SOTO v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Kevin McNulty on 1/10/2017. (JB, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MIGUEL A. SOTO,

Civ. No. 17-89-KM

Plaintiff,

OPINION

V.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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

Miguel A. Soto brings this action pursuant to 45 U.S.C.

§

405(g) to review

a final decision of the Commissioner of Social Security (“Commissioner”)
denying his claims to Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C.

§

40 1—34. For the reasons set forth below, the

decision of the Administrative Law Judge (“AL)”) is REMANDED.
I.

BACKGROUND

Mr. Soto seeks to reverse a finding that he did not meet the Social
Security Act’s definition of disability from November 30, 2011 to May 26, 2015.
(P1. Br. 1-2).’ Mr. Soto applied for DIB on May 22, 2013, alleging a disability
onset date of November 30, 2011. (R. 28, 168-69). He reports being treated for
lumbar decompression in April 2010, which was exacerbated by a March 2012
motor vehicle accident. (R. 253-54, 293, 300, 384). His claimed was denied

I

Citations to the record are abbreviated as follows:
= Administrative Record (ECF no. 5-2)
“P1. Br.” = Plaintiffs Memorandum of Law (ECF no. 9)
1

initially on July 9, 2013 and upon reconsideration on October 4, 2013. (R. 28,
68-86).
Mr. Soto filed a written request for a hearing on November 14, 2013,
which was held on March 6, 2015. (1?. 28, 4 1-68). The attendees at the hearing
were AW Shillin, Mr. Soto’s attorney Jacob Neff, vocational expert (“yE”) Brian
J. Daly, and translator Sergio Garcia. (R. 28, 36). On May, 26, 2015, the AW
issued a decision which found him “not disabled” for the purposes of the Social
Security Act. (R. 28-36).
On November 30, 2016, the Appeals Council denied Mr. Soto’s request
for review, (R. 1-4), rendering the AU’s decision the final decision of the
Commissioner. Mr. Soto then appealed to this Court, challenging the AU’s
determination that he was not disabled from November 30, 2011 to May 26,
2015, (P1. Br. 1-2).
II.

DISCUSSION

To qualify for DIB, 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.

§

416.905(a); see lug v.

Comm’r Soc. Sec., 570 F. Appx 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, 416.920.

This Court’s review necessarily incorporates a determination of whether the
AU properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:

2

Step One: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.P.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), 416.920(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.
Id.

§ 404.1520(d), 4 16.920(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)—(fl, 4l6.920(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 her 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 u. Comm’r of Soc. Sec., 474 F.3d 88, 9 1-92 (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 v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AU’s findings, as long as they are
supported by substantial evidence. Jones a 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 u. Colvin, 777 F.3d 607,
3

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
omitted).
[I]n evaluating whether substantial evidence supports the AW’s
findings
leniency should be shown in establishing the claimant’s
disability, and
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.

§ 405(g)); Zirnsak, 777 F.3d at 610-11 (“[W]e are

mindful that we must not substitute our own judgment for that of the fact
finder.”).
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. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes a
Comm’rof Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir. 2007).
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 ALl’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett u. Comm’rof Soc.
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
the ALl’s findings are not the product of a complete review which “explicitly
weigh[sJ all relevant, probative and available evidence” in the record. Adorno a
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).

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B. The AU’s Decision

AW Beth Shillin followed the five-step process in determining that Mr.
Soto was not disabled from November 30, 2011 (the alleged onset date) to May
26, 2015 (the date of his hearing). The ALPs findings may be summarized as
follows:
Step One: At step one, the AW found that Mr. Soto had not engaged in

substantial gainful activity since November 30, 2011, the alleged onset date.
(R. 30).
Step Two: At step two, the AW determined that Mr. Soto had the
following severe impairments: lower back pain and obesity. (1?. 30).
Step Three: At step three, the AU found that Mr. Soto 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
(1?. 30).
Step Four: At step four, “[a]fter careful consideration of the entire

