HARRIS v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SHELDON HARRIS,

1:19-cv-12084-NLH

Plaintiff,

OPINION

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

APPEARANCES:

KATHRYNE POPE

RICHARD LOWELL FRANKEL

BROSS & FRANKEL, PA

725 KENILWORTH AVE

CHERRY HILL, NJ 08002

On behalf of Plaintiff

EVELYN ROSE MARIE PROTANO

SOCIAL SECURITY ADMINISTRATION

OFFICE OF THE GENERAL COUNSEL

300 SPRING GARDEN STREET, 6TH 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 Disability

Insurance Benefits (“DIB”)1 and Supplemental Security Income

1 DIB is a program under the Social Security Act to provide

(“SSI”)2 under Title II and Title XVI of the Social Security

Act.3 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 at any time since his alleged onset date of disability,

March 31, 2012. For the reasons stated below, this Court will

affirm that decision.

I. BACKGROUND AND PROCEDURAL HISTORY

On September 25, 2014, Plaintiff, Sheldon Harris,

disability benefits when a claimant with a sufficient number of

quarters of insured employment has suffered such a mental or

physical impairment that the claimant cannot perform substantial

gainful employment for at least twelve months. 42 U.S.C. § 423

et seq.

2 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 disabled.

42 U.S.C. § 1381 et seq.

3 The standard for determining whether a claimant is disabled is

the same for both DIB and SSI. See Rutherford v. Barnhart, 399

F.3d 546, 551 n.1 (3d Cir. 2005) (citation omitted).

DIB regulations are found at 20 C.F.R. §§ 404.1500-404.1599, and

the parallel SSI regulations are found at 20 C.F.R. §§ 416.900-

416.999, which correspond to the last two digits of the DIB

cites (e.g., 20 C.F.R. § 404.1545 corresponds with 20 C.F.R. §

416.945). The Court will provide citations only to the DIB

regulations. See Carmon v. Barnhart, 81 F. App’x 410, 411 n.1

(3d Cir. 2003) (explaining that because “[t]he law and

regulations governing the determination of disability are the

same for both disability insurance benefits and [supplemental

security income],” “[w]e provide citations only to the

regulations respecting disability insurance benefits”).

protectively filed4 an application for DIB and SSI alleging that

he became disabled as of March 31, 2012.5 Plaintiff claims that

he can no longer work at his previous job as a certified nursing

assistant because he suffers from back, neck, and shoulder

impairments.

After Plaintiff’s initial claim was denied and upon

reconsideration, Plaintiff requested a hearing before an ALJ,

which was held on October 12, 2017. On January 29, 2018, the

ALJ issued an unfavorable decision. Plaintiff’s Request for

Review of Hearing Decision was denied by the Appeals Council on

February 28, 2019, making the ALJ’s decision final. Plaintiff

brings this civil action for review of the Commissioner’s

decision.

4 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.

5 Even though Plaintiff contends that his onset date of

disability is March 31, 2012, the relevant period for

Plaintiff’s SSI claim begins with his September 25, 2014

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

January 29, 2018. See 20 C.F.R. § 416.202 (claimant is not

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

he or 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 he or she satisfies the

eligibility requirements, which cannot predate the date on which

an application was filed). This difference between eligibility

for SSI and DIB is not material to the Court’s analysis of

Plaintiff’s appeal.

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). 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 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 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 DIB and 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. § 1382c(a)(3)(B)

(emphasis added).

The Commissioner has promulgated regulations6 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.”

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

6 The regulations were amended for various provisions effective

March 27, 2017. See 82 F.R. 5844. The parties do not argue

that any of these amendments are relevant to Plaintiff’s appeal.

disabled.”

