VARGAS v. SOCIAL SECURITY ADMINISTRATION

Filing 20

OPINION. Signed by Judge Kevin McNulty on 1/11/17. (cm )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RAYMOND VARGAS,
Plaintiff,

Civ. No. 15—2502 (KM)

V.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

OPINION

Defendant.

KEVIN MCNULTY, U.S.D.J.:
Raymond Vargas 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 Supplemental Social Security Income (“S SI”) under Title
XVI of the Social Security Act, 42 U.S.C.

§ 401—434. For the reasons set forth

below, the decision of the Administrative Law Judge (“AU”) is AFFIRMED.
I.

BACKGROUND
Mr. Vargas seeks to reverse an AU’s finding that he was not disabled

from August 30, 2011, through August 2, 2013, the date of the AU’s decision.
(R. 28)’
Mr. Vargas applied for SSI on August 30, 2011,2 claiming that he was
disabled since June 2, 2011 due to injured knees and a lower back problem.

1

Pages of the administrative record (ECF no. 7) are cited as “R.
1

.“

(R. 53, 118) His application was denied initially on December 7, 2011 (R. 6771), and upon reconsideration on May 24, 2012 (R. 77—79). On August 2, 2013,
following a hearing at which Mr. Vargas testified and was represented by
counsel (R. 29—5 1), AU Richard West found that Vargas was not under a
“disability” as defined in the Social Security Act. (R. 2 1—28). On February 2,
2015, the Appeals Council denied Vargas’s request for review (R. 1—5),
rendering the AU’s decision the final decision of the Commissioner. Mr. Vargas
now appeals that decision.
II.

DISCUSSION
To be eligible for SSI benefits, a claimant must meet the income and

resource limitations of 42 U.S.C.

§ 1382. A claimant must also 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.

§ 1382c(a)(3)(A); see, e.g., Diaz v.

Comm’r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A.

Five-Step Process and this Court’s Standard of Review

Under the authority of the Social Security Act, the Social Security
Administration (the “Commissioner”) has established a five-step evaluation
process for determining whether a claimant is entitled to SSI benefits. 20
C.F.R.

§ 4 16.920. This Court’s 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:

Vargas’s Disability Determination and Transmittal forms date his application
filing to August 30, 2011. (R. 52, 59) However, the Application Summary sent to
Vargas states that he applied for SSI on September 7, 2011. (R. 118)
2

2

Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.

§

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.

§ 4 16.920(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 identi1r clear cases of disability without further analysis.) If so, the claimant
is automatically eligible to receive benefits; if not, move to step four. Id.

§

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

§ 416.920(e)—(f). If not, move to step five.
Step 5: At this point, the burden shifts to the Commissioner 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.

§ 4 16.920(g); see Poulos v. Comm’r

of Soc. Sec., 474 F.3d 88, 9 1—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. See
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
3

accept as adequate to support a conclusion.” Zimsak 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
omitted).
[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 (“[Wje 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

Commissioner’s decision, or it may remand the matter to the Commissioner for
a rehearing. Podedwomy v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’r of Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007) (not precedential).
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 Podedworny, 745 F.2d at 221—22. Remand is also proper
if the ALl’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119—20 (3d Cir. 2000). It is also proper to remand where
the AU’s findings are not the product of a complete review which “explicitly

4

weigh[s] all relevant, probative and available evidence” in the record. Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
The AU’s Decision

B.

AU

West properly followed the five-step process. His conclusions may be

summarized as follows.
Step 1

At step one, the AU determined that Mr. Vargas had not engaged in
substantial gainful activity in the relevant period. (R. 23

¶

1)

Step 2

found that Mr. Vargas had the following severe

At step two, the AU

impairments: “degenerative disc disease; osteoarthritis; and obesity” (R. 23

¶

2)

Step 3

At step three, the AU

determined that Mr. Vargas’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. 23

¶

3)
Step 4— RFC /Ability to Perform Past Work

At step four, “[a]fter careful consideration of the entire record,” the AU
found that Mr. Vargas has “the residual functional capacity to perform
sedentary work as defined in 20 CFR 4 16.967(a) except he cannot climb
ladders, ropes or scaffolds, cannot crawl and can perform all other postural
functions only occasionally.” (R. 24
past relevant work. (R. 27

¶

¶

4) The AU also found that Vargas has no

5)

Step 5

At step five, the AU considered Mr. Vargas’s “age, education, work
experience, and residual functional capacity” and the Medical-Vocational
Guidelines, and determined that Vargas could perform jobs that exist in
significant numbers in the national economy. (R. 27—28
5

¶

9) The ALl found

that Vargas’s additional limitations “had little or no effect on the occupational
base of sedentary work.” (R. 28)
Accordingly, AU West concluded that Mr. Vargas was not under a
disability, as defined in the Social Security Act, from August 30, 2011, through
August 2, 2013, the date of the AU’s decision. (R. 28
C.

