DAVID J. TAYLOR v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION filed. Signed by Magistrate Judge Paul A. Zoss on 5/21/2018. (km)

Case 3:16-cv-05033-PAZ Document 16 Filed 05/21/18 Page 1 of 23 PageID: 495

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID J. TAYLOR,

Case No.: 16-cv-05033 (PAZ)

Plaintiff,

OPINION

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

APPEARANCES:
ABRAHAM S. ALTER
LANGTON & ALTER
P.O. BOX 1798
1600 ST. GEORGES AVENUE
RAHWAY, NJ 07065
On behalf of Plaintiff
JAMES A. MCTIGUE
SPECIAL ASSISTANT U.S. ATTORNEY
C/O SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
P.O. BOX 41777
PHILADELPHIA, PA 19101
On behalf of Defendant
PAUL A. ZOSS, United States Magistrate Judge.
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 application of Plaintiff David J. Taylor for
Supplemental Security Income (“SSI”) benefits under Title XVI of the Social Security Act (42
U.S.C. §§ 1381, et seq.). Plaintiff appeals from the final decision of the Administrative Law Judge
(“ALJ”) denying the application; Defendant, the Commissioner of Social Security (“the
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Commissioner”), opposes Plaintiff’s appeal. After careful consideration of the record, including
the ALJ hearing transcripts, the ALJ’s prior decision, and the pleadings, memoranda, and oral
arguments by the parties, the Court decides this matter pursuant to Rule 78(a) of the Federal Rules
of Civil Procedure and Local Civil Rule 9.1(f). For the reasons set forth below, the Court reverses
the Commissioner’s decision that Plaintiff was not disabled and remands the case for further
proceedings in accordance with the following instructions.
I.

PROCEDURAL HISTORY
On March 28, 2012, Plaintiff filed an application for SSI benefits alleging a disability onset

date of November 20, 2007. (R. 138-143.) 1 On August 7, 2012, the Commissioner determined
that Plaintiff was not disabled and denied the application.

(R. 52-63.)

Plaintiff filed for

reconsideration, and his application was again denied on December 21, 2012. (R. 64-73.)
Plaintiff requested a hearing, which was held on February 27, 2014; Plaintiff was
represented by a non-attorney representative. (R. 23-51.) The ALJ issued a decision on November
12, 2014, again denying Plaintiff’s application. (R. 8-22.) The Appeals Council denied Plaintiff’s
request for appeal on June 17, 2016 (R. 1-5), thereby affirming the ALJ’s November 2014 decision
as the “final” decision of the Commissioner.
On August 17, 2017, Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g) and
pursuant to 42 U.S.C. § 1383(c)(3). ECF No. 1. On April 20, 2018, Plaintiff consented to have a
U.S. Magistrate Judge conduct all further proceedings in the case to disposition pursuant to
28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF No. 13. 2 The case

1

“R.” refers to the continuous pagination of the administrative record. ECF No. 7.

2

Defendant 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).

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was reassigned to the undersigned Magistrate Judge on April 23, 2018. On May 9, 2018, the Court
heard oral arguments during a non-evidentiary hearing. ECF No. 17.
II.

LEGAL STANDARD
A.

Standard of Review

This Court has plenary review of legal issues decided by the ALJ in reviewing applications
for SSI benefits. 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., No. 17-2309 (JLL), 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018).
Thus, 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 one, 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

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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 (RBK), 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) (substantial evidence exists only “in relationship to all
the other evidence in the record”). Evidence is not substantial if “it is 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.” Coleman, 2016 WL 4212102 at *3 (citing 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

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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.
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

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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.

Standard for Awarding SSI Benefits

Under the Social Security Act, an adult claimant (i.e., a person over the age of eighteen) is
disabled and eligible for SSI benefits based on an “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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A claimant is disabled only if her/his
physical or mental impairments is “of such severity that [s/]he is not only unable to do his previous
work, but cannot, considering [her/]his age, education, and work experience, engage in any other
kind of work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).
In determining whether the claimant’s physical or mental impairment is of a sufficient
medical severity as could be the basis of eligibility under the law, the ALJ must consider the
combined effect of all of impairments without regard to whether any single impairment, if
considered separately, would be of sufficient severity. If the ALJ finds a medically severe
combination of impairments, then the combined impact of such impairments must be considered
throughout the disability evaluation process. 20 C.F.R. § 416.923(c).

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The disability evaluation process for determining an adult’s claim for SSI benefits involves
a five-step sequential inquiry. 20 C.F.R. § 416.920(a). 3 The claimant bears the burden of proof at
Steps One through Four. At Step Five, the burden shifts to the Commissioner. 20 CFR § 416.912;
see Holley v. Colvin, 975 F. Supp.2d 467, 476-77 (D.N.J. 2013), aff’d sub nom. Holley v. Comm’r
of Soc. Sec., 590 F. App’x 167 (3d Cir. 2014).
At Step One, the ALJ decides whether the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 416.920(b). Substantial gainful activity is work activity that involves
doing significant physical or mental activities and is usually done for pay or profit.

