SANABRIA v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Claire C. Cecchi on 1/31/17. (jl, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 2:15-cv-8963 (CCC)
COMMISSIONER OF SOCIAL SECURITY,
CECCHI, District Judge.
Before the Court is Plaintiff Gilberto Sanabria’s (“Plaintiff’) appeal seeking review of a
final determination by the Commissioner of the Social Security Administration (“Commissioner”)
denying his application for disability insurance benefits (“DIB”) and supplemental security income
§ 216(1), 223(d), and
1614(a)(3)(A) of the Social Security Act (“SSA”). The issue
to be decided is whether the Commissioner’s denial of benefits is supported by substantial
evidence. For the reasons set forth below, the decision of the Administrative Law Judge (“AU”)
is affirmed in part, vacated in part, and the matter is remanded for further proceedings consistent
with this Opinion.
Plaintiff applied for DIB and $$I in January 2009, alleging disability as of September 2,
2008 through January 1, 2011 (the “closed period”). (Tr.’ at 10). The applications were denied
initially and upon reconsideration in March 2011.
(Ici± at 180). A hearing was held before AU
Norman R. Zamboni who issued a decision in August 2012 finding Plaintiff was not disabled. (Id.
at 145-52). In October 2012, the Appeals Council remanded the case.
( at 157). On February
27, 2014, a hearing was held before AU Moises Penalver. (Id. at 10). AU Penalver issued a
decision on May 28, 2014 finding Plaintiff was not disabled during the closed period, as defined
by the SSA. (Id. at 19) (citing 20 C.F.R.
§ 404.1520(g) and 416.920(g)). Plaintiff requested
review of the decision and the Appeals Council denied the request on November 5, 2015. (Tr. at
1). On December 30, 2015, Plaintiff instituted this action. (ECF No. 1).
Plaintiff was born on June 1, 1961. (Tr. at 33). He currently lives alone in New Jersey.
(Id.) Plaintiff has a high school education and has completed two years of college courses. (j at
34). Plaintiff has work experience as a shipping clerk, tractor trailer driver, light truck driver, and
( at 17). Plaintiff testified that he stopped working in 2008 because of
complications with his high blood pressure, diabetes, and eyesight. (Id. at 35-37). Plaintiff began
working again in 2011. Therefore, the relevant time period for this Court to consider is the closed
period of 2008 —2011.
Plaintiff has a history of type two diabetes mellitus, which his medical records indicate is
poorly controlled, and for which he does not take insulin. (Id. at 15). Plaintiff also has a history
of hypertension, which was controlled during the closed period. (Id. at 13). An MRI in 2010
indicated that Plaintiff has a degenerative joint disease and a bone deformity in his left shoulder.
(Id. at 15). Plaintiff also has a congenital left pinky abnormality, such that he cannot fully extend
“Tr.” refers to the certified record of the administrative proceedings. (ECF No. 6).
his left hand and has a slightly diminished left hand grip. (Id, at 15-16). Plaintiff testified that he
has a history of vision problems, although the medical expert testified that these problems were
not documented during the closed period. (Id. at 13).
Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.s.c.
and 13$3(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its]
own factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 201 1); see also 42 U.S.C.
the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
197$) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v. Astrue, No. 4:08-1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). In other words, under this deferential
standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir.
2007) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
Pursuant to the $SA, in order to be eligible for benefits, a plaintiff must show he is disabled
by demonstrating 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.”
423(d)(1)(A), 1382c(a)(3)(A). Taking into account the plaintiffs age, education,
and work experience, disability will be evaluated by the plaintiffs ability to engage in his previous
work or any other form of substantial gainful activity existing in the national economy. 42 U.S.C.
13$2c(a)(3)(B). A person is disabled for these purposes only if his physical or
mental impairments are “of such severity that he is not only unable to do his previous work, but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.
Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 22$ f.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
Sequential Evaluation Process
The Social Security Administration follows a five-step, sequential evaluation to determine
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R.
§ 404.1520, 416.920.
