JONES v. COMMISSIONER OF SOCIAL SECURITY

Filing 11

OPINION. Signed by Judge Jose L. Linares on 3/8/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RASHAD JONES,

Civil Action No. 15-3873 (JLL)

Plaintiff,
v.

OPINION

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
LINARES, District Judge.
This matter comes before the Court upon the appeal
of Rashad Jones (“Plaintiff’) from
the final decision of the Commissioner upholding the final
determination by Administrative Law
Judge (“AU”) Kimberly Shiro denying Plaintiffs appl
ication for disability insurance benefits
(“DIBs”) under the Social Security Act (the “Act
”). The Court resolves this matter on the
parties’ briefs pursuant to Local Civil Rule 9.1(f).
The Court has reviewed the parties’
submissions. For the following reasons, the Court rema
nds the matter for further proceedings.
I.
BACKGROUND’
The Court writes for the parties who are familiar with
the facts and procedural history of
the case. The Court therefore specifically addresses
in the discussion below only those facts
relevant to the issues raised on appeal.

“R.” refers to the Administrative Record, which uses
continuous pagination and can be found at
ECFNo.8.

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II.

STANDARD OF REVIEW

A reviewing court will uphold the Commissioner’s factual decisions
if they are supported
by “substantial evidence.” 42 U.S.C.

§ 405(g), 1383(c)(3); Sykes v. Apfel, 228 F.3d 259, 262

(3d Cir. 2000). “Substantial evidence means such relevant evidence
as a reasonable mind might
accept as adequate to support a conclusion,” and

“[ut

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).
Additionally, under the Act, disability must be established by objecti
ve medical evidence. To
this end, “[a]n individual’s statement as to pain or other symptoms shall
not alone be conclusive
evidence of disability as defined in this section.” 42 U.S.C.

§ 423(d)(5)(A). Instead, a finding

that one is disabled requires:
[Mjedical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show
the
existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence required
to
be furnished under this paragraph.
would lead to a conclusion
that the individual is under a disability.
.

Id.; see 42 U.S.C.

.

§ l382c(a)(3)(A). Factors to consider in determining how to weigh evidence

from medical sources include: (1) the examining relationship;
(2) the treatment relationship,
including the length, frequency, nature, and extent of the treatm
ent; (3) the supportability of the
opinion; (4) its consistency with the record as a whole; and
(5) the specialization of the
individual giving the opinion. 20 C.F.R.

§ 404.1527(c).

The “substantial evidence standard is a deferential standard of review
.” Jones, 364 F.3d
at 503. The AU is required to “set forth the reasons for his
decision” and not merely make
conclusory unexplained findings. Burnett v. Comm ‘r of
Soc. See, 220 F.3d 112, 119 (3d Cir.
2000).

But, if the AU’s decision is adequately explained and suppor
ted, the Court is not

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“empowered to weigh the evidence or substitute its conclusions for those
of the fact-finder.”
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). It does not
matter if this Court “acting
de novo might have reached a different conclusion” than the Commissione
r. Monsour Med. Ctr.
V Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)). Finally, the Third
Circuit has made clear
that “Burnett does not require the AU to use particular language or adhere
to a particular format
in conducting his analysis. Rather, the function of Burnett is to ensure
that there is sufficient
development of the record and explanation of findings to permit meanin
gful review.” Jones, 364
F.3d at 505.
III.

THE FIVE STEP PROCESS AND THE AU’S DECISION

A claimant’s eligibility for benefits is governed by 42 U.S.C.

§ 1382. Pursuant to the

Act, a claimant is eligible for benefits if he meets the income and
resource limitations of 42
U.S.C.

§ 1382(a)(l)(A)-(B) and demonstrates that he is disabled based on an “inability to

engage in any substantial gainful activity by reason of any medically
determinable physical or
mental impairment which can be expected to result in death or which
has lasted or can be
expected to last for a continuous period of not less than twelve
months.”

42 U.S.C.

§

423(d)(1)(A). A person is disabled only if his physical or mental
impairment(s) are “of such
severity that he is not only unable to do his previous work, but
cannot, considering his age,
education, and work experience, engage in any other kind of work
which exists in the national
economy.” 42 U.S.C.

§ 423(d)(2)(A).

The Third Circuit has summarized “the five step sequential evalua
tion for determining
whether a claimant is under a disability, as set forth in 20 C.F.R.

