LEVYASH v. COMMISSIONER OF SOCIAL SECURITY
Filing
23
OPINION. Signed by Judge Brian R. Martinotti on March 30, 2018. (jo, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
IGOR G. LEVYASH,
:
:
Plaintiff,
:
Civil Action No. 16-2189 (BRM)
:
v.
:
:
CAROLYN W. COLVIN,
:
OPINION
Acting Commissioner of Social Security,
:
:
Defendant.
:
:
MARTINOTTI, DISTRICT JUDGE
Before this Court is Igor Y. Levyash’s (“Plaintiff”) appeal from the final decision of the
Acting Commissioner of Social Security (“Defendant”) 1 denying his application of Social Security
Disability Insurance Benefits (“SSDI”) for the period September 11, 2012, through September 30,
2014 (the “Claimed Period”). (ECF No. 15 at 2.) For the reasons set forth below, the matter is
REMANDED for further proceedings.
I.
BACKGROUND
On October 22, 2012, Plaintiff applied for SSDI benefits, alleging disability beginning
September 1, 2012, due to severe pulmonary impairments, asbestosis, arrhythmia, hypertension,
osteoarthritis of the wrists and hands, and diabetes. (Tr. 232, 241.) His claim was denied initially
on February 26, 2013, and on reconsideration on August 12, 2013. (Tr. 164-66, 169-172.) On
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Defendant adopted the decision of the Administrative Law Judge (“ALJ”) which concluded
Plaintiff was not disabled under the relevant standards, and issued a written decision denying his
application on March 24, 2015 (the “ALJ Decision”). (Tr. 55–71.)
August 22, 2013, Plaintiff filed a written request for an administrative hearing. (Tr. 173-74.) On
December 9, 2014, a hearing was held where Plaintiff appeared and testified before ALJ Laureen
Penn. (Tr. 76-138.) Impartial vocational expert, Tanya M. Edghill, also appeared and testified at
the hearing. On March 24, 2015, the ALJ concluded Plaintiff was not disabled. (Tr. 55-71.) The
Appeals Council denied Plaintiffs request for review, rendering the ALJ’s decision the Defendant’s
final decision. (Tr. 1-6.)
II.
STANDARD OF REVIEW
On a review of a final decision of the Commissioner of the Social Security Administration,
a district court “shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews v. Apfel,
239 F.3d 589, 592 (3d Cir. 2001). The Commissioner’s decisions regarding questions of fact are
deemed conclusive on a reviewing court if supported by “substantial evidence in the record.” 42
U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). While the court must examine
the record in its entirety for purposes of determining whether the Commissioner’s findings are
supported by substantial evidence, Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978), the
standard is highly deferential. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). “Substantial
evidence” is defined as “more than a mere scintilla,” but less than a preponderance. McCrea v.
Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). “It means such relevant evidence as a
reasonable mind might accept as adequate.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
A reviewing court is not “empowered to weigh the evidence or substitute its conclusions for those
of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507
U.S. 924 (1993). Accordingly, even if there is contrary evidence in the record that would justify
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the opposite conclusion, the Commissioner’s decision will be upheld if it is supported by the
evidence. See Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986).
Disability insurance benefits may not be paid under the Act unless Plaintiff first meets the
statutory insured status requirements. See 42 U.S.C. § 423(c). Plaintiff must also demonstrate the
“inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A);
see Plummer, 186 F.3d at 427. An individual is not disabled unless “his physical or mental
impairment or 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. § 423(d)(2)(A).
Eligibility for supplemental security income requires the same showing of disability. Id. at § 1382c
(a)(3)(A)-(B).
The Act establishes a five-step sequential process for evaluation by the ALJ to determine
whether an individual is disabled. See 20 C.F.R. § 404.1520; See Pallo v. Comm’r of Soc. Sec.,
No. 15-7385, 2016 WL 7330576, at *11 (D.N.J. Dec. 16, 2016). First, the ALJ determines whether
the claimant has shown that he or she is not currently engaged in “substantial gainful activity.” Id.
§§ 404.1520(b), 416.920(b); see Bowen v. Yuckert, 482 U.S. 137, 146-47 n.5 (1987). If a claimant
is presently engaged in any form of substantial gainful activity, he or she is automatically denied
disability benefits. See 20 C.F.R. § 404.1520(b); see also Bowen, 482 U.S. at 140. Second, the ALJ
determines whether the claimant has demonstrated a “severe impairment” or “combination of
impairments” that significantly limits his physical or mental ability to do basic work activities. 20
C.F.R. §§ 404.1520(c), 416.920(c); see Bowen, 482 U.S. at 146-47 n.5. Basic work activities are
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defined as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). These
activities include physical functions such as “walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying or handling.” Id. A claimant who does not have a severe impairment is not
considered disabled. Id. at § 404.1520(c); see Plummer, 186 F.3d at 428.
Third, if the impairment is found to be severe, the ALJ then determines whether the
impairment meets or is equal to the impairments listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (the
“Impairment List”). 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates that his or her
impairments are equal in severity to, or meet those on the Impairment List, the claimant has
satisfied his or her burden of proof and is automatically entitled to benefits. See id. at §§
404.1520(d), 416.920(d); see also Bowen, 482 U.S. at 146-47 n.5. If the specific impairment is not
listed, the ALJ will consider in his or her decision the impairment that most closely satisfies those
listed for purposes of deciding whether the impairment is medically equivalent. See 20 C.F.R. §
404.1526(a). If there is more than one impairment, the ALJ then must consider whether the
combination of impairments is equal to any listed impairment. Id. An impairment or combination
of impairments is basically equivalent to a listed impairment if there are medical findings equal in
severity to all the criteria for the one most similar. Williams, 970 F.2d at 1186.
