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Kovach v. Commissioner of Social Security

United States District Court, D. New Jersey

March 22, 2017

DINA L. KOVACH, Plaintiff,



         Dina Kovach brings this action to review a final decision of the Commissioner of Social Security ("Commissioner") denying her claims for Title II Disability Insurance Benefits ("DIB"). Upon reviewing and weighing certain evidence, the Administrative Law Judge ("ALJ") concluded that Kovach was not disabled from June 12, 2010, through March 19, 2014, the date of the decision. Kovach claims the ALJ's decision is not supported by substantial evidence.

         Because I find that the ALJ improperly failed to consider certain probative evidence supporting Kovach's allegations of severe pain and also failed to incorporate certain of Kovach's physical limitations into the hypothetical posed to the vocational expert, this Court will remand for further proceedings.

         I. BACKGROUND

         Kovach applied for DIB pursuant to Sections 216(i) and 223(d) of the Social Security Act ("SSA") on December 1, 2011, alleging disability as of June 12, 2010 (R 172-175). Kovach's application was denied initially (R 118-122)[1]and on Reconsideration (R. 126-128). Kovach requested a hearing before an Administrative Law Judge (an "ALJ") to review her application de novo (R.129-130). A hearing was held on November 21, 2013, before ALJ Elias Feuer, who issued a decision on March 19, 2014. ALJ Feuer denied disability at step five of the sequential evaluation, on the ground that, although Kovach could no longer perform her past relevant work, she is capable of adjusting to sedentary work that accommodates her limitations and exists in significant numbers in the national economy. (R12-22).

         Kovach requested Appeals Council Review of ALJ Feuer's decision, but her request was denied on July 30, 2015. This denial rendered ALJ Feuer's decision the final decision of the Commissioner. (R 1-11) Kovach now appeals that decision, pursuant to 42 U.S.C. §§ 405(g) and 1383(c).


         A. Five-Step Process and this Court's Standard of Review

         To qualify for Title II DIB benefits, a claimant must meet the insured status requirements of 42 U.S.C. § 423. To qualify, a claimant must show that she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted (or can be expected to last) for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(c), 1382(a).

         Under the authority of the SSA, the Social Security Administration (the "Administration") has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 CFR §§ 404.1520, 416.920. This Court's review necessarily incorporates a determination of whether the ALJ properly followed the five-step process, which is prescribed by regulation. The steps may be briefly summarized as follows:

Step 1: Determine whether the claimant has engaged in substantial gainful activity since the onset date of the alleged disability. 20 CFR §§ 404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant's alleged impairment, or combination of impairments, is "severe." Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe impairment, move to step three.
Step 3: Determine whether the severe impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 CFR Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is automatically eligible to receive disability benefits (and the analysis ends); if not, move to step four. Id. §§ 404.1520(d), 416.920(d).
RFC and Step 4: Determine the claimants "residual functional capacity, " (the "RFC") meaning "the most [the claimant] can still do despite [her] limitations." 20 C.F.R. § 404.1545(a)(1). Caraballo v. Comm'r of Soc. Sec, No. 2:13-CV-07187 KM, 2015 WL 457301, at *1 (D.N.J. Feb. 3, 2015). Decide whether, based on her RFC, the claimant can return to her prior occupation. 20 C.F.R. § 1520(a) (4)(iv); Id. §§ 404.1520(e)-(f), 416.920(e)-(f). If not, move to step five.
Step 5: At this point, the burden shifts to the Social Security Administration to demonstrate that the claimant, considering her age, education, work experience, and RFC, is capable of performing jobs that exist in significant numbers in the national economy. 20 CFR §§ 404.1520(g), 416.920(g); see Poulos v. Comm'r of Soc. Sec, 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be denied; if not, they will be awarded.

         For the purpose of this appeal, the Court conducts a plenary review of the legal issues. See Schaudeck v. Comm'r of Soc. Sec, 181 F.3d 429, 431 (3d Cir. 1999). The factual findings of the ALJ are reviewed "only to determine whether the administrative record contains substantial evidence supporting the findings." Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Substantial evidence is "less than a preponderance of the evidence but more than a mere scintilla." Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. When substantial evidence exists to support the ALJ's factual findings, this Court must abide by the ALJ's determinations. See Id. (citing 42 U.S.C. § 405(g)).

         This Court may, under 42 U.S.C. § 405(g), affirm, modify, or reverse the Commissioner's decision, or it may remand the matter to the Commissioner for a rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm'r of Soc. Sec, 235 F.App'x 853, 865-66 (3d Cir. 2007) (not precedential). Outright reversal with an award of benefits is appropriate only when a fully developed administrative record contains substantial evidence that the claimant is disabled and entitled to benefits. Podedworny, 745 F.2d at 221-222; Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000).

         Remand is proper if the record is incomplete, or if there is a lack of substantial evidence to support a definitive finding on one or more steps of the five step inquiry. See Podedworny, 745 F.2d at 221-22. Remand is also proper if the ALJ's decision lacks adequate reasoning or support for its conclusions, or if it contains illogical or contradictory findings. See Burnett v. Comm'r of Soc. Sec, 220 F.3d 112, 119-20 (3d Cir. 2000); Leech v. Barnhart, 111 F.App'x 652, 658 (3d Cir. 2004) ("We will not accept the ALJ's conclusion that Leech was not disabled during the relevant period, where his decision contains significant contradictions and is therefore unreliable.") (not precedential). It is also proper to remand where 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. Adomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).