¶

10)

Analysis of Mr. Vargas’s Appeal

Mr. Vargas challenges the AU’s determinations at steps three, four, and
five. At step three, Mr. Vargas argues, the AU

failed to consider Vargas’s

obesity individually and in combination with other impairments and generally
failed to consider the combined effect of all his impairments. (P1. Br. 11, 18—22)
At step four, Mr. Vargas argues, the AU did not properly support his RFC
decision—finding a capacity for sedentary work—with evidence that Mr. Vargas
can stand and/or walk for two hours each workday. (P1. Br. 22—27) At step five,
Mr. Vargas argues, the AU improperly relied on a Social Security Ruling and
did not consult a vocational expert or provide Vargas with an opportunity to
present his own vocational expert. (P1. Br. 27—34) Also at step five, Mr. Vargas
argues that the AU

failed to consider, as a borderline case, whether to

categorize Vargas as “approaching advanced age,” when Vargas was
approximately seven months too young to meet that age category’s criteria. (P1.
Br. 34—36)
Mr. Vargas requests that this Court reverse the AU’s decision or remand
the decision to the Commissioner for a new hearing and decision. Addressing
each of Vargas’s arguments in turn, I find that the AU’s findings do not
contain any errors of law or procedure, and they are supported by substantial
evidence. The AUJ’s decision will therefore be affirmed.
1.

The AU’s Step Three Analysis

The claimant bears the burden of proving that his impairments, whether
individually or collectively, equal or meet those listed in Appendix 1. However,
6

“if a claimant’s impairment does not match one listed in Appendix 1, the ALT is
required to perform a comparison between the claimant’s impairment(s) and
those listed in Appendix 1.” Ton-es v. Comm’r of Soc. Sec., 279 F. App’x 149,
15 1—52 (3d Cir. 2008); see also 20 C.F.R.

§ 416.926(b). The Third Circuit has

stated that step three requires the AU to perform “an analysis of whether and
why [the claimant’s individual impairments], or those impairments combined,
are or are not equivalent in severity to one of the listed impairments.” Burnett,
220 F.3d at 119. The ALT is “not require[d]

.

.

.

to use particular language or

adhere to a particular format in conducting his analysis”; rather, there must be
“a sufficient development of the record and explanation of findings to permit
meaningful review.” Jones, 364 F.3d at 505.
Mr. Vargas’s step three argument primarily asserts that his combined
impairments are the medical equivalent of Listings 1.02A, 1.04A, or 104C.

a)

SSR 02-Ip

-

Obesity

Obesity was removed as a “listed impairment” in 1999, but, as the Third
Circuit has recognized, “this did not eliminate obesity as a cause of disability.
To the contrary, the Commissioner promulgated [Social Security Ruling] OO—3p,
indicating how obesity is to be considered. This SSR replaced an automatic
designation of obesity as a Listed Impairment, based on a claimant’s height
and weight, with an individualized inquiry, focused on the combined effect of
obesity and other severe impairments afflicting the claimant.” Diaz v. Comm’r of
Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009) (citing SSR OO—3p, 65 Fed. Reg.
31039, 31040—42 (May 15, 2000)); see also Webster v. Astrue, 628 F.Supp.2d
1028, 1031 (S.D. Iowa 2009) (explaining “This SSR points out that obesity is a
life long impairment, and that although the obesity listing was deleted, the
impairment requires special consideration in the evaluation of a disability
claim,” and, on remand, directing “both the ALT and counsel.

.

.

ruling carefully, and then apply it to the facts of Plaintiffs case”).
7

to read this

OO—3p was superseded by SSR O2—lp,

In 2002, SSR

67 Fed. Reg. 57859—

02 (Sept. 12, 2002), but SSR 02—ip did not materially amend SSR OO—3p, see
Diaz, 577 F.3d at 503, so I may rely on prior precedent and interpretations.
SSR 02—ip provides the following guidance:
[W]e consider obesity to be a medically determinable impairment
and remind adjudicators to consider its effects when evaluating
disability. The provisions also remind adjudicators that the
combined effects of obesity with other impairments can be greater
than the effects of each of the impairments considered separately.
They also instruct adjudicators to consider the effects of obesity
not only under the listings but also when assessing a claim at
other steps of the sequential evaluation process, including when
assessing an individual’s residual functional capacity.
Because there is no listing for obesity, we will find that an
individual with obesity “meets” the requirements of a listing if he or
she has another impairment that, by itself, meets the requirements
of a listing. We will also find that a listing is met if there is an
impairment that, in combination with obesity, meets the
requirements of a listing.
For example, when evaluating
impairments under mental disorder listings 12.05C, 1 12.05D, or
satisfies the criteria in listing
1 12.05F, obesity that is “severe,”
12.05C for a physical impairment imposing an additional and
significant work-related limitation of function and in listings
1 12.05D and 1 12.05F for a physical impairment imposing an
additional and significant limitation of function.
We may also
find that obesity, by itself, is medically equivalent to a listed
impairment.
We will also find equivalence if an individual has
multiple impairments, including obesity, no one of which meets or
equals the requirements of a listing, but the combination of
impairments is equivalent in severity to a listed impairment.
.

.

.

...

.

.

.

.

.

.

