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Case 2:12-cv-07238-JLL Document 10 Filed 09/20/13 Page 1 of 9 PageID: 60







Acting Commissioner of Social Security,


LINARES, District Judge.

Civil Action No. 12-7238 (JLL)


Presently before the Court

is Plaintiff Evelyn Lopez (“Plaintiff’)’s Appeal seeking
review of a final detennination by Administrative Law Judge (“AU”) Joel H. Friedman denying

her application for Supplemental Security Income (“SSI”). The court has jurisdiction to review
this matter pursuant to 24 U.S.C. § 405(g). No oral argument was heard. Fed. R. Civ. P. 78. For
the reasons set forth below, this Court concludes that the Commissioner’s determination is not
supported by substantial evidence and is hereby reversed and remanded.



Plaintiff is a 53-year-old woman who filed an application for SSI on August 30, 2004,

alleging disability beginning on that date.

(R. 17.)’ Plaintiff alleged that she was disabled
because of “kidney stones, high blood pressure, angina, irregular heart beat, lower back and
swollen body.”

(R. 32.) Her application was denied on March 31, 2005 and again upon

reconsideration on July 12, 2005.

Id. Plaintiff then filed a request for a hearing on July 20,

2005. The hearing was held on September 26, 2006 before AU Dennis O’Leary.

Id. A

“R.” refers to pages of the Administrative Record SSA.

Case 2:12-cv-07238-JLL Document 10 Filed 09/20/13 Page 2 of 9 PageID: 61

supplemental hearing was held at which a medical expert, Dr. Martin Fechner, and a vocational
expert appeared and testified.
Id. On April 9, 2007, the AU concluded that Plaintiff was not

disabled. Id. at 17-26.

Plaintiff requested an appeal of the AU’s decision. The Appeals Council denied review
on June 30, 2009. Id. at 5-8. Plaintiff appealed to the District Court, which approved a Consent
Order to reverse and remand the decision of the Commissioner. Id. at 713-14. Pursuant to this
Order, the Appeals Council issued a Remand Order on September 14, 2010.
Id. at 715-19. A
new hearing was held before AU Joel H. Friedman on December 21, 2010. Id. at 704. Dr. Pat
Green, a vocational expert, testified at the hearing. Id. In his opinion dated September 21, 2011,
the AU denied disability benefits, finding that Plaintiff’s Residual Functional Capacity (“RFC”)
was compatible with certain light work. Id. at 711.

In reaching this conclusion, the AU found that Plaintiff had been engaged in substantial
gainful activity from 2008 through the first quarter of 2011. As a result, the AU restricted his
analysis to the time period when Plaintiff was not engaged in such activity, from 2004 through
2007. Next, the AU found that Plaintiff had the severe impairments of atypical chest pain,
hypertension, arthritis, depression, and anxiety, but that these impairments did not meet or
exceed the listed requirements. Id. at 707-8. The AU determined that Plaintiff had the RFC to
perform light work, specifically “work involving no more than simple, routine jobs in a low
contact setting, and not requiring contact with the general public.” Plaintiff was unable to
“perform work involving more than.. .the occasional stooping, crouching or crawling; and
involving climbing of.. . ladders, ropes, scaffolds or exposure to hazards such as dangerous
machinery or unprotected heights.”
Id. at 708. The AU found that, as a result of these

restrictions, Plaintiff was unable to perform her past relevant work.

Id. at 710. Relying on Dr.


Case 2:12-cv-07238-JLL Document 10 Filed 09/20/13 Page 3 of 9 PageID: 62

Green’s responses to hypothetical questions, the AU found that there were light, unskilled jobs
in significant number in the economy that Plaintiff could perform, finding Plaintiff not disabled.
Id. at 711.

After the Appeals Council declined jurisdiction on September 19, 2012, Plaintiff filed
this timely appeal on November 21, 2012, challenging the AU ‘s determination that Plaintiff was
not disabled.

(P1. Br. 1-2.)



A. Standard of Review

This Court must affirm an AU’s decision if it is supported by substantial evidence. See
42 U.S.C. § 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla” and
“means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The court defers to the findings
and conclusions of the AU, but has the “duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational” and supported by substantial evidence. Gober v.
Matthews, 574 F.2d 772, 776 (3d Cir. 1978). The 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). Courts should “review cases for errors of law ‘without regard to
errors’ that do not affect the parties’ ‘substantial rights.” Shinseki v. Sanders, 556 U.S. 396, 407
(2009) (citing Kotteakos v. United States, 328 U.S. 750, 759 (1946)).

B. The Five-Step Evaluation Process

Under the Social Security Act, a claimant must demonstrate that he is disabled based on
an inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which has lasted or can be expected to last for a


Case 2:12-cv-07238-JLL Document 10 Filed 09/20/13 Page 4 of 9 PageID: 63

continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A person is
disabled for these purposes only if his physical or mental impairments are “of such severity that
he is not only unable to do his previous work, but cannot, considering his age, education, and
work experience, engage in any other substantial gainful work which exists in the national
economy.” 42 U.S.C. § 1382c(a)(3)(B).

