# GRAVES-DOYLE v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · March 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10654999

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARILYN G.D.,
Plaintiff,
Civ. No. 21-00494 (KM)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Plaintiff Marilyn G.D. brings this action to review a final decision of the
Commissioner of Social Security (“Commissioner”) denying her claims for Title
II Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security
Income (“SSI”). Upon reviewing and weighing certain evidence, the
Administrative Law Judge (“ALJ”) issued a decision, concluding that Marilyn
G.D. was not disabled from January 16, 2018, the onset date of the alleged
disability, through March 31, 2020, the date of decision.
The issue presented is whether the ALJ’s decision is supported by
substantial evidence. For the reasons stated below, the decision is REVERSED
AND REMANDED.
I. BACKGROUND1
Marilyn G.D. applied for DIB pursuant to Sections 216(i) and 223(d) of
the Social Security Act (“SSA”) on May 24, 2018, and for SSI pursuant to
Section 1614(a)(3)(A) of the SSA on June 6, 2018, alleging disability beginning

1 Citations to the record are abbreviated as follows:
DE = docket entry
AR. _ = Administrative Record (DE 9) (the cited page numbers correspond to the
number found in the bottom right corner of the page for all DE 9 attachments)
Pl. Br. = Marilyn G.D’s Moving Brief (DE 12)
on January 16, 2018. (AR. 15.) Her application was denied initially then upon
reconsideration. (AR. 15, 118-123, 130-132.) On October 26, 2018, Marilyn
G.D. filed a request for a hearing before an ALJ to review her application de
novo. (AR. 133-135.) A hearing was held on January 8, 2020 before ALJ
Richard West, who issued a decision on March 31, 2020. ALJ West denied
disability at step five, ruling that Marilyn G.D. is capable of performing light
work that accommodates her limitations and exists in significant numbers in
the national economy. (AR. 24.)
Marilyn G.D. requested Appeals Council Review of ALJ West’s decision,
but her request was denied on December 3, 2020. This denial rendered ALJ
West’s decision the final decision of the Commissioner. (AR. 1–6.) Marilyn G.D.
now appeals, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
II. DECISION FOR REVIEW
A. The Five-Step Process and this Court’s Standard of Review
To qualify for Title II DIB benefits and for SSI for disability, a claimant
must meet the insured status requirements of 42 U.S.C. § 423. To qualify, a
claimant must show that she is unable to engage in substantial gainful activity
by reason of any medically determinable physical or mental impairment that
can be expected to result in death or that has lasted (or can be expected to last)
for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(c),
1382(a).
Under the authority of the SSA, the Social Security Administration (the
“Administration”) has established a five-step evaluation process for determining
whether a claimant is 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, which is prescribed by regulation.
The steps may be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 CFR §§
404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id. §§ 404.1520(c),
416.920(c). If the claimant has a severe impairment, move to step
three.
Step 3: Determine whether the severe impairment meets or equals
the criteria of any impairment found in the Listing of Impairments.
20 CFR Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is
automatically eligible to receive disability benefits (and the analysis
ends); if not, move to step four. Id. §§ 404.1520(d), 416.920(d).
RFC and Step 4: Determine the claimant’s “residual functional
capacity” (“RFC”), meaning “the most [the claimant] can still do
despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). Caraballo v.
Comm’r of Soc. Sec., 2015 WL 457301, at *1 (D.N.J. Feb. 3, 2015).
Decide whether, based on her RFC, the claimant can return to her
prior occupation. 20 C.F.R. § 1520(a) (4)(iv); Id. §§ 404.1520(e)–(f),
416.920(e)–(f). If not, move to step five.
Step 5: At this point, the burden shifts to the Administration to
demonstrate that the claimant, considering her age, education,
work experience, and RFC, is capable of performing jobs that exist
in significant numbers in the national economy. 20 CFR §§
404.1520(g), 416.920(g); see 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.
On appeal, the Court conducts a plenary review of the legal issues. See
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Factual
findings are reviewed “only to 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 “less than a
preponderance of the evidence but more than a mere scintilla.” Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted). “It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. When substantial evidence exists to support the ALJ’s factual
findings, this Court must abide by the ALJ’s determinations. See id. (citing 42
U.S.C. § 405(g)).
