FIGUEROA v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION. Signed by Chief Judge Jose L. Linares on 12/28/2018. (dam, )

NOT FOR PUBLICATiON
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No.: 17-8239 (JLL)

ANDRES B. FIGUEROA,

OPINION

Plaintiff,
V.

COMMISSIONER Of SOCIAL SECURITY,
Defendant.

LINARES, Chief District Judge.

This matter comes before the Court by way of Plaintiff Andres B. Figueroa’s appeal for
judicial review of a final decision issued on behalf of the Commissioner of the Social Security
Administration (“Commissioner”), who denied his claim for disability insurance benefits. (ECf
No. 1). After careful consideration of the administrative record, submissions made in support of,
(ECF No. 13), and in opposition to, (ECF No. 14), the instant appeal, the Court decides this matter
without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons
set forth below, the Court rernands this matter for further proceedings consistent with this Opinion.

I.

BACKGROUND’

On January 14, 2014, Plaintiff filed an application for supplemental security income
(“SSI”) alleging disability as of January 1, 2010. (R. at 141). Plaintiff alleged he was disabled as

refers to (he Administrative Record, which uses continuous pagination and can be found at ECF Nos.
6 through 6-7.

“D”

a result of bipolar disorder and attention deficit hyperactivity disorder (“ADHD”). (R. at 1 55).
Plaintiffs application was denied initially on March 15, 2014, and denied again upon
reconsideration on April 30, 2014.

(R. at 91—98). At a hearing on Plaintiffs application on

January 28, 2016 before Administrative Law Judge Leonard Olarsch (the “AU”), Plaintiffs
counsel clarified that Plaintiff requested 551 for a closed period of disability for the period of
October 26, 2013 to December 31, 2014, after which date Plaintiff commenced gainful
employment as a tow truck driver. (R. at 29—30). After conducting a five-step analysis, the AU
determined that Plaintiff was ineligible for payment of SSI because he was not disabled as defined
by the Social Security Act. (R. at 10—17).
At step one, the AU determined that Plaintiff had not engaged in substantial gainful
activity since October 26, 2013. (R. at 12). At step two, the AU found that Plaintiff suffered from
the severe impairment of bipolar disorder. (R. at 12). However, at step three, the AU determined
that Plaintiffs impairment or combination of impairments did not meet or medically equal one of
the listed impairments. (R. at 12). At step four, the AU found that Plaintiff has the residual
functioning capacity (“RFC”) to perform a full range of work with certain non-exertional
limitations, including occasional interaction with supervisors, co-workers, and the general public.
(R. at 14). At step five, with the help of a vocational expert, the AU concluded that there are jobs
that exist in significant numbers in the national economy that Plaintiff could perfonu, including
commercial cleaner, hand packager, and price marker. (R. at 15—16).
On April 22, 2016, Plaintiff requested review of the AU’s determination by the Appeals
Council, (R. at 137—40), which the Appeals Council denied on August 18, 2017, (R. at I).

On

October 13, 2017, Plaintiff filed this appeal. (ECF No. I). Plaintiff argues that the AU erred at

2

steps two, three, four, and five of the analysis. (ECF No. 13 at 18—33). For the reasons set forth
below, this matter is remanded for further proceedings consistent with this Opinion.

II.

STANDARD Of REVIEW

This Court must affirm an AU’s decision if it is supported by substantial evidence. See 42
U.S.C.

§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perates, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). To determine whether an AU’s decision is supported by substantial evidence,
this Court must review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
1984). However, this Court may not “weigh the evidence or substitute its conclusions for those of
the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). Consequently, this
Court may not set an AU’s decision aside, “even if [it] would have decided the factttal inquiry
differently.” Hartranflv. Apfet, 181 F.3d 358, 360 (3d Cir. 1999).

III.

ANALYSIS

Under the Social Security Act, the Social Security Administration is authorized to pay
Social Security Insurance to “disabled” persons. 42 U.S.C.

§ 13 82(a). A person is “disabled” if

“he is unable 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.

§

1382c(a)(3)(A). A person is unable to engage in substantial gainful activity when his physical or
mental impairments are “of such severity that he is not only unable to do his previous work but

j

cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C.

§ 1382c(a)(3)(B).

Regulations promulgated tinder the Social Security Act establish a five-step process for
determining whether a claimant is disabled. 20 C.F.R.

§ 416.1520. At step one, an AU assesses

whether the claimant is currently performing substantial gainful activity.

