MORALES v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ADRIANA MORALES,

1:18-cv-00996-NLH

Plaintiff,

OPINION

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

APPEARANCES:

RICHARD L. GROUP

LAW OFFICES OF RICHARD L. GROUP

102 SOUTH BURNT MILL RD.

VOORHEES, NJ 08043

On behalf of Plaintiff

ROBERT S. DRUM

SOCIAL SECURITY ADMINISTRATION

OFFICE OF THE GENERAL COUNSEL

300 SPRING GARDEN STREET - SIXTH FLOOR

PHILADELPHIA, PA 19123

On behalf of 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), regarding Plaintiff’s application for Supplemental

Security Income (“SSI”)1 under Title XVI of the Social Security

1 Supplemental Security Income is a program under the Social

Security Act that provides supplemental security income to

individuals who have attained age 65, or are blind or

Act. 42 U.S.C. § 401, et seq. The issue before the Court is

whether the Administrative Law Judge (“ALJ”) erred in finding

that there was “substantial evidence” that Plaintiff was not

disabled since December 10, 2008. For the reasons stated

below, this Court will reverse the ALJ’s decision and remand

the matter for further proceedings.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, Adriana Morales, claims that she cannot work

and is entitled to SSI due to scoliosis, degenerative joint

disease, Chron’s disease, colitis and irritable bowel

syndrome.2 On April 5, 2013, Plaintiff protectively filed an

application for SSI,3 alleging that she became disabled as of

December 10, 2008.4

disabled. 42 U.S.C. § 1381 et seq.

2 The claimant was 30 years old at the time of her claim for

SSI, which is defined as a younger individual (age 18-49).

(20 C.F.R. § 416.963.)

3 A protective filing date marks the time when a disability

applicant made a written statement of his or her intent to

file for benefits. That date may be earlier than the date of

the formal application and may provide additional benefits to

the claimant. See SSA Handbook 1507; SSR 72-8.

4 Even though Plaintiff contends that her onset date of

disability is December 10, 2008, the relevant period for

Plaintiff’s SSI claim begins with her April 5, 2013

application date, through the date of the ALJ’s decision on

August 3, 2016. See 20 C.F.R. § 416.202 (claimant is not

eligible for SSI until, among other factors, the date on which

2

After Plaintiff’s initial claim was denied on August 15,

2013, and upon reconsideration on October 28, 2013, Plaintiff

requested a hearing before an ALJ, which was held on February

29, 2016. On August 3, 2016, the ALJ issued an unfavorable

decision. Plaintiff’s Request for Review of Hearing Decision

was denied by the Appeals Council on November 30, 2017, making

the ALJ’s August 3, 2016 decision final. Plaintiff brings

this civil action for review of the Commissioner’s decision.

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 social security 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

supported 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).

she files an application for SSI benefits); 20 C.F.R. §

416.501 (claimant may not be paid for SSI for any time period

that predates the first month she satisfies the eligibility

requirements, which cannot predate the date on which an

application was filed).

3

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 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

4

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

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 F. App’x 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

fact-finder.” Williams, 970 F.2d at 1182. However, apart

from the substantial evidence inquiry, a reviewing court is

5

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,

447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793

(D.N.J. 1981).

B. Standard for SSI

The Social Security Act defines “disability” for purposes

of an entitlement to a period of disability and disability

insurance 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 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. §

6

1382c(a)(3)(B) (emphasis added).

The Commissioner has promulgated regulations5 for

determining disability that require application of a five-step

sequential analysis. See 20 C.F.R. § 416.920. 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.”

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. § 416.20(b)-(f).

Entitlement to benefits is therefore dependent upon a

5 The regulations were amended for various provisions effective

March 27, 2017. See 82 F.R. 5844. Because the ALJ issued his

decision prior to this date, the amendments are not applicable

to this appeal.

7

finding that the claimant is incapable of performing work in

the national economy.

