United States District Court, D. New Jersey
DINA L. KOVACH, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MCNULTY, UNITED STATES DISTRICT JUDGE
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
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
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)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.
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).
Five-Step Process and this Court's Standard of Review
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).
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.
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)).
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).
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).
Feuer undertook the five-step inquiry. His conclusions are
summarized as follows:
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)
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.
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.)
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).
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 . . .
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)) 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.
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"
Step 4 - Ability to Perform Past Work
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.
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.)
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.
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 ...