DIXON v. COMMISSIONER OF SOCIAL SECURITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ERIC D.,

Plaintiff, Case No. 2:24-cv-8609 (BRM)

v. OPINION

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MARTINOTTI, DISTRICT JUDGE

Before this Court is Plaintiff Eric Dixon’s (“Plaintiff”) appeal of the final decision of the

Commissioner (“Commissioner”) of the Social Security Administration (“SSA”) denying his

application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42

U.S.C. §§ 405(g) (ECF No. 1), the Commissioner’s motion to vacate the decision and to remand

the matter for additional administrative proceedings and further evaluation of the application

pursuant to sentence four of 42 U.S.C. § 405(g) (ECF No. 16), and Plaintiff’s cross-motion to

reverse the decision and to remand the matter for limited administrative proceedings pursuant to

sentence four of 42 U.S.C. § 405(g) (ECF No. 17). This Court has jurisdiction pursuant to 42

U.S.C. § 405(g). Having reviewed and considered the submissions filed in connection with the

appeal and having declined to hold oral argument in accordance with Local Civil Rule 78.1(b), for

the reasons set forth below and for good cause shown, the Commissioner’s motion to vacate the

decision and remand the matter pursuant to sentence four of 42 U.S.C. § 405(g) is DENIED;

Plaintiff’s cross-motion to reverse the decision is DENIED; and the Commissioner’s decision is

VACATED and the matter is REMANDED for additional administrative proceedings and further

evaluation consistent with this Opinion.

I. BACKGROUND

This matter has a protracted factual and procedural history, involving a prior final decision

denying Plaintiff’s application for DIB, dated July 14, 2017, and a subsequent appeal, which

proceeded through this Court before the Honorable Kevin McNulty, U.S.D.J. Dixon v. Comm’r of

Soc. Sec., No. CV 18–13664 (KM), 2020 WL 831839 (D.N.J. Feb. 20, 2020). As the parties are

intimately familiar with the facts and procedural history of this matter, the Court incorporates the

extensive factual and procedural background sections set forth in Judge McNulty’s opinion, see

generally Dixon, 2020 WL 831839, at *1–5, and succinctly recounts only the relevant portions

herein.

A. Procedural History

This matter arises out of the Commissioner’s final decision denying Plaintiff’s application

for DIB, dated April 29, 2024. (ECF No. 1.) On May 27, 2014, Plaintiff applied for DIB alleging

disability due to two severe impairments—degenerative disc disease with radiculopathy and

obesity—beginning July 13, 2013. (Transcript of Proceedings1 (“Tr.”) (ECF No. 4) at 102–04,

202–03.) The Commissioner initially denied the application on October 17, 2014 (Tr. at 128–32),

and again upon reconsideration on April 13, 2015 (Tr. at 136–38).

Plaintiff, through counsel, then filed a written request for a hearing. (Tr. at 139–40.)

Administrative Law Judge (“ALJ”) Scott Tirrell held a hearing on April 7, 2017. (Tr. at 34–88).

In a decision dated July 14, 2017, ALJ Tirrell found Plaintiff was not disabled within the meaning

of the Act between the date he last worked—July 13, 2013—and the date he was last insured—

1 The administrative record is set forth in this transcript. (See generally ECF No. 4.)

September 30, 2017.2 (Tr. at 566–85.) The decision became final when the Appeals Council

declined review on July 12, 2018. (Tr. at 1–6.)

On September 7, 2018, Plaintiff filed the prior appeal of the final decision with this Court

pursuant to 42 U.S.C. § 405(g). Dixon, 2020 WL 831839, at *9. On February 20, 2020, Judge

McNulty vacated the final decision and remanded the action to the Commissioner for further

administrative proceedings. See id. at *12.

ALJ Peter Lee held supplemental hearings on May 24, 2023 (Tr. at 518–45), and January

8, 2024 (Tr. at 499–504). In a decision dated April 29, 2024, ALJ Lee found Plaintiff was not

disabled within the meaning of the Act between July 13, 2013, and September 30, 2017. (Tr. at

457–75.) The decision became final on June 29, 2024. (Tr. at 458.)

On August 21, 2024, Plaintiff filed the subject civil action appeal of the final decision with

this Court pursuant to 42 U.S.C. § 405(g). (ECF No. 1.) On May 15, 2025, Plaintiff filed his motion

brief pursuant to Supplemental Rule 6 for Social Security Actions under 42 U.S.C. § 405(g). (ECF

No. 14.)

On June 11, 2025, the Commissioner filed the motion to vacate the final decision and to

remand the action for additional administrative proceedings and further evaluation pursuant to

Sentence 4 of 42 U.S.C. § 405(g). (ECF No. 16.) In response, Plaintiff filed a cross-motion to

reverse the final decision and to hold Plaintiff was disabled within the meaning of the Act between

July 13, 2013, and September 30, 2017, pursuant to 42 U.S.C. § 405(g). (ECF No. 17.)

2 ALJ Tirrell erroneously found the date Plaintiff was last insured was September 30, 2016 (Tr. at

566–85), which the Court relied upon in support of its prior opinion. See Dixon, 2020 WL 831839,

at *1–5. The error was subsequently corrected to reflect Plaintiff was last insured on September

30, 2017. (Tr. at 463.) For purposes of consistency, this Opinion will refer to the date as September

30, 2017.

B. Factual Background

1. Plaintiff’s History

Plaintiff is presently sixty years old and has a history of severe lower back conditions,

which resulted in a lumbar discectomy in 2005 and a lumbar fusion in 2009. (Tr. at 281–302.) On

July 13, 2013, Plaintiff was struck by a motor vehicle while walking in a crosswalk and thrown to

the ground, which is the injury that caused him to file for DIB. (Tr. at 47.) Plaintiff has a high

school diploma and worked a variety of jobs prior to the accident. (Tr. at 42–47, 530–33.)

As a result of the accident, Plaintiff allegedly suffers from constant pain in his lower back

and intermittent pain in his neck. (Tr. at 49–59.) He alleges the pain in his lower back radiates

through his left leg, which gives out at times. (Tr. at 50–51.) Plaintiff claims his pain worsens if

he stands for more than ten minutes or sits for more than twenty minutes. (Tr. at 50–51, 58–59.)

On September 30, 2014, a CT scan was taken of his lumbar spine, which indicated a decompressed

spinal canal, post-surgical changes at L4–S1, and spondylotic changes at L3–L4. (Tr. at 451.)

