UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

NEREIDA A.,1

Plaintiff, Case No. 2:21-cv-15448 v. Magistrate Judge Norah McCann King

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant.

OPINION AND ORDER

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended,

(g), regarding the applications of Plaintiff Nereida A. for Disability Insurance Benefits under Title II of the Social Security Act,

et seq., and for Supplemental Security Income under Title XVI of the Social Security Act,

et seq. Plaintiff appeals from the final decision of the Commissioner of Social Security denying those applications.2 After careful consideration of the entire record, including the entire administrative record, the Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court the Court reverses the Commissioner’s decision and remands the matter for further proceedings.

1 The Committee on Court Administration and Case Management of the Judicial Conference of the United States has recommended that, due to significant privacy concerns in social security cases, federal courts should refer to plaintiffs in such cases by only their first names and last initials. See also D.N.J. Standing Order 2021-10. 2 Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her official capacity. See Fed. R. Civ. P. 25(d). 1 I. PROCEDURAL HISTORY On December 2, 2019, Plaintiff protectively filed an application for disability insurance benefits; she also filed an application for supplemental security income on December 4, 2019. R. 101, 109, 117–18, 223–39. In both applications, she alleged disability beginning October 1,

2019.

The applications were denied initially and upon reconsideration. R. 134–43, 151–58. Plaintiff sought a de novo hearing before an administrative law judge (“ALJ”). R. 159–60. ALJ Hilton Miller held a hearing on March 4, 2021, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. R. 37–56. In a decision dated March 30, 2021, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act from October 1, 2019, Plaintiff’s alleged disability onset date, through the date of that decision. R. 22–32. That decision became the final decision of the Commissioner of Social Security when the Appeals Council declined review on June 22, 2021. R. 1–9. Plaintiff timely filed this appeal pursuant to

(g). ECF No. 1. On January 6, 2022, Plaintiff consented to disposition of the matter by a United States Magistrate Judge pursuant to

(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF No. 10.3 On February 3, 2022, the case

was reassigned to the undersigned. ECF No. 13. The matter is ripe for disposition. II. LEGAL STANDARD A. Standard of Review In reviewing applications for Social Security disability benefits, this Court has the authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel,

(3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to

3The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot Project (D.N.J. Apr. 2, 2018). 2 determine if they are supported by substantial evidence. Sykes v. Apfel,

(3d Cir. 2000); see also

(g), 1383(c)(3). The United States Supreme Court has explained this standard as follows: Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains sufficien[t] evidence to support the agency’s factual determinations. And whatever the meaning of substantial in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is more than a mere scintilla. It means – and means only – such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

Biestek v. Berryhill,

(2019) (internal citations and quotation marks omitted); see also Pierce v. Underwood,

(1988) (citation and internal quotations omitted); Bailey v. Comm’r of Soc. Sec.,

, 616 (3d Cir. 2009) (citations and quotations omitted); K.K. ex rel. K.S. v. Comm’r of Soc. Sec., No. 17-2309,

, at *4 (D.N.J. Mar. 27, 2018). The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot be set aside merely because the Court “acting de novo might have reached a different conclusion.” Hunter Douglas, Inc. v. NLRB,

(3d Cir. 1986); see, e.g., Fargnoli v. Massanari,

(3d Cir. 2001) (“Where the ALJ’s findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently.”) (citing Hartranft v. Apfel,

(3d Cir. 1999)); K.K.,

, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan,

(3d Cir. 1992)). Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic or self-executing formula for adjudication.” Kent v. Schweiker,

(3d Cir. 1983) 3 (“The search for substantial evidence is thus a qualitative exercise without which our review of social security disability cases ceases to be merely deferential and becomes instead a sham.”); see Coleman v. Comm’r of Soc. Sec., No. 15-6484,

, at *3 (D.N.J. Aug. 9, 2016). The Court has a duty to “review the evidence in its totality” and “take into account

whatever in the record fairly detracts from its weight.” K.K.,

, at *4 (quoting Schonewolf v. Callahan,

(D.N.J. 1997) (citations and quotations omitted)); see Cotter v. Harris,

(3d Cir. 1981) (stating that substantial evidence exists only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or “ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of Health & Human Servs.,

(3d Cir. 1983) (citing Kent,

); see K.K.,

, at *4. The ALJ’s decision thus must be set aside if it “did not take into account the entire record or failed to resolve an evidentiary conflict.” Schonewolf,

-85 (citing Gober v. Matthews,

(3d Cir. 1978)).

