KOVACH v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Kevin McNulty on 15-6999. (JB, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DINA L. KOVACH,

Civ. No. 15-6999 (KM)

Plaintiff,
OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Dma Kovach brings this action to review a final decision of the
Commissioner of Social Security (“Commissioner”) denying her claims for Title
II Disability Insurance Benefits (“DIB”). Upon reviewing and weighing certain
evidence, the Administrative Law Judge (“AU”) concluded that Kovach was not
disabled from June 12, 2010, through March 19, 2014, the date of the
decision. Kovach claims the AU’s decision is not supported by substantial
evidence.
Because I find that the AU

improperly failed to consider certain

probative evidence supporting Kovach’s allegations of severe pain and also
failed to incorporate certain of Kovach’s physical limitations into the
hypothetical posed to the vocational expert, this Court will remand for further
proceedings.
I.

BACKGROUND
Kovach applied for DIB pursuant to Sections 2 16(i) and 223(d) of the

Social Security Act (“SSA”) on December 1, 2011, alleging disability as of June

1

12, 2010 (R 172—175). Kovach’s application was denied initially (R 118—122)’
and on Reconsideration (R. 126-128). Kovach requested a hearing before an
Administrative Law Judge (an “AU”) to review her application de novo (R. 129130). A hearing was held on November 21, 2013, before AU Elias Feuer, who
issued a decision on March 19, 2014. AU Feuer denied disability at step five of
the sequential evaluation, on the ground that, although Kovach could no longer
perform her past relevant work, she is capable of adjusting to sedentary work
that accommodates her limitations and exists in significant numbers in the
national economy. (R12—22).
Kovach requested Appeals Council Review of AU

Feuer’s decision, but

her request was denied on July 30, 2015. This denial rendered AU

Feuer’s

decision the final decision of the Commissioner. (R 1—11) Kovach now appeals
that decision, pursuant to 42 U.S.C.
II.

§ 405(g) and 1383(c).

DISCUSSION
A. Five-Step Process and this Court’s Standard of Review
To qualify for Title II DIB 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 SSA, the Social Security Administration (the
“Administration”) has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 CFR

§ 404.1520, 4 16.920. This

Court’s review necessarily incorporates a determination of whether the AU
properly followed the five-step process, which is prescribed by regulation. The
steps may be briefly summarized as follows:

Pages of the administrative record (ECF No. 6) are cited as “R
Pages of the
Plaintiffs Brief (ECF No. 11) are cited as “Br
Pages of the Commissioner’s brief (ECF
No. 13) are cited as “Opp
.“

.“

.“

2

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),

4 16.920(c). If the claimant has a severe impairment, move to step
three.
Step 3: Determine whether the severe 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 disability benefits (and the analysis
ends); if not, move to step four. Id.

§ 404.1520(d), 416.920(d).

RFC and Step 4: Determine the claimants “residual functional
capacity,” (the “RFC”) meaning “the most [the claimant] can still do
despite [her] limitations.” 20 C.F.R.

§ 404. 1545(a)(1). Caraballo v.

Comm’r of Soc. Sec., No. 2: 13-CV-07 187 KM, 2015 WL 457301, at
*1 (D.N.J. Feb. 3, 2015). Decide whether, based on her RFC, the
claimant can return to her prior occupation. 20 C.F.R.
(4)(iv); Id.

§ 1520(a)

§ 404.1520(e)—(f), 416.920(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
Cir. 1999). The factual findings of the AU

are reviewed “only to determine

whether the administrative record contains substantial evidence supporting the

3

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. Podedworny, 745 F.2d at 221—
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 weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation
marks omitted).

4

B. The AU’s Decision
AU

Feuer undertook the five-step inquiry. His conclusions are
summarized as follows:
Step 1

Although Kovach attempted to work after the alleged onset of disability,
that work was an unsuccessful work attempt because Kovach was terminated
after approximately two months. Therefore, the AU found that Kovach had not
engaged in substantial gainful activity from the alleged onset date of June 12,
2010, through the date of her hearing—March 19, 2014. (see R 17, 22)
Step 2

