LOPEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 24

OPINION. Signed by Judge Kevin McNulty on 12/27/16. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 15-3759 (KM)

MARIA LOPEZ,
Plaintiff,

OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:

Maria Lopez brings this action pursuant to 42 U.S.C.

§ 405(g) to review a

final decision of the Commissioner of Social Security (“Commissioner”) denying
her claims for Title II Disability Insurance Benefits. Upon reviewing the
evidence and stating his reasons for assigning greater or lesser weight to
different items, the Administrative Law Judge (“AU”) concluded that Lopez was
not disabled from March 15, 2005 through December 31, 2010, the last date
insured. Lopez assigns the following errors to this decision: first, the AU
should have considered her Crohn’s disease and fibromyalgia to be severe
impairments; second, the AU gave too little weight to the opinion of her
treating physician, who stated Lopez could not effectively ambulate; third, the
AU

did not consider the testimony of Lopez’s husband; and finally, the AU

relied on the testimony of a vocational expert who did not consider all of
Lopez’s impairments.
Although I find that certain of these errors were likely harmless, I also
find that the AU did not properly weigh on the record certain evidence
supporting Lopez’s ambulatory restrictions. Therefore, I remand for further
evaluation and correction of the errors. This remand does not mandate a
particular disposition of the case.
1

I.

BACKGROUND
Lopez applied for disability benefits pursuant to Sections 216(i) and

223(d) of the Social Security Act (“SSA”) on October 23, 2006. Her application
alleged a March 15, 2005 onset of disability based on Crohn’s disease/colitis,
arthritis, and depression. (R. 474—76; 501)’ Her claim was denied initially on
September 17, 2007 (R. 222-24), and again on reconsideration on February 24,
2010 (R 230-34).
Unfortunately, the initially claimed disabilities were not the last of Ms.
Lopez’s misfortunes. In January 2008, between the time Lopez’s claim was first
denied and the time it was denied on reconsideration, Lopez fractured her left
foot. This fracture led to surgeries in 2009 and 2010. At some point after her
initial application, then, Lopez put before the SSA a number of medical records
relating to that fracture. (See Opp. 7—9) It is helpful to keep in mind that this
injury occurred in the middle of the relevant time period. Also after her initial
application, Lopez began submitting evidence that fibromyalgia contributed to
her disability.
Lopez requested and received a hearing before AU

Donna Krappa on

April 11, 2011. (seeR 149—90, 235) On September 19, 2011, Judge Krappa
issued a decision finding Lopez not disabled. That decision was based on a
finding that, although she could not perform past relevant work, she could
perform jobs existing in significant number in the general economy classified
as “sedentary jobs”. (SeeR. 209—10)
Lopez requested Appeals Council Review of AU Krappa’s decision (R.
298—99), and in a July 22, 2013 order, the Appeals Council remanded Lopez’s
claim to the AU. The Council’s remand decision cited lack of clarity regarding
Lopez’s mental limitations and a failure to include all mental limitations in a
1
Pages of the administrative record (ECF No. 10) are cited as “R ...“ Pages of the
Plaintiffs Brief (ECF No. 19) are cited as “Br J’ Pages of the Commissioner’s brief (ECF
No. 20) are cited as “Opp. .“ Pages of the Plaintiffs Reply brief (ECF No. 23) are cited
as “Reply .“

2

hypothetical posed to the vocational expert (“yE”). (R. 218) The Appeals Council
instructed the AU

to further evaluate Plaintiff’s mental impairments, give

further consideration to Plaintiff’s Residual Functional Capacity (“RFC”), and to
obtain the testimony of a VE to clarify the effect of assessed limitations on
Lopez’s occupational base. (R. 217—221)
Supplemental hearings were held on October 8, 2013, and November 7,
2013 (R. 95—148, 50—95). Lopez testified at the November 7, 2013 hearing with
the aid of a Spanish interpreter. (See R. 25) AU Patrick Kilgannon then issued
a decision dated December 6, 2013, again finding Lopez not disabled (R. 19—
41).
On December 18, 2013, Lopez filed a request for review of AU Kilgannon’s
decision. (R. 17—18) The Appeals Council denied that request for review on
April 9, 2015, thereby rendering AU

Kilgannon’s decision the final decision of

the Commissioner (see R 1—5). Sanchez now appeals that final decision,
pursuant to 42 U.S.C.
II.

§ 405(g) and/or 1383(c).

DISCUSSION
A. Five-Step Process and this Court’s Standard of Review
To qualify for Title II disability benefits, a claimant must meet the

insured status requirements of 42 U.S.C.

§ 423. To qualify, 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(c), 1382(a).

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 CFR

§ 404.1520, 4 16.920.

Review necessarily incorporates a determination of whether the AU properly
followed the five-step process prescribed by regulation. The steps may be briefly
summarized as follows:

3

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), 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),

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
CFR Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is
automatically eligible to receive benefits (and the analysis ends); if
not, move to step four. Id.

§ 404.1520(d), 4 16.920(d).

The RFC: After step three, but before step four, the Commissioner
determines the claimant’s “residual functional capacity,” (the
“RFC”) meaning “the most [the claimant] can still do despite [his]
limitations.” 20 C.F.R.

§ 404.1545(a)(1). Caraballo v. Comm’r of Soc.

Sec., No. 2:13-CV-07187 KM, 2015 WL457301, at*1 (D.N.J. Feb.
3, 2015)
Step 4: Decide whether, based on her RFC, the claimant can return to
her prior occupation. 20 C.F.R.

§ 1520(a) (4)(iv); Id. § 404. 1520(e)—(f),

4 16.920(e)—(f). If not, move to step five.
Step 5: At this point, the burden shifts to the Social Security
Administration 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
CFR

§ 404.1520(g), 416.920(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.
For the purpose of this appeal, the Court conducts a plenary review of
the legal issues. See Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d

4

Cir. 1999). The factual findings of the AU

are reviewed “only to 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 “less than a preponderance of the evidence but more than a mere
scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation
omitted). “It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. When substantial evidence exists to
support the AU’s factual findings, this Court must abide by the AU’s
determinations. See id. (citing 42 U.S.C.

§ 405(g)).
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).
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. Podedwomy, 745 F.2d at 22 1—
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 Podedworny, 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’r of 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 weighjs] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation
marks omitted).