20 C.F.R.

§

416.1520(a)(4)(i). If so, the claimant is not disabled. Id. If not, the AU proceeds to step two and
determines whether the claimant has a “severe” physical or mental impairment or combination of
impairments. 20 C.F.R.

§ 416.1520(a)(4)(ii). Absent such impairment, the claimant is not

disabled. Id. Conversely, if the claimant has such an impairment, an AU proceeds to step
three. Id. At step three, an AU evaluates whether the claimant’s severe impairment either meets
or is the equivalent of a listed impairment. 20 C.F.R.

§ 416.1520(a)(4)(iii). If so, the claimant is

disabled. Id. Otherwise, an AU moves on to step four, which involves three sub-steps:
(1) the AU must make specific findings of fact as to the claimant’s
[RFC]; (2) the AU must make findings of the physical and mental
demands of the claimant’s past relevant work; and (3) the AU must
compare the [RFC] to the past relevant work to determine whether
claimant has the level of capability needed to perform the past
relevant work.
Burnett v. Comm ‘r ofSoc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000).
When determining RFC, an “AU may reject a treating physician’s opinion outright only
on the basis of contradictory medical evidence, but may afford a treating physician’s opinion more
or less weight depending upon the extent to which supporting explanations are provided.” Hoyman
v. Co/yin, 606 F. App’x 678, 679 (3d Cir. 2015) (quoting Fltimmer v. Ap/l, 186 F.3d 422, 429 (3d
Cir. 1999)). Unsupported diagnoses are not entitled to great weight. Jones v. Sit//ivan, 954 F.2d
125, 129 (3d Cir. 1991). Moreover, an AU must provide the reason for providing more or less
weight to the evidence. See fragnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).

4

The claimant is
C.F.R.

not

disabled if his RFC allows him to perform his past relevant work. 20

§ 416.1520(a)(4)(iv). However, if the claimant’s RFC prevents him from doing so, an AU

proceeds to the fifth and final step of the process. Id. The final step requires the administrative
law judge to “show [that] 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 [RFC].” Phtrnmer, 186 F.3d at 42$. In doing so, “[t]he 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.” Id. Notably, an AU typically seeks the
assistance of a vocational expert at this final step. Id.
The claimant bears the burden of proof for steps one, two, and four. Sykes v. Ap/t, 228
F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three “[b]ecause step
three involves a concltisive presumption based on the listings.” Id. at 263 n.2 (citing Bowen v.
Yuckert, 482 U.S. 137, 146—47 n.5 (1987)). The Commissioner bears the burden of proof for the
final step. See Id. at 263.

A.

Step Two: Severe Impairments

Plaintiff contends that the AU erred at step two by failing to consider Plaintiffs anxiety
disorder as a severe impairment.

(ECF No. 13 at 14, 18).

The designation of a particular

impairment as severe or non-severe at step two is merely a threshold question. As long as an AU
finds at least one impairment to be severe, the AU considers all of a claimant’s impairments in
combination—severe and non-severe——at step three. In other words, impairments found to be nonsevere are nevertheless included in the step three analysis, so if an AU finds that at least one of a
claimant’s impairments is severe at step two, findings of non-severity as to other impairments are

5

harmless. See Sat/es v. Comm ‘r ofSoc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (“Because
the AU found in [the plaintiffs] favor at Step Two, even if he had erroneously concluded that
some of her other impairments were non-severe, any error was harmless.”). Here, the AU’s
finding at step two that Plaintiffs bipolar disorder was a severe impairment required the AU to
consider the entirety of Plaintiffs impairments at step three. (R. at 12). Therefore, the AU’s
decision to designate

B.

only

bipolar disorder as a severe impairment is not a basis for remand.

Step Three: Listed Impairments
Plaintiff further argues that the AU erred at step three in finding that Plaintiff did not meet

the requirements for Listings 12.04 and 12.06. (ECF No. 13 at 18—27).

1.

Listing 12.04 (Affective Disorders)

Listing 12.04 requires that a claimant satisfy the criteria in Paragraph A as well as the
criteria in either Paragraph B or Paragraph C. 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§

12.04.2 The

AU found that Plaintiff failed to satisfy the criteria in both Paragraphs B and C, such that
consideration of the Paragraph A criteria was not necessary. (R. at 12—13). Plaintiff disputes the
AU’s deterrriination that Plaintiff failed to satisfy at least two of the Paragraph B criteria for
Listing 12.04: (1) marked restriction of activities of daily living; (2) marked difficulties in
maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence,
or pace; or (4) repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404,