Kovach had the following severe impairments: Somatoform disorder,
spine disorder and depression. (R 17) Kovach had additional impairments as
well, but these were determined to be non-severe, based on medical evidence or
a lack thereof, as follows: (1) a heart condition, based on diagnostic evidence of
normal coronary arteries and left ventricular functions; (2) fibromyalgia, for
which the AU stated that no supporting medical records existed; and (3) a
seizure disorder, marked by an isolated seizure episode controlled by
medication. (Id. 18).
The AU also acknowledged medical records from Kovach’s inpatient and
emergency room treatment during the July 2009 through June 2011 period for
various illnesses not related to Kovach’s disability claim, including a
hospitalization for pneumonia and chest pain syndrome. (Id.)
Step 3

With respect to Kovach’s severe impairments, Kovach 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 18). ALl Feuer paid particular attention to medical listings 1.00
(Musculoskeletal System) and 12.00 (Mental disorders).
First, AU Feuer declined to find that Kovach’s impairments met the
criteria for medical listing 1.04 (Disorders of the spine) due to lack of evidence
supporting the listing’s requirement of “spinal stenosis, nerve root or spinal
5

cord compression

.

.

pseudoclaudication.

.

with sensory or reflect loss, spinal arachnoiditis or
•

“2

(Id.)

Second, AU Feuer declined to find that Kovach’s mental impairment was
severe enough to meet the criteria of medical listings 12.04 and 12.07 because
the “paragraph B” criteria were not satisfied—that is, Kovach’s “mental
impairment does not cause at least two ‘marked’ limitations or one ‘marked’
limitation and ‘repeated’ episodes of decompensation, each of extended
duration.” (Id. (quoting medical listing 12.00))3 In particular, he found that

1.04 Disorders of the spine requires the following:

2

[C]om promise of a nerve root (including the cauda equina) or the spinal
cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine);
OR
B. Spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable imaging,
manifested by severe burning or painful dysesthesia, resulting in the
need for changes in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established
by findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1.OOB2b.
https: / / www. ssa. gov/ disability/professionals / bluebook/i 00-MusculoskeletalAdult.htm# l_04.
.

A claimants 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.
3

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, Appx 1, § 12.04. To satisfy the Paragraph B criteria of listing 12.04, a
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

6

Kovach had only moderate restriction in daily living activities. The record
showed that Kovach reported difficulty lifting her legs while dressing, an
inability to stand in the shower, and an ability to fix only quick meals. (Id. 19)
Additionally, the AU found that Kovach had only mild difficulties with social
functioning, as Kovach reported maintaining a close relationship with her
mother and sisters and attending activities with her children. (Id.) Further, the
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Id.
“Marked’ as a standard for measuring the degree of limitation.
means more
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. 12.00C(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 sustainability,” 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 (KM), 2016 WL 4769731, at *7 (D.N.J. Sept. 12,
2016).
To meet or medically equal Listing 12.07 (Somatoform Disorders), a claimant
must medically document, in essence, (A) (1) symptoms of altered voluntary motor or
sensory function, (2) one or more distressing somatic symptoms, or (3) preoccupation
with having or acquiring a serious illness even though significant symptoms are not
present; and the same “Paragraph B” criteria as for medical listing 12.04, supra. 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.07; see also
https: / / www. ssa. gov/ disability! professionals/bluebook/i 2. 00-MentalDisordersAdult.htm.
7

ALJ found only moderate difficulties with Kovach’s concentration, persistence,

or pace: Kovach claims she is unable to focus and concentrate, but a
consultative examiner’s notes reported Kovach’s ability to perform simple
mathematical activity. (Id.) Finally, the ALJ noted that Kovach has had no
episodes of decompensation, although Kovach reported that she does not
handle stress or changes to routine well. (Id.)
AU

Feuer noted that, when formulating Kovach’s RFC assessment in the

next stage of the analysis, he considered the degree of limitation he found in
Kovach’s mental function analysis with respect to the “paragraph B” criteria.
(IcL)

RFC and Step 4- Ability to Perform Past Work
Next, AU Feuer defined Kovach’s RFC:

[T]he claimant has the residual functional capacity
to perform less than a full range of sedentary work.
The claimant can occasionally lift 10 pounds,
frequently lift 5 pounds, stand and/or walk 2 hours
in an 8 hour work-day, sit less than 6 hours in an 8
hour work-day. The claimant can never climb
ladders, but can occasionally climb ramps and
stairs, kneel, stoop, crouch, and crawl and must
avoid dangerous machinery and unprotected
heights and is limited to simple, routine and
repetitive tasks.
(R 19).4
AU

Feuer began his RFC analysis by explaining that he followed a two-

step process in which he first determined whether Kovach had an underlying
medically determinable physical or mental impairment “that can be shown by
The Social Security Administration defines “sedentary work” as involving:
lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a), 4 16.967(a).