Between July 13, 2013, and September 30, 2017, Plaintiff received medical treatment

relating to his lower back and neck conditions, including chiropractic care, physical therapy, and

pain management. (Tr. at 303–78, 386–456.) Plaintiff was ultimately prescribed a transcutaneous

electrical nerve stimulation (“TENS”) unit, a back brace, and pain medication, which Plaintiff has

reported in combination increased his ability to perform daily activities, including walking and

bending. (Tr. at 412–17.) Plaintiff claims with the assistance of the back brace and a walking stick

he can walk at a slow pace approximately one block before he is required to rest due to pain. (Tr.

at 56–57.) Although pain medication helps to alleviate the pain, Plaintiff has difficulty

concentrating or staying awake while on pain medication. (Tr. at 56.)

The record establishes Plaintiff did not engage in substantial gainful activity between the

date of the alleged injury—July 13, 2013—through the date he was last insured—September 30,

2017. (Tr. at 41–47, 273, 529–35.)

2. Administrative History

On October 6, 2014, Betty Vekhnis, M.D., conducted a consultative examination on behalf

of the State. (Tr. at 379–85.) Dr. Vekhnis noted Plaintiff was able to walk in her office without the

assistance of his cane and with a normal heel to toe gait. (Tr. at 379.) Dr. Vekhnis examined

Plaintiff’s lumbar spine and reported no vertebral tenderness but a limited range of motion.3 (Tr.

at 379–80.) She also examined Plaintiff’s upper extremities and reported a full range of motion in

his shoulders, right elbow, wrists, and hands, which had a normal grip strength.4 (Tr. at 380–83.)

As a result, Dr. Vekhnis opined Plaintiff was capable of “walk[ing] short distances without the use

of an assistive device for ambulation” and “had normal functions of his hand[s] for fine and gross

motor manipulations.” (Tr. at 380–83.) Although Dr. Vekhnis did not offer a specific distance in

which Plaintiff was capable of walking without the use of an assistive device (Tr. at 380–83), the

adjoining “Passive Range of Motion Chart” reports he can walk “[o]ne block” (Tr. at 383).

On October 16, 2014, Deogracias Bustos, M.D., completed a disability determination on

behalf of the State. (Tr. at 105–15.) Based on his review of the medical records, Dr. Bustos

determined Plaintiff suffers from two severe impairments: a spine disorder and obesity, which

3 In his opinion, Judge McNulty states, “Dr. Vekhnis examined [Plaintiff]’s spine, noting that there

was no vertebral tenderness and he had full range of motion.” Dixon, 2020 WL 831839, at *3. The

record, however, states Plaintiff had a full range of motion in his cervical spine and a limited range

of motion in his lumbar spine. (Tr. at 379–80; see also Tr. at 382 (reporting lumbar spine flexion-

extension of 40 degrees).)

4 Dr. Vekhnis noted a loss of terminal extension and limited supination in the left elbow. (Tr. at

380.)

reasonably can be expected to produce his claims of pain. (Tr. at 111.) Although these severe

impairments result in exertional limitations, Dr. Bustos opined Plaintiff is “frequently” capable of

carrying items weighing up to ten pounds and “occasionally” capable of carrying items weighing

up to twenty pounds; standing/walking a total of four hours; and sitting a total of six hours in an

eight-hour workday. (Tr. at 112.) Furthermore, Dr. Bustos opined Plaintiff is capable of

“occasionally” climbing stairs, balancing, stooping, kneeling, and crouching and is “never”

capable of climbing ladders, ropes, and scaffolds. (Tr. at 113.) As a result, Dr. Bustos concluded

Plaintiff has a residual functional capacity (“RFC”) to adjust to other skilled sedentary work and,

as such, is “not disabled.”5 (Tr. at 113–15.)

On July 14, 2017, ALJ Tirrell conducted a hearing, which was attended by vocational

expert “Smith.” (Tr. at 34–88.) Smith provided classifications for Plaintiff’s past work as a drivers’

helper, a warehouse worker, a stock clerk, and a machine packager, which he classified as medium

to heavy. (Tr. at 71–72.) When asked by ALJ Tirrell what, if any, work a hypothetical person who

can stand/walk for a total of four hours in an eight-hour workday and can “occasionally” balance

could perform, Smith provided three examples of “light” work that such an individual could

perform—assembler arranger, information clerk, and fund raiser. (See Tr. at 71–73.)

In a written decision, dated April 7, 2017, ALJ Tirrell found Plaintiff was not disabled

under the meaning of the Act between July 13, 2013, and September 30, 2017. (Tr. at 566–85.)

Consistent with the five-step sequential evaluation process for DIB benefits, see infra Section III,

ALJ Tirrell determined Plaintiff has not been engaged in substantial gainful activity since July 13,

2013, and has the following severe impairments: degenerative disc disease and obesity. (Tr. at

5 On April 13, 2015, Dr. Bustos completed a second disability determination on behalf of the State.

(Tr. at 116–27.) The outcome of the second determination is consistent with the first. (Compare

Tr. at 105–15, with 116–27.)

571.) ALJ Tirrell found, however, that Plaintiff’s severe impairments, both individual or in

combination, did not meet or equal the severity of one of the list impairments in 20 C.R.F. Part

404, Subpart P, Appendix 1 (“Listing”). (Tr. at 471–79.) Specifically, ALJ Tirrell determined the

impairments most closely equated to Listing 1.04 (Disorders of the Spine), but the record does not

demonstrate either a compromised nerve root or a compromised spinal cord. (Tr. at 471–79.) ALJ

Tirrell determined Plaintiff had an RFC capable of standing/walking for a total of four hours in an

eight-hour workday and can “occasionally” balance. (Tr. at 580–81.) In support of same, ALJ

Tirrell assigned “substantial weight” to the opinion of Dr. Vekhnis and “some weight” to the

opinion Dr. Bustos. (Tr. at 579.) Based on his age, education, and RFC, ALJ Tirrell determined

Plaintiff was incapable of performing his past work but was capable of performing “light work”

with additional limitations–relying upon Smith’s testimony. (Tr. at 578–81.)

On September 7, 2018, Plaintiff filed the prior appeal seeking to reverse or remand ALJ

Tirrell’s determination that Plaintiff was not disabled under the meaning of the Act between July

13, 2013, and September 30, 2017, pursuant to 42 U.S.C. § 405(g). Dixon, 2020 WL 831839, at

*5. On February 20, 2020, Judge McNulty vacated the final decision and remanded the matter to

the Commissioner for additional administrative proceedings and further evaluation. Id. at *12.