The Social Security Administration has established a fivepart sequential evaluation
process for determining whether a complainant is disabled. 20 C.F.R. § 404.1520, 416.920.

the Commissioner of Social Security (“the Commissioner”) decides whether


If he does not,

the Commissioner must

combination of impairments are severe.

complainant is currently engaging in substantial gainful activity.

If the complainant meets this
then the Commissioner must determine whether the complainant’s impairments or
If the impairment is determined to be severe, the
Commissioner must then decide whether the complainant suffers from a listed impairment or its

then decide whether, based on the
complainant’s “residual functional capacity” (“RFC”), the complainant is able to perform his
past relevant work.
If the complainant is unable to perform said work, then the Commissioner
must proceed to the final step. Up to this point, the burden falls upon the complainant to prove
his disability. See Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir.
1983). If the complainant has carried his burden of proof to this stage, the burden shifts to the
Commissioner to prove that other work exists in significant numbers in the national economy
that the plaintiff could perform given his RFC, age, education, and past work experience. 20
C.F.R. § 404.1 520(a)(4)(v).
If the Commissioner provides sufficient evidence to satisfy this

burden, the plaintiff is not disabled. Id.




Case 2:12-cv-07238-JLL Document 10 Filed 09/20/13 Page 5 of 9 PageID: 64

Plaintiff makes several allegations in support of her instant appeal. First, she alleges that
the AU erred at step two by not considering whether Plaintiffs foot and ankle problems were
severe impairments. Second, Plaintiff claims that the AU erred at step three by not comparing
“the combination of Plaintiffs severe impairments [and specifically her severe physical
impairments] to the requirements of the listings.” Third, Plaintiff claims that the AU erred at
step four by failing to justify both the exertional RFC for light work and the non-exertional RFC
for simple, routine low contact jobs. At this step, Plaintiff alleges that the AU left out probative
evidence related to the consultative examination of Plaintiff by Dr. Oleg Frank in 2005 and
improperly “condense[d] plaintiffs depression and anxiety disorders into a convenient and
familiar formula. .
. [that is] outlawed in third-circuit opinions.” Fourth, Plaintiff alleges that “the

required pain evaluation is absent from the decision.”
Commissioner failed to sustain his burden at step five, as the “jobs recited based on a faulty RFC
cannot be utilized to satisfy the Commissioner’s burden.”

Finally, Plaintiff claims that

The Court will address Plaintiffs arguments related to steps two and three of the AU’s
analysis. Because the Court finds merit in Plaintiffs contention that the AU’s determination at
step three was not based on substantial evidence,
the Court need not address Plaintiffs
arguments relates to steps four and five.2

A. Any Error at Step Two Is Harmless
The first issue raised on appeal is whether the AU properly determined that Plaintiffs
foot and ankle problems were not severe impairments. Plaintiff argues that the AU did not
consider whether Plaintiffs foot and ankle problems were severe impairments and, thus, failed to
weigh medical evidence relating to her lower extremities. The only record Plaintiff points to

2 However, it would be advisable for the Commissioner to give further consideration to these issues on remand. See
infra note 3.


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from the relevant time period (2004-2007) is a 2005 report in which Dr. Frank found that
Plaintiff had “trouble with heel-to-toe walking” due to a history of foot surgery, “decreased
vibratory sensation” in her left lower extremity, an antalgic gait and station, and occasional
swelling in her legs.
(P1. Br. 14, 17; R. 284-85.) Dr. Frank concluded, however, that Plaintiff

was able to “sit, stand, [and] walk.” (R. 285.)

Having carefully considered the parties’ arguments, and the decision of the AU, the
Court concludes that, even if the AU erred by failing to consider whether Plaintiffs foot and
ankle problems were severe, the error was harmless because the AU found that Plaintiff had
severe impairments and continued the sequential analysis.
(R. 707); Salles v. Comm ‘r of Soc.
Sec., 229 Fed. Appx. 140, 145 n.2 (3d Cir. 2007) (citing Rutherford v. Barnhart, 399 F.3d 546,
553 (3d Cir. 2005)); Williams v. Comm’r of the SSA, 2013 U.S. Dist. LEXIS 118525, at *46..49
(D.N.J. 2013); accord Carpenter i’. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“any error
here became harmless when the AU reached the proper conclusion that [plaintiff] could not be
denied benefits conclusively at step two and proceeded to the next step”); Lewis v. Astrue, 498
F.3d 909, 911(9th Cir. 2007) (“the AU considered any limitations posed by the [impairment] at
Step 4. .
. .[A]ny error that the AU made in failing to include the [impairment] at Step 2 was
harmless”). When an AU proceeds past step two and makes an RFC determination, at that point
the AU must consider the combined effect of all the plaintiffs impairments, whether or not
those impairments were deemed severe. See 20 C.F.R. § 404.1523 (the Commissioner “will
consider the combined effect of all [plaintiffs] impairments without regard to whether any such
impairment, if considered separately, would be of sufficient severity”). Accordingly, remand is
not warranted to reconsider the step-two determination.


