UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

JAMES JONES, : Civ. Action No. 10-3226 (NLH)

:

Plaintiff, :

:

 v. : OPINION

:

MICHAEL J. ASTRUE, :

COMMISSIONER OF SOCIAL :

SECURITY, : 

:

Defendants. :

 

APPEARANCES

Philip Wolf, Esq.

Wolf and Brown L.L.C.

228 Kings Highway East

Haddonfield, NJ 08033

Attorney for Plaintiff

Andreea Lechleitner

Special Assistant U.S. Attorney

Social Security Administration

Office of the Federal Counsel

26 Federal Plaza, Room 3904

New York, NY 10278

Attorney for Defendant

HILLMAN, District Judge

This matter comes before the Court pursuant to Section

205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g),

to review the final decision of the Commissioner of the Social

Security Administration, denying the application of plaintiff for

Disability Insurance Benefits and Supplemental Security Income

(“Social Security benefits”) under Title II and Title XVI of the

Social Security Act. 42 U.S.C. §401, et seq. 

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The issues before the Court are whether the

Administrative Law Judge (“ALJ”) erred in finding that there was

“substantial evidence” that plaintiff was not disabled as defined

in the Social Security Act, at any time from December 30, 1997,

the alleged onset date, through September 30, 2000, the date last

insured, and whether the ALJ erred in determining that plaintiff

could perform his past relevant work as a quality control

inspector, as a sedentary position, with the exception that he

could not perform work that required binocular vision or depth

perception. 

For the reasons stated below, the Court will reverse

the decision of the ALJ and remand the matter for further

proceedings.

I. Background

Plaintiff claims that between December 30, 1997 and

September 30, 2000, he was under a disability and that the

disability was at such a level of severity that it precluded him

from engaging in gainful activity or employment. Plaintiff

asserts his impairments as of the date last insured included but

were not limited to: right eye blindness, post-traumatic stress

syndrome, bi-lateral knee impairment, and cervical disc disease.

Plaintiff filed an application for disability insurance benefits

on February 15, 2006. The application was denied on June 13,

2006. Thereafter, plaintiff filed a request for reconsideration,

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which was denied on April 4, 2007. A request for hearing was

filed on May 7, 2007, and a hearing was held on July 24, 2008. 

The ALJ issued a written decision on September 12, 2008. The ALJ

denied the plaintiff’s claim at step four of the sequential

evaluation process finding that plaintiff could perform his past

relevant work as he previously had performed it. Plaintiff then

filed a request for appeals council review which was denied by

the appeals council on April 22, 2010. Thereafter, plaintiff

filed this action.

II. Discussion

A. Standard of Review

Under 42 U.S.C. §405(g), Congress provided for judicial

review of the Commissioner’s decision to deny a complainant’s

application for disability insurance benefits. Ventura v.

Shalala, 55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must

uphold the Commissioner’s factual decisions where they are

support by “substantial evidence.” 42 U.S.C. §§405(g),

1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.

2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams

v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). Substantial

evidence means more than “a mere scintilla.” Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938)). It means “such relevant

evidence as a reasonable mind might accept as adequate to support

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a conclusion.” Id. The inquiry is not whether the reviewing

court would have made the same determination, but whether the

Commissioner’s conclusion was reasonable. See Brown v. Bowen,

845 F.2d 1211, 1213 (3d Cir. 1988). 

A reviewing court has a duty to review the

evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70

(3d Cir. 1984). “[A] court must ‘take into account whatever in

the record fairly detracts from its weight.’” Schonewolf v.

Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks

v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th

Cir. 1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474,

488 (1951)).

The Commissioner “must adequately explain in the

record his reasons for rejecting or discrediting competent

evidence.” Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987)

(citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). The

Third Circuit has held that an “ALJ must review all pertinent

medical evidence and explain his conciliations and rejections.” 

Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir.

2000). Similarly, an ALJ must also consider and weigh all of the

non-medical evidence before him. Id. (citing Van Horn v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris,

642 F.2d 700, 707 (3d Cir. 1981). 

The Third Circuit has held that access to the

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Commissioner’s reasoning is indeed essential to a meaningful

court review: 

Unless the [Commissioner] has analyzed all

evidence and has sufficiently explained the weight

he has given to obviously probative exhibits, to say

that his 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 v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). 