If the claimant is not conclusively disabled under the criteria set forth in the Impairment
List, step three is not satisfied, and the claimant must prove at step four whether he or she retains
the “residual functional capacity” (“RFC”) to perform his or her past relevant work. 20 C.F.R. §§
404.1520(e)-(f), 416.920(e)-(f); Bowen, 482 U.S. at 141. If the claimant is able to perform previous
work, the claimant is determined to not be disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e); Bowen,
482 U.S. at 141-42. The claimant bears the burden of demonstrating an inability to return to the
past relevant work. Plummer, 186 F.3d at 428. Finally, if it is determined that the claimant is no
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longer able to perform his or her previous work, the burden of production then shifts to the
Commissioner to show, at step five, that the “claimant is able to perform work available in the
national economy.” Bowen, 482 U.S. at 146-47 n.5; Plummer, 186 F.3d at 428. This step requires
the ALJ to consider the claimant’s residual functional capacity, age, education, and past work
experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); see also Poulos v. Comm’r of Soc. Sec., 474
F.3d 88, 91–92 (3d Cir. 2007). The ALJ must analyze the cumulative effect of all the claimant’s
impairments in determining whether the claimant is capable of performing work and not disabled.
Id.
III.
Plaintiff’s Appeal of the Defendant’s Adoption of the ALJ Decision
Plaintiff challenges the ALJ Decision on five grounds. First, Plaintiff argues the ALJ erred
at step three by concluding he did not satisfy the requirements of several “listed impairments”
under 20 C.F.R. Part 404, Subpart P, Appendix 1. (ECF No. 15 at 18–19.) 2 Second, Plaintiff argues
the ALJ made improper credibility determinations throughout the ALJ Decision. (Id. at 19–23.)
Third, Plaintiff argues the ALJ erred at step four by concluding he retained the residual functional
capacity to perform “light work.” (Id. at 23–28.) Fourth, Plaintiff argues the ALJ also erred at step
four by concluding Plaintiff was capable of performing his past relevant work. (Id. at 28–31.)
Finally, Plaintiff argues that the Court should remand in light of new evidence. (Id. at 26.) The
Court will address each argument in turn.
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Plaintiff also argues that “[a]utomatic reversal and remand is required” because new listings have
been issued since the ALJ Decision was rendered. (ECF No. 15 at 19.) He cites no authority for
this proposition, however, and the Court addresses in this opinion whether the ALJ correctly
analyzed the listings as they existed at the time of the decision. See, e.g., Revised Med. Criteria
for Evaluating Mental Disorders, 81 Fed. Reg. 66138-01 (September 26, 2016) (“We expect that
Federal courts will review our final decisions using the rules that were in effect at the time we
issued the decisions. If a court reverses our final decision and remands 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.”).
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A.
Plaintiff’s Challenge to the ALJ’s Step Three Determination
1.
Legal Standard
During step three, the ALJ compares the medical evidence of a claimant’s impairments
with the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“listed impairments” or
“listings”), which are presumed severe enough to preclude any gainful work. See Holley v. Colvin,
975 F. Supp. 2d 467, 476 (D.N.J. 2013), aff’d, 590 F. App’x 167 (3d Cir. 2014). The listings
articulated in 20 C.F.R. Pt. 404, Subpt. P., App. 1, are descriptions of various physical and mental
illnesses and abnormalities, categorized by the body system they affect. Sullivan v. Zebley, 493
U.S. 521, 529-30 (1990). All impairments are defined “in terms of several specific medical signs,
symptoms, or laboratory test results.” Id. at 530. “If a claimant’s impairment meets or equals one
of the listed impairments, he will be found disabled. . . . If the claimant does not suffer from a
listed impairment or its equivalent, the analysis proceeds to step four.” Holley, 975 F. Supp. 2d at
476. To be found disabled, however, the claimant “must present medical findings equal in severity
to all the criteria for the one most similar listed impairment.” Sullivan, 493 U.S. at 531.
“For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Id.; see Social Security Ruling (SSR) 83—19, Dep’t of Health &
Human Servs. Rulings 90 (Jan. 1983) (“An impairment meets a listed condition . . . only when it
manifests the specific findings described in the set of medical criteria for that listed impairment.”);
20 C.F.R. § 416.926(a) (1989) (noting that a claimant’s impairment is “equivalent” to a listed
impairment “if the medical findings are at least equal in severity and duration to the criteria of any
listed impairment”) “A claimant cannot qualify for benefits under the ‘equivalence’ step by
showing that the overall functional impact of his unlisted impairment or combination of
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impairments is as severe as that of a listed impairment.” Sullivan, 493 U.S. at 531–32 (citing SSR
83–19, at 91–92 (“[I]t is incorrect to consider whether the listing is equaled on the basis of an
assessment of overall functional impairment. . . . The functional consequences of the impairments
. . . irrespective of their nature or extent, cannot justify a determination of equivalence” [sic])
(emphases in original)).
To conclude an applicant is not disabled under step three, the ALJ must “set forth the
reasons for [her] decision” for her step-three analysis. Burnett v. Comm’r of Soc. Sec. Admin., 220
F.3d 112, 119 (3d Cir. 2000). Conclusory statements have been found to be “beyond meaningful
judicial review.” Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981). In Burnett, the Third
Circuit remanded the matter because the ALJ made only conclusory statements without
mentioning any specific listed impairments or explaining his reasoning. Burnett, 220 F.3d at 11920 (finding “although [Plaintiff] has established that she suffered from a severe musculoskeletal
[impairment], said impairment failed to equal the level of severity of any disabling condition
contained in Appendix 1, Subpart of Social Security Regulations No. 4.”). In Torres v. Comm’r of
Soc. Sec., 279 F. App’x 149, 152 (3d Cir. 2008), the court found “the ALJ failed at step three by
failing to consider [Plaintiff’s] impairments in combination when determining medical
equivalence.” Further, the “ALJ failed to combine [Plaintiff’s] many medical impairments and
compare them to analogous Appendix 1 listings.” Id. The ALJ’s entire analysis consisted of one
cursory paragraph stating:
Regarding steps two and three, the evidence establishes the
existence of a “severe” impairment involving left-eye blindness,
diabetes, hepatitis C and cirrhosis, degenerative disc disease of the
lumbar spine, bronchitis, and depression, but does not disclose any
medical findings which meet or equal in severity the clinical criteria
of any impairment listed in Appendix 1, Subpart P to Regulations
No. 4.