Although an ALJ is not required “to use particular language or adhere to a particular format in conducting [the] analysis,” the decision must contain “sufficient development of the record and explanation of findings to permit meaningful review.” Jones v. Barnhart,

(3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec.,

(3d Cir. 2000)); see K.K.,

, at *4. The Court “need[s] from the ALJ not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected.” Cotter,

; see Burnett,

(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing

4 Plummer v. Apfel,

(3d. Cir. 1999)). “[T]he ALJ is not required to supply a comprehensive explanation for the rejection of evidence; in most cases, a sentence or short paragraph would probably suffice.” Cotter v. Harris,

(3d Cir. 1981). Absent such articulation, the Court “cannot tell if significant probative evidence was not credited or

simply ignored.” Id. at 705. As the Third Circuit explains: Unless the [ALJ] has analyzed all evidence and has sufficiently explained the weight [s/]he has given to obviously probative exhibits, to say that [the] decision is supported by substantial evidence approaches an abdication of the court’s duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.

Gober,

; see Schonewolf,

. Following review of the entire record on appeal from a denial of benefits, a Court can enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.”

(g). Remand is appropriate if the record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or contradictory findings. See Burnett,

; Podedworny v. Harris,

(3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the record. Adorno v. Shalala,

(3d Cir. 1994) (internal quotation marks omitted); see A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award benefits should be made only when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny,

(citation and quotation omitted); see A.B., 166 F. Supp.3d at 518.

5 B. Sequential Evaluation Process The Social Security Act establishes a five-step sequential evaluation process for determining whether a plaintiff is disabled within the meaning of the statute.

(a)(4), 416.920(a)(4). “The claimant bears the burden of proof at steps one through

four, and the Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec.,

(3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec.,

(3d Cir. 2007)). At step one, the ALJ determines whether the plaintiff is currently engaged in substantial gainful activity.

(b), 416.920(b). If so, then the inquiry ends because the plaintiff is not disabled. At step two, the ALJ decides whether the plaintiff has a “severe impairment” or combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability to do basic work activities[.]”

(c), 416.920(c). If the plaintiff does not have a severe impairment or combination of impairments, then the inquiry ends because the

plaintiff is not disabled. Otherwise, the ALJ proceeds to step three. At step three, the ALJ decides whether the plaintiff’s impairment or combination of impairments “meets” or “medically equals” the severity of an impairment in the Listing of Impairments (“Listing”) found at

, Subpart P, Appendix 1.

(d), 416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination of impairments has lasted or is expected to last for a continuous period of at least 12 months.

at §§ 404.1509, 416.909. Otherwise, the ALJ proceeds to step four. At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”) and determine whether the plaintiff can perform past relevant work.

(e),

6 (f), 416.920(e), (f). If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not disabled. Otherwise, the ALJ proceeds to the final step. At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC, age, education, and work experience, can perform other jobs that exist in significant numbers in

the national economy.

(g), 416.920(g). If the ALJ determines that the plaintiff can do so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the impairment or combination of impairments has lasted or is expected to last for a continuous period of at least twelve months. III. ALJ DECISION AND APPELLATE ISSUES Plaintiff was 57 years old on her alleged disability onset date. R. 30. Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2023. R. 24. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity between October 1, 2019, her alleged disability onset date, and the date of the decision.

At step two, the ALJ found that Plaintiff’s degenerative disc disease with radiculopathy,

depressive disorder, and anxiety disorder were severe impairments.

