretion to evaluate the credibility
of a claimant and arrive at an independent judgment in light
of medical findings and other evidence regarding the true
extent of the pain alleged by the claimant. Subjective
complaints cannot alone establish disability.
Gantt v. Comm’r Soc. Sec., 205 F. App’x 65, 67 (3d Cir. 2006) (internal
quotations and citations omitted). See also 20 C.F.R.
§ 404.1529(c); Malloy v.
Coinm’r of Soc. Sec., 306 Fed. App’x 761, 765 (3d Cir. 2009) (citing
Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Davis v. Com’r of
Soc. Sec., 240 F. App’x 957, 960 (3d Cir. 2007).
The AUJ may reject subjective complaints, for example, if they are not
credible in light of the other evidence of record. Schaudeck v. Cornm’r of Soc.
Sec., 181 F.3d 429, 433 (3d Cir. 1999). The AU
is called upon to evaluate the
intensity, persistence, and limiting effects of a claimant’s symptoms to
determine the extent to which they limit his ability to perform basic work
activities. See 20 C.F.R.
§ 404.1529(c)(2). As to that issue, “[o]bjective medical
is a useful indicator.” IcL The AU
may also examine factors that
precipitate or aggravate the symptoms, medications and treatments, and daily
living activities. 20 C.F.R.
The AU’s credibility determination “must contain specific reasons for the
finding on credibility, supported by the evidence in the case record.” SSR 967P; see also 20 C.F.R.
that the AU
§ 404.1529(b), 4 16.929(b). What is required overall is
give the claimant’s testimony “serious consideration,” state her
reasons for discounting it, and make “specific findings.” Rowan v. Bamhart, 67
F. App’x 725, 729 (3d Cir. 2003). Where that has been done, a reviewing court
will defer to the AU’s credibility determinations.
The AU here discharged that responsibility. Her decision, supported by
substantial evidence of record, represents a classic weighing of evidence to
which the court must defer. I will confine myself to a sampling of the evidence,
which is discussed by the AU at R. 65—71.
Mr. Santiago testified to his physical pain and the severity of his
symptoms. He had an accident at work on March 30, 2011. The victim of a
initially misdiagnosed ankle fracture, he suffers chronic and intense foot, leg,
and lower back pain. He can drive, but needs a cane to walk, and climbs the
stairs to his second floor living quarters with difficulty. He can stand and sit for
only short periods, and sleeps three hours per night. Because he can no longer
exercise, he now is overweight (5’6”, 273 lbs., in the obese range). Having had a
bad reaction to Percocet, he takes non-narcotic drugs such as ibuprofen and
Aleve. His leg sometimes gives out. His days consist largely of sedentary
activities such as watching television and reading.
Against these complaints the ALT weighed the medical evidence. She
found that Mr. Santiago’s medical impairments could reasonably be expected
to cause symptoms of this kind; she concluded, however, that his testimony as
to the intensity, persistence, and limiting effects of those symptoms were not
entirely credible in light of the other evidence. (R. 67)
The initial treating physician was Dr. Kenneth A. Levitsky, an orthopedic
surgeon. On April 23, 2011, he diagnosed Santiago with a fracture of the left
talus with tear of the TFL, and bone contusion calcaneus and cuboid. The
doctor prescribed Relafen and advised that Santiago refrain from working
pending a CAT scan. (R. 67) A May 2011 CT scan revealed a comminute,
depressed fracture involving the medial, anterior aspect of the talus and
calcaneal spurs. (R. 68)
On August 23, 2011, Mr. Santiago underwent surgery on the ankle. In
October 2011, Dr. Levitsky noted that the ankle was stable, and prescribed a
brace. He believed a return to work would be possible shortly. On October 19,
2011, however, Santiago reported that he had twisted the ankle and was again
in pain. (R. 68)
MRI results, as interpreted by Dr. Levitsky, showed some improvement.
