MUSCHKO v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION. Signed by Judge Jose L. Linares on 1/4/17. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARK MUSCHKO,
Civil Action No. 2:16-cv-00617 (JLL)

Plaintiff,
v.

OPINION

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

LINARES, District Judge.
Before this Court is Mark Muschko (hereinafier “Plaintiff’ or “Claimant”)’s appeal,
which seeks review of Administrative Law Judge (“AU”) Marissa Ann Pizzuto’s denial of
Plaintiffs application for Disability Insurance Benefits (“DIB”) under the Social Security Act
(the “Act”). The Court’s jurisdiction to review Plaintiffs appeal falls under 42 U.S.C.

§ 405 (g)

and pursuant to Local Civil Rule 9.1 (f) the Court resolves this matter on the parties’ briefs. The
Court has considered the submissions made in support of and in opposition to the instant appeal
and decides this matter without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons set
forth below, the Court remands this matter for further proceedings before the AU consistent
with this Opinion.

1

I.

BACKGROUND’
A. Procedural History

Plaintiff applied for disability and disability insurance benefits on July 31, 2012 alleging
an onset date of December 31, 2007. R. at 13. Plaintiffs claim was denied on November 30,
2012 and then upon reconsideration on March 19, 2013. Id. An administrative hearing was
subsequently held before AU Pizzuto in Newark, New Jersey on March 17, 2014. Id. at 25. AU
Pizzuto issued an opinion on July 21, 2014 finding Plaintiff not disabled within the meaning of
the Act through the date of last insured, December 31, 2007 and thus denied Plaintiff ‘s claim for
DIB. Id. at 18. The Appeals Council denied review of Plaintiffs claim on December 1, 2015.
Id. at 1-5. On January 4, 2016, Plaintiff filed the appeal currently pending before this Court.
(ECF No. 1, Complaint (“Compi.”)).
B. Factual Background

1. Plaintiffs Testimony
On March 17, 2014, Plaintiff testified before AU Pizzuto. R. at 25-56. At the time of the
administrative hearing, Plaintiff was 53-years-old. Id. at 25. Plaintiff testified that on December
31, 2007 at 47- years- old, he became unable to work and that his date of last insured was also
December 31, 2007. Id. Plaintiff stated that he worked for AT&T as a lifecycle and product
manager until 2002, when he lost his job due to a downsizing at the company. Id. at 28, 3$.
Plaintiff testified that up to 2005, he searched for other employment before his chronic
inflammatory

demyelinating

polyradiculoneuropathy (“CIDP”),

back

and

neck

issues,

nonbacterial prostatitis, and side effects from his medication limited his ability to work. Id. at
2$.

“R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF
No. 7.

2

Plaintiff testified that he has grand mal seizures. Id. at 28. Plaintiff testified that he
experienced his first seizure at the age of 15 and that he has since needed to take various
medications to treat his condition. Id. Of the medications that Plaintiff has asserted he must take,
Dilantin has, over the years, caused him to suffer from osteoporosis and bone fractures in his
back. Id. at 30. Plaintiff explained that his seizures usually occur in the morning afler a deep
sleep. Id. at 2$-9.
Plaintiff also testified that he experiences issues with his memory as a result of his
seizures coupled with the corresponding medication. Id. at 29. Plaintiff further stated that
when “taking [the medication] over a period of time, it

[ ] has some issues with memory to a

degree.” Id. Furthermore, Plaintiff testified that his neurologist attributes these memory-related
issues to the seizure medication. Id. As a result of the medication, Plaintiff stated that he ofien
feels “tired, doped up, drowsy and just not sharp or focused.” Id. Plaintiff noted that when
he asked his doctor about this condition, his doctor explained it is a combination of the
medication along with past seizures. Id.
In 2006 and 2007, Plaintiff stated that he suffers from CIDP which Plaintiff described is
“an autoimmune disorder that affects the myelin sheath so the myelin sheath gets stripped off
and you get a lot of [] short circuiting. [This] at first started in the legs where [Plaintiff] get[s] a
.

