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Nunez v. Commissioner of Social Security

United States District Court, D. New Jersey

July 25, 2014

MAXIMO NUNEZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION

KEVIN McNULTY, District Judge.

The plaintiff, Maximo Nunez, is a 56-year-old man who suffers from diabetes mellitus and the residual effects of a back injury. Plaintiff applied for disability insurance benefits and supplemental security income (SSI) benefits in September 2009. Defendant Commissioner denied his application initially and upon reconsideration. In April 2011, Administrative Law Judge Richard L. De Steno ("the ALJ") affirmed that, and the Appeals Council denied Nunez any further review of De Steno's decision in August 2012, rendering the decision final.

Plaintiff now appeals the Commissioner's final decision in this action. He claims that the agency's decision should be reversed, with benefits awarded from September 15, 2008 through today, or remanded for rehearing. For the reasons stated below, I will REMAND this case for a new hearing.

The Administrative Decision Under Review

Plaintiff had a 27-minute hearing before the ALJ on April 5, 2011. Thereafter, the ALJ rendered an 8-page decision finding Mr. Nunez not disabled, and therefore ineligible for benefits.

The ALJ set forth information about Mr. Nunez's background and work history, which I reprise very briefly. Mr. Nunez, age 56, last worked in 2008. He worked for Sparrow Wine and Liquor for thirteen years, delivering boxes of beer, wine and liquor in a delivery van. His loading and unloading duties involved 35 pound boxes and up to 175 pound kegs, which he would sometimes carry up as many as four or five floors. He also had a job as a maintenance man for a housing authority. He was on his feet all day, and lifted items such as sheetrock and lawn mowers. At that job, in 2006, he had an accident, injuring his back. He has had low back pain since the accident, and the pain sometimes radiates. He has received prescription drugs, which he says were ineffective, but has not done physical therapy. After his injury, he returned to Sparrow Wine, and tried a less physically demanding job, but could not do it. In August 2009, he was hospitalized for a diabetes-related attack of elevated glucose. He has been diagnosed with diabetes mellitus, type II, and chronic low back pain. He has petitioned the Defendant Commissioner for benefits running from September 2008 (when he stopped working), on the basis of his back pain and diabetes.

The issue is, of course, whether Mr. Nunez was and is disabled' for purposes of the Social Security Act. There is a familiar five-step sequential evaluation process for determining such disability, codified at 20 CFR 404.1520(a) and 416.920(a), which I hereby incorporate by reference.

At Step 1, the ALJ found that Nunez had not engaged in any paid work during the period of alleged disability. There is no issue with this finding.

At Step 2, the ALJ found that Nunez had two severe impairments, that is, medically determinable conditions which "significant[ly] limit[] the claimant's ability to perform basic work activities." The two impairments were diabetes mellitus and the residual effects of a back injury. There is no issue with this finding.

At Step 3, the ALJ found that Nunez's impairment did not meet or exceed the criteria for any of the relevant listings in in 20 CFR Part 404, Subpart P, Appendix 1, which would constitute a disability and trigger an award of benefits. There is no issue with the Step 3 finding.

At Step 4, the ALJ determined the claimant's "residual functional capacity, " or "RFC." This refers to the claimant's "ability to do physical and mental work activities on a sustained basis despite limitations from his impairments (both severe and non-severe)." The ALJ found that Nunez had the "capacity for lifting and carrying objects weighing up to 50 pounds; frequently lifting and carrying objects weighing up to 25 pounds; standing, walking, and sitting up to six hours in an eight-hour day; pushing and pulling and arm and leg controls; and the full range of medium work. The claimant has not had any significant non-exertional limits." The ALJ set forth nearly four pages of reasoning for this finding. He then completed Step 4 by finding that Nunez had "been capable of performing his past relevant work of maintenance worker and truck driver, as he performed the jobs... [and] as generally performed in the national economy." This finding was supported with only one additional paragraph.

The analysis therefore ended; having found Nunez not disabled' at Step 4, the ALJ did not reach the Step 5 question of whether Nunez could do any other work in the economy.

Now, Nunez presents three arguments in this action brought pursuant to 42 U.S.C. ยง 405(g), all pertaining to the ALJ's Step 4 analysis. He argues:

1. That the RFC "is not based [on] substantial evidence, " and that this warrants remand "for a new ...

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