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). Outright reversal
with an award of benefits is appropriate only when a fully developed
administrative record contains substantial evidence that the claimant is
disabled and entitled to benefits. Podedworny, 745 F.2d at 221–222; Morales v.
Apfel, 225 F.3d 310, 320 (3d Cir. 2000).
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); Leech v. Barnhart, 111 F. App’x 652,
658 (3d Cir. 2004) (“We will not accept the ALJ's conclusion that Leech was not
disabled during the relevant period, where his decision contains significant
contradictions and is therefore unreliable.”). It is also proper to remand where
the ALJ’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
B. The ALJ’s Decision
ALJ West undertook the five-step inquiry. His conclusions are
summarized as follows:
Step 1
ALJ West concluded that Marilyn G.D. has not engaged in substantial
gainful activity since January 16, 2018, the alleged onset date. (AR. 17.)
Step 2
The ALJ found that Marilyn G.D. has the following severe impairments:
degenerative disc disease, seronegative rheumatoid arthritis, thyroid disorder,
hypertension, sarcoidosis, and obesity. (AR. 17.) As to glaucoma, however, the
ALJ concluded that the record did not “establish a visual impairment that
imposed more than a slight vocational limitation on the claimant’s ability to
function,” and that it therefore is not “severe” under the relevant regulations.
(AR. 17.) Because the ALJ found that Marilyn G.D. suffered from several severe
impairments, he proceeded to step three.
Step 3
With respect to her established severe impairments, the ALJ determined
that Marilyn G.D. did not have an impairment or combination of impairments
that met or medically equaled the severity of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (AR. 17.) The ALJ paid particular
attention to Listings 1.04 (Disorders of the Spine), 14.09 (Inflammatory
Arthritis), 9.0 (Endocrine Disorders), as well as Section 14 (Immune System
Disorders) of the Listings. The ALJ also considered whether obesity, in
combination with Marilyn G.D.’s other impairments, met or equaled any of the
listed impairments.
First, ALJ West declined to find that Marilyn G.D. met the criteria for
Listing 1.04 because the record failed “to demonstrate the existence of a
herniated nucleus pulposis, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis, or the requirements of
A, B, or C of” Listing 1.04. (AR. 18.)
Second, ALJ West determined that Marilyn G.D.’s seronegative
rheumatoid arthritis did not meet the criteria of Listing 14.0 because it was
“not documented as described in section 14.00D6, with one of the
requirements in subsections A through D.” (AR. 18.)
Third, the ALJ found that Listing 9.0 was not met because the record did
not establish that Marilyn G.D’s thyroid disorder “has imposed serious long
term complications in any of the other body systems found in Section 4.00,
5.00, 11.00, and 12.00.” (AR. 18.)
Fourth, ALJ West stated that he evaluated Marilyn G.D’s hypertension
under “all of the cardiac listings in section 4.00,” and found that “none of those
listings” were met or equaled. (AR. 18.)
Fifth, the ALJ noted that although there is no listing for obesity,
pursuant to Social Security Ruling (“SSR”) 19-2p, “[o]besity in combination
with another impairment(s) may or may not increase the severity or functional
limitations of the other impairment.” (AR. 18.) The ALJ stated that he “fully
considered obesity in the context of the overall record evidence in making” his
decision. (AR. 18.)
RFC and Step 4
ALJ West defined Marilyn G.D.’s RFC as follows:
[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she can perform all postural functions
occasionally. She must avoid concentrated exposure to extreme
cold, extreme heat, wetness, humidity, and dust, fumes and
similar occupational irritants. She must avoid dangerous
machinery and unprotected heights; and she can understand,
remember and carry out simple instructions.
(AR. 19.)
ALJ West began his RFC analysis by laying out the prescribed two-step
process. First, he was required to determine whether Marilyn G.D. had an
underlying medically determinable physical or mental impairment “that can be
shown by medically acceptable clinical and laboratory diagnostic techniques—
that would reasonably be expected to produce [Marilyn G.D.’s] pain or other
symptoms.” (AR. 19.) Second, the ALJ was required to “evaluate the intensity,
persistence, and limiting effects of [Marilyn G.D.’s] symptoms to determine the
extent to which they limit [her] work-related activities.” (AR. 19.) This
evaluation required him to look to objective medical evidence, or to the entire
case record, where objective medical evidence does not substantiate Marilyn
G.D.’s statements about “the intensity, persistence, and limiting effects of pain
or other symptoms.” (AR. 21.)