Case 2:12-cv-07238-JLL Document 10 Filed 09/20/13 Page 7 of 9 PageID: 66

B. At Step Three, the AU Failed to Compare Plaintiff’s Severe Physical Impairments

to the Listed Impairments

At step three, if the claimant’s impairment or group of impairments is found to be one of
the Listed Impairments in 20 C.F.R. § 404, Subpart P, Appendix 1 or is found to be the medical
equivalent of a Listed Impairment, then the claimant is automatically deemed disabled. 20
C.F.R. § 404.1520(e). Here, in conducting his step-three analysis, the AU found that Plaintiffs
severe medical conditions did not meet or medically equal one of the Listed Impairments, but
failed to provide any reasons for this determination as to Plaintiffs physical impairments.

It is established law in this circuit that in making a step-three determination the AU must

indicate the evidence he found persuasive and that which he rejected, as well as his reasons for
doing so.3 See Cotter v. Harris, 642 F.2d 700, 705-7 (3d Cir. 1981). “The AU has a duty to
hear and evaluate all relevant evidence in order to determine whether an applicant is entitled to
disability benefits. The AU’s decision must be in writing and contain findings of fact and a
statement of reasons in support thereof.” Id. at 704. At step two of his analysis, the AU found
that Plaintiff had the following severe impairments: atypical chest pain, hypertension, arthritis,
depression, and anxiety. (R. 707.) At step three, the AU stated that Plaintiffs “impairments,
singly or in combination, do not meet or equal the regulatory requirements of any listing.” Id.
The AU laid out his reasoning as to why Plaintiffs mental impairments did not meet or equal a
listed impairment, but did not even mention Plaintiffs atypical chest pain, hypertension, or

It is worth noting that this problem recurs throughout the AU’s opinion and is not confined to his analysis at step
three. For example, when determining Plaintiff’s RFC for the step-four analysis, the AU did not address any
medical records containing evidence (or lack thereof) of Plaintiff’s physical impairments during the relevant period
(2004-2007) other than x-rays of Plaintiff’s chest taken on June 10, 2006. (R. 708-10.) Among the extensive
medical records are the consultative examination conducted in March 2005 by Dr. Frank and numerous hospital
visits. (R. at 164-468.) The AU acknowledged the 2006 medical assessment of Plaintiff by Dr. Fechner, but
declined to detail any findings related to physical impairments contained therein.
(R. 477-85; 709.) “The disparity
between the actual record and the AU’s sparse synopsis of it makes it impossible.. .to review the AU’s decision, for
[the Court] cannot tell if significant probative evidence was not credited or simply ignored.” Fargnoli V. Halter, 247
F.3d 34, 42 (3d Cir. 2001) (citing Burnett, 220 F.3d at 121) (internal quotation marks omitted).


Case 2:12-cv-07238-JLL Document 10 Filed 09/20/13 Page 8 of 9 PageID: 67

arthritis, or why such impairments did or did not meet or equal a listed impairment. A
conclusory statement that none of Plaintiff’s “impairments, singly or combination, meet or equal
the regulatory requirements of any listing” is insufficient to withstand a substantial evidence
standard. (R. at 707.); see Burnett v. Comm’r ofSoc. Sec. Admin., 220 F.3d 112, 119 (3d Cir.

In Burnett, this circuit held that an AU’s determination would be set aside if it “merely

stated a summary conclusion that [claimant] ‘s impairments did not meet or equal any Listed
Impairment,’ without identifying the relevant listed impairments, discussing the evidence or
explaining his reasoning.” Id. (quoting Clifton v. Chater, 79 F.3d 1007 (10th Cir. 1981)).


The conclusory statement provided by the AU in step three provides no basis for the
Court to evaluate his findings and therefore the Court will reverse and remand the case for a
discussion of the evidence and an explanation of reasoning supporting a determination that
Plaintiff’s severe impairments do not meet or medically equal a listed impairment. “On remand,
the AU shall fully develop the record and explain his findings at step three, including an
analysis of whether and why [Plaintiff’s] .
. impairments, or those impairments combined, are
or are not equivalent in severity to one of the listed impairments.” Burnett, 220 F.3d 120. This
Court is not “empowered to weigh the evidence or substitute its conclusions for those of the fact-
finder.” Williams, 970 F.2d at 1182. Similarly, “[c]ourts cannot exercise their duty of review
unless they are advised of the considerations underlying the action under review. .
functioning of the process of review requires that the grounds upon which the administrative
agency acted be clearly disclosed and adequately sustained.” Cotter, 642 F.2d at 705 n.7 (citing
SEC v. C’henety corp., 318 U.S. 80, 94 (1943)). For these reasons, the Court will reverse the
judgment of the AU and remand fbr further proceedings.

. . [T]he orderly



Case 2:12-cv-07238-JLL Document 10 Filed 09/20/13 Page 9 of 9 PageID: 68

Based on the reasons set forth above, Plaintiff Evelyn Lopez’s appeal to this Court to

reverse the Commissioner’s decision or to remand the claim to the Commissioner is granted.

An appropriate Order accompanies this Opinion.

Date: September2O13


}se L. Linares
United States District Judge