Specifically, Judge McNulty held ALJ Tirrell failed to set forth a sufficient explanation in support

of the determination that Plaintiff’s degenerative disc disease in combination with his obesity did

not equate to Listing 1.04 impairment. See id. at *8–12. Furthermore, Judge McNulty held ALJ

Tirrell also failed to sufficiently address conflicting medical records indicating Plaintiff suffered

significant physical impairments between July 2013 and October 2014. Id. at *12. Therefore, Judge

McNulty ordered ALJ Tirrell to conduct a supplemental hearing, re-evaluate the evidence, and

provide a sufficient explanation as to: (a) whether Plaintiff’s combined impairments were equal in

severity to any Listing impairment between July 2013 and October 2014; (b) the conflicting

pertinent medical evidence; and (c) the level and transferability of Plaintiff’s skills to “light work.”

Ibid.

On May 24, 2023,6 ALJ Lee conducted the supplemental hearing virtually, which was

attended by vocational expert Dale E. Pasculli. (Tr. at 518–45.) Pasculli provided classifications

for Plaintiff’s past work as a “cleaner, industrial” and a “cleaner, housekeeper,” which she

classified as medium and light respectively. (Tr. at 539.) When asked by ALJ Lee what, if any,

work a hypothetical person who can stand/walk for a total of six hours in an eight-hour workday

and can “typically” balance could perform, Pasculli claimed such an individual could not work as

a “cleaner, industrial” but could work as a “cleaner, housekeeper.” (Tr. at 540.) Pasculli also

provided three examples of other “light” work that such an individual could perform—routing

clerk, photocopying machine operator, and cafeteria attendant. (Tr. at 540.) When asked by ALJ

Lee what, if any, work a hypothetical person who can stand/walk for a total of only four hours in

an eight-hour workday and can “occasionally” balance could perform, Pasculli claimed none. (Tr.

at 460.)

In a written decision, dated April 29, 2024, ALJ Lee found Plaintiff was not disabled under

the meaning of the Act between July 13, 2013, and September 30, 2017. (Tr. at 457–75.) Consistent

with ALJ Tirrell, ALJ Lee determined Plaintiff has not been engaged in substantial gainful activity

since July 13, 2013, and has the following severe impairments: degenerative disc disease and

obesity. (Tr. at 463.) ALJ Lee also found that Plaintiff’s severe impairments, both individual or in

6 Although a supplemental hearing was promptly scheduled for December 11, 2020 (Tr. at 627–

66), the supplemental hearing was re-scheduled, in relevant part, due to Plaintiff’s incarceration

between July 5, 2019, and May 11, 2024 (See Tr. at 783, 900–02).

combination, did not meet or equal the severity of any Listing impairment. (Tr. at 464–68.)

Specifically, ALJ Lee determined the impairments most closely equated to Listing 1.15 (Disorders

of the Skeletal Spine) or Listing 1.16 (Lumbar Spinal Stenosis), but the record did not demonstrate

a comprised nerve root or cauda equina as required by same. (Tr. at 464.) In conflict with ALJ

Tirrell, ALJ Lee determined Plaintiff had an RFC capable of standing/walking for a total of six

hours in an eight-hour workday and can “typically” balance. (See Tr. at 465.) In support of same,

ALJ Tirrell assigned “partial weight” to Dr. Vekhnis’s opinion and “no persuasive weight” to Dr.

Bustos’s opinion. (Tr. at 468.) Based on his age, education, and RFC, ALJ Lee determined Plaintiff

was capable of performing his past work, relying on the testimony of Pasculli. (Tr. at 460, 466–

69, 540.)

II. STANDARD OF REVIEW

When reviewing a final decision of the Commissioner, a district court “shall have power

to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or

reversing the decision of the Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.

2001). The Commissioner’s decisions regarding questions of fact are deemed conclusive by a

reviewing court if supported by “substantial evidence” in the record. 42 U.S.C. § 405(g); see Knepp

v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). A district court must affirm an ALJ’s decision if it is

supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is

“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); Newhouse v. Heckler, 753

F.2d 283, 285 (3d Cir. 1985) (citations omitted). Substantial evidence “is more than a mere scintilla

of evidence but may be less than a preponderance.” Newell v. Comm’r of Soc. Sec., 347 F.3d 541,

545 (3d Cir. 2003). The Supreme Court reaffirmed this understanding of the substantial evidence

standard in Biestek v. Berryhill, 587 U.S. 97, 102–03 (2019). To determine whether an ALJ’s

decision is supported by substantial evidence, a court must review the evidence in its totality.

Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). “Courts are not permitted to re-weigh the

evidence or impose their own factual determinations.” Chandler v. Comm’r of Soc. Sec., 667 F.3d

356, 359 (3d Cir. 2011). Accordingly, a court may not set an ALJ’s “decision aside if it is supported

by substantial evidence, even if [it] would have decided the factual inquiry differently.” Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

III. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

Under the Act, the SSA is authorized to pay SSI and DIB to “disabled” persons. 42 U.S.C.

§ 1382(a). A person is “disabled” if “he is unable 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A person is 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.

42 U.S.C. § 1382c(a)(3)(B).

Regulations promulgated under the Act establish a five-step process for determining

whether a claimant is disabled for purposes of SSI and DIB. 20 C.F.R. § 404.1520. First, the ALJ

determines whether the claimant has shown he or she is not currently engaged in “substantial

gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), (b); see Bowen v. Yuckert, 482 U.S. 137, 140

(1987). If a claimant is presently engaged in any form of substantial gainful activity, he or she is

automatically denied disability benefits. Id. Second, the ALJ determines whether the claimant has

demonstrated a “severe impairment” or “combination of impairments” that significantly limits his

or her physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c);

see Bowen, 482 U.S. at 140–41. Basic work activities are defined as “the abilities and aptitudes

necessary to do most jobs.” 20 C.F.R. § 404.1522(b). These activities include:

(1) Physical functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple

instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual

work situations; and

(6) Dealing with changes in a routine work setting.

Id. A claimant who does not have a severe impairment is not considered disabled. 20 C.F.R.

§ 404.1520(c); see Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).