Id.

§§ 416.972(a) & (b). If the claimant is engaging in such activity, then the inquiry ends because
the claimant is not disabled.
“The [Step Two] inquiry is a de minimis screening device to dispose of groundless claims.”
Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). At this Step, the ALJ decides
whether the claimant has a medically determinable impairment or a combination of such
impairments that is severe. 20 C.F.R. § 416.920(c). Any doubt as to whether this showing has
been made must be resolved in the claimant’s favor. McCrea v. Comm’r of Soc. Sec., 370 F.3d
357, 360 (3d Cir. 2004) (internal quotations omitted).

An impairment or combination of

impairments is severe if it significantly limits a claimant’s ability to perform basic work activities
or impairs a claimant’s capacity to cope with mental demands of working. An impairment or
combination of impairments is not severe if the claimant has a slight abnormality or a combination
of slight abnormalities that causes no more than minimal functional limitations. Id. § 416.922. If
3

A new regulation governs the weight attributed to certain evidence for claims filed after March 27, 2017.
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017) (citing
20 C.F.R. § 416.920(c) (“How we consider and articulate medical opinions and prior administrative medical
findings for claims filed on or after March 27, 2017.”)). This case arises from a claim filed on March 28,
2012, and is therefore analyzed by this Court – as it was by the ALJ – under the prior regulation, now
codified at 20 C.F.R. § 416.927 (“Evaluating opinion evidence for claims filed before March 27, 2017.”).

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the claimant does not have a severe impairment or combination of impairments, then the inquiry
ends because the claimant is not disabled.
At Step Three, the ALJ decides whether the claimant’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment(s) in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1.

20 C.F.R.

§§ 416.920(d), 416.925, 416.926. If the claimant’s specific impairment is not listed, the ALJ will
consider the most closely analogous listed impairment for purposes of deciding medical
equivalence.

Id. § 416.926(b)(2).

If the claimant has an impairment or combination of

impairments that meets or medically equals a Listing, then the claimant is presumed to be disabled
as long as the impairment or combination of impairments has lasted or is expected to last for a
continuous period of at least 12 months. Id. § 416.909.
At Step Four, the ALJ must determine the claimant’s residual functional capacity (“RFC”),
determine the physical and mental demands of the claimant’s past relevant work, and determine
whether claimant has the level of capability needed to perform the past relevant work. 20 C.F.R.
§§ 416.920(e) & (f). RFC is the claimant’s maximum remaining ability to do physical and mental
work activities on a sustained basis despite limitations from his impairments. Past relevant work
is work performed (either as the claimant actually performed it or as it is generally performed in
the national economy) within the last 15 years or 15 years prior to the disability date. In addition,
the work must have lasted long enough for the claimant to learn to do the job and be engaged in
substantial gainful activity. Id. §§ 916.945, 916.960. If the claimant’s RFC enables her/him to
perform past relevant work, then the claimant is not disabled.
At Step Five, the ALJ must decide whether the claimant, considering her/his RFC, age,
education, and work experience, is capable of performing other jobs that exist in significant

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numbers in the national economy. 20 C.F.R. § 416.920(g). If the claimant is incapable of doing
so, then the claimant is presumed to be disabled as long as his impairment or combination of
impairments has lasted or is expected to last for a continuous period of at least twelve months.
Otherwise, the claimant is not disabled.
In deciding the claimant’s ability to perform other jobs that exist in significant numbers in
the national economy, the ALJ must consider whether the claimant’s impairment(s) and symptoms
result in exertional and/or non-exertional limitations.

The classification of a limitation as

exertional is related to the United States Department of Labor’s classification of jobs by various
exertion levels (sedentary, light, medium, heavy, and very heavy) in terms of the strength demands
for sitting, standing, walking, lifting, carrying, pushing, and pulling. Id. at § 416.969a(b). Nonexertional limitations affect a claimant’s ability to meet all other demands of a job (i.e., nonstrength demands), including but not limited to difficulty performing the manipulative or postural
functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching.
Id. at § 416.969a(c).
If the claimant has no non-exertional limitations and can perform all or substantially all
exertion demands at a given level, then the ALJ must use the Medical-Vocational Rules (also
referred to as “Grid”) found at 20 C.F.R. § 404, Subpart P, Appendix 2. 20 C.F.R. § 416.969a(b).
The Grid reflects various combinations of RFC, age, education, and work experience, and directs
a finding of disabled or not disabled for each combination. However, if the claimant also has any
non-exertional limitations or cannot perform substantially all of the exertional demands at a given
level, then the Grid is used as a framework for decision-making unless there is a rule that directs a
finding of disabled without considering the additional non-exertional or exertional limitations. Id.

