DIXON v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ERIC DEXON,

Civ. No. 18-13664 (KM)

Plaintiff,

OPINION

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

ee

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Eric Dixon brings this action pursuant to 42 U.S.C. §§ 405(g)

and 1383(c)(3), to review a final decision of the Commissioner of Social Security

(“Commissioner”) denying his claims to Disability Insurance Benefits (“DIB”)

under Title II of the Social Security Act. Dixon seeks to reverse the finding of

the Administrative Law Judge (“ALJ”) that he has not met the Social Security

Act’s definition of disabled for the period beginning July 13, 2013, the alleged

injury-onset date, through the date he was last insured, September 30, 2016.

The issue presented is whether the decision of the ALJ to deny Dixon’s

application for DIB is supported by substantial evidence. For the reasons

stated below, this matter is remanded to the Commissioner for further findings.

A. Facts

Mr. Dixon is now 55 years old and has a high school diploma. (R. 42) He

has a history of severe low back problems. (R. 40) When Mr. Dixon was 49

years old, he reinjured his back as a result of a motor vehicle accident. It is

this injury that caused him to file for DIB. (R. 41)

Prior to his injury in 2013, Mr. Dixon held various jobs, including

working as a deliveryman, working on an assembly line, and working as a day

laborer for a variety of companies, where he would assist with deliveries,

loading and unloading pallets, and loading and unloading trucks. (R. 42-45)

1. Prior Low Back Surgeries

In August 2005 Mr. Dixon had a lumbar discectomy to correct a

ruptured disc in his lower back. (R. 285, 288) Nearly a month after surgery,

Mr. Dixon reported that he was free of pain but had some residual numbness.

(R. 283) Mr. Dixon was then free of back pain for a number of years. (R. 302)

However, in 2009, his back pain returned. On April 24, 2009, Mr. Dixon

again had to have surgery to correct herniated discs. (R. 297) This time, Mr.

Dixon underwent a lumbar interbody fusion whereby a metal rod was fused to

his spine. (R. 297-99} Mr. Dixon was discharged from the hospital after five

days and referred to rehab as well as to pain management care. (R. 302)

2. July 2013 Injury

On July 13, 2013, Mr. Dixon was walking in a crosswalk when he was

hit by a vehicle and thrown to the ground. (R. 47, 352) He was taken to Trinitas

Regional Medical Center for treatment, and was discharged the same day. (R.

303-4) He was treated for pain to his left side as well as head, back, and neck.

(R. 307-8) On a scale of 1 to 10, he stated that his pain was a 4. (R. 309) After

being provided with pain mediation, he stated that he felt better. (R. 310)

Several CT scans and exams were performed. (R. 311-31) There was no

definitive evidence that Mr. Dixon had fractured anything (R. 321); however, it

appears that Mr. Dixon received treatment to his arm in the form of an ace

bandage and splint. (R. 322-31)

Mr. Dixon asserts that as a result of the accident, he has had daily pain

throughout his lower back. (R. 50). The pain radiates through his left leg. (Jd.)

The pain, says Mr. Dixon, is there all the time and he rated his pain at a five or

six out of ten. (Id.) If he stands for 10 minutes, the pain in his back and leg

increases. (R. 50-51) Mr. Dixon also asserts that his leg gives out at times. To

assist with walking, Mr. Dixon has transitioned from a prescribed cane to a

heavier walking stick. (R. 51-52) However, Mr. Dixon testified that he is only

able to walk a block at a time, and even then only at a slow pace, before the

pain in his back forces him to rest. (R. 57)

Mr. Dixon stated that he has also experienced intermittent pain in his

neck as a result of the accident. (R. 53) His neck pain is less predictable;

anything could cause his neck to hurt, such as changes in the weather or

sudden movements. (R. 53-54) To treat his pain, Mr. Dixon states that he has

gone to physical therapy, takes pain medication, and wears a back brace. (R.

54-56, 60-61) An effect of the pain medication, Mr. Dixon testified, is that he

finds it difficult to concentrate or stay awake. (R. 63) He finds sitting more than

15-20 minutes to be difficult and has difficulty getting comfortable sleeping (R.

59-60, 62) Mr. Dixon is most comfortable lying down with his feet up. (R. 59)

Between his discharge from the hospital on July 13, 2013 and January

2014, it appears that Mr. Dixon received pain management treatment for his

back. (R. 352, 358) However, the record does not contain any medical reports

for the treatments in that period. The administrative record contains medical

records that resume on January 8, 2014.

On January 8, 2014, Mr. Dixon was seen for chiropractic treatment by

Dr. Richard Ryan at Northeast Spine & Wellness Center. Mr. Dixon presented

with severe back pain that radiated down his right leg to his foot and elbow

and hip pain. {R. 358) Dr. Ryan found that Mr. Dixon’s deep tendon reflexes of

his lower left extremities were sluggish and muscle strength testing of the lower

extremities showed weakens due to pain. (Id.} Dr. Ryan wrote a detailed report

and found that Mr. Dixon suffered from decreased joint mobility, decreased

range of motion of his spine, spasms and muscle weakness, vertebral

tenderness, muscle soreness, and soft tissue swelling. (R. 359) Mr. Dixon’s

symptoms required “acute relief care to decrease daily recurring pain

associated with activities of daily living.” (R. 359) Dr. Ryan referred Mr. Dixon

to a spine surgeon (Dr. Ani Nasser) and ordered physical therapy. (/d.)

