RIOS v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Kevin McNulty on 8/23/2017. (ld, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:16-cv-04367-KM

NILDA RIOS,
Plaintiff,

OPINION
V.

COMMISSIONER OF SOCIAL SECURITY
Defendant.

KEVIN MCNULTY, U.S.D.J.:

Nilda Rios brings this action pursuant to 42 U.S.C.

§

405(g) to review a

final decision of the Commissioner of social Security (the “Commissioner”)
denying Rios’s claims for Supplemental Securiw Income (“SSI”) under Title XVI
of the Social Security Act. For the reasons set forth below, the decision of the
Administrative Law Judge (the “ALP’) is AFFIRMED.
I.

BACKGROUND

Rios applied for SSI benefits on February 11, 2013, alleging a February
16, 2009 onset of disability (R 201.207).1 Her claim was denied initially on July
2, 2013 (R 90-104), and on reconsideration on December 2, 2013 (R 108—110).
Rios subsequently requested and received a hearing before an ALl (seeR 111129, 156—190), at which Rios testified on September 2, 2015 (seeR 42—64).
ALl Dennis O’Leary issued a decision dated October 19, 2015, finding
Rios “not disabled” (seeR 20-4 1). On November 25, 2015, Rios filed a request
for review of the ALl’s decision (see R 18—19), which the Appeals Council
denied on May 27, 2016 (see R 1—9), thereby rendering ALl O’Leary’s
Pages of the
Pages of the administrative record (ECF No. 6) are cited as “R
Pages of the Defendant’s Brief (ECF
“Br.
Plaintiffs Brief (ECF No. 10) are cited as
Pages of the Plaintiffs Reply Brief (ECF No. 12) are cited
No. 11) are cited as “Opp.
as “Reply
“.

“.

.“.

1

October 19, 2015 decision the final decision of the Commissioner. Rios now
appeals that decision to this Court for review under 42 U.S.C.
II.

§ 405(g).

DISCUSSION

To qualify for Title XVI SSI benefits, a claimant must meet income and
resource limitations and 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.

§ 1382, 1382c(a)(3)(A),(B); 20 C.F.R. § 416.905(a); see lug v. Comm’r

Soc. Sec., 570 F. App’x 262, 264 (3d Cir. 2014).
A. Five-Step Process and this Court’s Standard of Review

Under the authority of the Social Security Act, the Social Security
Administration (the “SSA”) has established a five-step evaluation process for
determining whether a claimant is entitled to benefits. 20 CFR

§ 4 16.920. This

Court’s review necessarily incorporates a determination of whether the ALT
properly followed the five-step process prescribed by regulation. The steps may
be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 CFR
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.

§ 416.920(c). If the

claimant has a severe impairment, move to step three.
Step 3: Determine whether the 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 benefits (and the analysis ends); if
not, move to step four. 20 CFR §416.920(d).

2

§

Step 4: Determine whether, despite any severe impairment, the claimant

retains the Residual Functional Capacity (“RFC”) to perform past relevant
work. Id.

§ 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

§ 416.920(g); see Poulos v. Comm’r of Soc. Sec., 474 F.3d 88,

91—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’rof Soc. Sec., 181 F.3d 429, 431 (3d
Cir. 1999). The factual findings of the AW are reviewed “only to determine
whether the administrative record contains substantial evidence supporting the
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 u. Bamhart, 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 AW’s factual findings, this Court must abide by the AW’s
determinations. See id. (citing 42 U.S.C.
This Court may, under 42 U.S.C.

§ 405(g)).
§ 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.
Commrof Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007) (non
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. Podedwomy, 745 F.2d at
22 1—222; Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000).

3

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 22 1—22. Remand is also proper
if the ALT’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett z’. 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 ALT’s conclusion that [the claimant]
was not disabled during the relevant period, where his decision contains
significant contradictions and is therefore unreliable.”) (non-precedential). It is
also proper to remand where the ALT’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available
evidence” in the record. Adorno

ii.

