LAFEVER v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Chief Judge Jose L. Linares on 7/18/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAVID G. LAFEVER,
Civil Action No. 16-5071 (JLL)
Plaintiff,
OPINION

V.

NANCY A. BERRYHLL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
LINARES, Chief District Judge.
This matter comes before the Court upon the appeal of David G. Lafever (“Plaintiff’) from
the final decision of the Commissioner upholding the final determination by Administrative Law
Judge (“ALJ’) Theresa Merrill that Plaintiff was not disabled from the period of August 8, 2010
through December 23, 2012.! The Court resolves this matter on the parties’ briefs pursuant to
Local Civil Rule 9.1(f). The Court has reviewed the parties’ submissions (ECF Nos. 12, 15), and
for the reasons stated below, the Court remands this matter back to the AU for further action in

accordance with this Opinion.
I.

BACKGROUND2

The Court writes for the parties who are familiar with the facts and procedural history of
the case. The Court therefore specifically addresses, in the discussion below, only those facts
relevant to the issues raised on appeal.

‘The AU found Plaintiff to be disabled as of December 24, 2012. However, Plaintiff argues that
he was disabled, and therefore entitled to benefits, as of August 8, 2010.
2
“R.” refers to the Administrative Record, which uses continuous pagination and can be found at
ECFNo. 6.

II.

STANDARD OF REVIEtV

A reviewing court xviII uphold the Commissioner’s facttial decisions if they are supported
by substantiat evidence.” 42 U.S.C.

13$3(c)(3); Sykes v. Apfel, 22$ F.3d 259, 262 (3d

§ 405(g),

Cir. 2000). Substantial evidence means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion,” and “[lit 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) (internal
quotations omitted). Additionally, under the Social Security 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 alone 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
would lead to a conclusion that
furnished under this paragraph.
the individual is under a disability.
.

Id.; see 42 U.S.C.

§

.

13$2c(a)(3)(A). Factors 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.

§ 404.1527(c).

The substantial evidence standard is a deferential standard of review.” Jones, 364 F.3d at
503. The AU is required to ‘set forth the reasons for [her] decision” and not merely make
conclusory unexplained findings. Burne!lv. Coni;,, ‘rofSoc. See, 220 F.3d 112, 119 (3d Cir. 2000).
Bitt, if the AU’s decision is adequately explained and supported. the Court is not ‘ernpowered to

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weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams v Sttllivan,
970 f.2d 1178, 1182 (3d Cir. 1992). It does not matter if this Court “acting de

nova

might have

reached a different conclusion’ than the Commissioner. Monsotir Med. Ctr. v. Heckler, $06 F.2d
1185, 1190-91 (3d Cir. 1986)). Finally, the Third CircLlit has made clear that “Burnett does not
require the AU 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 PROCESS AND THE AU’S DECISION
A claimant’s eligibility for benefits is governed by 42 U.S.C.

§

1382. Pursuant to the Act,

a claimant is eligible for benefits if he meets the income and resource limitations of 42 U.S.C.

§

13$2(a)(1)(A)-(B) and demonstrates that he is disabled based on an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C.

§ 423(d)(lA).

A person is disabled

only if 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 Third Circuit has summarized “the five step sequential evaluation for determining
whether a claimant is under a disability, as set forth in 20 C.F.R.

§ 404.1 520’

as follows:

In step one, the Commissioner must determine whether the claimant is currently
engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a). If a claimant is
found to be engaged in substantial activity, the disability claim will be denied.
Bowen v. Yuckert, 482 U.S. 137. 140 (1987).
In step two, the Commissioner must determine whether the claimant is suffering
from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant fails to show
that her impairments are “severe,” she is ineligible for disability benefits.
3

In step three, the
impairment to a
gainful work. 20
impairment or its

Commissioner compares the medical evidence of the claimant’s
list of impairments presumed severe enough to preclude any
C.F.R. § 404.1520(d). If a claimant does not suffer from a listed
equivalent, the anaLysis proceeds to steps four and five.

