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Popovich v. Berryhill

United States District Court, D. New Jersey

June 27, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          KEVIN MCNULTY United States District Judge.

         Deborah Popovich brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a final decision of the Commissioner of Social Security ("Commissioner") denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434 and 1381-1385. For the reasons set forth below, the decision of the Administrative Law Judge ("ALJ") is AFFIRMED.

         I. BACKGROUND

         Ms. Popovich seeks to reverse an ALJ's finding that she was not disabled from October 1, 2010, the alleged onset date, through January 13, 2015, the date of the ALJ's decision. (R. 11-19)[1]

         Ms. Popovich completed her applications for DIB and SSI on February 21, 2103, claiming that she was disabled since October 1, 2010, as a result of atrial fibrillation, chronic heart failure, dizziness, light-headedness, numbness in her limbs, and cold sweat breakouts after long walks. (R. 11, 94, 261-68) Her application was denied initially on March 23, 2013 (R. 126, 136), and upon reconsideration on June 24, 2013 (R. 146, 156). On September 2, 2014, Popovich appeared and testified at a hearing before ALJ Michal L. Lissek. (R. 11, 58-82) Subsequently, at a supplemental hearing held on December 10, 2014, before ALJ Beth Shillin, [2] at which Popovich was represented by Walter J. Curtis, Esq., medical expert Dr. Martin Fechner and vocational expert Jackie L. Wilson testified. (R. 24-53) Following the supplemental hearing, ALJ Shillin found that Popovich was not under a "disability, " as defined in the Social Security Act. (R. 11-19) On April 8, 2016, the Appeals Council denied Popovich's request for review (R. 1-5), rendering the ALJ's decision the final decision of the Commissioner. Popovich then appealed to this Court, challenging the ALJ's determination that she was not disabled from October 1, 2010, through January 13, 2015. Popovich now appeals that decision.


         To qualify for Title II DIB benefits, a claimant must meet the insured status requirements of 42 U.S.C. § 423(c). To be eligible for Title XVI SSI benefits, a claimant must meet the income and resource limitations of 42 U.S.C. § 1382. To qualify under either statute, 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(d)(1)(A), 1382c(a)(3)(A); see, e.g., Diaz v. Comm'r of Soc. Sec, 577 F.3d 500, 503 (3d Cir. 2009).

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

         Under the authority of the Social Security Act, the Social Security Administration (the "Commissioner") has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. This Court's review necessarily incorporates a determination of whether the ALJ properly followed the five-step process 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 C.F.R. §§ 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 impairment meets or equals the criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A. (Those Part A criteria are purposely set at a high level, to identify clear cases of disability without further analysis.) If so, the claimant is automatically eligible to receive benefits; if not, move to step four. Id. §§ 404.1520(d), 416.920(d).

         Step 4: Determine whether, despite any severe impairment, the claimant retains the Residual Functional Capacity ("RFC") to perform past relevant work. 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 Commissioner to demonstrate that the claimant, considering his age, education, work experience, and RFC, is capable of performing jobs that exist in significant numbers in the national economy. 20 C.F.R. §§ 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.

         As to all legal issues, this Court conducts a plenary review. See Schaudeck v. Comm'r of Soc. Sec, 181 F.3d 429, 431 (3d Cir. 1999). As to factual findings, this Court adheres to the ALJ's findings, as long as they are supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will "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 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Zirnsak v. Colvin, 111 F.3d 607, 610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial evidence "is more than a mere scintilla but may be somewhat less than a preponderance of the evidence." Id. (internal quotation marks and citation omitted).

[I]n evaluating whether substantial evidence supports the ALJ's findings . . . leniency should be shown in establishing the claimant's disability, and . . . the Secretary's responsibility to rebut it should be strictly construed. Due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.

Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and quotations omitted). When there is substantial evidence to support the ALJ's factual findings, however, this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g)); Zirnsak, 111 F.3d at 610-11 ("[W]e are mindful that we must not substitute our own judgment for that of the fact finder.").