5

B. The AU’s Decision
AU Kilgannon properly undertook the five-step inquiry. His conclusions
are summarized as follows:
Step 1

Lopez had not engaged in substantial gainful activity from the alleged
onset date of March 15, 2005, through the date last insured of December 31,
2010 (the “relevant time period”). (R. 27)
Step 2

Lopez had the following severe impairments: “left foot fracture in 2008
and mood disorder.” (R. 27) AU Kilgannon declined to find that Lopez’s
Crohn’s disease and fibromyalgia were severe impairments and explained in
detail his reasons for doing so, which I summarize.
The AU first remarked on Lopez’s ability to perform “busy activities,”
including traveling to Spain for vacation in November 2005 and June 2008,
giving birth in November 2005 and thereafter raising her child, and cooking
meals, shopping driving, and completing household chores, albeit with
assistance. (R. 28—29)
He then acknowledged Lopez’s “occasional complaints of musculoskeletal
pain,” but concluded that she had received “no significant treatment” and
deemed objective medical findings in the record “unremarkable”. (R. 28) For
example, doctors’ notes described Lopez’s Crohn’s disease, colitis, arthritis, and
other pain symptoms in indefinite terms such as “indeterminate,” “vague,” and
“not yet.

.

.

fully determined.” Cervical spine, right hip, and pelvis imaging/x..

ray results were also essentially normal. The AU also acknowledged a doctor’s
statement that Lopez was “found to benefit from home assistance due to her
medical condition,” but found it vague and inconsistent with Lopez’s ability to
perform regular daily activities. (Id.)
Additionally, AU Kilgannon noted Lopez’s various reports of lower
quadrant pain in the record, but considered these against physicians’ notes
describing her Crohn’s disease (which one report considered only “suspected”)
and colitis as well controlled, normal colonoscopies and a negative upper
6

gastrointestinal series, and no indication of “extremely excessive restroom visits
or weight loss”. (R. 28—29)
Finally, the AIJ considered an August 2013 physical consultative
examination undertaken by Dr. Rahel Eyassu, M.D., “at the behest of the
Social Security Administration,” at which Lopez reported ongoing issues with
Crohn’s disease and a recent diagnosis of lupus with symptomatic flare-ups
every three months. Dr. Eyassu diagnosed Crohn’s disease, remarking on a
March 2013 colonoscopy indicating mild inflammation due to proctitis, and
“systemic lupus erythematosus involving the joints and causing fatigue during
flare-ups.” (R. 29) He also noted a “history of left ankle fracture with open
reduction and internal fixation, removal of hardware and reconstruction of the
Achilles tendon with persistent pain and swelling.”
Based on these considerations, the AU

concluded that Crohn’s disease

and fibromyalgia did not constitute severe impairments.
Step 3
With respect to Lopez’s “severe impairments” of left foot fracture and
mood disorder, AU

Kilgannon determined that Lopez did not have an

impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (R. 29). He declined to find that Lopez’s impairments met the
criteria for medical listing 1 .02—major dysfunction of a joint—because the
evidence did not demonstrate that Lopez has difficulty ambulating to the
;
2
degree required in 1 .00B2b she did not need ongoing use of an assistive

1.02 requires, in part, either “inability to ambulate effectively” or to perform fme and
gross movements effectively. As defmed in 1 .OOB2b:
2

(1) Inability to ambulate effectively means an extreme limitation of the ability to
walk; i.e., an impairment(s) that interferes very seriously with the individuals
ability to independently initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient lower extremity
functioning (see 1 .OOJ) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper
extremities.
7

device to walk; she vacationed in Europe for a month approximately six months
following her foot injury; the evidence reported a “steady gait with only a slight
limp”; and physical therapist and physical examination notes indicated a full
range of motion with no deformities. (R. 30).
Because he determined that Lopez did not require ongoing use of an
assistive walking device, and found “no mention in the medical record that the
claimant cannot ambulate effectively,” AU

Kilgannon also declined to find that

Lopez’s impairments satisfied listing 1.03, which requires that a claimant
demonstrate, inter alia, inability to ambulate effectively as defined in 1 .OOB2b.

(IcL)
AU

Kilgannon also declined to find that Lopez’s left foot fracture met

listing 1.08 (soft tissue injuries/burns), which “applies only to people who are
under the ongoing care of a surgeon who is treating extensive soft tissue
injuries (i.e., burns)

.

.

.

to restore major function.” (Id.)

With respect to Lopez’s alleged mental impairments, the AU

determined

they were not of the severity to meet listings 12.04 or 12.06. (R. 31)3 First, he
(2) 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. The ability to walk
independently about one’s home without the use of assistive devices does not,
in and of itself, constitute effective ambulation.

See https: / /www. ssa. gov/ disability/professionals/bluebook! 1. 00-MusculoskeletalAdult.htm# 102
3
A claimant’s affective disorder meets or medically equals listing 12.04 (Affective
Disorders) when it either satisfies both the paragraph A and paragraph B criteria, or
satisfies the C criteria of that listing. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.04,
12.06.
To satisfy the paragraph A criteria, a claimant must, in essence, medically
document the persistence of depressive, manic, or bipolar syndrome. 20 C.F.R. Pt.
404, Subpt. P, App5c 1, § 12.04. To satisfy the Paragraph B criteria of listing 12.04, a
8

claimant must demonstrate that his affective disorder results 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.

Id.
means more
“‘Marked’ as a standard for measuring the degree of limitation.
than moderate but less than extreme.” Id. § 12.00. Activities of daily living include
“cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a
residence, caring appropriately for your grooming and hygiene, using telephones and
directories, and using a post office.” Id. Sec. 12.OOC(1). Analysis of a claimant’s
activities of daily living involves an assessment of the “quality of these activities by
their independence, appropriateness, effectiveness, and sustainabiity,” and the extent
to which a claimant is “capable of initiating and participating in activities independent
of supervision or direction.” Id.
.

.

Listing 12.04, Paragraph C requires:
Medically documented history of a chronic affective disorder
of at least 2 years’ duration that has caused more than a
minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or
psychosocial support, and” any of three symptoms: 1)
repeated episodes of decompensation; 2) a residual disease
process resulting in such marginal adjustment that even a
minimal increase in mental demands or change in
environment would cause the individual to decompensate;
or 3) a history of one or more years’ inability to function
outside of a highly supportive living arrangement, with an
indication of continued need for such an arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(C). See generally Trzeciak v.
Colvin, No. CV 15-6333 (1CM), 2016 WL 4769731, at *7 (D.N.J. Sept. 12,
2016).
To meet or medically equal Listing 12.06 for anxiety related disorders, a
claimant must meet either: (1) the requirements of Paragraph A (requiring documented
findings of certain anxiety-related conditions and/or signs or symptoms, see 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.06(A)) and the requirements of Paragraph B (identical
to the Paragraph B requirements for Listing 12.04); or (2) the requirements of
Paragraph A and the requirements of Paragraph C. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.06. See generally Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 n.3
(3d Cir. 2007).
Paragraph C for Listing 12.06, unlike for Listing 12.04, simply requires that the
claimant’s anxiety-related disorder “[r]esult[j in complete inability to function
independently outside the area of one’s home.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.06(C). See generally Trzeciak, 2016 WL 4769731, at *7