Social Security Ruling, SSR O2—lp; Titles II and XVI: Evaluation of Obesity, 67
FR 57859—02. In Diaz, the Third Circuit, citing SSR O2—lp, confirmed that “an
AU

must meaningfully consider the effects of a claimant’s obesity, individually

and in combination with her impairments, on her workplace function at step
three and at every subsequent step.” Diaz, 577 F.3d at 504 (remanding where
the AU acknowledged that claimant’s obesity was a severe impairment at step
8

two, but failed to consider its impact, in combination with claimant’s other
impairments, at step three “as required”).
Mr. Vargas stands about 5’ 9” and weighed approximately 235 pounds at
the time of his hearing before the AU on July 12, 2013. (R. 36) However, it
appears that Mr. Vargas’s weight has fluctuated over the course of the
proceedings. At the time of Dr. Potashnik’s examination on November 30, 2011,
Vargas weighed only 178 pounds. (R. 285) In his brief, Vargas states that he
weighs 220 pounds. (P1. Br. 20)
Mr. Vargas argues that the AU did not sufficiently consider obesity on
its own at step three. (P1. Br. 11) I disagree. Pursuant to SSR O2-lp, the AU
considered this impairment and found that Vargas’s obesity was not “attended
with the specific clinical signs and diagnostic findings required to meet or equal
the requirements set forth in the listings found in any musculoskeletal,
respiratory, or cardiovascular body system listing affected by obesity.” (R. 23)
Although this analysis is rather brief, it is appropriate given the absence of any
medical evidence in the record indicating that Mr. Vargas’s obesity has affected
his functioning in any way. Further, Vargas points to none. Therefore, the
3
AU’s analysis of Mr. Vargas’s obesity on its own is supported by substantial
evidence.
I now proceed to discuss whether the combination of Vargas’s
impairments, including obesity, meet or medically equal a listing.
b)

The Combination of Mr. Vargas’s Impairments

Mr. Vargas further argues that the AU

did not properly consider whether

the combination of his impairments was equivalent in severity to one of the

Vargas also argues that the AUJ failed to consider the effects of Vargas’s obesity
at steps four and five. (P1. Br. 16) The AU’s decision does not mention obesity at steps
four and five. However, even if the AU did fail to consider Vargas’s obesity at those
later steps, it would not change the outcome because there is no medical evidence in
the record that Vargas’s obesity impairs his functioning.
9

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (P1. Br. 21) In
particular, Vargas alleges procedural error, arguing that the AU failed to
consider whether the combination of his degenerative disc disease (of both
lumbar and cervical discs), knee conditions, and obesity matched the severity
of Listings 1.02 or 1.04. (Id. at 19—21) He further contends that he has
demonstrated a “valid evidence-based argument” that the combined
impairments medically equal a listing. (Id. at 21) I disagree as to both
arguments.
The AU

stated that “the claimant does not have an impairment or

combination of impairments that meets or medically equals the severity of one
of the listed impairments.” (R. 23) I see no reason to doubt that he considered
the combination of impairments. Although the AU performed his most detailed
analysis of the evidence in connection with the RFC, that evidence sheds light
on Mr. Vargas’s step three claims. Indeed, in the context of the RFC
determination, AU West thoroughly considered the objective medical evidence,
medical opinion evidence, and Mr. Vargas’s subjective complaints to assess the
nature and extent of the functional limitations imposed by Vargas’s combined
impairments. (R. 24—27) Thus, assessing the record as a whole, I am satisfied
that the AU did consider Mr. Vargas’s impairments in combination, including
the combination of his degenerative disc disease, knee conditions, and obesity,
and found that no combination matched the severity of a listed impairment.
I further find that the AU’s conclusion is supported by substantial
evidence. Mr. Vargas’s arguments that his combined impairments medically
equal Listings 1.02A, 1.04A, and/or 1.04C are unpersuasive. The arguments as
to 1.02A and 1.04C fail because the AU determined—supported by substantial
evidence—that no evidence supported a finding of Vargas’s alleged inability to
ambulate effectively. The argument as to 1 .04A fails because the AU also
properly determined that there is no evidence that Mr. Vargas has persistent
10

motor, sensory or reflex loss, or a positive sitting and supine straight leg
raising test.
(1)

Equivalence to Listings 1.02A and 1.04C

Listings 1 .02A and 1 .04C both require an “inability to ambulate
4
5
effectively, as defined in 1.00.B2b.” 20 C.F.R. Pt. 404, Subpt. P, App. 1. The
AU

determined that the evidence would not support a finding that Vargas is

unable to ambulate effectively. (R. 23)
An inability to ambulate effectively “is defined generally as having
insufficient lower extremity functioning.

.

.

to permit independent ambulation

without the use of a hand-held assistive device(s) that limits the functioning of
both upper extremities.” Id. at

§ 1.OOB2b (emphasis added) Further:

To ambulate effectively, individuals must be capable of sustaining
a reasonable walking pace over a sufficient distance to be able to
carry out activities of daily living. They must have the ability to
travel without companion assistance to and from a place of
employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk
without the use of a walker, two crutches or two canes, the
inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a
reasonable pace with the use of a single hand rail.

A disability under Listing 1 .02A requires that the claimant suffer a major joint
dysfunction involving “one major peripheral weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate effectively, as defmed in 1.OOB2b.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 1.02.

4

A disability under Listing 1 .04C requires that the claimant suffer a disorder of
the spine, particularly
Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1 .OOB2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04.
11

Id.
Mr. Vargas repeatedly acknowledges that he does not meet the

§ 1 .OOB2b

general definition because his need for a single cane to independently ambulate
limits the functioning of only one upper extremity. (P1. Br. 19—20) Nevertheless,
he contends that he is unable to ambulate effectively. (See P1. Br. 18 (“[Mr.
Vargas] does indeed manifest ‘an inability to ambulate effectively.”))
Regardless, AU West’s determination that Vargas has not proven an
inability to ambulate effectively is supported by substantial evidence. The only
medical opinion related to Vargas’s ability to walk a block at a reasonable pace
is that of consultative examining physician Dr. Potashnik. On November 30,
2011, Dr. Potashnik found that Vargas was able, more or less