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

At step one, the ALJ found that Plaintiff had not engaged

in substantial gainful activity since the alleged onset of

disability through the end of the relevant time period. At

step two, the ALJ found that Plaintiff’s scoliosis,

degenerative joint disease, Crohn’s disease, colitis and

irritable bowel syndrome were severe. At step three, the ALJ

determined that Plaintiff’s severe impairments or her severe

8

impairments in combination with her other impairments did not

equal the severity of one of the listed impairments.

Plaintiff did not have any past relevant work, but the ALJ

determined that Plaintiff’s residual functional capacity

(“RFC”) rendered her capable of performing unskilled work at

the light exertional level6 (steps four and five).7

The ALJ determined Plaintiff’s RFC to be as follows:

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform light work as defined in

20 CFR 416.967(b) except she can frequently climb,

balance, stoop, kneel, crouch, and crawl. Further, she

6 See 20 C.F.R. § 404.1568 (explaining that unskilled work “is

work which needs little or no judgment to do simple duties

that can be learned on the job in a short period of time”);

20 C.F.R. § 404.1567 (“Physical exertion requirements. To

determine the physical exertion requirements of work in the

national economy, we classify jobs as sedentary, light,

medium, heavy, and very heavy.”); 20 C.F.R. § 404.1567 (“Light

work. Light work involves lifting no more than 20 pounds at a

time with frequent lifting or carrying of objects weighing up

to 10 pounds. Even though the weight lifted may be very

little, a job is in this category when it requires a good deal

of walking or standing, or when it involves sitting most of

the time with some pushing and pulling of arm or leg controls.

To be considered capable of performing a full or wide range of

light work, you must have the ability to do substantially all

of these activities. If someone can do light work, we

determine that he or she can also do sedentary work, unless

there are additional limiting factors such as loss of fine

dexterity or inability to sit for long periods of time. . .

.”).

7 The ALJ also found that even though Plaintiff has a high

school education, because Plaintiff is not able to communicate

in English she is considered in the same way as an individual

who is illiterate in English.

9

must avoid concentrated exposure to hazards such as

unprotected heights and moving machinery. Lastly, the

claimant is limited to unskilled work involving routine

and repetitive tasks with only occasional changes in the

work setting.

(R. at 26.)

At the hearing, a vocational expert (“VE”) testified that

someone with Plaintiff’s RFC would be capable of performing

jobs such as an office cleaner, racker – bakery, and laundry

worker. (R. at 30.)

Plaintiff argues that the ALJ erred by misconstruing the

record evidence of Plaintiff’s inflammatory bowel disease in

determining that Plaintiff is capable of a limited range of

unskilled light work. Plaintiff also argues that the ALJ

erred in according little weight to the opinions of her

treating gastroenterologist, Jorge A. Prieto, M.D.

These two arguments amount to an overall challenge to the

ALJ’s RFC determination and ultimate conclusion that Plaintiff

is capable of performing full-time, unskilled, light work,

which is 8 hours a day, five days a week, with two breaks, a

lunch break, and not being off-task more than 10% of the day.

See SSR 96-9p (“RFC is the individual's maximum remaining

ability to perform sustained work on a regular and continuing

basis; i.e., 8 hours a day, for 5 days a week, or an

equivalent work schedule.”); (R. at 705, Testimony of

10

Vocational Expert). The Court finds that substantial evidence

does not support the ALJ’s RFC determination and his burden at

step five to show that Plaintiff is capable of performing

unskilled work at the light exertional level on a full-time

basis.

In making this finding, the Court agrees with Plaintiff’s

arguments for how the ALJ erred:

1. Plaintiff argues that the ALJ failed to appreciate

the nature of her Crohn’s disease, where remissions and

exacerbations are the hallmark of Crohn’s disease and its

chronicity even after surgery.8 Plaintiff points to the ALJ’s

finding that “[t]he Plaintiff’s allegations of pain, diarrhea,

vomiting, ‘flare up’ every eight weeks, with the need to use

the bathroom six times per day for ten to fifteen minutes per

setting are unsubstantiated in the record.” (R. at 28.)