20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is

therefore dependent upon a 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. At step two, the ALJ found that Plaintiff’s

impairments of back, neck, and right shoulder impairments were

severe. At step three, the ALJ determined that Plaintiff’s

severe impairments or his severe impairments in combination with

his other impairments did not equal the severity of one of the

listed impairments. At step four, the ALJ determined that

Plaintiff’s residual functional capacity (“RFC”) rendered him

able to perform medium exertional level work, which included his

past job as a certified nursing assistant, and he was therefore

not disabled.7

Plaintiff argues that the ALJ erred in three ways: (1) the

ALJ failed to consider the narrative reports of two of

Plaintiff’s doctors, and the ALJ failed to properly weigh the

opinion of a consultative examiner; (2) the ALJ erred in his

assessment of Plaintiff’s RFC; and (3) the ALJ erred at step

three in not finding that Plaintiff’s impairments met the

Listings.

1. Whether the ALJ erred in the assessment of the medical

providers and consultative examiner

Plaintiff contends that the decision of the ALJ must be

reversed because the ALJ failed to consider the narrative

reports prepared by a neurologist, Keith Preis, M.D., on

November 29, 2007, and a chiropractor, Larry A. Sable, D.C., on

April 6, 2008. Dr. Preis evaluated Plaintiff once as a result

7 Because the ALJ concluded that Plaintiff was capable of

performing his past relevant work, the ALJ did not need to

continue to step five of the sequential step analysis. Benjamin

v. Commissioner of Social Security, 2019 WL 351897, at *4 n.9

(D.N.J. 2019) (citing Valenti v. Commissioner of Social Sec.,

373 F. App’x 255, 258 n.1 (3d Cir. 2010); 20 C.F.R. §

404.1520(b)-(f)).

of a motor vehicle accident on June 5, 2007, and Dr. Preis

concluded that Plaintiff’s cervical and lumbar sprain/strain

were a result of the accident. (R. at 278-80.) Plaintiff also

received chiropractic treatment from Dr. Sable arising from the

accident from June 13, 2007 until March 12, 2008, when Plaintiff

was released from care because he met maximum improvement. (R.

at 284-89.) Both doctors reviewed a July 17, 2007 MRI of

Plaintiff’s lumbar spine, which revealed an annular bulge at L2-

3 and a diffuse annual bulge at L3-4.

The ALJ did not specifically mention these reports in his

decision. Plaintiff argues that this is reversible error

because even though the reports pre-date the alleged onset date

of March 31, 2012, they are consistent with the remainder of the

evidence showing significant functional limitations.

The Court does not agree. The burden is on the claimant to

show that he was disabled - and unable to perform work at the

substantial gainful level - on the alleged onset date of

disability. The burden is also on the claimant to show that his

medically determinable impairments had lasted for a continuous

period of no less than 12 months before that date, or will be

expected to last for at least that duration after then. Zirnsak

v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citations omitted).

To meet that burden, the claimant may present evidence outside

the disability period, and the ALJ may consider such evidence,

but that evidence must be both relevant and probative to whether

the claimant was disabled as of the alleged onset date.

Townsend v. Commissioner, 553 F. App’x 166, 168 n.2 (3d Cir.

2014); see also Johnson v. Commissioner of Social Sec., 529 F.3d

198, 203 (3d Cir. 2008) (quoting Burnett v. Commissioner of

Social Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000)) (quoting

Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)) (explaining

that an ALJ errs if he does not consider all the pertinent and

significant probative evidence before him, but the ALJ does not

need to consider evidence that is not).

Here, Plaintiff argues that the ALJ erred when he failed

to mention, and therefore presumably failed to consider, the

reports of Dr. Preis and Dr. Sable, and those reports support

his claim of disability as of March 31, 2012. The reports,

however, were prepared in November 2007 and April 2008 - four

years prior to his alleged onset date - and the record shows

that Plaintiff worked as a certified nursing assistant through

at least 2010 (according to Plaintiff’s testimony) and had

earnings at the substantial gainful levels through 2011.

Clearly, Plaintiff’s ability to work for several years following

the accident shows that the reports of these two doctors could

not have supported a claim of disability during the time in

2007-2008, let alone as of March 31, 2012.

The lack of relevance and pertinence of the reports of Dr.

