MELENDEZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
13
OPINION. Signed by Judge Kevin McNulty on 15-3209. (JB, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 15 -3209 (KM)
RAFAEL MELENDEZ,
Plaintiff,
OPINION
V.
CAROL W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Rafael Melendez, 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 Social Security Disability Insurance
benefits (“SSDI”) and Supplemental Security Income (SSI). His application, filed
on December 13, 2011, alleged a period of disability beginning on April 15,
2009. The claimed impairments were liver problems, Arthiritis, depression,
hepatitis C, high blood pressure, and suicidal behavior. (Administrative Record,
ECF No. 7 (“R
_“)
18, 182) His applications were denied initially and on
reconsideration. (R 109, 118) On September 11, 2013, AU
Donna Krappa
conducted a hearing, at which Melendez was represented by counsel. (R 31) On
September 25, 2013, AU
Krappa issued a written decision finding that
Melendez was not disabled under the SSA. (R 12) The Appeals Council denied
review, rendering the AU’s decision the final decision of th ommIss1oner. (R
1—9)
--QiMay7,20L5Me1endezfl1edthisantionseekingreviewofthe.
Commissioner’s decision. He asserts (a) that his liver disease is a severe
1
impairment; (b) that the AU improperly relied on substance abuse in
dismissing his claims of mental impairment; and (c) that his residual
functional capacity (RFC) determination was not based on substantial
evidence. For the reasons stated herein, I will remand the case, directing a
finding of severity at step two regarding hepatitis C, but otherwise leaving the
issues open for the ALl’s determination.
I. Five-Step Process and This Court’s Standard of Review
Review necessarily incorporates a determination of whether the AU
properly followed the five-step process prescribed by regulation. The steps may
be briefly summarized as follows:
STEP 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 CFR §
404.1520(b), 416,920(b). If not, move to step two.
STEP 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id. § 404.1520(c),
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
CFR Part 404, Subpart P, Appendix 1, Part A. If so, the claimant is
automatically eligible to receive benefits; if not, move to step four.
Id. § 404.1520(d), 4 16.920(d).
STEP 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform
past relevant work. Id. § 404.1520(e)-(f), 416.920(e)-(f). If not, move to
step five.
STEP 5: The burden shifts to the SSA to demonstrate that the
claimant, considering his or her age, education, work experience,
capable&rforming-jobsthatex4stift-s4gn4fieant—-—-—
numbers in the national economy. 20 CFR § 404.1520(g),
2
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, my review is plenary.’ As to factual findings, I will
adhere to the AU’s findings, as long as they are supported by substantial
2
evidence. For disputed findings, I will “determine whether the administrative
3
record contains substantial evidence supporting the findings.” Substantial
evidence “means such relevant evidence as a reasonable mind might accept as
4
adequate to support a conclusion.” That is “less than a preponderance of the
5
evidence but more than a mere scintilla.”
I may, under 42 U.S.C.
§ 405(g), affirm, modify, or reverse the Secretary’s
6
decision, with or without a remand to the Secretary for a rehearing. Outright
reversal with an award of benefits is appropriate only when a fully developed
administrative
record
contains
substantial
evidence
indicating
that
the
7
claimant is disabled and entitled to benefits. Remand is proper if the record is
incomplete, or if there is a lack of substantial evidence to support a definitive
8
finding on one or more steps of the five step inquiry. Remand is also proper if
the AU’s decision lacks adequate reasoning or support for its conclusions, or if
9
it contains illogical or contradictory findings. It is also proper to remand where
1
2
See Schaudeck v. Comm’rof Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999).
Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. § 405(g)).
Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
Id.
Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted).
6
PodecZworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes
Commissioner, 235 F. App’5c 853, 865-66 (3d Cir. 2007).
5
v.
F.3d 31U, 320 (3tteir.
of Soc. Sec., 2010 U.S. Dist.
2000) (citing Podedworny); see also Bantleon v. Comm’r
LEXIS 99537, at *3g.39 (D.N.J. 2010).
See Burnett u. Commissioner of SSA, 220 F.3d 112, 119-120 (3d Cir. 2000);
Leech v. Barnhart, 111 F. App’x 652, 658 (3d Cir. 2004) (“We will not accept the AU’s
9
3
the AU’s findings are not the product of a complete review which “explicitly’
weigh[s] all relevant, probative and available evidence” in the record.’°
IL The AU’s Decision
AU
Krappa found that the claimant met the insured status requirements
of the SSA through December 31, 2014, and had not engaged in substantial
gainful activity since April 15, 2009, the alleged onset date. (R20)
At step two, the AU
found that Melendez had the following severe
impairments: affective disorders and a history of substance abuse (heroin and
alcohol). She reasoned that these impairments, alone and together,
significantly limited the claimant’s mental and physical abilities to perform
basic work activities, and had been at a severe level for more than 12 months.
She accepted that the claimant had hepatitis C, but noted that his
ongoing treatment consisted only of periodic blood work, and that the claimant
had not seen a physician for more than a year and was not currently taking
any physical health medication, but only mental health medications. (R 21)
The AU
found no objective medical evidence of a shoulder disorder.
Physical testing had most recently been normal, with no tenderness or
deformity of the shoulder. Arthritis of the hands, though present, did not
manifest itself in swelling, and grip was normal.