Plaintiff argues that the ALJ’s assessment of her testimony

8 Crohn’s disease is considered under the Social Security

Regulations to be a type of inflammatory bowel disease. The

Digestive System “Listings of Impairments” provides:

Inflammatory bowel disease (5.06) includes, but is not

limited to, Crohn’s disease and ulcerative colitis. These

disorders, while distinct entities, share many clinical,

laboratory, and imaging findings, as well as similar

treatment regimens. Remissions and exacerbations of

variable duration are the hallmark of IBD. . . . Crohn’s

disease is rarely curable and recurrence may be a

lifelong problem, even after surgical resection.

11

and the medical records to support that contention is

inaccurate. Plaintiff contends that she specifically

testified she has Remicade infusions every eight weeks, which

limit her symptoms to two to three days a week, but by the end

of the infusion cycle at weeks six to seven as the medication

wears off, she experiences having to go to bathroom 4 to 6

times per day and vomiting, nausea and pain. Plaintiff argues

that this cycle of “remissions and exacerbations” is

consistent with how the SSA describes IBD, and how her

treating gastroenterologist opined on her condition.

2. Plaintiff contends that the ALJ’s conclusion that

her symptoms are “controlled” while on medication when she

experiences three to four instances of diarrhea per day (R. at

28) is an unqualified medical conclusion not supported by the

record. Plaintiff argues that the medical records the ALJ

relied upon to support his finding indicate she had periods of

feeling better, but even with medication, the baseline was

still multiple bouts of diarrhea per day, along with pain and

fecal incontinence.

3. Plaintiff further argues that the ALJ ignored

medical evidence when he found that Plaintiff had gaps in

treatment from July 2008 to 2009, and then another gap in

treatment from 2010 through 2013. The ALJ mentions a hospital

12

admission in August 2011, and then again in March 2013, but

the medical records show that Plaintiff was attending regular

office visits with Dr. Prieto since April 2011, undergoing

testing and lab studies including a CT abdomen on October 3,

2011, and Remicade infusions every eight weeks that had

commenced November 13, 2012. The ALJ also did not mention six

separate abdominal CT scans performed on June 23, 2008, July

15, 2008, March 16, 2009, April 5, 2011, February 24, 2012,

and September 23, 2015. Additionally, there was no mention of

an abdominal obstruction series performed on March 24, 2013

which showed findings that favored an ileus, which is a

temporary absence of the normal contractile movements of the

intestines.

4. Plaintiff also argues that the ALJ inexplicably

downplayed her symptoms documented in her March 2013 and

September 2015 hospitalizations. For the March 2013

admission, the ALJ noted that her symptoms were from

traveler’s diarrhea given her recent travel and she was

“treated merely with IV hydration and antiemetic therapy and

released.” (R. at 28.) The ALJ omitted the portion of the

treatment notes that diagnosed her with a Crohn’s flare, and

the traveler’s diarrhea in the alternative. (R. at 505-28.)

For the September 2015 hospitalization, the ALJ stated that

13

Plaintiff’s “description of the severity of the pain and

associated symptoms is unfounded within the medical file, both

objectively and subjectively.” (R. at 28.) The ALJ failed to

mention, however, that Plaintiff was admitted to the hospital

for four days due to very severe right lower quadrant pain,

nausea and vomiting (R. at 674-81), along with various adverse

findings on the CT scan of the abdomen/pelvis supporting

diagnoses of Crohn’s flare and partial small bowel obstruction

(R. at 677-80).

5. Plaintiff points out that the ALJ did not mention

significant portions of an internal medicine consultative

examination with Ken Klausman, M.D. on August 1, 2013. (R. at

600-04.) Plaintiff told Dr. Klausman she last worked in a

nursery and that she was unable to work due to an inability to

stand for long periods of time, lifting and constantly needing

to use the bathroom. On exam she was 5 foot, 5 inches and 113

pounds; she had limited range of motion with lumbar flexion

with epigastric pain as well as bilateral epigastric pain on

straight leg raise maneuver. On neurological exam she made

errors as to the date, counting backwards by 3 and with

memory. Dr. Klausman confirmed the diagnosis of Crohn’s

Disease.