He opined that Santiago could perform sedentary work pending a functional
capacity evaluation (FCE). (R. 68)
The FCE was performed on December 20, 2011. It showed that Santiago
could perform medium category work with occasional lifting and work up to 50
pounds. On January 5, 2012, Dr. Levitsky reported maximum medical
improvement and discharged Santiago from treatment, subject to the
limitations of the FCE. (R. 68)
On March 20, 2013, Santiago saw another orthopedist, Dr. Robert
Greenbaum, complaining of pain in his left ankle and lower back. Greenbaum
noted the prior injuries, thickening and some tenderness of the left ankle.
Dorsiflexion was just past neural, with plantar flexion of 15 to 20 degrees. (R.
68) The left lower extremity was neurovascularly intact. In general, range of
motion of the leg and hips was markedly limited, about one third of normal,
with discomfort. The doctor prescribed Ultracet for pain and Mobic 15 mg. (R.
On May 2, 2013, Dr. Greenbaum noted a range of motion of
approximately one half normal. Other aspects were similar to the earlier
examination. He diagnosed the patient with chronic lumbosacral strain, rule ou
left-side lumbar radiculitis, and tenosynovitis, left ankle.
On May 18, 2013, Santiago underwent an MRI. It showed mild diffuse
disc bulges at the L4-L5 and L5-S 1 levels. Associated symptoms included mild
bilateral neural foraminal narrowing, mild compression of the bilateral SI
nerved roots, and mild central canal stenosis. (R. 69)
Before that MRI, a State agency physician opined that Santiago was
capable of a range of medium work. Based on the MRI, however, the AU
revised that assessment. The disc bulging, combined with the ankle disorder
and obesity, led the AU
to conclude that he was “limited to a range of light
work.” (R. 70)
considered that Santiago did take care of his children, drive a
car, and attend religious services regularly. She noted record evidence of
normal gait and no trouble with transfers during examination. Some motor
strength tests gave results of 5/5 in upper and lower extremities, and he is
neurovascularly intact. The AU noted that Santiago took fairly mild
medications, such as ibuprofen and Aleve. He was cleared by the doctor to
return to work, although he did not do so. There was no evidence of trips to the
emergency room or the like. (R. 70)
For all these reasons, the AU
concluded that Santiago’s symptoms were
real and that they would limit the range of work he could perform. His
complaints of severe debilitating pain, however, were exaggerated, and the AU
rejected his claim of total disability. (R. 70)
The AUJ’s weighing of evidence was careful, and she made specific
findings to support her conclusions. Whether the court would weigh the
evidence the same way is irrelevant. Because the AU’s findings and
conclusions are supported by substantial evidence, I must sustain them.
Residual Functional Capacity
Mr. Santiago next argues that the AU’s determination of his RFC was
flawed because it is based on an underassessment of the extent of his
disability. This is really a repackaging of his argument in Section III.B, above,
that the AU should have weighed the evidence in a different manner. I reject it
for the same reason.
Past Relevant Work
Finally, Mr. Santiago argues that the AU
erred at step four in finding
that he was capable of performing past relevant work as a “car driver.” (P1. Br.
points IV, V, VI, pp. 19—22) This part of the AU’s opinion rested largely on the
opinion of the vocational expert, Sasona. (R. 71)
Sasona found that Santiago’s past relevant work as a car driver lay
within the limitations of his RFC—i.e., that it could be performed by someone
with his limitations as found by the AU. (R. 238) That finding rested on the
Dictionary of Occupational Titles (“DOT”) description of the job of car driver
(which includes an auto dealership “car jockey”) as it is generally performed in
the national economy:
CODE: 9 19.683-014
TITLE(s): DRIVER (auto. mfg.; automotive ser.) alternate titles: car
Drives completed motor vehicle off assembly line to specified
repair, shipping, or storage area. May test performance of parts,
such as lights, horn, and windshield wipers. May drive completed
vehicle onto railroad freight car and secure vehicle for shipping.
May drive customer’s vehicle to and from service area of repair
shop and be designated Car Jockey (automotive ser.).