(“±“),

to walk at a

reasonable pace, and, using the cane, he is able to walk one block. (R. 287)
Further, in both function reports, Vargas self-reported that he was able to use
public transportation. (R. 154, 170) In his October 2011 function report,
Vargas stated that he is generally able to go out alone and that he shops for
food on his own. (R. 154) Although he later reported in March 2012 that he
“very rarely” goes out alone when he cannot find someone to accompany him
and that he has a friend do food shopping for him (R. 170), the AU, based on
substantial evidence described more fully below in Part II.C.2, did not fully
credit Mr. Vargas’s subjective reports of the severity of his impairment. (R. 26)
In sum, the AU’s finding that Vargas has not proven an inability to
ambulate effectively is supported by substantial evidence. Thus, Vargas does
not meet the criteria for Listings 1.02A and 1.04C.
Nevertheless, Mr. Vargas argues that his obesity-related extra body
weight compounds his knee and back injuries and that it “goes without saying
that [under excessive body weight] an already diseased, partially destroyed and
splintering join will become more so, disintegrate further and ultimately
collapse.” (P1. Br. 20) Although it is reasonable enough to conclude that an
increase in body weight increases the stress on one’s knees, Mr. Vargas cites
12

no evidence in support of his medical speculation as to the effect obesity is
likely to have on his joints. More importantly, because substantial evidence
supports the AU’s determination that the record does not currently establish
an inability to ambulate effectively, the combination of impairments has no
effect on this bottom-line functional assessment. As a result, the limiting
symptoms of Mr. Vargas’s combined impairments do not equal the severity of
Listings 1.02A and 1.04C.
(2)

Equivalence to Listing 1.04A

To render a person disabled under Listing 1 .04A, a spinal disorder must

result in compromise of a nerve root or the spinal cord with evidence of nerve
root compression, limitation of motion of the spine, motor loss accompanied by
sensory reflex loss, and (for the lower back) positive straight-leg raising test. 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04.
Mr. Vargas’s argument for medical equivalence to Listing 1 .04A is
somewhat enigmatic. In cataloging his impairments that allegedly medically
equal a listing when considered in combination, he asserts that he has
“restrictions with regard to the cervical aspect of 1.04A.” (P1. Br. 21)
AU

West found that this listing was not met “because there is no

evidence of persistent motor, sensory or reflex loss, [or] of sitting and supine
straight leg raising.” (R. 23) That determination is supported by substantial
evidence. Dr. Potashnik’s cervical spine examination “revealed no tenderness
on palpation” and the range of motion was “functional in all planes.” (R. 286)
Vargas’s functional range of motion in all planes negates the “limitation of
motion of the spine” requirement as it relates to his cervical spine. As for
Vargas’s lower back, Dr. Potashnik’s lumbar spine examination produced
negative straight-leg raising test results in both legs. (R. 25, 286)
At this step, it is Mr. Vargas’s burden to prove that his impairments,
whether individually or collectively, equal or meet a listing. A vague
unsupported reference to “cervical” restrictions does not carry that burden.
13

2.

The AU’s RFC Evaluation

Residual functional capacity is an assessment of the most a claimant
can do despite his impairments. See 20 C.F.R.

§ 404.1545. To determine a

claimant’s RFC, an AU must engage in a two-step process: first, consider all of
a claimant’s symptoms which can reasonably be accepted as consistent with
the objective medical evidence, and second, determine how those symptoms
affect the claimant’s ability to work. 20 C.F.R.

§ 404.1529. Here, AU West

determined that Vargas had the residual functional capacity to “perform
sedentary work” with additional limitations. (R. 24)
To perform sedentary work, a claimant must generally be able to stand
and/or walk for two hours in an eight-hour workday. Mr. Vargas argues that
6
the AU erred in finding that he is able to perform sedentary work because, he
contends, the evidence shows that he cannot stand and/or walk for two hours
each workday.
I find that the AU

sufficiently analyzed the evidence in the record and

explained his RFC findings—including his implicit finding as to Vargas’s ability
to stand and/or walk—which are supported by substantial evidence. In
determining the claimant’s RFC, the AU

considered the entire record,

including Vargas’s testimony, the reports of Drs. Francis Pflum and Rashel
Potashnik, and Vargas’s medical records from Union County Jail and Lafayette
Street Chiropractic Center. (R. 24—27) The AU analyzed the evidence from each

6

As the Commissioner has explained:
Although a sedentary job is defined as one that involves sitting, a certain
amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met. Occasionally” means
occurring from very little up to one-third of the time, and would generally
total no more than about 2 hours of an 8-hour workday. Sitting would
generally total about 6 hours of an 8-hour workday.