ALJ West concluded that Marilyn G.D.’s “statements about the intensity,
persistence, and limiting effects of … [her] symptoms … are not entirely
consistent with the medical evidence and other evidence in the record.” (AR.
21.)
Marilyn G.D. testified that she started having problems with her back in
2012, resulting in back surgery that same year. (AR. 19.) She also testified that
she is “limited in doing things,” “always in pain,” and that her pain pills cause
her to feel “tired and sluggish.” (AR. 20.) The ALJ acknowledged that the
record establishes that Marilyn G.D. was diagnosed with seronegative
rheumatoid arthritis, degenerative joint disease of the spine, tendonitis of the
right shoulder, and primary arthritis of the left knee, resulting in symptoms
such as leg pain, numbness and tingling, and pain in her knees, fingers, wrists
and elbows. (AR. 21.) With respect to Marilyn G.D.’s thyroid disorder, the ALJ
notes that Marilyn G.D. had “experienced palpitations,” resulting in emergency
room visits in January 2018 and October 2019.” (AR. 21.)
Notwithstanding Marilyn G.D.’s symptoms, the ALJ cited portions of the
medical record which tended to mitigate the severity of her condition. After her
spinal surgery in 2012, she returned to work and continued to work until
January 2018. (AR. 20.) Moreover, a September 2018 consultative examination
“failed to show any marked functional limitation,” with Marilyn G.D. exhibiting
“a normal range of motion in the lumbar spine, with no evidence of motor,
strength or sensory deficits in the bilateral extremities with the exception of a
decreased range of motion in both knees.” (AR. 20.) During this same
examination, Marilyn G.D. “walked with a normal unassisted gait and station
and had no difficulty performing transfers.” (AR. 20.) The ALJ additionally
noted that despite Marilyn G.D.’s complaints of “intermittent achy lower back
pain,” from 2017 through 2019 Dr. Xiong only prescribed oral analgesics, as
opposed to more aggressive treatments such as steroid epidural injections,
physical therapy, or additional surgical intervention. (AR. 20.)
With respect to Marilyn G.D.’s musculoskeletal complaints, during a July
2018 examination, while she exhibited “a diminished range of motion in the
upper extremities, hip and ankles,” the report also noted “no evidence of
musculoskeletal deformity or sensory deficit.” (AR. 21.) By September 2018,
Marilyn G.D. displayed no “marked functional limitation,” “walked with a
normal gait and station,” had “a full range of motion throughout with the
exception of the knee and upper flexion of the cervical spine.” (AR. 21.)
Concerning Marilyn G.D.’s thyroid disorder, ALJ West stated that after she
reported less frequent palpitations during an October 4, 2019 examination,
“[s]ubsequent progress notes through November 2019, failed to note any
additional complaints, secondary to thyroid disease.” (AR. 22.) The ALJ noted,
however, medical evidence that “hypertension was not well controlled” and
there was “a history of non-compliance to prescribed treatment.” (AR. 22.)
In assessing Marilyn G.D.’s RFC, the ALJ found the “opinion of DDS
persuasive,” as those opinions were consistent with the medical record. (AR.
23.) The ALJ also noted that “[t]here are no medical source statements”
concluding that Marilyn G.D. could not work. (AR. 23.)
Based on these findings, at step four, ALJ West concluded that Marilyn
G.D. was unable to perform her past work as an accounts receivable clerk or a
billing clerk. (AR. 23.)
Step 5
At step five, ALJ West concluded that, “there are jobs that exist in
significant numbers in the national economy that that [Marilyn G.D.] can
perform.” (AR. 23.) The ALJ did not use the service of a vocational expert (“VE”)
in conducting his analysis. Rather, he employed section 204.00 of the Medical-
Vocational Guidelines (or, the “GRIDS”) and SSR 85-15, finding that Marilyn
G.D.’s additional limitations “have little or no effect on the occupational base of
unskilled work.” (AR. 24.)