GOE: 05.08.03 STRENGTH: L GED: R2 Ml Li SVP: 2 DLU: 90
(DOT # 9 19.683-014) That job is unskilled and performed at a light level of
Santiago replies that his old job was not actually confined to that of a car
driver as described in the DOT. In his vocational questionnaire, Mr. Santiago
stated that one of his prior jobs had been as a “car jockey” for an automobile
dealership. (R. 183) And concededly, for the most part, that job involved driving
cars: ferrying customers and their cars from place to place, storing cars,
swapping cars with other dealers. In addition, however, Santiago reported that
his job involved washing cars, as well as cleaning and shoveling the parkway
and parking lot. (Id.) He views it as a composite job, encompassing that of “car
jockey” and “grounds keeper, industrial-commercial.”
The job as actually performed, in Santiago’s description, could be
described as “car driver plus.” It primarily involved driving cars, but also had
potentially more demanding ancillary duties, such as shoveling. Santiago urges
that the past work as actually performed is the only road to a valid step four
A little more ambiguity is added by the phrasing of the AU’s finding. The
opinion describes the car driver job and incorporates the reasoning of the
vocational expert, Sasona. The AU
then finds as follows: “In comparing the
claimant’s residual functional capacity with the physical and mental demands
of this work, the undersigned finds that the claimant is able to perform it as
actually and generally performed.” (R. 71
6 (emphasis added)) If by “this
work,” the AU meant the work described in the preceding paragraph (i.e., DOT
# 919.683-014, the job discussed by VE Sasona), then the “actually performed”
portion of the AU’s finding does not follow. Some sort of additional finding
about Santiago’s ability to perform the shoveling and maintenance portion of
the job would be required to close the gap. Neither the VE nor the AU
any such finding. I therefore find the AUJ’s double-barrelled finding that
Santiago meets the actual and general qualifications of his prior job to be at
The SSA attempts to avoid the issue by arguing that, as a matter of law,
step four requires only that the applicant meet the qualifications of his prior
work as generally, not actually, performed. There is some support for that view
in the rather general requirement of the regulations that “[i]f you can still do
this kind of work, we will find that you are not disabled.” 20 C.F.R. §
404.1520(e), 4 16.920(e). But the SSA goes too far in arguing that the
regulations themselves embody an either/or approach. What the regulations
say is that the vocational expert may validly introduce evidence or an opinion
as to both, and that such evidence may be “helpful in supplementing or
evaluating the accuracy of the claimant’s description of his past work.” 20
§ 404. 1560(b)(2). “Helpful” is not “dispositive.” And no finding was
made here as to the accuracy of Santiago’s description of his duties.
The interpretive difficulty is recognized, and (non-authoritatively)
resolved in an SSA Program Policy Statement, SSR 82-6 1 (reprinted at 1982
WL 31387). SSR 82-61 rejects (1) a broad test of prior employment that merely
invokes a general occupational category, such as “delivery jobs” or “packaging
jobs.” At the other extreme, (2) the ability to do precisely the “individual job as
[the claimant] actually performed it” would preclude a finding of disability. SSR
(2) Determining whether you can do your past relevant work. We will ask
you for information about work you have done in the past. We may also
ask other people who know about your work. (See § 404.1565(b).) We
may use the services of vocational experts or vocational specialists, or
other resources, such as the “Dictionary of Occupational Titles” and its
companion volumes and supplements, published by the Department of
Labor, to obtain evidence we need to help us determine whether you can
do your past relevant work, given your residual functional capacity. A
vocational expert or specialist may offer relevant evidence within his or
her expertise or knowledge concerning the physical and mental demands
of a claimant’s past relevant work, either as the claimant actually
performed it or as generally performed in the national economy. Such
evidence may be helpful in supplementing or evaluating the accuracy of
the claimant’s description of his past work. In addition, a vocational
expert or specialist may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and
mental limitations imposed by the claimant’s medical impairment(s) can
meet the demands of the claimant’s previous work, either as the claimant
actually performed it or as generally performed in the national economy.