(SSR 96-9p)
14

of these sources and explained the weight he gave to each, commensurate with
7
its supportability and consistency with the record as a whole. (R. 24-27)
First, I will summarize the evidence related to Mr. Vargas’s ability to
stand and walk during the workday. Then, I will address Vargas’s specific
arguments that the AU erred.
a)

Evidence of Mr. Vargas’s Ability to Stand/Walk

In September 2008, Mr. Vargas suffered injuries to his lower back and
both knees in a motor vehicle accident. (R. 24, 198) In October 2008, Vargas
was seen by Dr. Francis A. Pflum for symptoms including an inability to walk
without significant pain, right-side limp, and swelling and “clicks and locks” in
the right knee. (R. 25, 194, 198) In November 2008, an MRI of Vargas’s right
knee showed a medial meniscus tear, a popliteal cyst, joint effusion, two
osteochondral fractures, and a probable bone contusion. (R. 196)
For his back pain, Vargas underwent a series of chiropractic
manipulations under anesthesia (“MUA”) conducted by Dr. Jesse Burrini in
January 2009. He continued to be treated by Dr. Burrini at Lafayette Street
Chiropractic Center for lower back pain that radiated to other parts of his body,
including the lower extremities. (R. 231—60) In September 2008, Vargas
reported to Dr. Burrini that he was in constant pain and described its severity
as 10/10 with 10 representing the most severe pain. (R. 260) However, by
March 23, 2009, his pain was “mild and occasional” and had reduced to a 2 or
3/10, and Dr. Burrini terminated Vargas’s treatment plan. (R. 23 1—34)
By November 18, 2009, treatment notes from Union County Jail indicate
that despite pain, slight swelling, and slightly positive Lachman’s sign in the
knee, Vargas’s knee condition had improved since his injury and he was able to
The ALl found that Vargas’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimants
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.”
15

perform a deep knee bend. (R. 212) An examination on December 9, 2009
found that Lachman signs were negative and Vargas reported much improved
comfort after taking Naprosyn. (R. 212) Vargas reports that he underwent
arthroscopic surgery on his right knee sometime in 2009. (R. 32—33, 284) He
has not received medical treatment for his knees since 2009.8
Mr. Vargas applied for SSI benefits on August 30, 2011. Then, on
October 16, 2011, Mr. Vargas completed a function report for the
Commissioner. He stated that he goes outside daily, walking and using public
transportation. (R. 153-54) He is able to go out alone. (R. 154) Vargas also
reported that he experiences pain “if standing for [a] period of time,” and that
he is able to walk for five to ten minutes at a time, then needs to rest for fifteen
to twenty minutes before resuming. (R. 156) He noted that he uses a cane, a
brace/splint, and a back brace, all prescribed by a doctor in 2008 after the
motor vehicle accident. (R. 157) He is able to go food shopping in stores; he
reports that shopping takes ten minutes. (R. 154)
On November 30, 2011, at Commissioner’s request, Vargas underwent
an orthopedic consultative examination conducted by Dr. Rashel Potashnik. (R.
284—287) Vargas presented with complaints of pain in his lower back and both
knees, with the right knee in greater pain than the left. (R. 284) He also
complained of an inability to “stand too long,

.

.

.

walk long distances,” or “bend

down.” (Id.) Dr. Potashnik’s examination revealed that Vargas’s left knee was
tender but had both normal strength and normal range of motion (“ROM”). (fri.
285) Vargas’s right knee was “deformed, swollen, and diffusely tender,” with an
ROM of 10-120 degrees “with pain and crepitus on ROM and on valgus and
varus stress.” (Id.) The right knee’s strength was 4/5. Vargas’s “[h]ips and
ankles exam was within normal limits,” the sensory exam was normal, and

Mr. Vargas explains that he cannot afford treatment; he does not have
insurance, and he was denied Medicaid. (R. 48—49)
8

16

Vargas’s muscle strength reflexes were normal at the knees and ankles. (Id.) In
sum, the “[elxamination revealed right knee deformity, flexion contracture,
weakness, [and] antalgic limp.” (IcL) As a result, Dr. Potashnik concluded that
Vargas “is limited in activities requiring prolonged weight bearing, kneeling,
squatting, climbing ladders, crouching, Fandi crawling.” (Id.)
Dr. Potashnik also completed a state agency form requiring information
about a claimant’s use of a hand-held assistive device. (R. 287) She noted that
Vargas was able, more or less

(“±“),

to walk at a reasonable pace. (Id.) Vargas

always uses a non-prescribed cane for support while both walking and
9
standing. (Id.) Using the cane, he is able to walk one block. (IcL)
On December 7, 2011, Dr. Deogracias Bustos, a state agency physician
consultant involved in the initial disability determination, found that Mr.
Vargas was able to stand and/or walk (with normal breaks) for a total of two
hours and sit (with normal breaks) for a total of about six hours in an eighthour workday. (R. 56)
On March 27, 2012, several months after the initial denial of benefits,
Mr. Vargas completed a second function report. (R. 167— 74) At that time, he
reported that his “condition” and “ability to do any activities” was “getting
progressively worse.” (R. 171) Standing “severely hurts” his knees and back,
and that he can walk only a short block before requiring a ten-minute rest. (R.
172) He cannot prepare his own meals because his knees give out if he stands
for too long. (R. 169) Weather permitting, he goes outside to sit on a bench
across the street, and he travels in cars and uses public transportation. (R.
169—170) He tries to get someone to accompany him outside, but when he is
unable to get help he will “very rarely” go out alone. (R. 170) He has friends

Mr. Vargas contends that the cane was prescribed, and Dr. Potashnik was
mistaken in saying otherwise. (R. 34, 40)
9

17

take care of his food shopping. (Id.) He keeps his legs elevated while sitting at
home watching TV. (R. 171)
Also on March 27, 2012, Mr. Vargas’s close friend, Godofredo Perez,
completed a third-party function report. According to Mr. Perez, Vargas is
unable to “get his legs comfortable because of pain.” (R. 160) He does not
prepare his own meals because “standing for long periods of time” causes him
pain. (R. 161) Sitting for long periods of time also causes him pain. (R. 164) Mr.
Vargas goes outside five days per week traveling by car, public transportation,
or walking. (R. 162) He walks slowly and with a limp, and he cannot run or
play sports. (R. 164) He is able to walk for fifteen minutes, then requiring a ten
to fifteen minute rest before resuming. (Id.)
At the hearing before the AU on July 12, 2013, Mr. Vargas testified that
walking worsens the pain in his right knee and that he could walk a short
block—but not a long block—without stopping. (R. 41) He always uses a cane
to walk, both inside and outside his home. (R. 41—42) At times his knee locks
up and he must wait and massage it for it to improve. (Id.) He is able to stand
only five or ten minutes before his knee “starts

.

