CRUZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

OPINION. Signed by Judge Stanley R. Chesler on 5/9/16. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
ENRIQUE CRUZ,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL
:
SECURITY,
:
:
Defendant.
:
____________________________________:

Civil Action No. 15-954 (SRC)
OPINION

CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Enrique Cruz (“Plaintiff”)
of the final decision of the Commissioner of Social Security (“Commissioner”) determining that
he was not disabled under the Social Security Act (the “Act”). This Court exercises jurisdiction
pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of the parties without
oral argument, pursuant to L. CIV. R. 9.1(b), finds that the Commissioner’s decision will be
affirmed.
In brief, this appeal arises from Plaintiff’s application for disability insurance benefits,
alleging disability beginning March 15, 2007. A hearing was held before ALJ Barbara Dunn
(the “ALJ”) on March 26, 2012, and the ALJ issued an unfavorable decision on May 24, 2012,
finding Plaintiff not disabled. After the Appeals Council denied Plaintiff’s request for review,
the ALJ’s decision became the Commissioner’s final decision, and Plaintiff filed this appeal.
In the decision of May 24, 2012, the ALJ found that, at step three, Plaintiff did not meet
or equal any of the Listings. At step four, the ALJ found that Plaintiff retained the residual

functional capacity to perform light work, with certain limitations. At step four, the ALJ also
found that this residual functional capacity was not sufficient to allow Plaintiff to perform his
past relevant work. At step five, the ALJ consulted a vocational expert and concluded that there
are other jobs existing in significant numbers in the national economy which the claimant can
perform, consistent with his medical impairments, age, education, past work experience, and
residual functional capacity. The ALJ concluded that Plaintiff was not disabled within the
meaning of the Act.
On appeal, Plaintiff argues that the Commissioner’s decision should be reversed and the
case remanded on six grounds: 1) the ALJ failed to follow the treating physician rule; 2) at step
three, the ALJ failed to properly weigh all the evidence in regard to Listings 12.04 and 12.06; 3)
the ALJ failed to properly evaluate Plaintiff’s mental impairments; 4) the ALJ improperly
discredited Plaintiff’s subjective complaints; 5) the step four residual functional capacity
determination was incomplete; and 6) at step five, the hypothetical posed to the vocational expert
was deficient.
Plaintiff’s case on appeal suffers from two principal defects: 1) its failure to deal with the
issue of the burden of proof at the first four steps of the sequential evaluation process; and 2) its
failure to deal with the harmless error doctrine. As to the burden of proof, Plaintiff bears the
burden in the first four steps of the analysis of demonstrating how her impairments, whether
individually or in combination, amount to a qualifying disability. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987).
As to the harmless error doctrine, the Supreme Court explained its operation in a similar
procedural context in Shinseki v. Sanders, 556 U.S. 396, 409 (2009), which concerned review of

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a governmental agency determination. The Court stated: “the burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination.” Id. In such a case,
“the claimant has the ‘burden’ of showing that an error was harmful.” Id. at 410.
Plaintiff thus bears the burden, on appeal, of showing not merely that the Commissioner
erred, but also that the error was harmful. At the first four steps, this requires that Plaintiff also
show that, but for the error, he might have proven his disability. In other words, when appealing
a decision at the first four steps, if Plaintiff cannot articulate the basis for a decision in his favor,
based on the existing record, he is quite unlikely to show that an error was harmful.
This Court will consider Plaintiff’s arguments in stepwise fashion. At step three,
Plaintiff argues that the ALJ failed to properly weigh all the evidence in regard to Listings 12.04
and 12.06.
This Court reviews the Commissioner’s decisions under the substantial evidence
standard. This Court must affirm the Commissioner’s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health and Human Services,
841 F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is more than a mere scintilla of
evidence but may be less than a preponderance.” McCrea v. Comm’r of Soc. Sec., 370 F.2d
357, 360 (3d Cir. 2004). The reviewing court must consider the totality of the evidence and then
determine whether there is substantial evidence to support the Commissioner’s decision. See
Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 1981).