On January 24, 2014, Mr. Dixon was seen by Dr. Nasser at the

Orthopaedic Spine Institute. Mr. Dixon reported to Dr. Nasser that his “pain is

present constantly. Qualitatively, the pain is rated as severe. Functional

impairment is very severe - when present the patient is unable to carry out any

daily activities. The pain interferes with sleep regularly. Since onset, the overall

severity of the pain has greatly increased.” (R, 352) He reported weakness in

his lower extremities and decreased exercise tolerance. Upon evaluation by Dr.

Nasser, Mr. Dixon’s musculoskeletal evaluation was normal, although his

ability to bend or extend his back was restricted. (R. 354) The neurological and

psychiatric evaluations noted that Mr. Dixon had normal orientation and had

intact muscle strength. (R. 354) Nevertheless, Dr. Nassar noted that his

condition with respect to his back was “unstable” and his preexisting back

symptoms were aggravated by the July 13, 2013 motor vehicle accident. (R.

354-55) Dr. Nasser ordered follow-up testing to be done on Mr. Dixon. (R. 355)

Mr. Dixon’s insurance denied coverage for these tests. (R. 358-79)

Between February and April 2014, Mr. Dixon continued to be seen by Dr.

Ryan and Dr. Nasser. In general, Dr. Ryan’s assessments of Mr. Dixon’s

physical condition are markedly different from the formulaic assessments

reported by Dr. Nasser.

Dr. Nasser next saw Mr. Dixon on February 7, 2014. Mr. Dixon reported

that the severity of his pain had decreased to a moderate level and that his

pain now interfered with some daily activities rather than all. (R. 348).

However, he still reported that his weakness and exercise intolerance remained

unchanged. Again, Dr. Nasser reported that Mr. Dixon’s musculoskeletal,

neurological, and psychiatric evaluations were normal. (R. 349-50)

Three days later, on February 10, 2014, Dr. Ryan re-evaluated Mr. Dixon

and continued to find that Mr. Dixon suffered from pain, spasms, tender

muscles in his back, swelling with tenderness in his spine, weakness, and

decreased joint mobility. (R. 361-62) It was still Dr. Ryan’s opinion that Mr.

Dixon “required acute relief care to decrease daily recurring pain.” (R. 362)

Dr. Nasser saw Mr. Dixon three more times, on February 28, 2014,

March 14, 2014, and April 16, 2014. The reports from these three visits are

substantively identical. During the February 28th visit to Dr. Nasser, Mr. Dixon

stated that his pain was getting worse and that the weather and any activity

bothered his back. (R. 344) Dr. Nasser continued to report normal findings, but

noted that “it is medically necessary for patient to have testing which is directly

related to the accident.” (R. 347) The March and April reports continue to

highlight that Mr. Dixon’s pain, weakness, and inability to exercise remained

unchanged, while his musculoskeletal, neurological, and psychiatric

evaluations were normal.

In the first half of 2014, Mr. Dixon continued to receive physical

therapy—electrical/ muscle stimulation, strengthening exercises, and

stretching exercises (R. 369-78), but his physical condition did not improve in

response to the therapy. (Id.; see also R. 338). By contrast to Dr. Nasser’s

reports during this time, Dr. Ryan continued to note that Mr. Dixon suffered

from, for example, pain, muscle spasms, and tenderness. (R. 364-66} Dr. Ryan

added in his March 2014 report that Mr. Dixon’s “gait is hampered due to pain

and weakness. The patient has a lot of problem getting out of bed and getting

up from a seated position.” (Jd.)

Dr. Ryan’s findings are consistent with those of Nurse Practitioner

Lauren De Lucia in June 2014. On June 24, 2014, nearly a year after the

accident, NP De Lucia noted that Mr. Dixon was unable to hold his body and

head erect and that he was unbalanced. (R. 387) Mr. Dixon had an upright

posture and good spinal alignment but had poor muscle/strength/tone. (R.

388) He had decreased flexion, rotation, and extension of his lumbar spine,

unsteady gait, but was able to walk on his heels and toes. (/d.) Neurologically,

NP De Lucia found, he had good immediate recall, his thought process was

intact, his perceptions were appropriate, and his speech was clear and fluid.

(Id.)

On July 22, 2014, Mr. Dixon returned to see NP De Lucia, who reported

that his back problems had improved, but he was still suffering from moderate

to severe pain. (R. 391) His balance had improved, he had upright posture, but

still had poor muscle strength, decreased mobility, and decreased lumbar

movement. (R. 393)

In August 2014, Mr. Dixon reported no change in his condition, NP De

Lucia’s August report is similar to her July 2014 report. (R. 396-402) In

September 2014, Mr. Dixon reported that his pain had again worsened. {R.

402) In October 2014, Mr. Dixon reported no further changes to his condition.

{(R. 407).

In September 2014, Mr. Dixon had a CT scan that revealed a

decompressed spinal canal, post-surgical changes at L4-S1, and spondylotic

changes at L3-L4. (R. 451)

On October 6, 2014, nearly sixteen months after the July 2013 car

accident, Mr. Dixon was seen by the state’s consultative examiner, Dr. Betty

Vekhnis, at the Physical Rehabilitation Center, LLP. Dr. Vekhnis noted that Mr.