§ 404.1520” as follows:

In step one, the Commissioner must determine whether the claima
nt is currently
engaging in substantial gainful activity. 20 C.F.R. 404.1520(a).
If a claimant is
§
found to be engaged in substantial activity, the disability claim
will be denied.
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

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In step two, the Commissioner must determine whether the claimant
is suffering
from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant
fails to show
that her impairments are “severe,” she is ineligible for disability benefit
s.
In step three, the
impairment to a
gainful work. 20
impairment or its

Commissioner compares the medical evidence of the claimant’s
list of impairments presumed severe enough to preclude any
C.F.R. § 404.1520(d). If a claimant does not suffer from a listed
equivalent, the analysis proceeds to steps four and five.

Step four requires the AU to consider whether the claimant retains
the residual
functional capacity [(“RFC”)] to perform her past relevant work.
20 C.F.R. §
404,1520(d). The claimant bears the burden of demonstratin
g an inability to
return to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46
(3d Cir.1994).
If the claimant is unable to resume her former occupation, the evalua
tion moves to
the final step. At this stage, the burden of production shifts to the
Commissioner,
who must demonstrate the claimant is capable of performing other
available work
in order to deny a claim of disability. 20 C.F.R. 404.1520(1).
The AU must
§
show there are other jobs existing in significant numbers in the nation
al economy
which the claimant can perform, consistent with her medical impair
ments, age,
education, past work experience, and residual functional capacity.
The AU must
analyze the cumulative effect of all the claimant’s impairments
in determining
whether she is capable of performing work and is not disabled.
Jones, 364 F.3d at 118-19 (formatting and emphasis added). “The
claimant bears the burden of
proof for steps one, two, and four of this test. The Commissioner
bears the burden of proof for
the last step.” Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000)
(citing Bowen v. Yuckert, 482
U.S. 137, 146 n. 5 (1987)). Neither party bears the burden of proof
at step three. Id. at 263 n.2.
The AU engaged in the above five-step sequential evaluation
and found: (Step 1) that
Plaintiff “has not engaged in substantial gainful activity since
October 25, 2010, the alleged
onset date” (R. at 10); (Step 2) that Plaintiff “has the follow
ing severe impairments: coronary
artery disease; uncontrolled hypertension; obesity; asthma; knee
arthritis; [and] depression” (id.);
(Step 3) that Plaintiff “does not have an impairment or combin
ation of impairments that meets or
medically equals the severity of one of the listed impairments”
(id. at 10-1 1); (RFC) that Plaintiff
has the RFC to perform sedentary work with the following
limitations:

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He is able to lift and carry up to 10 pounds occasionally and less than
10 pounds
frequently; able to stand and or walk up to two hours and to sit up to
six hours out
of an eight-hour workday. He is unable to climb ladders, ropes
or scaffolds;
cannot kneel or crawl and can occasionally climb ramps and stairs[,
j balance,
stoop and crouch. He must avoid concentrated exposure to temp
extremes,
wetness, humidity, vibration, flumes, odors, dusts, gases, poor ventila
tion and
hazards (unprotected heights and moving mechanical parts). He
can perform
simple, routine tasks with occasional contact with coworkers and superv
isors and
no public contact
(id, at 12); (Step 4) that Plaintiff “is unable to perform any past relevan
t work” (id. at 15); and
(Step 5) that given Plaintiff’s age (35), education (at least a high
school education), work
experience (not material), and RFC, “there are jobs that exist in
significant numbers in the
national economy that [Plaintiff] can perform” (id. at 15).

At step five, the AU heard the

testimony of a vocational expert. (Id. at 15-16.) The vocational expert
determined that Plaintiff
“would be able to perform the requirements of representative occupa
tions such as: cashier
checker,” “inspector hand packager,” and “merchandise marker.” (Id. at
16.) For these reasons,
the AU found Plaintiff not to be disabled. (Id.) Plaintiff challenges the
AU’s step three, RFC,
and step five findings. (See Pl.’s Br. at 12-14.)
IV

DISCUSSION

Prior to addressing Plaintiffs specific arguments, the Court notes
that Plaintiffs brief
fails to comply with Local Civil Rule 9.1. It contains no meaningful
statement of the issues for
review (see L. Civ. R. 9.1 (e)(5)(A)), no statement of facts (separate
from the procedural history)
(see id. 9.1 (e)(5)(B),(C)), and few citations to the Record to
support factual statements (see id. at

9.1 (e)(5)(C)). Although Plaintiff has provided inadequate suppor
t for his arguments and factual
assertions, to avoid additional delay for re-briefing and to not
punish the Plaintiff for the errors

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of his counsel, the Court has addressed Plaintiffs arguments based on the AU’s
decision,
citations provided by the Government, and its own research.
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A. Step Three

Plaintiff argues that the “AU’s step three analysis does not mentio
n plaintiffs
hypertension, obesity or his heart condition,” and that his “pulmonary condit
ion, labeled as
‘asthma’ in the decision, and found to be a severe impairment at step two, is
likewise ignored at
step three.” (Pl.’s Br. at 10-il.)