9

concluded that the evidence did not support the “paragraph B” criteria:
Although Lopez had “moderate difficulties” in social functioning, he said,
certain evidence showed that Lopez travels alone, shops in stores, socializes,
gets along with others—including authority—and has never been fired due to
social difficulties. (R. 30—31). And, although Lopez has “moderate difficulties”
with concentration, persistence, or pace, the AU observed that Lopez is able to
handle day-to-day money exchanges and personal finances. She also shops,
prepares meals, raises a young child, and can focus on television programs. (R.
31) Additionally, Lopez had no episodes of extended duration decompensation,
and was never hospitalized or taken to the emergency room due to psychiatric
disorders.
The AU also concluded that there was also no evidence supporting the
“paragraph C” criteria. (Id.)
RFC and Step 4- Ability to Perform Past Work

Next, AU Kilgannon defined Lopez’s RFC as follows:
[T]hrough the date last insured, the claimant had the
residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant
cannot climb ladders, ropes or scaffolds. She can
occasional [sic] climb ramps and stairs, occasionally
balance, stoop, kneel, crouch and crawl. The claimant
is limited to a low stress job defined as having only
occasional decision making required and only
occasional changes in the work setting with only
occasional interaction with the public and coworkers.

10

(R 32—33).
Because several of Lopez’s arguments on appeal pertain to evidence the
AU

considered in the process of determining the RFC, I briefly summarize the

AU’s evaluation of that record evidence.
First, AU

Kilgannon recited Lopez’s allegations that she suffers from a

disability due to Crohn’s disease, colitis, arthritis, and depression (R 32). The
AU acknowledged Lopez’s testimony that she has stomach pain that is
sometimes alleviated by medication, that she takes medication for fibromyalgia,
that she has had foot surgery, that she took medication for depression for
roughly six months in 2006, that swelling in her joints rendered her unable to
work, and that her doctor had told her to stop working during her 2005
pregnancy. (Id.)
AU

Kilgannon then summarized and discussed the medical evidence

and gave reasons for discounting as “not entirely credible” Lopez’s allegations
regarding the “intensity, persistence and limiting effects” of her symptoms (R.
3 2—39).

Medical Record and Opinion Evidence on Lopez’s Mental Condition
The AU considered the following record evidence pertaining to Lopez’s
depression and mental state.
In March 2007, a primary care physician reported that Lopez had a
chronic depression diagnosis which was exacerbated by the 2005 birth of her
son. Thereafter, in September 2007, November 2009, and August 2013, Lopez
4

The Social Security Administration defines “Light work” as involving:
lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted in a particular light job may
be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves
pushing sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have
the ability to do substantially all of these activities.

20 C.F.R. § 404.1567(b), 4 16.967(b).
11

underwent psychiatric consultative examinations, at least two of which were at
the behest of the Social Security Administration. The findings of each
examination were substantially the same: Lopez presented with depression
each time (first moderately severe secondary to physical illness, then recurrent
major depression, then depressive disorder not otherwise specified but not
major depressive disorder), but Lopez showed intact judgment, concentration,
and/or memory, and her examinations were otherwise unremarkable. Lopez
never reported a history of psychiatric hospitalization. (R. 33)
As to mental impairments, AU Kilgannon specifically addressed the
opinions of five clinicians:
(1) State agency evaluator Wayne Tiliman, M.D., reviewed Lopez’s medical
evidence of record in September 2007, from which he determined
Lopez could adapt to change in the workplace and respond to
criticism, albeit with some difficulty. Of all the psychiatric opinions,
the AU

assigned the most weight to Dr. Tiliman’s. (R. 34—35)

(2) In November 2009, consultative examiner Dr. Perdomo, a
psychologist, stated Lopez had chronic major concurrent depression
that “may” affect her ability to function at a job. The AU assigned
little weight to this opinion because Perdono “did not provide clear
functional limitations” and his examination was largely
unremarkable. (R. 35)
(3) The AU assigned limited weight to state evaluator and psychiatrist
Harbans Multani, who reviewed the medical evidence of record in
January 2010 and determined Lopez had mild restrictions in daily
living activities and moderate difficulties with social functioning and
concentration, persistence or pace. (IcL)
(4) Consultative examiner Dr. Figurelli, PhD, examined Lopez in August
2013 but determined he could not ascertain the nature, severity, or
impact of her medical conditions. He completed a medical source
statement which the AU said gave no clear indication of Lopez’s
12

functioning during the relevant time period. The AU assigned this
little weight. (Id.)
(5) Emmanuel Hriso, M.D., who began treating Lopez for mental health
issues in September 2013, submitted an October 2013 disability form.
Because the treatment had commenced only recently and did not
cover the relevant time period, the AU assigned the disability form
little weight. (Id.)
Relying most substantially on Dr. Tiliman’s opinion and Lopez’s selfreported social activities (going to church, seeing friends, raising a child), the
AU

determined that Lopez could perform low stress work with limited social

contact. (R. 35—36)
Medical Record and Opinion Evidence on Lopez’s Phusical Condition
The AU

considered the following evidence pertaining to Lopez’s left foot

fracture.
Lopez injured her left foot on stairs in January 2008 and was thereafter
treated for a fracture of the left calcaneus. X-ray and MRI records indicated
good healing of the fracture through October 2008 and records did not indicate
a need for an assistive walking device. Lopez tolerated an anti-inflammatory
drug for swelling and was generally comfortable as of July 2008. A January
2009 MRI of Lopez’s left ankle led to a new diagnosis of posttraumatic subtalar
arthritis. For this, Lopez underwent subtalar fusion surgery that same month.
Notes from a psychologist’s November 2009 report remarked that Lopez had a
steady gait and slight limp. In June 2010, surgery was performed to remove
two screws from Lopez’s heel. Records from July 2010, November 2010, and
April and June of 2011 indicated normal healing and normal range of motion.
(SeeR. 33—34)
Separate from the fractures, and six months after the last date insured,
in April 2011 Lopez reported pain with heel raising, which led to a diagnosis of
Haglund’s deformity and calcification in the Achilles tendon. (R. 34)

13

As to physical impairments, the AU’s decision specifically addressed the
opinions of ten clinicians:
(1) Chiropractor Eric Chldzinski reported in an undated form that Lopez
could not lift over 20 pounds or stand and/or walk for more than two
hours per day. He reported first examining Lopez in April 2009 but
also reported referred to an examination in August 2008. Because of
the unclear treatment period and lack of explanation in Clhdzinski’s
report, the AU

assigned the chiropractor’s form little weight. (R. 36)