Step four requires the AU to consider whether the claimant retains the residual
functiotial capacity [(“RFC”)J to perform her 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 the claimant is unable to resume her former occupation, the evaluation moves to
the final step. At this stage, the burden of production shifts to the Commissioner,
who must demonstrate the claimant is capable of performing other available work
in order to deny a claim of disability. 20 C.F.R. § 404.1 520(f). The AU must show
there are other jobs existing in significant numbers in the national economy which
the claimant can perform, consistent with her medical impairments, age, education,
past work experience, and residual functional capacity. The AU must analyze the
cumulative effect of all the claimant’s impairments in determining whether she is
capable of performing work and is not disabled.
Burnett v. Comm ‘r of Social Sec. Admin., 220 F.3d 112 (3d Cir. 2000) (formatting and emphasis
added). “The claimant bears the burden of proof for steps one, two, and four of this test. The
Commissioner bears the burden of proof for the last step.” Sykes, 228 F.3d at 263 (citing Bowen
v. Yuckert, 482 U.S. 137, 146 n. 5 (1987)). Neither party bears the burden of proof at step three.
Id. at 263 n.2.
In this case, the AU engaged in the above five step sequential evaluation and found: (Step
1) that Plaintiff “has

not

engaged in substantial gainftil activity since the alleged onset date” (R. at

31); (Step 2) that Plaintiff suffers from the following severe impairments: ankylosing spondylitis;
affective disorder; anxiety disorder, and; substance addiction disorder (id. at 32); (Step 3) that
since the alleged disability onset date, Plaintiff Thas not had an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments” (id.);
(RfC) that, since the alleged onset date of August 8, 2010, Plaintiff had the RFC to perform light
work which may require him to stand for up to four hours in an eight-hour day (Id.); (Step 4) that

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since the alleged onset date, Plaintiff “has been unable to perform any past relevant
36). finally, at step

five,

work”

(id. at

after hearing the testimony of a vocational expert (“yE”), the AL]

concluded that “[p]rior to December 24, 2012, the date the claimant’s age category
administratively changed, considering the claimant’s age, education, work experience, and
residual functional capacity, there were jobs that existed in significant numbers in the national
economy that the claimant could have performed.” (Id.). At step five, the AU heard testimony
of a vocational expert (“yE”). (Id. at 37).
DISCUSSION

IV.

A. The AU’s Inconsistent RFC Application
Plaintiff argues that the AU erroneously based her finding that Plaintiff was not disabled
as of August 8, 2010 on an improper application of the tables promulgated by administrative rule
making (“the grids”). (ECF No. 12, “PIs.’ Br.” at 15). Specifically, Plaintiff contends that, because
Plaintiff has non-exertional limitations, the AU’s reliance on the grids was improper.

(Id.).

Additionally, Plaintiff argues that the AU’s reliance on the testimony of the VE was misguided
because the AU presented the VE with an REC of light” work despite the AU’s conclusions in
the decision that Plaintiff had a “sedentary” Rf C. The Court agrees with Plaintiff that the AU’s
application of the grids and use of the VE testimony was problematic, for the reasons discussed
below.
“Where the limitations imposed by a claimant’s impairments and related symptoms affect
the ability to meet both the strength demands and non-strength demands ofjobs, the grids will not
apply to direct a conclusion as to disability, but will be used solely as a framework to guide the
disability decision.” Hat/v. Comm ‘r ofSoc. Sec., 218 F. App’x 212, 216 (3d Cir. 2007) (citing 20
C.F.R.