6. In addition to failing to consider significant

14

medical evidence that supports the disabling nature of

Plaintiff’s impairments, Plaintiff contends that the findings

and opinions of her long-time treating gastroenterologist, Dr.

Prieto should have been given controlling weight because they

were not inconsistent with the other substantial evidence of

record. Plaintiff argues that if Dr. Prieto’s opinions are

credited with respect to the severity of the Plaintiff’s pain,

fatigue, need to lie down during the day (on an unpredictable

basis), “constantly” diminished attention and concentration,

the need for many unscheduled breaks during an 8-hour work

day, and likely absences from work, Plaintiff would

undoubtedly be found disabled.

In making the RFC assessment the ALJ was required to

consider all evidence before him. “In doing so, an ALJ may

not make speculative inferences from medical reports,” he is

“not free to employ [his] own expertise against that of a

physician who presents competent medical evidence,” and

“[w]hen a conflict in the evidence exists, the ALJ may choose

whom to credit but cannot reject evidence for no reason or for

the wrong reason.” Plummer v. Apfel, 186 F.3d 422, 429 (3d

Cir. 1999) (citation omitted). Additionally, a treating

physician’s opinions are typically entitled to “great weight,”

and an ALJ may only reduce his reliance upon a treating

15

physician’s opinions if those opinions are inconsistent with

other medical evidence, and if he explains his reasoning. Id.

at 439 (“[A]n ALJ is permitted to accept or reject all or part

of any medical source's opinion, as long as the ALJ supports

his assessment with substantial evidence.”); Cotter v. Harris,

642 F.2d 700, 705 (3d Cir. 1981) (“We are also cognizant that

when the medical testimony or conclusions are conflicting, the

ALJ is not only entitled but required to choose between them.

. . . [W]e need from the ALJ not only an expression of the

evidence s/he considered which supports the result, but also

some indication of the evidence which was rejected.”).

What the Third Circuit admonished in Plummer and Cotter

is what Plaintiff contends the ALJ did in this case. The

Court agrees. The ALJ noted that Plaintiff experienced a

clinical remission in May 2015, and used that finding to

afford little weight to Dr. Prieto’s entire, continuous and

regular treatment history with Plaintiff which began in April

2011 (R. at 29), and to discount the severity of Plaintiff’s

pain and associated symptoms as unfounded (R. at 28).

The ALJ failed to reconcile that assessment with other

findings in his decision, however, including: (1) Plaintiff

suffered a Crohn’s flair-up in September 2015, which is four

months after the reported clinical remission and required a

16

four-day hospitalization (R. at 28); (2) as defined under SSA

regulations, “[r]emissions and exacerbations of variable

duration are the hallmark of IBD” (R. at 26, citing to Listing

5.06); and (3) out of an eight-week Remicade cycle in addition

to her other medication, for about six weeks, Plaintiff

experiences three to four incidents of diarrhea a day for

several days of each week, in addition to other symptoms, and

for two weeks while the Remicade wears off, Plaintiff must go

to the bathroom four to six times per day every day and

experiences vomiting, nausea and pain (R. at 28).

Moreover, the ALJ improperly found that Plaintiff had

gaps in treatment, which is contradicted by the medical

evidence. Additionally, the ALJ failed to recognize that

except when she relocated to New Jersey after her surgery in

2009 and due to pregnancy in 2014, there was no significant

deviation from treatment or prescribed medications. The ALJ

also improperly determined that Plaintiff’s symptoms were

“controlled” while on medication, but that “control” still

resulted in three to four instances of diarrhea per day for

several days a week.

