UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

__________________________________________

:

RICHARD GARFIELD JONES , :

:

Plaintiff, : Civil No. 11‐748 (FLW)

:

v. :          OPINION

:

COMMISSIONER OF SOCIAL SECURITY, :

:

Defendant. :

__________________________________________:

Richard Garfield Jones (ʺPlaintiffʺ) appeals from the final decision of the

Commissioner of Social Security (ʺCommissionerʺ), denying Plaintiff Dis ability Insurance

Benefits and Supplemental Security Insurance Benefits under the Social Security Act

(ʺActʺ). The Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3).  Onappeal,Plaintiff contends thatthe substantial evidence intheAdministrative

Record (ʺARʺ) establishes eligibility for and entitlement to the benefits for which Plaintiff

applied.  Specifically, Plaintiff argues, inter alia,thattheAdministrativeLaw Judge (“ALJ”)

failed to combine Plaintiff’s several medical impairments in conducting his Step Three

analysis.    After reviewing the administrative record, this Court finds that remand is

required for the ALJ to more fully explain his Step Three determination.

I. OVERVIEW

A. Procedural History

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Plaintiff applied for disability insurance benefits on August 23, 2007, alleging that

the following impairments rendered him disabled as of February 2nd of that year:

residuals of a stroke, psychiatric and psychological conditions, visual conditions, sleep

apnea and hypertension.  The application was denied initially on March 4, 2008, and again

on reconsideration on May 2, 2008.  Therafter, Plaintiff requested a hearing before an ALJ

in a timely manner and the hearing took place before ALJ Richard West on September 22,

2009.  The ALJ denied Plaintiffʹs application on October 23, 2009.  Plaintiff next filed a

Request for Review with the Appeals Council, and the council affirmed the ALJ’s ruling

on January 8, 2011.  Plaintiff subsequently filed the instant matter with the District Court,

seeking further review of the ALJ’s decision.

B. Background and Medical History

1. Medical Evidence

OnFebruary 1, 2007,Plaintiff was hospitalizedatBayshore Community Hospitalfor

a stroke, also referred to as an acute cerebrovascular accident (“CVA”).  Id. at 145‐82.

While there, he was treated by Padmarekha Rao, M.D., a psychiatrist and neurologist, and

Antonios Tsompanidis, D.O. for a right facial droop and poor handgrip on his right side

that was consistent with his CVA.    Not long after he had first been admitted, Dr.

Tsompanidis noted in a February 11, 2007 discharge summary that Plaintiff “improved

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tremendously since [admission].”  Id. at 146.  Plaintiff was then transferred to the John F.

Kennedy Medical Center for rehabilitation.    He was discharged from that facility on

February 15, 2007 as having “achieved goals,” id. at 146, 183‐98, and was directed to

continue with outpatient care.  Id.  at 187.  

Several months later, on April 7, 2007 and April 26, 2007, Plaintiff presented to the

emergency room at Bayshore Community Hospital with complaints of vertigo.  He was

successfully treated with medication and adjustment of his Coumadin levels.  Id. at 217‐31.

Later that same year, on October 16, 2007, Plaintiff was diagnosed with hypertension by

Fazal R. Panezai M.D., a cardiologist.  Id. at 273.  At that time, Dr. Panezai noted that

Plaintiff had “no obvious neurological impairment.”  Id. at 273.  However, a November

2007 MRI and MRA (“magnetic resonance angiography”) of the brain showed residual

areas of infarction in the left posterior inferior cerebellar artery (“PICA”), right superior

cerebellar artery, left midbrain, and left thalamic regions.  Id. at 199.  Those tests further

showed flow void in the basilar artery and that the carotid artery and the great vessels

were within normal limits.  Id.  Moreover, there was no evidence of luminal irregularity

of the vertebral artery.  Id.   

From March 2007 to February 2008, Plaintiff also saw Ophthalmic Physicians of

Monmouth.   Treatment notes from that practice indicated that Plaintiff had controlled

hypertension, 20/20 vision bilaterally, and double vision when looking left or down.  Id.

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at 274‐84.

On March 14, 2008, Dr. Rao, Plaintiff’s treating physician, noted that Plaintiff

continued to experience mild double vision (“diplopia”) to left lateral gaze, intermittent

gait instability, and symptoms of cognitive dysfunction, with poor short‐term recall.  Id.