Preis and Dr. Sable to Plaintiff’s disability claim is further

illustrated by the February 12, 2015 report of an orthopedic

consultative examination with William P. Anthony, M.D. The ALJ

summarized Dr. Anthony’s findings:

February 2015 evaluation with consultative examiner Dr.

[Williams P. Anthony]8 shows the claimant alleged neck pain,

lower back pain and some weakness with right wrist

extension, as well as right shoulder pain. The claimant

reported no actual radiating complaints in the right upper

extremity or left upper extremity. The doctor noted some

exaggerated pain behaviors with range of motion testing,

with the claimant reacting to even the lightest touch with

exaggerated complaints for the paraspinal, cervical and

lumbar areas. Cervical range of motion was limited and the

doctor noted right cervical paraspinal tenderness out of

proportion to any pressure applied. There was no tenderness

in the thoracic spine and exaggerated response to light

touch in the lumbar spine with only mild increased tone.

Straight leg raise was negative. Passive range of motion in

the hips caused him to complain of pain, but on subsequent

trials, no back pain was reported. Range of motion of the

back was also exaggerated and inconsistent. The doctor

noted right shoulder pain with positive crossed adduction

and impingement signs. There was pain in shoulder abduction

and rotations. He resisted passive range of motion on the

right shoulder. Range of motion was slightly limited. The

doctor indicated that given the guarding at the right

shoulder, it was difficult to assess strength other than to

note that it was at least 4/5 over the available range. He

noted some limitation with elbow reflexes with variable

effort. There were no limits with wrist flexion and

extension was at least 4+/5 with repeated attempts.

Initially, there was very limited effort. Strength was

reported as 5/5 on the left and 4/5 on the right, which

would suggest he no longer had any functional wrist drop

and it was unclear why he was using the splint. Left sided

strength was entirely normal throughout the upper

extremity. Range of motion for the hips, knees, ankles and

feet was normal. Strength for the hips, knees, ankles and

8 The ALJ inadvertently refers to Dr. William Anthony as “Dr.

Anthony Williams.” (Compare R. at 324, the report of Dr.

William Anthony, with R. at 21-22, the ALJ decision.)

feet were normal.

(R. at 21-22).

After relating Dr. Anthony’s examination findings, and

considering other medical records along with Plaintiff’s

testimony, the ALJ found that “[a]lthough the claimant does have

a history of back, shoulder, neck and wrist pain, imaging shows

significant changes, but they have not progressed. . . .

Consultative examiner Dr. [Anthony] noted exaggerated pain

behaviors and reported that the claimant was not putting forward

his best effort. He also questioned the claimant's need for a

splint. . . . His limitations are not fully supported by the

medical evidence.” (R. at 22-23.)

Thus, when the ALJ considered evidence during the time

period when Plaintiff claimed he was disabled, it showed that

Plaintiff’s condition had not progressed since March 31, 2012.

(See R. at 22, detailing medical evidence from 2012 through

2015.) Plaintiff points to nothing in the reports of Dr. Preis

or Dr. Sable that supports Plaintiff’s contention that he was

disabled as of March 31, 2012 and continued to be disabled as of

the date of the ALJ’s decision on January 29, 2018. Those

November 2007 and April 2008 reports, therefore, are not

relevant or probative, and the ALJ did not err in not

considering them.9

With regard to Plaintiff’s argument that the ALJ erred

because he did not state what weight he afforded Dr. Anthony’s

report, that argument is also without merit. As pointed out by

Defendant, an ALJ is required to state what weight

he ascribes to a medical opinion, but not to other forms of

medical evidence. 20 C.F.R. §§ 404.1527(c), 416.927(c)

(providing that the Commissioner weighs “medical opinions”).

