POMALES v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Chief Judge Jose L. Linares on 4/24/2019. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JULIA H. POMALES,

Civil Action No.: 18-518 (iLL)

Plaintiff.

OPINION

V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, Chief District Judge.

This matter comes before the Court by way of Plaintiff Julia H. Pomales’s petition for
judicial review of a final decision issued on behalf of the Commissioner of the Social Security
Administration (“Commissioner”), who denied her claim for disability insurance benefits. (ECF
No. 1). After careful consideration of the administrative record, submissions made

in

support of,

(ECF Nos. 8, 11, 13), and in opposition to, (ECF No. 12), 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 remands this matter for further proceedings consistent with this
Opinion.

I.

BACKGROUND’

On September 16, 2014, Plaintiff filed an application for Social Security disability
insurance benefits (“DIB”) alleging an onset of disability of June 10, 2014. (R. at 242). Plaintiff

“R.” refers to the Administrative Record, which uses continuous pagination and can be
6 through 6-10.

found

at ECF Nos.

alleged she was disabled as a result of a seizure disorder with impairment of consciousness, as well
as depression, carotid artery stenosis, arthritis. lumbosacral spondylosis with radiculopathy,
fibromyalgia syndrome, cervical disc disorder, migraines, asthma, and turgornetric neuralgia
cranial nerve. (R. at 160). Plaintiffs application was denied initially on January 21, 2015, (R. at
160—64), and denied again upon reconsideration on May 14, 2015, (R. at 166—70).

Plaintiff

appeared at a hearing before Administrative Law Judge Sharon Allard (the “AU”) on April 6,
2017. (R. at 74—116). After conducting a five-step analysis, the AU determined that Plaintiff was
ineligible for payment because she was not disabled within the meaning of the Social Security Act
during the period in question. (R. at 34—49).
At step one, the AU determined that Plaintiff did not engage in substantial gainful activity
for continuous 12-month period(s) during her alleged period of disability. (R. at 36—3 7). At step
two, the AU found that Plaintiff suffered from the following severe impairments: minor motor
seizures, spine disorder, fibrornyalgia, and affective disorders. (R. at 37). However, at step three,
the AU determined that Plaintiffs combination of impairments did not meet or medically equal
one of the listed impairments. (R. at 37—38). At step four, the AU found that Plaintiff has the
residual functioning capacity (“RFC”) to perform light work and to execute simple, routine tasks,
with certain limitations requiring her to be off-task for ten percent of the work day. (R. at 38). 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 can perform, including mail clerk, price
marker, and cashier. (R. at 43—44).
On July 10, 2017, Plaintiff requested review of the AUJ’s determination by the Appeals
Council, (R. at 23 5—39), which the Appeals Council denied on December 5, 2017, (R. at 1—8). On
January 12, 2018, Plaintiff filed this appeal. (ECF No. 1). Plaintiff argues that the AU erred at

step three by failing to find that Plaintiffs severe impairments meet the requirements for Listing
1.04A and Listing 12.07, as well as by failing to assess the combined effects of all of Plaintiffs
impairments in the AU’s Listing 12.04 analysis. (ECF No. 11 at 36—41). Plaintiff further argues
that the AU erred at step four in failing to account for the effects of Plaintiffs carpal tunnel
syndrome in the RFC determination. (ECF No. 11 at 41—44). 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 ALl’s decision if it is supported by substantial evidence. See 42
U.S.C.

§ 405(g), 13$3(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. Ferates, 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. Sit//ivan, 970 F.2d 11 78, 1182 (3d Cir. 1992). Consequently, this
Court may not set an AU’s decision aside, “even if [it] would have decided the factual inquiry
differently.” Hartranftv. Apfe/, 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.

§ 1382(a). A person is “disabled” if

“he is unable to engage in any substantial gainful activity by reason of any medically detenriinable

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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
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 under 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 perfonning substantial gainful activity.

20 C.F.R.

§

4l6.1520(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 impainuent, 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
[Rf C]; (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 [Rf C] 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

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v. Co/yin, 606 F. App’x 678, 679 (3d Cir. 2015) (quoting Plttrnmer v. Apfe/, 186 F.3d 422, 429 (3d
Cir. 1999)). Unsupported diagnoses are not entitled to great weight. Jones v. Sullivan, 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 fragnoti

i’.

