NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

KEVIN WYATT, :

:

Plaintiff, : Civil Action No. 10-6751 (SRC)

:

v. : OPINION

:

COMMISSIONER OF SOCIAL :

SECURITY, :

:

Defendant. :

____________________________________:

CHESLER, District Judge

This matter comes before the Court on the appeal by Plaintiff Kevin Wyatt (“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 vacated

and remanded for further proceedings.

I. BACKGROUND

The following facts are undisputed. Plaintiff was born in 1957. He has worked as a 

shipping and receiving clerk, laborer, and stock supervisor. This case involves applications for

supplemental security income and disability insurance benefits filed on August 20, 2007. 

Plaintiff’s claims were denied by the Commissioner initially and on reconsideration. Pursuant to

Plaintiff’s request, two hearings were held before Administrative Law Judge Michal Lissek (the

“ALJ”). The ALJ denied Plaintiff’s claim in an unfavorable decision issued on February 4, 2010. 

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After the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision, that

decision became final as the decision of the Commissioner of Social Security. Plaintiff then filed

the instant appeal of the Commissioner’s decision. 

II. DISCUSSION

A. Standard of Review

This Court has jurisdiction to review the Commissioner*s decision under 42 U.S.C.

§ 405(g). This Court must affirm the Commissioner*s decision if it is “supported by substantial

evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health and Human Services,

841 F.2d 57, 59 (3d Cir. 1988); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986). Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co.

v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is 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). The reviewing court must consider the totality of the evidence and then

determine whether there is substantial evidence to support the Commissioner*s decision. See

Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 1981). 

The reviewing court is not “empowered to weigh the evidence or substitute its

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

1992), cert. denied sub nom. Williams v. Shalala, 507 U.S. 924 (1993) (citing Early v. Heckler,

743 F.2d 1002, 1007 (3d Cir. 1984)). If the ALJ’s findings of fact are supported by substantial

evidence, this Court is bound by those findings, “even if [it] would have decided the factual

inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 35 (3d Cir. 2001); see also Hartranft v.

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Apfel, 181 F.3d 358, 360 (3d Cir. 1999). 

In determining whether there is substantial evidence to support the Commissioner*s

decision, the reviewing court must consider: “(1) the objective medical facts; (2) the diagnoses

and expert opinions of treating and examining physicians on subsidiary questions of fact; (3)

subjective evidence of pain testified to by the claimant and corroborated by family and neighbors;

(4) the claimant*s educational background, work history and present age.” Blalock v.

Richardson, 483 F.2d 773, 776 (4th Cir. 1973). “The presence of evidence in the record that

supports a contrary conclusion does not undermine the Commissioner’s decision so long as the

record provides substantial support for that decision.” Sassone v. Comm’r of Soc. Sec., 165 Fed.

Appx. 954, 955 (3d Cir. 2006) (citing Blalock, 483 F.2d at 775).

B. Standard for Awarding Benefits Under the Act

The claimant bears the initial burden of establishing his or her disability. 42 U.S.C. § 

423(d)(5). To qualify for DIB or SSI benefits, a claimant must first establish that he is needy and

aged, blind, or “disabled.” 42 U.S.C. § 1381. A claimant is deemed “disabled” under the Act if

he is unable to “engage in 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 12 months.” 42 U.S.C. §

423(d)(1)(A); see also Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). Disability is

predicated on whether a claimant’s impairment is so severe 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.” 42 U.S.C. §

423(d)(2)(A). Finally, while subjective complaints of pain are considered, alone, they are not

enough to establish disability. 42 U.S.C. § 423(d)(5)(A). To demonstrate that a disability exists,

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a claimant must present evidence that his or her affliction “results from anatomical,

physiological, or psychological abnormalities which are demonstrable by medically accepted

clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). 

C. The Five-Step Evaluation Process

Determinations of disability are made by the Commissioner, pursuant to the five-step

process outlined in 20 C.F.R. § 404.1520. The claimant bears the burden of proof at steps one

through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Gist v. Barnhart, 67 Fed. Appx.

78, 81 (3d Cir. 2003).

At the first step of the evaluation process, the Commissioner must determine whether the

claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If a 1

claimant is found to be engaged in such activity, the claimant is not “disabled” and the disability

claim will be denied. Id.; Yuckert, 482 U.S. at 141. 