First, the AU must determine whether the plaintiff is currently engaged in gainful activity. Sykes,
228 f.3d at 262. Second, if he is not, the AU determines whether the Plaintiff has an impairment
that limits his ability to work. Id. Third, if he has such an impairment, the AU considers the
medical evidence to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”). If it is, this results in a presumption of disability.
impairment is not in the Listings, the AU must determine how much residual functional capacity
(“RFC”) the applicant retains in spite of his impairment.
[4, at 263. fourth, the AU must consider
whether the plaintiffs RFC is enough to perform his past relevant work. RI. fifth, if his RFC is
not enough, the AU must determine whether there is other work in the national economy the
plaintiff can perform.
The evaluation continues through each step unless it is determined at any point the plaintiff
is or is not disabled. 20 C.F.R.
§ 404.1520(a)(4), 416.920(a)(4). The plaintiff bears the burden
of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at step five.
Sykes, 228 f.3d at 263. Neither party bears the burden at step three. Id. at 263 n.2.
Summary of the AU’s Findings
At step one, the AU found Plaintiff met the insured status requirements of the SSA and
had not engaged in substantial gainful work activity during the closed period. (Tr. at 12). At steps
two and three, the AU found Plaintiffs impairments of non-insulin dependent diabetes mellitus,
left shoulder rotator cuff impingement, and a left fifth finger contracture were “severe,” but not
severe enough to meet, either individually or in combination, any of the impairments listed in 20
§ 4014, Subpart P, Appendix 1. (Id. at 12-14).
The AU concluded Plaintiff had the residual functional capacity (“RFC”) to perform the
exertional demands of sedentary work as defined under the Regulations, except he had a number
of additional limitations including, inter alia, frequent reaching up to $9 degrees and never
reaching 90 degrees with the left upper extremity, and never fine motor manipulation with the
pinky of the left hand. (Id. at 14).
To make this conclusion, the AU considered all of Plaintiffs symptoms and their
consistency with the evidence. Specifically, the ALl considered Plaintiffs reports that he was
unable to work during the closed period due to high blood pressure and diabetes. (Id.) The AU
considered the testimony of medical expert, Dr. Mark Farber, indicating Dr. Farber’s conclusion
that Plaintiff was limited to sedentary work. (j4 at 15). The AU also considered Plaintiffs
medical records evidencing Plaintiffs Type II diabetes, degenerative joint disease and bone
deformity in left upper extremity and congenital left pinky abnormality. (Id.) The AU found
Plaintiffs statements of intensity, persistence and limiting effects of his impairments were not
entirely credible because they were not supported by the medical evidence as a whole. (Id. at 16.)
At step four, the AU found Plaintiff was incapable of performing past relevant work as a
shipping clerk, tractor trailer driver, light truck driver, or security guard, as they all “were too
physically demanding.” (Id. at 17). At step five, the AU found there were jobs in significant
numbers in the national economy that Plaintiff could perform.
The AU identified these jobs
as: call out operator, addresser, and order clerk. (Id.)
Plaintiff makes the following arguments in support of his contention that the AU’s
decision should be reversed or remanded: (1) step three of the analysis precludes meaningful
judicial review, and (2) the Commissioner did not satisfy its burden at step five, as the VE’s
testimony does not constitute substantial evidence. The Court will address each argument in turn.
The AU’s Step Three Analysis Does Not Provide for Meaningful
Plaintiff argues the AU’s step three analysis is so incomplete that the Court cannot
meaningfully review the AU’s decision. Defendant argues that “as long as the AU considered
the evidence and that evidence supported the AU’s decision that Plaintiff did not satisfy the
criteria of a listed impairment,” the AU was not required to use any particular language at step
three, and remand is not required. ECF No. 12 at 5. Here, the Court finds the AU’s analysis at
step three is too cursory to provide meaningful review.