The ALJ also found that Plaintiff’s alleged hypertension, headaches, and visual disturbances were not severe. R. 25. At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of impairments that met or medically equaled the severity of any Listing. R. 25–26. At step four and relying on the testimony of the vocational expert, the ALJ found that Plaintiff had the RFC to perform medium work subject to various additional limitations. R. 26– 31. The ALJ also found that this RFC permitted the performance of Plaintiff’s past relevant work as a cleaner, housekeeper (medium exertion); dishwasher/kitchen helper (medium exertion); and dining room attendant (medium exertion). R. 30.

7 In the alternative, the ALJ also found that a significant number of jobs (all requiring medium exertion)—e.g., jobs as a hand packager, a cleaner II, and a laundry worker—existed in the national economy and could be performed by Plaintiff. R. 30–31. The ALJ therefore concluded that Plaintiff was not disabled within the meaning of the Social Security Act from

October 1, 2019, her alleged onset date, through the date of the decision. R. 31–32. Plaintiff disagrees with the ALJ’s findings at step four and asks that the decision of the Commissioner be reversed and remanded for further proceedings. Plaintiff’s Brief, ECF No. 16; Plaintiff’s Reply Brief, ECF No. 19.4 The Acting Commissioner takes the position that her decision should be affirmed in its entirety because the ALJ’s decision correctly applied the governing legal standards, reflected consideration of the entire record, and was supported by sufficient explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 18. IV. DISCUSSION

Plaintiff argues, inter alia, that the ALJ erred by mischaracterizing the evidence when discounting Plaintiff’s subjective complaints, thus resulting in a flawed RFC. Plaintiff’s Brief, ECF No. 16, pp. 6–15; Plaintiff’s Reply Brief, ECF No. 19. This Court agrees. A claimant’s RFC is the most that the claimant can do despite her limitations.

(a)(1), 416.945(a)(1). At the administrative hearing stage, it is the ALJ who is charged with determining the claimant’s RFC.

(c), 416.946(c); see also Chandler v. Comm’r of Soc. Sec.,

(3d Cir. 2011) (“The ALJ—not treating or

4 Plaintiff initially also argued in her opening brief that the ALJ’s decision denying her benefits was constitutionally defective because the Social Security Administration’s structure violates the separation of powers. Plaintiff’s Brief, ECF No. 16, pp. 16–17. However, Plaintiff later withdrew this argument from the Court’s consideration. Plaintiff’s Reply Brief, ECF No. 19. 8 examining physicians or State agency consultants—must make the ultimate disability and RFC determinations.”) (citations omitted). When determining a claimant’s RFC, the ALJ has a duty to consider all the evidence. Plummer v. Apfel,

(3d Cir. 1999). However, the ALJ need include only “credibly established” limitations. Rutherford v. Barnhart,

(3d Cir. 2005); see also Zirnsak v. Colvin,

(3d Cir. 2014) (stating that the ALJ has discretion to choose whether to include “a limitation [that] is supported by medical evidence, but is opposed by other evidence in the record” but “[t]his discretion is not unfettered—the ALJ cannot reject evidence of a limitation for an unsupported reason” and stating that “the ALJ also has the discretion to include a limitation that is not supported by any medical evidence if the ALJ finds the impairment otherwise credible”). In the case presently before the Court, the ALJ determined that Plaintiff had the RFC to perform a limited range of medium work, as follows: After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant is limited to lift and/or carry up to 50 pounds occasionally, but 25 pounds frequently; stand and/or walk with normal breaks for a total of about six hours in an 8-hour workday; sit with normal breaks for a total of about six hours in an 8-hour workday; occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds; frequently balance, kneel, crouch, stoop, and crawl; does not require more than the occasional manipulation using the bilateral lower extremities, such as foot controls or foot pedals; and does not involve hazards, such as dangerous machinery, motor vehicles, unprotected heights, or vibrations. It should also take into account nonexertional limitations allowing for the performance of simple, routine, and repetitive tasks that can be explained; specifically SVP 1-2, which involve making simple decisions, and only occasional changes in routine; and occasional and superficial contact with others.