Dixon’s September 30, 2014 lumbar spine CT showed surgical changes and a

decompressed spinal canal. (R. 379) Dr. Vekhnis noted that Mr. Dixon could

walk in the office without a cane, had a normal heel to toe gait, was able to

walk on his heels and toes, and did not squat. (R. 379). Dr. Vekhnis examined

Mr. Dixon’s spine, noting that there was no vertebral tenderness and he had

full range of motion. (R. 379). Her impression was that Mr. Dixon could walk

short distances without a cane and has normal function of his hands for fine

and gross motor manipulations. (R. 380). Dr. Vekhnis included a “passive

range of motion chart” in her assessment. (R. 381-83) Most of the chart is not

filled in; however, the lumbar spine portion indicates that Mr. Dixon has

normal muscle strength (5/5) but that he received a 60 /90 on the straight leg

test when in the supine position. Dr. Vekhnis did not fill in the results when

Mr. Dixon was sitting. (R. 382)

In November 2014, NP De Lucia was able to get Mr. Dixon a TENS unit,

and Mr. Dixon reported that his functionality was increasing with the use of

that unit. As a result he was able to walk more, bend more, and perform

activities of daily living. (R. 416-17). He was seen again by NP De Lucia in

December 2014 and was fitted for a back brace. (R. 422) NP De Lucia noted

continued progress through use of the TENS unit. (R. 423) NP De Lucia

continued to see Mr. Dixon monthly through February 2015 (records were

provided through February 2015 per the State’s January 30, 2015 document

request). (R. 424-34) NP De Lucia’s January and February reports are similar

to her November report in that she notes that Mr. Dixon’s functionality was

increasing with use of the TENS unit and back brace. (Id.)

In April 2016, nearly three years after the car accident, Mr. Dixon was

seen by Dr. Edwin Constantino, and he continued to see Dr. Constantino

through March 2017. Dr. Constantino noted in April 2016 that Mr. Dixon’s

lumbar spine had decreased rotation, flexion, and extension and that he had

decreased range of motion. (R. 448) Dr. Constantino continued to note from

each visit from April 2016 to March 2017 that Mr. Dixon had a decreased range

of motion and had decreased rotation, flexion, and extension in his lumbar

spine. (R. 435, 438-41, 445-46). However, in May 2016, Dr. Constantino noted

that Mr. Dixon’s pain medication and TENS unit helped alleviate his pain, (R.

447). Throughout 2016, Mr. Dixon continued to report occasions where his

pain radiated to his lower extremities (R. 441, 445) but at times his pain also

decreased and was sufficiently managed by pain medication. (R 435, 440, 444,

446)

3. Disability Determination

On October 16, 2014, the State’s physician, Dr. Deogracias Bustos,

completed a disability determination explanation. (R. 106-115) Dr. Bustos

reviewed records from the New England Spine & Wellness Center, Trinitas

Hospital, and Dr. Nasser. (R. 110) Dr. Bustos summarized his findings from the

records from N.E. Spine & Wellness Center from January 2014 to April 24,

9014 as follows: “severe low back pain radiating to rt leg to the foot, pain level

10/10” and “decreased sensation rt L5 and 21, muscle strength — weakness

due to pain b/1 lumbar flexor . . . some muscle spasm, tenderness” (R. 110)

During a similar time period, Dr. Bustos summarized the records from Dr.

Nasser as follows “LS — no tenderness / no muscle spasm, ROM —

flexion extension - restricted due to low back pain UE/LE - normal rom,

muscle strength and ton and stability” (R. 110) Finally, Dr. Bustos summarized

an October 6, 2014 visit were Mr. Dixon was “able to walk w/o cane, normal

heel toe gait, came to the office using straight cane, lumbar brace, able to walk

on heels and toes, unable to squat, normal function of the hand.” (R. 111)

Ultimately Dr. Bustos determined that Mr. Dixon suffered from two severe

impairments: a spine disorder and obesity. (R. 111) He determined that Mr.

Dixon’s RFC was such that he could occasionally lift items weighing 20

pounds, frequently lift items weighing 10 pounds, could stand for 4 hours and

sit about 6 hours in an 8-hour workday. (R. 112) Dr. Bustos also found that

Mr. Dixon could climb stairs, balance, stoop, crouch and crawl occasionally,

but could never climb ladders. Based on his review, Dr. Bustos found that Mr.

Dixon was not limited to unskilled work and could sustain a sedentary job. (R.

114)

Mr. Dixon sought reconsideration of these findings alleging that his

symptoms were getting worse. (R. 122) Mr. Dixon submitted additional medical

records from a February 4, 2015 examination by Del Lucia Advance. That

examination rendered the following results: “Cervical: normal flexion and

extension, cervical axial compress, negative, faber decreased, lumbar flexion

decreased, lumbar rotation and extension decreased. SGR: negative, Smooth

steady gait with good coordination . . . mobility decreased. Extremities LUE

5/5, LLE: 4/5 RUE: 5/5, RLE: 4/5.... neurologically normal.” (R. 122) Based

on this evaluation, Dr. Bustos’s findings were confirmed. (R. 125)

B. Procedural History

On May 27, 2014, Mr. Dixon applied for DIB. (R. 17) The application was

denied initially (R. 128) and on rehearing. (R. 136) On April 7, 2017 the ALJ

held a hearing. (R. 36)

On July 14, 2017, the ALJ issued a decision (R. 17-29) denying disability

benefits on the ground that Mr. Dixon was still able to perform work at step

five of the sequential evaluation. (Id.)