The AU’ s decision at step three, in its entirety states:
At the hearing, medical expert, Dr. Mark Farber, a board-certified internist and
pulmonologist, testified that none of the claimant’s impairments, either singly or in
combination, met or medically equal any of the listed impairments contained in
Appendix 1, Subpart P of Regulations No. 4. I give great weight to the medical
expert’s testimony and find that the claimant does not meet or equal any of the
“Listing of Impairments” under the Social Security Regulations.
(Tr. at 14).
In evaluating the AU’s step three analysis, this Court looks at the AU’s decision as a
whole. See Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (“[The case law] does not require
the AU to use particular language or adhere to a particular format in conducting his analysis.
Rather, the function of [the case law] is to ensure that there is sufficient development of the record
and explanation of findings to permit meaningful review.”). However, even with this standard,
the AU is required to identify and consider the listed impairment most like Plaintiffs severe
impairments. See 20 C.F.R.
404.1526(a); Amparo v. Comm’r of Soc. Sec., No. 2:12-cv-6403
(1(M), 2014 U.S. Dist. LEXIS 105746, at *20 (D.N.J. July 31, 2014) (“Although the claimant bears
the burden of proving that his impairments equal or meet one listed in Appendix 1, it is the AU’s
‘responsibility.. to identify the relevant listed impairment(s) and develop the arguments both for
and against granting benefits.”) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120 n.2 (3d
Cir. 2000)). Even in Jones v. Barnhart, stating the AU did not need to use any particular language,
the Third Circuit acknowledged that its ruling in Burnett was still good law: “To be sure, in Burnett
v. Commissioner of Social Security Administration we required ‘the AU to set forth the reasons
for his decision,’ and held that the AU’s bare conclusory statement that an impairment did not
match, or is not equivalent to, a listed impairment was insufficient.” 364 f.3d 501, 504 (3d Cir.
2004) (citing Burnett, 220 f.3d at 119—20)). Here, the AU did not identify any Listing that he
compared with Plaintiffs impairments, nor did he provide any analysis regarding this comparison.
Accordingly, the Court cannot meaningfully review the AU’s decision at step three.
Step Five Was Supported By Substantial Evidence
Plaintiff argues the vocational expert’s testimony cannot serve as substantial evidence for
the AU’s finding at step five because the VE relied on outdated descriptions of the occupations
Plaintiff could have performed.
Although Plaintiff may disagree with the relevance of the
Dictionary of Occupational Titles (“DOT”) in the modern-day work force, “the DOT remains an
appropriate source of occupational data. Under 20 C.F.R.
§ 404.1 566(d)( 1), the Social Security
Administration may take administrative notice of job information from the DOT.” Coates v.
Colvin, No. CIV.A. 14-0265, 2014 WU 4792199, at *4 (W.D. Pa. Sept. 24,2014) (quoting Devault
v. Astrue, Civ. No. 2:13—cv—0155, 2014 WL 3565972, at *6 (W.D. Pa. July 18, 2014)). “Social
Security Ruling 00-4P sets forth that the relevant inquiry is whether VE testimony is consistent
with the DOT.” Id. Here, at step five, the AU relied upon the VE’s testimony, which the AU
determined was consistent with the DOT. (Tr. at 1 8). Plaintiffs argument is essentially that the
Regulations should require more, which is not for this Court to decide. “A vocational expert may
rely on the DOT, and the AU may rely on the VE’s testimony to the extent it is consistent with the
DOT.” Estevez v. Comm’r of Soc. Sec., No. CV 14-6337 (KM), 2016 WL 3381227, at *7 (D.N.J.
June 8, 2016) (citing 20 C.F.R.
404.1566 (d)(1)); Jimenez v. Colvin, No. 15-3762 (KM), 2016
WL 2742864, at *9 (D.N.J. May 11, 2016). Accordingly, as the AU relied upon the VE testimony,
which was consistent with the DOT, the Court finds the AU’s analysis at step five was supported
by substantial evidence.
for the foregoing reasons, the Court affirms in part and vacates in part the AU’s decision
and remands this case for further administrative proceedings consistent with this Opinion. An
appropriate order accompanies this Opinion.
CLAIRE C. CECCHI, U.S.D.J.
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