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§ 416.969a(d). If the claimant has solely non-exertional limitations, then the Grid provides a
framework for decision-making. Id. § 416.969a(c).
III.

ALJ DECISION AND APPELLATE ISSUES
Plaintiff was represented for the hearing by non-attorney Adolph Delbridge. (R. 11.) At

Step One, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since
filing his SSI application on March 28, 2012. (R. 13.) At Step Two, the ALJ determined that
Plaintiff had two severe impairments: “residuals of a stabbing in the left leg; and obesity.” (R. 13
(finding that Plaintiff’s alleged “depression” was not severe).) At Step Three, the ALJ determined
that Plaintiff did not have an impairment or combination of impairments that meets or medically
equals a Listing. (R. 13-14.) At Step Four, the ALJ determined that Plaintiff had the RFC “to
perform a compromised range of light work as defined in 20 C.F.R. 416.967(b).” (R. 14.)
Specifically:
[Plaintiff] is able to lift/carry 20 pounds occasionally and 10 pounds frequently;
stand/walk for 4 hours in an eight hour work day; sit for 6 hours in an eight hour
work day; and perform unlimited pushing and pulling within the weight restriction
given except that the claimant is unable to perform pushing and pulling with the
left leg. Moreover, regarding the postural and environmental demands of work, the
claimant is able to perform jobs that require only occasional use of ladders, ropes,
or scaffolds; that require only occasional use of ramps or stairs; that require
unlimited balancing, frequent, occasional kneeling, but no crouching, and/or
crawling; and that require no exposure to unprotected heights, hazards or dangerous
machinery.
(R. 14.) As Plaintiff had no past relevant work, the ALJ moved to Step Five. Based on posthearing interrogatory responses from the VE, the ALJ “conclude[d] that, considering the
claimant’s age, education, work experience, and [RFC], the claimant is capable of making a
successful adjustment to other work that exists in significant numbers in the national economy.”
(R. 17.) Accordingly, the ALJ found that Plaintiff was not disabled.

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Plaintiff contends that he was prejudiced by incompetent representation and the ALJ’s
conduct. ECF. No. 10 at 17, 20-27. Plaintiff further contends that the ALJ erred at Steps Two
through Five of the disability evaluation process. Plaintiff argues that the ALJ erroneously found
at Step Two that Plaintiff’s alleged depression was not severe and failed to consider Plaintiff’s
other mental impairments and his left chronic sciatic neuropathy of the peronal division. Id. at 1012, 14-16, 28-30. Plaintiff argues that the ALJ’s analysis at Step Three was erroneously limited
to Listing 1.08 and failed to consider in combination all of Plaintiff’s impairments (including his
mental impairments and his obesity). Id. at 12, 16, 30-34. Plaintiff argues that the ALJ’s RFC
determination at Step Four was “without evidentiary rationale” and rested on “ALJ guesswork,
‘lay speculations’ and contradictory findings.” Id. at 35-37, 39. Plaintiff argues that at Step Five
the ALJ’s hypothetical questioning of the VE failed to reflect all of Plaintiff’s impairments, and
that “the VE’s testimony contradict[ed] the DOT and the Commissioner’s adopted understandings
of the DOT in the Social Security Rulings.” Id. at 38, 40.
Defendant contends that Plaintiff was adequately represented and was not prejudiced by the
ALJ’s conduct. ECF No. 11 at 8-11. Defendant further contends that the ALJ’s analysis of the
decision evaluation process does not warrant reversal or remand. Defendant argues that at Step
Two the ALJ appropriately evaluated Plaintiff’s alleged impairments and, alternatively, that the
errors about which Plaintiff complains were harmless because the ALJ nevertheless found some
severe impairments. Id. at 11-14. Defendant argues that at Step Three Plaintiff did not establish
that he could meet Listing 11.14 criteria, and that the ALJ adequately considered Plaintiff’s alleged
mental impairments and obesity. Id. at 14-17. Defendant argues that at Steps Four and Five the
ALJ’s RFC determination was “thoroughly explained” and “supported by the medical record[,]”
and that the errors about which Plaintiff complains were harmless because the VE identified at

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least one job within Plaintiff’s alleged work capacity existing in sufficient numbers in the national
economy. Id. at 18-21.
IV.

DISCUSSION
A.

Plaintiff Waived His Right to Counsel But Was
Prejudiced By The ALJ’s Failure To Develop The Record.

