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Pergentile v. Berryhill

United States District Court, D. New Jersey

November 1, 2018

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



         Ms. Kathleen Pergentile brings this action pursuant to 45 U.S.C. 405(g) and 1383(c)(3) to review a final decision of the Commissioner of Social Security ("Commissioner") denying her claims to Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. For the reasons set forth below, the decision of the Administrative Law Judge fALJ") is reversed and remanded for a step 5 determination.

         I. BACKGROUND[1]

         Ms. Pergentile seeks to reverse a decision that she did not meet the Social Security Act's definition of disability. Ms. Pergentile originally applied for DIB on July 8, 2011. (R. 233). The claim was denied initially on November 30, 2011, and upon reconsideration on February 15, 2012. (R. 36, 142-44).

         An initial hearing was held before an ALJ on March 28, 2013. (Transcript at R. 70). On May 20, 2013, the ALJ rendered a decision denying benefits. (R. 117) On October 24, 2013, the Appeals Council vacated that decision and remanded for further consideration. (R. 131 et seq.) On remand, the ALJ was directed to clarify the alleged onset date; take additional medical evidence; consider past relevant work; and, if necessary, proceed to Step 5 and obtain evidence from a vocational expert. [Id.)

         On remand, a second hearing was held before the ALJ on February 20, 2014. (Transcript at R. 26-69) At the hearing, Ms. Pergentile was represented by counsel. The ALJ heard testimony from Ms. Pergentile and from Mary D. Anderson, a vocational expert ("VE").

         On May 12, 2014, the ALJ rendered the written decision denying benefits that is the subject of this appeal. (R. 12-20) On January 16, 2016, the Appeals Council denied Ms. Pergentile's request for review of the ALJ's decision, rendering it the final decision of the Commissioner. (R. 1)

         Ms. Pergentile appealed to this Court, asserting that the ALJ erred in finding that she was not disabled from an amended onset date of June 23, 2009, through the date of the ALJ's decision. The case was transferred to me on October 15, 2018.


         To qualify for DIB (or Supplemental Security Income), a claimant must meet income and resource limitations and 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), 1382, 1382c(a)(3)(A), (B); 20 C.F.R. § 416.905(a); see Rlig v. Comm'r Soc. Sec, 570 Fed.Appx. 262, 264 (3d Cir. 2014); Diaz v. Comm'r of Soc. Sec, 577 F.3d 500, 503 (3d Cir. 2009).

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

         Under the authority of the Social Security Act, the Social Security Administration 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 One: 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 Two: 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 Three: 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. m 404.1520(d), 416.920(d).
Step Four: Determine whether, despite any severe impairment, the claimant retains the Residual Functional Capacity ("RFC") to perform past relevant work. Id. §§ 404.1520(e)-(0, 416.920(e)-(f). If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner 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 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. Barnhart, 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, 777 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, Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks and citations 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, 777 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), affirm, modify, or reverse the Commissioner's decision, or it may remand the matter to the Commissioner for a rehearing. Podedwomy v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm'r of Soc. Sec, 235 Fed.Appx. 853, 865-66 (3d Cir. 2007).

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

         B. The ALJ's Decision

         ALJ Leonard Olarsch followed the five-step process in determining that Ms. Pergentile was not disabled from June 23, 2009 (the amended onset date) to February 20, 2014 (the date of her hearing). His findings may be summarized as follows:

Step One: At step one, Judge Olarsch determined that Ms. Pergentile had not engaged in substantial gainful activity since June 23, 2009, the amended onset date. (R. 14).
Step Two: At step two, the ALJ determined that Ms. Pergentile had the following severe impairments: diabetes mellitus, hypertension, cervical spine disc disorder, right shoulder impairment, status-post hysterectomy due to endometrial cancer and obesity. (R. 14).
Step Three: At step three, the ALJ found that Ms. Pergentile did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1 (R. 15).
Step Four: At step four, the ALJ considered "the entire record," including evidence received in connection with both the first hearing and the second hearing on remand. The ALJ found that Ms. Pergentile had "the following residual functional capacity ["RFC"] to perform sedentary work as defined in 20 CFR 404.1567(a) except that she is limited to frequent fine fingering and gross handling; and occasional raising of right arm above shoulder." (R. 16)

         The ALJ found that Ms. Pergentile's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in tiiis decision." (R. 16)

         The AUJ determined that Ms. Pergentile was "capable of performing past relevant work as a day care center director. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565)." (R. 18-19)

         Therefore, Judge Olarsch did not proceed to step 5, but found that Ms. Pergentile was "not disabled" under the Social Security Act. (R. 20).

         C. Analysis of Ms. Pergentile's Appeal

         Ms. Pergentile challenges the ALJ's decision on several grounds.

         At step three, Ms. Pergentile contends, the ALJ erred in finding that her impairments in combination were not equivalent to a listed impairment. She combines that analysis with her challenge to the ALJ's ruling at step four that her impairments, in combination, were not disabling but permitted her to perform sedentary work. (Pl. Br. 10-18) Finally, Ms. Pergentile asserts that the ALJ erred in finding that she could perform her past relevant work as a day care center operator, particularly as that job was actually performed by her. (Pl. Br. 18)

         1. The ALJ's Evaluation of Impairments

         At step three, the ALJ found that Ms. Pergentile did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1. Ms. Pergentile argues that the ALJ erred at step three because her impairments meet the requirements of diabetic neuropathy in all four extremities, citing listing 9.08 (diabetes mellitus). In addition, the ALJ allegedly failed to analyze whether her obesity, the effect of her prescription medications, and her subjective complaints were disabling. (Pl. Br. 13-16) Finally, she cites alleged errors in the ALJ's fact finding. (Pl. Br. 16-17)

         Step 3 is designed to identify easy cases, i.e., ones involving listed impairments in which a disability is so severe that it is not necessary to go any further in the analysis. See 20 C.F.R. § 416.925(a); Sullivan v. Zebley,493 U.S. 521, 528-32 (1990). The claimant's impairments, alone or in combination, must meet all of the criteria of a listing. If not, then the ALJ will perform the ...

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