IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

BARBARA FISHER,

Plaintiff,

v.

MICHAEL ASTRUE, COMMISSIONER

OF SOCIAL SECURITY

ADMINISTRATION,

Defendant.

HON. JEROME B. SIMANDLE

CIVIL NO. 11-01634 (JBS)

OPINION

APPEARANCES:

Alan H. Polonsky, Esq. 

512 South White Horse Pike 

Audubon, NJ 08106 

Attorney for Plaintiff

Paul J. Fishman

UNITED STATES ATTORNEY

By: David L. Brown

Special Assistant United States Attorney

Social Security Administration 

Office of the General Counsel

26 Federal Plaza, Suite 3904

New York, NY 10278

Attorney for Defendant

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter comes before the Court pursuant to 42 U.S.C. §

405(g) for review of the final decision of the Commissioner of

the Social Security Administration denying Plaintiff Barbara

Fisher’s application for Disability Insurance Benefits and

Supplemental Security Income under Title II and Title XVI of the

Social Security Act (the “Act”).

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At issue in this case is whether there is substantial

evidence in the record that was fully and fairly developed to

support the Administrative Law Judge’s (“ALJ”) determination that

Plaintiff’s impairments were not severe enough to qualify her as

disabled under the Social Security Act. For the reasons explained

below, the Court will remand the case to the Commissioner of

Social Security to reconsider Plaintiff’s request for Disability

Insurance Benefits. 

II. BACKGROUND

A. Procedural Background

Plaintiff, Barbara Fisher, was born December 24, 1961. Pl’s

Brief at 4. Plaintiff applied for Disability Insurance Benefits

under Title II of the Social Security Act on November 2, 2006. 

Compl. at 1. The application was initially denied on December

19, 2007. R. at 9. Plaintiff subsequently requested a hearing

before an ALJ. R. at 9. The hearing was held on August 31,

2009. R. at 9. On October 20, 2009, the ALJ issued a final

decision, finding that Plaintiff was not disabled under the

Social Security Act and was therefore not entitled to disability

benefits. R. at 18-19. The Appeals Council denied further

review on February 11, 2011. Compl. at 1. Plaintiff timely

filed the instant complaint on March 24, 2011, asking the Court

to reverse the final judgment of the Commissioner of Social

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Security, or alternatively remand the case to reconsider

Plaintiff’s request.

B. Medical Reports

Several medical and psychiatric reports from a number of

physicians and psychologists were submitted. Relevant to the

present appeal are the reports submitted by Dr. Gary Goldstein,

M.D., Dr. Ronald Karpf, Ph.D., and Dr. Richard Filippone, Ph.D.,

because they were relied upon by the ALJ in reaching his

decision.

Dr. Goldstein, an orthopedist, had been treating and

evaluating Plaintiff for her physical injuries which resulted

from her automobile accidents on December 17, 2005 and March 31,

2007. R. at 529-45; Pl’s Brief at 8. Dr. Goldstein had been

treating Plaintiff for “musculoskeletal symptomatology.” R. at

529. After numerous consultations between May 2007 and November

2007, Dr. Goldstein concluded that Plaintiff was “mechanically

capable of working in a variety of situations,” and did not

“qualify for disability from an orthopedic standpoint.” R. at

529. Dr. Goldstein again evaluated Plaintiff on a number of

occasions between October 2008 and August 2009. R. at 604-08. 

He classified her symptomatology as “ongoing and permanent,” but

relatively “unchanged.” R. at 604, 608. Dr. Goldstein’s later

reports also note Plaintiff’s complaints regarding her diffuse

pain, headaches, neck pain, lower back pain, and pain radiating

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to her arms and left leg. R. at 604.

Dr. Karpf, a psychologist, evaluated Plaintiff and submitted

his report November 19, 2007. R. at 552-56. Dr. Karpf reported

that Plaintiff has a dysthymic disorder and would occasionally

have “a major depressive episode which would make her depression

more severe.” R. at 554. Dr. Karpf also reported that Plaintiff

claimed to have “some delusions,” but he believed that she “was

exaggerating some of her symptoms.” R. at 554-55. Overall, Dr.

Karpf diagnosed Plaintiff as having a dysthymic disorder and

generalized anxiety disorder. R. at 556.

Dr. Filippone, a non-examining State Agency psychologist,

provided a report based on Dr. Karpf’s evaluations of Plaintiff. 

Def’s Brief at 11-12; R. at 557-73. Dr. Filippone’s report

reiterated everything Dr. Karpf reported. R. at 557-73. He also

noted that Plaintiff’s reported symptoms to Dr. Karpf were

inconsistent with her “activities of daily living,” but were 1

still partially credible. R. at 573. 