Although there is no constitutional right to counsel at a social security disability hearing, a
claimant “does have a statutory and regulatory right to counsel at such a hearing.” Vivaritas v.
Comm’r of Soc. Sec., 264 F. App’x 155, 157 (3d Cir. 2008) (citing 42 U.S.C. § 406 and 20 C.F.R.
§ 416.1505). A pro se claimant “must be given notice of the right to counsel and can waive this
right only by a knowing and intelligent waiver.” Id. (citing Smith v. Schweiker, 677 F.2d 826, 828
(11th Cir. 1982)). But an invalid waiver of counsel is not itself a sufficient justification for remand.
Rather, remand is proper where the lack of counsel prejudiced the claimant. Phifer ex rel. Phifer
v. Comm’r of Soc. Sec., 84 F. App’x 189, 190-91 (3d Cir. 2003) (citing Livingston v. Califano, 614
F.2d 342, 345 (3d Cir. 1980)). Prejudice may be established if the ALJ failed “to help the claimant
develop the administrative record.” Vivaritas, 264 F. App’x at 157-58 (ALJ “‘must scrupulously
and conscientiously probe into, inquire of, and explore for all the relevant facts’” on behalf of pro
se claimant) (quoting Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)); see Dobrowolsky v.
Califano, 606 F.2d 403, 407 (3d Cir. 1979) (ALJ must “assume a more active role when the
claimant is unrepresented”).
“A determination of whether the claimant waived the right to counsel knowingly and
intelligently determines who has the burden of demonstrating whether remand is appropriate.”
Vivaritas, 264 F. App’x at 158. If the ALJ did not obtain a valid waiver of counsel, “the burden
is on the Commissioner to show the ALJ adequately developed the record.” Id. (“While a claimant
represented by counsel is presumed to have made [her/]his best case before the ALJ, no such

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presumption attaches to an unrepresented claimant.”) (quotations omitted); see Carmichael v.
Barnhart, 104 F. App’x 803, 805 (3d Cir. 2004) (claimant represented by non-attorney was not
entitled to remand for ineffective assistance of counsel where Commissioner established that ALJ
fully developed record).
The Third Circuit holds that correspondence from the Commissioner advising the claimant
of the right to be represented by an attorney or other representative “alone shows that [claimant]
was given adequate notice of [her/]his right to counsel.” Phifer v. Comm’r of Soc. Sec., 84 F.
App’x 189, 191 (3d Cir. 2003) (emphasis added). Plaintiff was advised of his right to legal counsel
in the Notice of Disapproved Claim dated August 7, 2012 (R. 75-76), and in the Notice of
Reconsideration dated December 21, 2012 (R. 83). Plaintiff signed a document dated February
15, 2013, appointing Mr. Delbridge as representative. Mr. Delbridge signed the document on the
same date and clearly checked the box indicating that he was not an attorney. (R. 85.) By letter
dated February 25, 2013, the Commissioner provided Plaintiff with an eight-page document –
including an attachment labeled “Your Right to Representation” – that expressly explained the
right to legal counsel for the hearing. (R. 89-96.) Plaintiff thus received sufficient notice of his
right to be represented by an attorney to support a valid waiver of counsel. 4
Plaintiff mistakenly invokes Seventh Circuit precedent requiring ALJs to explain to pro se
claimants “‘(1) the manner in which an attorney can aid in the proceedings, (2) the possibility of
free counsel or a contingency arrangement, and (3) the limitation on attorney fees to 25 percent of
past due benefits and required court approval of the fees.’” Skinner v. Astrue, 478 F.3d 836, 841

4

Plaintiff’s brief posits that it remains an “open question” whether Plaintiff knew that Mr. Delbridge was
not an attorney. ECF No. 10 at 25. There is no such question. Plaintiff bears the burden of establishing
that the ALJ failed to obtain a valid waiver of counsel, and Plaintiff points to no evidence in the record –
and offers no evidence on appeal – reflecting a misunderstanding of this nature.

