PETERSON v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

OPINION. Signed by Judge Esther Salas on 2/20/2018. (JB, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
RAYMOND J. PETERSON,
:
:
Plaintiff,
:
Civil Action No. 16-2912 (ES)
:
v.
:
OPINION
:
COMMISSIONER OF SOCIAL SECURITY, :
:
Defendant.
:
__________________________________________:
SALAS, DISTRICT JUDGE
Before the Court is an appeal filed by Raymond J. Peterson (“Plaintiff”) seeking review of
Administrative Law Judge John Giannopoulos’s (“ALJ” or “ALJ Giannopoulos”) decision
denying Plaintiff’s application for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act (the “Act”). The Court has subject matter jurisdiction pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). Having considered the submissions in support of and in opposition to
the present appeal, as well as the administrative record, the Court decides the matter without oral
argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set forth below, the
Court vacates ALJ Giannopoulos’s decision and remands the case for further proceedings
consistent with this Opinion.
I.

BACKGROUND
Plaintiff, a 59-year-old man, filed an application for DIB on March 21, 2013, alleging

disability as of November 5, 2008, due to blindness in the left eye, partial loss of vision in the right
eye, diabetes, high blood pressure and depression. (D.E. No. 8, Administrative Record (“Tr.”) at
47). Plaintiff’s date of last insured for Title II benefits is December 31, 2009. (Id. at 43). The

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Commission denied application initially on June 12, 2013, and on reconsideration on August 23,
2013. (Id.). ALJ Giannopoulos held a hearing on January 13, 2015. (Id.). On March 24, 2015,
ALJ Giannopoulos denied Plaintiff’s application. (Id. at 49). Plaintiff sought Appeals Council
review. (Id. at 1-6). On March 21, 2016, the Appeals Council concluded that there were no
grounds for review. (Id.). Plaintiff thereafter filed the instant appeal.
The Court received the administrative record on November 4, 2016. (D.E. No. 8). The
parties briefed the issues raised by Plaintiff’s appeal. (See D.E. No. 13 (“Pl. Mov. Br.”); D.E. No.
14 (“Def. Opp. Br.”); D.E. No. 15 (“Pl. Reply Br.”)). On November 6, 2017, the Court requested
supplemental letter briefs addressing whether the ALJ conducted a proper combination analysis in
concluding that Petersen “did not have an impairment or combination of impairments that met or
The parties submitted their supplemental briefs on November 17, 2017. (See D.E. No. 17 (“Pl.
Supp. Br.”); D.E. No. 18 (“Def. Supp. Br.”)).1 The matter is ripe now for resolution.
II.

LEGAL STANDARD
A. Standard for Awarding Benefits
To be eligible for DIB under Titles II and XVI of the Act, a claimant must establish that he

or she is disabled as defined by the Act. See 42 U.S.C. §§ 423 (Title II), 1382 (Title XVI). A
claimant seeking DIB must also satisfy the insured status requirements set forth in § 423(c).
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). The individual’s physical or mental impairment(s) must be “of such

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Farley v. Colvin, 231 F. Supp. 3d 335, 339-41 (N.D. Cal. 2017) (collecting cases and explaining that the
court has the power to consider issues sua sponte in social security appeals).

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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.” 42 U.S.C. §§ 423(d)(2)(a), 1382c(a)(3)(B).
The Act has established a five-step sequential evaluation process to determine whether a
plaintiff is disabled. 20 C.F.R. § 404.1520(a)(4). If at any point in the sequence the Commissioner
finds that the individual is or is not disabled, the appropriate determination is made and the inquiry
ends. Id. The burden rests on the claimant to prove steps one through four. See Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987).2 At step five, the burden shifts to the Commissioner. Id.
Step One. At step one, the claimant must demonstrate that she is not engaging in any
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Substantial gainful activity is defined
as significant physical or mental activities that are usually done for pay or profit. 20 C.F.R.
§§ 416.972(a), (b). If an individual engages in substantial gainful activity, she is not disabled
under the regulation, regardless of the severity of her impairment or other factors such as age,
education, and work experience. 20 C.F.R. § 404.1520(b). If the claimant demonstrates she is not
engaging in substantial gainful activity, the analysis proceeds to the second step.
Step Two. At step two, the claimant must demonstrate that her medically determinable
impairment or the combination of impairments is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). A
“severe” impairment significantly limits a plaintiff’s physical or mental ability to perform basic
work activities.