C. ALJ Opinion

After reviewing the applicable law, the ALJ first determined

that Plaintiff met the insured status requirements of the Social

Security Act through December 31, 2010. R. at 11. The ALJ

Dr. Filippone noted that Plaintiff socialized, “goes to 1

weekend [sic] church, [birth]day parties, and gets along with

everybody. . . . [S]he babysits grandchildren, cooks for herself,

pays her own bills, manage[s] money, read[s], [and] plays bingo.” 

R. at 573.

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proceeded through the regulatory five-step analysis for

determining whether an individual is “disabled” or “not

disabled,” as defined by the Act.

In step one, the ALJ found that Plaintiff did not engage in

substantial gainful activity during the time period from her

alleged onset date of February 24, 2006, through her date last

insured. R. at 11. In step two, the ALJ concluded that

Plaintiff had several severe impairments: moderate sized broadbased disc herniation, discectomy, anterior cervical discectomy,

dysthymic disorder and generalized anxiety disorder. R. at 11. 

In step three, the ALJ determined that Plaintiff did not have an

impairment or combination of impairments that met or medically

equaled one of the impairments listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1. R. at 13.

In steps four and five, the ALJ found that through the date

last insured, Plaintiff was unable to perform her past relevant

work, but had “the residual functional capacity to perform

sedentary work . . . limited to simple, routine, repetitive work;

and moderate limitations in understanding, remembering, and

carrying out detailed instructions.” R. at 14. 

The ALJ explained that his steps four and five analyses were

based on “the medical evidence of the record; the claimant’s

symptom magnification which undermine her credibility; and the

opinions of Dr. Goldstein, Dr. Karpf, and Dr. Filippone”; along 

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with Plaintiff’s “age, education, and work experience in

conjunction with the Medical-Vocational Guidelines.” R. at 17-

18. The ALJ refers to four Social Security Rulings (“SSRs”) as

the basis for his reliance on the Medical-Vocational Guidelines. 

R. at 18.

Based on Plaintiff’s determined residual functional

capacity, age, education, and work experience, the ALJ found that

jobs existed in significant numbers in the national economy that

she could perform, ultimately concluding that she was not under a

disability, as defined by the Social Security Act, from February

24, 2006 to the date of his decision. R. at 18.

III. DISCUSSION

A. Standard of Review

This Court is empowered by 42 U.S.C. § 405(g) to review the

Commissioner’s decision to deny benefits. See Ventura v. Shalala,

55 F.3d 900, 901 (3d Cir. 1995). The Court must uphold the

Commissioner’s factual findings where they are supported by

“substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3);

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). 

Substantial evidence means more than “a mere scintilla.” 

Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28

L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). It means

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“such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id.

To facilitate this Court’s review, the ALJ must set out a

specific factual basis for each finding. Baerga v. Richardson,

500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S. 931, 95 S.Ct.

1133, 43 L.Ed.2d 403 (1975). Additionally, the ALJ “must

adequately explain in the record [the] reasons for rejecting or

discrediting competent evidence.” Ogden v. Bowen, 677 F.Supp.

273, 278 (M.D.Pa. 1987).

B. Analysis

Plaintiff challenges the ALJ’s findings with respect to

whether they are supported by substantial evidence regarding the

ALJ’s evaluation of various examiners’ opinions and the ALJ’s

assessment of Plaintiff’s credibility. Furthermore, Plaintiff

alleges that the ALJ’s finding that she is not disabled is

improper under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000). 

Specifically, Plaintiff challenges the ALJ’s finding with regard

to step five and the ALJ’s conclusion as to the residual

functional capacity of the Plaintiff.

i. Disability Defined

The Social Security Act defines “disability” for purposes of

Plaintiff’s entitlement to benefits as the inability “to engage

in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

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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. §

1382c(a)(3)(A). Under this definition, a claimant qualifies as

disabled “only if his physical or mental impairment or

impairments 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, 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). 

Substantial gainful activity is defined as “work that - (a)

involves doing significant and productive physical or mental

duties; and (b) is done (or intended) for pay or profit.” 20

C.F.R. § 404.1510. Importantly, this definition presupposes a

regular, continuing, and sustained ability to perform such work. 

Kangas v. Bowen, 823 F.2d 775, 778 (3d Cir. 1987).

The Commissioner has promulgated regulations that determine

disability by application of a five-step sequential analysis

codified in 20 C.F.R. § 404.1520. The Commissioner evaluates

each case according to a five-step process until a finding of

“disabled” or “not disabled” is obtained. 20 C.F.R. §

404.1520(a). This five-step process is summarized as follows:

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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.” 

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, a

finding of disability will be entered. On the

other hand, if the claimant can perform other

work, he will be found not to be disabled. 