Mr. Dixon appealed. On July 12, 2018, the Appeals Council concluded

that there were no grounds for review and affirmed the decision of the ALJ. (R.

1)

On September 7, 2018, Mr. Dixon filed this action seeking to overturn

the ALJ’s decision to deny benefits. Initially assigned to Chief Judge Linares,

the case was reassigned to me upon Judge Linares’s retirement. (DE 12)

I. DISCUSSION

A. Standard of Review .

As to all legal issues, this Court conducts a plenary review. See

Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to

factual findings, this Court adheres to the ALJ’s findings, as long as they are

supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d

Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will

“determine whether the administrative record contains substantial evidence

supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).

“Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Zirnsak v. Colvin, 777 F.3d 607,

610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial

evidence “is more than a mere scintilla but may be somewhat less than a

preponderance of the evidence.” Id. (internal quotation marks and citation

omitted).

When there is substantial evidence to support the ALJ’s factual findings,

this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. §

405(g)); Zirmsak, 777 F.3d at 610-11 (“[W]e are mindful that we must not

substitute our own judgment for that of the fact finder.”). This Court may,

under 42 U.S.C. § 405(g), affirm, modify, or reverse the Commissioner’s

decision, or it may remand the matter to the Commissioner for a rehearing.

Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm’r of

Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir. 2007). A person is deemed unable

to engage in substantial gainful activity

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. For purposes of the preceding sentence (with respect to

any individual), “work which exists in the national economy”

means work which exists in significant numbers either in the

region where such individual lives or in several regions of the

country.

42 U.S.C. § 1382c(a)(3)(B).

In reaching a decision, an ALJ is only required to addressed relevant

examinations, opinion evidence, and the claimant’s complaints. See Cotter v.

Harris, 650 F.2d 481, 482 (3d Cir. 1981) (An ALJ is only required to “indicate

that s/he has considered ail the evidence, both for and against the claim, and

provide some explanation of why s/he has rejected probative evidence. ...

(T]he ALJ is not required to supply a comprehensive explanation for the

rejection of evidence; in most cases, a sentence or short paragraph would

probably suffice.”).

Remand is proper if the record is incomplete, or if there is a lack of

substantial evidence to support a definitive finding on one or more steps of the

five-step inquiry. See Podedworny, 745 F.2d at 221-22. Remand is also proper

if the ALJ’s decision lacks adequate reasoning or support for its conclusions, or

if it contains illogical or contradictory findings. See Burnett v. Comm ’r of Soc.

Sec., 220 F.3d 112, 119-20 (3d Cir, 2000).

B. The Social Security Act and the Five-Step Process

Under the authority of the Social Security Act, the Administration has

established a five-step evaluation process for determining whether a claimant

is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. This

Court’s review necessarily incorporates a determination of whether the ALJ

properly followed the five-step process prescribed by regulation. The steps may

be briefly summarized as follows:

Step One: Determine whether the claimant has engaged in substantial

gainful activity since the onset date of the alleged disability. 20 C.F.R. §§

10

404.1520(b), 416.920(b). If yes, the claimant is not disabled. If not, move to

step two.

Step Two: Determine if the claimant’s alleged impairment, or

combination of impairments, is “severe.” Id. §§ 404.1520(c), 416.920(c). If not,

the claimant is not disabled. If the claimant has a severe impairment, move to

step three.

Step Three: Determine whether the impairment meets or equals the

criteria of any impairment found in the Listing of Impairments. 20 C.F.R. Pt.

404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high

level to identify clear cases of disability without further analysis). If so, the

claimant is automatically eligible to receive benefits; if not, move to step four.

Id. §§ 404.1520(d), 416.920(d).

Step Four: Determine whether, despite any severe impairment, the

claimant retains the Residual Functional Capacity (“RFC”) to perform past

relevant work. Id. §§ 404.1520(e)-(f), 416.920(e)-(f}. If yes, the claimant is not

disabled. If not, move to step five.

Step Five: At this point, the burden shifts to the Commissioner to

demonstrate that the claimant, considering his age, education, work

experience, and RFC, is capable of performing jobs that exist in significant

numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g); see

also Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir, 2007). If so,

benefits will be denied; if not, they will be awarded.

Dixon’s appeal hinges on the ALJ’s findings at step three and as to his

RFC findings, which he says are not supported by substantial evidence. (Pl. Br.

at 14-15). As to Mr. Dixon’s RFC, a claimant’s RFC is not a medical diagnosis

as such. See Titles II & XVI: Med. Source Opinions on Issues Reserved to the

Comm’r, SSR 96-5P, 1996 WL 374183 at *2 (S.S.A. July 2, 1996). Instead, it is

an administrative finding reserved for the Commissioner. Id.; see also Pintal v.