20 C.F.R. § 404.1520(c).

Slight abnormalities or minimal effects on an

individual’s ability to work do not satisfy this threshold. See Leonardo v. Comm’r of Soc. Sec.,
No. 10-1498, 2010 WL 4747173, at *4 (D.N.J. Nov. 16, 2010).

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Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

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Step Three. At step three, the ALJ must assess the medical evidence and determine
whether the claimant’s impairment or combination of impairments meet or medically equal an
impairment listed in the Social Security Regulations’ “Listings of Impairments” in 20 C.F.R. Part
404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(a)(4)(iii). Upon a finding that the claimant
meets or medically equals a listing, the claimant is presumed to be disabled and is automatically
entitled to benefits. 20 C.F.R. § 416.920(d).
When evaluating medical evidence in step three, an ALJ must give controlling weight to
and adopt the medical opinion of a treating physician if it “is well-supported . . . and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). Not inconsistent does not mean that the opinion must “be supported directly by all
of the other evidence [i.e., it does not have to be consistent with all the other evidence] as long as
there is no other substantial evidence in the case record that contradicts or conflicts with the
opinion.” Williams v. Barnhart, 211 F. App’x 101, 103 (3d Cir. 2006). Even where the
treating physician’s opinion is not required to be given controlling weight, the opinion is not
necessarily rejected and may still be entitled to deference “depending upon the extent to which
supporting explanations are provided.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). If
there is conflicting medical evidence, “the ALJ may choose whom to credit but cannot reject
evidence for no reason or for the wrong reason.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.
2000).

“In choosing to reject the treating physician’s assessment, an ALJ may not make

speculative inferences from medical reports and may reject a treating physician’s opinion outright
only on the basis of contradictory medical evidence and not due to his or her own credibility
judgments, speculation or lay opinion.” Id.

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Step Four. If a claimant is not found to be disabled at step three, the analysis continues to
step four in which the ALJ determines whether the claimant has the RFC to perform her past
relevant work. 20 C.F.R. § 416.920(a)(4)(iv). If the plaintiff lacks the RFC to perform any work
she has done in the past, the analysis proceeds.
Step Five. In the final step, the burden shifts to the Commissioner to show that there is a
significant amount of other work in the national economy that the claimant can perform based on
her RFC and vocational factors. 20 C.F.R. § 404.1520(a)(4)(v).
B. Standard of Review
The Court must affirm the Commissioner’s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health & Human Servs., 841
F.2d 57, 59 (3d Cir. 1988). “Substantial evidence does not mean a large or considerable amount
of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). Although substantial evidence requires “more than a
mere scintilla, it need not rise to the level of a preponderance.” McCrea v. Comm’r of Soc. Sec.,
370 F.3d 357, 360 (3d Cir. 2004). While failure to meet the substantial evidence standard normally
warrants remand, such error is harmless where it “would have had no effect on the ALJ’s decision.”
Perkins v. Barnhart, 79 F. App’x 512, 515 (3d Cir. 2003).
The Court is bound by the ALJ’s findings that are supported by substantial evidence “even
if [it] would have decided the factual inquiry differently.” Hartranft, 181 F.3d at 360. Thus, this
Court is limited in its review because it cannot “weigh the evidence or substitute its conclusions
for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).

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Regarding the ALJ’s assessment of the record, the Third Circuit has stated, “[a]lthough the
ALJ 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.” Burnett v. Comm’r of Soc. Sec., 220
F.3d 112, 121 (3d Cir. 2000). The Third Circuit noted, however, that “Burnett does not require
the ALJ to use particular language or adhere to a particular format in conducting his analysis.
Rather, the function of Burnett is to ensure that there is sufficient development of the record and
explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d
Cir. 2004).
III.