Shalala, 40 F.3d 43, 48 (3d Cir. 1994)

(internal quotation marks omitted).
B. The AU’s Decision

ALT O’Leary properly followed the five-step process. I summarize his
conclusions here:
Step 1
At step one, ALT O’Leary found that Rios had not engaged in substantial
gainful activity from the application date of February 11, 2013. (1? 28)
Step 2
At step two, the ALT found that Rios had the following severe
impairments: obesity, sleep apnea, cervical and lumbar spine impairment, a
right knee impairment, and a mood disorder. (Id.)
The ALT declined to find that Rios’s alleged thyroid disorder and asthma
are severe impairments, reasoning that both are well controlled with
medication and impose only a minimal effect on Rios’s ability to work. (Id.)
Substantial evidence supports this conclusion, which Rios does not challenge.
(See]? 76)

4

Step 3
At step three, AU O’Leary stated that Rios’s impairment or combination
of impairments neither met nor medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Id.). With
respect to physical impairments, he concluded after a brief but satisfactory
discussion that Rios’s severe impairments do not meet any of the listed
impairments in Section 1.00 (musculoskeletal system impairments), citing a
lack of supporting evidence in Rios’s medical record as the basis for his finding.

(Id.)
The AU also found that Rios’s mental impairments, alone and in
combination, did not meet or medically equal listing 12.04, which concerns
depressive, bipolar and related disorders.2 Here, AU O’Leary offered a lengthy

A claimant meets or medically equals listing 12.04, Depressive, bipolar and
related disorders, when he or she either satisfies both the paragraph A and paragraph
B criteria, or both the paragraph A and paragraph C criteria of that listing.
2

To satisfy the paragraph A criteria, a claimant must, in essence, medically
document the persistence of depressive or bipolar disorder. To satisfy the Paragraph
B, a claimant must demonstrate an extreme limitation in one, or a marked limitation
in two, of the following areas of mental functioning: (1) Understand, remember, or
apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace;
and (4) Adapt or manage oneself. To satisfy the Paragraph C criteria, the claimant
must demonstrate that his or her mental disorder is “serious and persistent,” meaning
the existence of the disorder has been medically documented for at least two years and
there is evidence of both: (1) medical treatment, mental health therapy, psychosocial
support, or a highly structured setting that diminishes the signs and symptoms of the
disorder, and (2) a minimal capacity to adapt to changes in the environment or
demands not already part of daily life.
https: / /www.ssa.gov/disability/professionals/bluebook/ 12 .00-MentalDisordersAdult.htm#12_04; 20 C.F.R. Pt. 404, Subpt. P, App. 1.
Until recently, and under the version of the medical listings AU O’Leary
considered, Paragraph B of listing 12.04 required the claimant to demonstrate that his
or her disorder caused at least two of the following: (1) “Marked restriction of activities
of daily living”; or (2) “Marked difficulties in maintaining social functioning”; or (3)
“Marked difficulties in maintaining concentration, persistence, or pace”; or (4)
Paragraph C
“Repeated episodes of decompensation, each of extended duration
required:
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
5

written evaluation of the evidence. First, with respect to Paragraph B criteria,
he observed that Rios has only mild limitations in daily living; “she is able to
attend to self-care tasks, cook, clean, shop, drive, and negotiate public
transportation independently.” (R 29 (citing R 230—237, 246—253, 583—586)
AL] O’Learr concluded that Rios also has only mild difficulties in social
functioning. Although Rios reported that she does not socialize, the report of
Dr. Perdomo, a consultative psychologist, indicates that Rios participates in
group therapy; is organized, focused, and uses coherent and relevant speech;
and shows no psychosis or disordered thought. (1? 29 (citing R 583—586) The
AL] also observed that state psychological examiners concluded that Rios is
not significantly limited in her ability to work in coordination with or near
others. (R 29; see 1? 74—78)
Next, AL] O’Leary found that Rios has moderate difficulties in
concentration, persistence, and pace. He based this finding primarily on state
psychological examiners’ reports. The state examiners reported that Rios is
moderately limited in her ability to maintain attention and concentration,
perform activities on-schedule, and perform at a consistent pace. (R 29 (citing
1? 66—80, 82—97)) In contrast, Dr. Perdomo’s report showed Rios to have only
mild impairment in short-term memory, good long-term memory, fair
concentration, and orientation to time, place, and person. (R 29; see R 583—
585) AL] O’Leary also observed that Rios has experienced no extended periods
of decompensation. (1? 29)

psychosocial support, and” any of three symptoms: 1)
repeated episodes of decompensafion; 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.
Sec Kovach v. Comm’r of Soc. Sec., No. CV 15-6999 (1(M), 2017 WL 1095037, at *4
(D.N.J. Mar. 22, 2017); Trzeciak v. Calvin, No. CV 15-6333 (1(M), 2016 WL 4769731, at
*7 (D.N.J. Sept. 12, 2016). (R 28—30)