.

.

acting up” and his back

muscles tighten, which is an “uncomfortable feeling.” (R. 42—43) Vargas also
testified that he has difficulty sitting down; he sometimes needs to stand up
and, when seated, his leg must be laid out straight. (R. 43) He spends much of
his time at home in the living room watching TV with his leg elevated. (R. 45—
46) He treats his pain with over-the-counter painkillers, Tylenol and Tylenol
PM. (R. 47)
The AU

properly considered and balanced all of the foregoing evidence.’
0

(R. 24—27)

Although the AUJ does not explicitly cite Mr. Vargas’s self-reported function
reports or the third-party function report by Mr. Perez, he recites facts about Mr.
Vargas’s subjective complaints that indicate he has reviewed those sources.
10

18

b)

Mr. Vargas’s Arguments for AU Error In

Evaluating His Ability to Stand/Walk
Mr. Vargas now argues, on two grounds, that the AU

erred in finding

that he is able to do sedentary work, which requires that he stand and/or walk
for a total of at least two hours in an eight-hour workday. (P1. Br. 24—27) First,
Vargas contends that the record contains a medical opinion that he cannot
stand and/or walk for at least two hours, and there is no opinion to the
contrary. (IcL at 24) Second, Vargas argues that the AU’s RFC determination
lacked the specific evidentiary calculus necessary for effective judicial review.
(Id.) Thus, Vargas argues, the portion of the RFC finding that Vargas can walk
and/or stand for two hours in a workday is not supported by substantial
evidence. (Id. at 26—27)
First, Vargas argues that the Commissioner’s consultative examiner, Dr.
Potashnik, opined that Vargas cannot stand and/or walk for two hours in a
workday. (Id. at 24) Vargas’s assertion turns out to be an extrapolation from
Dr. Potashnik’s note that Vargas is precluded from “prolonged weight bearing.”
(Id. (citing R. 285)) However, Dr. Potashnik’s narrow conclusion—that Vargas is
unable to bear heavy objects for a prolonged period—simply does not carry the
expansive meaning that Vargas attributes to it. “Prolonged weight bearing” is
not at all the same thing as standing or walking. Undoubtedly, if Dr. Potashnik
had concluded that there was a severe limitation on Vargas’s ability to stand or
walk, she would have simply said so.
Relatedly, Vargas contends that there is no medical opinion in the record
that affirmatively states that he can stand and/or walk for two hours. (P1. Br.
24—2 5) This argument improperly places the burden of proof on the
Commissioner in determining the RFC. It is true that the AUJ must consider all
relevant evidence in determining the RFC. Fargnoli v. Massanari, 247 F.3d 34,
41 (3d Cir. 2001) (citing 20 C.F.R.

§ 404.1545(a)). However, the plaintiff retains

the burden of supporting his alleged RFC limitations. Bowen v. Yuckert, 482
19

U.s. 137, 146, 107 S. Ct. 2287, 2294, 96 L. Ed. 2d 119 (1987); see also 20

C.F.R. § 404.1545(a) (“In general, you [the plaintiff are responsible for
providing the evidence we will use to make a finding about your residual
functional capacity.”). Therefore, it is Vargas’s burden—not the
Commissioner’s—to support his allegation that he is unable to stand and/or
walk for two hours. There is no medical evidence to support Vargas’s assertion;
the only support derives from Vargas’s subjective complaints and the third—
party function report completed by his close friend. Seeing no medical
corroboration, the ALJ was entitled to give such subjective complaints
(considerably enhanced after the initial denial) little weight.
Second, Vargas argues that the

ALAJ

failed to accompany the RFC

assessment with “specific references to evidence of record in support of
assessed limitations.” (P1. Br. 24) (citing 20 C.F.R. § 404.1545; SSR 85-16; SSR
96-8p) This argument too lacks merit. AU West adequately supported his RFC
assessment with a discussion of the evidence and an explanation for his
finding that the severity of Vargas’s subjective complaints was not entirely
credible. In the AU’s words:
While it is clear from the record that the claimant is limited in his
ability to perform strenuous exertional activity, which I have
assessed herein, the claimant’s allegations of complete inability to
work due to pain and other limiting symptoms are not entirely
supported by the record as a whole. In ascertaining the claimant’s
residual functional capacity and evaluating the credibility of his
orthopedic-impairment-related subjective complaints, the medical
record reveals some anatomical and physiological pathology in the
upper and lower extremities. However, the severity of the
claimant’s subjective complaints is not supported by the objective
clinical and diagnostic test findings. The claimant has been
diagnosed with degenerative disc disease and osteoarthritis.
However, the claimant’s statements concerning his impairments
and their impact on his ability to work are not persuasive in light
of the reports of treating and examining practitioners.