Dr.Rao completeda neurological examination thatrevealed milddiplopia in the leftlateral

gaze and mild weakness of the right facial muscles with a slight droop in the right angle

of the mouth.  Id.  Based on the neurological examination, and the aforesaid MRI and MRA

results, Dr. Rao concluded that Plaintiff had multiple ischemic infarcts (strokes) in the

posterior circulation due to dissection of the vertebral artery and that he had residual

neurological symptoms.  Id.  Dr. Rao advised Plaintiff to continue taking aspirin as an

antiplatlet agent and concluded that Plaintiff did not need any further neurological care.

Id.

Around the same time that Plaintiff was being treated by Dr. Rao, on March 4, 2008,

a non‐examining state agency doctor reviewed the examinations from Drs. Rao, Panezai,

and the Ophthalmic Physicians of Monmouth.  According to the state doctor, the treating

doctors’ examinations revealed that Plaintiff’s abilities were within normal limits, which

meant that Plaintiff was not severely impaired.  Id. at 287.   On April 16, 2008, another state

doctor confirmed this assessment of Plaintiff’s impairments.  Id. at 288.

Thereafter, Plaintiff’s counsel requested a consultative evaluation of Plaintiff by

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Richard Schuster, Ph.D., on November 24, 2008.  See id. at 291‐302.  According to Dr.

Schuster, Plaintiff lost focus or “just stared blankly ahead” at various times during the

evaluation.  Id. at 296‐97.  “At other times, when engaged in assignments that required

verbal memory he displayed severe difficulties, lamenting his poor performance.”  Id.   Dr.

Schuster concluded:

It can be conservatively estimated even from [Plaintiff’s]

current functioning that he is an individual of at least average

inherent intelligence.    Basic cognitive tests still are solidly

within the average range.  The one conspicuous and abnormal

performanceisnotedontestsofverbalmemory,bothshort‐termanddelayed.  Neverthelessimmediateattendingineithervisualorauditory

modalities is also within the average range.  Visual memory is also within the average

range.    Processing speed is inconsistent; motor skills are inconsistent, with below

expectations; tests emphasizing conceptual shifting and response inhibitions are also only

marginally within expected parameters.  

Id. at 299.  Dr. Schuster then suggested that further examination was required:

These latterrealms may represent areas of neuropsychological

deficiency but require additional neuropsychological

investigation to confirm.  Clearly, his history, presentation and

test results highlight significant deficits with verbal memory.

There are also concerns in regard to dizziness affecting his

ability to work in a physically‐oriented job.  The extent of his

dizziness and vertigo problems should also be investigated in

greater detail. Possibly, vestibular training may be helpful in

this regard. Cognitive retraining may also be beneficial.

Id.

Approximately a yearfollowing Dr. Schuster’s examination, on October 8, 2009, Dr.

Rao noted that Plaintiff had reported continued symptoms of diplopia to left lateral gaze.

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Id. at 303.   Dr. Rao further noted that Plaintiff continued to complain of intermittent

episodes of dizziness, and that certain movements of the head and external noises seemed

to aggravate his symptoms.  Id. at 303.  Moreover, Plaintiff complained of tremors in his

left hand and explained that he was unable to concentrate on the computer for extended

periods of time.  Id.  Dr. Rao concluded that Plaintiff’s mental status was normal, that there

was no evidence of disorientation or impaired concentration, that his speech was fluent

with intact comprehension and, notably, that his short‐term recall, remote memory, and

fund of knowledge were intact.  Id.  However, Plaintiff’s diplopia on left lateral gaze with

weakness of abduction of the left persisted.  Id.  Other neurological tests were normal with

the exception of tandem walking and Romberg testing.  Id. at 303‐04.  Based on these

findings, Dr. Rao concluded that Plaintiff had “continued neurological dysfunction with

poor coordination, diplopia to left lateral gaze, and gait instability. He is disabled

permanently on account of his residual neurological dysfunction.”  Id. at 304.

2. Testimonial Evidence

Plaintiff, a former HVAC refrigeration technician and a carpenter, testified at the

hearing that he was born in 1968 and achieved a tenth grade education.  Id. at 30‐31.