6

Substantial evidence supports the AW’s conclusion concerning the
Paragraph B criteria. A claimant meets Listing 12.04, however, if her medical
evidence satisfies the Paragraph A and B criteria or the Paragraph A and C

criteria. (See n.2, supra)
Therefore, the AW also determined that Rios’s medical evidence failed to
support Paragraph C findings. He found that Rios’s mental impairments have
not caused “repeated episodes of decompensation, a residual disease process
resulting in marginal adjustment, or a history of inability to function outside of
a highly supportive living arrangement.” (R 29) Having reviewed the record
evidence, I find that substantial evidence supports the AW’s finding that the
Paragraph C criteria are not met, even in light of the revised criteria. (See 20
C.F.R.

§

Pt. 404, Subpt. P, App. 1, Listing 12.04; cf R. 77 (“[Claimant] can

learn and perform simple, routine tasks.”); R 78 (indicating no limitations or
only moderate impairments in various “adaptation limitations”)).

Step 4— RFC and Ability to Perform Past Work
Next, AW O’Leary defined Rios’s RFC as follows:
[T]he claimant has the [EEC] to perform light work
as defined in 20 CFR 416.967(b) except the
claimant is limited to frequent but not continuous
fine fingering and manipulation with the right
hand, no limitation with the left hand. The
claimant is limited to simple, repetitive tasks.
(R 3Q).3

3

The Social Security Administration defines “Light work” as follows:
Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up
to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal
of walldng or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light
work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as

7

The AW thoroughly considered the record evidence before arriving at this
RFC, following a two-step process in which he determined (1) whether the
evidence supports the existence of medically determinable physical or mental
impairments and whether the impairments could reasonably be expected to
produce the pain and other symptoms Rios reports; and (2) the extent to which
the “intensity, persistence, and limiting effects” of Rios’s symptoms limit her
functioning, assigning credibility-based weight to statements concerning
intensity, persistence, and limiting effect in the record. (R 30)
1. Physical Limitations
First, the AU

addressed Rios’s allegations that she cannot work because

of physical limitations consisting of sleep apnea, spinal impairment, a right
knee implant, neck and back pain, and pain and weakness in her hands. (R 30
(citing R 575—578) He surveyed the evidence supporting Rios’s physical
impairments.
Rios’s medical records included 2013 and 2015 spinal MRI and x-ray
results indicating bulging discs, spondylosis, and multilevel degenerative disc
disease. (R 31; seeR 283, 295, 537, 646) Additionally, 2012 and 2014 x-rays of
loss of fine dexterity or inability to sit for long periods of
time.
20 C.F.R.

§ 404. 1567(b) and 416.967(b).

SSR lô-3p eliminated the term “credibility” from the agency’s sub-regulatory
policy and was issued after AU O’Leary issued his October 22, 2015 decision. See Soc.
Sec. Ruling l6-3p; Titles H & Xvi: Evaluation of Symptoms in Disability Claims, SSR 163P (S.S.A. Mar. 16, 2016). Under the new guidance of SSR l6-3p, however, AWs are
still called on to (1) determine whether the claimant has a medically determinable
impediment that could reasonably be expected to produce the claimant’s alleged
symptoms and (2) evaluate the intensity and persistence of the claimant’s symptoms,
based on the record evidence as a whole. This is the same responsibility with which
AWs were charged under the agency’s previous guidance. See Cole it. Coluin, No. 153883, 2016 XML 39g7246, at *1(7th Cir. July 26, 2016). (“[Tjhe change in wording is
meant to clarify that administrative law judges aren’t in the business of impeaching
claimants’ character; obviously administrative law judges will continue to assess the
credibility of pain assertions by applicants, especially as such assertions often cannot
be either credited or rejected on the basis of medical evidence.”); Mumane v. Colvin,
No. CV 15-7704 (KM), 2017 XVL 548942, at *6 (D.N.J. Feb. 10, 2017).
S