Accordingly, the ALJ concluded that Marilyn G.D. was not disabled from
January 16, 2018, the onset date of the alleged disability, through March 31,
2020, the date of decision. (AR. 24.)
III. DISCUSSION
A. The ALJ’s Step Two Evaluation
ALJ West determined that Marilyn G.D. suffered from the following
severe impairments: degenerative disc disease, seronegative rheumatoid
arthritis, thyroid disorder, hypertension, sarcoidosis, and obesity. (AR. 17.)
Marilyn G.D. argues that the ALJ erred at step two because he failed “to
mention [her] mental impairments as either severe or nonsevere,” even though
these mental impairments are in the record “and would erode plaintiff’s ability
to perform substantial gainful activity.” (Pl. Br. at 16-17.)
“An impairment or combination of impairments is not severe if it does not
significantly limit [the claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. §§ 404.1522(a), 416.922(a). Alternatively, an impairment
or combination of impairments is severe if it “significantly limits [the
claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §§
404.1520(c), 416.920(c). The burden of establishing a medically determinable
impairment rests with the plaintiff. Bowen v. Yuckert, 482 U.S. 137, 146
(1987). For an impairment to be medically determinable, it must be an
“anatomical, physiological, or psychological abnormalit[y] that can be show by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §
404.1521. “[A] physical or mental impairment must be established by objective
medical evidence from an acceptable medical source.” Id.
A claimant’s statement of symptoms, a diagnosis that is not supported
by objective evidence, or a medical opinion not supported by objective evidence,
does not establish the existence of an impairment. 20 C.F.R. § 404.1521; 20
C.F.R. § 416.921; SSR 96-4p, 1996 WL 374187 at *1. The Third Circuit has
stated that step two is “de minimis screening device to dispose of groundless
claims.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004) (citing
Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003)). Nevertheless,
“[t]he Commissioner’s denial at step two, like one made at any other step in the
sequential analysis, is to be upheld if supported by substantial evidence on the
record as a whole.” Id. (citation omitted).
As an initial matter, the Court notes that Marilyn G.D. did not allege any
mental impairments when applying for DBI and SSI. Indeed, in her initial
disability determination, dated September 27, 2018, the examiner noted that
Marilyn G.D. did not suffer from either anxiety or depression, and suffered
from “no attentional deficits.” (AR. 71, 85). Similarly, in Marilyn G.D.’s
reconsideration disability determination explanation (finding her “Not Disabled”
with the same findings as in the initial explanation), she failed to allege any
“new physical or mental conditions,” only reporting changes to her physical
impairments. (AR. 93, 105.) And notably, in Marilyn G.D.’s counsel’s May 23,
2020 letter to the Appeals Council, with respect to ALJ West’s decision, Marilyn
G.D. took the position “that her multiple physical impairments, inter alia,
severe rheumatoid arthritis, lumbar spine stenosis, and sarcoidosis, are
supported by the medical records and the findings of the State Agency
Physician”—with no mention of alleged mental impairments. (AR. 270-276.)
On the other hand, the ALJ failed at step two to evaluate whether
Marilyn G.D. had a medically determinable mental impairment. The medical
record does not compel such a determination by any means. Dr. Xiong’s
medical reports from—(1) July 6, 2016 to February 27, 2017; and (2) May 23,
2018 through November 27, 2019, state that Marilyn G.D. did not suffer from
anxiety or depression, describe her as being “alert and oriented,” “cooperative,”
with “appropriate mood & affect,” and fail to mention other mental
impairments. (AR. 305-314; 495-523.) Similarly, Dr. Codella’s reports, from
January 12, 2017 through September 23, 2019, with the exception of one
report, are consistent with Dr. Xiong’s findings. (See, e.g., AR. 335, 337, 347.)2
There are instances in the record of Marilyn G.D. self-reporting
symptoms of stress. Marilyn G.D.’s ROS was “positive for feelings of stress,” in

2 I specifically refer to Dr. Codella’s January 12, 2017, January 22, 2018, March
27, 2018, June 5, 2018, June 4, 2019, and September 23, 2019 reports.
medical reports from September 30, 2019 through November 15, 2019, but
otherwise reported negative for depression or suicidal thoughts, and was
described as both “alert and oriented” and having an “appropriate affect and
demeanor.” (AR. 429, 433, 437, 445, 449, 453.) Further, Marilyn G.D.’s St.