Third, if a claimant’s impairment(s) is found to be severe, the ALJ then determines whether

the impairment(s) meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1 (the “Impairment List”). 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates

his or her impairment(s) is equal in severity to, or meets, one of the impairments on the Impairment

List, the claimant has satisfied his or her burden of proof and is automatically entitled to benefits.

See 20 C.F.R. § 404.1520(d); see also Bowen, 482 U.S. at 141. If the specific impairment is not

listed, the ALJ will consider in his or her decision the impairment that most closely satisfies those

listed for purposes of deciding whether the impairment is medically equivalent. See 20 C.F.R. §

404.1526. If there is more than one impairment, then the ALJ must consider whether the

combination of impairments equals any listed impairment. Id. An impairment or combination of

impairments is basically equivalent to a listed impairment if there are medical findings equal in

severity to all the criteria for the one most similar. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d

Cir. 1992).

If the claimant is not conclusively disabled under the criteria set forth in the Impairment

List, step three is not satisfied, and the claimant must prove at step four whether he or she retains

the RFC to perform his or her past relevant work. 20 C.F.R. §§ 404.1520(e), (f); Bowen, 482 U.S.

at 141. Step four involves three sub-steps:

(1) the ALJ must make specific findings of fact as to the claimant’s

[RFC]; (2) the ALJ must make findings of the physical and mental

demands of the claimant’s past relevant work; and (3) the ALJ must

compare the [RFC] to the past relevant work to determine whether

claimant has the level of capability needed to perform the past

relevant work.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted). When

determining RFC, an ALJ’s consideration of medical opinion evidence is subject to the framework

articulated in 20 C.F.R. § 404.1527 (for claims filed before March 27, 2017) or 20 C.F.R. §

404.1520c (for claims filed after March 27, 2017).

Claimants are not disabled if their RFC allows them to perform their past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), (f). However, if the claimant’s RFC prevents him or her from

doing so, or if the claimant has no past relevant work, an ALJ proceeds to the fifth and final step

of the process. 20 C.F.R. § 404.1520(a)(4)(g). The final step requires the ALJ to “show there are

other jobs existing in significant numbers in the national economy which the claimant can perform,

consistent with [his or] her medical impairments, age, education, past work experience, and

[RFC].” Plummer, 186 F.3d at 428; 20 C.F.R. § 404.1520(a)(4)(v). In doing so, “[t]he ALJ must

analyze the cumulative effect of all the claimant’s impairments in determining whether she is

capable of performing work and is not disabled.” Plummer, 186 F.3d at 428; 20 C.F.R. § 404.1523.

An ALJ typically seeks the assistance of a vocational expert at this final step. Plummer, 186 F.3d

at 428.

The claimant bears the burden of proof for steps one, two, and four. Sykes v. Apfel, 228

F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three “[b]ecause step

three involves a conclusive presumption based on the listings.” Id. at 263 n.2; see Bowen, 482 U.S.

at 146 n.5. An ALJ bears the burden of proof for step five. Sykes, 228 F.3d at 263.

On appeal, the harmless error doctrine requires a plaintiff to show, as to the first four steps:

(1) an error occurred; and (2) but for that error, they might have proven their disability. Holloman

v. Comm’r of Soc. Sec., 639 F. App’x 810, 814 (3d Cir. 2016). In other words, when reviewing an

appeal based on the first four steps, a court considers whether the plaintiff articulated a basis for a

decision in their favor, based on the existing record. If the plaintiff cannot, it is unlikely they will

meet their burden of showing an error was harmful. See, e.g., Lippincott v. Comm’r of Soc. Sec.,

982 F. Supp. 2d 358, 380–81 (D.N.J. 2013) (finding ALJ’s error was harmless); Powers v. Comm’r

of Soc. Sec., Civ. A. No. 19–21970, 2021 WL 1207793, at *7 (D.N.J. Mar. 31, 2021) (finding the

plaintiff had not demonstrated she was prejudiced by the ALJ’s decision and had not shown an

error occurred amounting to harm).

The court’s review of legal issues within this appeal is plenary. 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,

228 F.3d at 262. 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).

Substantial evidence also “means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (citation and internal quotation marks omitted). When

substantial evidence exists to support the Commissioner’s factual findings, this Court must abide

by those determinations. See id. (citing Schaudeck, 181 F.3d at 431); 42 U.S.C. § 405(g).

IV. DECISION

Plaintiff appeals the Commissioner’s decision and requests the Court either reverse the

decision and find Plaintiff is entitled to a period of disability beginning on July 13, 2013; or, in the

alternative, vacate the decision and remand the action to the Commissioner for a new hearing

pursuant to sentence four of 42 U.S.C. § 405(g). (ECF No. 1; accord ECF No. 14.) Plaintiff

challenges ALJ Lee’s step three determination that his severe impairments—degenerative disc

disease and obesity—in combination do not equate to an impairment on the Impairment List as

ALJ Lee failed to meaningfully consider the effects of his obesity. (See generally ECF No. 14 at

8–20.) Plaintiff also challenges ALJ Lee’s step four determination that he retains the RFC to

perform his past relevant work as a “cleaner, housekeeper,” as the determination is not supported

by substantial evidence and ALJ Lee failed to adequately explain his reasons for discounting the

contrary opinion of Dr. Vekhnis and rejecting the contrary opinion of Dr. Bustos. (See generally

ECF No. 14 at 20–36.) Although Plaintiff requests if the Court vacates the final decision and

remands the action to the Commissioner for a new hearing that the Court order the new hearing be

held before another ALJ (see ECF No. 14 at 8, 20, 35–36), Plaintiff failed to develop the issue in

the argument section of his motion brief (see generally ECF No. 14 at 8–36; but see id. at 6

(claiming ALJ Lee failed “to recuse himself based upon the statistical reality that [he] denies 98%

of all cases brought by [Plaintiff’s counsel] and 0% of cases remanded”); id. at 31 n.6 (stating ALJ

Lee’s denial of Plaintiff’s motion for recusal “is not an issue in this case” but requesting the Court

to order the new hearing be held before another ALJ “based on a 98% denial rate and a 100%

remand denial rate”)).