4

8

medically acceptable clinical and laboratory diagnostic techniques—that could
reasonably be expected to produce [Kovach’sj pain or other symptoms.” (R 20)
He then explained that in the second step, he “must evaluate the intensity,
persistence, and limiting effects of [Kovach’s] symptoms to determine the extent
to which they limit [her] functioning.” (Id.) To do this, he explained, he was
required to look to objective medical evidence, or to the entire case record
where objective medical evidence does not substantiate Kovach’s statements
about “the intensity, persistence, or functionally limiting effects of pain or other
symptoms.” (Id.)
Feuer next presented his conclusion that, although he found Kovach

AU

to suffer from medically determinable impairments “reasonably expected to
cause [her] alleged symptoms[,]

.

.

.

[he found her] statements concerning the

intensity, persistence and limiting effects of these symptoms
credible.
AU

.

.

.“

f]

not entirely

(Id.) He then explained how he arrived at this conclusion.

Feuer first credited the report of Dr. Potashnik, an orthopedic

consultative examiner who “could not discern any organic basis for claimant’s
multiple complaints,” and two psychological consultative examiners who
“suggest[ed] the need for limitation to unskilled work.” (R 20; see R 566—570;
667-670)
He next acknowledged Kovach’s testimony that during the time she
collected unemployment after the alleged onset of her disability, she “continued
to search for work, which she.

.

.

would have accepted.” (R 20) Citing Kovach’s

“activities of daily living and ability to care for her dog,” the AU

determined

that Kovach could perform the unskilled jobs that the vocational expert (“yE”)
offered during Kovach’s hearing.
5

Although Kovach does not challenge this aspect of the AU’s decision, I note
that his consideration of Kovach’s ability to perform jobs offered by the VE was
premature at the RFC/step four stage; whether a claimant is capable of adjusting to
other work is a question for step five.
5

9

The AU

then returned to Kovach’s objective medical record, remarking

that several MRI results from the 2008 through 2012 time period revealed
“foraminal narrowing, but no nerve impingement.” (Id.)
Next, the AU returned to Kovach’s daily living activities, reviewing
Kovach’s testimony that she could walk 8-10 steps in her house, take care of
her children with the help of her parents, make meals for her family, perform
light housekeeping, and walk and drive her kids to school. (Id.)
AU

Feuer concluded his analysis by pointing out that no medical

opinion Kovach submitted stated that Kovach could not perform sedentary
work, and explaining that he gave “significant weight to the state agency
medical consultants who opined that [Kovach] is limited to routine sedentary
work.” (Id.)
Based on these findings, at step four, AU

Feuer concluded that Kovach

was unable to perform her past relevant work because it exceeds her RFC.
6
Step 5
At step five, AU

Feuer explained that there are nonetheless jobs that

exist in significant numbers in the national economy that [Kovachj can
perform,” based on her age, education, work experience, and RFC. (Id. 21)
Accordingly, he found that Kovach is not disabled under the SSA. (Id. 22)
To make this determination, AU Feuer relied on the testimony of a yE,
who testified that Kovach would still be able to perform the following
occupations: order clerk (Dictionary of Occupational Titles (“DOT”) #209.567014, sedentary, svp 2, 190,000 jobs available nationally); envelope addresser
(DOT #209.587-0 10, sedentary, svp 2, 150,000 jobs available nationally); and

At Kovach’s hearing, the VE testified that an individual who could only perform
a sedentary occupation could not work at Kovach’s past job as a receptionist, as
performed. (R 72) Kovach had testified that she spent roughly six hours of an eighthour day on her feet and frequently lifted 10-25 pounds in her last successful position
as a greeter and receptionist at a car dealership. (R 32—35) Prior to that, Kovach’s job
at a gym involved similar physical demands. (see R 31—32) The position she held after
working as a greeter and receptionist was less physical but did not last long enough to
be considered substantial gainful activity appropriate for consideration. (See R 17, 36—
37, 57, 72)

6

10

preparer (DOT #700.687-062, sedentary, svp 2, 140,000 jobs available
nationally).
The VE gave this testimony in response to hypotheticals the AU

posed

about Kovach’s limitations. Because a portion of Kovach’s appeal turns on the
content of those hypotheticals, I quote the relevant portions of the hearing
transcript here:
I’d like you to assume an individual of the
same age, education, and experience as the claimant.
For the first hypothetical, I’d like you to presume that
the individual can frequently lift 20 pounds,
occasionally lift 10 points; can stand two hours, sit six
hours; would never be required to climb ladders, but
could occasionally climb ramps and stairs, kneel,
stoop, crouch, and crawl; and would avoid exposure to
dangerous machinery and unprotected heights.