In sum, there is no evidence in the record that refutes

that even when compliant with her medication regime,

Plaintiff’s best outcome is that for four to five weeks out of

17

every eight, Plaintiff experiences multiple bouts of diarrhea

almost every day. That unrefuted finding compels the

conclusion that the ALJ’s determination that Plaintiff

retained the RFC perform unskilled work at the light

exertional level on a sustained, full-time basis was in error.

The ALJ also erred at step five, for which he has the

burden of proving that Plaintiff is capable of performing work

which exists in the national economy. At this step, the ALJ

asked the VE a hypothetical question: “If the hypothetical

individual were off task more than 10% of the day, in addition

to regular scheduled breaks, could that individual perform the

jobs that you identified?” The VE answered, “No, your honor.

That would preclude employment at the unskilled level. (R. at

705.) The ALJ also asked the VE: “[H]ow many absences per

month do employer customarily tolerate from employees?” The

VE answered, “No more than twice a month, your honor.” (Id.)

Plaintiff’s representative asked the VE a follow up question:

“An individual who has frequent need to use the bathroom,

requires to be near a bathroom, and say they have that need

four or five times a day,” “even it was not happening every

day but two or three workdays out of a workweek,” “is that

going to affect their ability to succeed with the jobs that

you have described?” The VE answered, “I think that would

18

preclude employment that would go off task,” and “off-task is

really determined on a cumulative basis, it’s not necessarily

by the hour or by the day.” (Id.)

“An ALJ's hypothetical question to a VE must accurately

portray the claimant’s individual impairments supported by the

record.” Holler v. Barnhart, 102 F. App’x 742, 745 (3d Cir.

2004) (citing Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d

Cir. 1987); Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.

1984)). Here, despite the testimony from the VE, in finding

that Plaintiff was capable of performing jobs in the national

economy, the ALJ did not account for the unrefuted need for

Plaintiff to be off-task to the degree the VE testified would

not support any available jobs. Even accepting that

Plaintiff’s Crohn’s disease was “controlled,” the ALJ failed

to craft an RFC that properly reflected that “controlled”

level, and in turn failed to consider the VE’s testimony on a

hypothetical that actually encompassed that level. The ALJ’s

hypothetical question was correct, but he ignored the VE’s

answer to it. The ALJ therefore failed to carry his burden in

the final step of the sequential step analysis.

III. CONCLUSION

Plaintiff asks that the Court reverse the ALJ’s decision

and award her benefits. In the alternative, she seeks a

19

reversal and remand to the ALJ for further consideration. “A

reversal, as opposed to a remand, is in order only where a

fully developed administrative record demonstrates that the

claimant is clearly entitled to benefits, and thus a new

administrative hearing would serve no useful purpose.”

Podedworny v. Harris, 745 F.2d 210, 224 (3d Cir. 1984). If

the ALJ's explanation of his decision is “hopelessly

inadequate,” the case should be vacated and remanded to the

ALJ to fully develop the record and explain his findings.

Correa ex rel. Correa v. Commissioner of Social Sec., 381 F.

Supp. 2d 386, 396 (D.N.J. 2004) (quoting Burnett v. Social

Security, 220 F.3d 112, 120 (3d Cir. 2000)). “Remand is

appropriate where . . . relevant and probative evidence was

not explicitly and accurately weighed in arriving at a

decision on the plaintiff’s claim for disability benefits.”

A.B. on behalf of Y.F. v. Colvin, 166 F. Supp. 3d 512, 522

(D.N.J. 2016) (citing Dobrowolsky v. Califano, 606 F.2d 403,

407 (3d Cir. 1979)).

The Court finds that reversal and remand is appropriate

in this case. The ALJ did not accurately weigh the relevant

and probative evidence in making the RFC determination and

then use that properly established RFC to determine whether

jobs exist in the national economy that Plaintiff is capable

20

of performing. The matter will be remanded to the ALJ so that

he may properly support his RFC assessment and fulfill his

burden at step five.

An accompanying Order will be issued.

Date: June 27, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

21