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Davis v. Commissioner of Social Security

United States District Court, D. New Jersey

February 5, 2019

ANDRE DAVIS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION

          STANLEY R. CHESLER, U.S.D.J.

         This matter comes before the Court on the appeal by Plaintiff Andre Davis (“Plaintiff”) of the final decision of the Commissioner of Social Security (“Commissioner”) determining that he was not disabled under the Social Security Act (the “Act”). This Court exercises jurisdiction pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of the parties without oral argument, pursuant to L. Civ. R. 9.1(b), finds that the Commissioner's decision will be affirmed.

         In brief, this appeal arises from Plaintiff's application for disability insurance and supplemental security income benefits, alleging disability beginning November 13, 2013. A hearing was held before ALJ Theresa Merrill (the “ALJ”) on May 10, 2016, and the ALJ issued an unfavorable decision on June 21, 2016. Plaintiff sought review of the decision from the Appeals Council. After the Appeals Council denied Plaintiff's request for review, the ALJ's decision became the Commissioner's final decision, and Plaintiff filed this appeal.

         In the decision of June 21, 2016, the ALJ found that, at step three, Plaintiff did not meet or equal any of the Listings. At step four, the ALJ found that Plaintiff retained the residual functional capacity to perform sedentary work, with certain limitations. At step four, the ALJ also found that this residual functional capacity was not sufficient to allow Plaintiff to perform any of his past relevant work. At step five, the ALJ determined, based on the testimony of a vocational expert, that there are other jobs existing in significant numbers in the national economy which the claimant can perform, consistent with his medical impairments, age, education, past work experience, and residual functional capacity. The ALJ concluded that Plaintiff had not been disabled within the meaning of the Act.

         Plaintiff argues that the Commissioner's decision should be reversed and the case remanded on three grounds: 1) the Commissioner erred at step three, because Plaintiff's combination of impairments is equivalent to Listing 1.04A; 2) the ALJ made several errors in the residual functional capacity determination at step four; and 3) the hypothetical presented to the vocational expert at step five did not include all limitations, and the vocational expert presented false testimony.

         Plaintiff's case on appeal suffers from two principal defects: 1) its failure to deal with the issue of the burden of proof at the first four steps of the sequential evaluation process; and 2) its failure to deal with the harmless error doctrine. As to the burden of proof, Plaintiff bears the burden in the first four steps of the analysis of demonstrating how his impairments, whether individually or in combination, amount to a qualifying disability. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

         As to the harmless error doctrine, the Supreme Court explained its operation in a similar procedural context in Shinseki v. Sanders, 556 U.S. 396, 409 (2009), which concerned review of a governmental agency determination. The Court stated: “the burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Id. In such a case, “the claimant has the ‘burden' of showing that an error was harmful.” Id. at 410.

         Plaintiff thus bears the burden, on appeal, of showing not merely that the Commissioner erred, but also that the error was harmful. At the first four steps, this requires that Plaintiff also show that, but for the error, he might have proven his disability. In other words, when appealing a decision at the first four steps, if Plaintiff cannot articulate the basis for a decision in his favor, based on the existing record, he is quite unlikely to show that an error was harmful.

         Plaintiff first argues that the Commissioner erred at step three, and that Plaintiff's combination of impairments is equivalent to Listing 1.04A. At step three, the ALJ stated:

In evaluating the claimant's physical impairments, the undersigned has considered medical listings 1.04. However, the medical evidence does not adequately establish the motor loss and sensory or reflex loss required by listing 1.04. Thus, the medical evidence or record does not show conditions of the nature, severity or duration contemplated by listings 1.04.

(Tr. 19.) Plaintiff argues: “But the medical evidence undoubtedly, plainly, forthrightly and unmistakably documents sensory loss and motor loss from both treating sources and the Commissioner's own consulting examiner.” (Pl.'s Br. 23.) The problem for Plaintiff is that the brief fails to support this claim with evidence of record. Plaintiff claims that the medical evidence unmistakably documents sensory loss and motor loss, but the brief does not point to specific evidence, with page numbers, that would permit this Court to evaluate Plaintiff's argument. What follows, instead, is a long list of medical findings without any citation to the record, nor even any references to the medical professionals who are presumably the sources for the findings. The Court cannot speculate as to whether the record contains the evidence on which Plaintiff relies. On this matter, it heeds the guidance of the Third Circuit, which has stated:

It has been oft-noted that “Judges are not like pigs, hunting for truffles buried in the record.” And this Court has frequently instructed parties that they bear the responsibility to comb the record and point the Court to the facts that support their arguments.

United States v. Claxton, 766 F.3d 280, 307, 61 V.I. 715 (3d Cir. 2014) (citations omitted).

         Plaintiff has failed to follow the Third Circuit's clear instructions. This Court finds no basis to conclude that ...


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