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Under this standard, this Court must affirm the decision at step three if it is supported by
substantial evidence. At step three, the ALJ concluded that Plaintiff did not meet the “paragraph
B” criteria of Listings 12.04 and 12.06. These two listings, the first for mood disorders and the
second for anxiety disorders, contain the same paragraph B, which requires that mood or anxiety
problems:
B. Result[] in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration . . .
(Listings 12.04(B), 12.06(B).) The category preface to these Listings explains:
Where we use “marked” as a standard for measuring the degree of limitation, it
means more than moderate but less than extreme. A marked limitation may arise
when several activities or functions are impaired, or even when only one is
impaired, as long as the degree of limitation is such as to interfere seriously with
your ability to function independently, appropriately, effectively, and on a
sustained basis.
(Listing 12.00(C).) The ALJ determined that the record did not show that Plaintiff’s emotional
difficulties had resulted in meeting the paragraph B criteria.
In support of his position, Plaintiff cites the evaluations submitted by two psychological
consultants, Drs. Brown and Foley. The evaluation by Dr. Foley is most pertinent here, because
Dr. Foley expressly assessed plaintiff in regard to the paragraph B criteria of both Listings 12.04
and 12.06, and her report shows that, while she found moderate difficulties in two of the four
criteria, she found marked difficulties on none of the four criteria. (Tr. 349.) This alone is
substantial evidence which supports the ALJ’s step three determinations in question.
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Dr. Brown submitted a narrative report which did not expressly address the paragraph B
criteria. While Dr. Brown found some intellectual limitations, she did not state any specific
limitations in maintaining concentration, persistence, or pace.1 (Tr. 336-37.) She reported
Plaintiff’s statements to her regarding his current functioning, but did not make any specific
conclusions about the degree of restriction in activities of daily living or maintaining social
functioning. (Tr. 336.) Plaintiff does not articulate what in Dr. Brown’s report is evidence that
he meets the paragraph B criteria, nor does this Court read the report as evidence that Plaintiff
meets the paragraph B criteria for Listings 12.04 or 12.06.
The Court finds that the ALJ’s step three determination that Plaintiff did not meet the
paragraph B criteria for Listings 12.04 or 12.06 is supported by substantial evidence.
At step four, Plaintiff makes four separate arguments, but all four challenge the ALJ’s
weighting of the evidence, faulting the ALJ for what evidence she did and did not cite, or the
amount of discussion.2 The Court considers these arguments in the context of Shinseki and the
deferential standard of review. As already stated, under Shinseki, Plaintiff bears the burden, on
appeal, of showing not merely that the Commissioner erred, but also that the error was harmful.

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Plaintiff contends that Dr. Brown found that memory for dates and appointments was
poor. While that statement does appear in the report, it appears in the section in which Dr.
Brown states what Plaintiff reported to her, not what she observed during the evaluation. (Tr.
335.) Dr. Brown did not report any specific conclusions about Plaintiff’s memory capabilities.
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Plaintiff also argues that the ALJ found exertional limitations which erode the
occupational base for a full range of light work. (Pl.’s Br. 25.) Plaintiff here has confused the
issues. The ALJ did not state that the claimant retained the residual functional capacity to
perform the full range of light work. Rather, the ALJ made specific findings in regard to the
capacity to perform light work, and the hypothetical presented to the vocational expert listed
these specific residual functional capacity findings. (Tr. 108-10.) The concept of the “full range
of light work” was not used.
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Because this Court reviews the step four residual functional capacity determination under the
substantial evidence standard, Plaintiff bears the burden, when appealing the residual functional
capacity determination, of showing that the ALJ’s decision was not supported by substantial
evidence. Plaintiff’s challenges to the ALJ’s weighting of the evidence ask this Court to reweigh the evidence, which it may not do: “Neither the district court nor this court is empowered
to weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). Plaintiff’s brief does not recognize these
principles which are fundamental to Social Security appeals.
Plaintiff thus bears the burden of showing that the ALJ’s determination was not
supported by substantial evidence. Plaintiff has not done so.
At step four, the ALJ determined residual functional capacity in terms of both exertional
and non-exertional limitations. As to exertional limitations, the ALJ appears to have given the
greatest weight to the assessment from the state agency reviewing physician Dr. Schachtel, who
reviewed the evidence of record and completed a physical residual functional capacity
assessment, dated September 13, 2010. (Tr. 326-33.) The ALJ’s physical residual functional
capacity assessment is the same as that stated by Dr. Schachtel. Dr. Schachtel’s assessment was
reviewed and affirmed by Dr. Briski. (Tr. 360.) These medical assessments constitute
substantial evidence of Plaintiff’s physical limitations.
The only potentially conflicting medical evidence cited by Plaintiff which states an
assessment of Plaintiff’s physical ability to work is the assessment by Dr. Collins, who stated on