Rios’s right knee showed mild arthritic changes (R 31; see 1? 282, 285—286),
and a 2014 MRI of the right knee showed moderate medial compartment
arthritic change and associated meniscal tearing (R 31; see R 631—632).
Moreover, 2012 and 2013 EMO nerve conduction studies showed lumbo-sacral
radiculopathy, mild sensory peripheral neuropathy in the lower extremities,
moderate right sensorimotor carpal tunnel syndrome, and mild left sensory
carpal tunnel syndrome. (R 31; see I? 288, 372, 573, 597)
AW O’Leary also considered: (1) polysomnography results from February
2015 showing severe obstructive sleep apnea; (2) Rios’s obesity (R 3 1—32 (citing
R 575)); and (3) an August 2015 report of neurologist Dr. Roblejo, which
reported that Rios scored 5/5 on a motor examination, showed intact
sensation, and 1+ deep tendon reflexes in the upper extremities and patellars,
but an absent ankle jerk reflex (R 31; see R 704).
The AW considered this medical evidence in the context of record
evidence that Rios is capable of performing a range of light exertional work. (R
30—31) In support of Rios’s light work capabilities he noted the limited
treatment records since 2013; the fact that Rios had no surgical interventions
for her neck, back, or wrists; and Rios’s normal musculoskeletal findings, gait,
and motor and sensory exarninafion results. (1? 31) He also observed that in
Rios’s October 2013 consultative psychologist report, Dr. Perdomo noted that
Rios had walked six blocks to his office. (R 31; seeR 584)
The report of a consultative orthopedist, Dr. Potashnik, also supported a
“light work” RFC. Dr. Potashnik observed in June of 2013 that Rios was in no
acute distress, was able to walk normally without assistance, and exhibited a
functional range of motion and normal strength in the upper and lower
extremities with only spinal and knee tenderness, shoulder discomfort, and
burning sensations in the forearms. Dr. Potashnik opined that Rios might be
limited only in activities requiring repetitive use of the hands. (R 32; see R 575—
576)

9

AW O’Leary gave “some weight” to Dr. Potashnik’s findings, but less to
the portion of Dr. Potashnik’s opinion concerning Rios’s manipulative
limitations. O’Leary reasoned that the manipulative limitations were consistent
only with EMQ test results; Rios had not received any sort of treatment for
carpel tunnel syndrome. (R 34)
The state medical consultant’s report also stated that Rios could perform
light work, finding Rios capable of carrying up to twenty pounds occasionally
and ten pounds frequently; of walking or standing for up to six out of eight
hours; and of occasionally climbing, stooping, keeling, crouching, or crawling.
(R 32; see R 73, 75—76) Upon reconsideration, a second state medical
consultative examiner confirmed these findings. (R 32; see R 92—93)
AW O’Leary gave some weight to the state medical consultants’ reports,
crediting their consistency with Rios’s generally benign examination findings,
Rios’s lack of significant or consistent treatment, and her reported daily living
activities. (R 34)
The AW gave “little weight” to two other items in the record: (1)
assessments completed in connection with a Department of Health Services
employment evaluation, which stated that Rios cannot work, (R 34; see 544,
589), on the grounds that the evaluation provided “non-specific statements
that do not provide a function-by-function assessment of [Rios’s] limitations
and abilities”; and (2) a 2010 worker’s compensation report by Dr. Horwitz, a
forensic examiner hired for the purpose of a worker’s compensation proceeding.
(R 34; see R 626—630) In addition to being completed nearly three years prior to
the relevant period, Dr. Horwitz’s report has minimal probative value, the AU
explained, because New Jersey’s workers compensation procedures and legal
standards differ dramatically from those used in Social Security disability
proceedings, and physicians’ reports in the workers compensation setting are
well known for overstating the extent of a claimant’s injuries and disabilities. (1?
34)