(2) For similar reasons, the AU

also assigned little weight to the undated

form of Shasta Victoria G. Castro-Penullar, a physical therapist who
stated Lopez could ride the bus or subway and occasionally squat and
climb. (fri.)
(3) Nikolaos Galakos, a State agency examiner, reviewed Lopez’s medical
evidence of record and determined in a June 2007 report that Lopez
could occasionally and frequently lift up to ten pounds, could stand
for two hours, sit for six hours, and push and pull with no limitation.
The AU assigned Galakos’s report little weight because it was written
prior to Lopez’s foot injury and the limitation to lifting ten pounds was
inconsistent with Lopez’s ability to care for her infant child. (Id.)
(4) Joseph Mosquera, M.D., reported in March 2008 that the severity of
Lopez’s fibromyalgia rheumatica, which Dr. Mosquera was treating,
left Lopez physically unfit to perform the heavy duties of her job. In
Dr. Mosquera’s opinion, Lopez could only tolerate light duty work. The
AU

assigned this opinion weight in limiting Lopez to light exertional

level work. Dr. Mosquera also noted Lopez’s stomach and bowl pain,
but the AU weighed this against Lopez’s ability to maintain busy
activities, raise a child, and complete light household chores, drive,
vacation, and shop. (R. 36-37)
(5) AU Kilgannon also assigned weight to the opinion of primary care
provider Eric Shen, M.D., who was a regular care provider familiar
with Lopez’s condition and wrote that Lopez suffered from colitis,
14

which caused recurrent pain and diarrhea exacerbated by stress. The
AU determined that this opinion supported limiting Lopez to light
work. (R. 37)
(6) In October 2012 and October 2013, S. Mody, M.D., completed
disability forms. They reported that Dr. Mody started seeing Lopez in
December 2011 and that her condition also began around that time—
a year after the date last insured. Thus, the AU assigned the forms
little weight for determining work restrictions during the relevant time
period.
(7) In August 2013, almost three years after the date last insured, Rahel
Eyassu, M.D., undertook a consultative examination of Lopez at the
SSA’s request. Dr. Eyassu opined on restrictions, but primarily with
respect to conditions that were diagnosed after the relevant time
period—a diagnosis of lupus in 2011, for example. (R. 37) Thus, Dr.
Eyassu’s opinion was given little weight.
(8) Dr. Ed Mastromonaco, D.O., an orthopedic specialist, completed a
disability form for Listing 1.02(A) and listing 1.03(A) (major
dysfunction of a joint and reconstructive surgery or surgical
arthrodesis of a major weight-bearing joint) in September 2013. As Dr.
Mastromonaco’s opinion is the only medical opinion to which Lopez
claims the AU

should have assigned more weight, I will quote the

AU’s discussion of it directly:
The opinion is assigned little weight. The doctor is not
clear as to when the limitations or listings were
intended to apply and if the assigned restrictions were
ongoing or supposed to last for a continuous period of
twelve months. For example, the doctor wrote that for
an assistive device, the claimant used “crutches” but
the record does not support that throughout the
relevant period she used crutches or required the
ongoing use of an assistive device. Treatment notes
after she injured her foot do not support that [sJhe
needed the ongoing use of an assistive device (Ex.
1 OF). The claimant was observed to have a steady gait
with only a slight limp (Ex. 21 F, p. 3). The claimant’s
15

physical therapist also reported that in late 2009, the
claimant only had mild joint effusion and reported
there was decreased tolerance to prolonged walking
but did not indicate the claimant needed an assistive
device (Ex. 36F, p. 1). A physical examination shortly
before her date last insured also showed her
extremities had no clubbing, cyanosis, edema, or
deformity noted, as well as normal full range of motion
of all joints (Ex. 28F, p. 3). Finally, the doctor’s opinion
also makes little sense. For example, he circled “no” for
if the claimant had surgical arthrodesis or major
weight-bearing joint but then for the follow-up
question, “if yes, please identify the affected joint” he
wrote “1. ankle” (Ex. 44F, p. 4).
(R. 37—38).
(9) Steven Sheskian, M.D., completed a disability form for listing 1.08 in
September 2013. The form does not indicate when Dr. Sheskian
thought Lopez’s condition met the listing, nor opine on functional
restrictions between 2005 and 2010. Because the form was completed
almost three years after the relevant time period had ended and
because the AU

determined that the records did not support

“continuing surgical management for the purpose of the salvage or
restoration of major function” to her foot, as a 1.08 listing requires,
the AU
(10)

assigned little weight to Sheskian’s form. (R. 38)

Finally, Clifford Botwin, D.O., who completed a disability form for

listings 1.02(A) and 1.03 in October 2013, stated that Lopez had not
had surgical arthrodesis or reconstructive surgery of a major weight
bearing joint. Dr. Botwin reported seeing Lopez for a six-month period
in 2008; at the end of this period, he thought Lopez was doing well
and could be discharged from his care. Yet, he opined that Lopez
could stand or walk for “zero hours” and that she needed crutches
and a walking boot at some point in the 2006—2011 time frame. AU
Kilgannon assigned little weight to Dr. Botwin’s opinion on the basis
of inconsistencies internally and with the other medical opinions and

16

because Dr. Botwin did not specify the time period for Lopez’s
functional restrictions. (Id.)
Considering these opinions and other record medical evidence, and
measuring that evidence against Lopez’s subjective reports and testimony
(described supra), Lopez’s “lack of credibility in some areas, and the
inconsistencies in other areas,” AL.J Kilgannon determined that the RFC, supra,
was supported; “a further degree of restriction is not warranted,” he concluded.
(R. 38—39)
AU

Kilgannon then determined that Lopez was “capable of performing

past relevant work as a housekeeper” as “actually and generally performed”
because such “work did not require the performance of work-related activities
precluded by [Lopez’s] [RFC].” (R. 39) To support this determination, the AU
adopted the opinion of a VE who testified at the November 7, 2013 hearing on
the nature of Lopez’s past relevant work, which the VE classified as “cleaner
housekeeping (DOT code: 323.687-0 14) light and unskilled with an SVP of 2.”
(Id.) The VE’s testimony relied on a hypothetical posed by the AU that
incorporated Lopez’s RFC.
Step 5
AU Kilgannon then proceeded to step five as an alternative ground for
finding Lopez not disabled. On this step, the AU

first explained that, although

Lopez attempted to establish she could not communicate in English, she
testified at her initial hearing in English, filled out forms in English, “is
bilingual and fluent in English” according to evaluation notes, and, according
to records, moved to the United States in 1990. (Id.) Because Lopez can
communicate in English, was by definition “a younger individual age 18—49, on
the date last insured (20 CFR 404.1563),” and reported having a high school
diploma, the AU explained that transferability of job skills is not material to a
disability determination under the Medical-Vocational Rules. (Id.)
“DOT” refers to the Dictionary of Occupational Titles, to which the Social
Security regulations frequently cite and which is a proper source of reference in the
five-step disability determination.
17