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(7th Cir. 2007) (quoting Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994)); see ECF No. 10 at
22-24. “Although [the Third Circuit] ha[s] referred to decisions by other courts of appeals in
describing the standards for evaluating social security appeals, [the Third Circuit] ha[s] not
required that ALJs explain each of these listed items that [Seventh Circuit] case law requires.”
Vivaritas, 264 F. App’x at n.1; accord McGrew v. Colvin, No. 13-cv-0144 (AJS), 2013 WL
2948448, at *5 (W.D. Pa. 2013) (“The [Third Circuit] has declined to adopt a rigid protocol for an
ALJ to follow when obtaining a waiver of representation.”) (citing Vivaritas, 478 F. App’x at n.1)).
Plaintiff’s reliance on the Commissioner’s Hearings, Appeals and Litigation Law Manual
(“HALLEX”) – which provides that “the ALJ must secure on the record an unrepresented
claimant’s acknowledgement of the right to representation and affirmation of the claimant’s
decision to proceed without a representative” – is also misplaced. ECF No. 10 at 24-25 (quoting
HALLEX-I-2-6[-]52A). Manuals promulgating official Social Security policy and operating
instructions, such as HALLEX, “do not have the force of law.” Edelman v. Comm’r of Soc. Sec.,
83 F.3d 68, 71 n.2 (3d Cir. 1996) (citing Schweiker v. Hansen, 450 U.S. 785, 789 (1981)); see also
Bordes v. Comm’r of Soc. Sec., 235 F. App’x 853, 854 (3d Cir. 2007).
Moreover, Plaintiff was not an unrepresented claimant; he chose to be represented by a
non-attorney. Cf. HALLEX-I-2-6-52B (ALJ might ask unrepresented claimant on record whether
s/he “receive[d] the hearing acknowledgement letter and its enclosure(s) and “underst[ood] the
information contained in that letter, specifically concerning representation”) (emphasis added).
Plaintiff’s reliance on cases in which the ALJ discussed waiver with unrepresented claimants is
thus equally misplaced. ECF No. 10 at 22-23 (citing Vivaritas (264 F. App’x at 158); Yakely v.
Astrue (No. 12-cv-00857 (MLC), 2013 WL 1010671, at *2 (D.N.J. Mar. 13, 2013); Curry v.
Barnhart, No. 05-cv-2350 (TRR), 2006 WL 1192920, at *3 (E.D. Pa. Jan. 25, 2006)).

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Notwithstanding the Court’s finding that Plaintiff validly waived his right to legal counsel,
the Court finds that remand is warranted because Plaintiff was prejudiced in Steps Two through
Five by the ALJ’s failure to “probe into, inquire of, and explore for all the relevant facts” as
required in a pro se social security disability hearing. Reefer, 326 F.3d at 380. This includes
failure to order consultative examinations by physicians specializing in Plaintiff’s alleged
impairments. See 20 C.F.R. 416.917; accord Holladay v. Bowen, 848 F.3d 1206, 1209 (11th Cir.
1988); Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir. 1985); Ford v. Sec’y of Health & Human
Servs., 659 F.2d 66, 69 (5th Cir 1981). 5
B. Step Two Analysis.
The parties agree with the ALJ’s finding at Step Two that Plaintiff had at least one severe
impairment (i.e., obesity). Plaintiff argues that the ALJ erred at this Step: (1) in failing to analyze
specifically Plaintiff’s left chronic sciatic neuropathy; (2) in failing to analyze Plaintiff’s various
alleged personality disorders; and (3) in finding Plaintiff’s alleged depression to be non-severe.
An ALJ’s failure to consider the severity of an impairment or an ALJ’s determination that an
impairment is non-severe is not ordinarily dispositive at Step Two if the ALJ has found at least
one severe impairment. This is because the ALJ is required to consider the combined effects of

5

Plaintiff alleges that he was also prejudiced by the ALJ’s “needless pejorative lecturing, smacking of bias”
and intentional misconduct against Plaintiff and Mr. Delbridge. ECF No. 10 at 17, 20-21 (“It is hardly
conceivable that this insult would have been thrown in the presence of an attorney or tolerated without
comment or complaint by an attorney.”); see id. at 17 (“it is unmistakable the ALJ took advantage of
[P]laintiff’s ‘non-attorney representative’”). The Court reviewed the entire hearing transcript and finds no
fault in the ALJ’s conduct. See Fraser v. Astrue, 373 F. App’x 222, 225 (3d Cir. 2010) (rejecting argument
that ALJ was biased because “[e]ven assuming, however, that the ALJ was rather brusque, there is no
indication that there was any conflict of interest or inability to render a fair judgment”); Morris v. Comm’r
of Soc. Sec., No. 17-cv-757 (KM), 2018 WL 395736, at *10 (D.N.J. Jan. 12, 2018) (no prejudice where
ALJ mailed VE interrogatory responses to pro se claimant accompanied by notification of right to “request
a supplemental hearing at which you would have the opportunity to appear, testify, produce witnesses, and
submit additional evidence and written or oral statements”). Even if the ALJ erred in her treatment of
Plaintiff and Mr. Delbridge, any such error will be remedied during further proceedings after remand in
which Plaintiff is represented by an attorney.