10

2. Mental Limitations
The AU addressed Rios’s allegations that she cannot work because of
symptoms related to her mood disorder: insomnia, crying spells, anhedonia,
lack of energy, irritability, and anxiety. (R 32 (citing 1? 583) AU O’Leary found
that Rios’s alleged symptoms lack supporting medical evidence. He reiterated
the results of the state psychological consultants’ assessments of Rios (R 32
(citing 2A, 2F); see Section II.B. at Step 3, supra), to which he assigned “some
weight.” He noted that Dr. Perdomo had assigned Rios a Global Assessment of
Functioning (“GAP”) score of 50 to 60, “indicating significant symptoms,
affecting occupational functioning.” (R 32 (citing R 856)) Nevertheless, AU
O’Leary stated that because GAP scores “represent a subjective interpretation
of the claimant’s general functioning at the particular time of the assessment,”
he gave Rios’s GAF score “[ijittle weight.” (R 34)
AU O’Leary also observed that Rios attended group therapy in 2013,

where she “consistently presented with a depressed and anxious mood but was
active and attentive.” (R 32 (citing R 4 15—528) He referred to an August 2015
examination in which Rios was similarly reported to have “presented as
appropriate, and oriented to person, place and time,” with normal fluency,
recall, calculation, and appropriate affect. (R 32 (citing R 704))
In light of this record evidence, AU O’Leary concluded that Rios’s
allegations were inconsistent with the objective medical evidence. He further
illustrated this conclusion with examples. First, he contrasted Rios’s testimony
that she spends all of her time taking medications with conflicting testimony
that she takes walks to the market and drives her car to visit her grandson. (I?
33; see R 53—55 583—585, 246—252, 584) He also noted Rios’s admitted ability
to cook, attend to self-care, clean, shop, and take public transportation. (See
id.)
Second, AU O’Leary rejected Rios’s allegation that her inability to learn
English suggests cognitive loss; the AU observed that Rios is in her SOs (an
age at which learning a new language would be difficult for most people) and

11

that even a neurologist told Rios that she had no cognitive problems. (1? 33; see
R 60)
Third, AW O’Leary considered that Rios did not accurately report when
she had last worked. She reported that she last worked in February 2009 (see
R 238), but admitted at her hearing that she had looked for work since leaving
that job and even worked as a babysitter for a few months in 2012 until she
stopped because she was “nervous.” (R 33; see R 49—50)
Finally, the AW pointed to discrepancies in Rios’s testimony concerning
the frequency with which she attends a clinic; she testified that she goes every
day but also admitted that she is not currently going to the clinic. (R 33; see R
50)
3. Past Relevant Work
Comparing Rios’s RFC to the physical and mental demands of her past
work as a production assembler and also considering the testimony of a
vocational expert (“yE”) who testified that production assembler (DOT code no.
076.687-0 10) involves light, unskilled work (SVP 2), AI2 O’Leary determined
that Rios is capable of performing her past relevant work. Therefore, without
reaching Step 5, he determined that since February 11, 2013, Rios has not
been under a disability as it is defined in the Social Security Act. (R 35)
C. Rios’s Appeal and Analysis
Rios asks for reversal or remand of the AU’s decision based on any of
three errors she assigns to the AU’s analysis. First, the AU should have
undertaken a more thorough Step 3 analysis of the 1.00 listings, says Rios.
She argues that the AU should have included an analysis of the combined
effect of all of her impairments. (Br. 35) Second, Rios says AU O’Leary failed to
consider and explain his reasons for discounting certain medical evidence in
the record. (Id. 37) Third, Rios argues that light work is beyond her capability;
medical evidence contradicts the AU’s findings concerning her ability to
perform any light work, she says. (Id. 37—38)

12

I find that AW O’Leary sufficiently evaluated the record evidence and
that substantial evidence supports the AW’s findings. Any minor oversights or
flaws in the ALPs analysis amount to no more than harmless error.
Medical Equivalence Analysis

1.