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Id.
As the Third Circuit has explained, the ALJ is not required to “use particular language or
adhere to a particular format in conducting his analysis . . . [but must] ensure that there is sufficient
development of the record and explanation of findings to permit meaningful review.” Jones, 364
F.3d at 505. The ALJ satisfies this standard by “clearly evaluating the available medical evidence
in the record and then setting forth that evaluation in an opinion, even where the ALJ did not
identify or analyze the most relevant Listing.” Scatorchia v. Comm’r of Soc. Sec., 137 F. App’x
468, 470–71 (3d Cir. 2005).
2.
Decision
Plaintiff argues the ALJ erred by concluding he did not meet the requirements for a severe
impairment under listings 4.05, 12.04, and 12.06. (ECF No. 15 at 18-19.) 3 Defendant responds the
ALJ properly accounted for the relevant evidence in concluding Plaintiff did not meet the
requirements of those listings. (ECF No. 21 at 9-12.)
i.
Listing 4.05
Listing 4.05 requires:
Recurrent arrhythmias, not related to reversible causes, such as
electrolyte abnormalities or digitalis glycoside or antiarrhythmic
drug toxicity, resulting in uncontrolled, recurrent episodes of cardiac
syncope or near syncope, despite prescribed treatment, and
documented by resting or ambulatory (Holter) electrocardiography,
3
The ALJ addressed listings other than 4.05, 12.04, and 12.06 (Tr. 61–65), but the Court limits its
analysis to the listings specifically discussed by Plaintiff in his appeal.
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or by other appropriate medically acceptable testing, coincident with
the occurrence of syncope or near syncope.
See 20 C.F.R. Part 404, Subpart P, Appendix 1 (internal cross-references omitted).
As to listing 4.05, Plaintiff submits the ALJ did not properly consider the opinion of Dr.
Jack Stroh. (ECF No. 15 at 19.) Dr. Stroh signed a form indicating Plaintiff satisfied the
requirements of listing 4.05. (Tr. 589.) The ALJ considered and rejected Dr. Stroh’s opinion
because it was not supported by additional evidence or explanation:
Counsel contends that the claimant’s heart arrhythmias meet Listing
4.05, based on Dr. Stroh’ s December 4, 2014 report, which notes
recurrent arrhythmias that meet Listing 4.05 with an onset prior to
February 2010 (Exhibits 13E and 21F). However, Listing 4.05
requires recurrent arrhythmias resulting in uncontrolled episodes of
cardiac syncope or near syncope, despite prescribed treatment,
documented by resting or ambulatory (Holter) electrocardiography,
or by other appropriate medically acceptable testing, coincident with
the occurrence of syncope or near syncope. The only episode of
syncope noted in the record is the claimant’s January 23 to January
25, 2014 hospitalization, but the claimant’s syncope on this occasion
does not appear to be cardiac related. An echocardiogram revealed
borderline left ventricular hypertrophy and diastolic dysfunction,
with an ejection fraction of 60%; an EKG revealed sinus
bradycardia; a chest X-ray was normal; and the claimant’s heart
rhythm was normal (Exhibit 18F). An October 2011 stress
echocardiogram also revealed an ejection fraction of 60% and was
negative for ischemia and revealed trace mitral regurgitation
(Exhibit 3F). Progress notes from Dr. Chinitz from June 4, 2013 note
that the claimant reported feeling well without recurrent atrial
arrhythmias (Exhibit 1lF). Since Dr. Stroh provides no rationale to
support his opinion, the undersigned gives it little weight under 20
CPR 404.1527, and finds that the claimant’s heart arrhythmias do
not meet or equal Listing 4.05.
(Tr. 62.)
The Court finds the ALJ’s decision with respect to listing 4.05 is supported by substantial
evidence. Listing 4.05 listing requires, inter alia, “recurrent episodes of cardiac syncope or near
syncope” that are attributable to “recurrent arrhythmias.” The pertinent social security regulations
9
explain that there must be a documented causal relationship between the two. See 20 C.F.R. Part
404, Subpart P, Appendix 1, Section 104.00(F)(c) (“For purposes of 4.05, there must be a
documented association between the syncope or near syncope and the recurrent arrhythmia. The
recurrent arrhythmia, not some other cardiac or non-cardiac disorder, must be established as the
cause of the associated symptom.”). The ALJ observed the administrative record does not reflect
recurrent bouts of syncope or contain any evidence that such syncope was caused by cardiac
arrhythmia. (Tr. 62.) Particularly given Dr. Stroh’s lack of explanation for his conclusion that
Plaintiff satisfied the requirements of listing 4.05, the Court finds the ALJ was within her discretion
to discount Dr. Stroh’s opinion in light of other evidence in the record.
ii.
Listings 12.04 and 12.06
Plaintiff also challenges the ALJ’s finding that he did not satisfy the requirements for a
severe impairment under listings 12.04 and 12.06. (ECF No. 9 at 23–24.) In support of his
contention, Plaintiff cites to records from psychiatrist Dr. Boris Borodulin, who indicated Plaintiff
satisfied the requirements of both listings. (Tr. 548–51.)
Listings 12.04 and 12.06 provide multiple ways to demonstrate the existence of a severe
mental impairment based on satisfying certain criteria. Both listings have “A Criteria,” “B
Criteria,” and “C Criteria.” For impairments under 12.04 (affective disorders), the severity
requirements are met if “both A and B are satisfied, or when the requirements in C are satisfied.”
20 C.F.R. Part 404, Subpart P, Appendix 1 (emphasis added). Listing 12.06 is slightly different;
the severity requirements under listing 12.06 are met “when the requirements in both A and B are
satisfied, or when the requirements in both A and C are satisfied. Id. (emphasis added).