Q

Q. And if I reduced the hypothetical to sedentary,
which would the hypothetical individual be able to do
past work?
—

Q. And if I modify that hypothetical to unskilled work
because of concentration problems associated with
pain or the effects of pain medication, would there be
jobs in the national economy?
(R 72—73)
It was in response to the second hypothetical—which simply told the VE
to consider an individual capable of performing sedentary work—and again to
the third hypothetical—which further limited the second hypothetical—that the
VE opined that Kovach could perform the three unskilled, sedentary
occupations listed supra. (See id.)
7

The AU further posed a fourth hypothetical, which added to the third
hypothetical the assumption that the individual would be late an average of 20
minutes per day three times per week. (R 74) To this, the VE testified that the
individual would not be capable of performing any jobs available in the national
economy. (Id.) Kovach’s appeal does not argue that the AU should have relied on the
VE’s response to this fourth hypothetical.
11

C. Kovach’s Appeal and Analysis
1.

Eight-hour workday

Kovach argues first that “[a]n individual who cannot, by reason of
impairments, perform an eight hour workday cannot be denied disability.” (Br
9) This argument relies on Kovach’s RFC, which provides that Kovach is
capable of standing and/or walking for two hours in an eight hour workday but
sitting for “less than six hours in an eight hour workday.” (Id. (quoting R. 19))
Based on this limitation, Kovach appeals to basic arithmetic: “2
+ <

6

=

<

+

6

=

8. But 2

8” (Br 10) (Apparently breaks were not considered.) Accordingly, she

argues, she is necessarily owed disability benefits. But Kovach cites no law,
rule, or interpretation by the Administration to support the notion that an
individual who cannot complete an eight-hour workday is necessarily disabled.
The Administration has explained that “[o]rdinariiy, RFC is an
assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis,” and that
“[a] ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or
an equivalent work schedule.” SSR Titles H & Xvi: Assessing Residual
Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996).
“Equivalent work schedule” is not defined, but by its plain meaning, I read it to
mean a forty-hour work week compressed to fewer or extended to more than
five days. The Administration has also advised that “[i]n order to perform a full
range of sedentary work, an individual must be able to remain in a seated
position for approximately 6 hours of an 8-hour workday, with a morning
break, a lunch period, and an afternoon break at approximately 2-hour
intervals. If an individual is unable to sit for a total of 6 hours in an 8-hour
work day, the unskilled sedentary occupational base will be eroded.” Titles II &
Xvi: Determining Capability to Do Other Work-Implications of A Residual
Functional Capacity for Less Than A Full Range of Sedentary Work, SSR 96-9P

12

(S.S.A. July 2, 1996) (emphasis added). Further, “[i]f the performance of past
8
relevant work is precluded by an RFC for less than the full range of sedentary
work, consideration must still be given to whether there is other work in the
national economy that the individual is able to do, considering age, education,
and work experience.” Id.
These instructions indicate that a claimant’s inability to work an eighthour day or to otherwise perform the full range of sedentary work does not
automatically render her disabled. Therefore, Kovach’s first argument is
unpersuasive.

2.

First hypothetical

Kovach’s second argument is that AU Feuer posed only the following
hypothetical to the VE: “the individual can frequently lift 20 pounds,
occasionally lift 10 pounds; can stand two hours, sit six hours.

.

.

.“

(R. 72)

Kovach says this hypothetical is “simply silly,” because “if the person can only
lift 10 pounds 1 / 3 of the day it may seem impossible for the same individual to
lift 20 pounds 2/3 of the day.” It also, she says, bears little resemblance to
Kovach’s actual, more limited RFC as found by the AU. (Br 14—15) Kovach
contends that “[t]here is no question that the jobs recited by the VE were
delivered in response to a different RFC and not to the one found in the
decision,” and therefore concludes that the AU’s decision to deny benefits
rested on an improper basis. (Id. 15—16)
The Commissioner fails to respond to this argument, but it does not
require much response. Kovach’s second argument entirely ignores the three
hypotheticals the AU

subsequently posed to the yE. (See supra p.11; R 72—73)

The second and third hypotheticals formed the basis for the VE’s relevant
testimony. Therefore, Kovach’s second argument fails as well.