.

lot of numbness, tingling and just feels like [he is] walking on sponges and things of that
nature. .And then it progressed to where [Plaintiff] would get nerve pain and muscle pain in the
.

legs and

...

in the anus also. It’s worse in the legs than it is in the arms, but it’s like a numbness

tingling nerve pain. [He] gets hot and cold sensations.” Id. at 30, 31.
Further, Plaintiff stated that “if [he is] sitting for a period of time things will

[ ] stiffen

up and they get all tingling and numbness feeling and pain and like sharp pricks you feel in the

—

as result of the nerves being stripped of that insulation. They’re like short circuiting....”

3

Id. Plaintiff testified that “getting more electricity, more numbness, more tingling, more pricks
and

[1 the thing that has [Plaintiff] really scared is [he is] getting nerve pain and muscle pain

now in the legs and in the arms which is really— again, [he] had those in the ‘04, ‘05.” Id. at 31.
Plaintiff explained he underwent a discograrn in 1997 and afier that his CIDP began
slowly to progress throughout the years. Id. at 28. Plaintiff testified he had undergone about
10 immunoglobulin infusions in 2004 and further explained that these infusions did not
impact his condition. Id. at 32. To treat his CIDP, Plaintiff stated he tried acupuncture, massage
therapy, and physical therapy, but none provided any significant relief. Id. at 37, 41.
Plaintiff further explained that his CIDP is episodic in nature and that there are “certain
times it will be significantly worse and other times it will be more of a plateau.” Id. at 32.
Plaintiff testified that the electrical sensations he experiences in his hands and feet are present at
all times. Id. If he touches any part of his body, Plaintiff stated that he experiences sharp
electrical impulses. Id. Plaintiff explained “the muscle and nerve pain seem to come on and off
in terms of sharp pains, that seem to stop a little but come but the electricity is always there, the
numbness and the electricity.” Id. at 32-3. He further stated “the electricity and the
numbness, that’s always there. That’s continuous... The muscle pain, sometimes it will go a
week, two weeks, other times it might go a bit longer. The muscle pain is more frequent than
the nerve stabbing pain.” Id. at 33. Plaintiff also highlighted that “the muscle pain [he] gets
every week, to weeks it’ll flare-up for a while. The sharp spikes and the nerve pain, that all seem
to maybe be a month, two months, it varies.” Id. Plaintiff further asserted that the
described condition has been becoming more frequent. Id. Plaintiff also testified that his
constant CIDP was the most notable impediment to maintaining a consistent position of
employment. Id. at 34.
Plaintiff also stated that he suffers from spondylosis at the L4-L5, L5-S 1. Id. Due to the

4

spondylosis, Plaintiff asserted that his back will go out during times such as taking a
shower, bending over or sneezing. Id. Once his back goes out, Plaintiff testified that it takes a
week or so before it comes back. Id. furthermore, Plaintiff stated that he suffers from C6-C7
hemiation and therefore as a result of turning his neck it will go out and when he talks his posture
is like a “stiff board”. Id.
Since he was 20-years-old, Plaintiff testified that he has suffered from prostatitis, which
Plaintiff explained causes pain and soreness throughout his pelvic area so when Plaintiff is sitting
he experiences “an awful type of discomfort.” Id. at 3$. Plaintiff testified that this causes him
chronic pelvic pain syndrome that has caused him to experience incontinence. Id. at 47.
Plaintiff testified that when “conglomerated together it makes things very, very, very challenging
to move forward and try to do anything because the last thing [he] would want to do is not work.
[He has] worked for the past 20 years.” Id. at 3$.
Plaintiff also testified that sitting is very challenging because whenever he sits his back
begins to tighten up. Id. at 39. Plaintiff testified that due to the CIDP, “if [he] sit[s] for a half
hour, forty-five minutes [his] legs will go to sleep

...

and his nerves

...

get very, very painful and

in the thigh and in the calf area is where it starts to really ramp up and really hurt.” Id. Also,
Plaintiff stated that he has a torn cartilage in his lefi knee that “needs to get some surgery.” Id. at
40. Plaintiff testified that he is seeing an orthopedist for his wrist and tendonitis in his left
elbow. Id.
Plaintiff testified that he takes the following medications, Trileptal for seizures and
Mobic, which is an anti-inflammatory for inflammation of the back and neck, Lyrica and/or