The “B Criteria” for listings 12.04 and 12.06 are the same, and require a showing that the
applicant have “at least two of the following: (1) marked restriction of activities of daily living; or
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(2) marked difficulties in maintaining social functioning; or (3) marked difficulties in maintaining
concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended
duration.” Id. The ALJ concluded Plaintiff could not satisfy these “B Criteria,” stating:
In activities of daily living, the claimant had moderate restriction.
In the Function Report, the claimant stated that he has good days
and bad days. He walks his dog, helps cook, and does chores 1 to 2
times a week. On bad days, he lies down or uses the computer
(Exhibit 2E). The claimant testified that he lies down and watches
TV during the day, but also said that he will go to the supermarket
with his wife. He drives a little bit and reads the news on the internet.
In social functioning, the claimant had mild difficulties. In the
Function Report, the claimant stated that he can be very easily
aggravated and irritated, but also stated that he will sit, eat, and talk
with others 3 to 4 times a month (Exhibit 2E). At the hearing, the
claimant testified that he socializes a few times a month rather than
the 4 times a month he indicated in Exhibit 2E, but this decrease
seemed more about his physical limitations than not wanting to
socialize. The claimant testified that he visits his mother in Brooklyn
and his friend in Staten Island and that they also come to visit him.
His son will also come to visit with his family.
With regard to concentration, persistence or pace, the claimant had
moderate difficulties. In the Function Report, the claimant stated
that he can follow written instructions okay, but that he has some
trouble remembering spoken instructions (Exhibit 2E). The claimant
testified that his wife reminds him to take his medications
sometimes. Progress notes from Dr. Borodulin note intact memory,
but problems with concentration (Exhibits 16F and 22F). The
claimant testified that he reads the news on the internet several times
a week.
As for episodes of decompensation, the claimant had experienced
no episodes of decompensation, which have been of extended
duration. The record does not document any psychiatric
hospitalizations or partial hospitalizations.
In an April 18, 2014 report, treating psychiatrist Dr. Borodulin states
that the claimant has depression and recurrent severe panic attacks
with moderate restriction of the activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; and 3 or 4 repeated
episodes of decompensation, each of extended duration. Dr.
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Borodulin also indicated that the claimant’s condition has resulted
in such marginal adjustment that even a minimal increase in mental
demands or change in the environment would be predicted to cause
him to decompensate (Exhibit 17F).
Although Dr. Borodulin is a treating source, his opinion is not
consistent with the claimant’s own testimony that he takes care of
his activities of daily living and socializes. In addition, the claimant
did not mention any episodes of decompensation and the medical
evidence of record does not document any episodes of
decompensation. Dr. Borodulin’s progress notes contain references
to supportive therapy and treatment with medication, but there is
nothing in the therapy notes that supports Dr. Borodulin’s opinions
in Exhibit 17F, and the therapy notes do not mention recurrent panic
attacks as an issue (Exhibits 16F and 22F). Dr. Borodulin does not
provide any rationale for his opinions in Exhibit 17F, and his
findings appear to be based solely on the claimant’s report. The
undersigned also notes that the claimant saw Dr. Borodulin twice in
2010 (1/26 and 2/18/10), and then not again until September 17,
2013 (Exhibit 17F). Accordingly, the undersigned gives little weight
to Dr. Borodulin’s opinion under 20 CFR 404.1527.
Because the claimant’s mental impairment did not cause at least two
“marked” limitations or one “marked” limitation and “repeated”
episodes of decompensation, each of extended duration, the
“paragraph B” criteria were not satisfied.
(Tr. 63–64.)
The ALJ also concluded Plaintiff did not satisfy the “C Criteria” for 12.04:
The undersigned has also considered whether the “paragraph C”
criteria were satisfied. In this case, the evidence fails to establish the
presence of the “paragraph C” criteria. The record does not
document repeated episodes of decompensation, each of extended
duration. There is no evidence of 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 be predicted
to cause the individual to decompensate. There is no evidence of a
current history of 1 or more years’ inability to function outside a
highly supportive living arrangement, with an indication of
continued need for such an arrangement.
(Tr. 64.)
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Based on this analysis, the Court concludes the ALJ’s decision is supported by substantial
evidence. It is true that Dr. Borodulin indicated Plaintiff satisfied the requirements of listings 12.04
and 12.06, but the ALJ appropriately weighed Dr. Borodulin’s unelaborated conclusions against
contradictory evidence in the record. Indeed, the ALJ explicitly explained why she discounted Dr.
Borodulin’s conclusions, by pointing out discrepancies between those conclusions and Dr.
Borodulin’s own treatment records. The ALJ also explained why Plaintiff did not meet the “C
Criteria” for listing 12.04, which would have been an alternate way to demonstrate a severe
impairment under that listing.
Therefore, the Court also declines to remand based on the ALJ’s failure to specifically
consider whether Plaintiff satisfied the alternative method of demonstrating severity under listing
12.06 (i.e., by satisfying the “A Criteria” and “C Criteria” for that listing). Such a showing would
require Plaintiff to demonstrate a disorder “resulting in complete inability to function
independently outside the area of one’s home.” 20 C.F.R. Part 404, Subpart P, Appendix 1, para.
12.06(c). Based on the ALJ’s discussion of the “B Criteria,” which indicates Plaintiff was able to
perform tasks independently outside the home (e.g., driving, shopping, traveling), the Court sees
no reason to remand for specific consideration of that criteria. Scatorchia, 137 F. App’x at 470–
71 (3d Cir. 2005) (noting that ALJ need only “clearly evaluat[e] the available medical evidence in
the record and then set[] forth that evaluation in an opinion, even where the ALJ did not identify
or analyze the most relevant Listing”). The Court finds the ALJ’s analysis at step three satisfies
the substantial evidence standard.
B.