According to Plaintiff, he has been disabled since February 2, 2007, after having suffered

from the aforementioned stroke.    Following the stroke, Plaintiff began to experience

headaches and difficulty rotating his head.  Id. at 32‐39.  In addition, Plaintiff claims that

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he would become light‐headed if he suddenly dealt with aggravation or stress or stared at

a computer screen, certain colors, or lights, for over 15 minutes.  Id. at 32‐39.  Plaintiff

further claims that he becomes easily agitated and, notably, that he experiences short‐term

memory loss.  Id. at 40‐41.  In terms of physical limitations, Plaintiff asserts that his left

hand has become shaky and unsteady, which makes it difficult for him to grab or hold

anything with that hand.  Id. at 32.

According toPlaintiff,the stroke also causedhim to become light‐headed, unsteady,

and/or dizzy if he suddenly or sharply moved his head by either looking up or sideways.

Specifically, he testified that if he turns his head and holds it in that position for “15

minutes or so” he will experience pain and dizziness.  Id. at 37.  If, however, he is otherwise

aggravated by a stressful circumstance, for example, he could experience the same

symptoms after having held his head in a turned position for only “a minute.”  Id.   Once

he began to experience lightheadedness as a result of “side‐to‐side” head‐turning, he could

suffer from the lightheadedness for three to four hours.  Id. at 38‐39.

In terms of daily activities, Plaintiff testified that he works on the computer for up

to thirty minutes at a time, fixes video games, and does some work in the yard.  Id. at 42.

He also performs light cleaning around the house.  Id. at 42‐43.

Plaintiff’s girlfriend, Tracey Bloomer, also testified at Plaintiff’s ALJ hearing.  She

testified that Plaintiff “has to be reminded pretty much on a daily basis of anything that is

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either coming up, or things like taking his medication.”  Id. at 46.  Moreover, she testified

that if he “looks to the left too far one way, sometimes he’ll get dizzy.”  Id.  In addition, she

noted that prolonged periods in front of the television or computer leave him dizzy and

quiet.  Id. at 48.

3. Vocational Testimony

Vocational expertRocco Miola testified at the hearing.  The ALJ posed the following

hypothetical question to the expert:  

I’m going to ask you to assume an individual 41 years of age,

who has – highest education is completion of ninth grade, and

who is able to communicate in English.  I’d ask you to further

assume the individual is limited to light exertional duty, light

exertionalduties [sic]; cannot climb ladders,ropes, or scaffolds;

and can perform other postural functions only occasionally;

who is limited to only occasional turning of the head either

sideways, or up, or down; who must avoid, as part of their

regularjob responsibilities, sudden, sharp movements of their

head; only occasional use of a computer screen; and is limited

to three‐step instructions. . . . Do you have any opinions as to

whether or not someone with that profile [could find work] in

the national economy?

Id. at 52‐53.  The expert responded no to this hypothetical question.  Id. at 53.  According

to the expert, such a person “really would not be able to work in the competitive labor

market . . . if the person is unable to even occasionally turn his head from side to side or up

and down, that would preclude a majority of jobs . . . in the economy.”  Id.

The ALJ clarified his hypothetical, asking “[i]f they could do it occasionally,

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meaning two hours out of an eight‐hour day” whetherthat amount of head turning would

be sufficient.  Id.   Even under that clarified scenario, the vocational expert explained that

they couldn’t do the jobs, because it’s not frequent enough . .

. when you’re doing unskilled type of work at the light or

sedentary level, you do have to move your head from side to

side or up and down more than occasionally to get the job

done.

Id.  

More explicitly defining the contours of the limitation, the ALJ queried whetherthe

vocational expert would hold the same opinion for someone who “must avoid having their

head in a turned or titled position for more than five minutes at a time; can only

occasionally use a computer screen; and is limited to three‐step instructions.”  Id.  To this

hypothetical, the expert responded that “there are jobs [that person] can do . . . in the light

level.”  Id. at 54.  According to the expert, the type of jobs such a person could do include

sorter, produce weigher, assembler, inspector, or machine operator.  Id.

Following the vocational expert’s testimony, the ALJ asked Plaintiff’s counsel to

expound upon what medical evidence addressed Plaintiff’s “ability to turn the neck in

different directions with regard to either the . . . amount of time . . . in such positions.”  Id.

at 54.  Plaintiff’s counsel responded that the ALJ should consult the treating physician’s

report and consider Dr. Shuster’s acknowledgment that further testing was needed to

address Plaintiff’s vertigo and dizziness symptoms.  Id. at 56.   The ALJ commented that

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he “really [had] to take a very close look at the medical support . . . with regard to the neck

. . . turning limitations.”  Id. at 57.  He was so required because “what Social Security

require[s] [him] to do is not simply accept descriptions of symptoms, no matter how

convinced [he is] of their accuracy; . . . any symptoms [must] be supported, or at least

consistent with medical diagnoses and opinions ....”  Id.  