The Administration has also noted that “[t]he ability to work 8 hours a day [br 5
days a week is not always required when evaluating an individual’s ability to do past
relevant work at step 4 of the sequential evaluation process
n individual who

8

retains the RFC to perform past part-time work that was substantial gainful activity
work must be found not disabled.” SSR 968P n.2.
13

3.

RFC

Kovach’s third argument has more traction. Kovach claims AU

Feuer

failed to recite all probative evidence and to articulate any analysis of that
evidence in his decision, instead engaging only “in a blanket recitation of the
evidence followed by an announcement of plaintiff’s RFC.” (Br 17—19 (citing
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000); Cotter
v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).9
Specifically, Kovach claims that AU Feuer did not sufficiently consider
or incorporate into the RFC evidence of the following: Kovach’s spinal disorder;
“chronic pain behaviors”; cervical and lumbar radiculopathy;’° range of motion
limitations caused by cervical disc herniations; major depression, pain,
anxiety, and adjustment disorders with a Global Assessment Functioning score
of 50 (indicating the presence of “serious symptoms”); Kovach’s need for
epidurals, TENS unit treatments, and various prescription drugs; nerve
damage and pain; fibromyalgia; and poor concentration limiting her ability to
manage finances. (Br 28)
Kovach especially notes evidence of moderate limitations in her ability to
maintain concentration, persistence, or pace. She argues that the AU
addressed these limitations only by way of a vague restriction to “simple
routine and repetitive tasks” in the RFC. (Id.) In response, the Commissioner

In Burnett, the Third Circuit reasoned that “[a]lthough the AU may weigh the
credibility of the evidence, he must give some indication of the evidence which he
rejects and his reason(s) for discounting such evidence.” 220 F.3d at 121. In CoUer
the Third Circuit explained: “we need from the ALl not only an expression of the
evidence s/he considered which supports the result, but also some indication of the
evidence which was rejected.” 642 F.2d at 705. This instruction applies to medical and
non-medical evidence alike. Id. at 122. In both cases, the Third Circuit reversed and
remanded for the AU’s failure to mention or refute contradictory medical evidence in
the claimant’s record.
9

AU Feuer noted that orthopedic consultative examiner Dr. Potashnik
concluded in March 2012 that Kovach “has multiple musculoskeletal complaints,
chronic pain behavior but no evidence of radiculopathy.” (R 17) I note, however, that
while Dr. Potashnik’s report states that Kovach’s records show “no clear evidence of
radiculopathy,” (R 570) the report does acknowledge Kovach’s history of radiculopathy
in 2005, which was treated surgically (R 569).
10

14

recites the evidence the AU

did discuss, and argues that AU

Feuer

“articulated why the relevant evidence, including Plaintiffs’ treatment history,
the medical opinions, and her statements and self-reported activities,
supported the RFC finding.” (Opp 12-14)
Additionally, the Commissioner claims Kovach’s moderate mental
limitations did not need to be addressed more specifically in the RFC because
state agency experts confirmed Kovach’s ability to perform simple and routine
unskilled work. And, the Commissioner argues, “moderate limitations assessed
in the broad areas of functioning at step three are not required to be
transcribed verbatim in the RFC and hypothetical question.” (Opp 15) The
Commissioner cites Hux v. Astrue, No. CIV.A. 11-1306, 2012 WL 4498845, at
*6 (W.D. Pa. Aug. 27, 2012), report and recommendation adopted. No. CIV.A.
11-1306, 2012 WU4507067 (W.D. Pa. Sept. 28, 2012), where the court
explained:
The “moderate” limitations in
activities of daily
living, maintenance of social functioning, and
maintenance of concentration, persistence or pace
were only relevant for the purpose of determining
whether the AU needed to make a residual functional
capacity finding in the first place. 20 C.F.R. §
416.920a(d) (1)-(3). They had no direct bearing on the
content of that finding. The assessment of a claimant’s
residual functional capacity must account for all
“physical and mental limitations” that have an impact
on what he or she “can do in a work setting.” 20 C.F.R.
§ 416.945(a)(1).
.