Although an ALJ, as the fact finder, must consider and evaluate

the medical evidence presented, Fargnoli, 247 F.3d at 42,

“[t]here is no requirement that the ALJ discuss in its opinion

every tidbit of evidence included in the record.” Hur v.

Barnhart, 94 Fed. Appx. 130, 133 (3d Cir. 2004). In terms of

judicial review, a district court is not “empowered to weigh the

evidence or substitute its conclusions for those of the factfinder.” Williams, 970 F.2d at 1182. Moreover, apart from the

substantial evidence inquiry, a reviewing court is entitled to

satisfy itself that the Commissioner arrived at his decision by

application of the proper legal standards. Sykes, 228 F.3d at

262; Friedberg v. Schweiker, 721 F.2d 445, 445 (3d Cir. 1983);

Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).

 B. Standard for Disability Insurance Benefits

 The Social Security Act defines “disability for purposes

of an entitlement to a period of disability and disability

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insurance benefits as the inability to engage in any substantial

gainful activity by reason of any medically determinable physical

and/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.” See 42 U.S.C. §1382c(a)(3)(A). 

Under this definition, a Plaintiff qualifies as disabled only if

his physical or mental impairments are of such severity that he is

not only unable to perform his past relevant work, but cannot,

given his age, education, and work experience, engage in any other 

type of substantial gainful work which exists in the national

economy, regardless of whether such work exists in the immediate

area in which he lives, or whether a specific job vacancy exists

for him, or whether he would be hired if he applied for work. 42

U.S.C. §1382c(a)(3)(B).

The Commissioner has promulgated regulations for

determining disability that require application of a five step

sequential analysis. See 20 C.F.R. §404.1520. This five step

process is summarized as follows:

1. If the claimant currently is engaged in

substantial gainful employment, he will be found “not

disabled.”

2. If the claimant does not suffer from a

“severe impairment,” he will be found “not disabled.”

3. If the severe impairment meets or equals

a listed impairment in 20 C.F.R. Part 404, Subpart P,

Appendix 1 and has lasted or is expected to last for

a continuous period of at least twelve months, the

claimant will be found “disabled.”

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4. If the claimant can still perform work he

has done in the past (“past relevant work”) despite

the severe impairment, he will be found “not

disabled.”

5. Finally, the Commissioner will consider

the claimant’s ability to perform work (“residual

functional capacity”), age, education, and past work

experience to determine whether or not he is capable

of performing other work which exists in the national

economy. If he is incapable, he will be found

“disabled.” If he is capable, he will be found “not

disabled.” 

20 C.F.R. §404.1520(b)-(f).

This five-step process involves a shifting burden of

proof. See Wallace v. Secretary of Health & Human Servs., 722

F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the

analysis the burden is on the claimant to prove every element of

his claim by a preponderance of the evidence. See Id. In the

final step, the Commissioner bears the burden of proving that

work is available for the Plaintiff: “Once a claimant has proved

that he is unable to perform his former job, the burden shifts to

the Commissioner to prove that there is some other kind of

substantial gainful employment he is able to perform.” Kangas v.

Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v. Schweiker,

703 F.2d 751, 753 (3d Cir. 1983).

C. Analysis

Plaintiff raises the following arguments: (1) that the

ALJ’s residual functional capacity (“RFC”) finding lacks

substantial evidence because he failed to evaluate all of

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plaintiff’s medical evidence concerning his mental impairment,

his bi-lateral knee impairment, and his visual impairment; (2)

that the ALJ was incorrect in finding plaintiff’s testimony not

credible regarding the intensity and limiting effects of his

impairments; (3) that the ALJ failed to give proper consideration

regarding whether plaintiff met Listing 12.06 pertaining to

anxiety type disorders; (4) that the ALJ committed error in

finding that plaintiff’s cervical disc disease did not constitute

a severe impairment; and (5) that the ALJ was incorrect in

finding that plaintiff could perform his past relevant work. We

address each argument in the order raised by the plaintiff. 

1. Residual Functional Capacity 

Plaintiff argues that the ALJ’s residual functional

capacity (“RFC”) finding is not supported by substantial evidence

because, although he found them to be severe impairments, he

failed to evaluate all of plaintiff’s medical evidence concerning

his mental impairment, his bi-lateral knee impairment, and his

visual impairment.

Although the ALJ did find that plaintiff’s mental

impairment was severe, plaintiff argues that he did not explain

the limitations caused by this severe impairment or why he found

no work-related limitations despite medical evidence to the

contrary. Plaintiff states that the medical evidence supports a

finding that he suffers from post traumatic stress syndrome

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(PTSS) with phobic features as diagnosed by Dr. Richard Rubin. 

