IRAHETA v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 10/19/17. (sr, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 16-5360 (KM)
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
KEVIN MCNULTY. U.S.D.J.:
Mr. Carlos Iraheta brings this action pursuant to 42 U.S.C.
review a final decision of the Commissioner of Social Security (“Commissioner”)
denying his claims to Disability Insurance Benefits (“DIR”) under Title II of the
Social Security Act, 42 U.S.C.
(“SSI”), 42 U.S.C.
40 1-34, and Supplemental Security Income
1381. For the reasons set forth below, the decision of the
Administrative Law Judge (“ALl’) is REMANDED for further consideration.
Mr. Carlos Iraheta appeals a finding that he did not meet the Social
Security Act’s definition of disability from August 15, 2011 through December
9, 2014—the date of the ALPs decision. (R. 2636).1
Iraheta applied for DIE and SSI on January 30, 2012. (R. 90-102).
Iraheta stated that he has been disabled since August 15, 2011 because of a
bacterial infection of the brain. (R. 90). These claims were denied by medical
consultants at Disability Determination Services on July 3, 2012, and then
denied again upon reconsideration on January 4, 2013. (R. 144-49, 152-63).
The Brief in
Pages of the administrative record (ECFno. 7) are cited as “R.
of Plaintiff (ECF no. 12) is cited as “P1. Br.” Defendant’s Brief is cited as “Def.
Br.” (ECF no. 13).
On November 13, 2013, Iraheta appeared before AW Donna A. Krappa.
(R. 44-68). Iraheta was accompanied by his wife, Ms. Maria Iraheta, and
counsel, Mr. Robert J. Osborne. (R. 44-68). After the hearing, AW Krappa held
the record open for Iraheta to submit additional records. (R. 26). The AW
ordered a supplemental hearing with testimony from a medical expert, Dr.
Martin Fechner. (R. 26, 69-87).
On December 9, 2014, AW Krappa issued a decision finding that Iraheta
was not disabled from August 15, 2011 through December 9, 2014. (R. 26-36).
On July 6, 2016, the Appeals Council denied Iraheta’s request for review,
rendering the AW’s decision the final decision of the Commissioner. (P. 1-8).
Iraheta then appealed to this Court, challenging the AW’s determination that
he was not disabled.
To qualify for DIB or 551, a claimant must meet income and resource
limitations and show that he 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.
423(d)(1)(A), 1382, 1382c(a)(3)(A),(B); 20 C.F.R.
4 16.905(a); see lug v.
Comm’r Soc. Sec., 570 F. App’x 262, 264 (3d Cir. 2014); Diaz v. Comm’rof Soc.
Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A. The Five-Step Process and This Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R. § 404.1520, 4 16.920.
This Court’s review necessarily incorporates a determination of whether the
AW properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:
Step One: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.
§ 404.1520(b), 416.920(b). If not, move to step two.
Step Two: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.
§ 404.1520(c), 4 16.920(c). If the
claimant has a severe impairment, move to step three.
Step Three: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20 C,F.R. pt.
404, subpt. P, app. 1, pt. A. (Those Part A criteria are purposely set at a high
level to identify clear cases of disability without further analysis.) If so, the
claimant is automatically eligible to receive benefits; if not, move to step four.
§ 404.1520(d), 416.920(d).
Step Four: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform past
relevant work. Id.
§ 404.1520(e)—(f), 416.920(e)—W). If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering his age, education, work
experience, and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 C.F.R.
§ 404.1520(g), 4 16.920(g); see
Poulos v. Conwi’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.
As to all legal issues, this Court conducts a plenary review. See
Schaudeck a Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AW’s findings, as long as they are
supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will
“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes u. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
j1]n evaluating whether substantial evidence supports the A11’s
leniency should be shown in establishing the claimant’s
the Secretary’s responsibility to rebut it should
be strictly construed. Due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in this
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.
Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks
and citations omitted). When there is substantial evidence to support the AW’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.
4OS(gfl; Zirnsak, 777 F.3d at 610-11 (“[W]e are
mindful that we must not substitute our own judgment for that of the fact
This Court may, under 42 U.S.C.
405(g), affirm, modify, or reverse the
Commissioner’s decision, or it may remand the matter to the Commissioner for
a rehearing. Bordes v. Comm’r of Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir.