Barnabas Medical Center Emergency Department record, dated January 16,
2018, stated that she suffered from “emotional stress,” with the Emergency
Department suggesting biofeedback, yoga, meditation, and physical activity to
reduce stress and anxiety. (AR. 317, 322.) Only one medical examination
provides a positive ROS for depression (Dr. Codella’s April 30, 2018 report),
with that report otherwise describing Marilyn G.D. as: (1) “alert and oriented”;
(2) “appropriate affect and demeanor”; and (3) “negative for depression or
suicidal thoughts.” Accordingly, Dr. Codella recommended that Marilyn G.D.
“increase physical activity, avoid substance abuse, and monitor for change in
signs or symptoms as they arise.” (AR 339, 342.)3 After the April 30, 2018
examination, however, there is no other instance of Marilyn G.D. reporting
symptoms of depression, no formal diagnosis of depression, or prescribed
treatment for depression.
The ALJ’s failure to make a finding as to Marilyn G.D.’s mental
impairments at step two, standing alone, would not necessarily warrant
remand, because it would not necessarily affect the outcome of the case.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005); see also Keens v.
Kijakazi, No. 4:20-CV-2135, 2022 WL 635540, at *7 (M.D. Pa. Feb. 8,
2022), report and recommendation adopted, No. 4:20-CV-02135, 2022 WL
626771 (M.D. Pa. Mar. 3, 2022); Snedeker v. Colvin, No. 3:13-CV-970, 2015 WL
1126598 at *7 (N.D. N.Y. Mar. 12, 2015) (internal citations omitted); Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989). The record does not suggest that
Marilyn G.D.’s alleged mental impairments rose to a clinical level or limited her
ability to work. See generally Salles v. Comm'r of Soc. Sec., 229 F. App'x 140,

3 The report also stated that Marilyn G.D. was not suicidal and refused referral to
a psychologist, choosing instead “to pray for assistance.” AR 342.
145 n.2 (3d Cir. 2007) (harmless error). Because I am remanding on other
grounds, however, the ALJ should make an explicit Step Two finding as to
mental health conditions.
B. The ALJ’s Step Three Evaluation
The ALJ found that Marilyn G.D. 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. (AR. 18.)
Marilyn G.D. asserts that the ALJ erred at step three because: (1) the ALJ
failed to meaningfully consider the effects of her obesity on her other
impairments and her general ability to work; and (2) the ALJ improperly
evaluated the medical evidence resulting in findings that are not supported by
substantial evidence. (Pl. Br. at 14-28.)
Step three is a screening process that permits an award of benefits
without further analysis; a negative finding at step three simply means that the
remaining steps must be performed and the applicant’s capacity for work
evaluated. At step three, the Third Circuit “requires the ALJ to set forth the
reasons for [his or her] decision.” Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
119 (3d. Cir. 2000). However, the ALJ is “not require[d] to use particular
language or adhere to a particular format in conducting [that] analysis.” Holley
v. Colvin, 975 F. Supp. 2d 467, 476-77 (D.N.J. 2013) (internal citations
omitted), aff’d, 590 F. App’x 167 (3d Cir. 2014). Rather, the “ALJ satisfies this
standard by ‘clearly evaluating the available medical evidence in the record and
then setting forth that evaluation in an opinion, even where the ALJ did not
identify or analyze the most relevant listing.’” Id. at 120 (citing Scatorchia v.
Comm'r of Soc. Sec., 137 Fed. Appx. 468, 471 (3d Cir. 2005).