20

(R. 26) AU West then proceeded to discuss the objective medical evidence
demonstrating a substantial reduction in Vargas’s pain and improvement in
symptoms related to his back and knee injuries. (Id.) (citing Ex. 3F; Ex. 4F) He
also considered Dr. Potashnik’s medical opinion and observed that her
assessment of Vargas’s limitations is consistent with the RFC determination.
(R. 26—27) He also notes that none of the evidence from Vargas’s treating
physicians indicate that Vargas is totally disabled or subject to limitations
greater than determined in the AU’s RFC assessment. (R. 27) Finally, the AU
mentions that his RFC assessment is supported by the opinions of the State
agency medical consultants, whose opinions are not controlling, but
nevertheless must be considered as expert opinion evidence of nonexamining
sources.” (Id.) (citing SSR 96-6p)
In sum, AU West’s decision adequately indicates the basis for his
determination, and the record as a whole supports his conclusion as to Mr.
Vargas’s RFC. The RFC is thus supported by substantial evidence.
3.

The AU’s Step Five Analysis
a)

Absence of Vocational Expert Testimony

Mr. Vargas argues that the AU

failed to support his step five

determination with evidence from a vocational expert. (P1. Br. 27—34)
Alternatively, the AU did not provide advance notice of his intent to rely on a
Social Security Ruling (“SSR”) in lieu of a vocational expert, thereby denying
Vargas an opportunity to present his own vocational expert. (P1. Br. 27—34) I
hold that because SSR 96-9p directly applies to Vargas’s nonexertional
limitations, the AU’s reliance on SSR 96-9p as additional evidence was
permissible, even without advance notice.

AU West notes that although he agrees with State agency consultants’
conclusion that Vargas is not disabled, he does find that Vargas’s limitations are
greater than those determined by the consultants. (R. 27)
11

21

At step five, the Commissioner bears the burden of showing that the
claimant can perform work which exists in the national economy, in light of his
age, education, work experience, and RFC. 20 C.F.R.

§ 404.1520(a)(4)(v). That

analysis may depend on whether the claimant has only exertional limitations,
or has nonexertional limitations. Exertional limitations are impairment-caused
limitations that affect a claimant’s ability to meet the strength demands of a
job: sitting, standing, walking, lifting, carrying, pushing, and pulling. See 20
C.F.R.

§ 404. 1569a(b); SSR 96-9p. Nonexertional limitations are impairment-

caused limitations that affect a claimant’s ability to meet the other demands of
a job, including mental capabilities; vision and hearing; postural functions
such as climbing, balancing, stooping, kneeling, crouching, crawling, reaching,
handling, fingering, and feeling; and environmental restrictions. See 20 C.F.R.

§ 404. 1569a(c)(l)(i-vi); SSR 96-9p.
Where a claimant has only exertional limitations, the Commissioner may
use the Medical-Vocational Rules to determine whether such work exists. The
Medical-Vocational Rules set forth tables, or grids, with various combinations
of age, education, work experience and RFC, and direct a finding of disabled or
not disabled for each combination. See 20 C.F.R. Part 404, Subpt. P, App. 2.
An AU “may rely on these grids to establish that jobs exist in the national
economy that a person with the claimant’s exertional limitations could
2
perform.” Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). However, this
applies only to exertional limitations; where the claimant has nonexertional
limitations, the grids provide only a framework, and the AU

must consider

12
Mr. Vargas also argues that because he allegedly cannot walk and/or stand for
two hours in a workday, he does not meet the minimum exertional demands of
sedentary work and, therefore, a disability determination cannot be made by
application of the Medical-Vocational Rules grids. (P1. Br. 33) This argument
essentially rehashes his attack on the RFC finding, a contention I have already denied.
I hold that, since the AU’s RFC determination was supported by substantial evidence,
his Step 5 determination could permissibly be built upon it.

22

additional evidence to determine whether there are jobs in the national
economy that someone with the claimant’s combination of impairments could
perform. Id. at 270; see also Allen v. Barnhart, 417 F.3d 396, 404 (3d Cir.
2005).
Where a claimant has nonexertional impairments, an AU

is permitted to

rely on Social Security Rulings as the additional evidence required under Sykes
v. Apfel; such SSRs, if directly applicable, may be a permissible substitute for
the testimony of a vocational expert. See Allen, 417 F.3d at 406 (“While, surely,
the Agency can use its rules as a substitute for individualized determination,
nonetheless, there must be a ‘fit’ between the facts of a given case, namely, the
specific nonexertional impairments, and the way in which the Rule dictates
that such nonexertional limitations impact the base.”). But “it must be crystalclear that the SSR is probative as to the way in which the nonexertional
limitations impact the ability to work,” and the AU

must discuss this. Id., at

407.
Here the AU

cited to SSR 96-9p as additional evidence supporting the

grid recommendation. (R. 27—28) SSR 96 specifically says that “[p]ostural
p
9
limitations or restrictions related to such activities as climbing ladders, ropes,
or scaffolds, balancing, kneeling, crouching, or crawling would not usually
erode the occupational base for a full range of unskilled sedentary work
significantly.” SSR 96-9p. It also says that an ability to stoop and balance
occasionally is required for most unskilled sedentary occupations. Id.
The AU

specifically agreed with Dr. Potashnik’s assertion that Vargas “is

limited in activities requiring prolonged weight bearing, kneeling, squatting,
climbing ladders,’ crouching, [and] crawling.” (R. 27) AU West also found that
3
Vargas was limited to “occasional climbing [of] ramps and stairs, balancing,