         This Court may, under 42 U.S.C. §§ 405(g) and 1383(c)(3), 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).

         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). 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. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).

         B. The ALJ's Decision

         ALJ Shillin (the "ALJ") properly followed the five-step process in determining that Popovich was not disabled for the period from October 1, 2010, through January 13, 2015. Her findings may be summarized as follows.

         Step 1 At step one, the ALJ determined that Popovich had not engaged in substantial gainful activity in the relevant period. (R. 13 ¶ 2)

         Step 2 At step two, the ALJ found that Popovich had the following severe impairments: "heart failure, arrhythmias, pulmonary vascular congestion, atrial fibrillation, obesity, hypertension, cardiomyopathy, and tingling in hands and fingers." (R. 13 ¶ 3)

         Step 3 At step three, the ALJ determined that, through January 13, 2015, Popovich's impairment or combinations of impairments did not meet or medically equal the severity of one of the listed impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1. (R. 14 ¶ 4)

         Step 4 - RFC /Ability to Perform Past Work At step four, "[a]fter careful consideration of the entire record, " the ALJ found that, through the date last insured, Popovich had "the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant: is precluded from climbing ladders and scaffolds, is precluded from exposure to moving machinery, and must have reasonable access to restroom breaks." (R. 14 ¶ 5) The ALJ found that the specific demands of Popovich's past relevant work as an executive assistant at a painting company exceed her RFC. However, Popovich retained the ability to meet the demands of past relevant work as an administrative assistant as generally performed in the national economy. (R. 17 ¶ 6)

         Step 5 At step five, the ALJ considered Popovich's age, education, work experience, and residual functional capacity, as well as the Medical-Vocational Guidelines, and determined that Popovich is able to perform other jobs existing in significant numbers in the national economy. (R. 17-18 ¶ 6) Relying on the testimony of a vocational expert ("VE"), Jackie L. Wilson, the ALJ identified several representative unskilled, light jobs that Popovich could perform despite her limitations: (1) inspector and hand packager (Dictionary of Occupational Titles ("DOT") # 559.687-074); (2) photocopy machine operator (DOT # 207.685-014); and (3) sealing and canceling machine operator (DOT # 208.685-026). According to the VE, collectively, more than 200, 000 such jobs exist nationally. (R. 18 ¶ 6) The ALJ noted that there would be other work in the national economy that Popovich could perform even if a limitation for only occasional fingering and handling were added to Popovich's RFC. (Id.)

         Accordingly, ALJ Shillin concluded that Popovich was not under a disability, as defined in the Social Security Act, from October 1, 2010, through January 13, 2015. (R. 19 ¶ 7)

         C. Analysis of Popovich's Appeal

         Ms. Popovich challenges ALJ Shillin's determination that she was not disabled during the relevant period, arguing that the ALJ committed errors at steps three and four. In addition, Popovich alleges several procedural irregularities. At step three ALJ Shillin purportedly did not herself consider, or ask the medical expert, whether Popovich's eight severe impairments in combination were the medical equivalent of a listed impairment. (PI. Br. 15-16) At step four, Popovich contends that the ALJ did not properly support her RFC determination. Popovich argues that the RFC determination is contradicted by Popovich's testimony, her excellent work record, and the opinion of her treating cardiologist. (PI. Br. 13) Also at step four, Popovich contends, the ALJ improperly accepted the allegedly incomplete and conclusory RFC opinion of medical expert Dr. Fechner. (PI. Br. 15)

         Popovich also argues that her case was subjected to several procedural irregularities. ALJ Shillin issued the decision in Popovich's case even though it was ALJ Lissek who heard Popovich testify about her subjective complaints. Popovich calls this a "decision by committee" and argues that the substitution did not conform to the guidelines in HALLEX 1-2-840. Similarly, the medical expert never heard Popovich testify, and "was not given any synopsis or particulars of that testimony. This was in contradiction to HALLEX 1-2-539, which instructs the ALJ to summarize the opening ...

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