.

.

As the Commissioner points out “moderately limited’ means only that
the individual’s ability to perform the particular activity is ‘impaired,’ not that it
is Lunacceptable in the national workforce.” (Opp 16 (quoting Smith v. Comm’r
of Soc. Sec., 631 F.3d 632, 636-37 (3d Cir. 2010)).
The parties’ arguments somewhat conflate the AU’s RFC determination
with the hypothetical he posed to the yE, but set that aside. The question
presently before me is this: did AU Feuer explicitly evaluate and weigh all
relevant and probative medical and non-medical record evidence, explaining
15

his rejection of any pertinent evidence, such that substantial evidence supports
the AU’s determination of Kovach’s RFC? See Wise v. Comm’r of Soc. Sec., 626
F. App’x 357, 359 (3d Cir. 2015) (non-precedential); Adomo, 40 F.3d at 48.
With respect to Kovach’s mental limitations, I agree with the
Commissioner that the AU was not required to more explicitly incorporate into
the RFC her moderate mental limitations. The case law requires a hypothetical
question posed to a VE to reflect all of a claimant’s specific limitations—mental
and physical—where they are supported by established medical evidence. See,
e.g., Bums v. Bamhart, 312 F.3d 113, 123 (3d Cir. 2002); Rutherford v.
Bamhart, 399 F.3d 546, 554 (3d Cir. 2005). But here, I think the record
substantially supports the conclusion that Kovach’s mental limitations are
moderate and non-specific. Such limitations are adequately addressed by
limiting Kovach to “simple, routine and repetitive tasks” in her RFC. (R 17, 19—
20; see also R 96—97, 114—115 (April and November 2012 mental RFC
assessments reporting only non-significant or moderate limitations in mental
functioning areas and concluding that Kovach can perform “in simple, low
stress work settings.”))”

Cf Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir. 2004) (AU’s use of “simple
repetitive one, two-step tasks” in hypothetical to VE did not sufficiently convey
claimant’s mental limitations where an AU had previously found claimant to suffer
from “deficiencies of concentration, persistence, or pace resulting in a failure to
complete tasks in a timely manner (in work settings or elsewhere).”); Bums, 312 F.3d
at 123 (distinguishing 8th Circuit case where “simple, routine, repetitive work”
adequately accounted for deficiencies in a claimant’s concentration, persistence, and
pace, from the case before the Third Circuit, where the claimant’s record showed
several more specific mental deficiencies).
11

For clarity, I observe that, to challenge her RFC, Kovach relies on case law
addressing the question of what limitations should be incorporated into a hypothetical
given to a yE. This is acceptable, as challenges to a VE’s testimony based on an
allegedly inadequate hypothetical are “really best understood as challenges to the RFC
assessment itself.” Rutherford, 399 F.3d at 554 (“a claimant can frame a challenge to
an AUJ’s reliance on vocational expert testimony at step 5 in one of two ways: (1) that
the testimony cannot be relied upon because the AU failed to convey limitations to
the vocational expert that were properly identified in the RFC assessment, or (2) that
the testimony cannot be relied upon because the AU failed to recognize credibly
established limitations during the RFC assessment and so did not convey those
limitations to the vocational expert.”).
16

The real problem becomes apparent when we compare the record
evidence of Kovach’s physical symptoms and impairments with the AU’s
decision. It is evident that AU

Feuer did not expressly evaluate or weigh

records from Kovach’s long-time treating pain management physicians or from
Kovach’s long-time treating rheumatologist, whose records I summarize as
follows:
•

June 2009 through December 2011 records from pain
management specialist Dr. Binod Sinha show that Kovach
considered medication to relieve her pain by 50%—80% (with selfreported relief decreasing over time). Dr. Sinha also reported that
Kovach has tender spots and some reduced range of motion in the
cervical spine. (R 478—565) Dr. Sinha provided Kovach with various
drug prescriptions for her pain, as well as regular epidural
injections and a TENS unit. (R 569)

