MARTINEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 32

OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 2/8/2021. (km)

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 1 of 11 PageID: 451

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FORREST E. MARTINEZ,
Plaintiff,
Case No. 2:18-cv-4805
Magistrate Judge Norah McCann King

v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

OPINION AND ORDER
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the applications of Plaintiff Forrest E. Martinez for
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.,
and for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381 et seq. Plaintiff appeals from the final decision of the Commissioner of Social Security
denying Plaintiff’s applications. After careful consideration of the entire record, including the
entire administrative record, the Court decides this matter pursuant to Rule 78(b) of the Federal
Rules of Civil Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court
reverses the Commissioner’s decision and remands the action for further proceedings.
I.

PROCEDURAL HISTORY
In July 2013, Plaintiff filed applications for disability insurance benefits and

supplemental security income, alleging that he has been disabled since May 1, 2010. R. 167–77.
Plaintiff’s applications were denied initially and upon reconsideration. R. 100–09, 111–14.
Plaintiff sought a de novo hearing before an administrative law judge. R. 115–16. Administrative
1

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 2 of 11 PageID: 452

Law Judge Richard West (“ALJ”) held a hearing on August 26, 2016, at which Plaintiff, who
was represented by counsel, appeared and testified, as did a vocational expert. R. 29–51. In a
decision dated September 7, 2016, the ALJ concluded that Plaintiff was not disabled within the
meaning of the Social Security Act from May 1, 2010, the alleged disability onset date, through
the date of that decision. R. 15–24. That decision became the final decision of the Commissioner
of Social Security when the Appeals Council declined review on January 27, 2018. R. 1–6.
Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On May 9, 2018,
Plaintiff consented to disposition of the matter by a United States Magistrate Judge pursuant to
28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF No. 6. 1 On March
11, 2020, the case was reassigned to the undersigned. ECF No. 31. The matter is now ripe for
disposition.
II.

LEGAL STANDARD
A.

Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence “does not mean a
large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565
(1988) (citation and internal quotations omitted); see K.K. ex rel. K.S. v. Comm’r of Soc. Sec.,

1

The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
2

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 3 of 11 PageID: 453

No. 17-2309 , 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018). Substantial evidence is “less
than a preponderance of the evidence, but ‘more than a mere scintilla.”’ Bailey v. Comm’r of Soc.
Sec., 354 F. App’x 613, 616 (3d Cir. 2009) (citations and quotations omitted); see K.K., 2018
WL 1509091, at *4.
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
3

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 4 of 11 PageID: 454

overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although the ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter, 650 F.2d at 482. Absent such articulation, the Court
“cannot tell if significant probative evidence was not credited or simply ignored.” Id. at 705. As
the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.
4

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 5 of 11 PageID: 455

Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award
benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation
omitted); see A.B., 166 F. Supp.3d at 518. In assessing whether the record is fully developed to
support an award of benefits, courts take a more liberal approach when the claimant has already
faced long processing delays. See, e.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). An
award is “especially appropriate when “further administrative proceedings would simply prolong
[Plaintiff’s] waiting and delay his ultimate receipt of benefits.” Podedworny, 745 F.2d at 223;
see Schonewolf, 972 F. Supp. at 290.
B.

Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). “The claimant bears the burden of proof at steps one through
5

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 6 of 11 PageID: 456

four, and the Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc.
Sec., 631 F.3d 632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92
(3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, then the inquiry ends because the
plaintiff is not disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the plaintiff does not
have a severe impairment or combination of impairments, then the inquiry ends because the
plaintiff is not disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §§
404.1520(d), 416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or
combination of impairments has lasted or is expected to last for a continuous period of at least 12
months. Id. at §§ 404.1509, 416.909. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. §§ 404.1520(e),
(f), 416.920(e), (f). If the plaintiff can perform past relevant work, then the inquiry ends because
the plaintiff is not disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
6

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 7 of 11 PageID: 457

the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g). If the ALJ determines that the
plaintiff can do so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be
disabled if the impairment or combination of impairments has lasted or is expected to last for a
continuous period of at least twelve months.
III.