C. The ALJʹs Decision

The ALJ followed the five‐step sequential evaluation process in reaching the

conclusion that Plaintiff was not entitled to benefits.   The ALJ began by finding that

Plaintiff met the insured status requirement of the Social Security Act.  AR at 16. Turning

to the five‐step process, the ALJ determined at Step One that Plaintiff had not engaged in

substantial gainful activity since February 2, 2007, his alleged onset date. Id. At Step Two,

theALJdeterminedthatPlaintiff hadthe following severe impairmentsduring the relevant

period:    status‐post cerebrovascular accident, diplopia to left lateral gaze, cognitive

dysfunction, sleep apnea and hypertension.  Id.  

However, at Step Three, the ALJ determined that Plaintiff did not have an

impairment or combination of impairments that met or medically equaled one of the listed

impairments underthe SSA that would automatically render Plaintiff disabled.  Id.  In that

regard, the ALJ noted that Plaintiff’s mental impairment did not meet or medically equal

the criteria of listing 12.02.  In reaching that determination, the ALJ considered whetherthe

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“paragraph B” criteria were satisfied by a showing that Plaintiff’s mental impairment

results in a marked restriction of activities of daily living; marked difficulties in

maintaining social function; marked difficulties in maintaining concentration, persistence,

or pace; or repeated episodes of decompensation, each of extended duration.  Id.  

Specifically, the ALJ concluded that Plaintiff did not experience restrictions in daily

living activities, difficulties in socialfunction, or episodes ofrepeated decompensation.  Id.

at AR at 17.  Of note, the ALJ considered the mental consultative exam in which Plaintiff

was foundto be of atleast average intelligence but sufferedfrom impairedverbal memory.

While acknowledging thatthis evidencedemonstratedthatPlaintiff experienced moderate

difficulties in maintaining concentration, persistence, or pace, the ALJ reasoned that only

one limitation is insufficient—a claimant must possess two limitations in order for the

“paragraph B” criteria to be satisfied.1  The ALJ further noted that this assessment of the

severity of Plaintiff’s mentalimpairment wouldbe reflectedintheALJ’s residualfunctional

capacity (“RFC”) analysis.

At Step Four, the ALJ concluded that Plaintiff had the residual functional capacity

to perform light work as defined by 20 C.F.R. § 404.1567(b).  The limitations found by the

ALJ were that Plaintiff could not climb ladders, ropes or scaffolds; that he could perform

other posturalfunctions only occasionally;that he must avoidsudden or sharp movements

1 In addition, the ALJ concluded that Plaintiff did not satisfy “paragraph C”

criteria.  This aspect of the ALJ’s ruling is not challenged on appeal.

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of the head; that he is limited to only occasional use of a computer screen; and that he must

avoid maintaining his head in a turned position for more than five minutes at a time.  Id.

In reaching this determination, the ALJ considered Plaintiffs’ testimony that, inter alia, he

had difficulty rotating his head to the left or right, and that such rotation led to dizziness.

Id. at 18.  In addition, the ALJ considered the medical evidence, including Dr. Schuster’s

opinion that Plaintiff is of at least average inherent intelligence with basic cognitive tests

solidly within the average range, as well as Dr. Schuster’s testresults indicating significant

deficits with Plaintiff’s verbal memory.  Id. at 19.  

After concluding that Plaintiff could perform light work, the ALJ concluded at Step

Five that, considering Plaintiff’s age, education, work experience, and residual functional

capacity, Plaintiff was not disabled from February 2, 2007 through the date of decision.  Id.

at 20.  The ALJ relied heavily on the vocational expert’s testimony that an individual with

Plaintiff’s limitations would be able to perform the requirements of representative

occupations such as sorter, assembler, or inspector.  Id.

Following the ALJ’s decision, Plaintiff soughtreview by the Appeals Council of the

Office of Disability Adjudication and Review.  See id. at AR 7‐10.  The ALJ’s decision was

affirmed.  Id. at 1‐3.  Plaintiff then filed the instant suit seeking furtherreview of his denial

of disability benefits.