Plaintiff states that Dr. Rubin described his limitations due to

PTSS as fear of public scrutiny due to embarrassment resulting

from his cosmetic defect, ideas that people are talking about him

and staring at him, and reluctance to go into public. 

Plaintiff also argues that the ALJ failed to analyze

the functional limitations caused by plaintiff’s bi-lateral knee

impairment. Plaintiff refers to Dr. Lawrence Barr’s report in

which he states that plaintiff’s knee impairments resulted in

permanent injury and plaintiff would have to live with some

discomfort. 

In addition, plaintiff states that in discussing

plaintiff’s severe impairment of right eye blindness, the ALJ did

not analyze Dr. Rubin’s statements that plaintiff was troubled by

painful photophobia (light sensitivity) requiring use of

sunglasses, even indoors, from glare or overhead lights; that

plaintiff had fears of exposure to bright lights, dust, fumes,

all which caused irritation to the injured right eye; and that

plaintiff suffered from continuous pain. 

We reject this part of plaintiff’s argument because it

is clear to us that the ALJ fully considered the objective

medical evidence in determining Plaintiff’s RFC. Indeed, in

reaching the first part of his RFC conclusion he cited that

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evidence in support of his finding that plaintiff’s subjective

complaints could be explained by the described impairments. 

More specifically, the ALJ noted that on December 21,

1990, plaintiff severely injured his right eye while working and

underwent emergency surgery for a ruptured globe and dislocated

lens in his right eye. Plaintiff was diagnosed with traumatic

injuries to his right eye resulting in legal blindness (20/200

vision). Plaintiff’s vision in his left eye is 20/20. The ALJ

recited plaintiff’s subsequent eye surgeries in April 1991

(corneal lens implant), May 1991 (“scleral buckling procedure”

and “pars plana vitrectomy”), March 2003 (surgical evisceration

of his right eye with implantation of a prosthesis), January 2004

(right eye orbitotomy, lysis of scar tissue and placement of

hydroxyapatite granules), and September 2005 (external levator

resection right upper eyelid). 

The ALJ reviewed the three reports dated May 1991,

September 1994, and October 2004 from Dr. Rubin, plaintiff’s

neuropsychiatrist. The ALJ provided detailed findings from these

reports including Dr. Rubin’s impressions that plaintiff was in

some distress and concerned about injuring his left eye. Dr.

Rubin stated that plaintiff was depressed, nervous, suffered from

PTSS with phobic features, and was embarrassed by his facial

defect. Dr. Rubin noted that plaintiff lacked depth perception

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and peripheral vision and had difficulty judging distances. Dr.

Rubin opined that plaintiff suffered from anxiety and depression. 

The ALJ referenced Dr. Perry Barr’s report in which

plaintiff complained of headaches, right eye pain, difficulty

sleeping and nervousness. Dr. Barr noted drooping of plaintiff’s

right eyelid with discoloration and deformity of the right eye. 

The ALJ described injuries sustained by plaintiff

following a car accident on November 22, 1997. The ALJ cited to

a report by Dr. Scott Busch, an otolaryngologist, who treated

plaintiff for right sided tinnitus after hitting his head in the

auto accident, but who found plaintiff’s hearing normal and found

he had excellent speech discrimination. The ALJ also cited to a

report by Dr. Lawrence Barr, an orthopedist, who treated

plaintiff for shoulder pain and found range of motion of

plaintiff’s cervical spine was 70-75% of normal, marked myospasm

in both trapezii and over the anterior shoulder girdles, and

tenderness and spasm in the thoracic region. He diagnosed

plaintiff with posttraumatic cervical sprain and strain with

bilateral trapezial myofascitis and upper radicular sysmptoms, as

well as posttraumatic thoracic sprain and strain, and told

plaintiff to avoid strenuous activties. An MRI of plaintiff’s

cervical spine showed anterior disc bulging at C5-6, and

circumferential disc bulging at C6-7.