The AU

then found that there are jobs existing in significant numbers in

the national economy that Lopez can perform. The AU acknowledged that
Lopez was not capable of performing all or substantially all of the requirements
of light exertional work; she suffered from additional limitations that could
“erode the unskilled light occupational base.” Thus, to determine the impact of
this erosion, the AU again relied on the VE’s testimony, as cross-referenced
with the Dictionary of Occupational Titles. This testimony identified several
light work jobs that Lopez is capable of performing, including mailing clerk,
mail room clerk, and order filler. (R. 39—40).
Because AU

Kilgannon determined that Lopez was capable of performing

her past relevant work and, in the alternative, capable of successfully adjusting
to other work available in the economy, he concluded that Lopez “was not
under a disability, as defined in the Social Security Act, at any time from
March 15, 2005, the alleged onset date, through December 31, 2010, the date
last insured.” (R. 40 (citing 20 CFR 404.150(1))
C. Mr. Lopez’s Appeal and Analysis
Lopez assigns four errors to the AU’s decision. The first and third,
standing alone, would probably be considered harmless. But the second and
fourth raise are more significant and may, in turn, alter the significance of the
“harmless” errors. Therefore, I will remand the case for further evaluation with
instruction to correct all errors, harmless or not, in accordance with the
discussion below.
1.

Step Two Analysis of “Severe” Impairments

Lopez argues that AU

Kilgannon improperly rejected Crohn’s disease

and fibromyalgia as severe impairments because the threshold of severity at
step two is an unexacting one, requiring only that the Commissioner screen out

de minimis claims based on impairments that are nothing more than “slight
abnormalities” (Br. 16). This is an accurate characterization of Step Two, which
the Third Circuit explains as follows:
The burden placed on an applicant at step two is not
an exacting one. Although the regulatory language
18

speaks in terms of “severity,” the Commissioner has
clarified that an 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.... In short,
the step-two inquiry is a de minimis screening device
to dispose of groundless claims.
Due to this limited function, the Commissioner’s
determination to deny an applicant’s request for
benefits at step two should be reviewed with close
scrutiny. We do not suggest, however, that a reviewing
court should apply a more stringent standard of review
in these cases. The Commissioner’s denial at step two,
like one made at any other step in the sequential
analysis, is to be upheld if supported by substantial
evidence on the record as a whole.
McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360-6 1 (3d Cir. 2004).6
The Commissioner reiterates the AU’s discussion of evidence at Step
Two and argues that Lopez did not submit any real evidence that Crohn’s
disease or fibromyalgia limited her ability to perform basic work activities;
diagnoses alone are not enough. (Opp. 20) Furthermore, says the
Commissioner, whether Crohn’s disease and fibromyalgia should have
proceeded past step two is legally irrelevant because AU

Kilgannon did

consider Lopez’s foot fracture and depression severe and thus continued the
analysis through the remaining three steps anyway. And in doing so, the AL..)
considered all impairments—severe or not—to determine Lopez’s RFC. (Id.)
7
6

See also 20 C.F.R. § 404.1520(c), 4 16.920(c) (“If you do not have any
impairment or combination of impairments which significantly limits your physical or
mental ability to do basic work activities, [the Social Security Administration] will find
that you do not have a severe impairment and are, therefore, not disabled.”). The
regulations define “basic work activities” to include “[p]hysical functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling.”
§ 404.1521(b)(1), 416.921(b)(1). SeealsoAfanadorv. Comm’r of Soc. Sec., No. CV 152056(NLH), 2016 WL 3046263, at *3 (D.N.J. May 27, 2016).
Lopez argues the opposite—that “because the AU improperly found these
impairments non-severe at Step Two, he further failed to assess any limitations from
19

In short, the Commissioner argues that the AU’s ‘s decision is saved by
its compliance with the following instructions:
In the absence of a showing that there is a “medically
determinable physical or mental impairment,” an
individual must be found not disabled at step 2 of the
sequential evaluation process. No symptom or
combination of symptoms can be the basis for a
finding of disability, no matter how genuine the
individual’s complaints may appear to be, unless there
are
medical
signs
and
laboratory
findings
demonstrating
the
existence
of
medically
a
determinable physical or mental impairment.
Titles H & Xvi: Symptoms, Medically Determinable Physical & Mental
Impairments, & Exertional & Nonexertional Limitations, SSR 96-4P (S.S.A. July
2, 1996). And:
We will consider all of your medically determinable
impairments of which we are aware, including your
medically determinable impairments that are not
‘severe’
20 C.F.R.

§ 404.1545 (a)(2).

I have reviewed the record evidence and believe Lopez’s fibromyalgia and
Crohn’s disease should have progressed past Step Two. To be sure, AU
Kilgannon raised contradicting considerations with respect to the definiteness
of diagnoses and the “intensity, persistence, and limiting effects” of Lopez’s
Crohn’s disease and fibromyalgia. Social Security Ruling (SSR) 96-3p. Titles II
and XVI: Considering Allegations of Pain and Other Symptoms in Determining
Whether a Medically Determinable Impairment Is Severe, 61 FR 34468-01. But
the record evidence includes several clear diagnoses of the conditions and
much of the evidence rises above mere diagnoses or symptom reports. For
example, Lopez’s treating gastroenterologist, Dr. Eric Shen, wrote in April 2008
that, because Lopez’s gastrointestinal symptoms “appear to be worse when she
is under significant stress

.

.

.

.

she may benefit from lighter duties during her

these impairments at Step Four (formulation of RFC).” (Br. 18)1 do not read the AU’s
decision that way.
20

work.” (R. 1071) Similarly, Lopez’s treating physician for fibromyalgia, Dr.
8
Saraceno, wrote in March 2008 that “she is not physically fit to perform.
heavy duties.

.

.

.

[but] Ms. Lopez would however be able to tolerate light duty

assignment.” (R. 1080).
Medical records also reported that Lopez experienced rectal bleeding and
daily abdominal pain from Crohn’s disease during the relevant time period
(e.g., R. 790, 1055), and that, just prior to the relevant time period, she
suffered from “generalized pain for over 3 months” and sleep deprivation
associated with fibromyalgia. (R. 644).
Resolving doubts in favor of Lopez at this threshold step, I believe Lopez’s
Crohn’s disease and fibromyalgia more than minimally limit her ability to
perform “basic work activities,” such as “jd]ealing with changes in a routine
work setting.” 20 C.F.R.