At step two, the Commissioner must determine whether the claimant is suffering from a

severe impairment. 20 C.F.R. §§ 404.1520(a)(ii), (c). An impairment is severe if it

“significantly limits [a claimant’s] physical or mental ability to do basic work activities.” Id. In

determining whether the claimant has a severe impairment, the age, education, and work

experience of the claimant will not be considered. Id. If the claimant is found to have a severe

impairment, the Commissioner addresses step three of the process. 

At step three, the Commissioner compares the medical evidence of the claimant’s

impairment(s) with the impairments presumed severe enough to preclude any gainful work, listed

in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1594(f)(2). If a claimant’s

 Substantial gainful activity is “work that involves doing significant and productive 1

physical or mental duties; and is done (or intended) for pay or profit.” 20 C.F.R. § 404.1510. 

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impairment meets or equals one of the listed impairments, he will be found disabled under the

Social Security Act. If the claimant does not suffer from a listed impairment or its equivalent,

the analysis proceeds to step four. 

In Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20, 120 n.2 (3d Cir. 2000), the

Third Circuit found that to deny a claim at step three, the ALJ must specify which listings apply 2

and give reasons why those listings are not met or equaled. In Jones v. Barnhart, 364 F.3d 501,

505 (3d Cir. 2004), however, the Third Circuit noted that “Burnett does not require the ALJ to

use particular language or adhere to a particular format in conducting his analysis. Rather, the

function of Burnett is to ensure that there is sufficient development of the record and explanation

of findings to permit meaningful review.” (Id.) An ALJ satisfies this standard by “clearly

evaluating the available medical evidence in the record and then setting forth that evaluation in

an opinion, even where the ALJ did not identify or analyze the most relevant listing.” Scatorchia

v. Comm’r of Soc. Sec., 137 Fed. Appx. 468, 471 (3d Cir. 2005). 

Step four requires the ALJ to consider whether the claimant retains the residual functional

capacity to perform his past relevant work. 20 C.F.R. § 404.1520(e). If the claimant is able to

perform his past relevant work, he will not be found disabled under the Act. In Burnett, the

Third Circuit set forth the analysis at step four:

In step four, the ALJ must determine whether a claimant's residual functional

capacity enables her to perform her past relevant work. This step involves three

substeps: (1) the ALJ must make specific findings of fact as to the claimant's

residual functional capacity; (2) the ALJ must make findings of the physical and

mental demands of the claimant's past relevant work; and (3) the ALJ must

compare the residual functional capacity to the past relevant work to determine

whether claimant has the level of capability needed to perform the past relevant

 Hereinafter, “listing” refers to the list of severe impairments as found in 20 C.F.R. Part 2

404, Subpart P, Appendix 1.

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work.

Burnett, 220 F.3d at 120. If the claimant is unable to resume his past work, and his condition is

deemed “severe,” yet not listed, the evaluation moves to the final step. 

At the fifth step, the burden of production shifts to the Commissioner, who must

demonstrate 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. 20 C.F.R. §§ 404.1512(g), 404.1560(c)(1). If

the ALJ finds a significant number of jobs that claimant can perform, the claimant will not be

found disabled. Id. 

When the claimant has only exertional limitations, the Commissioner may utilize the

Medical-Vocational Guidelines found in 20 C.F.R. Part 404, Subpart P, Appendix 2 to meet the 

burden of establishing the existence of jobs in the national economy. These guidelines dictate a

result of “disabled” or “not disabled” according to combinations of factors (age, education level,

work history, and residual functional capacity). These guidelines reflect the administrative notice

taken of the numbers of jobs in the national economy that exist for different combinations of

these factors. 20 C.F.R. Part 404, Subpart P, Appendix 2, Paragraph 200.00(b). When a

claimant’s vocational factors, as determined in the preceding steps of the evaluation, coincide

with a combination listed in Appendix 2, the guideline directs a conclusion as to whether an

individual is disabled. 20 C.F.R. § 404.1569; Heckler v. Campbell, 461 U.S. 458 (1983). The

claimant may rebut any finding of fact as to a vocational factor. 20 C.F.R. Part 404, Subpart P,

Appendix 2, Paragraph 200.00(b).