record,” the AU found that Mr. Soto had the following RFC:
[T}he claimant has the residual functional capacity to perform light
work as defined in 20 C.P.R. 404.1567(b) except he can sit four
hours and stand and/or walk four hours in an eight-hour
workday, with the ability to change positions at will. He should
have no climbing of ladders or scaffolds, no stooping, and no
exposure to heights or heavy machinery. He can occasionally
crawl, crouch, kneel, and climb stairs or ramps. He should have no
exposure to temperature extremes.
(R. 32).
The AU also determined that Mr. Soto was unable to perform any past
relevant work as a machine assembler (Dictionary of Occupational Titles
(“DQT”)# 638.361-010) or a mixer (DOT# 520.685-234). (R. 34). The demands
of those jobs exceed his RFC. (R. 34).
Step Five: At step five, the AU considered Mr. Soto’s age, education,

work experience, and RFC, as well as the Medical-Vocational Guidelines. (I?.
5

35). The Medical-Vocational Guidelines are tables that set forth presumptions
of whether significant numbers of jobs exist in the national economy for a
claimant. 20 C.F.R. Pt. 404, subpt. P, app. 2. These presumptions vary based
on a claimant’s age, education, work experience, and work capability. Id. The
AU determined that Mr. Soto has been able to perform jobs existing in
significant numbers in the national economy since November 30, 2011. (R. 3536). Relying on the testimony of yE Brian J. Daly, the AU identified several
representative jobs that Mr. Soto could perform despite his limitations:
envelope sealing machine operator (DOT# 208.685-026), bottle packer (DOT#
920.685-026), and paper pattern folder (DOT# 794.687-034). (1?. 35). According
to the yE, there are over 500,000 such jobs nationally. (R. 35).
Therefore, the AU ultimately determined that Mr. Soto was “not
disabled” for the purposes of the Social Security Act. (R. 35-36).
C. Analysis of Mr. Soto’s Appeal

Mr. Soto challenges AU Shillin’s determination that he has not been
disabled from November 30, 2011 to May 26, 2015. He claims that the AU
committed errors at steps four and five. (P1. Br. 14-20). At step four, Mr. Soto
argues that the AU erred in finding him capable of performing light work. (P1.
Br. 19). At step five, Mr. Soto contends that the AU’s discussion with the VE
failed to properly address his use of a cane and need to “sit or stand” at will.
(RI. Br. 19). Additionally, Mr. Soto notes that on June 18, 2017, he was granted
disability benefits dating back to May 27, 2015—Le., the day after AU Shillin’s
decision. (P1. Br. 14). He argues that this undermines the AU’s determination.
i. The AU’s Step Four Analysis
Regarding step four, Mr. Soto argues that the AU erred in finding him
capable of performing light work. He avers that: (1) the AU did not make
objective medical findings in the RFC; (2) he cannot walk or stand long enough
to perform light work; (3) he cannot perform the exertional requirements of
light work; (4) the AU should have found him disabled under the MedicalVocational Guidelines at 201.09; (5) the AU did not address his use of a cane
6

when developing the RFC, and (6) the AM did not consider a doctor’s opinion
that he will likely miss four days of work per month.
(1) First, Mr. Soto argues that there are no objective medical findings in
the RFC. This argument is unavailing because AT3s make administrative (not
medical) findings and this AM based her decision on several medical sources.
An RFC assessment “is an administrative finding on an issue reserved to the
Commissioner,” and is not a medical diagnosis or assessment. Titles II & XVI:
Medical Source Opinions on Issues Reserved to the Commissioner, SSR 96-5p,
1996 WL 374183 (July 2, 1996). Moreover, AM Shillin’s RFC determination
was largely based on the medical opinion of Mr. Soto’s treating neurosurgeon,
Dr. Rosenblum. (R. 33-34). Mr. Rosenblum opined on January 20, 2015 that
Mr. Soto could sit for 2-4 hours and stand or walk for 3 hours in an 8-hour
workday, provided that he is permitted to periodically alternate between sitting