§ 404.152 1(b)(5). See also Soc. Sec. Ruling, Ssr 12-.2p;

Titles II& Xvi: Evaluation of Fibromyalgia, SSR 12-2P (S.S.A. July 25, 2012) (“If
the person’s pain or other symptoms cause a limitation or restriction that has
more than a minimal effect on the ability to perform basic work activities, we
will find that the person has a severe impairment(s).”); McCrea, 370 F.3d at
360; Cintron v. Comm’r of Soc. Sec., No. 2: 13-CV-7 125 KM, 2014 WL 6800613,
at *7 (D.N.J. Dec. 2, 2014).9
That said, I agree with the Commissioner that any error in characterizing
Lopez’s fibromyalgia and Crohn’s disease as non-severe at Step Two was
harmless because the ALl, having found other severe impairments at Step
Two, did not terminate the analysis but went on to consider her fibromyalgia
The AU’s decision and record refers to this letter as submitted by Dr.
Mosquera. In the interest of clarity, I will note that the letter is signed by a
Dr. Saraceno, but appears on letterhead indicating that Dr. Saraceno was in practice
with Dr. Mosquera. Subsequent reports in the record indicate that Dr. Mosquera was
Lopez’s referring physician. Thus, I think it is reasonable to assume that Drs.
Saraceno and Mosquera were in practice together and that Lopez saw either one or the
other regularly.
B

On roughly the same record, AU Krappa’s September 19, 2011 decision
denying disability benefits determined at this step that Lopez’s fibromyalgia but not
Crohn’s disease was a severe impairment. (See R. 204—205)
21

and Crohn’s disease-based limitations when he formulated the RFC.’° Indeed,
in his discussion of the RFC, AU

Kilgannon considered the opinions of Dr.

Mosqura (or Dr. Saraceno, see n.9, supra) and Dr. Shen, as well as Lopez’s
subjective complaints. (See R. 32, 36). The AU expressly assigned more weight
to these opinions than he did to most others, and it appears they played a
significant role in the AU’s decision to assign Lopez to a “light work” RFC.
Thus, any error at Step Two was corrected at later stages of the sequential
analysis.
Nevertheless, because, I am remanding this case for reasons discussed
infra, the AU

should reconsider the treatment of fibromyalgia and Crohn’s

disease at Step Two.
2.

Dr. Mastromonaco’s Opinion

Lopez raises two main arguments as to why AU

Kilgannon committed

reversible error by “rejecting the well-supported opinion” of Dr. Mastromonaco,
whose opinion she claims the AU

1
should have given controlling weight. (Br.

8)
First, Lopez avers that the AU

erred when he reasoned that Dr.

Mastromonaco had not provided a clear time frame for Lopez’s functional
limitations. (Id. 12; Reply 1) To the contrary, Lopez argues, Dr. Mastromonaco
was specifically asked to consider Lopez’s condition from 2006 through early
See Salles v. Comm’r of Soc. Sec., 229 F. Appx 140, 145 (3d Cir. 2007) (citing
See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir.2005)); Abdulwali Nasiyruddiyn
v. Colvin, No. CV 15-0370 1 (JLL), 2016 WL 4432688, at *4 (D.N.J. Aug. 18, 2016)
(“Notably, even if the AU erred with respect to the mental impairments that he found
to be non-severe, such error would be harmless. ‘The step-two inquiry is a de minimis
screening device to dispose of groundless claims.”’ (quoting Newell v. Commissioner of
Social Security, 347 F.3d 541, 546 (3d Cir. 2003))); Strelec v. Colvin, No. CV 15-30 10
(JLL), 2016 WL 2736103, at *3 (D.N.J. May 11,2016) (“Additionally, even if the AU
erred with respect to one of the impairments that he/she found to be non-severe, such
error would be harmless as he/she found other impairments to be severe, engaged in
the full five-step evaluation, and accounted for related possible limitations in his/her
RFC finding.”).
10

The AU did not expressly “reject” Dr. Mastromonaco’s opinion. Rather, he
stated that he was assigning it “little weight,” as he did several other medical opinions
in the record. (See R. 35—38).
22

2011, and, Dr. Mastromonaco tied what, in his opinion, was a major
dysfunction of Lopez’s left ankle to Lopez’s 2008 and 2010 surgeries. (Id. 11
(citing R. 1204—1206).
I agree that Dr. Mastromonaco’s opinion was not really so unclear as to
when Lopez’s limitations or listings applied; as Lopez points out, the report
form Dr. Mastromonaco used referred specifically to the 2006—early 2011 time
period. And, since the very subject of Dr. Mastromonaco’s opinion was Lopez’s
foot injury in 2008 and related surgeries in 2009 and 2010, any reasonable
factfinder could infer that Dr. Mastromonaco was referring to the 2008—2010
time period.
Second—and more importantly, I think—Lopez argues that the ALJ did
not credit Mastromonaco’s statement that Lopez could only engage in limited
walking and standing—a limitation at odds with “light work”, which by
definition entails standing/walking up to six hours per day.’ (Br. 13) Lopez
2
maintains that the opinion of physical therapist Shasta Castro-Pennular
corroborates Mastromonaco’s opinion; Castro-Pennular noted that Lopez
“experiences decreased tolerance to prolonged walking and standing.” (Id. 14
(citing R. 1097)) Lopez also points to clinical reports of swelling with prolonged
standing and walking, as well as imaging and surgical records. (Reply 2—3)
The Commissioner replies that, although opinions of treating clinicians
are generally given more weight, an AU need not accept uncritically opinions
that are inconsistent with or unsupported by other record evidence. (Opp. 21
(citing 20 C.F.R.

;
3
§ 404.1527(c)(2)—(4)’ Griffin v.

Comm’r of Soc. Sec., 305 F.

12
Lopez contends that it is not clear from Dr. Mastromonaco’s opinion whether
Lopez would even be capable of performing sedentary work, which requires up to two
hours of standing and walking per day. (Br. 15 n.6 (citing SSR 83-10))

20 C.F.R. § 404. 1527(c)(2) provides, in part: “If we find that a treating source’s
opinion on the issue(s) of the nature and severity of your impairment(s) is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in your case record, we will give it
controffing weight” (emphases added).
13

23

App’x 886, 891 (3d Cir. 2009)). That of course is a correct statement of the law.
As the Third Circuit has explained:
A treating physician’s opinion on the nature and
severity of an impairment will be given controlling
weight only where it is well-supported by medically
diagnostic
laboratory
and
clinical
acceptable
with other
techniques and is not inconsistent
substantial evidence in the record. See Fargnoli v.
Massartari, 247 F.3d 34, 43 (3d Cir.2001). If, however,
the treating physician’s opinion conflicts with other
medical evidence, then the AU is free to give that
opinion less than controlling weight or even reject it,
so long as the AU clearly explains her reasons and
makes a clear record. See Jones, 954 F.2d at 129.
When a treating source’s opinion is not entitled to
controlling weight, it is evaluated and weighed under
the same standards applied to all other medical
opinions, taking into account numerous factors
including the opinion’s supportability, consistency and
specialization. See 20 C.F.R. § 404.1527(d)(2). An AU
need not defer to a treating physician’s opinion about
the ultimate issue of disability because that
determination is an administrative finding reserved to
the Commissioner. See 20 C.F.R. § 404.1527(e).
Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 148 (3d Cir. 2007).
Upon examination of the record, I find that Dr. Mastromonaco’s findings
4
contain a few genuine inconsistencies,’ but none substantial enough to justify
what, in effect, was a wholesale rejection of Dr. Mastromonaco’s opinion on the
issue of Lopez’s ambulatory limitations. And certain inconsistencies identified
by the ALAJ relied were really no such thing.
Compare, for example, Dr. Mastromonaco’s 2013 statement reporting that
Lopez could not ride on public transportation during the 2006—early 2011 time period
(R. 1203, 1208), with the 2009 record of Ms. Castro-Pennular stating that Lopez was
4
physically able to travel to and from work by bus and subway on a daily basis.’ (R.
1101)
Additionally, one of Dr. Mastromonaco’s own reports from April 2009 states
that he could not provide, based on his medical findings, his medical opinion
regarding Lopez’s ability to do work related activities. (R. 982) And, as AU Kilgannon
noted in evaluation of Dr. Mastromonaco’s opinion, another clinician observed that
Lopez had a steady gait with only a slight limp in November 2009. (R. 37—38 (citing R.
997))
14