R. 26. In reaching this decision, the ALJ considered, inter alia, Plaintiff’s subjective complaints. “Subjective allegations of pain or other symptoms cannot alone establish a disability.” Miller v. 9 Comm’r of Soc. Sec.,

, 134 (3d Cir. 2017) (citing

(a)). Instead, a claimant’s subjective complaints must be corroborated by objective medical evidence. Prokopick v. Comm’r of Soc. Sec.,

(3d Cir. 2008) (citing

(a)). Specifically, an ALJ must follow a two-step process in evaluating a claimant’s

subjective complaints. SSR 16-3p,

(March 16, 2016). First, the ALJ “must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as pain.”

“Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual’s symptoms is established, [the ALJ] evaluate[s] the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual’s ability to perform work-related activities[.]” Id.; see also Hartranft v. Apfel,

(3d Cir. 1999) (“[Evaluation of the intensity and persistence of the pain or symptom and the extent to which it affects the ability to work] obviously requires the ALJ to determine the extent to which a claimant is accurately stating the degree of pain or the extent to

which he or she is disabled by it.”) (citing

(c)). In conducting this evaluation, an ALJ must consider the objective medical evidence as well as other evidence relevant to a claimant’s subjective symptoms.

(c)(3) (listing the following factors to consider: daily activities; the location, duration, frequency, and intensity of pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate pain or other symptoms; treatment, other than medication, currently received or have received for relief of pain or other symptoms; any measures currently used or have used to relieve pain or other symptoms; and other factors concerning your functional limitations and restrictions due to pain or other symptoms);

10 416.1529(c)(3) (same). Finally, an “ALJ has wide discretion to weigh the claimant’s subjective complaints, Van Horn v. Schweiker,

(3d Cir. 1983), and may discount them where they are unsupported by other relevant objective evidence.” Miller, 719 F. App’x at 134 (citing

(c)); see also Izzo v. Comm’r of Soc. Sec.,

(3d

Cir. 2006) (“[A] reviewing court typically defers to an ALJ’s credibility determination so long as there is a sufficient basis for the ALJ’s decision to discredit a witness.”). In the present case, the ALJ found that while Plaintiff’s medically determinable impairments could reasonably be expected to cause Plaintiff’s alleged symptoms, her statements about “the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” R. 28. The ALJ went on to explain this finding as follows: As for the claimant’s statements about the intensity, persistence, and limiting effects of his or her symptoms, they are not entirely consistent with the medical record. While the claimant alleged significant and severe mental limitations, the claimant’s reported conservative treatment twice a month and denied any history of hospitalizations [sic]. In addition, the claimant’s treating physician did not submit any evidence to support her alleged need to live with her daughter. (3F; 4F; 5F; 6F). Likewise, the claimant’s physical treatment does not support an inability to sit or stand as she alleged in the hearing. In fact, the claimant has shown an ability to walk without an assistive device, normal muscle strength, and intact neurological sensation with only conservative pain management and physical therapy. In addition, the claimant’s own radiological reports do not show any stenosis. (1F; 2F). Accordingly, the undersigned finds that the residual functional capacity is more consistent with the medical record.

R. 29 (emphasis added). In challenging the ALJ’s determination in this regard, Plaintiff argues, inter alia, that the ALJ failed to properly to consider the relevant objective medical evidence. Plaintiff’s Brief, ECF No. 16, pp. 11–12. Plaintiff specifically argues that the ALJ misstated the evidence in finding 11 that Plaintiff’s “‘own radiological reports do not show any stenosis.’”

(citing R. 27, 295). Plaintiff contends that this misstatement, among other errors, resulted in a flawed RFC for medium work.

at 11–15 (observing, inter alia, that Plaintiff would be found disabled under the grid rules with a RFC for light or sedentary work).

