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Lopez v. Berryhill

United States District Court, D. New Jersey

April 30, 2019

GLEN G. LOPEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         THIS 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 proceedings.


         Standard of Review and Applicable Law

         A. 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).

         “[T]he 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)).

         In 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).

         B. The Five-Step Disability Test

         Under 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).[1] 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.

         At 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; 416.972.

         If the 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).

         At step 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).

         Before 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).

         At step 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. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v).

         II. Background

         A. Procedural History

         Plaintiff 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.

         On 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.

         On 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: ...

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