§

404.1569a(d)). This is the case because the “regulations do not purport to establish jobs

that exist in the national economy at the various functional levels when a claimant has a
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nonexertional impairment

Sykes, 228 F.3d at 269. Therefore, if a claimant suffers from both

exertional and non-exertional impairments, an AU may oniy use the grids as a “framework” to
guide her decision. However, if the AU uses the grids as a framework, then the AU must also
consider the testimony of a vocational expert or other similar evidence” reflecting on the impact
of a claimant’s non-exertional impairments on the availability ofjobs that a claimant is capable of
performing. Id. at 273; see ct/so ARO1-l(3) (2001 WU 65745) (SSA) (adopting the Sykes holding).
In this case, the AU relied on Medical-Vocation Rule 201.21 as a “framework” for her
finding that Plaintiff was not disabled as of August 8, 2010. (R. at 37). Rule 201.21 applies to an
RFC of “maximum sustained work capability limited to sedentary work.” However, because
Plaintiff suffered from severe non-exertional impairments, the AU was not permitted to rely
exclusively on the grids. Thus, in her decision, the AU purports to rely on the testimony of a VE
in rendering her determination. (Id.).
However, as Plaintiff notes, the AU’s reliance on the VE’s testimony in support of her
finding of non-disability is problematic. Specifically, the ALl inconsistently applies various RFC
determinations throughout her discussion. On the one hand, at step four of the analysis, the AU
assigned Plaintiff an RFC of “light work” with the ability to “stand up to four out of eight-hours a
day.” (Id. at 32). Additionally, the AU notes that the hypotheticals posed to the VE presumed a
“light” RFC. Yet, on the other hand, the AU relied upon Medical-Vocational Rule 201.21 as a
“framework’ for determining Plaintiffs RFC. notwithstanding the fact that that Rule 201.21 is
applicable to a “sedentary” RFC. (Id. at 37).
The AU recognized this inconsistency. That is, the AU states that the RFC “assessment
was given as light and the [VE] gave light other jobs. However, given the standing limitation I

6

deem the RFC to be sedentary and even if sedentary, the claimant would not be disabled under
Medical Vocational Rule 201.21

prior to

December 24, 2012.” (Id.).

The AU’s conclusion does not withstand scrutiny. First, as noted above, an ALl may not
use the grids as a framework without also relying on some authority that speaks to the impact of a
claimants non-exertional impairments on a claimant’s ability to petform certain jobs in the
national economy. Here, although the AU cited to the VEs testimony. the AU’s purported
reliance on that testimony to substantiate her finding is not meaningful, because the VE’s findings
were premised upon a different RFC than the AU now considers applicable. In other words, in
the absence of any meaningful testimony from the yE, the A Li’s finding that the claimant was
“not disabled under [the grids]” runs counter to the law as stated in Sykes. 228 F.3d at 270 (“[TJhe
practice of the AU determining without taking additional evidence the effect of the nonexertional
impairment on residual functional capacity cannot stand.”).

Accordingly. the ALFs use of

Medical-Vocational Rule 201.21 was improper.
Moreovet, the AU’s mid-decision change in the Plaintiffs RFC from “light” to
“sedentary” calls into question the accuracy or reliability of the VE’s testimony in the first place.
As the regulations recognize, the RfC used in the fourth step is the same used in the fifth step of
the sequential evaluation process. 20 CFR

§

404.1520(e). {TJhe vocational expert’s testimony

concerning a claimant’s ability to perform alternative employment may only be considered for
purposes of determining disability if the question accurately portrays the claimant’s individual
physical and mental impairments. Thus the expert must have evaluated claimant’s particular
impairments as contained in the record.” Fodedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984).
To the extent that the AU now finds that the RFC proffered to the VE was inaccurate, this error
Given these discrepancies, the Court cannot

may render the VE’s conclusions inaccurate.