At Step 3, if an AW does not find that any single impairment meets those
described in the Appendix 1 listings, the AU must consider whether the
claimant’s impairments in combination are medically equivalent to one of the
Appendix 1 impairments. The regulations set forth three ways in which an AU
might find medical equivalence:
(1)(i) If you have an impairment that is described in appendix
1, but—
(A) You do not exhibit one or more of the findings
specified in the particular listing, or
(B) You exhibit all of the findings, but one or more of
the findings is not as severe as specified in the
particular listing,
(ii) We will find that your impairment is medically
equivalent to that listing if you have other findings
related to your impairment that are at least of equal
medical significance to the required criteria.
(2) If you have an impairment(s) that is not described in
appendix 1, we will compare your findings with those
for closely analogous listed impairments. If the
findings related to your impairment(s) are at least of
equal medical significance to those of a listed
impairment, we will find that your impairment(s) is
medically equivalent to the analogous listing.
(3) If you have a combination of impairments, no one of
which meets a listing (see § 404.1525(c)(3)), we will
compare your findings with those for closely analogous
listed impairments. If the findings related to your
impairments are at least of equal medical significance
to those of a listed impairment, we will find that your
combination of impairments is medically equivalent to
that listing.
20 C.F.R.

§

404.1526.

With respect to medical equivalence, the U.S. Court of Appeals for the
Third Circuit has explained:
13

Although the claimant bears the burden of proving
that his impairments equal or meet those listed in
Appendix 1, if a claimant’s impairment does not match
one listed in Appendix 1, the ALl is required to
perform a comparison between the claimant’s
impairment(s) and those listed in Appendix 1. 20
C.F.R. § 404.1526(b). This court has stated that it is
to identify the relevant
the ALl’s “responsibility
listed impairment(s)” and ‘develop the arguments
both for and against granting benefits.’” Burnett i,’.
Comm’r of Soc. Sec., 220 F.3d 112, 120 n. 2 (3d
Cir.2000) (quoting Sims v. Apfel, 530 U.s. 103, 111,
120 s.Ct. 2080, 147 L.Ed.2d 80 (2000)).
...

“

Torres v. Coram’r of Soc. Sec., 279 F. App’x 149, 15 1—52 (3d Cir. 2008) (non
precedential). In Ton-es, where the ALl’s medical equivalence analysis consisted
of a one-sentence paragraph addressing both steps two and three and “failed to
combine [the claimant’s] many medical impairments and compare them to
analogous Appendix 1 listings,” the court concluded that it had no way to
meaningfully review the AM’s decision and thus remanded the case for fuller
development of the record and explanation at Step 3. Id. at 152.
Rios argues that I should reach the same conclusion with respect to AU
O’Leary’s concise Step 3 analysis. He stated:
The record fails to establish that the claimant has an
impairment or combination of impairments that meets
or medically equals the criteria of any listed
impairment. The medical evidence of record does not
document signs, symptoms, and/or laboratory
findings indicating any impairment or combination of
impairments severe enough to meet the criteria of any
listed impairment. No treating, examining, or nonexamining medical source has mentioned findings or
rendered an opinion that the claimant’s impairments,
singly or in combination, medically equaled the criteria
of any listed impairment. Specific consideration has
been given to the applicable sections of 1.00 of the
listed impairments.
(1? 28; see Br. 34—35) The Commissioner argues that this discussion, though
brief, is satisfactory.

14

The Commissioner adds that Rios was not entitled to a more thorough
analysis because she failed to carry three evidentiary burdens. First, the
Commissioner suggests that a claimant has the burden of identifying relevant
listings at Step 3, and that Rios failed to meet that burden. (See Opp. 10—1 1) I
am not persuaded by this specific argument. Indeed, the Third Circuit has
suggested that the claimant’s evidentiary burden does not include the burden
to find and identify the appropriate listing:
While the burden is on the claimant to present medical
findings that show his or her impairment matches a
listing or is equal in severity to a listed impairment,
see Williams v. Sullivan, 970 F.2d 1178, 1186 (3d
Cir. 1992), it is unclear from the regulations or caselaw
whether a claimant must identify the relevant
listing(s). The applicable regulations indicate that it is
within the realm of the ALPs expertise to determine
the closest applicable listed impairment, based on the
medical evidence, when examining whether a
claimant’s impairments meet or equal a listed
impairment:
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 120 n.2 (3d Cir. 2000).
More persuasive is the Commissioner’s second argument (see Opp. 11)—
that a claimant has “the burden of presenting sufficient evidence that her
medical problems were of listing severity.” Williams v. Comm’r of Soc. Sec., 156
F. App’x 501, 505 (3d Cir. 2005) (emphasis added). In Williams, where a
claimant’s evidence was insufficient to show that her impairments were of
“listing severity,” and the AL) concluded that because “the record ‘does not
disclose medical findings which meet or equal in severity the clinical criteria of
any impairment listed[,]’.