Comm’r of Soc. Sec., 602 F. App’x 84, 87 (3d Cir, 2015) (“The ultimate legal

determination of disability is reserved for the Commissioner.”); see also

Lt

Robinson v. Colvin, 137 F. Supp. 3d 630, 644 (D. Del. 2015) (“[O}pinions that a

claimant is ‘disabled’ or ‘unable to work’ are not medical opinions and are not

given special significance because opinions as to whether or nota claimant is

disabled are reserved for the Commissioner.”); 20 C.F.R. § 404. 1527(d) (“A

statement by a medical source that you are ‘disabled’ or ‘unable to work’ does

not mean that we will determine that you are disabled.”).

An ALJ is not bound by the capacity determinations ofa treating

physician. See Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011). Indeed,

the determination of disability is legal in nature, and is reserved for the ALJ

within the constraints of the statute and regulations. See Mays v. Barnhart, 78

F. App’x 808, 813 (3d Cir. 2003) (“[T]he ALJ... is not required to seek a

separate expert medical opinion.”}; Glass v. Colvin, No. 14-237, 2015 WL

5732175 at *1 (W.D. Pa. Sept. 30, 2015) (“[T]he ALJ is not limited to choosing

between competing opinions in the record .. . .”).

Medical opinions need be credited by the ALJ only if they are well-

supported by medically acceptable clinical and laboratory diagnostic

techniques and not inconsistent with the other substantial evidence in the

record. 20 C.F.R. § 404.1527(c}(2). An ALJ may, if appropriate, elect to

disregard a medical opinion entirely: “(If a physician’s opinion is not supported

by clinical evidence or if it is inconsistent with other substantial evidence, it

should be accorded significantly less weight.” Craig v. Chater, 76 F.3d 585 (4th

Cir. 1996); see also Irey v. Colvin, No. 13-7423, 2016 WL 337019 at *4 (E.D.

Pa. Jan. 27, 2016) (“[T]he ALJ is not bound by the opinion of any one

physician[] and can reject an opinion if there is a lack of support or a finding of

contradictory evidence in the record.”).

C. The ALJ’s Decision

On July 14, 2017, the ALJ issued a decision finding that Mr. Dixon was

not disabled within the meaning of the Social Security Act. (R. 29) The ALJ

determined that Dixon’s impairments were severe, but he also determined that,

given Dixon’s age, education, work experience, and RFC, he was capable of

12

making a successful adjustment to other jobs that existed in significant

numbers in the national economy. (R. 28)

The ALJ followed the five-step process outlined above to determine that

Ramos was not disabled. The ALJ’s findings are summarized as follows:

Step One: At step one, the ALJ determined that Dixon had not engaged

in substantial gainful activity for a continuous 12-month period from July 13,

2013 to September 30, 2016. (R. 19)

Step Two: At step two, the ALJ determined that Dixon had the following

severe impairments: lumbar degenerative disc disease and obesity. (R. 19)

Step Three: At step three, the ALJ determined that Dixon did not have

an impairment or combination of impairments that met or medically equaled

the severity of one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P.,

app. 1. (R. 19-20) The ALJ made particular reference to Listing 1.04,) finding

that claimant’s impairments did not meet or medically equal the criteria listed.

(R. 20)

Step Four: At step four, the ALJ determined that based on Mr. Dixon’s

RFC, he could not perform his past relevant work (R. 28), but that he had the

1 1.04 Disorders 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.

13

RFC to perform light work as defined in 20 C.F.R. 4404.1567(b) and 416.967(b)

with additional limitations. (R. 20-27).

The ALJ found that Dixon’s RFC limited him to performing light work

with the following limitations:

[T]he claimant can stand and walk for a combined total of 4 hours

in an 8 hour work day; occasionally climb ramps and stairs; never

climb ladders, ropes or scaffolds; occasionally balance;

occasionally stoop, kneel, crouch, crawl. The claimant must be

permitted to stand and stretch at the workstation for 1-5 minutes

after 30 minutes si[t]ting, and to sit for 1-5 minutes at the

workstation after 30 minutes of standing or walking, while

continuing work tasks. Further, due to pain and other symptoms,

the claimant would be absent form work 1 day per month on

average, and would be off task 5% of the work day.

(R. 21) The ALJ determined that notwithstanding Mr. Dixon’s testimony

regarding his physical pain and limitations, his statements concerning the

“intensity, persistence and limiting effects of [his] symptoms [were] not entirely

consistent with the medical evidence and other evidence in the record.” (R. 23)

Step Five: At step five, the ALJ considered Mr. Dixon’s age, education,

work experience and RFC in conjunction with the Medical-Vocational

Guidelines. (R. 28-29) Relying on the testimony of the vocational expert, the

ALJ identified several representative jobs that Dixon could perform: (1)

assembler arranger; (2) information clerk; and (3) fund raiser.

Accordingly, the ALJ determined that Mr. Dixon was not disabled at any

point, as defined by the Social Security Act, from July 13, 2013 to September

30, 2016. (R. 19)

D. Analysis of Mr. Dixon’s Appeal

1. The ALJ’s Step Three Evaluation

At step three, the ALJ found that Mr. Dixon does not have an impairment

or combination of impairments that meets or medically equals the severity of

one of the listed impairments in 20 C.F.R. Pt. 404, subpt. P., app. 1. (R. 19-20)

Mr. Dixon argues that the ALJ erred at step three by failing to address his

obesity and failing to address medical equivalents. (Pl. Br. 14-29).