20 C.F.R. § 404.1520(b)-(f). 

This analysis involves a shifting burden of proof. Wallace

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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 her claim by a

preponderance of the evidence. In the final step, however, the

Commissioner bears the burden of proving that work is available

for the claimant: “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, 823 F.2d at 777. See

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

ii. Reliance on Medical Vocational Guidelines

Plaintiff claims that “[w]here a claimant suffers from a

non-exertional [i.e. mental] impairment, the ALJ may not rely

solely on the medical vocational guidelines to find the plaintiff

disabled; the Commissioner must rebut the claimant’s evidence by

using a vocational expert.” Pl’s Brief at 20. Defendant argues

that because the ALJ “relied on [SSR] 85-15” and “found that

plaintiff was capable of performing unskilled sedentary work, the

ALJ was entitled to rely on the medical-vocational guidelines.” 

Def’s Brief at 16-17. 

As mentioned above, at step five of the sequential analysis,

the burden of proving that work is available for the claimant

shifts to the Commissioner to prove that there is some other kind

of substantial gainful employment that the claimant is able to

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perform. Kangas, 823 F.2d at 777. The ALJ must determine

whether Plaintiff, “considering age, education, mental and

physical limitations and work experience[,] ‘has the capacity to

perform specific jobs that exist in the national economy.’”

Olsen, 703 F.2d at 753 (quoting Rossi v. Califano, 602 F.2d 55,

57 (3d Cir. 1979)). Depending on the ALJ’s interpretation of the

available evidence, the ALJ may either rely on the present record

for this finding or collect additional information. The ALJ

must, however, conduct his inquiry using the proper legal

standards as enumerated in 20 C.F.R. § 404.1501-1599.

A vocational expert may be used when “the issue in

determining whether you are disabled is whether your work skills

can be used in other work and the specific occupations in which

they can be used.” 20 C.F.R. § 404.1566(3)(1995). Two decisions

offer support for the contention that the testimony of a

vocational expert should be considered. Santise v. Schweiker,

676 F.2d 925, 935 (3d Cir. 1982) (holding that the Commissioner

“must persuade an ALJ . . . that jobs exist in the national

economy that the claimant is able to fill”; the introduction of

“a vocational expert as to which, if any, positions can be

performed by a person possessing the applicant’s particular

skills” will suffice.); Singleton v. Schweiker, 551 F. Supp. 715,

723-24 (E.D. Pa. 1982) (noting that in making the “residual

functional capacity” determination, the Commissioner may present

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evidence through the use of a vocational expert).

An ALJ, however, is never required to use a vocational

expert, but rather has discretionary power to do so. See C.F.R.

§ 404.1566(e). At step five, the ALJ need only rely on

“competent evidence”, not necessarily the opinion of a vocational

expert, in determining whether the claimant can perform sedentary

work. See Gilliand v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986). 

Where no significant or substantial non-exertional impairments

exist, the Third Circuit has endorsed the use of the MedicalVocational Guidelines (“grids”) in step five of the sequential

process rather than vocational experts. Santise, 676 F.2d at

934-35.

If the grids call for a finding of disability, the ALJ is

bound by them, and may not rely on the testimony of a vocational

expert to find otherwise. Cooper v. Sullivan, 880 F.2d 1152,

1156-57 (9th Cir. 1989). The grids, however, are to be used only

for purely exertional impairments. Green v. Schweiker, 749 F.2d

1066, 1072 (3d Cir. 1984). If the claimant has non-exertional

impairments, the Commissioner must rebut the claimant’s evidence

by using a vocational expert or other evidence. Gilliland , 786

F.2d at 183-84. With a combination of exertional and nonexertional impairments, even using grids as a “framework” does

not eliminate the requirement of a finding of specific jobs a

claimant can perform. Welch v. Bowen, 854 F.2d 436 (11th Cir.

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1988). The ALJ cannot “determine[] that the claimant’s

nonexertional impairments did not significantly erode her

occupational base under the medical-vocational guidelines without

either taking additional vocational evidence establishing this or

providing notice to the claimant of his intention to take

official notice of this fact (and providing the claimant with an

opportunity to counter the conclusion).” Diaz v. Comm’r of Soc.

Sec., Civ. No. 10-392, 2010 WL 5288206, at *1 (D.N.J. Dec. 15,

2010) (citing Sykes, 228 F.3d at 261).

Plaintiff argues that the ALJ did not comply with Sykes in

reaching his finding that she is “not disabled.” Here, at step

two of the sequential analysis, the ALJ determined that Plaintiff

has severe mental impairments--“dysthymic disorder and

generalized anxiety disorder.” R. at 11. At step three of the

sequential analysis, the ALJ determined that Plaintiff’s mental

impairment did not meet or equal a listed impairment in 20 C.F.R.