In response, the Commissioner filed a motion to vacate the final decision and remand the

action for additional administrative proceedings and further evaluation pursuant to sentence four

of 42 U.S.C. § 405(g). (ECF No. 16.) The Commissioner concedes there exists unresolved factual

issues, “which must be resolved by an ALJ.” (ECF No. 16 at 1.) Although the Commissioner does

not identify any allegedly unresolved factual issues specifically, the Commissioner notes

Plaintiff’s challenges to ALJ Lee’s step three and step four determinations are factual issues

generally and, as such, “require further evaluation of the evidence and supporting explanation by

the ALJ.” (ECF No. 16 at 3.) Therefore, the Commissioner requests the Court to vacate the final

decision and remand the action to the Commissioner to: complete the administrative record;

conduct a new hearing; re-evaluate the evidence of record; and “issue a new decision that includes

additional articulation of how the evidence supports [the ALJ’s] findings.” (See ECF No. 16 at 4.)

In response to Plaintiff’s request the new hearing be held before another ALJ, the Commissioner

argues it is standard process to assign the same ALJ absent evidence of bias. (ECF No. 16 at 3–4

(citing, in part, Hearings, Appeals, and Litigation Law Manuel (HALLEX) I-2–1–55(D)(2)).)

In response, Plaintiff filed a cross-motion opposing the Commissioner’s motion to remand

and requesting the Court reverse the decision and find Plaintiff is entitled to a period of disability

beginning on July 13, 2013, pursuant to sentence four of 42 U.S.C. § 405(g). (ECF No. 17.)

Plaintiff argues the administrative record is in fact complete and the substantial evidence clearly

establishes Plaintiff is entitled to a period of disability beginning on July 13, 2013. (See generally

ECF No. 17.) Plaintiff also argues the Commissioner does not identify a specific unresolved factual

issue or propose any specific remand instructions, which Plaintiff claims if remanded will likely

result in a subsequent decision involving the same factual issues. (See generally ECF No. 17.)

Although Plaintiff again requests if the action is remanded to the Commissioner, the Court order

the new hearing be held before another ALJ (ECF No. 17 at 6). Plaintiff again failed to develop

the issue (see generally ECF No. 17).

A. The Commissioner’s Motion to Remand Under Sentence Four of 42 U.S.C.

§ 405(g)

A district court may remand a final decision for additional administrative proceedings and

further evaluation “only as provided in sentences four and six of 42 U.S.C. § 405(g).” Melkonyan

v. Sullivan, 501 U.S. 89, 90 (1991). Therefore, the Court may only remand a decision either: (1)

pursuant to sentence four “in conjunction with a judgment affirming, modifying, or reversing the

[Commissioner]’s decision”; or (2) pursuant to sentence six “in light of additional evidence

without making any substantive ruling as to the correctness of the [Commissioner]’s decision, but

only if the claimant shows good cause for failing to present the evidence earlier.” Ibid. As the

Third Circuit recently noted, a district court may not remand a decision absent either a “substantive

ruling” under sentence four or the “emergence of new evidence” under sentence six. Clinkscale v.

Comm’r of Soc. Sec., No. 24–2191, 2025 WL 2528907, *2 (3d Cir. Sept. 3, 2025); Vazquez v. Saul,

No. CV 20–2595 (KM), 2021 WL 2680101, at *1 n.1 (D.N.J. June 30, 2021).

Here, the Commissioner’s motion to remand requests the Court remand the decision absent

a substantive ruling pursuant to sentence four. (See generally ECF No. 16.) Neither Plaintiff nor

the Commissioner argues there exists new evidence and good cause to remand the action pursuant

to sentence six. Therefore, the Court may not remand the action absent a substantive ruling

affirming, modifying, or reversing the final decision. Clinkscale, 2025 WL 2528907, *2.

Accordingly, the Commissioner’s motion to remand under sentence four of 42 U.S.C. § 405(g) is

DENIED. Having determined same, this Court shall treat the motion to remand as a responsive

brief pursuant to Supplemental Rule 7, and Plaintiff’s cross-motion to reverse as a reply brief

pursuant to Supplemental Rule 8.7

B. Plaintiff’s Challenge to ALJ Lee’s Step Three Determination

Plaintiff argues ALJ Lee failed to properly consider the combined effect of his severe

impairments—degenerative disc disease and obesity—when assessing medical equivalence to an

impairment on the Impairment List. (See generally ECF No. 14 at 8–20.) Specifically, Plaintiff

claims ALJ Lee relied on the wrong Social Security Ruling (“SSR”) when considering the effect

of his obesity on his degenerative disc disease (ECF No. 14 at 13–14); equated his severe

impairments to the incorrect impairment on the Impairment List (ECF No. 14 at 18–19); and failed

to adequately explain his step three determination (ECF No. 14 at 13–18). In response, the

Commissioner concedes ALJ Lee’s step three determination “require[s] further evaluation of the

evidence and supporting explanation by the ALJ.” (ECF No. 16 at 3.)

1. ALJ Lee Relied on the Correct SSR

In support of his step three determination, ALJ Lee relied on SSR 19–2p. (Tr. at 467.)

Specifically, ALJ Lee notes SSR 19–2p provides: “obesity can cause limitation of exertional and

postural functions, and that in cases involving obesity, fatigue may affect an individual’s physical

and mental ability to sustain work activity” and “the combined effects of obesity with other

7 On October 21, 2024, the Court entered an Order setting deadlines for briefs pursuant to

Supplemental Rule 7 for Social Security Actions under 42 U.S.C. § 405(g). (ECF No. 5.) Notably,

the Order required the Commissioner to file a responsive brief within thirty (30) days after Plaintiff

filed his motion brief. (See ECF No. 5.) Therefore, the Commissioner’s responsive brief was to be

filed by June 14, 2025. (See ECF No. 5; see also ECF No. 14 (filing Plaintiff’s motion brief on

May 15, 2025).) The motion to remand was filed within the relevant time period on June 11, 2025.

(See generally ECF No. 16.) As the Commissioner motion to remand was timely filed and does

not oppose remand (see generally ECF No. 16), the Court relaxes the Federal Rules of Civil

Procedure, the Local Rules of Civil Procedure, and the Supplemental Rules for Social Security

Actions in the interest of justice and shall treat the motion to remand as a responsive brie, see L.

Civ. R. 1.1; L. Civ. R. 83.2(b).

impairments may be greater than might be expected without obesity.” (Tr. at 467.) In response,

Plaintiff argues ALJ Lee was required to rely on SSR 02–1p. (ECF No. 14 at 13–14.) On May 20,

2019, however, the SSA rescinded and replaced SSR 02–1p with SSR 19–2p. SSR 19–2p, 2019

WL 2374244, at *5 n.14 (May 20, 2019). Furthermore, the SSA has advised SSR 19–2p is to be

applied “to claims that are pending on and after the applicable date.” Ibid. As Plaintiff’s claim was

still pending on May 20, 2019, the Court finds ALJ Lee relied on the correct SSR when considering

the effect of Plaintiff’s obesity on his degenerative disc disease.