14

i. Discussion of Obesity

Obesity was removed as a “listed impairment” in 1999, but, as the Third

Circuit has recognized, “this did not eliminate obesity as a cause of disability.

To the contrary, the Commissioner promulgated [Social Security Ruling] 00O-3p,

indicating how obesity is to be considered. This SSR replaced an automatic

designation of obesity as a Listed Impairment, based on a claimant’s height

and weight, with an individualized inquiry, focused on the combined effect of

obesity and other severe impairments afflicting the claimant.” Diaz v. Comm’r of

Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009) (citing SSR 00-3p, 65 Fed.Reg.

31039, 31040-42 (May 15, 2000)); see also Webster v. Astrue, 628 F.Supp.2d

1028, 1031 (S.D.lowa 2009) (explaining “This SSR points out that obesity isa

life long impairment, and that although the obesity listing was deleted, the

impairment requires special consideration in the evaluation of a disability

claim,” and, on remand, directing “both the ALJ and counsel... to read this

ruling carefully, and then apply it to the facts of Plaintiff's case”).

In 2002, SSR 00-3p was superseded by SSR 02-1p, 67 Fed.Reg. 57859-

02 (Sept. 12, 2002), but SSR 02-1p did not materially amend SSR 00-3p. See

Diaz, 577 F.3d at 503.

SSR 02-1p provides the following guidance:

[W]e consider obesity to be a medically determinable impairment

and remind adjudicators to consider its effects when evaluating

disability. The provisions also remind adjudicators that the

combined effects of obesity with other impairments can be greater

than the effects of each of the impairments considered separately.

They also instruct adjudicators to consider the effects of obesity

not only under the listings but also when assessing a claim at

other steps of the sequential evaluation process, including when

assessing an individual’s residual functional capacity.

Because there is no listing for obesity, we will find that an

individual with obesity “meets” the requirements of a listing if he or

she has another impairment that, by itself, meets the requirements

of a listing. We will also find that a listing is met if there is an

impairment that, in combination with obesity, meets the

requirements of a listing.... For example, when evaluating

impairments under mental disorder listings 12.05C, 112.05D, or

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112.05F, obesity that is “severe,” ... satisfies the criteria in listing

12.05C for a physical impairment imposing an additional and

significant work-related limitation of function and in listings

112.05D and 112.05F for a physical impairment imposing an

additional and significant limitation of function.... We may also

find that obesity, by itself, is medically equivalent to a listed

impairment.... We will also find equivalence if an individual has

multiple impairments, including obesity, no one of which meets or

equals the requirements of a listing, but the combination of

impairments is equivalent in severity to a listed impairment.

Social Security Ruling, SSR 02-1p; Titles II and XVI: Evaluation of Obesity, 67

FR 57859-02.

Obesity is thus mentioned as a potential exacerbating factor in several

listings. For instance, Listing 1.00, concerning musculoskeletal disorders,

states that:

Obesity is a medically determinable impairment that is often

associated with disturbance of the musculoskeletal system, and

disturbance of this system can be a major cause of disability in

individuals with obesity. The combined effects of obesity with

musculoskeletal impairments can be greater than the effects of

each of the impairments considered separately. Therefore, when

determining whether an individual with obesity has a listing-level

impairment or combination of impairments, and when assessing a

claim at other steps of the sequential evaluation process, including

when assessing an individual’s residual functional capacity,

adjudicators must consider any additional and cumulative effects

of obesity.

20 C.F.R. Pt. 404, subpt. P., app. 1, 7 1.00Q.

At step two, the ALJ found that Mr. Dixon’s obesity was a severe

impairment. (R. 19} However, at step 3 the ALJ failed to consider the

cumulative and additional effects of Mr. Dixon’s obesity when determining if he

qualified for one of the listed impairments. The ALJ provides a conclusory

discussion of Mr. Dixon’s obesity at step three. The opinion states:

I have also given consideration to Social Security Ruling 02-1p,

which instructs adjudicators to consider the effects of obesity not

only under the listings, but also when assessing a claim at other

steps of the sequential evaluation process, including when

assessing an individual’s residual functional capacity. When

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obesity is identified as a medically determinable impairment,

consideration will be given to any functional limitations resulting

from the obesity in the residual functional capacity assessment in

addition to any limitations resulting from any other physical or

mental impairment identified.

(R. 20) The ALJ goes on to state that he considered obesity at steps four and

five and then reiterates that “I have fully considered obesity in the context of

the overall record evidence in making this decision” without elaboration. (R. 20)

True, the ALJ cites SSR 02-1p; more is required, however, to demonstrate that

the ALJ satisfied the obligation to consider whether obesity, in conjunction

with other impairments, equals a listing.

The ALJ’s discussion of obesity at step three does not show sufficient

analysis. The ALJ notes that he “evaluated the impairment herein pursuant to

the extensive and detailed guidelines set forth in SSR 02-1p,” but does not

actually, medically or factually, address whether Mr. Dixon’s obesity

compounds his other impairments so that his impairments meet or equal a

listed impairment. “[I]t is the ALJ’s responsibility . . . to identify the relevant

listed impairment(s) and develop the arguments both for and against granting

benefits.” Torres v. Comm’r of Soc. Sec., 279 Fed.Appx. 149, 151-52 (3d Cir.