With respect to obesity, the ALJ stated that he evaluated obesity
pursuant to SSR 19-2p and considered the impairment “in the context of the
overall record evidence.” (AR. 18.) Marilyn G.D. argues that the ALJ “failed to
properly assess [her] obesity as required.” (Pl. Br. at 15.)4
Pursuant to SSR 19-2p, while obesity is no longer a separate listing, it
can be a medically determinable impairment when it is established by objective
medical evidence from an acceptable medical source. SSR 19-2p. Obesity can
also be classified as a severe impairment “if the person’s obesity, alone or in
combination with another impairment(s), significantly limits his or her physical
or mental ability to do basic work activities.” Id. Under SSR 19-2p, the ALJ
“will not make general assumptions about the severity or functional effects of
obesity combined with another impairment(s).” Id. However, the ruling also
notes that “[o]besity in combination with another impairment(s) may or may
not increase the severity or functional limitations of the other impairment” and
that the ALJ will “evaluate each case based on the information in the case
record.” Id.
At step two, the ALJ found that Marilyn G.D.’s obesity was a severe
impairment. (AR. 17.) Then, in making his step three determination, the ALJ
stated that he evaluated her obesity pursuant to SSR 19-2p and fully
considered her obesity in light of the record evidence. (AR. 18.) This cursory
step three discussion of Marilyn G.D.’s obesity fails to sufficiently address
whether her obesity compounds her other impairments.
The Third Circuit has held that “an ALJ must meaningfully consider the
effects of a claimant’s obesity, individually and in combination with her
impairments, on her workplace function at step three and at every subsequent
step.” Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). In Diaz,
while the ALJ found that the claimant’s obesity was a severe impairment, the
Third Circuit noted that the ALJ “failed to consider its impact, in combination

4 Here, plaintiff cites SSR 02-1p, but SSR 19-2p applies to all Social Security
applications filed on or after May 20, 2019, and pending before the agency on or after
that date. SSR 19-2p, 2019 WL 2374244, at *5 n.14 (May 20, 2019). As Marilyn G.D.’s
application was still pending as of May 20, 2019, SSR 19-2p applies to this appeal.
with her other impairments, at step three, as required.” Id. at 503.5 Therefore,
the Court held that “absent analysis of the cumulative impact of [the
claimant’s] obesity and other impairments on her functional capabilities,” the
Court cannot adequately review the ALJ’s decision. Id. at 504.
Here, as in Diaz, the ALJ West committed error due to his failure to
explicitly discuss Marilyn G.D.’s obesity—either alone or in combination with
her other impairments. True, ALJ West did make a “bottom line” finding as to
Marilyn G.D.’s physical limitations, as demonstrated by the subsequent steps
of his analysis. Notably, in assessing Marilyn G.D.’s RFC at step four, ALJ West
noted that Marilyn G.D. (1) “did not allege any functional limitations”, (2)
walked with a normal unassisted gait and station, and (3) had no difficulty
performing transfers.” (AR. 22.) Still, it is unclear how due consideration of
obesity would have changed the outcome of the ALJ’s analysis at step three.
I will remand for specific findings as to the effect of obesity. In doing so, I
do not mean to constrain the ALJ’s discretion to make such findings as may be
appropriate.
C. The ALJ’s Step Four Evaluation
1. RFC Determination
Marilyn G.D. challenges ALJ West’s consideration of her subjective
complaints, arguing that the ALJ improperly minimized her impairments.
According to Marilyn G.D., the ALJ’s finding that that the record is inconsistent
with her “statements about the intensity, persistence, and limiting effects of …
[her] symptoms” is an error. (Pl. Br. at 17-18.) Because the court is remanding
for further findings, the RFC may be altered, so I give no detailed consideration
to what may be a moot point.

5 The ALJ relied on SSR 00-3p, which provides that a claimant’s obesity should
be considered on an individualized basis, with a focus “on the combined effect of
obesity and other sever impairments afflicting the claimant.” Diaz, 577 F.3d at 503
(quoting SSR 00-3p).