Additionally, pursuant to 42 U.S.C. § 423(d)(2)(B), the Commissioner, in the five-step

process, “must analyze the cumulative effect of the claimant’s impairments in determining

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whether she is capable of performing work and is not disabled.” Plummer v. Apfel, 186 F.3d

422, 428 (3d Cir. 1999). Moreover, “the combined impact of the impairments will be considered

throughout the disability determination process.” 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. § 1523. 

However, the burden still remains on the Plaintiff to prove that the impairments in combination

are severe enough to qualify him for benefits. See Williams v. Barnhart, 87 Fed. Appx. 240, 243

(3d Cir. 2004) (placing responsibility on the claimant to show how a combination-effects analysis

would have resulted in a qualifying disability). 

D. Plaintiff’s Appeal

Plaintiff begins by asserting, without explanatory detail, that the ALJ’s decision is

unreviewable because the ALJ explained no findings. This vague, blanket condemnation of the

ALJ’s decision does not appear to be justified by the record.

Plaintiff has nicely outlined his main argument on appeal as follows:

(1) Plaintiff suffers tremors (2) those tremors are “severe” according to the

medical evidence of record and the ALJ’s own findings. (3) Any finding of

severity means by definition that more than a minimal restriction exists (4) thus

plaintiff’s tremors impose more than a minimal restriction in the use of his hands

(5) the vocational expert testified that no jobs existed which could be performed

in the presence of “any problem with the use of the hands”. (6) This testimony

occurred at the fifth step of the sequential evaluation where it is the government’s

burden to establish the existence of jobs. (7) The only way to so establish in the

presence of non-exertional impairments is through the testimony of a vocational

expert. (8) The Commissioner picked the vocational expert. (9) That vocational

expert testified that on the basis of the ALJ’s own finding of severity with regard

to tremors of the hands plaintiff would be unable to meet the production quotas of

any of the jobs recited. (10) The Commissioner has failed to meet his burden at

the fifth step. (11) Plaintiff has established his disability through the testimony of

the Commissioner’s own vocational expert on the basis of the ALJ’s own severity

findings. (12) The ALJ failed to mention any of this in her administrative

decision.

(Pl.’s Br. 21-22.) This outline is very helpful because it makes it easy to see the flaw in

Plaintiff’s argument, which is the third proposition: “Any finding of severity means by definition

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that more than a minimal restriction exists.” Plaintiff has misunderstood the meaning of “severe”

at step two. 

The Third Circuit has explained the analysis at step two as follows:

The step-two inquiry is a de minimis screening device to dispose of groundless

claims. An impairment or combination of impairments can be found “not severe”

only if the evidence establishes a slight abnormality or a combination of slight

abnormalities which have no more than a minimal effect on an individual’s ability

to work. Only those claimants with slight abnormalities that do not significantly

limit any “basic work activity” can be denied benefits at step two. If the evidence

presented by the claimant presents more than a “slight abnormality,” the step-two

requirement of “severe” is met, and the sequential evaluation process should

continue. Reasonable doubts on severity are to be resolved in favor of the

claimant.

Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (citations omitted); accord

McCrea v. Commissioner, 370 F.3d 357, 360 (3d Cir. 2003) (“The burden placed on an applicant

at step two is not an exacting one. . . . Any doubt as to whether this showing has been made is to

be resolved in favor of the applicant.”). 

Thus, under Newell, the ALJ’s determination that Plaintiff’s “intermittent tremulousness”

was a severe impairment at step two means only that the claimant presented evidence sufficient

to at least raise the possibility that he has more than a slight abnormality in this regard. Plaintiff

has pointed to no law to support the proposition that finding a severe impairment at step two has

any impact on a claimant’s burden at step four – nor is this Court aware of any. It is highlighting

the obvious to note that steps two and four are different steps, and that it is frequently the case

that an ALJ finds a severe impairment at step two, but does not find that said impairment limits

the claimant’s residual functional capacity at step four.

It appears to this Court that Plaintiff would like to use the step two finding to relieve him

from the burden of proving at step four that his intermittent tremulousness limits his ability to

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work. Such relief is not available under Third Circuit law, and, at step four, Plaintiff bore the

burden of proving this. On review, this Court asks whether the ALJ’s determination that 3

intermittent tremulousness did not limit Plaintiff’s ability to work was supported by substantial

evidence. 