5

Cyrnbalta for the nerve pain. Id. However, Plaintiff noted that both Lyrica and/or Cymbalta in
combination with the Trileptal gets him “so doped up and tired that [he] just can’t function
properly.” Id. at 42. Specifically, Plaintiff testified:
“So I try to just keep the seizure medication as the main medication that I take,
along with—I’ll take some vitamins, as well as the Mobic. Sometimes I’ll take the
Aleve because I don’t like taking too much Mobic too, but it just if I take too much
medication it just makes you very unsharp, very unfocused and you can’t concentrate.
—

The Tripleptal does that enough by itself, but in concert with Lyrica and the Cymbalta,
because they tried that for a period of time that’s supposed to try to make that tingling
sensation subside somewhat.”
—

Id. at 42-3. Plaintiff explained that he takes Lyrica every couple of months and that Cymbalta is
more of an anti-depressant so he tries to only take the Lyrica. Id. at 43. Plaintiff stated that when
he does take Lyrica, he will take it for about a month or so until his condition subsides. Id. at 46.
2. Medical Evidence of Record2
Medical records from the Neurology Office at Cornell University dated July 9, 1997
through March 19, 2004 show that Dr. Norman Latov, M.D., Ph.D examined Plaintiff
throughout this period. Id. at 204

—

11. The Plaintiffs July 9, 1997 visit reveals that he was

being prescribed the following medications: Dilantin 400 rng qd, Fosamax 10 mg qd, and
Caltrate 600 mg. The medical record from this visit further provides that an electromyogram
(“EMG”) and nerve conduction studies of Plaintiffs legs indicated the presence of a mild
neuropathy. Id. at 210. On examination, Dr. Latov noted that Plaintiffs “skin was clear and there
was no lymphadenopathy or thyromegaly, and no skeletal deformities. Heart and lungs were
normal. Abdomen was soft with no organornegaly. Mental status and cranial nerve functions
were normal.” Id. at 210

—

11. Dr. Latov explained that Plaintiff could have peripheral

2

The Court notes that it is not necessary to review the evidence in the record after December 31, 2007
since the Court writes for the parties who are familiar with the facts of the case and the AU’s decision’s
asserts that Plaintiff “must establish that his impairments were disabling on or before this date.” R. at 16.

6

neuropathy or myelopathy and that “the symptoms began shortly after the discograrn, and it is
unlikely that they are due to Dilantin neuropathy. Arachnoiditis or reflex sympathietic [sic]
dystrophy should be considered. The following studies are suggested: 1) EMG and nerve
conductions studies of the upper as well as the lower extremities to determine whether he has a
generalized neuropathy; 2) Spinal somatosensory evoked ANA, complement, hepatitis B and C
serology, immunofixation electrophoresis, Lyme serology, rheumatoid factor, RPR, ACE and
antibodies to sulfatide, and MAG.” Id. at 211. Dr. Latov instructed Plaintiff to return for follow
up in one month. Id.
Plaintiffs follow-up visit on August 13, 1997 provided the following results: the Spinal
somatosensory evoked responses that were consistent with sensory neuropathy in the legs, the
EMG and nerve conduction studies revealed peripheral neuropathy in the legs, MRIs of the
cervical thoracic and lumbar spines were unremarkable, blood tests showed a glucose of 5$ (nl.
70-105), white blood count 4.2 (ni. 4.5 -11) with norrrial electrolytes, renal function and liver
function. Id. at 209. It further appeared that Plaintiff had peripheral neuropathy in the legs,
however at that point, Dr. Latov opined that the cause was unknown and further suggested that
the Plaintiff undergo a glucose tolerance test in order to deternine if Plaintiff has diabetes
mellitus. Id.
On June 23, 2003, at the subsequent follow-up visit with Dr. Latov, the records reveal
that Plaintiffs neuropathic symptoms had “gradually increased, with more electric-like and
vibrating pains in his feet, and occasionally at the tips of his fingers.” Id. at 20$. Furthermore,
the most recent EMG/NC studies at that point provided that Plaintiff peripheral neuropathy with
slowed conduction velocities. Id. Furthermore, this record indicates that Plaintiff had a history
of seizures and osteoporosis. Id.