and standing every 45 minutes. (R. 357). Mr. Rosenblum also noted that Mr.
Soto could frequently lift less than 10 pounds, occasionally lift 10 pounds,
rarely lift 20 pounds, and never lift 25 pounds or more. (R. 357). The AM gave
his opinion significant weight, stating that it was “fairly consistent with the
medical evidence as a whole.” (R. 34).
The AM considered other medical evidence. For instance, Mr. Soto has
had medical doctors report negative straight leg raising, intact sensation, full
strength, and an intact gait. (R. 327, 345, 428-29, 431, 440-4 1, 444). For
instance, in June 2014, Dr. Kostoulakos noted that Mr. Soto had 5/5 strength
in his upper and lower extremities, and was able to heel-toe walk without
difficulty. (R. 355-56).
An AM is not required to adopt a specific medical opinion in her
determination. “The AM—not treating or examining physicians or State agency
consultants—must make the ultimate disability and RFC determinations.”
Chandlery. Comm’rof Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011); see Brown
Astrue, 649 F.3d 193, 196 n.2 (3d Cir. 2011) (“The law is clear

...

ii.

that the

opinion of a treating physician does not bind the AM on the issue of functional
7

capacity.”). The AW makes her RFC determination based on evidence in the
medical record. In this case, the AW discussed several medical opinions and
incorporated them into her RFC determination, which is what is required under
the statute.
(2) Second, Mr. Soto argues that he cannot engage in the significant
amount of walking and standing required by many light work jobs. However,
the AW did not find that Mr. Soto could perform the fill range of light work. (R.
32-34). Dr. Rosenbium assessed Mr. Soto’s abilities, which were consistent
with a certain range of light work. (R. 357-58). ALl Shillin then found that Mr.
Soto could perform some light work jobs, given particular limitations, such as a
four-hour limit on walking, a four-hour limit on standing, and the ability to
change positions at will. (R. 32). These findings were supported by substantial
evidence from Mr. Soto’s treating physicians. (R. 327, 345, 428-29, 431, 44041, 444). Thus Mr. Soto would not be required to meet the walking or standing
demands of many light work jobs, but could meet the demands of others.
(3) Third, Mr. Soto objects to the determination that he can perform the
exertional requirements of light work. Light work involves lifting no more than
20 pounds at a time and frequently lifting objects weighing up to 10 pounds.
20 C.F.R.

§

404.1567(b). The ALl found that Mr. Soto could meet these

requirements or was close to meeting these requirements. Dr. Rosenblum
determined that Mr. Soto could frequently lift less than 10 pounds,
occasionally lift 10 pounds, and rarely lift 20 pounds. (R. 357-58). Dr.
Kostoulakos also noted that Mr. Soto had 5/5 strength in his upper and lower
extremities. Together, these assessments are substantial evidence that Mr.
Soto could perform a certain range of light work.
(4) Fourth, Mr. Soto argues that the ALl erred by not finding him
disabled under the Medical-Vocational Guidelines at 201.09—i.e., sedentary
work, closely approaching advanced age, limited or less education, unskilled
work history. 20 C.P.R. Pt. 404, subpt. P, app. 2, tbl.1. This argument is
essentially that the ALl should have found that Mr. Soto can perform only
8

sedentary work. However, the AU found that Mr. Soto could perform a range
(but not the entire range) of light work. This argument merely duplicates other
arguments and does not provide additional support for Mr. Soto’s claim. Mr.
Soto was in between tables on the Medical-Vocational Guidelines: he can
perform the full range of sedentary work and more, but he cannot perform the
full range of light work. Cf Sykes v. Apfel, 228 F.3d 259, 267-70 (3d Cir. 2000)
(discussing the use of the Guidelines when a claimant does not fit into the
“sedentary” or “light work” categories). Under these circumstances, the AU
properly consulted the VE to determine Mr. Soto’s ability to perform work given
that he was between tables.
(5) Fifth, Mr. Soto contends that the AU did not incorporate his use of a
cane into the RFC. He argues that there is “unrebutted” evidence that he uses
a cane. (P1. Br. 18). However, he does not provide a record cite for this evidence.
Regardless, there is substantial evidence to support the AU’s decision not to
incorporate a cane limitation. There were findings of normal gait without the
use of a cane, as well as had regular findings of negative straight leg raising,
intact sensation, and full strength. (R. 327, 345, 428-29, 431, 433, 440-41,
444). In June 2014, Mr. Soto was able to walk without difficulty and was able
to perform a heel-toe walk. (R. 355). Further, in January 2015, Dr. Rosenbium
did not note that Mr. Soto requires a cane for ambulation. (R. 357-58).
To establish that a hand-held device is medically required, there must be
medical evidence establishing both the need for the device and the
circumstances in which the device is required. Titles II & XVI: Determining
Capability to Do Other Work—Implications of a Residual Functional Capacity for
Less Than a Full Range of Sedentary Work, SSR 96-9p, 1996 WL 374185, at *7
(July 2, 1996). Mr. Soto has not presented such medical evidence—and the
evidence that exists is sufficient to support the AU’s decision to not
incorporate a cane limitation into the RFC.
(6) Sixth, Mr. Soto notes that the AU did not consider Dr. Rosenblum’s
opinion that he will likely miss more than four days of work per month. (R.
9