20 C.F.R. § 404.1560(b)(2).
82-61 declares that the third, intermediate alternative—ability to do the prior
job as it is generally required by employers—will also suffice to preclude a
finding of disability:
3. Whether the claimant retains the capacity to perform the
functional demands and job duties of the job as ordinarily required
by employers throughout the national economy. (The Dictionary of
Occupational Titles (DOT) descriptions can be relied upon—for jobs
that are listed in the DOT—to define the job as it is usually
performed in the national economy.) It is understood that some
individual jobs may require somewhat more or less exertion than
the DOT description.
A former job performed by the claimant may have involved
functional demands and job duties significantly in excess of those
generally required for the job by other employers throughout the
[I]f the claimant cannot perform the excessive
functional demands and/or job duties actually required in the
former job but can perform the functional demands and job duties
as generally required by employers throughout the economy, the
claimant should be found to be “not disabled.”
POLICY STATEMENT: Under sections 404.1520(e) and 4 16.920(e)
of the regulations, a claimant will be found to be “not disabled”
when it is determined that he or she retains the RFC to perform:
1. The actual functional demands and job duties of a particular
past relevant job; or
2. The functional demands and job duties of the occupation as
generally required by employers throughout the national economy.
SSR 82-6 1, 1982 WL 31387, at *2. The SSA cites a nonprecedential decision of
the Third Circuit which, while not really discussing the issue, appears to
accept the approach of SSR 92-6 1. See Diaz
Comm’r of Soc. Sec., 440 F.
App’x 70, 73 (3d Cir. 2011) (“The vocational expert testified that Diaz could
perform her past relevant work, as it is generally performed in the national
economy. See 20 C.F.R.
§ 404.1560(b)(2). Therefore, the AU’s determination
that Diaz was ineligible for DIB is supported by substantial evidence.”)
A policy statement, while entitled to respectful consideration, does not
carry the authority of administrative rulemaking and does not bind the Court
to the extent it is not persuasive. See Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 294 (3d Cir. 2012).
I am not wholly convinced by the reasoning of SS 82-6 1. Step four, like
other preliminary steps of the analysis, sets forth a rule of thumb that permits
claims to be denied, shortcutting further analysis. Step four embodies a
commonsense conclusion that a claimant cannot be disabled if he or she is
capable of returning to his or her old job. But if the “prior work” is not the
claimant’s prior job, but rather a job description from the DOT, what is the
justification for shortcutting? To put it another way, how does a step four
assessment of the job as “generally performed” differ from a step 5
determination that the claimant can perform work existing in the national
economy? And if it is similar, what is the justification for omitting, e.g., the step
5 requirement of proof that such jobs exist in significant numbers, or step 5’s
shifting of the burden of proof to the SSA?
There is no need, however, to delve into complex issues of administrative
deference or to resolve this issue as a question of law. Having found the AU’s
step 4 finding to be ambiguous and incomplete, I will remand for further
findings. An unambiguous factual finding at step 4 might well dispose of the
issue. At any rate, to avoid delay and ensure a final resolution, I will require
that the AU
perform a step 5 analysis. I therefore remand the case to the AU,
on the terms described in the Conclusion, immediately following.
The AU’s decision is AFFIRMED IN PART, for the reasons expressed
above. Steps 1 through 3 and the assessment of Mr. Santiago’s RFC need not
be revisited on remand. The AUJ’s decision is, however, REVERSED AND
REMANDED in part, for supplemental findings on step 4, and (irrespective of
the results of step 4) for a finding on step 5. The following issues should be
addressed on remand:
At step 4, is Mr. Santiago, with his RFC, able to perform the actual
functions of his prior job (what I have called “car jockey plus”)?
At step 5, is Mr. Santiago, considering his age, education, work
experience, and RFC, capable of performing jobs that exist in significant
numbers in the national economy?
retains complete discretion to take further evidence and conduct
further proceedings as she may deem necessary.
Dated: May 5, 2016
United States District
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