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The ALJ noted that plaintiff treated with Dr. Barr

again in February 1988 for neck pain, intermittent discomfort

radiating into his right arm, and swelling, clicking, popping and

pain in his knees. Plaintiff was diagnosed with probable medial

meniscal tear in his left knee and underwent knee arthroscopic

surgery in April 1998. The ALJ described plaintiff’s return

visit to Dr. Barr in July 1998 who noted that plaintiff’s knee

was doing well with some stiffness and clicking, but that he had

chronic traumatic cervical sprain and strain with a bulging disc

at C6-7 and an anterior disc at C5-6 with bilateral trapezial

myofascitis. The ALJ also described other follow up visits to

Dr. Barr regarding plaintiff’s right knee pain which eventually

lead to right knee arthroscopic surgery in November 2000 to

repair a medial meniscal tear. 

Thus, the ALJ reviewed and comprehensively considered

plaintiff’s medical records regarding his mental impairment, his

bi-lateral knee impairment, and his visual impairment. The ALJ

noted that Dr. Rubin stated that plaintiff suffered from PTSS

with phobic features. Although the ALJ does not specifically

acknowledge that Dr. Rubin described plaintiff’s limitations due

to PTSS as fear of public scrutiny due to embarrassment resulting

from his cosmetic defect, ideas that people are talking about him

and staring at him, and reluctance to go into public, the ALJ did

note that Dr. Rubin opined that plaintiff was in some distress,

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nervous, embarrassed by his facial defect, and suffered from

anxiety and depression. The specific limitations that plaintiff

raises are merely examples of what the ALJ cited to generally as

plaintiff’s behavior in feeling distressed, embarrassed, anxious

and depressed. 

With regard to plaintiff’s bi-lateral knee injury, the

ALJ described at length plaintiff’s surgeries and complaints of

knee pain. Although Dr. Lawrence Barr stated that plaintiff’s

knee impairments resulted in permanent injury and that plaintiff

would have to live with some discomfort, he also felt that

plaintiff’s knee was doing well. In addition, the ALJ did note

plaintiff’s complaints of difficulty bending, lifting and

walking.

The ALJ also fully described plaintiff’s eye injury,

subsequent surgeries, and complaints of pain. Although the ALJ

did not specifically cite to Dr. Rubin’s statements that

plaintiff was troubled by painful photophobia, and fears of

exposure to bright lights, dust, and fumes, he did refer to

plaintiff’s complaints in more general terms as complaints of

pain and anxiety. In addition, the ALJ noted plaintiff’s

complaints of eye irritation, particularly by fumes, and problems

with equilibrium and inclement weather.

The ALJ does not need to cite to every opinion noted in

a medical providers’ records. See Barnhart, 94 Fed. Appx. at 133

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(“There is no requirement that the ALJ discuss in its opinion

every tidbit of evidence included in the record.”). More

importantly, plaintiff does not show how these limitations, even

if specifically addressed by the ALJ, would result in plaintiff

having a RFC different from the RFC assessed by the ALJ. The ALJ

found that plaintiff had an RFC to perform sedentary work as

defined in 20 C.F.R. 404.1567(a), with the exception that he

could not perform work that required binocular vision or depth

perception. Plaintiff does not show how consideration of these

specific limitations would change that assessment. However, as

stated above, the Court finds that the ALJ did cover many if not

all of these limitations in more general terms. In sum, we are

convinced that the ALJ adequately reviewed and considered the

medical evidence, at least in evaluating during the RFC analysis

whether the medical evidence would support plaintiff’s more

subjective complaints. 

2. Credibility 

We are less convinced that the ALJ, after having

reviewed the underlying medical conditions in some detail,

adequately explained why he rejected plaintiff’s subjective

complaints. Plaintiff argues that the ALJ was incorrect in

finding plaintiff’s testimony not credible regarding the

intensity and limiting effects of his impairments. He argues

that the ALJ failed to consider his complaints of eye pain,

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headaches, sleeping problems, knee pain and swelling, and

photophobia. We agree. Because the ALJ did not include specific

instances where plaintiff’s complaints were inconsistent with

other evidence in the record, this Court cannot determine whether

the ALJ’s finding was supported by substantial evidence.

“Allegations of pain and other subjective symptoms must

be supported by objective medical evidence.” Hartranft v. Apfel,

181 F.3d 358, 362 (3d Cir. 1999), citing 20 C.F.R. § 404.1529. 

“Once an ALJ concludes that a medical impairment that could

reasonably cause the alleged symptoms exists, he or she must

evaluate the intensity and persistence of the pain or symptom,

and the extent to which it affects the individual’s ability to

work.” Id. “This 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.” Id.,

citing 20 C.F.R. § 404.1529(c).