.

.

the AW’s explanation

as to be beyond meaningful judicial review.

.

.

.“

.

.

[was] not so insufficient

Id. See also Smith v. Ast rue,

No. 10-CV-5566 DMC, 2012 WL 1044301, at *10 (D.N.J. Mar. 28, 2012) (AL)
For example, the Commissioner cites Baflardo v. Bamhad, 68 F. App’x 337, 338
(3d Cir. 2003), where the Third Circuit detennined that “the AL) was not required to
articulate specific reasons that Ballardo’s impairment was not equal in severity to any
of the statutorily listed impairments.” Id. But this holding resting on the fact that the
claimant had “presented essentially no medical evidence of a severe impairment” for
the relevant time period. Id.
5

15

did not err in failing to consider a listing where the record did not support the
listing’s criteria).
I agree with the Commissioner that the medical evidence in the record
falls short of showing impairments of the severity necessary to meet any of the
Appendix 1, 1.00 listings, whether individually or in combination. The record
contains no evidence of surgery or surgical arthrodesis resulting in Rios’s
inability to walk (1.03) or of amputation, fracture, or soft tissue injury (1.051.08). The record does include medical evidence vaguely relevant to listings
1.02 or 1.04, and in theory, obesity could combine with other impairments.
1.02, Major dysfunction of ajotht(s), requires:
[Giross anatomical deformity (e.g.. subluxation, contracture, bony or
fibrous ankylosis, instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion of the affected
joint(s), and findings on appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankvlosis of the affected joint(s).
With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), resulting in inability to ambulate effectively, as defined in
1.OOB2b;
OR
B. Involvement of one major peripheral joint in each upper extremity (i.e.,
shoulder, elbow, or wrist-hand), resulting in inability to perform fine and
gross movements effectively, as defined in 1.0032c.
https: / /www.ssa.gov/disability/ professionals! bluebook! 1 .00-MusculoskeletalAdult.htm#1_02; 20 C.F.R. Pt. 404, Subpt. P, App. 1.
1.04 Disorders of the spine requires:
jcjompromise of a nen’e 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;
16

See 20 C.F.R. Pt. 404, Supt. P, App. 1,

§

1.00(Q) (“The combined effects of

obesiw with musculoskeletal impairments can be greater than the effects of
each of the impairments considered separately. Therefore, when determining
whether an individual with obesity has a listing-level impairment or
combination of impairments, and when assessing a claim at other steps of the
sequential evaluation process, including when assessing an individuals
residual functional capacity, adjudicators must consider any additional and
cumulative effects of obesity.”) But in this case, there was no record evidence
before the AU sufficient to establish that Rios’s obesity, even in combination
with other ailments, had significant clinical consequences.
Although an AU must proceed stepwise through the five-step analysis, I
also find that the AU’s thorough REt evaluation (see Section II.C.2, infra),
which includes discussion of all of Rios’s impairments that would be relevant
at Step 3, further supports this conclusion. In other words, to the extent AU
O’Leary’s Step 3 analysis is less thorough than it should be, his REt analysis
makes it clear that any procedural error was harmless.7

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/ 1 .00-MusculoskeletalAdult.htm#1_04; 20 C.F.R. Pt, 404, Subpt. P, App. 1.
Because I am satisfied that substantial evidence supports the Commissioner’s
medical equivalence analysis, I need not reach the third burden the Commissioner
asks me to impose on Rios: the burden to show that the AU’s shortcomings at Step 3
cause harm—i.e., alter the outcome of the decision. (See Opp. 12 (citing Gonzalez v.
Commof Soc. Sec., No. CV 14-810 (ES), 2016 WL 1306012, at 5 (D.N.J. Apr. 4,
2016) (“LW]here a plaintiff alleges error by the AU, ‘the burden of showing
harmfulness is normally on the party attacking the agency’s determination. (quoting
Shinseki v. Sanders, 556 U.S. 396, 398 (2009). While I think this burden might go too
far under certain circumstances (surely it cannot be that a claimant must prove her
disability before a district court can remand for a more thorough evaluation), my
finding of harmless en-or here essentially moots that discussion.
“