2

Effective January 17, 2017, the Social Security Administration revised its criteria for evaluating mental
disorders, including bipolar disorder. See Revised Mccl. Criteria /à ì- Evaluating Mental Disorders, 81 fed.
Reg. 66138—Ol (Sept. 26, 2016). This Court reviews the AU’s decision using the rules that were in effect
at the time the decision was rendered. See Lewis/i v. Co/yin, No. 16-2189, 2018 WU 1559769, at *3 n.2
(D.N.J. Mar. 30, 2018) (citing 81 Fed. Reg. 66138—Ol).
6

Subpt. P, App. 1,

§ 12.04. Plaintiff does not argue that he experienced any episodes of

decompensation during the period in question, but maintains that he suffers from marked
difficulties in each of the first three categories. (See ECF No. 13 at 18—27).
The AU, based on a reading of his decision as a whole, appears to have conducted a
thorough review of the evidence in the record, including documentation of Plaintiffs assessments
at Trinitas Hospital in 2012, (R. at 219—34), a february 2014 consultative examination with Dr.
Ernesto Perdomo, (R. at 235—238), and opinions of two state agency psychologists, Dr. Sharon
Flaherty, (R. at 66—76), and Dr. Joan Joynson, (R. at 78—87).

The AU found that Plaintiff

experienced only moderate restriction of activities of daily living, noting that, during Plaintiffs
examination with Dr. Perdomo, Plaintiff “reported that he took care of his personal needs and
hygiene,” though he showered only once a week when his brother ‘forced” him to do so. (R. at
13). The AU also fotmd that Plaintiff exhibited only moderate difficulties in social functioning.
(R. at 13). Though Plaintiff ‘reported having no friends and being socially withdrawn,” the AU
emphasized that Plaintiff “maintain[ed] a cooperative attitude as well as good eye contact” during
his visits to Trinitas Hospital. (R. at 13). Finally, the AU found that Plaintiff had moderate
difficulties with concentration, persistence. or pace. (R. at 13). Though Plaintiff reported racing
thoughts, no motivation, no interest and fatigue,” Dr. Perdomo’s report showed that Plaintiffs
‘thought processes were organized and focused,” Plaintiff spoke coherently and relevantly,” and
Plaintiffs “long-term memory and concentration were only mildly impaired.” (R. at 13).
The Court finds that the AUJ’s Paragraph B determination is supported by substantial
evidence, including the assessments of Dr. Perdorno and the physicians at Trinitas Hospital cited
by the AL

Furthermore, both state agency psychologists, to whose opinions the AU accorded

some weight, (R. at 15), found Plaintiffs difficulties in the Paragraph B categories to be moderate

7

rather than marked or severe. (R. at 71, 83). “ALJs properly consider the opinions of state agency
medical consultants as expert opinion evidence of nonexamining physicians.” Tizeciak v. Co/un,
No. 15-6333, 2016 WL4769731, at *10 (D.N.J. Sept. 12, 2016). It is not the purview ofthis Court
to “weigh the evidence or substitute its own findings for the Commissioner’s.” Dctvern v. Comm r
of Soc. Sec., 660 F. App’x 169, 174 (3d Cir. 2016). Becacise the AU appropriately linked his
findings to medical evidence in the record, the Court finds that the AU’s step three conclusion
that Plaintiff failed to meet the Paragraph B requirements of Listing 12.04 was supported by
substantial evidence.
The AU also determined that Plaintiff did not satisfy the Paragraph C criteria: (1) a
medically documented history of a chronic affective disorder of at least two years’ duration that
has caused more than a minimal limitation of ability to do basic work activities, with symptoms
currently attenuated by medication or psychosocial support, and either: (2) repeated episodes of
decompensation, each of extended duration; (3) a residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental demands or change in the environment

would cause the claimant to decompensate: or (4) a current history of one or more years’ inability
to function outside a highly supportive living arrangement with an indication of continued need
for such an

arrangement.

(R. at 13); 20 C.F.R. Pt. 404, Subpt. P, App. I,

§ 12.04. Plaintiff does

not argue that he experienced any episodes of decompensation, nor is there evidence that Plaintiff

would experience decompensation as a result of a marginal adjustment in circumstances. There is
likewise no evidence in the record that Plaintiff was unable for one or more years to function

outside a highly supportive living arrangement. Therefore, the Court finds sufficient evidence
supporting the AU’s detenriination that Plaintiff did not satisfy the Paragraph C criteria.

$

2.