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meaningftilly review the ALFs use of the gtids in conjunction with the testimony of the yE. The

Court, therefore, win remand this matter to the AU to clarify these issties.
B. The AU’s Step Three Findings
Plaintiff also argues that the AU erred in her step three analysis. (Pis.’ Br. at 22-28). In
particular, Plaintiff maintains that the AU failed to consider each of Plaintiffs impairments in
combination when determining whether those impairments met or equaled a listed impairment.
(Id.).
“In step three, the AU must determine whether [the claimant’s] impairment matches, or is
equivalent to, one of the listed impairments. If the impairment is equivalent to a listed impairment,
then [the claimant] is per se disabled and no further analysis is necessary.” Burnett, 220 F.3d at
119. If a claimant has “a combination of impairments, no one of which meets a listing (see

§

404.1525(c)(3)),” the AU will consider whether the “combination of impairments is medically
equivalent to [a] listing.” 20 CFR

§ 404.1526(b)(3).

In this case, the AU found, at step two, that Plaintiff suffered from the following four
severe impairments: ankylosing spondylitis; affective disorder; anxiety disorder; and substance
addiction disorder. (R. at 32). Notwithstanding the fact that the AU found Plaintiff to have four
severe impairments. the AU’s decision does not properly consider whether these impairments. or
the combination of these impairments, meet or medically equal the applicable listings. The entirety
of the AU’s step three analysis states as follows:
No treating or examining physician has mentioned findings equivalent in
severity to the criteria of any listed impairment, nor does the evidence show signs
or findings that are the same or equivalent to those of a listed impairment. Particular
scrutiny was given to the claimant’s condition in light of Uisting Sections 14.09 and
12.00. Ti-ire [sic] is no indication of spinal fixation at 45 degrees or more of flexion
or fixation of 30 degrees and involvement of another body organ.

8

The claimant has the following degree of limitation in the broad areas of
functioning set out in the disability regulations for evaluating mental disorders and
in the mental disorders listing in 20 CFR, Part 404, Stibpart P, Appendix 1:
moderate restriction in activities of daily living, mild difficulties in maintaining
social functioning, moderate difficulties in maintaining concentration, persistence
or pace, and no episodes of decompensation, each of extended duration.
The claimant’s mental impairment(s) does hot satisfy the paragraph “C”
criteria of the applicable mental disorder listing(s).
(Id.). Although the AU referenced Listing Section 14.09, the AU only considered one of
the several subsections of 14.09 that would give rise to a finding of disability. To the extent the
AU did consider the other subsections, the AU failed to note those considerations in the decision.
With respect to Plaintiffs mental impairments, the AU determined that Plaintiff suffered various
degrees of limitations with respect to the paragraph “B” criteria applicable to mental impairments
and that Plaintiffs “mental impairment(s) does not satisfy the paragraph ‘C’ criteria of the
applicable mental disorder listing(s).” However, the AU failed to consider any of Plaintiffs
impairments in combination. In the absence of a more thorough discussion of how the AU came
to the conclusion that Plaintiffs impairments do not meet or medically equal a listed impairment.
this Court cannot meaningfully review the AU’s findings.
Accordingly, the Court will remand this matter back to the AU to fully exp1ain h[er]
findings at step three, including an analysis of whether and why [the claimant’s disability and
other severe impairments] in combination, are or are not equivalent in severity to one of the listed
impairments.” Torres v. Coniiii ‘r ofSoc. Sec., 279 Fed. App’x. 149, 151 (3d Cir. 200$); see ctlso
Miller v. Astrue, No. 11-7094, 2013 WU 3043460, *$_9 (D.N.J. June 14, 2013) (holding that the
AU erred in failing to set forth an analysis of the claimant’s diabetes in conjunction with the
cLaimant’s other severe impairments, and as a result the district court “cannot provide a
meaningful judicial review of [the AU’s] findings”).

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___,2017

V.

CONCLUSION

For the foregoing reasons. the Court rernands the matter for further proceedings consistent
with this Opinion. An appropriate Order follows this Opinion.

DATED: July

JOSE L. LINARES
CHIEF JUDGE, U.S. DISTRICT COURT

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