17

2. Omitted Medical Evidence and Rios’s Light Work RFC
I address Rios’s second and third arguments in combination, as the
sufficiency of the AW’s RFC evaluation necessarily bears on whether
substantial evidence supports Rios’s ability to perform light work.
Rios argues that AlA O’Leary failed to discuss or provide reasons for
discounting several of her medical impairments. In particular, she points to
podiatric treatment records that the AlA did not weigh and incorporate into the
RFC. (Br. 37) Rios aJ.so details her history of neck, back, and right knee,
supported by MRI, x-ray, and EMO diagnostics. (Id. 39—4 1) She admits that the
AlA considered some of this evidence, but claims he overlooked January 2013
and June 2015 MRIs and March 2015 x-rays. (Id. 41) Further, Rios urges that
AlA O’Leary failed to consider whether her obesity caused any physical or
mental RFC limitations, as required by SSR 02- ip. See Titles H & Xvi:
Evaluation of Obesity, 551? 02-1P (S.S.A. Sept. 12, 2002) (stating that the SSA
considers obesity to determine, inter a/ia, whether an individual can do past
relevant work (Step 4)).
First, the Commissioner responds that Rios did not submit her podiatric
treatment records to the SSA until after AlA O’Leary had rendered his decision.
(Opp. 14) Rios seems to concede this point in her reply brief and does not make
a case for remand under sentence six of 42 U.S.C.

§

405(g) (see generally

Reply).8 See Matthews v. Apfel, 239 F.3d 589, 592—93 (3d Cir. 2001) (“[W]e have

8

The court may, on motion of the Commissioner of Social
Security made for good cause shown before the
Commissioner files the Commissioner’s answer, remand the
case to the Commissioner of Social Security for further
action by the Commissioner of Social Security, and it may
at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence
into the record in a prior proceeding; and the Commissioner
of Social Security shall, after the case is remanded, and
after hearing such additional evidence if so ordered, modify
or affirm the Commissioners findings of fact or the
Commissioner’s decision, or both, and shall file with the
18

recognized that evidence first presented to the district court must not only be
new and material but also be supported by a demonstration by claimant of
‘good cause for not having incorporated the new evidence into the
administrative record.”’ (quoting Szubak a Sec’y of HHS, 745 F.2d 831, 833 (3d
Cir. 1984)). Therefore, the fact that ALl O’Leary’s did not consider these
records—at the RFC stage as well as at Step 3—was not an error.
I also do not think the ALl committed significant error in formulating
Rios’s RFC simply because (as Rios alleges) he failed to expressly discuss a few
of many MRI and x-ray examinations. The records Rios claims the ALl missed
(for which Rios does not provide specific citations) do not substantially alter the
picture of Rios’s musculoskeletal capabilities. At any rate, it appears that the
AU

did discuss certain if not all of these records. (Compare Opp. 41 (claiming

the AU “fail[ed} to cite to MRI evidence from January 2013 and June 2015 and
x-rays from March 2015.”), with R 31 (ALl’s decision noting January 2013 and
June 2015 spinal MRIs and March 2015 spinal x-rays, seeR 283, 646, 730—
731).)
Moreover, Rios points to no medical evidence indicating that her obesity
impacts her physical or mental functioning. The AU stated in his decision that
he considered Rios’s obesity, expressly noting Rios’s height and weight. (R 32)
That is sufficient.
I do not suggest that the ALl’s conclusion is the only one that could be
drawn from this record. I do find, however, that substantial evidence supports
the RFC that the AU did assign to Rios. Accordingly, Rios’s ability to perform
light work to the extent described in the RFC has substantial support as well.

court any such additional and modified findings of fact and
decision, and, in any case in which the Commissioner has
not made a decision fully favorable to the individual, a
transcript of the additional record and testimony upon
which the Commissioner’s action in modifying or affirming
was based.
42 U.S.C. § 405.
19

III.

CONCLUSION

For the foregoing reasons, AL] O’Leary’s decision is AFFIRMED.
An appropriate order accompanies this Opinion.
Dated: August 23, 2017
MCNULTY
United States District

20