Here, the ALJ cited plaintiff’s testimony that he has

difficulty bending, lifting and walking; that his eyes get

irritated, particularly by fumes; that he gets depressed; and

that he has problems with his equilibrium and inclement weather. 

The ALJ found that although the plaintiff’s impairments could

reasonably be expected to produce the alleged symptoms, he also

concluded Plaintiff’s statements concerning the intensity,

persistence and limiting effects of these symptoms were not

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credible to the extent they were inconsistent with the RFC

assessment. 

While it is clear the ALJ reached that conclusion we

are unable to ascertain why. Based on the record, the Court

cannot determine what part of the RFC assessment showed that

plaintiff’s complaints were inconsistent with the medical

records. By way of example, in Hartranft, the Third Circuit

upheld the ALJ’s credibility determination because the ALJ

supported his finding with specific instances where Hartranft’s

complaints about pain and other subjective symptoms were

inconsistent with: 1) the objective medical evidence of record;

2) Hartranft’s testimony as to his rehabilitation and medication

regimen; and 3) Hartranft’s own description of his daily

activities.

Here, it is unclear what evidence specifically

contradicted plaintiff’s complaints of difficulty bending,

lifting and walking, eye irritation, and depression. To be

clear, we are not ruling that such evidence does not exist. 

However, without specific reference to the record by the ALJ, we

are unable to conclude the ALJ’s credibility determination was

supported by substantial evidence. On remand, the ALJ will be

free to, but at the same time must, explain with specific

reference to the record why he found Plaintiff not credible. 

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3. Listing 12.06 (Anxiety Disorder)

Plaintiff further argues that the ALJ failed at step 3

to give proper consideration to whether plaintiff met Listing

12.06 pertaining to anxiety type disorders. Specifically,

plaintiff argues that the ALJ did not consider Dr. Rubin’s

reports which provide substantial evidence that plaintiff meets

this Listing. Because the ALJ did not specifically describe

plaintiff’s daily or social activities, or ability to function

independently, this Court cannot determine whether the ALJ’s

finding was correct.

At step three, the ALJ must determine whether

plaintiff’s impairment matches, or is equivalent to, one of the

listed impairments. The ALJ must go beyond reaching a bare

conclusion and provide an analysis that can be subject to

judicial review. See Burnett v. Commissioner of Social Sec.

Admin., 220 F.3d 112, (3d Cir. 2000) (remanding case where ALJ

only provided single, conclusory statement that the plaintiff’s

impairment failed to equal the level of severity of any disabling

condition contained in Appendix 1, Subpart P of Social Security

Regulations No. 4). The holding in Burnett, however, “... does

not require the ALJ to use particular language or adhere to a

particular format in conducting his analysis.” Jones v.

Barnhart, 364 F.3d 501, 504 (3d Cir. 2004). “Rather, the

function of Burnett is to ensure that there is sufficient

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development of the record and explanation of findings to permit

meaningful review.” Id.

Here, unlike in Burnett, the ALJ identified what he

considered the relevant Listing for plaintiff’s mental

impairment. When evaluating Listing 12.06, “the required level

of severity for these disorders is met when the requirements of

both A and B are satisfied, or when the requirement in both A and

C are satisfied.” See 20 C.F.R. Part 404, Subpart P, Appendix 1,

§12.06. 

1

 Paragraph 12.06 A, B, and C, state: 1

“A. Medically documented findings of at least one of the

following:

1. Generalized persistent anxiety accompanied by three out of

four of the following signs or symptoms:

a. Motor tension; or

b. Autonomic hyperactivity; or 

c. Apprehensive expectation; or

d. Vigilance and scanning; or

2. A persistent irrational fear of a specific object,

activity, or situation which results in a compelling desire

to avoid the dreaded object, activity, or situation, or

3. Recurrent severe panic attacks manifested by a sudden

unpredictable onset of intense apprehension, fear, terror,

and sense of impending doom occurring on the average of at

least once a week; or

4. Recurrent obsessions or compulsions which are a source of 

marked distress; or

5. Recurrent and intrusive recollections of a traumatic

experience, which are a source of marked distress;

 AND

B. Resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, 

persistence, or pace; or

4. Repeated episodes of decompensation each of extended

duration 

 OR

C. Resulting in complete inability to function independently

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The ALJ made the following findings with regard to

whether the paragraph “B” criteria were satisfied: (1) in 2

activities of daily living, the plaintiff has mild restriction;