Massanari, 247 F.3d 34, 42 (3d Cir. 2001).

The claimant is not disabled if his Rf C allows him to perform his past relevant work. 20

C.F.R.

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

proceeds to the fiflh 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].” P/unimer, 186 f.3d at 428. 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. Apfet, 228
F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three “[b]ecause step
three involves a conclusive 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.

Listing 1.04A (Disorders of the Spine)
In order to meet the requirements of Listing 1 .04A for disorders of the spine, a claimant

must exhibit:
[(1)] Evidence of nerve root compression characterized by neuro
anatomic distribution of pain, [(2)] limitation of motion of the spine,

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[(3)] motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, [(4)]
if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine).
20 C.F.R. Pt. 404, Subpt. P, App. 1,

§ 1.04A. In the step three analysis, the AU wrote that

“[s]pecific consideration has been given to the applicable sections of Section 1.00 (Muscoskeletal
System) and 11.00 (Neurological System),” but did not walk through her reasoning explicitly with
respect to the Listing 1 .04A requirements at step three. (R. at 37). However, the AU conducted
a thorough review of evidence relevant to the Listing I .04A requirements in her RFC analysis at
step four. (See R. at 38—43).
The AU considered Plaintiffs testimony that she suffered from seizures, as well as
Plaintiffs complaints of neck and back pain. (R. at 39). However, the AU concluded that
Plaintiffs “statements concerning the intensity, persistence and limiting effects of these symptoms
are not entirely consistent with the medical evidence.” (R. at 40). For instance, the AU considered
a September 2014 exam of Plaintiff by radiologist, Dr. James Charles. (R. at 41). Although the
exam showed evidence of disc herniations and “cervical and lumbar spine tender points,” Dr.
Charles found “no evidence of cord compression” and “no evidence of spinal.

.

.

cord or peripheral

nerve pathology.” (R. at 41). The AU also relied on Dr. Charles’s finding that Plaintiffs “[g]ait
and station [were] normal,” and that Plaintiffs “[r]ange of motion of the cervical spine was

.

.

normal.” (R. at 41). Furthermore, the exam revealed that Plaintiffs “[s]traight leg raising was
negative, bilaterally.” (R. at 41). The Court finds that “a reasonable mind might accept” this
evidence as adequate in determnining that Plaintiffs impairments did not meet or medically equal
the requirements for Listing I .04A, and therefore concludes that the AU’s finding on this point is
supported by substantial evidence. Ptummer, 186 F.3d at 427.

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B.

Listing 12.04 (Affective Disorders) and Combined Effects

Plaintiff also argues that the AU’s step three analysis cannot be meaningfully reviewed
because the AU failed to discuss the combined effects of Plaintiffs impairments. (ECf No. 11 at
41). At step three, the AU considered whether Plaintiff satisfied the criteria for Listing 12.04 for
affective disorders. (R. at 37—38). Listing 12.04 requires satisfaction of the criteria in Paragraphs
A and B or in Paragraphs A and C. 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§ 12.04. The AU

considered the criteria in Paragraphs B and C and concluded that the evidence failed to meet the
criteria under either Paragraph. (R. at 37—38). The Paragraph B criteria are as follows:

Extreme limitation of one, or marked limitation of two, of the
following areas of functioning [1:
1.
2.
3.
4.

Understand, remember, or apply information
Interact with others [].
Concentrate, persist, or maintain pace [].
Adapt or manage oneself [].

20 C.F.R. Pt. 404, Subpt. P, App. 1,

[].

§ 12.04. An extreme limitation means the inability “to function

independently, appropriately, effectively, and on a sustained basis,” and a marked limitation means
that “functioning in this area independently, appropriately, effectively, and on a sustained basis is
seriously limited.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§ 12.00(f)(2)(d)—(e). TheALJ determined

that Plaintiff had only mild limitations in “understanding, remembering, or applying information,”
“interacting with others,” and “adapting or managing” herself, (R. at 37—38), but that she exhibited
moderate limitations in “concentrating, persisting, or maintaining pace.” (R. at 38).
If a claimant has a “combination of impairments,” the AU must consider whether that
“combination of impairments is medically equivalent to [a] listing. 20 C.F.R.