II. DISCUSSION

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A. Standard of Review

On a review of a final decision of the Commissioner of the Social Security

Administration, a district court  ʺshall have power to enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or withoutremanding the cause for a rehearing.ʺ 42

U.S.C. § 405(g); seeMatthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). The Commissionerʹs

decisions regarding questions of fact are deemed conclusive on a reviewing court if

supported by ʺsubstantial evidence in the record.ʺ 42 U.S.C. § 405(g); see Knepp v. Apfel,

204 F.3d 78, 83 (3d Cir. 2000). While the court must examine the record in its entirety for

purposes of determining whether the Commissionerʹs findings have support by such

evidence, Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978), the standard is highly

deferential.    Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Indeed,  ʺsubstantial

evidenceʺ is defined as ʺmore than a mere scintilla,ʺ butless than a preponderance. McCrea

v. Commʹr of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). ʺIt means such relevant evidence

as a reasonable mind might accept as adequate.ʺ  Plummer v. Apfel, 186 F.3d 422, 427 (3d

Cir. 1999).  A reviewing court is not ʺempowered to weigh the evidence or substitute its

conclusions for those of the fact‐finder.ʺ Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.

1992).  Accordingly, even if there is contrary evidence in the record that would justify the

opposite conclusion, the Commissionerʹs decision will be upheld if it is supported by the

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evidence. See Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986).

B. Standard for Entitlement of Benefits

Disability insurance benefits may not be paid under the Act unless Plaintiff first

meets the statutory insured status requirements.  See 42 U.S.C. § 423(c).  Plaintiff must also

demonstrate the ʺinability 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 which has lasted or can be expected to last for a continuous period of not less than

twelve months.ʺ 42 U.S.C. § 423(d)(1)(A); see Plummer, 186 F.3d at 427.  An individual is

notdisabledunless ʺhis physical or mental impairment orimpairments are of such severity

that he is not only unable to do his previous work but cannot, considering his age,

education, and work experience, engage in any other kind of substantial gainful work

which exists in the national economy.ʺ    42 U.S.C. § 423(d)(2)(A).    Eligibility for

supplemental security income requires the same showing of disability.    42 U.S.C. §

1382c(a)(3)(A); 42 U.S.C. § 1382c(a)(3)(B).

The Act establishes a five‐step sequential process for evaluation by the ALJ to

determine whether an individual is disabled.  See 20 C.F.R. § 404.1520.  First, the ALJ

determines whetherthe claimant has shown that he is not currently engaged in substantial

gainful activity.  20 C.F.R. § 404.1520(a); see Bowen v. Yuckert, 482 U.S. 137, 146‐47 n. 5, 107

S. Ct. 2287, 96 L. Ed. 2d 119 (1987). If a claimant is presently engaged in any form of

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substantial gainful activity, he is automatically denied disability benefits.  See 20 C.F.R. §

404.1520(b); see also Bowen, 482 U.S. at 140.  Second, the ALJ determines whether the

claimant has demonstrated a ʺsevere impairmentʺ or ʺcombination of impairmentsʺ that

significantly limits his physical or mental ability to do basic work activities.  20 C.F.R. §

404.1520(c); see Bowen, 482 U.S. at 146‐7 n.5.  Basic work activities are defined as  ʺthe

abilities and aptitudes necessary to do most jobs.ʺ  20 C.F.R. § 404.1521(b).  These activities

include physical functions such as ʺwalking, standing, sitting, lifting, pushing, pulling,

reaching, carrying or handling.ʺ  Id.  A claimant who does not have a severe impairment

is not considered disabled. 20 C.F.R. § 404.1520(c); see Plummer, 186 F.3d at 428.  Third, if

the impairment is found to be severe, the ALJ then determines whether the impairment

meets or is equal to any listed impairment. 20 C.F.R. § 404.1520(a)(4) (iii). If the claimant

demonstrates that his impairments are equal in severity to, or meet any listed impairment,

the claimant has satisfied his burden of proof and is automatically entitled to benefits.  See

20 C.F.R. § 404.1520(d); see also Bowen, 482 U.S. at 146‐47 n.5.  If the specific impairment

is not listed, the ALJ will considerin his decision the impairment that most closely satisfies

those listed for purposes of deciding whetherthe impairment is medically equivalent.  See

20 C.F.R. § 404.1526(a).  If there is more than one impairment, the ALJ then must consider

whether the combination of impairments is equal to any listed impairment.   Id.    An

impairment or combination of impairments is basically equivalent to a listed impairment

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if there are medical findings equal in severity to all the criteria for the one most similar.

Williams, 970 F.2d at 1186.