ALJ DECISION AND APPELLATE ISSUES
The Plaintiff was 40 years old on his alleged disability onset date, R. 23, and he met the

insured status requirements of the Social Security Act through September 30, 2013, R. 17. At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 1,
2010, his alleged disability onset date. R. 17.
At step two, the ALJ found that Plaintiff suffered the severe impairments of degenerative
disc disease, hyperthyroidism, and depression. Id.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination
of impairments that met or medically equaled the severity of any Listing. R. 18–19.
At step four, the ALJ found that Plaintiff had the RFC to perform sedentary work
subject to various additional postural and mental limitations. R. 19–22. The ALJ also found
that this RFC did not permit the performance of Plaintiff’s past relevant work as a customer
service representative. R. 23.
At step five, the ALJ found that a significant number of jobs—i.e., approximately
120,000 jobs as an order cook; approximately 90,000 jobs as an assembler; an unidentified
number of jobs as a document preparer—existed in the national economy and could be
performed by an individual with Plaintiff’s vocational profile and RFC. R. 23–24. The ALJ
therefore concluded that Plaintiff was not disabled within the meaning of the Social Security
Act from May 1, 2010, his alleged disability onset date, through the date of the decision. R.
7

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 8 of 11 PageID: 458

24.
Plaintiff disagrees with the ALJ’s findings at steps three and four and asks that the
decision of the Commissioner be reversed and remanded with directions for the granting of
benefits or, alternatively, for further proceedings. Plaintiff’s Brief, ECF No. 26. The
Commissioner takes the position that his decision should be affirmed in its entirety because
the ALJ’s decision correctly applied the governing legal standards, reflected consideration of
the entire record, and was supported by sufficient explanation and substantial evidence.
Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 30.
IV.

RELEVANT MEDICAL EVIDENCE AND DISCUSSION
On March 12, 2014, Plaintiff underwent an MRI of the lumbar spine. R. 307–08 (“the

March 2014 MRI”). The March 2014 MRI revealed, inter alia, anterolateral disc herniations at
T11-T12, T12-L1, L1-L2, and L2-L3; posterior disc herniations at L2-L3 and L5-S1;
posterolateral annular bulging at L3-L4, L4-L5 and L5-S1; and facet arthropathy and moderate
foraminal stenosis bilaterally at L4-L5 and L5-S1. R. 307. However, the ALJ misconstrued
this evidence when finding, at step three, that “the evidence fails to demonstrate the existence
of a ‘herniated nucleus pulposis, spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis. . . .’” R. 18. Indeed, the Commissioner appears to
concede that the ALJ mis-stated the MRI findings. Defendant’s Brief Pursuant to Local Civil
Rule 9.1, ECF No. 30, pp. 16–18.
Plaintiff argues, inter alia, that this mis-statement of the MRI findings takes on great
significance when considered in conjunction with the ALJ’s evaluation of the opinions of Lillian
Okereke, whom Plaintiff identifies as his treating physician. Plaintiff’s Moving Brief, ECF No.

8

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 9 of 11 PageID: 459

26, pp. 26–33. 2 Here, the ALJ considered the opinions of Lillian Okereke and assigned them
“little weight,” reasoning as follows:
In a July 7, 2014 medical source statement, Dr. Okereke stated that she saw the
claimant every two weeks and diagnosed a herniated disc and lower back pain. The
practitioner opined that the claimant could sit, stand and walk for less than two
hours in an eight-hour day; rarely lift less than ten pounds; rarely look down, turn
his head left or right, look up, hold his head in a static positon [sic], stoop, couch,
squat and climb stairs; and never climb ladders. Dr. Okereke further opined that the
claimant was incapable or even “low stress” jobs because he had problems sitting
and standing for long periods of time; that he would need to take unscheduled
breaks during an eight hour day; and that he would be absent more than four days
a month (Exhibit 7F).
R. 20.
Little weight is given to the multiple limitations assessed by Dr. Okereke in a July
2014 medical source statement (Exhibit 7F). This opinion is not supported by
longitudinal treatment notes and not consistent with the MRI findings; the
findings of consultative examiners Eyassu and Yalkowsky; the claimant’s sworn
testimony regarding his own activities of daily living and his ability to sit; or any
other medical signs (Exhibits 3F, 4F, 6F).
R. 22 (emphasis added). Plaintiff argues that the ALJ’s reasons for discounting Lillian Okereke’s
opinions are flawed because, inter alia, the ALJ misread the March 2014 MRI. Plaintiff’s