•

An October 2012 letter from Kovach’s long-time treating
rheumatologist, Alan S. Lichtbroun, reports that another pain
doctor, Dr. Freedman, gave Kovach epidural injections, and that
Kovach had “broad based disk herniation diffusely,” “diffuse body
pain” not ameliorated by epidural injections, limited neck flexion,
sciatic pain in her legs, restless leg syndrome, and fatigue. A 2001
letter from Dr. Lichtbroun documents Kovach’s fibromyalgia and
attendant tender points, chronic headaches, back pain, history of
panic attacks, and asthma. (R 607—608) Dr. Lichtbroun’s other
records, including long-term treatment and progress notes going
back through the years when Kovach was employed, are consistent
with these symptoms and conditions. (See, e.g., R 609—664)

•

January 2012 through August 2013 records from David Adin,
D.O., a physician with the NJ Orthopedic Rehab and Pain
Management Group, PC, reported restricted mobility in Kovach’s
neck and trunk, diminished reflexes in Kovach’s right Achilles
tendon, muscle spasms, and tenderness. In January 2012, Dr.
Adin prescribed Kovach “Oxycodone 30 mg up to four times a day
as needed,” and “Soma 350 mg up to twice a day as needed to help
with her muscle spasms and discomfort.” (R 687) He discontinued
the Soma in April 2012. (R 690) In November 2012, Dr. Adin stated
that he had renewed Kovach’s medication and that she would
“likely require surgery for her lumbar spine.” (R 694)) He also noted
17

that Kovac had recently received epidural injections from Dr.
Freedman “with little benefit.” (Id.) In December 2012, Dr. Adin
noted that Kovach’s symptoms “have been gradually worsening,”
and prescribed “Lyrica 150 mg twice a day along with the MS
Contin 60 mg once a day and Oxycodone 30 mg four times a day
as needed.” (R 695) In July 2013, Dr. Adin noted that Kovach
maintained her complaints of back pain and reported that “sitting
for a prolonged period of time then attempting to stand, is most
problematic for her.” (R 700) The following month, Dr. Adin
lowered Kovach’s Lyrica prescription but increased the frequency
of her Oxycodone prescription, also noting that Kovach received
Ultram and Xanax prescriptions from Dr. Lichtbroun. (R 701)
I find AU

Feuer’s omission of this evidence problematic because “[aj

cardinal principle guiding disability eligibility determinations is that the AU
accord treating physicians’ reports great weight, especially ‘when their opinions
reflect expert judgment based on a continuing observation of the patient’s
condition over a prolonged period of time.” Morales v. Apfel, 225 F.3d 310, 317
(3d Cir. 2000) (citation omitted). Drs. Sinha, Adin, and Lichtbruon all treated
Kovach on a continuing basis and their records support a gradual worsening of
Kovach’s alleged pain as well as an increasing dependence on a potent cocktail
of medications to attempt to cope with her pain.’
2
On the other hand, Drs. Adin, Sinha, and Lichtbroun have not expressly
opined that Kovach cannot perform some variety of sedentary work. AU

Feuer

essentially noted this much when he observed “[t]here is no medical opinion
presented by claimant from a doctor stating that she cannot perform sedentary
work.” (R 20) AU

Feuer also considered Kovach’s ability to drive, care for her

dog, walk 8—10 steps in her house, and perform other light household
functions and childcare responsibilities—evidence he was entitled to weigh
against Kovach’s allegations of debilitating pain. (R 20)

State examining physician Mark Jacknin in fact noted Dr. Sinha’s “extremely
thorough and prolonged pain management effort,” and the “sophisticated narcotic
regimen” on which Dr. Sinha placed Kovach, which Dr. Jacknin credited as “proof of
extreme pain.” AU Feuer omits this evidence from his decision as well.
12

18

It is possible (but not certain) that the AU will arrive at the same RFC,
properly, on remand. I think remand is nonetheless necessary to allow the AU
to more carefully evaluate objective medical evidence supporting the “intensity,
persistence, and limiting effects” of Kovach’s allegedly severe and worsening
pain, which is reasonably attributable to Kovach’s documented spinal disc
herniations and various documented pain and psychological disorders.’
3
4.