If the claimant is not conclusively disabled under the criteria set forth in the

Impairment List, step three is not satisfied, and the claimant must prove at Step Four

whether he retains the RFC to perform his past relevant work.  20 C.F.R. § 404.1520(e);

Bowen, 482 U.S. at 141.  If the claimant is able to perform his previous work, the claimant

is determined to not be under a disability.  20 C.F.R. § § 404.1520(e), 416.920(e); Bowen, 482

U.S. at 141‐42.  The claimant bears the burden of demonstrating an inability to return to the

pastrelevant work.  Plummer, 186 F.3d at 428.  Finally, if it is determined that the claimant

is no longer able to perform his previous work, the burden of production then shifts to the

Commissioner to show, at step five, that the ʺclaimant is able to perform work available in

the national economy.ʺ  Bowen, 482 U.S. at 146‐47 n.5; Plummer, 186 F.3d at 428.  This step

requires theALJto considerthe claimantʹs residualfunctional capacity, age, education, and

past work experience. 20 C.F.R. § 404.1520(f).  The ALJ must analyze the cumulative effect

of all the claimantʹs impairments in determining whether the claimant is capable of

performing work and not disabled.  Id.

C. Plaintiffʹs Arguments on Appeal

Plaintiff makes three arguments on appeal.  First, Plaintiff argues thatthe ALJ’s Step

Three finding is erroneous because the ALJ failed to combine Plaintiff’s several medical

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impairments andcompare them to analogousAppendix 1 listings.  Second,Plaintiff argues

that the ALJ’s residual functional capacity determination is not based on substantial

evidence because it fails to take in account Plaintiff’s cognitive dysfunction.2   Finally,

Plaintiff argues that the hypothetical posed to the vocational expert does not properly

reflectthe medical evidence relatedto the Plaintiff’s neck turning limitation.  I address each

argument in turn.

1. Failure to Combine Medical Impairments at Step Three

Plaintiff argues that, in his Step Three Analysis, the ALJ failed to address whether

the combination of his impairments specified in Step Two—status‐post cerebrovascular

accident, diplopia to left lateral gaze, cognitive dysfunction, sleep apnea and

hyptertension—meets or medically equals one of the listed impairments in 20 C.F.R. § Part

404, Subpart P, Appendix 1.  In the ALJ’s decision, his Step Three analysis begins with the

heading “The claimant does not have an impairment or combination of impairments that

meets or medically equals one of the listed impairments.”  AR at 16.  However, in his

ensuing discussion under that heading, the ALJ discusses only Plaintiff’s “mental

impairment” and does not engage in an analysis of Plaintiff’s multiple impairments in

combination.  See id. at 16‐17 (discussing whether Plaintiff’s mental impairment meets or

2 The Commissioner characterizes Plaintiff’s cognitive dysfunction challenge

as relating to the ALJ’s RFC determination and his posing of a hypothetical to the

vocational expert.  I disagree, and read Plaintiff’s challenge as directed solely to the ALJ’s

RFC determination.

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medically equals the criteria of listing 12.02).  According to Plaintiff, this renders the ALJ’s

decision “unreviewable” under the Third Circuit’s decision in Burnett v. Commʹr of Soc.

Sec. Admin., 220 F.3d 112, 118‐119 (3d Cir. 2000).

It is well‐established that an ALJ’s conclusion that a claimantʹs impairments do not

meet or equal anyListedImpairment without “identifying the relevantlistedimpairments,

discussing the evidence, or explaining [the]reasoning” constitutes errorrequiring remand.

See id. at 119. For example, in Burnett, the Third Circuit found an ALJʹs conclusory

statement that the claimant failed to meet any listing “hopelessly inadequate” and

remanded the case for a full discussion of the evidence and explanation of the ALJʹs

reasoning.  Id. at 119–120.  

However, in Jones v. Barnhart, 364 F.3d 501 (3d Cir.2004), the Third Circuit clarified

that the purpose of Burnett was to guarantee “sufficient development of the record and

explanation of findings to permit meaningfulreview” of step‐three determinations.  Jones,

364 F.3d at 505.  Moreover, the Third Circuit noted that an ALJ is not required to “use

particular language or adhere to a particular format in conducting his analysis,” but that

the decision “read as a whole” must be capable of providing meaningful judicial review.