§ 404.1526(b)(3).

At step two, the AU found that Plaintiff suffered from a combination of both mental and physical
impairments—namely, minor motor seizures, spine disorder, fibromyalgia, and affective

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disorders. (R. at 37). However, in considering whether Plaintiff satisfied the requirements for
Listing 12.04, the AU explicitly found that “the severity of [Plaintiffs] mental impairment does
not meet or medically equal the criteria of listing 12.04.” (R. at 37 (emphasis added)). Likewise,
the AU concluded that, “[b]ecause [Plaintiffs] mental impairment does not cause” the limitations
required by Paragraph B, those criteria were not satisfied. (R. at 38 (emphasis added)). As the
Commissioner correctly points out, the AU introduces her step three analysis by stating generally
that “[t]he record fails to establish that [Plaintiff] has an impairment or combination of
impainrients that meets or medically equals the criteria of any listed impairment.” (R. at 37).
However, the AU also expressly limited her consideration of the Paragraph B criteria to the effects
only of Plaintiffs mental impairment and cited exclusively to evaluations by Plaintiffs
psychiatrists and psychologists in support of her conclusions, without discussing evidence from
other physicians. (R. at 37—38).
Therefore, it is not clear to the Court whether the AU also considered the effects that
Plaintiffs physical impairments have, in combination with the effects of her mental impairment,
on the abilities that require analysis under Listing 12.04.

In particular, the AU should have

explicitly considered whether Plaintiffs motor seizures, spine disorder, and fibromyalgia—all of
which the AU classified as severe impairments—further limited her abilities to understand,
remember or apply information, interact with others, concentrate, persist, or maintain pace, or
adapt or manage herself, such that, when considered together with the effects of her affective
disorder, two or more of the Listing 12.04 criteria were markedly limited, or one criterion was
extremely limited. See Torres v. Comm ‘r of Soc. Sec., 279 F. App’x 149, 152 (3d Cir. 200$)
(instructing the AU on remand to consider the effects of all mental and physical impairments,
including “back problems” and “depression,” in combination); Brennan v. Comm ‘r of Soc. Sec.,

$

No. 17-4259, 2018 WL 5294516, at *4 (D.N.J. Oct. 25. 201$) (remanding where the AU failed to
consider Plaintiffs physical impairments in Listing 12.04 analysis); Bierilo

1’.

Coniiii ‘r of Soc.

Sec., No. 13-1183, 2014 WL 1883681, at *3 (D.N.J. May 12. 2014) (remanding where the AU
“failed to consider the total effect of Plaintiffs mental impairments and physical impairments
combined” in Listing 12.04 analysis); ef Perkins v. Barnhart, 79 F. App’x 512, 515 (3d Cir. 2003)
(noting that the “AU’s failure to consider expressly the combined effect of [the plaintiffs] asthma
and depression on his ability to engage in gainful employment is potentially troubling,” but
determining that the error was hannless given evidence that the plaintiffs depression was not
severe).
Furthermore, the Court cannot conclude that the AU’s failure to consider Plaintiffs severe
physical impairments in this context was harmless. The record contains evidence that, as a result
of Plaintiffs physical impairments, she experiences symptoms—including seizures, neck and back
pain, memory loss, migraines, numbness and tingling, and limited range of neck motion—that
could conceivably increase her limitations in the Paragraph B criteria. (See R. at 39—42). If the
AU had considered the totality of Plaintiffs impairments, she could foreseeability find two
marked or one extreme limitation as required by Listing 12.04. See Diaz v. Comm ‘r ofSoc. Sec.,
577 F.3d 500, 504 & n.3 (3d Cir. 2009) (vacating and remanding where AU’s decision did not
discuss the combined effects of the plaintiffs impairments and noting that “absent analysis of the
cumulative impact” of all impain-nents, “we are at a loss in our reviewing function”). On remand,
the AU should also consider the Uisting 12.04 Paragraph A criteria in light of these instructions.

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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: Apri1

2019
E L. LINARES
Chief Judge, United States District Court

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