2007); Podedworny v. Han-is, 745 F.2d 210, 221 (3d Cir. 1984).
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 Podedwomy, 745 F.2d at 22 1-22. Remand is also proper
if the AW’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett u. Comm’r of Soc.
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
the AW’s findings are not the product of a complete review which “explicitly
weigh[sj all relevant, probative and available evidence” in the record. Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
B. The A14’s Decision
The AU followed the five-step process in determining that Iraheta was
not disabled from August 15, 2011 through December 9, 2014. Her findings
may be summarized as follows:
Step One: At step one, the AL) determined that lraheta had worked after
the alleged disability onset date, but this work activity did not rise to the level
of substantial gainful activity. (1?. 28-29).
Step Two: At step two, the AU determined that Iraheta had the following
severe impairments; neurocysticercosis resulting in seizures and cognitive
difficulties; hypertension; and diabetes. (R. 29).
Step Three: At step three, the AU found that, from August 15, 2011
through December 9, 2014, Iraheta did not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1. (R. 29-3 1).
Step Four: At step four, “[ajfter careful consideration of the entire
record,” the AU found that Iraheta has the following RFC:
[T}he claimant is capable of the exertional demands of work at all
exertional levels as defined under the Regulations; regarding the
postural and environmental demands of work, I find that the
claimant is able to perform jobs: that require no use of ladders,
ropes, or scaffolds; that require unlimited use of ramps or stairs;
that require unlimited occasional balancing, stooping, kneeling,
crouching, and/or crawling; and that require no exposure to
unprotected heights, hazards or dangerous machinery.
Furthermore, as to the mental demands of work, I find that the
claimant is able to perform jobs; that are simple and repetitive;
that require only an occasional change in the work setting during
the workday; and that require only occasional contact with
supervisors, co-workers, and/or general public.
(R. 31). The AU found that Iraheta’s medically determined impairments could
reasonably be expected to cause the alleged symptoms, but found that
Iraheta’s statements concerning the intensity, persistence and limiting effects
of these symptoms were “not entirely credible.” (R. 32-35).
determined that Iraheta was capable of performing past relevant
work as a landscape laborer and dishwater. “This work does not require the
performance of work-related activities precluded by the claimant’s residual
functional capacity.” (R. 35).
Since the AU found that Iraheta could perform past relevant work, she
did not continue to step five.
C. Analysis of Carlos Iraheta’s Appeal
Iraheta challenges AU Krappa’s determination that he was not disabled
from August 15, 2011 through December 9, 2014. He claims that the AU
committed errors at steps three and four. At step three, Iraheta argues, the AU
(a) the AU should have found that his neurocysticercosis and residual
impairments met or equaled Listing 12.02, and (b) the AU failed to consider
the evidence and effects of his combined severe impairments. (P1. Br. 29-36). At
step four, Iraheta argues, the AU did not conduct a full RFC assessment. (P1.
The AU’s Step Three Evaluation
At step three, the AU determined that Iraheta did not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. pt. 404, subpt. P., app. 1,
pt. A. (1?. 29-3 1). As noted previously, those Part A criteria are purposely set at
a high level to identify clear cases of disability without further analysis.
Specifically, Iraheta argues that the AU erred by not (a) finding that he
met the criteria for Listing 12.02 (neurocognitive disorders) or (b) finding that
the evidence and effects of his combined severe impairments equals the
severity of one of the listed impairments.
a) Listing 12.02
First, Iraheta claims that he meets Listing 12.02 (neurocognitive
disorders). To qualify under Listing 12.02 at the time of Iraheta’s hearing, a
claimant needed to satisfy Paragraphs A and B; or Paragraph C. AU Krappa
found that Iraheta did not satisfy the requirements of Paragraphs B or C. (R.
At the time of the hearing, Paragraph B required at least two of the
following: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation,
each of extended duration. 20 C.F.R. pt. 404, subpt. P., app. 1, Pt. A. (2014). A
“marked limitation” is “more than moderate but less than extreme.” 20 C.F.R.