(2)in social functioning, the plaintiff has mild difficulties;

(3) with regard to concentration, persistence or pace, the

plaintiff has mild difficulties; and (4) as for episodes of

decompensation, the plaintiff had experienced no episodes of

decompensation. The ALJ found no “marked” restrictions or

difficulties in such activities. The ALJ stated that “[a] 3

marked limitation means more than moderate but less than extreme”

and found that plaintiff’s “... mental impairment did not cause

at least two ‘marked’ limitations or one ‘marked’ limitation and

‘repeated’ episodes of decompensation... .” The ALJ concluded

that the “paragraph B” criteria were not satisfied. The ALJ also

stated that the evidence did not “...establish the presence of

the ‘paragraph C’ criteria.” 

Although the ALJ identified the relevant Listing and

stated his findings under paragraphs B and C, the ALJ did not

support the findings with adequate references to the record. 

Although he does extensively cite to plaintiff’s medical history,

there is no discussion regarding plaintiff’s daily activities,

his social activities or his ability to function independently. 

outside the area of one’s home.” 20 C.F.R. Pt. 404, Subpt. P.,

Appx. 1, 12.06, A-C.

We assume that the ALJ found Paragraph A criteria satisfied. 2

See footnote 1, supra. 3

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Cf. Barnhart, 364 F.3d at 505 (finding that ALJ’s decision

supported because it discussed the evidence pertaining to lack of

pulmonary complications, a finding that claimant’s lungs were

clear, and claimant’s medical history which showed no frequent

hospitalization or emergency treatments). Without some reference

to the record as to why the ALJ concluded that plaintiff did not

meet the criteria in paragraphs B and C, this Court cannot

conduct a meaningful review. Accordingly, on remand, the ALJ

should elaborate on, with specific reference to the record, why

he characterized plaintiff’s restrictions on activities of daily

living, social functioning, and concentration, persistence or

pace as mild despite plaintiff’s testimony to the contrary. 

4. Cervical Disc Disease

 Plaintiff argues that the ALJ committed error in not

addressing whether plaintiff’s cervical disc disease constituted

a severe impairment. We agree but conclude this error was

harmless. At step two, the ALJ has to “consider the medical

severity of a claimant’s impairment(s).” 20 C.F.R.

§404.1520(a)(4)(ii). “The severity test at step two is a ‘de

minimis screening device to dispose of groundless claims.’” 

McClease, 2009 WL 3497775, *4 (quoting McCrea v. Comm’r of Soc.

Sec., 370 F.3d 357, 360-361 (3d Cir. 2004)) (quoting Newell v. 

Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003)). The

severe impairment “... must have lasted or must be expected to

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last for a continuous period of at least twelve months.” 20

C.F.R. §404.1509. In order to have a severe impairment(s), the

impairment or combination thereof must significantly limit a

person’s “physical or mental ability to do basic work

activities.” 20 C.F.R. §404.1520(c).

Even if an ALJ erroneously decides at step two that a

certain impairment was not severe, but finds another is, such

error may be harmless. See Salles v. Commissioner of Social Sec.,

229 Fed.Appx. 140, 145 n. 2 (3d Cir. 2007) (stating that

“[b]ecause the ALJ found in Salles’s favor at Step Two, even if

he had erroneously concluded that some of her other impairments

were non-severe, any error was harmless.”) (citing Rutherford v.

Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)); Rivera v.

Commissioner of Social Sec., 164 Fed.Appx. 260, 262 n. 2 (3d Cir.

2006) (stating that “Rivera also argues that the ALJ committed

errors in the second step, but the ALJ found in her favor at that

step (holding that she did have a severe impairment), so any such

errors were harmless.”); McClease v. Commissioner of Social

Security, No. 08-1673, 2009 WL 3497775, at * 10 (E.D.Pa. Oct. 28,

2009) (“[E]ven if an ALJ erroneously determines at step two that

one impairment is not “severe,” the ALJ’s ultimate decision may

still be based on substantial evidence if the ALJ considered the

effects of that impairment at steps three through five.”);

Holcomb v. Astrue, No. 07-863, 2008 WL 3539987, at *5 (W.D.Pa.

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Aug. 13, 2008) (“Where a claim proceeds past the second step

because of the existence of other impairments, however, an

erroneous determination as to a particular impairment may be

inconsequential.”). 