ALJ GIANNOPOULOS’S DECISION
ALJ Giannopoulos applied the five-step disability evaluation process required by 20 C.F.R

§§ 404.1520(a)(4) and 416.920(a)(4) and determined that Plaintiff was not disabled under the Act.
(Tr. at 43-49). The ALJ also found that Plaintiff last met the insured status requirements of the
Act on December 31, 2009. (Id. at 43).
At step one, the ALJ determined that Plaintiff did not engage in substantial gainful activity
during the period at issue, the alleged onset date of November 5, 2008 through the date last insured
of December 31, 2009. (Id. at 45).
At step two, the ALJ determined that Plaintiff had the following severe impairments: loss
of vision in the left eye, partial loss of vision in the right eye, and diabetes. (Id.). The ALJ found
that Plaintiff’s psychiatric impairments were not medically determinable prior to the date last
insured because Plaintiff’s first psychiatric admission was not until August 5, 2012. (Id.).
At step three, ALJ Giannopoulos determined that for the period at issue, the Plaintiff did
not have an impairment or combination of impairments that met or medically equaled the severity
of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id. at 46).

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Specifically, the ALJ found that (i) Plaintiff’s right eye was not equal to or less than 20/200, as
required by listing 2.02; (ii) Plaintiff’s right eye did not meet the requirement of “contraction of
peripheral visual fields in the better eye to ten degrees or less from the point of fixation or so the
widest diameter subtends an angle no greater than twenty degrees or to twenty percent or less
visual field efficiency,” as required in listing 2.03; and (iii) Plaintiff’s right eye did not have the
visual efficiency, after best correction, of twenty percent or less, as required by listing 2.04. (Id.).
At step four, the ALJ found that during the relevant time period, Plaintiff “had the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he was limited
to occasionally climbing ramps and stairs and never climbing ladders and scaffolds.” (Id.). ALJ
Giannopoulos also found the following additional limitations: (i) Plaintiff could never be exposed
to unprotected heights; (ii) Plaintiff could occasionally be exposed to moving mechanical parts;
(iii) Plaintiff could occasionally operate a motor vehicle; (iv) Plaintiff could have no exposure to
extreme cold; and (v) Plaintiff’s vision was limited to reading ordinary newspaper or book print.
(Id.).
ALJ Giannopoulos also determined “that [Plaintiff’s] medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible.” (Id.). The ALJ noted that Plaintiff’s vision was improving throughout the time at issue,
and Plaintiff was not found to be legally blind in his left eye until March 6, 2012. (Id. at 47). The
ALJ also references Plaintiff’s ability to complete the Adult Function Report himself. (Id. at 48).
ALJ Giannopoulos concluded his step-four analysis by stating that “the credibility of [Plaintiff’s]
allegations is weakened by inconsistencies between his allegations and the medical evidence.”
(Id.).

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At step five, the ALJ found that Plaintiff was capable of performing past relevant work as
both a mortgage loan processor and retail sales clerk. (Id.). “This work did not require the
performance of work-related activities precluded by [Plaintiff’s] residual functional capacity.”
(Id.) ALJ Giannopoulos agreed with the vocational expert that an individual such as Plaintiff
would be capable of performing this past relevant work. (Id. at 49).
Accordingly, ALJ Giannopoulos found that Plaintiff was not disabled, as defined in the
Act, during the period of time from November 5, 2008 to December 31, 2009. (Id.).
IV.

DISCUSSION
After reviewing the parties’ submissions in support of and in opposition to the instant