2. ALJ Lee Equated Plaintiff’s Severe Impairments to the Correct

Impairments on the Impairment List

Similarly, in support of his step three determination, ALJ Lee equated the severe

impairments to Listing 1.15 (Disorders of the Skeletal Spine) and 1.16 (Lumbar Spinal Stenosis).

(Tr. at 464.) In response, Plaintiff argues ALJ Lee was required to equate the impairments to

Listing 1.04 (Disorders of the Spine). (ECF No. 14 at 18–19.) On April 2, 2021, however, the SSA

revised the listing for spinal disorders eliminating Listing 1.04 and setting forth additional criteria

in Listings 1.15 and 1.16. Revised Medical Criteria for Evaluating Musculoskeletal Disorders, 85

Fed. Reg. 78164–01, 2020 WL 7056412 (Dec. 3, 2020). These changes were to be applied “to

claims that are pending on or after the effective date.” Ibid. As Plaintiff’s claim was still pending

on April 2, 2021, the Court finds ALJ Lee equated the severe impairments to the appropriate

Listings.

3. ALJ Lee Failed to Adequately Explain Whether Plaintiff’s Combined

Severe Impairments Equaled Either Listing 1.15 or 1.16

During step three, the ALJ compares the medical evidence of a claimant’s impairments

with the Impairments List in 20 C.F.R. Part 404, Subpart P, Appendix 1, which are presumed

severe enough to preclude any gainful work. See Holley v. Colvin, 975 F. Supp. 2d 467, 476 (D.N.J.

2013), aff’d, 590 F. App’x 167 (3d Cir. 2014). The listings articulated in the Impairments List are

descriptions of various physical and mental illnesses and abnormalities, categorized by the body

system they affect. Sullivan v. Zebley, 493 U.S. 521, 529–30 (1990). All impairments are defined

“in terms of several specific medical signs, symptoms, or laboratory test results.” Id. at 530. “If a

claimant’s impairment meets or equals one of the listed impairments, he will be found disabled. .

. . If the claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds

to step four.” Holley, 975 F. Supp. 2d at 476. To be found disabled, however, the claimant “must

present medical findings equal in severity to all the criteria for the one most similar listed

impairment.” Sullivan, 493 U.S. at 531.

“For a claimant to show that his [or her] impairment matches a listing, it must meet all of

the specified medical criteria. An impairment that manifests only some of those criteria, no matter

how severely, does not qualify.” Id.; see SSR 83–19, Dep’t of Health & Human Servs. Rulings 90

(Jan. 1983) (“An impairment ‘meets’ a listed condition . . . only when it manifests the specific

findings described in the set of medical criteria for that listed impairment.”); 20 C.F.R.

§ 416.926(a) (1989) (noting claimant’s impairment is “equivalent” to listed impairment “if [the

medical findings are] at least equal in severity and duration to the criteria of any listed

impairment”). “A claimant cannot qualify for benefits under the ‘equivalence’ step by showing

that the overall functional impact of his [or her] unlisted impairment or combination of

impairments is as severe as that of a listed impairment.” Sullivan, 493 U.S. at 531–32 (“[I]t is

incorrect to consider whether the listing is equaled on the basis of an assessment of overall

functional impairment . . . . The functional consequences of the impairments . . . irrespective of

their nature or extent, cannot justify a determination of equivalence” [sic].)

To conclude an applicant is not disabled under the step three analysis, the ALJ must “set

forth the reasons for his [or her] decision.” Burnett, 220 F.3d at 119 (remanding where ALJ made

only conclusory statements without mentioning any specific listed impairments or explaining

reasoning). Conclusory statements have been found to be “beyond meaningful judicial review.”

Cotter v. Harris, 642 F.2d 700, 704–05 (3d Cir. 1981). As the Third Circuit has explained, the ALJ

is not required to “use particular language or adhere to a particular format in conducting his [or

her] analysis . . . . [but must] ensure that there is sufficient development of the record and

explanation of findings to permit meaningful review.” Jones, 364 F.3d at 505. 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.” Scatorchia v. Comm’r of Soc. Sec., 137 F. App’x 468, 470–71 (3d Cir. 2005).

Although an ALJ’s decision on step three need not address every minor piece of medical

evidence in the record, the decision must show a meaningful consideration of the elements of the

listings, and whether the weight of medical evidence presented shows a plaintiff meets these

elements. Ramazan K. v. Dudek, No. 2:24–CV-06138 (BRM), 2025 WL 1720409, at *11 (D.N.J.

June 20, 2025). Conclusory statements that an impairment does not meet a certain listing are

insufficient. Compare Parrotta v. Kijakazi, Civ. A. No. 21–13602, 2022 WL 2289554, at *9–11

(D.N.J. June 24, 2022), and Rivera v. Saul, Civ. A. No. 20–05308, 2021 WL 5122075, at *9–10

(D.N.J. Nov. 4, 2021) (affirming ALJ step three determination evaluating specific symptoms

included in listings and considering medical evidence to determine whether symptoms were met),

with Dance v. Comm’r of Soc. Sec., Civ. A. No. 20–03141, 2021 WL 3144696, at *4–5 (D.N.J.

July 26, 2021) (reversing ALJ step three determination that failed to specifically match proffered

medical evidence to elements of relevant listing).

Here, ALJ Lee reviewed Plaintiff’s severe impairments under Listing 1.15 (Disorders of

the Skeletal Spine) and Listing 1.16 (Lumbar Spinal Stenosis). (Tr. at 464.) As ALJ Lee noted, to

establish an impairment meets or equates to an impairment under Listing 1.15, a claimant is

required to demonstrate a compromise of a nerve root as documented by:

(a) Neuro-anatomic (radicular) distribution of pain, paresthesia, or

muscle fatigue, consistent with compromise of the affected nerve

root(s); (b) radicular distribution of neurological signs present

during physical examination, or on a diagnostic test, and evidenced

by the criteria of 1.15B(1), (2), and either (3) or (4); (c) findings on

imaging consistent with compromise of a nerve root(s) in the

cervical or lumbosacral spine; and (d) impairment-related physical

limitation of musculoskeletal functioning that has lasted, or is

expected to last, for a continuous period of at least 12 months, and

medical documentation of at least one of the criteria of 1.15D.

