DAVIS vs. COMMISSIONER OF SOCIAL SECURITY

Filing 18

OPINION. Signed by Judge Stanley R. Chesler on 2/5/2019. (dam, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
ANDRE DAVIS,
:
:
Plaintiff,
:
:
v.
:
:
COMMISSIONER OF SOCIAL
:
SECURITY,
:
:
Defendant.
:
____________________________________:

Civil Action No. 17-9424 (SRC)
OPINION

CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Andre Davis (“Plaintiff”)
of the final decision of the Commissioner of Social Security (“Commissioner”) determining that
he was not disabled under the Social Security Act (the “Act”). This Court exercises jurisdiction
pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of the parties without
oral argument, pursuant to L. CIV. R. 9.1(b), finds that the Commissioner’s decision will be
affirmed.
In brief, this appeal arises from Plaintiff’s application for disability insurance and
supplemental security income benefits, alleging disability beginning November 13, 2013. A
hearing was held before ALJ Theresa Merrill (the “ALJ”) on May 10, 2016, and the ALJ issued
an unfavorable decision on June 21, 2016. Plaintiff sought review of the decision from the
Appeals Council. After the Appeals Council denied Plaintiff’s request for review, the ALJ’s
decision became the Commissioner’s final decision, and Plaintiff filed this appeal.
In the decision of June 21, 2016, the ALJ found that, at step three, Plaintiff did not meet

or equal any of the Listings. At step four, the ALJ found that Plaintiff retained the residual
functional capacity to perform sedentary work, with certain limitations. At step four, the ALJ
also found that this residual functional capacity was not sufficient to allow Plaintiff to perform
any of his past relevant work. At step five, the ALJ determined, based on the testimony of a
vocational expert, that there are other jobs existing in significant numbers in the national
economy which the claimant can perform, consistent with his medical impairments, age,
education, past work experience, and residual functional capacity. The ALJ concluded that
Plaintiff had not been disabled within the meaning of the Act.
Plaintiff argues that the Commissioner’s decision should be reversed and the case
remanded on three grounds: 1) the Commissioner erred at step three, because Plaintiff’s
combination of impairments is equivalent to Listing 1.04A; 2) the ALJ made several errors in the
residual functional capacity determination at step four; and 3) the hypothetical presented to the
vocational expert at step five did not include all limitations, and the vocational expert presented
false testimony.
Plaintiff’s case on appeal suffers from two principal defects: 1) its failure to deal with the
issue of the burden of proof at the first four steps of the sequential evaluation process; and 2) its
failure to deal with the harmless error doctrine. As to the burden of proof, Plaintiff bears the
burden in the first four steps of the analysis of demonstrating how his impairments, whether
individually or in combination, amount to a qualifying disability. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987).
As to the harmless error doctrine, the Supreme Court explained its operation in a similar
procedural context in Shinseki v. Sanders, 556 U.S. 396, 409 (2009), which concerned review of

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a governmental agency determination. The Court stated: “the burden of showing that an error is
harmful normally falls upon the party attacking the agency’s determination.” Id. In such a case,
“the claimant has the ‘burden’ of showing that an error was harmful.” Id. at 410.
Plaintiff thus bears the burden, on appeal, of showing not merely that the Commissioner
erred, but also that the error was harmful. At the first four steps, this requires that Plaintiff also
show that, but for the error, he might have proven his disability. In other words, when appealing
a decision at the first four steps, if Plaintiff cannot articulate the basis for a decision in his favor,
based on the existing record, he is quite unlikely to show that an error was harmful.
Plaintiff first argues that the Commissioner erred at step three, and that Plaintiff’s
combination of impairments is equivalent to Listing 1.04A. At step three, the ALJ stated:
In evaluating the claimant’s physical impairments, the undersigned has
considered medical listings 1.04. However, the medical evidence does not
adequately establish the motor loss and sensory or reflex loss required by listing
1.04. Thus, the medical evidence or record does not show conditions of the
nature, severity or duration contemplated by listings 1.04.
(Tr. 19.) Plaintiff argues: “But the medical evidence undoubtedly, plainly, forthrightly and
unmistakably documents sensory loss and motor loss from both treating sources and the
Commissioner’s own consulting examiner.” (Pl.’s Br. 23.) The problem for Plaintiff is that the
brief fails to support this claim with evidence of record. Plaintiff claims that the medical
evidence unmistakably documents sensory loss and motor loss, but the brief does not point to
specific evidence, with page numbers, that would permit this Court to evaluate Plaintiff’s
argument. What follows, instead, is a long list of medical findings without any citation to the
record, nor even any references to the medical professionals who are presumably the sources for
the findings. The Court cannot speculate as to whether the record contains the evidence on