The examination on June 23, 2003 revealed that Plaintiffs

7

strength was nonrial and that he was able to rise on his heels and his toes, get up from a chair
using his arms, and also that he was able to get up from a kneeling position with either
leg. Id. Plaintiffs sensory examination provided that vibration is moderately impaired at the
large toes, mildly impaired at the ankles. At this point, it is further noted by Dr. Latov that the
neuropathy had slightly progressed and he ordered the following tests to be performed:
immunofixation electrophoresis, anti-MAG, sulfatide, GD1b and GQ1b antibodies, and gliadin
and transglutaminase antibodies. On July 28, 2003, Dr. Latov’s records reveal that Plaintiffs
symptoms were “more severe” and also that Plaintiffs condition is most consistent with the
diagnosis of CIDP, which is active and progressive. Id. at 207. To treat aforesaid condition,
Dr. Latov recommended that Plaintiff undergo a “trial therapy with IVIg, 40 g/day x 4 days
over 2 weeks, and then 40g q 2 weeks x 3 months, at which time Dr. Latov said Plaintiff would
be re- evaluated.” Id.
Thereafter on November 21, 2003, Dr. Latov diagnosed Plaintiff with CIDP and
indicated that after the fourth trial treatment, Plaintiff developed a headache and fever, which
lasted for several days. Id. at 206. The record shows that Plaintiff stated that he wanted to
continue treatments despite the chance that he may experience another reaction. Id. Further, at
this appointment, Dr. Latov stated that Plaintiffs neuropathy symptoms and examination were
unchanged. Id.
As the record herein indicates, Plaintiff returned on february 26, 2004 for a follow-up
with Dr. Latov. Id. at 205. However, Dr. Latov at that time opined that Plaintiffs neuropathy
appeared to be stable. Id. On March 19, 2004, Dr. Latov examined the Plaintiff again during a
follow-up visit. Id. at 204. At this visit, Dr. Latov recorded that he still suffered from CIDP; it
was further noted that the Plaintiff had developed vibratory sensations in his legs. Id.
EMG/nerve conduction studies performed at the visit did not indicate any change from the

8

studies previously performed in July 2003. Id. The medical record from this visit also reveals
that Plaintiff was taking 1200 milligrams of Trileptal per day for his seizure disorder. Id.
Records from Dr. Hajjar, dated August 17, 2002, December 30, 2003, and January 18,
2003, indicate that Plaintiff has a history of chronic prostatitis. Id. at 235-7. Plaintiffs August
17, 2002 record from Dr. Hajjar, during which the Plaintiff was also diagnosed with benign
prostatic hyperplasia (“BPH”) and chronic prostatitis, states that Dr. Hajjar directed the Plaintiff
to take flomax for a period of four weeks. Id. at 237. Afler the completion of this medication,
Dr. Hajjar instructed the Plaintiff to return to his office from a follow-up examination. Id. At this
visit, it was also recorded that Plaintiff experienced “perineal discomfort with difficult sitting for
a prolonged period of time, consistent with recurrent symptoms of prostatitis. Id. Plaintiffs
physical examination also revealed a tender prostate consistent with chronic prostatitis. Id. On
November 24, 2008, Plaintiff returned to Dr. Hajjar for a follow-up. Id. at 225. The records from
this visit indicate that Plaintiff suffered from lefi testicular orchialgia. Id.
II.

STANDARD OF REVIEW

This court must affirm the AU’s decision if it is supported by substantial evidence. 42
U.S.C.

