United States District Court, D. New Jersey
GLEN G. LOPEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MADELINE COX ARLEO UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiff Glen
Lopez's (“Plaintiff”) request for review,
pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g) of
Administrative Law Judge Michal L. Lissek's (the
“ALJ”) decision regarding Plaintiff's
application for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) Benefits (collectively,
“Disability Benefits”). For the reasons set forth
in this Opinion, the Commissioner of Social Security's
(the “Commissioner”) decision is REVERSED and
this case is REMANDED to the Commissioner for further
of Review and Applicable Law
Standard of Review This Court has jurisdiction to
review the Commissioner's decision under 42 U.S.C. §
405(g). The Commissioner's application of legal precepts
is subject to plenary review, Markle v. Barnhart,
324 F.3d 182, 187 (3d Cir. 2003), but her factual findings
must be affirmed if they are supported by substantial
evidence. Id. Substantial evidence is “such
relevant evidence as a reasonable mind might accept as
adequate.” Ventura v. Shalala, 55 F.3d 900,
901 (3d Cir. 1995) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). Stated differently, substantial
evidence consists of “more than a mere scintilla of
evidence but may be less than a preponderance.”
McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360
(3d Cir. 2004).
substantial evidence standard is a deferential standard of
review.” Jones v. Barnhart, 364 F.3d 501, 503
(3d Cir. 2004). Accordingly, the standard places a
significant limit on the district court's scope of
review: it prohibits the reviewing court from
“weigh[ing] the evidence or substitut[ing] its
conclusions for those of the fact-finder.” Williams
v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Therefore, even if this Court would have decided the matter
differently, it is bound by the ALJ's findings of fact so
long as they are supported by substantial evidence.
Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 292
(3d Cir. 2012) (quoting Fargnoli v. Massanari, 247
F.3d 34, 35 (3d Cir. 2001)).
determining whether there is substantial evidence to support
the Commissioner's decision, the Court must consider:
“(1) the objective medical facts; (2) the diagnoses of
expert opinions of treating and examining physicians on
subsidiary questions of fact; (3) subjective evidence of pain
testified to by the Plaintiff and corroborated by family and
neighbors; and (4) the Plaintiff's educational
background, work history, and present age.” Holley
v. Colvin, 975 F.Supp.2d 467, 475 (D.N.J. 2013),
aff'd 590 Fed.Appx. 167 (3d Cir. 2014).
The Five-Step Disability Test
the Social Security Act (“the Act”), disability
is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or has lasted or can be expected
to last for a continuous period of not less than 12
months.” 42 U.S.C. § 416(i)(1). Pursuant to her
authority under the Act, the Commissioner of Social Security
(the “Commissioner”) has promulgated extensive
regulations governing claims for DIB and SSI. In claims for
both DIB and SSI, the Commissioner applies a five-step test
to determine whether a claimant is disabled within the
meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4);
§ 416.920(a)(4). If at any stage of the five-step procedure
the Commissioner determines “that the claimant is or is
not disabled, ” the analysis ends and “does not
proceed to the next step.” Wilford v. Colvin,
No. 16-02391, 2017 WL 498719, at *4 (D.N.J. Feb. 7, 2017).
The plaintiff bears the burden of proof for the first four
steps, but the burden of production shifts to the
Commissioner at the fifth step.
one, the Commissioner must determine whether the claimant is
currently engaged in “substantial gainful
activity.” 20 C.F.R. §§ 404.1520(a)(4)(i);
416.920(a)(4)(i). “Substantial gainful activity”
is work activity involving physical or mental activities that
are “usually done for pay or profit, whether or not a
profit is realized.” 20 C.F.R. §§ 404.1572;
claimant is not engaged in substantial gainful activity, the
analysis proceeds to step two. At step two, the Commissioner
must determine whether the plaintiff's claimed impairment
or combination of impairments are “severe” within
the meaning of the Act. 20 C.F.R. § 404.1520(a)(4)(ii).