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all impairments – regardless of severity – at Steps Three through Five. 20 C.F.R. § 416.923; see
Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (harmless error where
ALJ erroneously found at Step Two that some, but not all, of claimant’s impairments were not
severe); Ross v. Astrue, No. 08-cv-5282 (SDW), 2010 WL 777398, at *5 (D.N.J. Mar. 8, 2010)
(same).
The Court concludes that, even if the ALJ failed to analyze at Step Two Plaintiff’s alleged
left chronic sciatic neuropathy of the peronal division, such failure was harmless error, because
the ALJ in fact considered this impairment at Steps Three through Five. (R. 16.) 6 The Court is
therefore not required to decide the parties’ dispute in this regard, although the Court will address
below the sufficiency of the ALJ’s consideration in subsequent Steps.
In contrast, the ALJ’s failure to analyze Plaintiff’s various alleged personality disorders
and the ALJ’s finding that Plaintiff’s alleged depression was non-severe effectively “screened out”
of the remaining disability evaluation process at Step Two all of Plaintiff’s mental impairments.
Melendez v. Colvin, No. 15-cv-3209 (KM), 2016 WL 4718946, at *4 (D.N.J. Sep. 8, 2016). The
ALJ’s Step Two analysis reads in its entirety as to Plaintiff’s alleged mental impairments:
The record also makes reference to depression. Although the medical record may
reference this impairment, there is no evidence to show that this impairment has
had the requisite limiting effects on the claimant’s ability to perform basic work
activities. There is only one record with regards to depression and the underlying
influence appears to be alcohol (Exhibit 11F). He testified at the hearing that he is
depressed; however, he stated that he does not take any of the medication that has
been prescribed for his depression. Moreover, the claimant voluntarily withdrew
from his counseling and was noted to have numerous absences (Exhibit 11F). In
light of these considerations, this additional impairment is not found to be severe.

6

Defendant argues that the ALJ did not fail to analyze this impairment at Step Two, but “merely called [it]
by a different, broader name (‘residuals from a stabbing in his left leg’).” ECF No. 11 at 11. On remand,
the ALJ should clarify whether Plaintiff’s left chronic sciatic neuropathy of the peronal division is severe.

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(R. 13.) 7 None of Plaintiff’s mental impairments was subsequently mentioned in the ALJ’s
decision. Put another way, the ALJ simply did not analyze at Steps Three through Five the
potential effect of Plaintiff’s mental impairments, alone or in combination with each other and
with Plaintiff’s physical impairments. This was not harmless error. See Melendez, 2016 WL
4718946, at *4 (rejecting Commissioner’s harmless error argument and reviewing non-severity
finding where ALJ omitted subsequent analysis of non-severe impairments).
The Court finds that remand is necessary to remedy the ALJ’s failure to discuss Plaintiff’s
alleged personality disorders at Step Two. See Morris, 2018 WL 395736, at *7 (remanding
because pro se plaintiff was prejudiced where ALJ “did not even mention” certain alleged
impairments at Step Two). Given the low threshold at Step Two, the Third Circuit’s directive that
doubts be resolved at this Step in favor of the claimant, and the ALJ’s enhanced duty to a pro se
claimant, the Court also finds that the ALJ’s determination that Plaintiff had no severe depressive
disorders was not supported by substantial evidence. This also must be remedied. On remand, the
ALJ should assess the entire record in connection with all of Plaintiff’s alleged mental
impairments, including evidence about Plaintiff’s reasons for stopping his medication and
Plaintiff’s conduct when he is not medicated. 8

7

Exhibit 11F consisted of Plaintiff’s medical records from UCPC Behavioral Healthcare for the period
between September 13, 2013 through November 25, 2013. (R. 355-85.) These records expressly addressed
various personality disorders and depressive disorders.

8

An ALJ’s lay opinion cannot be used in the disability evaluation process. See Rocco v. Heckler, 826 F.2d
1348, 1350 (3d Cir. 1987) (“We have on numerous occasions advised ALJs not to rely on their own
expertise in evaluating the medical condition of claimants, but to base their appraisals on testimony in the
record.”) (citations omitted). The Court cautions the Commissioner to be mindful on remand of colloquy
similar to the following excerpt from the hearing transcript:
Q Well, maybe they could give you something else because, you know, if you have this, it’s only
– it’s a chemical – it’s not anything like bad. It’s just you have a chemical imbalance in your
brain –
A Right.

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C. Step Three Analysis.
Plaintiff argues that at Step Three, the ALJ: (1) analyzed the wrong leg impairment;
(2) failed to combine all of Plaintiff’s alleged impairments regardless of severity; and (3) failed to
consider sufficiently the potential impact of Plaintiff’s obesity. The Court agrees with Plaintiff as
to all three arguments.
First, the ALJ’s Listing analysis consists of a single sentence stating that Plaintiff’s “leg
wound has not required continuing surgical management to restore major function as required by
[L]isting 1.08 for soft tissue injury.” (R. 13.) Although supported by substantial evidence, this
finding was of no consequence because Listing 1.08 – which identifies “burns” as an example of
a covered impairment (20 C.F.R. pt. 404, subpt. P, app. 1, §1.08) – is not relevant here. “[I]t is the
ALJ’s responsibility ... to identify the relevant listed impairment(s) and develop the arguments
both for and against granting benefits.” Torres v. Comm’r of Soc. Sec., 279 F. App’x 149, 151-52
(3d Cir. 2008) (quoting Burnett, 220 F.3d at n.2). Listing 11.14 for “peripheral neuropathy” is
more closely aligned with Plaintiff’s leg impairment and requires:

Q – and the medicine helps to keep you on an even keep so there’s a bunch of different medicines
they can give you that won’t – that may not have those same side effects.
A Yeah.
Q Some give you the dry mouth, some give you problems, you know, with sex drive, those kinds
of things. When you see the doctor, you have to make sure that they – they can test you out on
some other ones – Paxil – maybe a low dose of Paxil or something like that so that you can
keep things in check –
A Yeah.
***
Q Just do what you need to do. See about taking the – taking – see about getting – you have to
get on some kind of low dose medicine again because that’ll keep your moods – your moods –
A Right.
(R. 43-44.)

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A. Disorganization of motor function in two extremities (see 11.00D1), resulting
in an extreme limitation (see 11.00D2) in the ability to stand up from a seated
position, balance while standing or walking, or use the upper extremities.
OR
B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and
in one of the following:
1. Understanding, remembering, or applying information (see 11.00G3b(i)); or
2. Interacting with others (see 11.00G3b(ii)); or
3. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or
4. Adapting or managing oneself (see 11.00G3b(iv)).
20 C.F.R. pt. 404, subpt. P, app. 1, § 11.14. However, the record is not sufficiently developed to
determine whether substantial evidence would support a finding that Plaintiff’s leg impairment
meets or medically equals this Listing. The relevant medical evidence thus far consists of:
Dr. Chinweike Izeoju’s treatment notes from May 2012 (R. 269-72); the opinions of two Disability
Determination Services (“DDS”) consultants (R. 52-62, 64-72); an EMG study from February
2013 revealing abnormal findings consistent with left chronic sciatic neuropathy (R. 277-78); and
physical therapy records from May 2013 through October 2013 (R. 292-344).

The DDS

consultants never examined Plaintiff and, critically, provided their opinions before Plaintiff’s
EMG study.
Second, where a claimant alleges multiple impairments, the ALJ must “combine [the
claimant’s] many medical impairments and compare them” to the Listings. Torres, 279 F. App’x
at 152. The ALJ’s Step Three combined impairment analysis consisted of a single sentence –
without substantive discussion – that “claimant does not have … [a] combination of impairments
that meets or medically equals the severity of” any Listing. (R. at 13.) This conclusory finding is
inadequate because it is “beyond meaningful judicial review.” Burnett, 220 F.3d at 119; see, e.g.,
Austin v. Comm’r of Soc. Sec., No. 16-cv-1462 (ES), 2018 WL 878525, at *5-*6 (D.N.J. Feb. 14,
2018); Morris, 2018 WL 395736, at *8. Indeed, there is nothing for the Court to review, because
the ALJ discussed Plaintiff’s leg impairment individually (as to an irrelevant Listing) with no

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explanation for why that impairment, in combination with Plaintiff’s alleged mental impairments
and obesity, fails to meet or medical equal any Listing.
Third, although obesity is no longer a listed impairment, the ALJ must “consider [obesity’s]
effects when evaluating disability” and recognize that “the combined effects of obesity with other
impairments can be greater than the effects of each of the impairments considered separately.”
Titles II & XVI: Evaluation of Obesity, SSR 02–1p, 2002 WL 34686281, at *1 (S.S.A. Sep. 12,
2002) (“obesity may increase the severity of coexisting or related impairments to the extent that
the combination of impairments meets the requirements of a listing”). In the Step Three obesity
analysis, the ALJ asserted that she was analyzing Plaintiff’s impairments “pursuant to the
extensive and detailed guidelines set forth in SSR 02-1p,” recited some of those guidelines, and
then concluded:
These considerations have been taken into account in reaching the conclusions
herein at the 2nd through 5th steps of the sequential disability evaluation process,
even though no treating or examining medical source has specifically attributed
additional or cumulative limitations to the claimant’s obesity. Thus, I have fully
considered obesity in the context of the overall record evidence in making this
decision. While the claimant’s obesity when considered in conjunction with the
residuals of the gunshot injury would not allow him/her to perform the exertional
demands of work at the very heavy, heavy, medium levels, or even the full range
of light work, as is more particularly discussed below, it would not prevent him
from performing the demands of a reduced range of light work.
(R. 14.) 9

The Court is not persuaded by Defendant’s contention that this verbiage facilitates

judicial review based on the record as a whole. The word “obesity” was never mentioned again in
the ALJ’s decision, and there was no ensuing discussion of the reasons that obesity would not
prevent Plaintiff from performing a reduced range of light work. There can be no meaningful
judicial review of the ALJ’s assessment of obesity’s effects on Plaintiff’s impairments because, in