Plaintiff’s Challenge to the ALJ’s “Credibility” Determinations
Plaintiff argues the Court should reverse the Defendant and ALJ Decision because the ALJ
made a series of inappropriate credibility determinations by discounting certain evidence in the
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record. (ECF No. 15 at 19–23.) Specifically, Plaintiff submits the ALJ erred in discounting his
subjective complaints of pain and the opinions of Dr. Borodulin. (See id.) Plaintiff contends these
credibility determinations were inappropriate in light of recently-issued Social Security Ruling
(“SSR”) 16-3P, which provides amended guidance on how to evaluate symptoms in disability
claims. See SSR 16-3P, 2016 WL 1119029 (S.S.A. Mar. 16, 2016). Defendant argues SSR 16-3P
was not binding on the ALJ because the ALJ Decision was issued before SSR 16-3P’s “effective
date” of March 16, 2016. (ECF No. 21 at 12–13.) Defendant also argues that, regardless of whether
SSR 16-3P applies retroactively, the ALJ Decision satisfies the new guidance. (Id. at 13–15.)
Courts disagree as to whether SS 16-3P applies retroactively. Compare Mendenhall v.
Colvin, No. 14-3389, 2016 WL 4250214, at *3 (C.D. Ill. Aug. 10, 2016) (SSR 16-3P applies
retroactively), with Alvarez v. Colvin, No. 16-0432, 2017 WL 2712872, at *7 (S.D. Tex. June 22,
2017) (SSR 16-3P does not apply retroactively). The issue has not been resolved definitively in
this circuit, though Courts in this district have previously concluded SSR 16-3P does not apply
retroactively. See Brando v. Colvin, No. 15-3219, 2017 WL 2364194, at *21 (D.N.J. May 31,
2017).
Nevertheless, the Court need not revisit the question of whether SSR 16-3P applies
retroactively because the ALJ’s decision is satisfactory under the new guidance. SSR 16-3P
announced a policy against evaluating claimant’s truthfulness in determining whether individuals
are disabled. As the guidance states, “[i]n evaluating an individual’s symptoms, our adjudicators
will not assess an individual’s overall character or truthfulness in the manner typically used during
an adversarial court litigation.” SSR 16-3P, 2016 WL 1119029, at *10. But while SSR 16-3P
clarifies that adjudicators should not make statements about an individual’s truthfulness, the
overarching task of assessing whether an individual’s statements are consistent with other record
14
evidence remains the same. For example, when assessing the intensity, persistence, and limiting
effects of an individual’s symptoms, the new guidance is clear that potentially contradictory record
evidence should be considered:
In contrast, if an individual’s statements about the intensity,
persistence, and limiting effects of symptoms are inconsistent with
the objective medical evidence and the other evidence, we will
determine that the individual’s symptoms are less likely to reduce
his or her capacities to perform work-related activities or abilities to
function independently, appropriately, and effectively in an ageappropriate manner.
We may or may not find an individual’s symptoms and related
limitations consistent with the evidence in his or her record. We will
explain which of an individual’s symptoms we found consistent or
inconsistent with the evidence in his or her record and how our
evaluation of the individual’s symptoms led to our conclusions. We
will evaluate an individual’s symptoms considering all the evidence
in his or her record.
In determining whether an individual’s symptoms will reduce his or
her corresponding capacities to perform work-related activities or
abilities to function independently, appropriately, and effectively in
an age-appropriate manner, we will consider the consistency of the
individual’s own statements. To do so, we will compare statements
an individual makes in connection with the individual's claim for
disability benefits with any existing statements the individual made
under other circumstances.
Id. at 7–8.
The ALJ retains the responsibility to weigh an individual’s statements against other
available evidence. As the Seventh Circuit has observed, the point of the new guidance is to
“clarify that administrative law judges aren’t in the business of impeaching claimants’ character;
obviously administrative law judges will continue to assess the credibility of pain assertions by
applicants, especially as such assertions often cannot be either credited or rejected on the basis of
medical evidence.” Cole v. Colvin, No. 15-3883, 2016 WL 3997246, at *1 (7th Cir. July 26, 2016).
15
In her decision, the ALJ stated, “the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.” (Tr. 66.) Although the ALJ would doubtless use different terminology
under the new guidance, the thrust of the analysis would be the same. For example, while
considering Dr. Borodulin’s unexplained conclusion that Plaintiff suffered from depression and
severe panic attacks, the ALJ considered inconsistent prior statements from Plaintiff that he
engages in various activities of daily life. (Tr. 68.) This kind of assessment is consistent with the
new guidance. See SSR 16-3P, 2016 WL 1119029, at *8 (“In determining whether an individual’s
symptoms will reduce his or her corresponding capacities to perform work-related activities or
abilities to function independently, appropriately, and effectively in an age-appropriate manner,
we will consider the consistency of the individual’s own statements.”).
Plaintiff does not identify any “credibility determinations” by the ALJ that would be
inappropriate under the new guidance. Therefore, the ALJ’s weighing of the available evidence
was consistent with both previous and current guidance. Accordingly, the Court declines to reverse
the ALJ Decision on the grounds that the ALJ made improper credibility determinations. Cf.
Pidgeon v. Colvin, No. 15-2897, 2016 WL 2647666, at *11 n.7 (D.N.J. May 9, 2016) (affirming
the ALJ after a challenge based on issuance of SSR 16-3P and noting “the Court’s analysis is the
same under either ruling”). To the extent Plaintiff challenges the substantive conclusions of the
ALJ’s review of the evidence, those issues are addressed throughout the opinion.
C.
Plaintiff’s Challenge to Step Four RFC Determination
1.
Legal Standard
At step four, the ALJ must consider whether the claimant retains the RFC to perform past
relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv). Step four involves three sub-steps:
16
(1) the ALJ must make specific findings of fact as to the claimant’s
residual functional capacity; (2) the ALJ must make findings of the
physical and mental demands of the claimant’s past work; and (3)
the ALJ must compare the residual functional capacity to the past
relevant work to determine whether claimant has the level of
capability needed to perform the past relevant work.
