United States District Court, D. New Jersey
MCNULTY, UNITED STATES DISTRICT JUDGE
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
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,
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.)
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").
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)
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
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).
The Five-Step Process and This Court's Standard of
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: 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
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.
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).
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
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
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).
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).
The ALJ's Decision
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.
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)
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)
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)
Judge Olarsch did not proceed to step 5, but found that Ms.
Pergentile was "not disabled" under the Social
Security Act. (R. 20).
Analysis of Ms. Pergentile's Appeal
Pergentile challenges the ALJ's decision on
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)
The ALJ's Evaluation of Impairments
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)
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 ...