2008) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120 n.2 (3d Cir.

2000)) (internal quotations omitted), see also SSR 02-1p.

The Commissioner then suggests that, in any case, the ALJ discussed

Mr. Dixon’s obesity later, at steps four and five in his RFC determination.

There, says the Commissions, the ALJ “noted Plaintiff's obesity, his height, his

weight, and his BMI (TR. 23, 25).” This, the Commissioner argues, is sufficient

to satisfy the requirements of SSR 02-1p and Diaz. (See SSA Br. at 15.) Diaz

mandates, however, that “an ALJ must meaningfully consider the effects ofa

claimant’s obesity, individually and in combination with her impairments, on

her workplace function at step three and at every subsequent step.” Diaz, 577

F.3d at 504 (emphasis added). Diaz also mandates that the ALJ engage the

evidence and “clearly set forth the reasons for his decision” so that an appellate

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court can conduct “meaningful judicial review.” See id. (“an ALJ must clearly

set forth the reasons for his decision. Conclusory statements that a condition

does not constitute the medical equivalent of a listed impairment are

insufficient. The ALJ must provide a ‘discussion of the evidence’ and an

‘explanation of reasoning’ for his conclusion sufficient to enable meaningful

judicial review.”) (citing Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112,

119 (3d Cir. 2000)). A blanket statement that an ALJ has considered evidence

or one reference to a claimant’s weight at another step is not the same thing as

an ALJ’s actually discussing the evidence and clearly setting forth the reasons

for his decision as Diaz and Burnett require, at step three.

Finally, as discussed below, the ALJ’s failure to consider Mr. Dixon’s

obesity at step three is additionally problematic in conjunction with his

analysis of the severity of Mr. Dixon’s other physical impairments.

ii. Listing 1.04

In step three, this Circuit’s precedent “requires the ALJ to set forth the

reasons for his decision.” Burnett, 220 F.3d at 119 (citing Cotter v. Harris, 642

F.2d 700, 704-05 (3d Cir. 1981)).

Here, the ALJ found that “the severity of the claimant’s physical

impairments .. . did not meet or medically equal the criteria of any impairment

listed in 1.04” (Disorders of the spine) because, says the ALJ, “the record does

not demonstrate compromise of a nerve root (including the cauda equina); or

the spinal cord with additional findings” that meet the impairments listed in

1.04A, 1.04B, or 1.04C of 20 C.F.R. pt. 404, subpt. P. app. 1 § 1.04. (R. 20)

Here, Dixon first contends that the ALJ did not consider Mr. Dixon’s

constellation of symptoms, including not just his spinal impairment but also

his obesity, to determine whether his symptoms were medically equivalent to

the impairments listed in 1.04. (Pl. Br. 22-23) To some degree, that contention

echoes the one discussed above. Second, Dixon asserts that the ALJ erred at

step 3 because the decision states in conclusory fashion that Dixon’s

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impairments do not meet the criteria in 1.04, but offers no reasoned analysis

explaining why those impairments are insufficient. (Id. 24)

Paragraph A of 1.04 is most relevant here. To meet the severity

requirements, a claimant must exhibit one or more listed spine disorders, such

as herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis,

osteoarthritis, or degenerative disc disease, that result in a compromise of a

nerve root (including the cauda equina) or the spinal cord with 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).

The ALJ concedes that Mr. Dixon has had a history of back issues that

are severe. Beginning in 2005, Mr. Dixon had surgery to repair discs in his

back. In 2009, he had to have surgery again, this time having a spinal fusion.

Nevertheless, the ALJ seemingly discredits Mr. Dixon’s symptoms beginning in

2013 because “[alfter his surgery in 2009, the claimant has never been

hospitalized for any orthopedic related disorders.” (R. 26) It does not strain

imagination that being hit by a car and thrown to the ground could inflame a

prior back condition. Indeed, there is no question that the medical record here

establishes that Mr. Dixon suffers from a degenerative disc disease (R. 19) The

only question is whether his spinal cord was compromised so as to meet the

additional symptoms listed in 1.04A.

The record here contains substantial evidence that suggests that after

being struck by the vehicle on July 13, 2013, Mr. Dixon suffered significant

physical impairments until approximately October 2014, when his condition

began to improve. From October 2014 until the date Mr. Dixon was last

insured in September 2016, the record suggests that Mr. Dixon, while still

suffering from back pain, began to improve more rapidly.

The ALJ fails to observe the distinction between those two periods. The

opinion seems to discount the medical records from July 2013 to October

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2014, noting that Mr. Dixon began to experience improvement in late 2014.

This falls short of substantial evidence that Mr. Dixon was not impaired for the

entire period July 13, 2013 to September 30, 20 16.

The ALJ failed to give adequate consideration to the medical evidence

from July 13, 2013 through October 2014. During this approximately fifteen-

month period, Mr. Dixon was treated by Dr. Ryan, Nurse Practitioner De Lucia,

and Dr. Nasser. To be sure, Dr. Nasser’s notes from 2014 state that Mr. Dixon

had a normal gait, normal range of motion, and normal muscle strength. (R.