Plaintiff’s arguments are well taken. As Plaintiff highlights, the ALJ expressly noted, elsewhere in the opinion, that “an MRI of the cervical and lumbar spine from 2016 [] found C5- C6 disc ridges with left foraminal encroachment and stenosis, disc bulging and right lateral extraforaminal herniated discs at L2-L3, disc bulge with hypertrophy at L3-L4, and disc bulging with herniation at L4-L5.” R. 27 (emphasis added). However, the ALJ later expressly discounted Plaintiff’s subjective statements because, inter alia, “the claimant’s own radiological reports do not show any stenosis.” R. 29. Although an ALJ has wide discretion to consider a claimant’s subjective statements, the ALJ cannot reject evidence “for the wrong reason.” Cotter,

. Here, the ALJ’s reliance on this mischaracterization of the objective medical evidence permeates the decision and cannot be separated from his reasoning in discounting Plaintiff’s

subjective statements and, ultimately, the RFC determination. Notably, substantial evidence does not support the ALJ’s decision when it relies on a mischaracterization of the evidence. Cf. Sutherland v. Comm’r Soc. Sec.,

, 928 (3d Cir. 2019) (“[T]he ALJ still may choose whom to credit but ‘cannot reject evidence for no reason or the wrong reason.’”) (quoting Morales, 225 F.3d at 317); Murphy v. Comm’r of Soc. Sec., No. 1:19-CV-20122,

, at *6 (D.N.J. Nov. 30, 2020) (“The ALJ’s reliance on this misconception, along with other unsupported mischaracterizations of Plaintiff’s physical abilities . . . permeates the ALJ’s decision. As stated above, these errors cannot be separated from the ALJ’s analysis of other

5 Plaintiff mistakenly cites to R. 27 twice instead of R. 27 and 29.

12 record evidence such that the Court may determine whether substantial evidence supports the ALJ’s RFC analysis.”). The ALJ’s error in this regard cannot be viewed as harmless where, as here, the ALJ—relying at least in part on this misstatement—crafted a RFC for medium work. R. 26, 30. Significantly and as Plaintiff observed, had the ALJ found a RFC for less than medium

work, Plaintiff, who was 57 years old on her alleged disability onset date and who had a “marginal education” and a history of unskilled work, would be found under the grids to be disabled. See 20 C.F.R., Part 404, Subpt. P, App’x 2 §§ 201.01 (advanced age sedentary RFC), 202.01 (advanced age light exertional RFC). This Court therefore concludes that remand of the matter for further consideration of these issues is appropriate.6 Moreover, remand is appropriate even if, upon further examination of the objective medical evidence, Plaintiff’s subjective statements, and the RFC determination, the ALJ again concludes that Plaintiff is not entitled to benefits. Cf. Zuschlag v. Comm’r of Soc. Sec. Admin., No. 18-CV-1949,

, at *8 (D.N.J. Sept. 15, 2020) (“On remand, the ALJ may reach the same conclusion, but it must be based on a proper foundation.”); Jiminez

v. Comm’r of Soc. Sec., No. CV 19-12662,

, at *4 (D.N.J. Aug. 28, 2020) (“Once more, the ALJ did not provide an adequate explanation that would enable meaningful review, and the Court once more cannot determine what role lay speculation played in the ALJ’s rejection of this detailed functional assessment from Dr. Marks.”); Cassidy v. Colvin, No. 2:13- 1203,

, at *10 n.3 (W.D. Pa. May 16, 2014) (“Nevertheless, that the ALJ may have misinterpreted or misunderstood Dr. Kaplan’s findings with regard to Plaintiff's postural

6 Plaintiff asserts other errors in the Commissioner’s final decision. Because the Court concludes that the matter must be remanded for further consideration of the objective medical evidence, Plaintiff’s subjective statements, and the RFC determination, the Court does not consider those claims. . 13 activities does not absolve her of her error. Rather, it highlights the need for an ALJ to fully explain her findings. Otherwise, the district court is left to engage in this sort of speculation about how an ALJ arrived at her decision.”). V. CONCLUSION

For these reasons, the Court REVERSES the Commissioner’s decision and REMANDS the matter for further proceedings consistent with this Opinion and Order. The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of

(g). IT IS SO ORDERED.

Date: September 13, 2023 s/Norah McCann King NORAH McCANN KING UNITED STATES MAGISTRATE JUDGE

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