In addition to limitations on climbing ladders, AU West added “climbing...
ropes or scaffolds.” (R. 24)
13

23

[andj stooping.” (R. 24) Then, explicitly citing SSR 96-9p, the AU concluded
4
that:
the additional limitations have little or no effect on the
occupational base of unskilled sedentary work. Postural limitations
or restrictions related to such activities as climbing ladders, ropes,
or scaffolds, balancing, kneeling, crouching, or crawling would not
usually erode the occupational base for a full range of unskilled
sedentary work significantly because those activities are not
usually required in sedentary work.
(R. 28) Here, given the “fit” between Vargas’s additional nonexertional
limitations and the way in which SSR 96-9p evaluates those limitations’ impact
on the sedentary occupational base, SSR 96-9p is a permissible substitute for
the testimony of a vocational expert. See Allen, 417 F.3d at 406.
Vargas also contends that the AU failed to give advance notice of his
intention to rely on the SSR. (P1. Br. 33) Although the Third Circuit has
“urge[d]” that it is always appropriate, “as a matter of fairness,” to notify the
claimant in advance, such notice is not required in every case. Allen, 417 F.3d
407. Where advance notice is absent, “it [is] only appropriate” for a court “to
give close scrutiny to the AU’s reliance on a Ruling.” Id.; see also Breslin v.
Comm’r of Soc. Sec., 509 F. App’x 149, 155 (3d Cir. 2013) (notice was not
required where the “the Rulings the AU relied upon

.

.

.

applied directly to [the

claimant’sl non-exertional impairments.”) Here, I find that the AU’s reliance on
SSR 96-9p passes close scrutiny because that Ruling applies directly to
Vargas’s nonexertional limitations.
Thus the AU

properly relied on SSR 96-9p as additional evidence for

using the grid as a framework in conducting step five for a claimant with
exertional and nonexertional limitations under Allen.

Mr. Vargas alleges that the AU purposefully constructed Vargas’s RFC to
include only nonexertional limitations that would allow him to rely on SSR 96-9p, so
as to avoid the use of a vocational expert. (P1 Br. 24, 33) The fact that AU West found
more limitations than did Dr. Potashnik undermines this uncharitable accusation.
14

24

b)

Application of Age Categories In Borderline

Situations
Finally, Vargas argues that because he was just over seven months shy
of his fiftieth birthday at the time of the AU’s decision,’ he falls on the
5
borderline between two age categories under the Commissioner’s regulations
(the “approaching advanced age” category is defined as age 50-54). (P1. Br. 34—
35) In borderline situations, the AU

must consider whether to use the higher

age category when doing so would change the claimant’s status to “disabled.”
(20 C.F.R.

§ 4 16.963) Pursuant to the Commissioner’s regulations, the

Commissioner
will not apply the age categories mechanically in a borderline
situation. If you are within a few days to a few months of reaching
an older age category, and using the older age category would
result in a determination or decision that you are disabled, we will
consider whether to use the older age category after evaluating the
overall impact of all the factors of your case.
20 C.F.R.

§ 4 16.963. Here, Vargas contends, the AU erred by “mechanically”

applying the age categories instead of considering whether the older age
category would have been appropriate under the circumstances. Had the AU
applied the “approaching advanced age” category, the Medical-Vocational Rules
would have directed a finding that Vargas was disabled in light of his education
and previous work experience. 20 C.F.R.

§ Pt. 404, Subpt. P, App. 2, Rule

201.09.
The question then is whether seven months constitutes “a few days to a
few months” prior to “an older age category.” The Third Circuit has not
established a bright line rule to determine outer limits of the “borderline.”
However, in a non-precedential opinion, the Third Circuit held that five to six

Mr. Vargas was born on March 9, 1964, and he turned 50 years old on March 9,
2014. The AU issued his decision on August 2, 2013, just over seven months before
Vargas’s fiftieth birthday.
15

25

months prior to a claimant’s fiftieth birthday is not a borderline situation.
Roberts v. Bamhart, 139 F. App’x 418, 420 (3d Cir. 2005). Despite this non
binding precedent, more recent district court decisions within this circuit have
disagreed as to whether seven months is borderline. Compare Marshall v.
Colvin, No. CIV.A. 13-2411, 2015 WL 1412103, at*5 (W.D. Pa. Mar. 26, 2015)
(seven months is not borderline), with Istik v. Astrue, No. 02: 07CV1468, 2009
WL 382503, at *5 (W.D. Pa. Feb. 13, 2009) (seven months is borderline).
I am not persuaded that seven months prior to a transition-in-age
category is a borderline situation. Non-precedential as the Roberts holding may
be, the text of the regulation supports it. Although the term “a few months”
may be intentionally vague, a “few” does not usually mean as many as seven,
and the preceding alternative phrase “a few days” suggests that the court
should round downward, not upward. If the Commission were thinking in
terms of periods exceeding a half year, there would be no need to refer to a
“few” months, let alone a “few days,” at all.
Vargas’s argument is unpersuasive. AU West did not err by failing to
consider whether to categorize Mr. Vargas as “approaching advanced age” in
the step five application of the Medical-Vocational Rules grids.
III.

CONCLUSION
The AU’s denial of Vargas’s claims for SSI contains no errors of law and

is supported by substantial evidence. It is therefore AFFIRMED. An appropriate
order accompanies this Opinion.
Dated: January 11 2017

KEVIN MCNULTY
United States District Ju

26