§ 405(g), 1383(c)(3); Sykes v. Apfel, 22$ 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 “[i]t 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). The “substantial evidence
standard is a deferential standard of review.” Id. 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. Sec, 220 F.3d 112, 119 (3d Cir. 2000). But, if the AU’s decision is adequately explained

9

and supported, the Court is not “empowered to weigh the evidence or substitute its conclusions
for those of the fact-finder.” Williams v. Sittlivan, 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
Commissioner. Monsoitr 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 ALl to use particular
language or adhere to a particular format in conducting his [or her] analysis. Rather, the function
of Burnett is to ensure that there is sufficient development of the record and explanation of
findings to permit meaningful review.” Jones, 364 F.3d at 505.
III.

THE FIVE STEP EVALUATION PROCESS TO DETERMINE DISABILITY
UNDER THE ACT

The Social Security Act authorizes the Administration to pay a period of disability,
disability insurance benefits and supplemental security income to disabled individuals. 42 U.S.C.

§ 423 (a); 1382. Pursuant to the Act, disability is defined as the “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 unable to engage in substantial gainful activity when 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 Regulation promulgated under the Act sets forth a five-step process to be used by the
ALl to determine whether or not the claimant is disabled within the meaning of the Act. 20
C.F.R.

§ 404.1520(a)(1), 416.920(a)(1). The claimant bears the burden of proof at steps one

10

through four whereas the Administration bears the burden at step five. Poulos v. Comm ‘r ofSoc.
Sec., 474 F. 3d $8, 92 (3d Cir. 2007) (citing Ramirez v. Barnhart, 372 F. 3d 546, 550 (3d Cir.
2004)). The first step in the sequential evaluation process requires that the AU determine
whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R.

§

404.1520(a). If it is found that the claimant is engaged in substantial activity, the disability claim
will be denied. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Alternatively, if it is found that the
claimant is not engaged in substantial gainful activity the evaluation proceeds to step two. Id. At

step two, the AU must determine whether the claimant suffers from a severe impairment. 20
C.F.R.

§ 404.1520(c). If the claimant fails to show that her impairnients are “severe,” she is

ineligible for disability benefits. However, if the AU finds that the showing indicates claimant’s
disability is severe, the analysis proceeds to step three. At step three, the AU then evaluates
whether the claimant’s severe impairment is listed or is equivalent to an impairment set forth by
the Code. 20 C.F.R.

§ 404.1520(d). If a claimant does not suffer from a listed impainiient or its

equivalent, the analysis proceeds to steps four.
Step four requires that the AU make specific findings of fact as to the claimant’s residual
functional capacity and also as to the mental and physical demands of the claimants past relevant
work. Afler both of these findings are made, the AU must compare the RFC to the past relevant
work to determine whether Claimant retains the RFC to perform the past relevant work. 20
C.F.R.

§ 404.1520(d). The claimant bears the burden of demonstrating an inability to return to

her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994). If at step four, the
evaluation indicates that the claimant is unable to resume past relevant work or any employment
history does not qualify as past relevant work, the evaluation moves to step five. Jones, 364 F.3d
at 503. The final step shifis the burden of proof to the “Administration to show that the claimant

11

is capable of performing other jobs existing in significant numbers in the national economy,
considering the claimant’s age, education, work experience and [RFC].” Ramirez, 372 f.3d at
551; 20 C.F.R.

§ 404.1520(f). The ALl 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 503.

Additionally, under the Act, disability must be established by objective medical evidence.
To this end, “[a]n individual’s statement as to pain or other symptoms shall not 1Qne 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:
[M]edical 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.

.

§ 1382c(a)(3)(A). F actors 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 treatment; (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.
IV.

§ 404.1527(c).