Listing 12.06 (Anxiety-Related Disorders)

Plaintiff suggests that the AU should have expressly considered whether Plaintiff met the
requirements for Listing 12.06. (ECF No. 13 at 33). However, Listing 12.06 requires either the
satisfaction of the same Paragraph B criteria as Listing 1 2.04 or symptoms resulting in Plaintiffs
complete inability to function independently outside the area of one’s home. 20 C.F.R. Pt. 404,

Subpt.

P, App. 1,

§ 12.06. Becatise the Court finds that the AU’s determination that Plaintiff

failed to meet the Paragraph B criteria in the Listing 12.04 analysis was based on substantial
evidence, and there is no evidence in the record that Plaintiff cannot function independently outside
his own home, the fact that the AU did not expressly discuss those criteria under Listing 12.06
was harmless. See Albtirv v. Comm ‘r ofSoc. Sec., 116 F. App’x 328, 330 (3d Cir. 2004) (finding
AU’s failure to discuss applicable listings to be harmless error where AU’s “decision [was]
explained in sufficient detail to allow meaningful review”).

C.

Step Four: RFC
Plaintiff also argues that the AU erred in determining Plaintiffs RFC. (ECF No. 13 at 31—

33). At step four, the AU first determined that Plaintiffs “medically determinable impairment
[bipolar disorder] could reasonably be expected to cause the alleged symptoms.’ (R. at 15).
However, the AU made a negative credibility finding concerning Plaintiffs statements about the
severity of those symptoms.

(R. at 15).

The AU likewise assigned little weight to the opinion

of Dr. Perdomo—who had assessed Plaintiff as depressed and “functionally illiterate with very
low borderline intellectual functioning,” and who opined that Plaintiffs condition “affected his
ability to function in the occupational and social spheres oflife”—as inconsistent with other record
evidence. (R. at 15). As a result, the AU concluded that Plaintiff retained an RFC enabling him

9

to perform a full

1-ange

of work with certain non-exertional limitations, including occasional

interaction with supervisors, co-workers, and the general public. (R. at 1 5—1 6).
The Court finds the AU’s evaluation of the severity of Plaintiffs symptoms at step four to
be flawed in two ways. first, in determining Plaintiffs RFC, the AU concluded that Plaintiffs
“statements concerning the intensity, persistence and limiting effects of [his] symptoms are not
entirely credible,” relying in part on Plaintiffs testimony that his symptoms stabilize when he is
taking medication and participating in therapy. (R. at 15). The Court agrees with the AU’s
deteirnination that the Plaintiffs symptoms were stabilized when he was receiving medication and
treatment, such as the treatment he received while in prison and at Trinitas Hospital. (R. at 33—
34). However, Plaintiff was not being treated during the requested period of disability because of
his financial circumstances: Plaintiff stopped taking medication and attending therapy in early
2013 because he was uninsured and could not afford medical care. (R. at 35, 235). Plaintiff tried
to find affordable treatment during this period but was repeatedly turned away because he was
uninsured. (R. at 34—3 5). Dctring the closed period when Plaintiff was not taking medication, he
experienced racing thoughts and extreme highs and lows of energy, suffering from insomnia for
days at a time only to crash for periods of prolonged sleep. (R. at 37—38). He also behaved
confrontationally with friends, employers, customers, and the mother of his child. (R. at 39—40).
At the time of the hearing, Plaintiff was seeking low-cost treatment from a counselor, but he
reported that only his medication could help him “slow down,” noting that without the medication
his symptoms were “intolerable.” and that “sometimes [he] fe[lt] like just killing [himself] and
getting it over with.”3 (R. at 36).

Though occurring outside the closed period of disability, Dr. Jcidith Delblasio documented that Plaintiff
has attempted suicide four times in his life. (R. at 219).
10

The AL] is correct that he must evaluate Plaintiffs symptoms generally taking into account
“the type, dosage, effectiveness, and side effects of any medication
symptoms.”

20 C.F.R.

.