Part 404, Subpart P, Appendix 1. R. at 13. Next, at step four,

the ALJ found that Plaintiff was “not capable of performing her

past relevant work.” R. at 17. Lastly, at step five, the ALJ

held that Plaintiff’s “additional non-exertional limitations do

not significantly erode the sedentary occupational base; and

therefore, a finding of ‘not disabled’ is appropriate under”

Medical-Vocational Rule 201.21. R. at 18. 

In concluding as such, the ALJ referenced four Social

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Security Rulings (“SSRs”). “SSRs are agency rulings published

under the authority of the Commissioner of Social Security, and

they can be relied on as precedents in other applicable cases.” 

Fullaway v. Astrue, Civ. No. 06-5771, 2008 WL 877968, at *5

(D.N.J. Mar. 28, 2008) (citing 20 C.F.R. § 402.35(b)(1); Heckler

v. Edwards, 465 U.S. 870, 873 n.3, 104 S.Ct. 1532, 79 L.Ed.2d 878

(1984)). Again, if non-exertional limitations are present, “the

ALJ cannot rely solely on the grids and is required to determine

if the non-exertional impairments significantly erode the

claimant’s occupational base.” Fullaway, 2008 WL 877968, at *5

(citing Sykes, 228 F.3d at 269). As the Commissioner correctly

notes, though, in making such a determination, an ALJ is

permitted to rely on an SSR or other rulemaking by the Social

Security Commission as a substitute for a vocational expert. See

Allen v. Barnhart, 417 F.3d 396, 406 (3d Cir. 2005); Fullaway,

2008 WL 877968, at *5. 

However, “if the Secretary wishes to rely on an SSR as a

replacement for a vocational expert, it must be crystal-clear

that the SSR is probative as to the way in which the

nonexertional limitations impact the ability to work, and thus,

the occupational base.” Allen, 417 F.3d at 407. Moreover, “if

the ALJ plans to rely on an SSR rather than make an

individualized determination based on the testimony of a

vocational expert, the ALJ ought to give the claimant notice of

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this.” Fullaway, 2008 WL 877968, at *7 (citing Allen, 417 F.3d

at 407).

Here, the ALJ found that, “using the [grids] as a framework

. . . the claimant is ‘not disabled.’” R. at 18. Furthermore,

citing four SSRs--SSR 83-11, SSR 83-12, SSR 83-14, and SSR 85-15

--the ALJ held that “the additional non-exertional limitations do

not significantly erode the sedentary occupational base; and,

therefore, a finding of ‘not disabled’ is appropriate under the

framework of” the grids. R. at 18. 

The Third Circuit in Meyler v. Commissioner of Social

Security, 238 Fed. Appx. 884 (3d Cir. 2007), dealt with a similar

situation where the “ALJ relied upon SSR 85-15 and SSR 83-10

without calling a vocational expert, and without providing

advanced notice to Meyler so she could call her own vocational

expert.” Meyler, 238 Fed. Appx. at 890. The Meyler court

“vacate[d] and remand[ed] for further explanation by the ALJ [as

to] how Meyler’s specific limitations affect[ed] her ability to

perform unskilled work in a job that constitutes substantial

gainful employment.” Id. at 890-91. The court noted that the

ALJ did “not explain how Meyler’s particular mental impairments

relate[d] to the categories or examples in SSR 85-15.” Id. at

890. Nor did the ALJ explain why, under the cited SSRs, Meyler’s

non-exertional impairments “did not prevent her from meeting the

mental demands of unskilled work.” Id. Thus, the Meyler court

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held that the “ALJ’s decision [was] not supported by substantial

evidence.” Id.

Similar to Meyler, the ALJ here relied on SSRs without

expressly explaining how Plaintiff’s “mental impairments relate

to the categories or examples in” the cited SSRs. Id.; R. at 18. 

The ALJ relied upon SSRs without (1) calling a vocational expert,

(2) providing advanced notice to Plaintiff so she could call her

own vocational expert, or (3) explaining how Plaintiff’s specific

limitations relate to the SSRs relied upon. Thus, this Court

finds that the ALJ’s conclusion that Plaintiff’s non-exertional

limitations did not significantly erode her occupational base is

not supported by substantial evidence. 

Therefore, this Court will vacate and remand this matter to

allow the ALJ to develop the record and provide further

explanation of how Plaintiff’s specific limitations affect her

ability to perform unskilled work in a job that constitutes

substantial gainful employment.2

IV. CONCLUSION

For the foregoing reasons, the Court finds that the ALJ

erred at the fifth step of the five-step sequential analysis. 

As the Court has decided to remand this case for 2

further findings as to the Plaintiff’s ability to perform work,

it is unnecessary for the Court to reach the issue of whether the

ALJ’s decision finding the Plaintiff not credible was consistent

with SSR 96-7.

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Accordingly, the decision of the ALJ is vacated and remanded for

reconsideration consistent with this opinion. An appropriate

order follows.

March 21, 2012 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief United States District Judge

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