24

For example, the AU

found no support for Dr. Mastromonaco’s opinion

that Lopez required a walking boot and crutches. Dr. Mastromonaco’s own
treatment notes, it is truew, do not refer to Lopez’s use of these devices, but Dr.
Botwin opined that Lopez required crutches and a walking boot. Lopez’s
orthopedic records are also consistent with the use of these devices: a February
2008 report stated that Lopez was directed to “progressive ambulation with
weight bearing”—an activity often undertaken while using crutches and a
walking boot—and Dr. Mastromonaco’s notes from May 2011 show that Lopez
reported an 8 out of 10 pain level in her left ankle while walking. A report on a
March 2009 field interview conducted by an SSA agent (not medical evidence,
but useful as corroboration) stated that Lopez used a crutch at the interview.
(R. 525)
Moreover, the AU

concluded: “While the claimant alleges severe

restrictions due to her left ankle, the record indicates relatively mild
limitations.” (R. 38) In support of this conclusion, the AU

cited Lopez’s

vacation to Europe and her self-reported ability to carry out various regular
activities like shopping, attending church, and caring for her child. (Id. (citing
R. 5 16—523)). But Lopez reported on these activities in a function report dated
January 2007—a year before she injured her left foot. Therefore, at least on the
issue of Lopez’s walking restrictions, it was not reasonable to weigh the
function report against the other evidence.
Substantial evidence did not support the AU’s rejection of Dr.
Mastromonaco’s opinion (as well as other evidence in the record on the issue of
Lopez’s ambulatory limitations) when determining Lopez’s RFC. I therefore find
that Lopez’s RFC, with respect to its lack of ambulatory restrictions, was not
supported by substantial evidence.’
5

The AU did state that Lopez was afforded limitations for light work as well as
climbing, balancing, stooping, kneeling, crouching, and crawling limitations in her
RFC on the basis of left foot/ankle pain, among other pain complaints. But, “light
work” by definition “requires a good deal of walking or standing,” and the RFC does
not specify any exceptions to this requirement.
15

25

That is sufficient cause for remand. See Podedwomy, 745 F.2d at 221—
22; Burnett, 220 F.3d at 1 19—20; Aclorno, 40 F.3d at 48. On remand, the AU
should reevaluate Dr. Mastromonaco’s opinion, as well as Dr. Botwin’s and any
other evidence supporting Lopez’s impaired ability to walk, between January
2008 and the date last insured.’ The AU should reevaluate this evidence with
6
respect to medical listings 1.02 and 1.03 at Step Three and, if the analysis
proceeds further, when determining Lopez’s RFC.

3.

Mr. Lopez’s testimony

Lopez also assigns error to the AU because his decision never mentions,
and thus does not assign weight or credibility to, the testimony of Lopez’s
husband, Jose Lopez. Jose Lopez testified during Lopez’s October 8, 2013
hearing that he—and not his wife—performs many household chores, and that
his wife had become increasingly nervous, fatigued, and socially isolated. (Br.
19—21; seeR. 131—138)
Arguing that AU Kilgannon significantly erred by failing to discuss her
husband’s testimony, Lopez cites Burnett v. Comm’r of Soc. Sec. Admin., 220
F.3d 112, 122 (3d Cir. 2000). There, the Third Circuit addressed an AU’s
similar omission:
In this case, the AU explained he rejected Burnett’s
testimony regarding the extent of her pain because he
determined it was not supported by the objective
16

Neither party discusses in their briefmg the fact that the September 19, 2011
decision of AU Krappa found Lopez capable of performing only sedentary work. Nor
does either party cite the testimony of Martin A. Fechner, M.D., a medical expert on
whose testimony at Lopez’s April 11, 2011 hearing AU Krappa heavily relied to arrive
at this conclusion. This is understandable; AU Krappa’s September 19, 2011 decision
concluded that Lopez could perform certain sedentary work positions—and therefore
was not favorable for Lopez—whereas AU Kilgannon’s decision reached the same
conclusion of non-disability but did so based on a more strenuous “light work”-based
RFC—and thus is more favorable for the Commissioner’s purposes, even if the result
is the same. The RFC that AU Krappa rendered in the September 19, 2011 decision
also limited Lopez to work involving very little mental demand and social contact.
I note these prior findings to caution Lopez that even if on remand her RFC
reflects greater ambulatory limitations (in the event the AU does not find a medical
listing met at Step Three), the ultimate outcome might not change.
26

medical evidence. However, the AU failed to mention
the testimony of Burnett’s husband, George Burnett,
and her neighbor, Earl Sherman. On appeal, the
Commissioner contends the AU did not need to
mention their testimony because it “added nothing
more than stating [Burnett’s] testimony was truthful.”
Commissioner’s Brief at 21. This argument lacks merit
because the ALi made a credibility determination
regarding Burnett, and these witnesses were there to
bolster her credibility. R. 17 (“claimant’s allegations of
disability made at hearing are unsubstantiated”). In
Van Horn, we stated we expect the AU to address the
testimony of such additional witnesses. On remand,
the AU must address the testimony of George Burnett
and Earl Sherman.
Id.

As in Burnett, the Commissioner here argues that Jose Lopez’s testimony
was cumulative of his wife’s and therefore, the AU’s failure to remark on the
testimony was harmless error. Specifically, the Commissioner points out, Lopez
testified that she takes her son to school and prepares him breakfast, does
other cooking and cleaning with the help of her husband, and goes shopping
with her husband. (Opp. 28; see R. 110, 116—118, 123—130) And the AU
specifically found Lopez’s testimony and other “statements concerning the
intensity, persistence and limiting effects of [her] symptoms

.

.