(Tr. at 464.) Similarly, to meet or equate to an impairment under Listing 1.16, a claimant is required

to demonstrate a compromise of the cauda equina as documented by:

(a) symptom(s) of neurological compromise manifested per the

criteria of 1.16A(1), (2), or (3); (b) non-radicular neurological signs

present during physical examination, or on a diagnostic test, and

evidenced by the criteria of 1.16B(1) and either (2) or (3); (c)

findings on imaging, or in an operative report, consistent with

compromise of the cauda equina with lumbar spinal stenosis; and

(d) impairment-related physical limitation of musculoskeletal

functioning that has lasted, or is expected to last, for a continuous

period of at least 12 months, and medical documentation of at least

one of the criteria of 1.16D(1) or (2).

(Tr. at 464.) Reviewing the administrative record, ALJ Lee concluded “[t]he record does not

establish the medical signs, symptoms, laboratory findings or degree of functional limitation

required to meet or equal the criteria of any listed impairment.” (Tr. at 464.) Such a conclusory

statement is inherently insufficient and fails to show meaningful consideration of the elements of

the listings, Ramazan K., 2025 WL 1720409, at *11, which the Commissioner concedes (ECF No.

16 at 3).

Accordingly, as to step three, the Court finds it appropriate to remand for additional

administrative proceedings and further evaluation, including, but not limited to, a meaningful

consideration of the elements of the relevant listings and whether the weight of medical evidence

presented shows Plaintiff met these elements within the relevant time period of July 2013 to

October 2014. To the extent that any other errors may have occurred, such may be remedied by

the Commissioner on remand.

C. Plaintiff’s Challenge to ALJ Lee’s Step Four Determination

Plaintiff argues ALJ Lee’s step four determination that he retains the RFC to perform his

past relevant work as a “cleaner, housekeeper” is not supported by substantial evidence and ALJ

Lee failed to adequately explain his reasons for discounting the contrary opinion of Dr. Vekhnis

and rejecting the contrary opinion of Dr. Bustos. (See generally ECF No. 14 at 20–36.) In response,

the Commissioner concedes ALJ Lee’s step four determination “require[s] further evaluation of

the evidence and supporting explanation by the ALJ.” (ECF No. 16 at 3.)

At step four in the disability determination process, an ALJ must assess the claimant’s RFC

and compare it to her past relevant work. 20 C.F.R. §§ 404.1520(e), (f); Bowen, 482 U.S. at 141.

The claimant bears the burden of proof on step four, see Sykes, 228 F.3d at 263, including to

present the facts necessary for the ALJ to assess the claimant’s RFC, see Bowen, 482 U.S. at 146

n.5. On appeal, a claimant must show that (1) an error occurred; and (2) but for that error, she

might have proven her disability. See Holloman, 639 F. App’x at 814. If a claimant believes an

error was made, he “must clearly identify the error and explain how the error actually ‘affect[ed]

[his or her] “substantial rights.’”” Id. at 814 n.3 (first alternation in original) (quoting Shinseki,

556 U.S. at 407).

In determining a claimant’s RFC, the ALJ is required to consider all relevant medical

evidence from acceptable sources and “may not make speculative inferences from medical

reports.” Plummer, 186 F.3d at 429. “Although the ALJ may weigh the credibility of the evidence,”

Burnett, 220 F.3d at 121, “the ALJ may not reject evidence for no reason or for the wrong reason,”

Yensick v. Barnhart, 245 F. App’x 176, 181 (3d Cir. 2007) (internal quotation marks omitted); see

also Plummer, 186 F.3d at 429 (“[A]n ALJ is not free to employ [his or] her own expertise against

that of a physician who presents competent medical evidence.”). Rather, the ALJ “must give some

indication of the evidence which he rejects and his [or her] reason(s) for discounting such

evidence,” Burnett, 220 F.3d at 121, pursuant to the framework articulated in 20 C.F.R. §

404.1520c. In evaluating the credibility of a medical opinion, the most important factors are its

supportability and consistency with evidence from other sources. 20 C.F.R. § 404.1520c. Other

relevant factors include, but are not limited to, whether the medical source received education or

training in a relevant area of specialty, personally examined the claimant, or is familiar with the

disability program’s policies and requirements. 20 C.F.R. § 404.1520c(c)(3)(v), (4), (5).

Here, ALJ Lee determined Plaintiff had an RFC to perform “light work” except that

Plaintiff can “frequently” balance. (Tr. at 465.) In support of same, ALJ Lee considered, in part,

the opinions of Dr. Bustos and Dr. Vekhnis. (Tr. at 579.) Although ALJ Lee assigned “partial

weight” to Dr. Bustos’s opinions generally, he assigned the specific opinions that Plaintiff is

capable of walking a total of four hours in an eight-hour workday and has “occasional” balance

“no persuasive weight” as Dr. Bustos did not personally examine Plaintiff and did not provide a

full function-by-function analysis. (Tr. at 468.) Similarly, ALJ Lee assigned only “partial weight”

to Dr. Vekhnis’s opinion that Plaintiff “can walk short distances without the use of an assistive

device for ambulation” as the opinion is “vague as to what a short distance would entail.” (Tr. at

468; but see R. 383 (stating Plaintiff can walk “[o]ne block” with an assistive device).)

Furthermore, ALJ Lee only personally examined Plaintiff “one-time” and did not provide a full

function-by-function analysis. (Tr. at 468.) In contrast, ALJ Lee noted “the evidence does not

indicate any significant balance or standing/walking issues.” (Tr. at 468.) ALJ Lee, however, fails

to cite to a medical record indicating Plaintiff is capable of standing/walking more than four hours

in an eight-hour workday or Plaintiff has “frequent” balance. (See generally Tr. at 457–75);

Plummer, 186 F.3d at 429 (“[A]n ALJ is not free to employ [his or] her own expertise against that

of a physician who presents competent medical evidence.”).

