United States District Court, D. New Jersey
P. HART, UNITED STATES MAGISTRATE JUDGE.
Avila Santos brought this action under 42 USC §405(g) to
obtain review of the decision of the Commissioner of Social
Security denying her claim for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). She has filed a Request for Review to
which the Commissioner has responded. As set forth below, I
will remand this matter to the Commissioner for a full
consideration of the evidence of record regarding Avila
Santos’s limitations resulting from her mental
impairments, and the taking of new evidence from a vocational
expert using hypothetical questions that address in more
detail her impairment in concentration.
Factual and Procedural Background
Santos was born on October 13, 1975. Record at 172. She
completed high school and two years of college. Record at
225. In the past, she worked as a legal assistant and as a
home health aide. Record at 39-40, 62. On October 3, 2013,
Avila Santos filed an application for DIB. Record at 172.
(Her application for SSI was filed later, on October 14,
2014; Record at 180). In her applications, Avila Santos
alleged disability since July 27, 2013, as a result of
depression, anxiety, nerve damage to her hands, and neck and
back pain due to disc herniation. Record at 224.
Santos’s applications were denied initially and upon
reconsideration. Record at 103, 109. On July 9, 2014, she
requested a hearing de novo before an Administrative
Law Judge (“ALJ”). Record at 112.
hearing took place in this case on March 22, 2016. Record at
33. On April 23, 2016, however, the ALJ denied benefits.
Record at 11. The Appeals Council denied Avila Santos’s
request for review on June 1, 2017, permitting the
ALJ’s decision to stand as the final decision of the
Commissioner. Record at 1.
role of this court on judicial review is to determine whether
the Commissioner’s decision is supported by substantial
evidence. 42 U.S.C. §405(g); Richardson v.
Perales, 402 U.S. 389 (1971); Doak v. Heckler,
790 F.2d 26, 28 (3d Cir. 1986); Newhouse v. Heckler,
753 F.2d 283, 285 (3d Cir. 1985). Substantial evidence is
relevant evidence viewed objectively as adequate to support a
decision. Richardson v. Perales, supra, at
401; Kangas v. Bowen, 823 F.2d 775 (3d Cir. 1987);
Dobrowolsky v. Califano, 606 F.2d 403 (3d Cir.
1979). Moreover, apart from the substantial evidence inquiry,
a reviewing court must also ensure that the ALJ applied the
proper legal standards. Coria v. Heckler, 750 F.2d
245 (3d Cir. 1984).
prove disability, a claimant must demonstrate that there is
some “medically determinable basis for an impairment
that prevents him from engaging in any ‘substantial
gainful activity’ for a statutory twelve-month
period.” 42 U.S.C. §423(d)(1). As explained in the
following agency regulation, each case is evaluated by the
Commissioner according to a five-step process:
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we will
find that you are not disabled. (ii) At the second step, we
consider the medical severity of your impairment(s). If you
do not have a severe medically determinable physical or
mental impairment that meets the duration requirement in
§404.1590, or a combination of impairments that is
severe and meets the duration requirement, we will find that
you are not disabled. (iii) At the third step, we also
consider the medical severity of your impairment(s). If you
have an impairment(s that meets or equals one of our listings
in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled. (iv). At the
fourth step, we consider our assessment of your residual
functional capacity and your past relevant work. If you can
still do your past relevant work, we will find that you are
not disabled. (v). At the fifth and last step, we consider
our assessment of your residual functional capacity and your
age, education and work experience to see if you can make an
adjustment to other work. If you can make an adjustment to
other work, we will find that you are not disabled. If you
cannot make an adjustment to other work, we will find that
you are disabled.
20 CFR §404.1520 (references to other regulations
The ALJ’s Decision and Avila Santos’s Request
decision, the ALJ determined that Avila Santos suffered from
the severe impairments of a back disorder, affective
disorders, and obesity. Record at 16. He found that no
impairment or combination of impairments met or medically
equaled a listed impairment. Record at 17.
concluded that Avila Santos retained the residual functional
capacity (“RFC”) to engage in light work, except
that she could lift and carry no more than 20 pounds
occasionally and ten pounds frequently; could perform only
occasional postural maneuvers, except that she could never
climb ropes, ladders or scaffolds; she could perform frequent
balancing, fingering, and head turning; she could only
occasionally raise her arms above her shoulders; and was
limited to unskilled work with only occasional interaction
with supervisors, co-workers, and the general public. Record
reliance upon the vocational expert who appeared at the
hearing, the ALJ decided that Avila Santos could not return
to her prior work, but that she could work as an addresser,
document preparer, or final assembler. Record at 26. He
concluded, therefore, that she was not disabled. Record at
Request for Review, Avila Santos argues that the ALJ wrongly
rejected not only the evidence of her treating physicians,
but of the consulting agency mental health expert. She also
argues that he wrongly assessed her testimony. Finally, Avila
Santos argues that the ALJ relied on vocational testimony in
response to inadequate hypothetical questions which did not
include all of her impairments.
The Medical Evidence
Avila-Santos’s Part-time Work
Avila Santos applied for benefits in October, 2013, she was
still working sixteen hours per week as a home health aide.
Record at 41, 59. She stopped working after a June, 2014 neck
surgery. Record at 59. She asserts that the ALJ unfairly
rejected the opinions of all medical experts solely on the
basis of her part-time work.
Santos is undoubtedly correct that the ability to do
part-time work does not automatically result in a denial of
benefits. As she has pointed out, a claimant can be denied