DISCUSSION

In applying the sequential evaluation process explained above, the AU in the case at bar
concluded that the Plaintiff was not disabled as defined by the Act. At step one, the AU found
that Plaintiff had not engaged in substantial gainful activity since the alleged date of onset,
December 31, 2007. R. at 15. At step two, AU Pizzuto found that under 20 CFR

12

§ 404.1571

et.

seq. Plaintiff indeed suffered from the following medically determinable impairments: chronic

dernyelinating inflammatory polyneuritis and seizure disorder. Id. The AU found at step three
that “through the date of last insured, the claimant did not have an impairment or combination of
impairments that significantly limited [his] ability to perform basic work-related activities for 12
consecutive months; therefore, the claimant did not have a severe impairment or combination of
impairments.” Id; 20 CFR 404.1521 et. seq. Afier the determination at step three, the AU did
not proceed to the following steps in the evaluation process.
A. The AU’s Finding that Plaintiffs Impairments are Not Severe is Not
Supported by Substantial Evidence

Plaintiff argues that the AU improperly evaluated the medical evidence and therefore
improperly rendered Plaintiffs impairments of CDIP and seizure disorder as not severe. Pl.’s Br.
12. This Court agrees that the AU did not base her findings on substantial evidence and
therefore remands the matter on this issue for further analysis in accordance with this Opinion.
In support of his argument, Plaintiff asserts that the AU “fail[ed] to acknowledge the
medical evidence of prior to the date of last insured, i.e. December 31, 2007” and that the AU
“failed to mention let alone consider all of the medical evidence in the record.” Id. 15, 16.
Specifically, Plaintiff contends that the AU failed to discuss “Dr. Latov’s medical records from
July 9, 1997 to March 19, 2004, Dr. Hajjar’s medical records dating back to August 17, 2002 and
Dr. Lampariello’s medical records dating back to March 24, 2006.” Id. Plaintiff also contends
that ALl Pizzuto failed to correctly analyze Plaintiffs impairments under the “slight
abnormality” standard as required by 20 CFR

§ 404.1521 and as a result, argues that the AU’s

finding that Plaintiffs CIDP and seizure disorder are not severe is not supported by the evidence
of the record. Id. 14. Lastly, Plaintiff asserts that the ALl failed to reconcile the discrepancy in
the findings of the State agency non-examining physicians and the AU’s determination
rendering Plaintiffs impairmnents as not severe as required by S$R 96-6p. Id. 14. Plaintiff
13

specifically purports that the AU “provided no rationale for the conflict” presented by the
opinion of the State agency non-examining physicians and the AU’s determination that
Plaintiffs impainnents were not severe. Id.
In turn, Defendant argues that Plaintiffs argument is meritless and that Plaintiff “falsely
claims that the AU’s opinion contradicted the State agency’s physicians”. Def.’s Br. 8. The
Defendant claims that “a claimant’s statements about his impairments, alone, are never enough
to prove disability” and that “subjective complaints at the very least should be corroborated by
the objective medical evidence of record.” 20 C.F.R.

§ 404.1529(a).

When a claimant asserts subjective complaints, in order to establish disability, a physical or
mental impairment must be present and demonstrated through “medically acceptable clinical and
laboratory diagnostic techniques, which could reasonably be expected to produce the symptoms
alleged.” Accomando v. Comm’r ofSoc. Sec., No. 13-1391, U.S. Dist. LEXIS 160909, at *20
(D.N.J. Nov. 14, 2014)(citing 20 C.F.R. §sS 404.1529(b) and 416.929(b); accord Williams v.
Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992); Green v. Schweiker, 749 f.2d 1066, 1069-70 (3d
Cir. 1984)). In light of the medical evidence in the record, it is within the discretion of the AU
to render a determination as to the credibility of the plaintiff however the issue then becomes
whether the AU’s determination is supported by the record as a whole. Id. (citing 20 C.F.R.

§

404.1529, 416.929.). Furthermore, a remand is appropriate when it is impossible to determine
whether the AU’s findings are supported by substantial evidence due to the AU’s failure “to
evaluate adequately all relevant evidence and to explain the basis of [the] conclusions” and “to
explain [the] assessment of the credibility of, and weight given to, the medical evidence and
opinions from

[] treating physicians. “fargnoli v. Halter, 247 F.3d 34, 40 (3d Cir. 2001).

Here, the AU’s decision emphasized that Plaintiff must establish his impairnients were
severe prior to December 31, 2007 by providing medical evidence preceding this date. R. at 16.