Dr. Anthony only provided his examination findings, and did not

provide “medical opinions,” which are defined by the regulations

as statements that “reflect judgments about the nature and

9 It is also important to note that the ALJ’s lack of specific

reference to the reports of Dr. Preis and Dr. Sable does not

necessarily mean that he did not review and consider them,

particularly because they were not probative or relevant. See

Moraes v. Commissioner Social Sec., 645 F. App’x 182, 187 (3d

Cir. 2016) (explaining that “although the ALJ's decision does

not expressly cite the portion of Dr. Wong's report that

discusses her findings as to Moraes's medical condition, there

is no indication in the decision that the ALJ wholly rejected

those findings; indeed, they are consistent with the ALJ's

determination at step two that Moraes suffered from the severe

impairments of sequelae of his work injury and an adjustment

disorder. Dr. Wong's findings appear to have little, if any,

additional probative value when considered alongside the medical

findings of Dr. Fulford, Dr. Ahmad, and Dr. Fernando

specifically cited by the ALJ. For these reasons, the ALJ was

not required to expressly mention those findings. In the

absence of any indication to the contrary in the record, we

cannot conclude that the ALJ improperly disregarded relevant

evidence.”) (citing Johnson v. Comm'r of Soc. Sec., 529 F.3d

198, 204 (3d Cir. 2008) (noting there is “no authority for the

proposition that an ALJ must cite all evidence a claimant

presents”); Fargnoli, 247 F.3d at 42 (“[W]e do not expect the

ALJ to make reference to every relevant treatment note....”)).

severity of [the claimant’s] impairment(s), including [the

claimant’s] symptoms, diagnosis and prognosis, what [the

claimant] can still do despite [his] impairment(s), and [his]

physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(1),

416.927(a)(1). Consequently, the ALJ did not err by not

providing any “weight” to Dr. Anthony’s report.

2. Whether the ALJ erred in his RFC determination

Plaintiff argues that the ALJ erred in finding that

Plaintiff retained the RFC to perform medium exertional level

work, which included Plaintiff’s past relevant work as a

certified nursing assistant.10 Plaintiff cites to the evidence

that the ALJ considered, and argues that the ALJ should have

considered it differently - i.e., to show that Plaintiff was not

capable of performing work at the medium exertional level.

Plaintiff, however, fails to point to evidence that specifically

contradicts the record evidence cited by the ALJ.

The Court finds that Plaintiff’s arguments amount to a mere

disagreement with the ALJ’s findings rather than how substantial

evidence did not support the RFC determination. See, e.g.,

Perkins v. Barnhart, 79 F. App’x 512, 514–15 (3d Cir. 2003)

(“Perkins's argument here amounts to no more than a disagreement

with the ALJ's decision, which is soundly supported by

10 The RFC reflects “what [the claimant] can still do despite

[his or her] limitations.” 20 C.F.R. § 416.945(a).

substantial evidence.”); Moody v. Commissioner of Social

Security Administration, 2016 WL 7424117, at *8 (D.N.J. 2016)

(“[M]ere disagreement with the weight the ALJ placed on the

opinion is not enough for remand.”); Grille v. Colvin, 2016 WL

6246775, at *8 (D.N.J. 2016) (“Distilled to its essence,

Plaintiff's argument here amounts to nothing more than a mere

disagreement with the ALJ's ultimate decision, which is

insufficient to overturn that decision.”).

Because the ALJ properly supported his RFC determination,

the Court does not find that the ALJ erred on this issue. See

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (U.S. 2019)

(reiterating that the threshold for such evidentiary sufficiency

under the substantial evidence standard is not high, and it

“means - and means only - such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion”

(citations omitted)).

3. Whether the ALJ erred at step three

Finally, Plaintiff argues that the ALJ erred at step three

by finding that his impairments did not meet Listing 1.04 -

disorders of the spine.

As a general principle, an ALJ is required to set forth the

reasons for his decision, and a bare conclusory statement that

an impairment does not match, or is not equivalent to, a listed

impairment is insufficient. Burnett v. Commissioner of Social

Security Administration, 220 F.3d 112, 119–20 (3d Cir. 2000).

An ALJ is not required, however, “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.” Jones v. Barnhart, 364 F.3d 501,

504–05 (3d Cir. 2004). An ALJ’s step three analysis is proper

when the “decision, read as a whole, illustrates that the ALJ

considered the appropriate factors in reaching the conclusion

that” a claimant does not meet the requirements for any listing.