Garibay v. Comm’r of Soc. Sec., 336 F. App’x 152, 158 (3d Cir. 2009). Plaintiff’s first step four
challenge relates to the ALJ’s findings about his RFC.
In making an RFC determination, an ALJ “must consider all evidence before him,” and
“[a]lthough the ALJ may weigh the credibility of the evidence, he must give some indication of
the evidence which he rejects and his reason(s) for discounting such evidence.” Burnett, 220 F.3d
at 121 (citing Plummer, 186 F.3d at 429). “In the absence of such an indication, the reviewing
court cannot tell if significant probative evidence was not credited or simply ignored.” Id. (citing
Cotter, 642 F.2d at 705). Although an ALJ need not fully credit a complainant’s own testimony
about her pain, the ALJ must nevertheless “take care to address such evidence in the course of his
findings.” Smith v. Astrue, 359 F. App’x 313, 317 (3d Cir. 2009).
2.
Decision
The ALJ concluded Plaintiff had the residual functional capacity to:
lift and carry 20 pounds occasionally and 10 pounds frequently;
stand/walk 4 hours in an 8-hour day; and sit 6 hours in an 8-hour
day. The claimant will need to switch positions after 30 minutes.
The claimant can perform occasional grasping and occasional
fingering with both hands. The claimant can climb ramps and stairs
occasionally and stoop, kneel, crouch, and crawl occasionally. The
claimant must avoid concentrated exposure to heat, cold, fumes,
odors, dusts, gases, and poor ventilation. He cannot work at heights
or around moving machinery. He may miss one day of work a month
due to mental health issues.
(Tr. 65.)
17
Plaintiff contends the ALJ did not properly consider the relevant medical evidence in
making that RFC determination. (ECF No. 9 at 23–28.) Specifically, Plaintiff challenges the ALJ’s
purported failure to adequately discuss:
•
Plaintiff’s cardiovascular impairments, including by discrediting the opinions of Dr.
Stroh, Dr. [Larry] Chinitz, and Dr. [Mark] Adelman (id. at 25-27);
•
The “findings of Dr. [Celia] Roque . . . that the Plaintiff’s combined lower extremity
joint disease, low back pain, osteoarthritis and overuse syndrome precluded him from
prolonged weight-bearing, standing or walking” (id. at 25); and
•
The findings of “Dr. [Alexander] Marcus . . . that after the right thumb surgery, the
Plaintiff remained symptomatic, had problems shaking hands, grabbing things and
needed to take precautions using the right thumb and hand” (id. at 26).
The Court finds the ALJ’s RFC determination is supported by substantial evidence.
Plaintiff raises a number of conclusory challenges to the ALJ’s RFC determination, but critically
fails to identify which aspects of the RFC were unsupported by evidence in the record. He first
argues the RFC determination does not adequately reflect his cardiac impairments. (ECF No. 15
at 25-27.) The ALJ specifically discussed record evidence regarding Plaintiff’s cardiovascular
health:
The claimant has a history of atrial fibrillation. A January 10, 2012
EKG was abnormal and notes a probable anterolateral myocardial
infarction (Exhibit 1lF, p. 8), but the record does not confirm a
diagnosis of heart attack. A February 18, 2010 report notes that
earlier in the winter, the claimant experienced shortness of breath
while walking in the city, but echocardiography and nuclear stress
tests were negative (Exhibit 2F, p. 27). An April 27, 2009 carotid
ultrasound revealed minimal plaque on the right (0-15%) and mild
plaque on the left (16-49%) (Exhibit 2F, p. 28).A stress
echocardiograph performed in October 2011 was negative for
ischemia and revealed an ejection fraction of 60% and trace mitral
regurgitation (Exhibit 3F, p. 1). At a routine office visit on June 4,
2013, the claimant reported occasional palpitations, but no sustained
arrhythmias (Exhibit 1l F, p. 5). Progress notes from September 26,
2013 note that the claimant denied any recent shortness of breath or
chest pain, and was encouraged to exercise more (Exhibit 20F).
Records from St. Peter’s Hospital from January 23 to January 25,
2014 note that an EKG revealed sinus bradycardia, but a chest Xray was normal, an echocardiogram revealed an ejection fraction of
18
60%, borderline left ventricular hypertrophy, and diastolic
dysfunction, and a Carotid Duplex Scan revealed bilateral carotid
stenosis of only 15% (Exhibit 18F).
(Tr. 66.)
Plaintiff claims this analysis does not properly address evidence from Dr. Stroh, Dr.
Chinitz, and Dr. Adelman. (ECF No. 15 at 25-27.) In support of that contention, Plaintiff cites
several documents in the record. (Id. at 25 (citing Tr. 422–47, 470–78, 539–42, 552–65).) Plaintiff
does not identify which aspects of those documents reflect cardiac impairments limiting his ability
to work beyond the limitations contained in the ALJ’s RFC determination, and the Court’s review
of those records did not reveal any. In light of the ALJ’s discussion of pertinent evidence, the Court
will not reverse the ALJ Decision based on a purported failure to adequately consider Plaintiff’s
cardiac impairments in the context of the RFC determination.
Plaintiff next argues the ALJ did not properly consider the “findings of Dr. Roque . . . that
the Plaintiff’s combined lower extremity joint disease, low back pain, osteoarthritis and overuse
syndrome precluded him from prolonged weight-bearing, standing or walking.” (ECF No. 15 at
25.) The ALJ did, however, address Dr. Roque’s findings, and acknowledged Dr. Roque’s
conclusion that Plaintiff had “some limitations for prolonged standing and walking.” (Tr. 67.)
These limitations were reflected in the ALJ’s RFC determination, which limits the weight Plaintiff
may carry and how long he may be required to stand or walk in a day. (Tr. 65.)