Id.  Therefore, as long as there is sufficient analysis of Plaintiff’s impairments when the

ALJ’s decision is read as a whole, then the decision is reviewable and “Burnett is

inapposite.”    See Cadillac v. Barnhart, 84 Fed.Appx. 163, 167 n.4 (3d Cir. 2003).    See

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also Scuderi v. Commissioner of Social Sec., 302 Fed.Appx. 88, 90 (3d Cir. 2008) (“an ALJ

need not specifically mention any of the listed impairments in order to make a judicially

reviewable finding, provided that the ALJʹs decision clearly analyzes and evaluates the

relevant medical evidence as it relates to the Listing requirements.”).

Reading the ALJ’s decision as a whole, it does not appear that he considered each

of Plaintiff’s impairments separately or in combination, or that he clearly analyzed and

evaluated all the relevant medical evidence as it relates to the applicable Listing

requirements.  In his RFC analysis, he discusses Plaintiff’s medical history with regard to

his acute cerebrovascular accident (stroke) on February 1, 2007, and his mild diplopia.  The

ALJ makes no mention, however, of Plaintiff’s sleep apnea or hypertension anywhere in

his ruling.  

The Commissioner argues in his brief that the there is sufficient record evidence to

support a finding that Plaintiff does not meet the applicable listings of Listing 11.06 for

Parkinsonian syndrome, Listing 11.07 for cerebral palsy, and Listings 2.02 and 2.04 for

visual deficiencies.  But these listings appear to focus solely on Plaintiff’s stroke‐related

impairments and do not address his sleep apnea or hypertension.  Moreover, the Third

Circuit has noted that “general principles of administrative law preclude the

Commissioner’s lawyers from advancing grounds in support of the agencyʹs decision that

were not given by the ALJ.”  Diaz v. Commissioner of Social Sec., 410 Fed.Appx. 430, 433

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(3d Cir. 2010) (quoting Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003)).  “[T]he

grounds upon which an administrative order must be judged are those upon which the

record discloses that its action was based.”  Fargnoli v. Massanari, 247 F.3d 34, 44 n. 7 (3d

Cir. 2001).

The Court is aware that Plaintiff has not highlighted the specific listings that should

have applied either.  In some instances remand may not be required where the “Plaintiff

does not point to any evidence that would establish any of these factors, and indeed, the

records of Plaintiffʹs physicians do not contain any opinions that would have led the ALJ

to find that Plaintiff satisfied these conditions.”  Gainey v. Astrue, No. 10–1912, 2011 WL

1560865,*12 (D.N.J. Apr. 25, 2011) (citing Giese v. Commʹr of Soc. Sec., 251 Fed. Appx. 799,

804 (3rd Cir. 2007)).  In this case,Ifind remand appropriate because the ALJ’s decision does

not address two of Plaintiff’s impairments at all and there is little analysis of the Plaintiff’s

stroke‐related conditions throughout the decision.    Compare Gainey, supra at *13

(concluding that ALJ gave sufficient consideration to the claimant’s combination of

impairments where the ALJ explained that “no treating or examining physician has

mentioned findings equivalent in severity to the criteria of any listed impairment,” and the

ALJ described in detail whether Plaintiffʹs impairments met listed conditions, and

recounted Plaintiffʹs numerous treatments).  The only impairment addressed in detail in

the decision here is Plaintiff’s mental impairment.

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Without the ALJ having addressed each of Plaintiffʹs severe impairments in the

decision, the Court cannot conduct meaningful judicial review of the ALJʹs Step Three

findings. Accordingly, remand is required. On remand, the ALJ shall explain his findings

at  Step  Three,  including  an  analysis  of  whether  and  why  Plaintiffʹs  status‐post

cerebrovascular accident, diplopia to left lateral gaze, cognitive dysfunction, sleep apnea

and hyptertension in combination, are or are not equivalent in severity to one of the listed

impairments.  Accord Torres v. Commissioner of Social Security, 279 Fed.Appx. 149, 152

(3d Cir. 2008) (remanding and directing ALJ to consider each of claimantʹs impairments in

combination).

2. Remaining Arguments

Although I have determined that remand is required, I briefly address Plaintiffʹs

additional arguments for the sake of completeness. As noted, Plaintiff argues that the ALJ

failed  to  take into  account  his  cognitive  dysfunction,  i.e.,  moderate  impairment  in

concentration, persistence, or pace, in reaching the Step Four RFC determination that

Plaintiff may perform unskilled, light work.  I can not address this issue at this juncture

because the ALJʹs Step Four RFC determination may be augmented on remand once he

more fully addresses Plaintiffʹs impairments in his Step Three analysis.