Id.

To meet Listing 1.04, Plaintiff must have:

A disorder of the spine (e.g., herniated nucleus

pulposus, spinal arachnoiditis, spinal stenosis,

osteoarthritis, degenerative disc disease, facet arthritis,

vertebral fracture), resulting in compromise of a nerve

root (including the cauda equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by

neuro-anatomic distribution of pain, limitation of motion

of the spine, motor loss (atrophy with associated muscle

weakness or muscle weakness) accompanied by sensory or

reflex loss and, if there is involvement of the lower back,

positive straight-leg raising test (sitting and supine);

or

B. Spinal arachnoiditis, confirmed by an operative

note or pathology report of tissue biopsy, or by

appropriate medically acceptable imaging, manifested by

severe burning or painful dysesthesia, resulting in the

need for changes in position or posture more than once

every 2 hours;

or

C. Lumbar spinal stenosis resulting in

pseudoclaudication, established by findings on appropriate

medically acceptable imaging, manifested by chronic

nonradicular pain and weakness, and resulting in inability

to ambulate effectively, as defined in 1.00B2b.

In order for an impairment to match a listing, a claimant

must show that the impairment meets “‘all of the specified

medical criteria. An impairment that manifests only some of

those criteria, no matter how severely, does not qualify.’”

Jones, 364 F.3d at 504 (quoting Sullivan v. Zebley, 493 U.S.

521, 530 (1990) (emphasis in original)). The quoted Zebley

decision further explains:

“The Secretary explicitly has set the medical criteria

defining the listed impairments at a higher level of

severity than the statutory standard. The listings define

impairments that would prevent an adult, regardless of his

age, education, or work experience, from performing any

gainful activity, not just ‘substantial gainful activity.’

The reason for this difference between the listings’ level

of severity and the statutory standard is that, for

adults, the listings were designed to operate as a

presumption of disability that makes further inquiry

unnecessary. That is, if an adult is not actually working

and his impairment matches or is equivalent to a listed

impairment, he is presumed unable to work and is awarded

benefits without a determination whether he actually can

perform his own prior work or other work.”

Zebley, 493 U.S. at 532 (citations omitted).

The burden is on Plaintiff to demonstrate that his

impairments meet the listings. Rutherford v. Barnhart, 399 F.3d

546, 551 (3d Cir. 2005) (explaining that in “the first four

steps the burden is on the claimant”); id. (“If the claimant

satisfies step 3, she is considered per se disabled.”).

The main evidence Plaintiff cites to support his contention

that he meets any of the criteria for Listing 1.04 during the

relevant time period, which is as of March 31, 2012, are the

reports of Dr. Preis and Dr. Sable. As noted above, those

reports were prepared four years prior to Plaintiff’s alleged

disability onset date and they do not reflect Plaintiff’s

condition as of March 31, 2012. Additionally, Plaintiff fails

to provide evidence to match all the necessary elements of

Listing 1.04.

Plaintiff’s argument is also without merit because of this

Court’s finding that the ALJ’s RFC determination was proper.

Logic dictates that where it has been found at the statutory

standard level of severity that a claimant retains the RFC to

perform his past relevant work, it cannot be found that the

claimant’s impairment meets a higher level of severity which

affords the claimant the presumption of disability. The ALJ did

not err at step three.

III. Conclusion

This Court may not second guess the ALJ’s conclusions, but

may only determine whether substantial evidence supports the

ALJ’s determinations. Hartzell v. Astrue, 741 F. Supp. 2d 645,

647 (D.N.J. 2010) (citing Williams v. Sullivan, 970 F.2d 1178,

1182 (3d Cir. 1992)). The Court finds that the ALJ’s

determination that Plaintiff was not totally disabled as of

March 31, 2012 is supported by substantial evidence. The

decision of the ALJ will therefore be affirmed.

An accompanying Order will be issued.

Date: May 7, 2020 s/ Noel L. Hillman

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