416.926a(e)(2). It must “interfere seriously with [one’s} ability’ to function
independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R.
pt. 404, subpt. P, app. 1,
In terms of activities of daily living, the AU found that Iraheta had mild
restrictions. (1?. 30). She considered the testimony of the claimant and his wife,
which provided that Iraheta has some difficulties but is able to wash dishes,
cook meals, go to the grocery store, and take care of his personal hygiene. (R.
30). Iraheta also reported during a June 2012 examination that he was
independent with his activities of daily living. (1?. 463). In terms of social
functioning, the AU determined that Iraheta had moderate difficulties. (R. 30).
She considered the testimony of Iraheta’s wife in making this determination.
(R. 30). A February 2012 adult function report also notes that Iraheta liked to
socialize and did so often. (1?. 319).
Regarding concentration, persistence, or pace, AU Krappa found that
Iraheta had moderate difficulties. (1?. 30). She based her decision on Iraheta’s
testimony that he had some difficulty in sustaining focus and memory while
undergoing treatment for neurocysticercosis. (R. 30). There is also evidence
from a May 2012 examination that lraheta’s mental status examination was
normal. (R. 443). Moreover, according to his wife’s testimony, he started
working again but stopped unrelated to his neurocognitive status. (R. 59). He
stopped, apparently, because of his diabetes and because “the sun didn’t make
him feel good.” (R. 59).
Furthermore, the state agency psychologists determined that Iraheta had
only mild limitations in activities of daily living; moderate difficulties in
maintaining social functioning; and moderate difficulties in maintaining
concentration, persistence, and pace. (R. 95, 124). This provides evidence that
Iraheta does not meet the requirements under Listing 12.02. Additionally, the
AW determined, based on the medical record, that Iraheta had no episodes of
decompensation. (R. 30, 95, 124).
Ultimately, the AU found that Iraheta did not satisfy the requirements of
Paragraph B and this determination is supported by substantial evidence from
the medical record and testimony.
At the time of the hearing, Paragraph C required a medically documented
history of a chronic organic mental disorder, lasting at least two years, that has
caused “more than a minimal limitation of ability to do basic work activities,
with symptoms or signs currently attenuated by medical or support,” and one
of the following:
1. Repeated episodes of decompensation, each of extended
2. A residual disease process that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more year’s inability to function outside
of a highly supportive living arrangement, with an indication of
continued need for such arrangement.
20 C.F.R. pt. 404, subpt. P., app. 1, pt. A. (2014).
The AU] found that Iraheta is capable of functioning independently
outside of his home. (R. 30). She noted that Iraheta drives a car, his doctor
found no reason to suspend his driving privileges, and “other evidence of record
does not establish that he is incapable of functioning independently outside the
area of his home.” (R. 30). Iraheta does not meet condition (1) because there
are no record of episodes of decompensation. (R. 95, 125). In terms of
condition (2), Iraheta has not shown that even a minimal increase in mental
demands or a change in environment would cause him to decompensate.
Condition (3) is not satisfied because Iraheta functions outside of a highly
supportive living arrangement and has only mild limitations in activities of
daily living. (R. 95, 124).
The AIJ found that Iraheta failed to meet the Paragraph C standard.
Considering the medical record and testimony, there was substantial evidence
to support the AW’s decision regarding Paragraph C.
b) Combined Severe Impairments
Iraheta argues that the AW failed to adequately evaluate the combined
effect of his individual impairments. At step three, the AW must perform “an
analysis of whether and why [the claimant’s individual impairments], or those
impairments combined, are or are not equivalent in severity to one of the listed
impairments.” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000).
The Third Circuit has clarifies that this “does not require the AW to use
particular language or adhere to a particular format,” but only 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). Regulations give further guidance, providing that where a claimant has
multiple impairments, the ALl should “compare [the claimant’s] findings with
those for closely analogous impairments. If the findings related to [the
claimant’s] impairments are at least of equal medical significance to those of a
listed impairment, [the AU] will find that [the claimant’s] combination of
impairments is medically equivalent to that listing.” 20 C.F.R.
Here the AU satisfied the Third Circuit’s standard and the regulations.