The regulations provide that a severe impairment is one that
“significantly limits [the claimant's] physical or
mental ability to do basic work activities.” 20 C.F.R.
§ 404.1520(c). In determining whether a adult
plaintiff's psychological impairments are “severe,
” the Commissioner must apply the “special
technique” or “Psychiatric Review
Technique” mandated by 20 C.F.R. §§ 404.1520a
(2011); 416.920a (2011). Under this technique, if the
plaintiff's pertinent symptoms, signs and laboratory
findings suggest that the plaintiff has a medically
determinable mental impairment, the Commissioner must then
evaluate the degree of functional limitation arising from the
mental impairment. Id. This technique is a
“complex and highly individualized process” that
includes ratings in four broad areas: Activities of daily
living; social functioning; concentration, persistence, or
pace; and episodes of decompensation. 20 C.F.R. §§
404.1520a(c)(3) (2011); 416.920a(c)(3) (2011). Generally, a
plaintiff must show that they have more than
“mild” limitations in order to demonstrate the
presence of a severe mental impairment. 20 C.F.R.
§§ 404.1520a(d)(1) (2011); 416.920a(d)(1) (2011).
three, the Commissioner must determine whether the
plaintiff's severe impairments meet or medically equal
one of the impairments in the Listings. See
generally, 20 C.F.R. § Pt. 404, Subpt. P, App. 1
(listing impairments). If the plaintiff's impairments
meet the criteria of a listed impairment, “she is
considered per se disabled.” Rutherford v.
Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
proceeding to step four, the Commissioner must evaluate the
plaintiff's residual functional capacity
(“RFC”). 20 C.F.R. §§
404.1520(a)(4)(iv); 416.920(a)(4)(iv). A plaintiff's RFC
“is the most [the plaintiff] can still do despite
[their] limitations.” 20 C.F.R. §§
404.1545(a)(1); 416.945(a)(1). In considering the
plaintiff's RFC, the Commissioner must consider
“all medically determinable impairments of which [she]
is aware, including [plaintiff's] medically determinable
impairments that are not ‘severe.'” 20 C.F.R.
§§ 404.1545(a)(2); 416.945(a)(2).
four, the Commissioner must determine whether the plaintiff
can perform his past relevant work given his RFC. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
Jones, 364 F.3d at 503. If the plaintiff is unable
to perform his past relevant work, at step five, the
Commissioner must determine “whether work exists in
significant numbers in the national economy that the
[plaintiff] can perform given his medical impairments, age,
education, past work experience” and RFC.
Jones, 364 F.3d at 503; 20 C.F.R. §§
alleged that he became disabled on March 11, 2012.
Administrative Transcript, (“Tr.”) ECF No. 9,
172, 176. His claims were initially disapproved on July 17,
2012. Tr. 108-17. Plaintiff requested that the Agency
reconsider his claims, and on November 15, 2012, the Agency
again denied his claims. Tr. 118-23.
November 21, 2012, Plaintiff requested that an Administrative
Law Judge review his claims. Tr. 124. Plaintiff appeared at a
hearing before ALJ Michal L. Lissek on October 13, 2013, in
Newark, New Jersey. Tr. 32-52. Plaintiff was represented by
counsel at the hearing. Tr. 32. At this hearing, Plaintiff
amended the onset date of his disability to coincide with the
date he was last insured for DIB, December 31, 2010. Tr. 51.
On November 27, 2013, the ALJ sent a series of
interrogatories to a vocational expert (“VE”)
Patricia Sasona. Tr. 252-59. The VE responded on November 6,
2013. Tr. 261-69. Plaintiff responded to the interrogatories
by letter dated December 24, 2013. Tr. 282-83. On February 7,
2014, the ALJ issue his decision, concluding that Plaintiff
was not disabled within the meaning of the Act. Tr. 13-26.
March 25, 2014, Plaintiff requested that the Appeals Council
review the ALJ's decision. Tr. 12. The Appeals Council
denied Plaintiff's request for review on April 16, 2015,
Tr. 1-6. This Action followed: ...