Plaintiff further argues that the AU’s “step three listing

analysis does not mention plaintiffs pulmonary conditions, does not identif
y a single respiratory
listing, does not mention obesity nor does it recognize the governing directi
ves for the evaluation
of obesity alone or in combination with other impairments provided by SSR

O2-ip.”

(Id. at 12.)

In Jones, the Third Circuit made clear that Burnett “does not require
the AU to use
particular language or adhere to a particular format in conducting his analys
is,” so long as the
AU provides sufficient analysis “to permit meaningful review.” 364 F.3d
at 505; see also
Scuderi v. Comm ‘r of Soc. Sec., 302 F. App’x 88, 90 (3d Cir. 2008)
(“[A]n AU need not
specifically mention any of the listed impairments in order to make
a judicially reviewable
finding, provided that the AU’s decision clearly analyzes and evalua
tes the relevant medical
evidence as it relates to the Listing requirements.”); Klangwald v. Comm
‘r of Soc. Sec., 269 F.
App’x 202, 204 (3d Cir. 2008) (“After broadly concluding that
[the claimant] ‘has no
impairment, which meets the criteria of any of the listed impairments,
’ the AU followed this
conclusion with a searching review of the medical evidence. Under
our precedents, this is
sufficient.”). Here, although the AU did not specifically identify listing
s related to heart disease,
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Plaintiff’s brief lays out critiques mostly without putting forth positiv
e arguments for why a
different finding is justified. Because the issue of attorney’s fees is
not presently before the
Court, it has not analyzed the effect, if any, that counsel’s failure to
comply with the briefing
rules (and the corresponding burden placed on the Court) should have
on any award of such fees.
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she did reference Plaintiffs heart disease in the step three discussion (see
R. at 11) and provided
a detailed analysis of his medical records including with respect to his heart
disease in other parts
of the decision (see id. at 13-15). Therefore, the Court finds Plaintiffs
arguments related to
heart disease to be without merit. The Court reaches a different decisio
n however with respect to
Plaintiffs obesity and asthma, both of which were found to be severe
at step two, and neither of
which are mentioned in the step three analysis. The AU does discus
s Plaintiffs records with
respect to shortness of breath and difficulty of breathing in her RFC
analysis, but there is no
indication that she considered asthma in combination with Plaintiffs
other impairments at step
three.
With respect to obesity, the only references to this severe impairment are
brief statements
about the Plaintiffs weight in the RFC analysis. While no magic words
are necessary to satisfy
the AU’s step three obligations, such a cursory reference only as part
of the RFC analysis is
insufficient.

“{Ajn AU

must meaningfully consider the effect of a claimant’s obesity,

individually and in combination with her impairments, on her workp
lace function at step three
and at every subsequent step.” Diaz v. Comm ‘r of Soc. Sec., 577 F.3d
500, 504 (3d Cir. 2009).
In Diaz, the Third Circuit found the “AU’s citation of reports by
doctors who were aware of
Diaz’s obesity sufficed” insufficient to meet this requirement. Id.
The Third Circuit stated:
“Were there any discussion of the combined effect of Diaz’s impairments,
we might agree with
the District Court. However, absent analysis of the cumulative impact
of Diaz’s obesity and other
impairments on her functional capabilities, we are at a loss in our
reviewing function.” Id. & n.3
(emphasis in original) (collecting cases reaching a similar conclusion).
This Court agrees with
Mason v, Colvin, No. 15-1861, 2015 WL 6739108 (D.N.J. Nov.
3, 2015), regarding the

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acceptable level of explanation where obesity is an impairment to
be considered. The Court in
Mason held:
[Tjhe AU did consider Plaintiffs obesity in combination
with her other
impairments. She explicitly said, “I have considered the potent
ial impact of
obesity in causing or contributing to co-existing impairments
as required by
Social Security Ruling 02-Oip.” The AU went on to quote the
Ruling at length,
and then explain how obesity can impact other impairments, such
as respiratory
ailments. The AU concluded her discussion by finding that Plainti
ffs obesity in
combination with her other impairments would in fact not allow
her to perform
any level of work besides light work. This amount of discussion
satisfies the
Third Circuit’s mandate for enough discussion “sufficient to enable
meaningful
judicial review.”
Id. at *4 (quoting the AU opinion and Diaz) (internal citations
omitted).