.

taken to alleviate [those]

§ 404.1529(c)(3)(iv). However, the AU incorrectly based his RFC

determination on his evaluation of Plaintiffs alleviated symptoms white medicated, despite the
fact that Plaintiff was not medicated during the period of requested disability. (R. at 15). The AU
should have considered Plaintiffs impainTlents as they manifested during the period in question—
not as they manifested during previous years when Plaintiff was taking medication while in prison
or at Trinitas Hospital. Whether Plaintiff was capable of gainful activity during the period from
October 2013 to December 2014 depends on Plaintiffs symptoms as he actually experienced them,
not on Plaintiffs symptoms as regulated by treatment that he did not receive during that time.
Furthermore, the response of Plaintiffs impairments to medication does not warrant a
negative credibility finding concerning Plaintiffs testimony about those impairments when
unmedicated. The AU should have considered Plaintiffs inability to afford treatment during the
closed period when making his credibility finding concerning Plaintiffs testimony about his
untreated impairments. See Newell v. Comm ‘r of Soc. Sec., 347 F.3d 541. 547 (3d Cir. 2003)
(holding the plaintiffs inability to afford treatment to be an adequate explanation for her failure to
seek it); Tories r. Comm ‘r of Soc. Sec., No. 15-6344, 2016 WL 5339724, at 5 (D.N.J. Sept. 23,
2016) (finding an AU’s “failure to consider [the plaintiffs] ability to afford medical treatment
constitute[d] eior warranting remand” where the “AU’s credibility determination had a
significant impact on the RFC analysis”):

Val?emdtn i.

Comm ‘r of Soc. Sec., No. 04-4687. 2009

WL 2143649, at *11 (D.N.J. July 14, 2009) (“The AU erred by concluding that Plaintiffs
description of her disabling pain lacks credibility because he failed to consider Plaintiffs claimed
inability to afford treatment.”).

Second, the AU repeatedly relied on the fact of Plaintiffs return to work as a tow truck
driver commencing in January 2015 as evidence that Plaintiff was capable of working during the
requested period—from October 2013 to December 2014. (R. at 15—16). The AU cited to this
fact as justification for assigning little weight to the opinion of Dr. Perdomo, concluding that his
opinion was “not consistent” with Plaintiffs return to work in January 2015. (R. at 15). Btit Dr.
Perdomo assessed Plaintiff in February of 2014, in the beginning of the claimed period, almost a
year before Plaintiffs return to work. (R. at 235). The question before the AU was whether
Plaintiff was capable of working during the claimed period of disability,

not

immediately after it.

Plaintiffs subsequent work history has little bearing on the credibility of Dr. Perdorno’s
evaluation, which occulTed during the relevant period.
Plaintiffs return to work in January 2015 also caused the AU

to question whether

Plaintiffs “unemployment during the relevant period was actually due to medical impairments or
[rather due to] other non-disability reasons,” since the AU found “no indication in the record of
medical improvement” in Plaintiffs symptoms at the time of his return to work. (R. at 16). The
Court cannot review what “other non-disability reasons” the AU scispected that Plaintiff had for
remaining unemployed, without income or health insurance, dciring the relevant period, as the AU
did not elaborate in his decision and no non-medical reasons are apparent from the record. A
claimant’s “return to work is not dispositive of her eligibility for a closed period of disability,” but
must instead be evaluated in the context of other evidence. Lee r. Coiniiz ‘r of Soc. Sec.. 24$ F.
App’x 458, 461 (3d Cir. 2007). In this case, while it is true that the record does not indicate an
improvement in symptoms in January 2015, that fact does not necessarily show that Plaintiffs
symptoms during the period in question were not so bad as to keep him from working. At the time
of the hearing, Plaintiff reported having taken repeated unexplained leaves of absence from his job

12

because of his symptoms and getting into confrontations with his employers,

noting

that he was

surprised that he had not been disciplined or terminated. (R. at 32—33, 39). The AU should have
evaluated Plaintiffs return to work in the context of this evidence showing that Plaintiff did so in
spite of ongoing symptoms, rather than understanding Plaintiffs return to work in itself to be
evidence that his symptoms were nonexistent or not severe.
Accordingly, the Court cannot conclude that the AU’s determination at step four was
supported by substantial evidence. On remand, the AU should consider the evidence in light of
amendments to the relevant regulations. See 81 Fed. Reg. 66138—01 (“If a court

.

.

.

rernands a

case for further administrative proceedings after the effective date of these final rules, we will
apply these final rules to the entire period at issue in the decision we make after the court’s
remand.”). The AU should also consider new evidence that was not before him during the initial
proceedings but that became part of the record before this Court: 1) an evaluation of Plaintiff in
January 2016 by his treating psychotherapist. clinical social worker Judith Rosenstein, (R. at 21—
26); and 2) a January 2016 letter from Jennifer ColTea, the mother of Plaintiffs child. (R. at 218).

IV.

CONCLUSION

for the aforementioned reasons, the Court remands this matter for further proceedings that
are consistent with this Opinion. An appropriate Order accompanies this Opinion.

DATED: December, 201$
JO
C

13

LINARES
Judge, United States District Co
.