332-56) However, Dr. Nasser, as the ALJ concedes, also diagnosed Mr. Dixon

with lumbar radiculopathy (a pinched nerve) and unstable lumbar spine and

advised that Mr. Dixon was disabled. (R. 24) It consistently remained Dr.

Nasser’s opinion that it was medically necessary for Mr. Dixon to have testing

that was directly related to the July 2013 motor vehicle accident, Dr. Nasser

sent Mr. Dixon for additional diagnostic testing, which included nerve

conduction studies, CT scans, and needle electromyography. (R. 341) Mr.

Dixon’s insurance repeatedly denied these requests.

Moreover, it is also clear that Dr. Nasser’s notes indicating that Mr.

Dixon had a normal gait, range of motion, and muscle strength cannot be

reconciled with the opinions of Dr. Ryan and NP De Lucia. It is unclear why the

ALJ discounted Dr. Ryan’s and NP De Lucia’s assessments. (R. 23-24) The ALJ

does not specifically address NP De Lucia’s reports and findings; the ALJ only

points to late 2014 entries where Mr. Dixon reported that he was beginning to

improve. Notably, almost a year after the accident, NP De Lucia found in June

2014 that Mr. Dixon was unable to hold his body and head erect, he was

unbalanced, had poor muscle/strength/tone, he had decreased flexion,

rotation, and extension of his lumbar spine, unsteady gait, but was able to

walk on his heels and toes. (R. 387-888) NP De Lucia continues to note these

deficiencies into the fall of 2014. Nevertheless, the ALJ broadly concludes from

this that Mr. Dixon had normal gait, his straight leg raising tests were negative,

and that he had normal motor strength in his upper and lower extremities. It is

only in the fall of 2014, when Mr. Dixon received a TENS unit and additional

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therapy, that he began to feel better. (See, e.g., R. 416-17 (De Lucia November

2014 notes); R. 418 (De Lucia December 2014 notes))

Likewise, Dr. Nasser’s assessment of Mr. Dixon’s gait and muscle

strength cannot be squared with Dr. Ryan’s. From January 2014 through April

2014, Mr. Dixon was seen by Dr. Ryan who found that Mr. Dixon suffered from

pain, spasms, tender muscles in his back, swelling with tenderness in his

spine, weakness, and decreased joint mobility. (See, e.g., R. 358-59, 361-62)

Collectively, there is substantial evidence that contradicts the ALJ’s

finding that “every physical examination reflects full motor strength of both the

upper and lower extremities bilaterally.” (R. 26) The ALJ, to be sure, is entitled

to sift the evidence and decide which accounts to credit. Here, however, the

ALJ failed to address the conflicting evidence from July 2013 to October 2014

regarding Mr. Dixon’s impairments and failed to explain why it should be

disregarded at step three of the analysis. That flaw, even standing alone, would

be grounds for remand so that the necessary balancing can be performed. See

Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (“Where there is

conflicting probative evidence in the record, we recognize a particularly acute

need for an explanation of the reasoning behind the ALJ’s conclusions, and will

vacate or remand a case where such an explanation is not provided.”); Burnett,

220 F.3d at 119 (3d Cir. 2000) (stating “this Court requires the ALJ to set forth

the reasons for his decision” and remanding because “the ALJ merely stated a

summary conclusion that appellant’s impairments did not meet or equal any

Listed Impairment, without identifying the relevant listed impairments,

discussing the evidence, or explaining his reasoning”) (citing Clifton uv. Chater,

79 F.3d 1007 (10th Cir. 1996); Logan v. Astrue, CIV.A. 07-1472, 2008 WL

4279820 (W.D. Pa. Sept.16, 2008) (“an ALJ may not capriciously disregard

competent medical evidence, however, an ALJ is permitted to discredit medical

evidence that conflicts with other evidence in the record, provided that the ALJ

provides his or her reasons for doing so”}.

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While the ALJ is best positioned to judge a claimant’s impairments,

“appellate courts retain a responsibility to scrutinize the entire record and to

reverse or remand if the Secretary’s decision is not supported by substantial

evidence.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). Here, the ALJ’s

disregard for Mr. Dixon’s physical impairments and obesity from July 2013 to

October 2014 call for a remand. Additionally, because I am not satisfied that

Mr. Dixon’s obesity was adequately considered at step three, | will further

remand for additional findings as to how, if at all, Mr. Dixon’s obesity impacts

the ALJ’s findings at step three as to the entire period from July 2013 to

September 30, 2016.

II. CONCLUSION

For the foregoing reasons, the case is REMANDED to the Commissioner

for additional proceedings consistent with this opinion.

On remand, the ALJ shall fully develop the record and explain his

findings at step three, including an analysis of whether Dixon’s combined

impairments, including obesity, are equivalent in severity to one of the listed

impairments. The ALJ shall consider whether there was a disability in part of

the claimed period, i.e., July 2013 to October 2014. If necessary, the

assessment at step four shall likewise consider all pertinent medical evidence

and explain how any conflicts were reconciled. Finally, if it is necessary to

reach step five, the ALJ is directed to make the requisite factual findings with

regard to the level and transferability of Dixon’s skills.

I express no view, however, as to what those findings should be. A

separate order will issue.

Dated: February 20, 2020 | ' ( ( 7

Hon. Kevin McNulty

United States District Jud

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