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May 18, 2010 that Plaintiff could not work more than four hours daily.3 (Tr. 307-8.) The ALJ
discussed the records from Dr. Collins, and concluded that these records show a patient who had
suffered a whiplash injury in a motor vehicle accident in January of 2010, received chiropractic
treatment from February through July of 2010, and who ended treatment much improved. (Tr.
52.) Dr. Collins’ final report states that Plaintiff’s condition was stable and that no further
treatment was recommended. (Tr. 295.) The ALJ appears to have reasonably concluded that the
limitations observed by Dr. Collins in May of 2010 had, after successful chiropractic treatment,
been sufficiently alleviated that it was not inconsistent for Dr. Schachtel to find improved
residual functional capacity that September.
This Court finds that the ALJ’s physical residual functional capacity determination is
supported by substantial evidence.
As to Plaintiff’s mental residual functional capacity, the ALJ concluded that Plaintiff was
capable of performing simple, routine and repetitive tasks; following simple, one or two-step
instructions; and sustaining pace, persistence, concentration and attention sufficient for such
tasks. (Tr. 51.) The ALJ stated that, in making this determination, she gave the greatest weight
to the reports from Drs. Brown and Foley. (Tr. 55.) Dr. Brown’s mental status examination
report, dated September 28, 2010, states no mental limitations to the ability to work. (Tr. 33437.) Dr. Foley submitted an assessment of Plaintiff’s functional limitations, dated January 9,

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Plaintiff points also to the evaluation by Dr. Dhillon. (Tr. 277-80.) Dr. Dhillon
submitted a report after an initial consultation, dated April 5, 2010, in which he stated that he
was concerned about “significant functional limitations interfering with the patient’s working
ability,” and he recommended a “complete diagnostic workup.” (Tr. 279.) After a follow-up
visit on April 21, 2010, Dr. Dhillon’s only statement relating to the ability to work was: “The
patient should limit his daily activities to a tolerable limit.” (Tr. 274.)
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2011, and summarized her findings as follows: “The claimant is able to follow simple
instructions, and with some difficulty to sustain pace persistence, concentration and attention,
and to relate and adapt in work-like settings.” (Tr. 355.) The ALJ appears to have also given
some weight to the fact that the record did not contain evidence of any psychiatric treatment
prior to April of 2011. (Tr. 53.)
Plaintiff argues that greater weight should have been given to the opinions of treating
psychiatrists Drs. Yetunde, Ahmad, and Arroyo, who treated Plaintiff between April of 2011 and
July of 2012. Plaintiff does not, however, cite any record evidence in which any of these
psychiatrists stated that mental impairments limited Plaintiff’s ability to work.
This Court finds that the ALJ’s mental residual functional capacity determination is
supported by substantial evidence. All in all, the ALJ’s step four residual functional capacity
determination is supported by substantial evidence.
Lastly, Plaintiff contends that, at step five, the ALJ erred by not including all of
Plaintiff’s limitations in the hypothetical posed to the vocational expert. The transcript from the
hearing shows that the ALJ presented to the vocational expert a hypothetical which fully reflects
the exertional and nonexertional limitations found at step four. (Tr. 108-110.) Because this
Court has concluded that the residual functional capacity determination was supported by
substantial evidence, the ALJ did not err in the construction of the hypothetical presented to the
vocational expert. Third Circuit law requires “that the ALJ must accurately convey to the
vocational expert all of a claimant's credibly established limitations.” Rutherford v. Barnhart,
399 F.3d 546, 554 (3d Cir. Pa. 2005). The record shows that the ALJ followed this mandate.
Plaintiff has failed to persuade this Court that the ALJ erred in her decision or that he was

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harmed by any errors. This Court finds that the Commissioner’s decision is supported by
substantial evidence and is affirmed.

s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: May 9, 2016

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