357-58); (P1. Br. 6). This opinion is found in Dr. Rosenbium’s “Medical Source
Statement of Ability to Do Work-Related Activities,” which is a form consisting
mostly of check boxes with small areas for comments. (R. 357-58). Dr.
Rosenbium marked that Mr. Soto would likely be absent from work “4 days or
more per month” because of his impairments or treatments; he made no
further comments. (R. 358).
In general, such check-box forms are not considered strong evidence. See
Mason a Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). “Form reports in which
a physician’s obligation is only to check a box or fill in a blank are weak
evidence at best.... [W]here these so-called reports are unaccompanied by
thorough written reports, their reliability is suspect.” Id. (citing Brewster v.
Heckler, 786 F.2d 581, 585 (3d Cir. 1986)). This is because these documents
have no written justification or evidentiary corroboration for the findings. Id. at
1065-66. Ultimately, “while these forms are admissible, they are entitled to
little weight and do not constitute ‘substantial evidence’ on the record as a
whole.” O’Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir. 1983); Green a
Schweiker, 749 F.2d 1066, 1071 n.3 (3d Cir. 1984) (citing O’Leary, 710 F.2d at
1341).
Nonetheless, when the ALT’s determination conflicts with the opinion of a
treating physician, the ALT must make clear on the record his or her reasons
for rejecting the opinion of the treating physician. Brewster, 786 F.2d at 58586; see Adomo u. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (finding that an ALT
must “explicitly weigh all relevant, probative and available evidence” in the
record (internal quotation marks omitted)). “A cardinal principle guiding
disability eligibility determinations is that the ALT accord treating physicians’
reports great weight, especially ‘when their opinions reflect expert judgment
based on a continuing observation of the patient’s condition over a prolonged
period of time.” Morales a Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Rocco a Heckler,
826 F.2d 1348, 1350 (3d Cir. 1987))).
10

While such check-box forms are generally not entitled significant weight,
an ALT must address their findings, especially when they reflect the opinion of
the claimant’s treating physician that the ALT gave significant weight. (R. 34).
An ALT “must consider all the evidence and give some reason for discounting
the evidence she rejects.” Plummer, 186 F.3d at 429. In this case, the ALT did
not address the absenteeism issue or offer any reason for rejecting the opinion
of Mr. Soto’s treating physician. The ALT must address this on remand.
ii. The AU’s Step Five Analysis
Mr. Soto argues that the ALT’s discussion with the VE did not properly
address his (1) alleged cane use and (2) need to “sit or stand” at will. I will
discuss these issues separately.
(1) First, regarding his alleged cane use, the ALT had substantial
evidence to determine that a cane is not medically required for Mr. Soto. This
was discussed in subsection lI.C.i(5), supra. Therefore, the ALT was not in error
when she did not include cane usage in the RFC or in the hypotheticals posed
to VE Brian J. Daly.
(2) Second, Mr. Soto argues that the ALT did not properly address his
need to “sit or stand” at will in her discussion with the VE. However, the RFC
states that Mr. Soto “can sit four hours and stand and/or walk four hours in
an eight-hour workday, with the ability to change positions at will.” (1?. 32). The
ALT also told the VE at the hearing that Mr. Soto needed to be able to
“sit/stand at will and change position at will.” (R. 62).
Mr. Soto argues that the “sit or stand” limitation is not consistent with
the jobs selected by the VE because the relevant job descriptions do not
mention a “sit or stand” option. It is true that an ALT must ask a VE whether
her testimony is consistent with the DOT, and to elicit a “reasonable
explanation” for any conflict between the two sources of information. Bums v.
Bamhart, 312 F.Sd 113, 127 (3d Cir. 2002); see Titles H & XVI: Use of
Vocational Expert and Vocational Specialist Evidence, and Other Reliable
Occupational Information in Disability Decisions, SSR
11