Here, although the ALJ did cite to the medical record

indicating that plaintiff had cervical sprain and strain and disc

bulging, he did not provide any discussion on whether plaintiff’s

cervical condition constituted a severe impairment. However,

even if plaintiff’s cervical condition could be considered a

severe impairment, the omission by the ALJ is harmless error

since he found that plaintiff’s right eye blindness, PTSS, and

internal derangement of knees to be severe impairments prompting

his analysis to continue, and since the ALJ discussed plaintiff’s

cervical condition in determining his RFC. See id. Ultimately,

the ALJ found that plaintiff could perform sedentary work as

defined in 20 C.F.R. 404.1567(a). Sedentary work is described

as:

lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket

files, ledgers, and small tools. Although a sedentary

job is defined as one which involves sitting, a certain

amount of walking and standing is often necessary in

carrying out job duties. Jobs are sedentary if walking

and standing are required occasionally and other

sedentary criteria are met.

See 20 C.F.R. 404.1567(a). Sedentary work is the least physical

of the classification of jobs which includes sedentary, light,

medium, heavy, and very heavy. See id. Thus, even if

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plaintiff’s medical condition was included among his severe

impairments, the ALJ had included medical information regarding

plaintiff’s cervical condition in his RFC analysis and had

assigned the lowest job classification. There is no evidence to

suggest that classifying his cervical condition as a severe

impairment would have resulted in a different RFC or job

classification. 

5. Past Relevant Work 

Plaintiff argues that the ALJ was incorrect in finding

that plaintiff could perform his past relevant work because the

job description for an “inspector, general (any industry)” DOT

No. 609-684-010 requires frequent reaching and frequent depth

perception, which activities plaintiff is unable to do. Since we

found the analysis incomplete as to plaintiff’s credibility

regarding his limitations, and as to plaintiff’s activities and

ability to function independently with regard to his mental

impairment Listing, it is unclear whether the ALJ’s express

consideration of these issues would alter the past relevant work

analysis and, therefore, the matter must be remanded. 

The relevant provision of the Social Security Act

requires that an applicant for disability benefits demonstrate

that “his physical or mental impairment or impairments are of

such severity that he is ... unable to do his previous work....”

42 U.S.C. § 423(d)(2)(A). See Martin v. Sullivan, 901 F.2d 650,

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653 (8 Cir. 1990)(rejecting argument that plaintiff could not th

return to his past relevant work as a stockroom attendant because

his past job required light exertion while he is now capable only

of sedentary work); Jock v. Harris, 651 F.2d 133, 135 (C.A.N.Y.

1981)(finding it proper for the ALJ to notice that the occupation

of “cashier” encompassed sedentary jobs as well as jobs that may

require extended periods of standing or occasional supplemental

work requiring greater amounts of exertion). 

Therefore, even if plaintiff is unable to do the type

of work he performed as an inspector according to the DOT

description, he would also have to prove that he is unable to

perform his previous work as he actually performed it. Although

the type of work performed by an inspector general is considered

“light,” based on the record and the plaintiff’s testimony, the

ALJ found that the plaintiff’s past work as an inspector was

sedentary as he performed it. The ALJ noted that plaintiff

stopped working because he was terminated, not because he was

unable to do the work and that after he was terminated he

continued to look for work. 

Nevertheless, we have found the analysis incomplete as

to plaintiff’s credibility regarding his limitations, as to

plaintiff’s daily and social activities, and his ability to

function independently with regard to his mental impairment

Listing. It is therefore not clear whether the ALJ’s express

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consideration of these issues would alter his past relevant work

analysis. For instance, if the ALJ found that plaintiff was

indeed limited in certain activities, it may alter his analysis

that plaintiff could perform his job as an inspector, as he

performed it, as a sedentary job, with the exception that he

could not perform work that required binocular vision or depth

perception. Alternatively, after explaining his analysis, the

ALJ’s determinations that plaintiff’s testimony was not credible,

and that plaintiff did not meet Listing 12.06 could remain the

same, so that his conclusion that plaintiff could perform his

past relevant work, as he performed it - sedentary with the

visual exceptions - remains unchanged. On remand, the ALJ should

expressly address this issue. 

Accordingly, the decision of the ALJ will be reversed and

the matter shall be remanded for proceedings consistent with this

Opinion.

An Order shall be entered consistent with this Opinion.

 S/Noel L. Hillman 

NOEL L. HILLMAN, U.S.D.J.

Dated: September 26, 2011 

At Camden, New Jersey

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