Disparity between RFC and Hypotheticals/Sitting
Limitation

Turning to Kovach’s fourth argument, she contends the hypothetical
instruction AU Feuer provided to the VE was defective not only because her
underlying RF’C was defective, but also because the AU

did not convey

Kovach’s actual RFC to the yE. In other words, Kovach claims the AU
introduced a brand new error at step five; Kovach’s RFC limited her to sitting
for less than a full six hours in an eight-hour work day, but this limitation did
not make its way into any of the hypotheticals AU Feuer posed to the yE. (See
R 72—73)
The Commissioner dismisses Kovach’s argument as a meritless attack on
the AU’s RFC, which the Commissioner claims was adequately captured in the
AU’s hypotheticals. (Opp 18—19) Even setting that aside, the Commissioner
claims, substantial evidence in the record supports Kovach’s ability to sit for a
full six hours in an eight-hour workday, and therefore the disconnect between

Social Security Ruling (“SRR”) l6-3P, similar to its predecessor ruling SSR 96‘7p, instructs the Administration to evaluate the intensity, persistence, and limiting
effects of an individual’s symptoms by considering the following factors (i) daily
activities, (ii) the location, duration, frequency, and intensity of pain or other
symptoms, (iii) precipitating and aggravating factors, (iv) the type, dosage,
effectiveness, and side effects of any medication taken to alleviate pain or other
symptoms, (v) treatment other than medication for the symptoms, (vi) other measures
used to relieve pain or other symptoms, and (vii) other factors concerning functional
limitations and restrictions due to pain or other symptoms. Soc. Sec. Ruling l6-3p;
Titles H & Xvi: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Mar. 16,
2016); 20 C.F.R. § 404.1529, 4 16.929. AU Feuer’s failure to discuss Kovach’s long
history of pain management, which includes a long list of medications and other
treatments, is especially problematic in light of this directive.
‘3

19

what is stated in the RFC and what the AU

told the VE is harmless error.

(Opp

14—15)
The point is moot. I have already determined that the AU’s assessment
of Kovach’s RFC did not properly consider all relevant and probative record
evidence, and thus was not based on substantial evidence. Any further claims
of error building on that RFC need not be considered. See generally Ramirez v.
Bamhart, 372 F.3d 546, 552 (3d Cir. 2004) (“[W]e.

.

.

hold that the

hypothetical did not accurately convey all of Ramirez’s impairments, and the
limitations they cause, and therefore the AU’s decision is not supported by
substantial evidence.”).
For the guidance of future proceedings, however, I will state that I agree
with Kovach that the AU

introduced a new infirmity into the process at step

five. AU Feuer should have specified in a hypothetical that Kovach could not
sit for a full six hours. He did not.
Kovach reports that she has difficulty getting comfortable while sitting (R
22) and sometimes spends most or all of her day in bed. (R 63) I see no
evidence undercutting these allegations (nor any acknowledgement of them in
the AU’s decision). State examining physician Dr. Jacknin opined that Kovach
requires a five-minute break after every 15 minutes of standing or sitting. (R
109-113) Likewise, case analyst Cynthia Lefever concluded in March 2013 that
Kovach “is limited to sedentary work by pain. However, she should also stand
about every 15 minutes.” (R 671)
In light of this evidence, not to mention AU

Feuer’s own conclusion at

the RFC stage that Kovach cannot sit for a full six hours in an eight-hour work
day, I do not think substantial evidence supports Kovach’s ability to sit for a
full six hours in an eight-hour work day. Therefore, the AU’s omission of any
sitting limitation from the hypotheticals was not harmless error and should be
corrected as required on remand.’
4
Kovach also takes issue with AU Feuer’s failure to specifically account for
moderate mental limitations in the hypotheticals. For largely the same reasons I find
that AU Feuer adequately accounted for Kovach’s mental limitations in her RFC by
14

20

Finally, Kovach claims AU

Feuer’s errors are so egregious that I should

reverse and award benefits directly rather than remand for further proceedings.
(Br 17, 29—3 1)
I have outlined areas on which the AU

should focus on remand. The

AU’s conclusions were the product of an incomplete review and a defective
fifth step, and additional evidence may be necessary to fully develop the record.
That development is necessary for a proper consideration of the case.
Therefore, I decline to directly award Kovach benefits.
III.

CONCLUSION

For the foregoing reasons, the AU’s decision is REMANDED for further
proceedings. An appropriate order accompanies this Opinion.
Dated: March 22, 2017

KEVIN MCNULTY
United States District Judge

limiting her to “simple, routine and repetitive tasks,” I find that he adequately
accounted for her moderate mental limitations by limiting her in the third hypothetical
to “unskilled work because of concentration problems associated with pain or the
effects of pain medication.” (R 73)

21