It is at this point, however, that the defects in the ALJ’s decision become apparent: the

ALJ did not focus on the question of whether the tremulousness was limiting, nor does the

decision carefully review the relevant evidence regarding Plaintiff’s tremulousness. Instead,

what this Court finds is that the ALJ documented that consultative examiner Dr. Makhija

reported Plaintiff’s tremulousness, but stopped there. (Tr. 13, 14, 265, 267.) 

The ALJ appears to have overlooked a number of important pieces of evidence in the

record. The ALJ appears to have overlooked the fact that Dr. Makhija was sufficiently concerned

about the tremulousness that one of his diagnoses was “Rule out Parkinson Disease.” (Tr. 267.)

Also, consultative examiner Dr. Flaherty reviewed Dr. Makhija’s report and stated: “He was

tremulous and the doctor thought Parkinson’s should be ruled out.” (Tr. 284.) Consultative

examiner Dr. Eisenstadt, under the heading “Neurological Disability,” wrote “Tremors and

weakness of arms + legs.” (Tr. 316.) Consultative examiner Dr. Stoller, a neurologist, also

reported Plaintiff’s tremulousness, and ruled out a diagnosis of Parkinson’s disease. (Tr. 288,

310.) In answer to the question, “Are there any other conditions which limit this individual’s

ability to do work related activities?” Dr. Stoller wrote: “tremor in hands 2E to anxiety.” (Tr.

 Plaintiff’s argument overlooks the important differences between the second and fourth 3

steps under Third Circuit law. At step two, the Third Circuit gives the claimant the benefit of the

doubt; at step four, it does not. This alone changes the burden of proof so greatly that a

determination that an impairment is severe at step two cannot control the outcome of the residual

functional capacity analysis at step four. 

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291.) 

Thus, the ALJ appears to have overlooked a substantial piece of evidence from Dr. Stoller

that Plaintiff’s tremulousness limited his ability to work. Furthermore, this Court finds a

substantial body of medical evidence of record that the ALJ failed to discuss in his decision. In

the face of so many doctors finding the tremulousness to be medically significant, the ALJ cannot

merely skip over the issue. 

The Regulations state: “We will assess your residual functional capacity based on all of

the relevant medical and other evidence.” 20 C.F.R. § 404.1545. The failure of an ALJ to follow

this Regulation constitutes a ground for remand, as in Fargnoli: 

The ALJ must consider all relevant evidence when determining an individual’s

residual functional capacity in step four. . . [W]e do expect the ALJ, as the

factfinder, to consider and evaluate the medical evidence in the record consistent

with his responsibilities under the regulations and case law. His failure to do so

here leaves us little choice but to remand for a more comprehensive analysis of

the evidence consistent with the requirements of applicable regulations and the

law of this Circuit. 

Fargnoli v. Halter, 247 F.3d 34, 41-42 (3d Cir. 2001). In the instant case, the ALJ failed to

consider and evaluate all the medical evidence relating to Plaintiff’s tremulousness in the record

– especially Dr. Stoller’s finding that his tremulousness limited his ability to work. Following

Fargnoli, the case will be remanded to the Commissioner so that the ALJ may conduct a more

comprehensive analysis of the evidence.

The Court notes that the ALJ’s failure to consider all the evidence regarding

tremulousness may well not be harmless error. Plaintiff argues that, at step five, given the crossexamination of the vocational expert, Dr. Feinstein, the Commissioner might not have been able

to carry his burden of proof that there exist jobs in significant numbers for someone with

Plaintiff’s characteristics, including limitations of hand use, and this may well be so. 

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This Court finds that the ALJ erred at step four by failing to consider all relevant

evidence. The decision of the Commissioner will be vacated, and the case remanded to the

Commissioner for further proceedings in accordance with this Opinion.

III. CONCLUSION

For the reasons stated above, this Court finds that the Commissioner’s decision is

vacated. and the case is remanded to the Commissioner for further proceedings in accordance

with this Opinion.

 s/ Stanley R. Chesler 

 STANLEY R. CHESLER, U.S.D.J. 

Dated: October 13, 2011

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