United States District Court, D. New Jersey
STANLEY R. CHESLER, U.S.D.J.
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.
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.
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
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
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).
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.
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.
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
(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
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).
has failed to follow the Third Circuit's clear
instructions. This Court finds no basis to conclude that ...