appeal, and the parties’ supplemental submissions, the Court finds that ALJ Giannopoulos failed
to perform a proper combination analysis.
At step three, the ALJ must consider the medical severity of the claimant’s impairment(s)
and whether the impairment(s) “meets or equals one of [the] listings in Appendix 1” of 20 C.F.R.
Part 404, Subpart P. See 20 C.F.R. § 404.1520(a)(4)(iii). Although the claimant bears the burden
of proving that his impairments meet those listed in Appendix 1, if a claimant’s impairments do
not meet the requirements of any listing, the ALJ is required to determine whether the combination
of impairments is medically equal to any listed impairment. Torres v. Comm’r of Soc. Sec., 279
F. App’x 149, 151-52 (3d Cir. 2008) (citing Burnett, 220 F.3d at 120 n.2; 20 C.F.R. § 404.1526(b)).
Further, the ALJ must set forth the reasons for his decision. Burnett, 220 F.3d at 119. Conclusory
statements have been found to be “beyond meaningful judicial review.” Id. In Jones v. Barnhart,
the Third Circuit clarified Burnett, stating that Burnett does not require the ALJ to use specific
language. 364 F.3d 501, 505 (3d Cir. 2004). But Jones nevertheless states that there must be

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“sufficient development of the record and explanation of the findings to permit meaningful
review.” Id.
Here, ALJ Giannopoulos concluded—without discussion or analysis—that “the claimant
did not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Tr. at
46). While the ALJ provides the definition for the listings in sections 2.02, 2.03, and 2.04, he
summarily concludes that “[t]he evidence of record fails to demonstrate that any of these criteria
were met during the alleged onset date through the claimant’s date last insured.” (Id.). The
ALJ’s five-sentence step-three analysis is reproduced verbatim below:
Consideration was given to the listings in sections 2.02, 2.03 and
2.04. Listing 2.02 requires remaining vision in the better eye after best
correction of 20/200 or less. Listing 2.03 required a contraction of
peripheral visual fields in the better eye to ten degrees or less from the point
of fixation or so the widest diameter subtends an angle no greater than
twenty degrees or to twenty percent or less visual field efficiency. Listing
2.04 requires that the visual efficiency of the better eye after best correction
is twenty percent or less. The evidence of record fails to demonstrate that
any of these criteria were met during the alleged onset date through the
claimant’s date last insured.
(Id.). The Court agrees with Plaintiff that this is an insufficient step-three combination analysis.
(See Pl. Supp. Br. at 1). The analysis is conclusory and inadequate. The ALJ must set forth the
reasons for his decision. Burnett, 220 F.3d at 119. Conclusory statements, like the one in this
case, are “beyond meaningful judicial review.” Burnett, 220 F.3d at 119 (stating that an ALJ’s
“conclusory” one-sentence step-three analysis was “beyond meaningful judicial review”).
Although the ALJ states that Plaintiff’s impairments do not meet the Appendix 1 listings
individually, the ALJ does not provide any analysis or explanation for why Plaintiff’s
impairments—in combination—do not meet or equal an Appendix 1 listing. As in Torres, the ALJ
here failed at step three by not considering Plaintiff’s impairments in combination.

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The Court is unpersuaded by Defendant’s argument that “[t]he Third Circuit has generally
followed a different approach from that stated in Torres.” (Def. Supp. Br. at 1). The cases on
which Defendant relies (except Johnson v. Comm’r of Soc. Sec., 398 F. App’x 727 (3d Cir. 2010))
were decided prior to the Third Circuit’s Torres decision. (See, e.g., id. at 2 (citing Poulos v.
Comm’r of Soc. Sec., 474 F.3d 88 (3d Cir. 2007) and Klangwald v. Comm’r of Soc. Sec., 269 F.
App’x 202 (3d Cir. 2008)). And Johnson does not divert from—or even reference—the court’s
ruling in Torres, namely that a conclusory statement is not sufficient for a proper step-three
combination analysis. See Johnson, 398 F. App’x at 734; Torres, 279 F. App’x at 152.
Accordingly, the Court remands this case so that the ALJ can complete his step-three
analysis. In doing so, the ALJ should address the combined effects of Plaintiff’s individual
impairments and detail whether the combination of all of Plaintiff’s impairments is equivalent in
severity to a listed impairment. Pending the outcome of the combination analysis at step three, the
ALJ should reconsider his determinations at steps four and five, if necessary.
V.

CONCLUSION
For the foregoing reasons, the Court hereby vacates ALJ Giannopoulos’s decision and

remands the case for further proceedings consistent with this Opinion. An appropriate Order
accompanies this Opinion.
s/ Esther Salas
Esther Salas, U.S.D.J.

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