OO-O4p,

2000 WL

1898704, at *2 (Dec. 4, 2000).2 However, the DOT is silent with regard to the
“sit or stand” option. See Sanbom v. Comm’r of Soc. Sec., 613 F. App’x 171, 177
(3d Cir. 2015) (“The DOT, however, does not include sit/stand options in job
descriptions.”); Conn v. Astrue, 852 F. Supp. 2d 517, 528 (D. Del. 2012) (“[T]he
VE’s testimony and the DOT are not in conflict; the DOT simply does not
address sit/stand options.”). Rather, the VE incorporated the “sit or stand”
requirement into his determinations. Therefore, the ALT did not erroneously fail
to inquire into an explicit conflict between the VE’s testimony and the DOT. A
remand is not warranted for these circumstances.
iii. Subsequent Award of Benefits
Mr. Soto notes that he was granted disability benefits dating back to May
27, 2015—i.e., the day after ALT Shillin’s decision. (P1. Br. 14). He argues that
this undermines the ALT’s determination of “not disabled.” However, the Third
Circuit has held that a subsequent award of benefits is not, on its own, cause
for remand or reversal:
[T]he fact that another ALT found [the claimant] to be disabled
does not, in itself, warrant remand or reversal. Remand or reversal
based on the subsequent favorable decision would be appropriate
only if that decision was based on new and material evidence that
[the claimant] had good cause for not raising in the prior
proceeding.
Cunningham v. Comm’r of Soc. Sec., 507 F. App’x 111, 120 (3d Cir. 2012)
(internal citations omitted); see Jackson u. Astrue, 402 F. App’x 717, 718 (3d
Cir. 2010) (“Standing alone, the fact that the Commissioner subsequently
found claimant to be disabled does not warrant remand or reversal in the
absence of new and material evidence, which claimant here has failed to
provide.”); Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652-53 (6th Cir. 2009).

When this step is omitted, remand is often required unless substantial evidence
exists in other portions of the record that can form an appropriate basis to support the
ALT’s result. Rutherford v. Bamhart, 399 F.3d 546, 557 (3d Cir. 2005); Jones v.
Bamhart, 364 F.3d 501, 506 n.6 (3d Cir. 2004).
2

12

There is no inconsistency between a finding that Mr. Soto was not
disabled from November 30, 2011 through May 26, 2015 and a finding that he
was disabled from May 27, 2015 to the present. The later fmding does not
require that the earlier one be vacated, any more than the earlier finding of
non-disability should have precluded the later application. Medical conditions
change. In this case, Mr. Soto has not presented new or material evidence,
relating to the earlier period, that would compel a different result on his first
application. Nor has he presented good cause for not presenting such evidence
to AIJ Shillin in the prior proceedings. Therefore, the subsequent award of
benefits will not, in itself, warrant a remand or reversal.
III.

CONCLUSION

For the foregoing reasons, I will therefore order a limited remand to the
agency. The only issue requiring attention on remand is Dr. Rosenblum’s
opinion that Mr. Soto will likely be absent from work for four days or more per
month. I do not take a position, express or implied, as to whether there should
or should not be a finding of disability on remand; that is for the SSA to
determine.
An appropriate order accompanies this opinion.

Dated: January 10, 2018

‘7W MCNULTY
United States District Judge

13