In general, however, I note that the ALJ was not required to take the
claimant’s subjective complaints at face value. Nor was he required to give
controlling weight to the State Agency physician’s check-box finding of “yes”
when asked whether Marilyn G.D.’s statements regarding “the intensity,
persistence, and functionally limiting effects of the symptoms” were
substantiated by the objective medical evidence. I further note that the ALJ
and the State Agency came to the exact same RFC determination that Marilyn
G.D. now appeals. The ALJ properly cited medical evidence as a basis for
discounting subjective complaints and contrary evidence regarding spinal
complaints; musculoskeletal complaints; and hyperthyroidism. (AR. 21, 508,
514)
2. SSR 18-3P
Finally, Marilyn G.D.’s argument that the ALJ violated SSR 18-3p by
discussing Plaintiff’s treatment options for her impairments and purported
non-compliance to prescribed treatment is unpersuasive. (Pl. Br. 18-19.) SSR
18-3p “provide[s] guidance on how [SSA] appl[ies] our failure to follow
prescribed treatment policy in disability … claims under title II and XVI of the
Social Security Act.” SSR 18-3p, 2018 WL 4945641, *1. Pursuant to SSR 18-
3p, an ALJ must determine whether a claim has failed to follow prescribed
treatment when:
1. The Individual would otherwise be entitled to benefits based on
disability or eligible for blindness benefits under titles II or XVI of
the Act;
2. We have evidence that an individual’s own medical source(s)
prescribed[ ] treatment for the medically determinable
impairment(s) upon which the disability finding is based; and
3. We have evidence that the individual did not follow the prescribed
treatment.
Id. at *2. All three conditions must be established before the ALJ is obligated to
determine whether the claimant failed to follow the prescribed treatment is
triggered. Id. Here, the first condition was not met because ALJ West did not
find that Marilyn G.D. “would be found disabled but for [her] unjustifiable non-
compliance with prescribed treatment.” Ginn v. Saul, No. CV 19-12323, 2020
WL 7890734, at *11 (E.D. La. Nov. 2020), report and recommendation adopted,
2021 WL 40185 (E.D. La. Jan. 5, 2021). Far from it; as demonstrated by the
substantial evidence, the ALJ merely noted Marilyn G.D.’s noncompliance with
prescribed treatments among other medical evidence in determining her RFC.
Accordingly, there was no violation of SSR 18-3p. See, e.g., Ginn, 2020 WL
7890734, at *11; Dennis Cordelle B. v. Saul, No. 20-CV-0515 (NEB/HB), 2021
WL 1321355, at *6 (D. Minn. Jan. 28, 2021), report and recommendation
adopted sub nom., 2021 WL 1138304 (D. Minn. Mar. 25, 2021); Payne v. Saul,
No. 19-CV-1206-SCD, 2020 WL 4015609, at *5 (E.D. Wis. July 16, 2020); cf.
C.T. v. Comm'r of Soc. Sec., No. CV 20-03674 (RBK), 2021 WL 4398663, at *12
(D.N.J. Sept. 27, 2021) (“SSR 18-3p and its predecessor, SSR 82-59, apply only
after a disability determination is made.”)
D. The ALJ’s Step Five Determination
Marilyn G.D. argues that the ALJ failed to properly support his step five
determination and improperly relied on the GRIDS in determining that she
could perform jobs in the national economy. (Pl. Br. at 20-22.) Once again, I
will not devote substantial discussion to an issue that may be mooted on
remand. The ALJ retains the discretion to make a Step Five determination,
using a vocational expert if appropriate.6

6 Where a claimant has only exertional limitations the Commissioner may use the
Grids to determine whether such work exists. The Grids set forth various
combinations of age, education, work experience and RFC, and direct a finding of
disabled or not disabled for each combination. See 20 C.F.R. Part 404, Subpt. P, App.
2. An ALJ “may rely on these grids to establish that jobs exist in the national economy
that a person with the claimant’s exertional limitations could perform.” Sykes v. Apfel,
228 F.3d 259, 263 (3d Cir. 2000). However, this applies only to exertional limitations;
where the claimant has nonexertional limitations, the grids provide only a framework,
and the ALJ must consider additional evidence to determine whether there are jobs in
the national economy that someone with the claimant’s combination of impairments
IV. CONCLUSION
For the reasons set forth above, the Commissioner’s decision is reversed
and remanded in accordance with this opinion.
A separate order will issue.
Dated: March 22, 2022

/s/ Kevin McNulty
___________________________________
Hon. Kevin McNulty
United States District Judge

could perform. Id. at 270; see also Allen v. Barnhart, 417 F.3d 396, 404 (3d Cir. 2005).
The remand here potentially implicates nonexertional impairments.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10654999. Public record. Not legal advice.