Contrary to the

Defendant’s arguments, requiring explanation for a finding is not
undertaking a “de novo review
of the commissioner’s decision.” (See Def.’s Br. at 4.) Rather, it
is ensuring that the AU has
provided sufficient analysis to enable this Court an opportunity
for meaningful review of the
basis for the decision. Because the AU failed to adequately addres
s Plaintiffs asthma and
obesity at step three, the Court will remand the matter for
further consideration and/or
explanation of these impairments in combination with Plaintiffs
other impairments.
A. RFC Finding

Plaintiffs primary disagreement with the AU’s RFC finding
is that the AU found that
Plaintiff is “able to stand and or walk up to two hours.” (PL’s
Br. at 13.) Plaintiff argues that the
AU “decision, which places ‘great weight’ on Dr. Ahmed
’s opinion does not explain how
plaintiff could walk and stand for two hours in an eight hour
workday or how plaintiff could
perform jobs one-handed (he needs to use one hand and
arm to employ the cane) while
standing.” (Id. at 13; see also id. at 21.) Defendant counte
rs this argument by citing Plaintiffs
medical records addressing his gait and walking.

(See Def.s’ Br. at 15-17.)

Defendant’s

argument misses Plaintiffs point. His point is that the medica
l examiner, on whom the AU

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placed great weight, has findings that appear inconsistent with the
RFC determination, without
explanation.

Defendant argues that the limitations referenced by Plain
tiff are simply “Dr.

Ahmed record[ing] Plaintiffs subjective reports.” (Id. at 16.)
The Court disagrees. Although
Dr. Ahmed does record Plaintiffs subjective complaints (see
id. at 55 1-52), Dr. Abmed also
reports in the “Passive Range of Motion Chart” section that Plainti
ff cannot walk at a reasonable
pace, that he can walk short distances without an assistive device
, that he needs an assistive
device for support and balance, and that he can walk 2 blocks
with an assistive device and 1/2
block without it. (Id. at 559.) These comments are not in the
subjective reporting section. (Id.)
Moreover, in discussing Dr. Ahmed’s report, the AU states
that the RFC “does not involve
prolonged walking or standing,” and is “consistent with the claima
nt’s testimony that he

.

could stand for about twenty minutes without his cane,” and
could “walk for thirty minutes
without it.” (Id. at 14.) However, the RFC determination provid
es that Plaintiff can “stand and
or walk up to two hours.” (Id. at 12.) Although there may be certain
medical records at points in
time indicating a normal gait or that Plaintiff is “ambulating well”
(see, e.g., id. at 332, 627, 696,
703), without additional explanation for the basis of the ALl’
s finding, the Court does not
understand how the RFC finding is consistent with Dr. Ahmed
’s report, which was given great
weight or with Plaintiffs testimony (which appears to have
been at least partially credited by the
3
AU).

Dr. Ahmed’s notation that Plaintiffs cane was not prescri
bed (see R. at 559) does not impact
this decision. Regardless of whether an assistive device was
prescribed, Dr. Ahmed reported on
Plaintiffs ability to walk at a reasonable pace, and the distanc
e that he could walk without the
cane. (Id.) It is these findings that do not appear consist
ent with the RFC finding and require
additional evaluation and/or explanation.
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_

B. Step Five

Plaintiff argues that the hypotheticals posed to the vocational expert
did not account for
all of Plaintiffs limitations. (P1.’s Br. at 23.)

“A hypothetical question must reflect all of a

claimant’s impairments that are supported by the record; otherwise the
question is deficient and
the expert’s answer to it cannot be considered substantial evidence.” Chrup
cala v. Heckler, 829
F.2d 1269, 1276 (3d Cir. 1987). Here, Plaintiffs step five analysis
is essentially duplicative of
his challenge to the AU’s RFC finding. See Rutherford v. Barnhart,
399 F.3d 546, 554 n.8 (3d.
Cir. 2005). Because the Court has already found that the AU’s RFC
finding requires additional
explanation, it does not separately address Plaintiffs step five argum
ent.
V.

CONCLUSION
For the foregoing reasons, the Court remands the matter for
further proceedings

consistent with this Opinion. An appropriate Order follows this
Opinion.
DATED: March, 2016

JOSiS U. L1NARES
DISTRICT JUDGE

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