AU Krappa concluded that Iraheta failed to meet a key element of each
relevant Listing. (R. 29-30). She considered Listings 11.02, 11.03, 11.17, and
12.02 and gave specific findings as to why Iraheta did not satisfy each Listing’s
requirements. (R. 29-30). For example, the AU noted that Iraheta did not meet
the requirements of Listing 11.02 regarding convulsive epilepsy because “he
does not have seizures occurring at least once a month in spite of three months
treatment.” (1?. 29). Similarly, the AU determined that Iraheta did not meet
Listing 11.17 because he “does not have significant and persistent
disorganization of motor functioning in two extremities resulting in sustained
disturbance of gross and dexterous movements, or gait and station.” (R. 29).
Furthermore, at a supplemental hearing, Dr. Martin Fechner reported that
Iraheta’s impairments did not meet or equal the listings of the Commission,
either singly or in combination. (1?. 29, 82-83).
Based on the AW’s analysis of each Listing and the testimony of Dr.
Fechner, the ALl concluded that “[tjhe severity of the claimant’s medical
impairment does not meet or medically equal the criteria of listing 12.02.” (R.
29). The ALl considered multiple listings, found specific reasons why Iraheta
did not qualii, and determined that Iraheta’s impairments—when considered
in combination—did not equal a Listing. Those findings demonstrate “sufficient
development of the record and explanation of findings to permit meaningful
review.” Jones, 364 F.3d at 505.2
The AU’s Step Four Evaluation
At step four, Iraheta argues that ALl Krappa did not conduct a full RFC
assessment. (P1. Br. 37-40). lraheta claims that the ALl (a) failed to discuss
“pertinent mental status observations” about concentration, persistence and
pace; (b) did not give any weight to the unknown source’s opinion regarding
functional assessment; and (c) did not address reports that he was likely to
miss work more than three times per month. I will discuss each in turn.
First, Iraheta alleges that the ALl did not discuss “pertinent mental
status observations.” (P1. Br. 39). Iraheta specifically identifies an October 2012
opinion from Dr. Feoli that Iraheta needed more supervision at work than an
unimpaired worker and could not work at heights, with power machines, or
operate a motor vehicle. (P1. Br. 39); (1?. 331). However, Iraheta’s RFC
incorporates the restrictions that Dr. Feoli articulated. (R. 31). The RFC
restrictions limit Iraheta to work that does not require ladders, ropes, or
Iraheta does not identify which Listing the AU should have determined that his
impairments met or equaled when considered in combination. (Def. Br. 24); (P1. Br.
35-37). See Johnson u. Comm’r of Soc. Sec., 398 F. App’x 727, 734 n.5 (3d Cir, 2010)
(finding that claimant should have identified any “closely analogous” Listing to which
her combined impairments might be medically equivalent). Regardless, it does not
appear that Iraheta’s impairments, in combination, would have equaled any of the
other relevant listings.
scaffolds; and requires no exposure to unprotected heights, hazards, or
dangerous machinery. (R. 31). The RFC does not include a driving restriction,
but the record shows that Iraheta was driving in 2013 and 2014. (R. 1567,
2428). Additionally, Iraheta’s RFC limits him to work that is “simple and
repetitive; that require only an occasional change in the work setting during
the workday; and that require only occasional contact with supervisors, co
workers, and/or the general public.” (it 31). This is supported by Dr. Fechner’s
2014 report that, although he had problems with memory at the height of his
medical problems, Iraheta’s condition has improved. (1?. 34). This accounts for
the mental status observations in the record. Overall, the AU considered Dr.
Feoli’s opinion and had substantial evidence for her REt determination.
Second, Iraheta notes that the AU did not give weight to an October 18,
2012 unknown source’s opinion that Iraheta had marked and/or extreme
limitations. (P1. Br. 39-40); (1?. 34); (1?. 639-40). This Court has found that
when a form is filled out by physician whose name and qualifications are
unknown, “the form should have been given no weight.” Cannon u. Heckler, 627
F. Supp. 1370, 1375 (D.N.J. 1986). This is particularly relevant when the
unidentified physician fills out a checklist and does not state any reason for his
opinion. Bryant v. Schweiker, 537 F. Supp. 1, 1 (E.D. Pa. 1982). In this case,
the AU did not need to give weight to this unknown source’s opinion given that
the source is unidentified and there are no stated reasons for the conclusion.
Nonetheless, AU Krappa considered this opinion when making her RFC
determination. (it 34).