.

not entirely

credible” (R. 32) on the basis of their inconsistency with objective medical
reports and/or Lopez’s selfreported ability to perform regular activities. (Opp.
28 n. 11 (summarizing the evidence)). Thus, according to the Commissioner,
Jose Lopez’s testimony provided nothing new or significant enough to bolster
Lopez’s testimony because it too is inconsistent with the other record evidence.
The Commissioner cites a number of district court cases within the Third
Circuit where an AU’s oversight of cumulative evidence was deemed harmless
17
error. The courts in these cases did not err in distinguishing Burnett; since
See Buffington v. Comm’r of Soc. Sec. Admin., No. CIV. 12-100 JBS, 2013 WL
796311, at *89 (D.N.J. Mar. 4, 2013) (“Because (the claimant’s father’s] testimony is
largely cumulative of Plaintiffs own testimony, which the AU expressly found not
credible, (the claimant’s father’s] opinions do not have a significant effect of the
17

27

Burnett, the Third Circuit has applied a harmless error rule in ruling on Social
Security appeals. Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (“We
conclude that a remand is not required here because it would not affect the
outcome of the case.”). Additionally, the Social Security Administration has
explained in an interpretive ruling that an AU

must consider all relevant

evidence in an individual’s case record, but “generally should explain the
weight given to opinions from [non-medical sources], or otherwise ensure that
the discussion of the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the adjudicator’s reasoning, when
such opinions may have an effect on the outcome of the case.” Titles H & Xvi:H

& Xvi: Considering Opinions & Other Evidence from Sources Who Are Not
‘Acceptable Med. Sources” in Disability Claims, SSR 06-03P, 2006 WL 2329939,
at *6 (S.S.A. Aug. 9, 2006) (emphases added).

outcome of the case.”); Dougherty v. Colvin, No. CIV.A. 13-289, 2014 WL 4101205, at
*7 (W.D. Pa. Aug. 18, 2014) (“Here, although the AU did not explicitly discuss [a
caseworker’s] testimony, he did state that his decision was based on “the entire
record.” (R. at 27). Moreover, it is evident that [the caseworker’s] limited testimony
would not have had an effect on the outcome of the case in light of the medical and
opinion sources already in the record.”); Brandt v. Colvin, No. 3:13-CV-02 165, 2014
WL 4793956, at *6 (M.D. Pa. Sept. 24, 2014) (“[B]ecause Plaintiffs mother’s testimony
is cumulative of testimony the AU found was not credible, and because the Court
found that the ALJs decision was supported by substantial evidence in all other
regards, the Court also finds that the cumulative testimony of Plaintiffs mother would
not have changed the outcome and will therefore not remand on the basis that the AU
failed to address her testimony.”); Butterfield v. Astrue, No. CIV.A. 06-0603, 2011 WL
1740121, at *7 (E.D. Pa. May 5, 2011) (“Although the ALT was required to explicitly
offer a credibility analysis of the lay witness statements, the Commissioner justifiably
believed, under the deferential standard accorded to ALT credibility determinations,
that statements from Plaintiffs mother and daughter statements would not have
changed the AU’s decision, as they were cumulative and merely reiterated Plaintiffs
complaints of depression and pain.”); Cerar v. Sec’y of Dep’t of Health & Human Servs.,
No. CIV, A. 93-6973, 1995 WL 44551, at *4 (E.D. Pa. Feb. 1, 1995) (“t is true that the
ALT failed to address the credibility of the claimant’s husband explicitly, but this alone
would not require remand, because the ALT demonstrated he considered and analyzed
all the medical evidence and plaintiffs subjective testimony concerning pain. The
plaintiffs testimony was credited by the ALT to the extent consistent with medical
testimony; crediting the husband’s testimony corroborating the plaintiffs would not
have affected the ALT’s decision.”).
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I agree that Jose Lopez’s October 8, 2013 testimony is substantially
cumulative of his wife’s testimony and that, if I were not already remanding on
8
other grounds, the harmless error rule would apply here.’ The AU

considered

and discussed the medical and other evidence at length in relation to Lopez’s
statements. (See, e.g., R. 30, 32, 38—39) Thus, because the Lopezes’ testimony
is cumulative, it is clear from AU

Kilgannon’s discussion that he would have

deemed the objective medical and other evidence in the record to be
inconsistent with Jose Lopez’s testimony. See Bailey v. Comm’r of Soc. Sec., 354
F. App’x 613, 618 (3d Cir. 2009) (non-precedential) (finding that AU

properly

discounted claimant’s testimony by basing finding on the specific medical
evidence in the record).
Nevertheless, when the AU reevaluates the evidence supporting Lopez’s
ambulatory impairment on remand, he or she should do so in light of all the
evidence, including that of Mr. Lopez. Although the remand is based on a
particular issue, the entire context remains important.
4.

The AU’s Hypothetical Question to the VE

Finally, Lopez argues that because the AU improperly rejected Dr.
Mastromonaco’s opinion and found several of Lopez’s impairments non-severe,
the hypothetical question the AU

posed to the VE during Lopez’s hearing did

not reflect all of Lopez’s impairments supported by the record. Lopez argues
this rendered the AU’s reliance on the VE’s testimony (which in turn relied on
the hypothetical) reversible error. (Br. 18—19)
While hypothetical questions posed to the VE need not incorporate every
impairment a claimant alleges, “the hypotheticals posed must ‘accurately
portray’ the claimant’s impairments and

[1

the expert must be given an

Lopez argues that Jose Lopez testified to performing many chores the AU’s
decision improperly attributed to Lopez, and that he testified that his wife had become
more nervous, fatigued, and isolated. (Reply 6 (citing R. 131—32)) But Lopez herself
testified that her husband starting doing all or most cooking, laundry, and shopping
at some point during the relevant time period (R. 124—126), that she is sometimes too
tired to shower, (R. 125), and that since 2008, she no longer goes out walking or to see
friends (R. 129). AU Kilgannon also acknowledged that Lopez performs household
chores and other activities “with assistance.” (R. 29).
18

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opportunity to evaluate those impairments ‘as contained in the record.”’
Rutherford v. Bamhart, 399 F.3d 546, 553—54 (3d Cir. 2005).
For the reasons discussed supra, substantial evidence did not support
the RFC. And of course (as is clear from the transcript of the November 7,
2013), the AU’s hypothetical was based on Lopez’s RFC. (R. 73—74) On
remand, then, any hypothetical to the VE must incorporate whatever revisions
are made to the RFC.

III.

CONCLUSION
For the foregoing reasons, the AU’s decision is REMANDED for further

proceedings.
I am satisfied that two AUJs conscientiously dealt with a complex medical
record. This may simply be a case of the administrative process’s failing to
catch up with new evidence of the applicant’s ongoing impairments. I also wish
to clarify that I am not direct a finding either way on the issue of disability.
Because a finding of disability is context-dependent, I place no limit on the
matters that may be considered, or the rulings that may be made, on remand.
An appropriate order accompanies this Opinion.
Dated: December 27, 2016

KEVIN MCNULTY
United States District Judge

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