Plaintiff next argues that the hypothetical question posed to the vocational expert

was not supported by substantial evidence.    An expertʹs testimony concerning    the

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Plaintiffʹs  ability  to  perform  alternative  employment  may  only  be considered for

purposes of determining disability if the question accurately portrays his physical and

mental impairments.  See Burns, 312 F.3d at 123 (ʺA hypothetical question posed to a

vocational expert must reflect all of [ ] [Plaintiffʹs] impairments.ʺ)  Id.  Hence, ʺ[w]here

there exists in the record medically undisputed evidence of specific impairments not

included in a hypothetical question to a vocational expert, the expertʹs response is not

considered substantial evidence.ʺ  Id.

As explained above, vocational expertRoccoMiola testifiedatthe hearing thatthere

were no jobs in the national economy in response to the following hypothetical question:

Iʹm going to ask you to assume an individual 41 years of age,

who has – highest education is completion of ninth grade, and

who is able to communicate in English.  Iʹd ask you to further

assume the individual is limited to light exertional duty, light

exertional duties [sic]; cannot climbladders,ropes, orscaffolds;

and can perform other postural functions only occasionally;

who is limited to only occasional turning of the head either

sideways, or up, or down; who must avoid, as part of their

regularjob responsibilities, sudden, sharp movements of their

head; only occasional use of a computer screen; and is limited

to three‐step instructions. . . . Do you have any opinions as to

whether or not someone with that profile [could find work] in

the national economy?

Id. at 52‐53. The expert also answered  ʺnoʺ to the following clarification of the ALJʹs

hypothetical:  ʺ[i]f they could do it occasionally, meaning two hours out of an eight‐hour

day but that would be the most they could do it?ʺ  Id.  

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Thereafter, the ALJ queried whether the vocational expert would hold the same

opinion for someone who ʺmust avoid having their head in a turned or titled position for

more than five minutes at a time ....ʺ  Id.  The expert responded that ʺthere are jobs [that

person] can do . . . in the light levelʺ to this hypothetical. Id. at 54. According to the expert,

the type of jobs such a person could do include the unskilled work of a sorter, produce

weigher, assembler, inspector, or machine operator.  Id.

In Plaintiffʹs view,the ALJ manipulated the hypothetical in orderto justify a finding

that Plaintiff was not disabled and, furthermore, the ALJ did not tie his ʺfive minutes at a

timeʺ restriction    to record evidence.    As an initial matter, the Court finds Plaintiffʹs

negative characterization of the ALJʹs intent unwarranted.    Turning to the merits of

Plaintiffʹs challenge, there is record evidence to support the ALJʹs five minute limitation.

At the hearing, the ALJ took pains to elicit detailed testimony from the Plaintiff as to the

precise nature of his neck titling/turning limitation.  The ALJ asked Plaintiff:

Q [I]f you were just sitting there as you are now . . . but

turn your head to the left and start talking to [your

attorney] for a while, is that something that would,

would    give    you    problems,    or,    or am    I    not

understanding it right?

A Yes, I mean, it depends on how long I, I look in that

position.

Q And, and just from your experience, how, how long, on

average, would create a problem?

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A About 15 minutes or so.  Then, then, my head starts.

But  like  right  now,  with  being  aggravated

[by  an external event] it could be just looking

over there for a minute ....

AR at 37 (emphasis added).  

As this colloquy illustrates, Plaintiffʹs own testimony is that he could hold his head

in a tilted or turned position for up to 15 minutes at a time.  Although Plaintiff further

testified that, when aggravated, he could tilt orturn his head for only one minute at a time,

it was reasonable for the ALJ to conclude that, on average, Plaintiff could hold his head in

a tilted orturned position for up to five minutes in a single instance.  Contraryto Plaintiffʹs

characterization of the ALJʹs motive, in my view, the ALJ gave the Plaintiff the benefit of

the doubt in assigning a 5 minute average to Plaintiffʹs limitation when Plaintiffʹs own

testimony could have supporteda lengthierduration.  Thus,there was no errorin the ALJ’s

questioning of the vocational expert.

III. Conclusion

For the reasons set forth above, this matter is remanded this case to the ALJ for

further proceedings consistent with this Opinion.

Dated: February 27, 2012

/s/ Freda L. Wolfson       

Honorable Freda L. Wolfson

United States District Judge

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