Finally, Plaintiff argues the RFC determination does not properly account for limitations
on his ability to use his hands, as evidenced by treating records from Dr. Marcus. (ECF No. 15 at
26.) Medical records from Dr. Marcus indicate Plaintiff did have various hand and finger pain and
weakness, particularly following thumb surgery. (Tr. 448–469.) The ALJ specifically addressed
those findings:
19
The claimant has degenerative joint disease of the thumbs, statuspost right thumb surgery on May 19, 2011. The claimant is right
hand dominant. On January 25, 2013, the claimant reported that he
was very happy with the results of his right thumb surgery.
Degenerative joint disease of the left thumb was noted, and the
claimant was given an injection. Mild cubital tunnel syndrome was
noted on the right (Exhibits 6F and 7F). On January 30, 2013, CE
Dr. Roque noted that the claimant had 5/5 grip/grasp strength
bilaterally. Pinch strength was 5/5 on the right and 4/5 on the left.
The claimant was able to fully extend his hands, make a fist, and
oppose the fingers, and he had normal fine and gross manipulation,
using mostly the right hand (Exhibit 8F). The claimant testified that
he can use his right arm and lift 15-20 lbs. with the thumb closed
and he can use his left arm and lift 30 lbs. with the thumb open. The
claimant demonstrated being able to grasp with and without the
thumb. He testified that he can lift a gallon of milk (8.5 lbs.) and a
10 lb. turkey, but he avoids lifting more. He indicated that he drops
things with his right hand, such as supermarket bags, so he carries
less. The claimant said that his fingers are fine and that he uses his
fingers to hold and grasp, he just has trouble using his thumbs. He
is able to type slowly. The claimant said that he can hold silverware,
but only with his right hand.
(Tr. 67.)
The ALJ’s Decision is supported by substantial evidence with respect to accounting for
Plaintiff’s hand impairments. The ALJ’s analysis above explicitly discusses the treating records of
Dr. Marcus, together with other medical records and testimony from Plaintiff himself. Notably,
Plaintiff failed to argue with specificity how aspects of the ALJ’s RFC determination were
unsupported or contradicted by medical evidence in the record. This is not a case where the ALJ
failed to “give some indication of the evidence which he rejects and his reason(s) for discounting
such evidence.” Burnett, 220 F.3d at 121. The Court finds the ALJ’s RFC determination is
adequately supported by substantial evidence.
20
D.
Plaintiff’s Challenge to Step Four “Past Relevant Work” Determination
1.
Legal Standard
In addition to making an RFC determination, the ALJ at step four must: (1) make findings
of the physical and mental demands of the claimant’s past work; and (2) compare the RFC to that
past relevant work to determine whether claimant can perform the past relevant work. Garibay,
336 F. App’x at 158. SSR 82-62 provides guidance on how the ALJ should determine whether the
claimant can perform past relevant work:
The claimant is the primary source for vocational documentation,
and statements by the claimant regarding past work are generally
sufficient for determining the skill level, exertional demands and
nonexertional demands of such work. Determination of the
claimant’s ability to do [past relevant work] requires a careful
appraisal of (1) the individual’s statements as to which past work
requirements can no longer be met and the reason(s) for his or her
inability to meet those requirements; (2) medical evidence
establishing how the impairment limits ability to meet the physical
and mental requirements of the work; and (3) in some cases,
supplementary or corroborative information from other sources such
as employers, the Dictionary of Occupational Titles, etc., on the
requirements of the work as generally performed in the economy.
SSR 82-62, 1982 WL 31386, at *3 (S.S.A. Jan. 1, 1982).
In evaluating this evidence, the ALJ should
determine whether “the claimant retains the capacity to perform the
particular functional demands and job duties peculiar to an
individual job as he or she actually performed it” or whether “the
claimant retains the capacity to perform the functional demands and
job duties of the job as ordinarily required by employers throughout
the national economy.”
Garibay, 336 F. App’x at 158 (quoting SSR 82-61). Thus, “if the claimant cannot perform the
excessive functional demands and/or job duties actually required in the former job but can perform
the functional demands and job duties as generally required by employers throughout the
economy, the claimant should be found to be ‘not disabled.’” Id. (emphasis added). To determine
21
the “generally required” functions of specific job, an ALJ may rely on the Dictionary of
Occupational Titles (“DOT”). Id. at 160.
Some jobs defy easy categorization, and information about the general requirements for
performing those jobs may not be available in the DOT. So-called “composite jobs” have
significant elements of two or more occupations and, as such, have no counterpart in the DOT.
See Standowski v. Colvin, No. 13-05663, 2015 WL 404659, at *16 (D.N.J. Jan. 29, 2015). “To
establish that a claimant maintains the RFC to perform past relevant work in a composite job, the
evidence must establish that the claimant can perform each job within a composite job, whether as
actually performed or as generally performed in the national economy.” Boggs v. Colvin, No. 130111, 2014 WL 1277882, at *10 (M.D. Pa. Mar. 27, 2014). Moreover, an ALJ may not “divide a
composite job into two jobs and find the claimant capable of performing past relevant work based
on the less demanding of the two jobs.” Id.
2.
Decision
Plaintiff argues the ALJ erred at step four by concluding he was capable of performing his
“past relevant work.” (ECF No. 15 at 28-31.) 4 Specifically, Plaintiff contends the ALJ failed to
appropriately characterize his past relevant work as a composite job which included aspects of
both a purchasing agent and an engineer. (Id. at 28.) At the hearing before the ALJ, Plaintiff
testified that he was an engineer at Con Edison for 27 years, but later switched to being a
purchasing agent at Con Edison because he could not handle the physical requirements of
engineering inspections. (Tr. 98–99.) Plaintiff testified that his role as a purchasing agent required
4
Plaintiff also argues the ALJ erred at step 5 because Plaintiff was “unable to return to his past
relevant work.” (ECF No. 15 at 31.) This section addresses the entirety of Plaintiff’s challenge
regarding the ALJ’s determinations about his past relevant work.