2

The Commissioner represents that Lillian Okereke is a nurse practitioner, not a medical doctor
as represented in Plaintiff’s brief and the ALJ’s decision. Defendant’s Brief Pursuant to Local
Civil Rule 9.1, ECF No. 30, at 23–25 (citing, inter alia,
https://horizonnjhealth.com/findadoctor/doctor/plan-horizon-nj-health/group-affiliationPAIN%20MEDICINE%20AND%20ANESTHESIA,%20P.C). Whereas the opinions of a
treating physician are ordinarily entitled to great weight, Brownawell v. Comm’r of Soc. Sec.,
554 F.3d 352, 355 (3d Cir. 2008); see 20 C.F.R. §§ 404.1527(c)(1)–(6), 416.927(c)(1)–(6); see
also SSR 96-2p, “[n]urses are not ‘acceptable medical sources’ under the regulations for claims
filed before March 27, 2017.” Williams v. Saul, No. CV 17-00234, 2019 WL 5061239, at *3
(D.N.J. Oct. 9, 2019) (citations omitted); see also 20 C.F.R. §§ 404.1513(a) (eff. Sept. 3, 2013 to
March 26, 2017) (listing acceptable medical sources that do not include nurses), 416.913(a) (eff.
Sept. 3, 2013 to March 26, 2017) (same). While “other source” evidence cannot be used to
establish an impairment, 20 C.F.R. §§ 404.1513(a), 416.913(a), such evidence can be used to
show the severity of a claimant’s impairment and how it affects the claimant’s ability to work, id.
at §§ 404.1513(d)(1), 416.913(d)(1).
9

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 10 of 11 PageID: 460

Moving Brief, ECF No. 26, pp. 26–33. Plaintiff specifically contends that the ALJ’s summary of
the March 2014 MRI findings omitted significant findings, including “that plaintiff suffers spinal
canal stenosis at L2-L3, that the L5-S1 disc herniation impresses upon the thecal sac surrounding
plaintiff’s spinal cord, that plaintiff suffers facet hypertrophy at multiple vertebral levels and
facet arthropathy at least three of those levels, causing ‘moderate foraminal narrowing
bilaterally’ at all these levels.” Id. at 26. In response, the Commissioner concedes that the March
2014 MRI reveals the presence of herniated discs, but argues that any error on the part of the
ALJ in this regard was harmless because the ALJ’s mis-statement of the MRI findings was made
at step three and Plaintiff could not establish a listed impairment at that step in any event.
Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 30, pp. 16–18
The Commissioner’s arguments are not well taken. Here, the Commissioner concedes
that the ALJ misrepresented the MRI evidence. Defendant’s Brief Pursuant to Local Civil Rule
9.1, ECF No. 30, pp. 16–18; see also R. 18 (reflecting the ALJ’s explanation that “the evidence
fails to demonstrate the existence of a []herniated nucleus pulposis, spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc disease, facet arthritis, or the requirements of A, B, or
C of this listing”), 20 (reflecting the ALJ’s explanation that records from the American Imaging
Center of West Orange contained, inter alia, “a March 12, 2014 MRI of the lumbar spine that
showed herniated discs at Tl 1-12, T12-Ll, Ll-2, L2-3 and L5-Sl (Exhibit 6F)”). The ALJ’s
discounting of Lillian Okereke’s opinions was based, at least in part, on this mischaracterization
or misreading of the March 2014 MRI. R. 20. Although an ALJ may choose which evidence to
credit, the ALJ cannot reject evidence for the wrong reason. Sutherland, 785 F. App’x at 928;
Cotter, 642 F.2d at 706–07; Rodriguez v. Colvin, No. CV 16-4322, 2018 WL 1474073, at *4
(E.D. Pa. Mar. 23, 2018) (“Courts have concluded that substantial evidence cannot be based on
10

Case 2:18-cv-04805-NMK Document 32 Filed 02/08/21 Page 11 of 11 PageID: 461

factual errors.”) (collecting cases). Accordingly, even if the ALJ’s misreading of the March 2014
MRI was harmless at step three, this Court cannot conclude that substantial evidence supports
the ALJ’s evaluation of Lillian Okereke’s opinions on the ground that those opinions were
inconsistent with the ALJ’s erroneous reading of the March 2014 MRI.
In sum, the Court concludes that the ALJ’s decision has not included “a clear and
satisfactory explication of the basis on which it rests” sufficient to enable this Court “to perform
its statutory function of judicial review.” Cotter, 642 F.2d at 704–05. It may be that, on remand,
the ALJ will again assign little weight to Lillian Okereke’s opinions, craft the same physical
RFC, and ultimately conclude that Plaintiff is not disabled. However, at this juncture, the Court
concludes that the ALJ’s decision is not supported by substantial evidence. This Court therefore
concludes that the decision of the Commissioner must be reversed, and the matter must be
remanded to the Commissioner for further consideration of these issues. 3
V.

CONCLUSION
For these reasons, the Court REVERSES the Commissioner’s decision and REMANDS

the matter for further proceedings consistent with this Opinion and Order.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
IT IS SO ORDERED.

Date: February 8, 2021

s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE

Plaintiff asserts a number of other errors in the Commissioner’s final decision. Because the
Court concludes that the matter must be remanded for further consideration of the opinions of
Lillian Okereke and the physical RFC determination, the Court need not and does not consider
those claims.
11
3