Having screened out all physical impairments at step two, the AU
considered only mental impairments in the subsequent steps. At step three, for
example, the AU
concluded that “[t]he severity of the claimant’s mental
impairments, considered singly and in combination, do not meet or medically
equal the criteria of listings 12.04 and 12.09.” (R. 21)
III. Liver Disease
Melendez argues that, at step two, his Hepatitis C should have been
found to be
severe inipaihi1ent: While th tep two inquiry iOt itIy
conclusion that Leech was not disabled during the relevant period, where his decision
thèe ëTh liäbTe.
10
Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994).
4
rigorous—it is a means of screening clearly insufficient claims—it does require
evidence of a “severe medically determinable impairment.” See Boone v.
Bamhart, 353 F.3d 203, 205 n.4 (3d Cir. 2003).
Dealing with a diagnosis of hepatitis C in a prior case, I summarized the
law thus:
[The claimant] cites the policy statement to SSR 96-3p,
bearing on the step two “severity” analysis, which states:
If the adjudicator finds that such symptoms cause a
limitation or restriction having more than a minimal effect on
an individual’s ability to do basic work activities, the
adjudicator must find that the impairment(s) is severe and
proceed to the next step in the process even if the objective
medical evidence would not in itself establish that the
impairment(s) is severe.
SSR 96 In McCrea v. Comm’r of Soc. Sec., the United States
p.
3
Court of Appeals for the Third Circuit noted that the step two
severity analysis is not an “exacting one”:
[A]n applicant need only demonstrate something beyond ‘a
slight abnormality or a combination of slight abnormalities
which would have no more than a minimal effect on an
individual’s ability to work.’ SSR 85—28, 1985 WL 56856, at
*3
Any doubt as to whether this showing has been made
is to be resolved in favor of the applicant. Newell [v. Comm’r
of Soc. Sec.], 347 F.3d at 546—47. In short, ‘[t]he step-two
inquiry is a de minimis screening device to dispose of
groundless claims.’ Id. at 546 (internal citations omitted).
.
McCrea u. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004).
[The claimant] states that the evidence showed that his
symptoms caused more than a minimal effect on basic work
activities. AR, Docket No. 7-6 at 152. He concludes that “the AU’s
termination of the sequential evaluation at step two between
December of 2007 and May 1, 2010 is illegal because the
claimant’s Hepatitis C represented more than a de minimis
impairment imposing only light work related restrictions.” AR,
Docket No. 7-6 at 154.
[The claimant] was diagnosed with a Hepatitis C infection
prior to May 1, 2010. That diagnosis, however, without evidence of
severe impairment, is not dispositive. “[T]he presence of a disease
--does--not--establish-disabi1it-with4n- -the -Ae-Gapoferri v. Hanis,-.
501 F. Supp. 32, 36 (E.D. Pa. 1980), affd, 649 F.2d 858 (3d Cir.
5
-
1981). Accord Alexander v. Shalala, 927 F. Supp. 785, 792 (D.N.J.
1995), affd sub nom. Alexander v. Comm’r of Soc. Sec., 85 F.3d 611
(3d Cir. 1996). The applicant must also show that the impairment
has significantly limited his ability to perform work functions.
It is true that step two of the sequential analysis serves a
preliminary screening or gate-keeping function. That does not
imply, however, a different or separate standard of review of step
two determinations. McCrea, 370 F.3d at 360. A Commissioner’s
denial at step two, like other steps of the analysis, “is to be upheld
if supported by substantial evidence on the record as a whole.” Id.
at 360—6 1.
Taliaferro
id’.
Comm’r of Soc. Sec., Civ. No. 12- 6087, 2013 WL 5354242, at *5
(D.N.J. Sept. 24, 2013).
Given the low threshold of step two, and the Third Circuit’s directive that
doubts be resolved in favor of the claimant, I am persuaded that this matter
should be remanded for a second look. Mr. Melendez was diagnosed with
hepatitis C and had undergone interferon-based therapy. On at least one
occasion, he discontinued that therapy because he could not bear the side
effects.
The
AU’s
opinion
discounts
the
severity
of Melendez’s
physical
impairments, in part because he currently takes no physical health medication.
(R. 20—2 1) Elsewhere, however, the opinion states that Melendez reports that
“he gets tired from the medication he takes for his liver” (R. 23) and that “[hie is
getting interferon treatment
....
[and] is having the same side effects now.” (R.
24)
I reject the government’s argument that any step two error was
“harmless,” because the AU
went on to analyze the subsequent steps. Physical
impairments were effectively screened out of the analysis at step two. As a
result, the potential effect of the physical impairments, alone or in combination
with each other and the mental impairments, was not analyzed at step three or
subsequently. Indeed, the AU confined herself to mental impairments, finding
no substantial physical impairment at all: i.e., that “the claimant is capable of
the
iaiarath
&fo
ãlFexértiöhài levels as dêfihed üñdêF
Regulations.” (R. 22—23)
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IV.
Conclusion and Instructions on Remand
For the foregoing reasons, the AU’s decision is remanded for further
proceedings consistent with the foregoing Opinion. I will direct a finding of
severity at step two, but otherwise the AU
is free to exercise her discretion and
judgment. The state of the claimant’s hepatitis C, and whether he is or has
been on a program of medication, as to which the Opinion is ambiguous,
should be clarified. The AU
should look at the claimant’s physical and mental
condition afresh, and should reconsider the effect of hepatitis C, alone and in
combination with other physical and mental impairments.
I do not reach the remaining issues raised by the claimant, which may be
interdependent with, or mooted by, the issue that is the basis of the remand.
To be clear, I do not state or imply that the ultimate conclusion must be one of
disability.
Dated: September 8, 2016
Hon. Kevin McNulty
United States District Judge
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