22
him to spend an average of two days per week traveling. (Tr. 99.) While traveling, Plaintiff needed
to carry around a ten-pound bag and would have to climb stairs or ladders, and occasionally go
inside boilers. (Tr. 99–100.) Based in part on that testimony, the Vocational Expert at the ALJ
hearing found Plaintiff could perform work as a purchasing agent “as it’s generally performed in
the national economy, not as the claimant described.” (Tr. 116.) 5
The ALJ concluded Plaintiff had “worked two separate jobs, not a compound job,” and
concluded Plaintiff could return to his past relevant work as a purchasing agent “as generally
performed.” (Tr. 70.) 6 The ALJ did not explain why she rejected Plaintiff’s contention that his past
relevant work was a composite job. (Id.)
The Court finds remand is necessary to determine whether Plaintiff’s past relevant work
was a composite job. Here, the Social Security Administration’s Program Operations Manual
System (“POMS”) is instructive. POMS states that “the claimant’s [past relevant work] may be a
5
Per the DOT listing cited by the Vocational Expert (162.157-038), a purchasing agent:
coordinates activities involved with procuring goods and services,
such as raw materials, equipment, tools, parts, supplies, and
advertising, for establishment: Reviews requisitions. Confers with
vendors to obtain product or service information, such as price,
availability, and delivery schedule. Selects products for purchase by
testing, observing, or examining items. Estimates values according
to knowledge of market price. Determines method of procurement,
such as direct purchase or bid. Prepares purchase orders or bid
requests. Reviews bid proposals and negotiates contracts within
budgetary limitations and scope of authority. Maintains manual or
computerized procurement records, such as items or services
purchased, costs, delivery, product quality or performance, and
inventories. Discusses defective or unacceptable goods or services
with inspection or quality control personnel, users, vendors, and
others to determine source of trouble and take corrective action.
May approve invoices for payment. May expedite delivery of goods
to users.
6
The parties appear to use the terms “compound job” and “composite job” interchangeably.
23
composite job if it takes multiple DOT occupations to locate the main duties of the PRW as
described
by
the
claimant.”
POMS
DI
25005.020,
available
at
https://secure.ssa.gov/poms.nsf/lnx/0425005020. As noted above, Plaintiff himself is the “primary
source” for his previous work responsibilities, and “statements by the claimant regarding past work
are generally sufficient for determining the skill level, exertional demands and nonexertional
demands of such work.” SSR 82-62, 1982 WL 31386, at *3 (S.S.A. Jan. 1, 1982). Plaintiff testified
he needed to travel twice per week on average, on trips that required him to engage in physical
activities such as climbing ladders and going inside boilers. (Tr. 99–100.) Based on its frequency,
such travel appears to have been one of Plaintiff’s main job duties. At the very least, the ALJ must
explain her reasoning as to why Plaintiff’s past work should not be considered a composite job
involving responsibilities and physical demands beyond that of a typical purchasing agent.
Remand is necessary here because the step four analysis changes when a claimant’s past
relevant work is a composite job. As the Social Security Administration itself instructs, “a
composite job does not have a DOT counterpart, so do not evaluate it at the part of step 4
considering work ‘as generally performed in the national economy.’” POMS, DI 25005.020,
available at https://secure.ssa.gov/poms.nsf/lnx/0425005020. By assessing only the requirements
of a purchasing agent as that role is “generally performed,” the ALJ risked running afoul of the
established rule that an ALJ may not “divide a composite job into two jobs and find the claimant
capable of performing past relevant work based on the less demanding of the two jobs.” Boggs,
2014 WL 1277882, at *10.
Accordingly, the Court REMANDS for further consideration of whether Plaintiff’s past
relevant work should be considered a composite job, and if so, whether Plaintiff was capable of
returning to that work. See Plumb v. Astrue, No. 10-3090, 2012 WL 768058, at *6 (D.S.C. Mar. 7,
24
2012) (remanding case to determine whether past relevant work was a composite job). The Court
also directs the ALJ to perform a step five analysis to determine whether Plaintiff was capable of
performing other work. As noted previously, undertaking a step five analysis now will assist
further review, should any be necessary. See Santiago v. Colvin, No. 15-0612, 2016 WL 2593697,
at *13 (D.N.J. May 5, 2016) (directing the ALJ to perform a step five analysis on remand because,
while an “unambiguous factual finding at step 4 might well dispose of the issue,” a step five
analysis would “avoid delay and ensure a final resolution”).
E.
New Evidence
1.
Legal Standard
The Court has authority under sentence six of 42 U.S.C. § 405(g) to remand for further
proceedings based on new evidence the ALJ did not consider, but only if “the evidence is new and
material and if there was good cause why it was not previously presented to the ALJ.” Matthews,
239 F.3d at 593. New evidence is “material” only if it “relate[s] to the time period for which
benefits were denied and does not concern the subsequent deterioration of the previously nondisabling condition.” Lisnichy v. Comm’r of Soc. Sec., 599 F. App’x 427, 429 (3d Cir. 2015); see
also Hanson v. Astrue, No. No. 12-0084, 2013 WL 1631389, at *9 (W.D. Pa. Apr. 16, 2013)
(declining to remand case for new evidence because “[w]hile all of the records submitted to the
Appeals Council are ‘new’ in the sense that they post-date the ALJ’s decision, these records are
immaterial since they do not relate to the time period for which benefits were denied”).
2.
Decision
Plaintiff argues Defendant should have considered “new and material evidence” submitted
after the ALJ Decision was rendered. (ECF No. 15 at 26.) According to Plaintiff, the new evidence
“showed ongoing left thumb pain and limitations requiring additional surgery” and that his “right
25
shoulder was also found to have severe injury residuals and arthroscopic shoulder surgery was
required.” (Id.) Although Plaintiff maintains these conditions dated back to the Claimed Period,
he has failed to make the required showing that the new evidence is material or that there was good
cause for why the evidence was not presented to the ALJ in the first place. Accordingly, the Court
declines to issue a “sentence six” remand for the consideration of that evidence. See Matthews,
239 F.3d at 593.
IV.
CONCLUSION
For the reasons set forth above, the matter is REMANDED for further proceedings
consistent with this opinion.
Date: March 30, 2018
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
26
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