         B. The ALJ's Decision

         ALJ Feuer undertook the five-step inquiry. His conclusions are summarized as follows:

         Step 1

         Although Kovach attempted to work after the alleged onset of disability, that work was an unsuccessful work attempt because Kovach was terminated after approximately two months. Therefore, the ALJ found that Kovach had not engaged in substantial gainful activity from the alleged onset date of June 12, 2010, through the date of her hearing-March 19, 2014. (see R 17, 22)

         Step 2

         Kovach had the following severe impairments: Somatoform disorder, spine disorder and depression. (R 17) Kovach had additional impairments as well, but these were determined to be non-severe, based on medical evidence or a lack thereof, as follows: (1) a heart condition, based on diagnostic evidence of normal coronary arteries and left ventricular functions; (2) fibromyalgia, for which the ALJ stated that no supporting medical records existed; and (3) a seizure disorder, marked by an isolated seizure episode controlled by medication. [Id. 18).

         The ALJ also acknowledged medical records from Kovach's inpatient and emergency room treatment during the July 2009 through June 2011 period for various illnesses not related to Kovach's disability claim, including a hospitalization for pneumonia and chest pain syndrome. [Id.)

         Step 3

         With respect to Kovach's severe impairments, Kovach did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R 18). ALJ Feuer paid particular attention to medical listings 1.00 (Musculoskeletal System) and 12.00 (Mental disorders).

         First, ALJ Feuer declined to find that Kovach's impairments met the criteria for medical listing 1.04 (Disorders of the spine) due to lack of evidence supporting the listing's requirement of "spinal stenosis, nerve root or spinal cord compression . . . with sensory or reflect loss, spinal arachnoiditis or pseudoclaudication . . . "[2] (Id.)

         Second, ALJ Feuer declined to find that Kovach's mental impairment was severe enough to meet the criteria of medical listings 12.04 and 12.07 because the "paragraph B" criteria were not satisfied-that is, Kovach's "mental impairment does not cause at least two 'marked' limitations or one 'marked' limitation and 'repeated' episodes of decompensation, each of extended duration." (Id. (quoting medical listing 12.00))[3] In particular, he found that Kovach had only moderate restriction in daily living activities. The record showed that Kovach reported difficulty lifting her legs while dressing, an inability to stand in the shower, and an ability to fix only quick meals. (Id. 19) Additionally, the ALJ found that Kovach had only mild difficulties with social functioning, as Kovach reported maintaining a close relationship with her mother and sisters and attending activities with her children. (Id.) Further, the ALJ found only moderate difficulties with Kovach's concentration, persistence, or pace: Kovach claims she is unable to focus and concentrate, but a consultative examiner's notes reported Kovach's ability to perform simple mathematical activity. (Id.) Finally, the ALJ noted that Kovach has had no episodes of decompensation, although Kovach reported that she does not handle stress or changes to routine well. (Id.)

         ALJ Feuer noted that, when formulating Kovach's RFC assessment in the next stage of the analysis, he considered the degree of limitation he found in Kovach's mental function analysis with respect to the "paragraph B" criteria. (Id.)

         RFC and Step 4 - Ability to Perform Past Work

         Next, ALJ Feuer defined Kovach's RFC:

[T]he claimant has the residual functional capacity to perform less than a full range of sedentary work. The claimant can occasionally lift 10 pounds, frequently lift 5 pounds, stand and/or walk 2 hours in an 8 hour work-day, sit less than 6 hours in an 8 hour work-day. The claimant can never climb ladders, but can occasionally climb ramps and stairs, kneel, stoop, crouch, and crawl and must avoid dangerous machinery and unprotected heights and is limited to simple, routine and repetitive tasks.

(R 19).[4]

         ALJ Feuer began his RFC analysis by explaining that he followed a two-step process in which he first determined whether Kovach had an underlying medically determinable physical or mental impairment "that can be shown by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be expected to produce [Kovach's] pain or other symptoms." (R 20) He then explained that in the second step, he "must evaluate the intensity, persistence, and limiting effects of [Kovach's] symptoms to determine the extent to which they limit [her] functioning." (Id.) To do this, he explained, he was required to look to objective medical evidence, or to the entire case record where objective medical evidence does not substantiate Kovach's statements about "the intensity, persistence, or functionally limiting effects of pain or other symptoms." (Id.)

         ALJ Feuer next presented his conclusion that, although he found Kovach to suffer from medically determinable impairments "reasonably expected to cause [her] alleged symptoms[, ] ... [he found her] statements concerning the intensity, persistence and limiting effects of these symptoms [] not entirely credible . . . ." (Id.) He then explained how he arrived at this conclusion.

         ALJ Feuer first credited the report of Dr. Potashnik, an orthopedic consultative examiner who "could not discern any organic basis for claimant's multiple complaints, " and two psychological consultative examiners who "suggest[ed] the need for ...

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