14

However, the record herein clearly reflects medical evidence prior to December 31, 2007, and
the AU’s decision fails to mention these records or provide any analysis pertaining thereto, and
instead concludes that “based on a review of the scant medical evidence in record, and taking
into account the claimant’s subjective allegations, the undersigned find [sic] that the claimant’s
impairments before his date of last insured were non-severe in nature.” Id. at 17. Here, although
the AU acknowledges that the record contains evidence prior to this date, fails to give any
reasoning for neglecting to include this evidence in her analysis. ALl Pizzuto stated “a review
of the medical record indicated that the majority of evidence the claimant has proffered post
dates this period and therefore is not relevant for purposes of this present disposition.” Id.
However, the AU then nevertheless proceeded to assess medical records from 200$, 2009, and
2012, notwithstanding her prior assertion that medical records after December 31, 2007 are not
relevant to the determination. Id. The record includes medical evidence from Plaintiffs treating
physicians’ assessments prior to December 31, 2007 from both Dr. Latov and Dr. Hajjar. See Id.
at 203-219, 220-238. Thus, the record does in fact reflect evidence dated prior to December 31,
2007 which the AU’s decision failed to mention or consider therefore absent this analysis this
Court cannot determine whether the AU’s determination that Plaintiffs impairments are not severe
is supported by substantial evidence and the matter must be remanded.
Though Defendant correctly asserts the State Consultative exam sets forth that the “evidence
is sketchy and incomplete,” the analysis concludes that the Plaintiff has one or more medically
determinable impairments and diagnoses. The Plaintiffs impairmnents of “disorders of muscle,

15

ligament and fascia” as severe. R. at 60, 61. As it is well established “a District Court has no
fact-finding role in reviewing social security disability cases,” “when the AU does not address
all of the evidence of record, the appropriate action is to remand for further proceedings.” Zied v.
Astrue, 347 F. App’x $62, $65 (3d Cir. 2009). After thoroughly reviewing the Administrative
Record, the Court finds that the AU did not provide an appropriate analysis of the overall
evidence. Accordingly, the Court remands this matter for further analysis based on the medical
evidence in the record for the relevant time period consistent with this Opinion.
B. The AU Fully Developed the Record and Adequately Questioned the
Plaintiff

Plaintiff argues that AU Pizzuto also failed to fully develop the record by failing to
fully question the Plaintiff and that on this point alone, the matter should me remanded for
further development of the record. Pl.’s Br. 16. The Court does not agree.
Plaintiff contends that the AU failed to develop the record because she did not question
the Plaintiff about his orthopedic injuries or order a consultative exam, and consequently “found
incorrectly that Plaintiffs impairments were not severe, contrary to the findings of the State
Agency physicians.” Id. 17. And, further argues that “due to the ‘non-adversarial nature,’ the
AU has a duty to develop the record and conduct a complete review of it before determining the
eligibility for benefits.” Id. In turn, the Defendant asserts that the Plaintiffs representative
affirmed that the hearing was complete at the conclusion of the testimony and that the AU
“thoroughly questioned the Plaintiff about all of his impairments, symptoms and treatment.”
Def.’s Br. 7. The Court finds here that AU Pizzuto adequately questioned the Plaintiff to fully
develop the record.
An ALl’s hypothetical question need not include “every impairment alleged by a
claimant,” but only those that are “medically established.” Rutherford v. Barnhart, 399 F.3d 546,

16

554 (3d. Cir. 2005) (emphasis in original). This Court finds that AU Pizzuto sufficiently

developed the Administrative Record by thoroughly questioning Plaintiff about his medically
established impairments of CIDP, seizure condition, nonbacterial prostatitis, torn cartilage in
his lefi knee, and symptoms resulting from his medications. See generally R. at 25-45, 48-55.

17

_______

V.

CONCLUSION

The Court has reviewed the entire record and for the foregoing reasons concludes that
AU Pizzuto’s decision that the Plaintiff is not disabled within the meaning of the Act is not
supported by substantial evidence based on a proper analysis of the medical record.
Accordingly, AU Pizzuto’s decision is remanded for further analysis consistent with this
Opinion. An appropriate Order follows.

DATED: January

2017

STATES DISTRICT JUDGE

18