In contrast, ALJ Tirrell determined Plaintiff had an RFC to perform “light work” except

that Plaintiff “can stand and walk for a combined total of 4 hours in an 8 hour workday . . . [and]

occasionally balance” (Tr. at 20), assigning “some weight” to Dr. Bustos’s opinion and

“substantial weight” to Dr. Vekhnis’s opinion. (Tr. at 26–27). Notably, the administrative records

available at the time of ALJ Tirrell’s determination and ALJ Lee’s determination are substantively

identical as they relate to the relevant time period of July 2013 to October 2014. The Court notes

the only substantive difference between the relevant administrative records appears to be the

differing testimonies of the vocation experts as the initial vocation expert opined there exists

substantial gainful work in the national economy for an individual capable of standing/walking a

combined total of 4 hours with occasional balance (Tr. at 71–76), whereas the subsequent vocation

expert opined there exists no gainful work for an individual capable of standing/walking less than

a combined total of 6 hours and without frequent balance (Tr. at 539–43). In the absence of a

sufficient explanation as to the ALJ’s change in the credibility findings of Dr. Bustos and Dr.

Bekhnis, the Court cannot conduct a meaningful review of the RFC determination at step four.

Cotter, 642 F.2d at 705. Having determined same, the Court makes no substantive determination

as to the sufficiency of the ALJ’s consideration of Plaintiff’s obesity under step four.8

Accordingly, at to step four, the Court finds it appropriate to remand for additional

administrative proceedings and further evaluation, including, but not limited to, a meaningful

consideration of all relevant medical evidence providing some indication of the evidence he rejects

and his reasons for discounting such evidence pursuant to the framework articulated in 20 C.F.R.

§ 404.1520c; meaningful consideration of the effect of Plaintiff’s severe impairment of obesity on

his ability to perform his past relevant work; and a sufficient and reasonable explanation for the

change in RFC determinations identifying the relevant medical evidence supporting his prior RFC

determination that Plaintiff was capable of more than four hours of standing/walking in an eight-

hour workday and of “frequent” balance within the relevant time period of July 2013 to October

2014. To the extent that any other errors may have occurred, such errors may be remedied by the

Commissioner on remand.

D. Plaintiff’s Request that a New Hearing Be Held Before Another ALJ

Although Plaintiff failed to develop the issue in the argument section of his motion brief

or his cross-motion (see generally ECF No. 14, ECF No. 17), the Court evaluates Plaintiff’s request

that on remand the new hearing be held before another ALJ on its merits as “it is constitutional in

nature and appears non-waivable.” James R. v. Kijakazi, No. CV 22–05030 (GC), 2023 WL

6389097, at *4 (D.N.J. Sept. 30, 2023).

8 At step four in the disability determination process, an ALJ must conduct a meaningful review

of the effect of a claimant’s obesity, in combination with his or her other impairments, on the

claimant’s ability to perform past relevant work. See Diaz v. Comm’r of Soc. Sec., 577 F.3d 500,

504 (3d Cir. 2009). Although an ALJ is not required to adhere to a particular format or to include

particular language, meaningful review requires an ALJ to set forth the reasons for his or her

decision in a sufficient manner to allow substantive judicial review. See Burnett, 220 F.3d at 119.

Pursuant to 20 C.F.R. § 404.940, an ALJ “shall not conduct a hearing if he or she is

prejudiced or partial with respect to any party or has any interest in the matter pending for

decision.” Accord Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). As the Third Circuit

recognized, under the Act a claimant has a right to due process requiring a disability hearing “be

full and fair.” Bordes v. Comm’r of Soc. Sec., 235 F. App’x 853, 857 (3d Cir. 2007). “The right to

an unbiased ALJ is particularly important because of the active role played by ALJs . . . . to develop

a full and fair record in social security cases.” Ventura, 55 F.3d at 902. Therefore, in certain

circumstances, an ALJ’s bias may amount to a violation of due process. The threshold required to

find an ALJ to be biased, however, “is very high.” Shanta B. v. Comm’r of Soc. Sec., No. CV 23–

4232 (RK), 2024 WL 3534338, at *6–7 (D.N.J. July 25, 2024); see, e.g., Valenti v. Com’r of Soc.

Sec., 373 F. App’x 255, 258 (3d Cir. 2010) (holding the ALJ was biased where the ALJ engaged

in “coercive, intimidating, and irrelevant questioning of the claimant”); Ventura, 55 F.3d at 905

(holding the ALJ was biased due to “offensive and unprofessional conduct”).

Notably, this District recently addressed similar arguments of bias against ALJ Lee from

Plaintiff’s counsel. See Shanta B., 2024 WL 3534338, at *6–7; James R., 2023 WL 6389097, at

*4–5. As noted in both cases, “poor statistics in other cases are not sufficient for the Court to find

bias.” Shanta B., 2024 WL 3534338, at *7 (quoting James, 2023 WL 6389097, at *5); see also

Kirlew v. Att’y Gen. of U.S., 267 F. App’x 125, 128 (3d Cir. 2008) (holding the courts “cannot

base a finding of bias merely on repeated adverse rulings”); Johnson v. Comm’r of Soc. Sec., Civ.

No. 08–4901, 2009 WL 4666933, at *4 (D.N.J. Dec. 3, 2009) (holding “an ALJ’s impartiality

should not be judged by result or reputation or by statistics of how that judge has previously

ruled”), aff’d, 398 F. App’x 727 (3d Cir. 2010) .

Here, a review of the record indicates Plaintiff filed a motion for recusal on April 27, 2023,

which ALJ Lee denied on December 19, 2023.9 (Tr. at 903–04, 912.) The motion for recusal

requested ALJ Lee to recuse himself based on an alleged bias against Plaintiff’s counsel. (See

generally R. 903–04.) Specifically, Plaintiff alleges that although his counsel is “routinely

successful in no less than two-thirds of all administrative appeals,” his counsel has been successful

a “little more than 2%” of all appeals before ALJ Lee. (Tr. at 903.) Plaintiff does not allege any

bias as to “ethnicity, gender, orientation or origin.” (Tr. at 903.)

As poor statistics alone are generally insufficient to support a finding of bias from an ALJ,

see Shanta B., 2024 WL 3534338, at *7; James, 2023 WL 6389097, at *5, Plaintiff’s request that

on remand the new hearing be held before another ALJ is DENIED.

V. CONCLUSION

For the reasons set forth above, the Commissioner’s motion to vacate the decision and

remand the matter pursuant to sentence four of 42 U.S.C. § 405(g) is DENIED; Plaintiff’s cross-

motion to reverse the decision is DENIED; and the Commissioner’s decision is VACATED and

the matter is REMANDED for additional administrative proceedings and further evaluation

consistent with this Opinion. An appropriate order follows.

Date: September 30, 2025 /s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

9 Following the denial, Plaintiff did not present his objections to the Appeals Council. See 20

C.F.R. § 404.940.