9

The ALJ presumably intended to refer to “residuals” of Plaintiff’s stabbing injury.
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fact, there is nothing for the Court to review. See, e.g., Burnett, 220 F.3d at 119; Austin v. Comm’r
of Soc. Sec., No. 16-cv-1462 (ES), 2018 WL 878525, at *5-*6 (D.N.J. Feb. 14, 2018); Morris,
2018 WL 395736, at *8.
The Court therefore finds, irrespective of the errors identified above in Step Two, that
remand is necessary to conduct a new Step Three analysis.
D. Step Four Analysis.
Although the Step Four analysis may change on remand after Steps Two and Three are
considered anew in light of the Court’s previous findings, the Court finds independent errors in
the ALJ’s RFC determination that also warrant remand. Simply put, the Court is unable to
determine whether the RFC determination was supported by substantial evidence because the
ALJ’s decision in this regard was incomplete and contradictory.
As threshold errors, (1) the ALJ’s RFC determination failed to consider Plaintiff’s alleged
mental impairments, and (2) the potential impact of Plaintiff’s obesity was not sufficiently
explained by the ALJ’s conclusory statement that “considering the claimant’s leg pain combined
with his obesity, the undersigned finds that the claimant is limited to the [RFC] outlined above and
no less.” (R. 16.) See 20 C.F.R. § 416.945(a)(2) (“We will consider all of your medically
determinable impairments of which we are aware, including your medically determinable
impairments that are not ‘severe,’ as explained in §§ 416.920(c), 416.921, and 416.923, when we
assess your residual functional capacity.”); SSR 02-1p (ALJ must “consider the effects of obesity
not only under the [L]istings but also when assessing a claim at other steps of the sequential
evaluation process, including when assessing an individual’s residual functional capacity”); Diaz
v. Commissioner of Social Security, 577 F.3d 500, 505 (3d. Cir. 2009) (remand required where
RFC determination failed to discuss combined effects of all impairments, including obesity). A

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third error involves Plaintiff’s leg impairment and the ALJ’s crediting of medical evidence that
Plaintiff had a dropped left foot. (R. 15.) The ALJ decided against unanimous DDS medical
opinions to the contrary that Plaintiff could occasionally climb ladders, ropes, or scaffolds if not
exposed to unprotected heights. (R. 14, 59-60, 69-70.) The ALJ provided no reasoning for this
deviation from the medical opinions, nor did she discuss what might constitute an “unprotected
height.” Further, the ALJ found that Plaintiff’s dropped left foot did not prevent the performance
of jobs “that require unlimited balancing, frequent, occasional kneeling, but no crouching, and/or
crawling.” (R. 14.) It is unclear whether the ALJ’s RFC determination permitted frequent or
occasional unlimited balancing or permitted frequent or occasional kneeling. It is also unclear
why the ALJ determined that Plaintiff could sometimes kneel but never crouch.
As the ALJ noted, Plaintiff testified that he “cannot lift his foot up,” “his condition is
painful,” and he has worn a knee brace for 4-5 years. (R. 15.) The ALJ decided that Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.”

(R. 15.)

However, no such

explanation was provided. To the contrary, the ALJ’s decision advised that Dr. Izeoju’s treatment
notes indicated left leg pain and spasm/weakness in Plaintiff’s left foot, with pain in Plaintiff’s
lumbar spine. (R. 16.) Further, Plaintiff’s testimony was not inconsistent with the activities listed
on his function report: namely, eating, cleaning up, watching TV, reading, writing and playing
video games.
Perhaps most troublesome, the ALJ’s RFC determination was not based on any analysis of
Plaintiff’s most recent medical records beyond mere recitation of the fact that “[a]n EMG study
was performed in February of 2013; it revealed abnormal findings consistent with left chronic
sciatic neuropathy.” (R. 16.) The ALJ did not endeavor to explain the potential impact of the

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EMG study on Plaintiff’s RFC and instead gave “significant weight” to the DDS opinions even
though both were rendered before the EMG study.
E. Step Five.
Plaintiff argues that the ALJ’s hypothetical questioning of the VE at Step Five failed to
reflect all of Plaintiff’s alleged impairments, and that the VE’s interrogatory responses were not
consistent with the DOT. The Court declines to address these arguments because they well may
be mooted on remand.
V.

CONCLUSION
For these reasons, the Court reverses the Commissioner’s decision that Plaintiff was not

disabled and remands the case for further proceedings in accordance with the preceding
instructions and the accompanying Order.

Dated: May 21, 2018
At Newark, New Jersey

s/ Paul A. Zoss
PAUL A. ZOSS, U.S.M.J.

23