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which Plaintiff relies. On this matter, it heeds the guidance of the Third Circuit, which has
stated:
It has been oft-noted that “Judges are not like pigs, hunting for truffles buried in
the record.” And this Court has frequently instructed parties that they bear the
responsibility to comb the record and point the Court to the facts that support their
arguments.
United States v. Claxton, 766 F.3d 280, 307, 61 V.I. 715 (3d Cir. 2014) (citations omitted).
Plaintiff has failed to follow the Third Circuit’s clear instructions. This Court finds no basis to
conclude that the Commissioner erred at step three.
As to Plaintiff’s second argument, Plaintiff asserts a few errors that he believes the ALJ
made in making the residual functional capacity determination, but, again, does not develop any
of them. Plaintiff begins with seven pages of boilerplate background on the relevant law. (Pl.’s
Br. 25-33.) Next, Plaintiff’s brief has one paragraph listing single-sentence assertions of the
errors the ALJ made. This appears to be an introductory paragraph, summarizing the points to
be developed and supported, but no discussion follows. Had Plaintiff developed any of these
points, this Court might have something to work with, but he did not. For example, Plaintiff
states:
Findings and opinions of treating physicians and clinical examinations are
minimized or rejected as vague or incomplete or emanating from unacceptable
sources or in compatible with the record as a whole or conclusory or lacking
function by function assessments or rendered in an insurance context.
(Pl.’s Br. 33-34.) This is fine as an introductory summary of an argument, but it needs to be
supported, and Plaintiff does not explain it or support it. Which treating physicians? Which
opinions? Where does the ALJ reject or minimize them? The Claxton quote above applies here
as well. Plaintiff has failed to explain and support his points challenging the residual functional

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capacity determination.
As to step five, again, Plaintiff argues generally that the hypothetical failed to include all
of Plaintiff’s credibly established limitations, without specifying which limitations were omitted.
Plaintiff then argues that the vocational expert offered false testimony, because it is not
consistent with the Dictionary of Occupational Titles, as the expert stated. The basis for this
charge appears to be that Plaintiff has unique characteristics that the Dictionary of Occupational
Titles does not contemplate. This argument fails on two grounds. First, this argument asks this
Court to reweigh the evidence. The Third Circuit has held:
A federal court’s substantial-evidence review is “quite limited.” Rutherford v.
Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). A court may not weigh the evidence
or substitute its own findings for the Commissioner’s. Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986). [Plaintiff's] arguments amount to
a request to reweigh the evidence and review the Commissioner’s findings and
decision de novo.
Davern v. Comm’r of Soc. Sec., 660 Fed. Appx. 169, 173-74 (3d Cir. 2016). Similarly, in the
instant case, Plaintiff asks this Court to review the step five determination de novo and to
reweigh the evidence, which it may not do. This Court is authorized only to review the decision
under the substantial evidence standard. 42 U.S.C. § 405(g) (“The findings of the Commissioner
of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”) The
vocational expert’s testimony constitutes substantial evidence, and the Commissioner’s factual
findings at step five – that, in short, jobs that Plaintiff can do exist in significant numbers in the
national economy – are conclusive.
Second, as to the asserted falseness of the vocational expert’s testimony, Plaintiff here
makes an argument on appeal that should have been directed to the finder of fact in the first
instance. The Third Circuit has stated:
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We have frequently noted the well-established rule that absent compelling
circumstances an appellate court will not consider issues that are raised for the
first time on appeal. This general rule applies with added force where the timely
raising of the issue would have permitted the parties to develop a factual record,
because we cannot know on appeal what evidence the adverse party would have
presented or brought out through cross-examination.
Shell Petroleum v. United States, 182 F.3d 212, 219 (3d Cir. 1999) (citation omitted). Had
Plaintiff raised this challenge below, the parties could have developed the record with regard to
the issue of the relationship between the expert’s testimony and the Dictionary of Occupational
Titles. This appears to be a new issue raised on appeal and, under Third Circuit law, it will not
be considered.
Plaintiff has failed to persuade this Court that the ALJ erred in her decision, or that he
was harmed by any errors. This Court finds that the Commissioner’s decision is supported by
substantial evidence and is affirmed.

s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: February 5, 2019

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