Third, Iraheta claims that AU Krappa did not address reports that he
was likely to miss work more than three times a month. (P1. Br. 39). This is
particularly relevant because the vocational expert’s testimony at the November
5, 2014 hearing stated that an individual in Iraheta’s circumstances who would
be absent three times or more per month could not perform any unskilled or
skilled work. (R. 66).
Dr. Feoli’s October 2012 seizure questionnaire and the unknown medical
source opinion from October 18, 2012 both report that Iraheta was likely to
miss work more than three days per month. (R. 332, 639-40). As stated above,
an AU did not need to give weight to an opinion from an unknown medical
source, especially when the source does not provide reasons for the opinion.
Nonetheless, Dr. Feoli made the same determination. Iraheta argues
that, as the opinion of his treating physician, Dr. Feoli’s opinion should have
been given controlling weight, or at least that the ALT should have provided
clear reasons why controlling weight was not given. (P1. Br. 39-40). Relevant
regulations provide that more weight is generally given to opinions from
treating sources. 20 C.F.R.
416.927(c)(2). When a treating source’s opinion is
not given controlling weight, an ALT should consider the length of the
treatment relationship and the frequency of examination; the nature and extent
of the treatment relationship; supportability; consistency; specialization; and
other relevant factors. Id.
ALT Krappa’s RFC determination accounted for Dr. Feoli’s opinion by
limiting Iraheta to work that did not require ladders, ropes or scaffolds; and
had no exposure to unprotected heights, hazards, or dangerous machinery. (R.
31). This suggests that ALT Krappa gave weight to at least parts of Dr. Feoli’s
opinion. However, the ALT did not address Dr. Feoli’s opinion of Iraheta’s
absenteeism or why this opinion was not given controlling weight. An ALT
should provide reasons for not giving controlling weight to the medical opinion
of a treating physician. 20 C.F.R.
Defendants cite to Littleton v. Commissioner of Social Security, No. 5:12CV-2756, 2013 WL 6090816, at *3 (N.D. Ohio Nov. 19, 2013), for the
proposition that a doctor’s statement that “an individual would miss three or
more days of work per month—a statement that would preclude work—is
tantamount to a statement of disability and is therefore not a medical
entitled to any special weight.” (Def. Br. 28). In Littleton, that
proposition was part of the magistrate judge’s recommendation that was not
*3• The ALT in Littleton also addressed
adopted by the district judge. Id. at
provided specific reasons why he assigned “little weight” to the doctor’s
opinion. Id. at *2.
In this case, the AM did not address Dr. Feoli’s opinion on Iraheta’s
potential absenteeism, did not provide reasons for not crediting this opinion,
and did not explain why she made an alternative decision. An AM does not
need to address all of the regulatory factors or every piece of medical evidence.
But, in circumstances like this, an AM must explain why she does not credit
pieces of evidence that clearly contradict her finding. Lusardi v. Astnze
presented a similar situation: an AM rejected a doctor’s opinion that a
claimant was likely to be absent from work three days per month, which the
vocational expert considered a critical factor in determining whether the
claimant had the ability to perform a significant number of jobs in the national
economy. 350 P. App’x 169, 171-72 (9th Cir. 2009). In Lusardi, the AM stated
that he considered the relevant guidance factors listed in the Code of Federal
Regulations, mentioned the infrequency of the claimant’s visits to the doctor,
noted the lack of support for the opinion in the medical records, and found an
inconsistency between the doctor’s opinion and other opinions he had
rendered. Id. at 172. The Ninth Circuit affirmed, noting that the AM’s “stated
reason for giving minimal weight to [the doctor’s] absenteeism opinion was
clear and convincing and supported by substantial evidence.” Id.
Here, the AM might find that Dr. Feoli’s October 2012 opinion is not
supported by the medical record—or perhaps that the likelihood of absenteeism
applied only to a certain period vithin the claimed period of disability.
However, given that the likelihood of absenteeism was a critical factor relied on
by the vocational expert, the AM must address Dr. Feoli’s October 2012
contention that Iraheta was likely—at least in that time frame—to miss work
more than three days a week, as this might imply that Iraheta was then
I will therefore remand to the agency for further evaluation of the 2012
evidence that Iraheta would be absent from work more than three days per
An appropriate order accompanies this Opinion.
Dated: October 19, 2017
United States District Judg
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