DEVITA

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

ANTHONY D.,1

Plaintiff,

Civil No. 24-11121 (RMB)

v.

COMMISSIONER OF SOCIAL OPINION

SECURITY,

Defendant.

APPEARANCES:

Jamie Ryan Hall, Esq.

LAW OFFICE OF JAMIE R. HALL

300 North Pottstown Pike, Suite 240

Exton, Pennsylvania 19341

Counsel for Plaintiff

Catherine Elisabeth Hamilton, Esq.

Shawn Cheree Carver, Esq.

SOCIAL SECURITY ADMINISTRATION

Office of Program Litigation, Office 3

Office of the General Counsel

6401 Security Boulevard

Baltimore, Maryland 21235

Counsel for Defendant

1 Due to the significant amount of personal information and privacy concerns in

Social Security cases, non-governmental parties are identified solely by first name and

last initial. See D.N.J. Standing Order 2021-10.

RENÉE MARIE BUMB, Chief United States District Judge:

This matter comes before the Court upon an appeal filed by Plaintiff

Anthony D. (“Plaintiff”) seeking judicial review of a final determination of the

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

his applications for Social Security Disability benefits. For the reasons set forth below,

the Court shall VACATE the decision of the Administrative Law Judge (the “ALJ”)

and REMAND for proceedings consistent with this Opinion’s reasoning.

I. PROCEDURAL HISTORY

On September 8, 2020, Plaintiff filed an application for Social Security

Disability benefits under Title II of the Social Security Act (the “Act”), alleging an

onset date of disability beginning May 1, 2018. Plaintiff’s date last insured was

December 31, 2020. His claims were first denied on May 3, 2021, and again denied

upon reconsideration on December 6, 2021. [Administrative Record (“R.”) at 92–93,

108 (Docket No. 6).] Thereafter, Plaintiff filed a written request for a hearing before

an ALJ. That hearing took place telephonically due to the COVID-19 Pandemic on

April 5, 2022, before ALJ Eric Eklund. [R. at 60–89.] Plaintiff was represented by his

attorney and provided testimony at that hearing. [R. at 63–81.] Kathleen Spencer, an

impartial vocational expert appeared and provided testimony. [R. at 81–88.] The ALJ

issued his decision on May 18, 2022, finding that Plaintiff was not disabled under the

Act. [R. at 114–32.] On June 6, 2023, the Appeals Council vacated the ALJ’s decision

and remanded for a new hearing from an ALJ. [R. at 133–38.]

A hearing before ALJ Elizabeth Lardaro took place on November 22, 2023.

[R. at 35–59.] Plaintiff once again was represented by his attorney and provided

testimony at that hearing. [R. at 39–55.] Susan Gaudet provided vocational expert

testimony. [R. 55–58.] The ALJ issued her decision on February 20, 2024, once again

finding that Plaintiff was not disabled under the Act. [R. at 14–34.] The Appeal

Council denied Plaintiff’s renewed request for review, rendering the ALJ’s decision

final. [R. at 1.] Plaintiff now seeks this Court’s review pursuant to 42 U.S.C. § 405(g).

II. LEGAL STANDARDS

A. The District Court’s Standard of Review

The Act grants federal courts limited power to review the Commissioner’s

decision to deny an applicant disability benefits. 42 U.S.C. § 405(g). While courts

conduct a plenary review of all legal issues the Commissioner decides, Hess v. Comm’r

of Soc. Sec., 931 F.3d 198, 208 n.10 (3d Cir. 2019) (citing Chandler v. Comm’r of Soc. Sec.,

667 F.3d 356, 359 (3d Cir. 2011)), the Act requires courts to uphold the

Commissioner’s factual decisions if they are supported by “substantial evidence.”

42 U.S.C. § 405(g); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Substantial

evidence is “more than a mere scintilla.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019).

This evidentiary threshold is “not high” and “means—and means only—‘such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Id. (quoting Consol. Edison Co. of New York v. NLRB, 305 U.S. 197, 229

(1938)). It is a deferential standard, and a court cannot set aside the Commissioner’s

decision merely because “acting de novo [it] might have reached a different

conclusion.” See Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986).

Indeed, courts cannot “weigh the evidence or substitute [its own] conclusions for those

of the [Commissioner].” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)

(cleaned up).

The substantial evidence inquiry, while deferential, is not a perfunctory exercise

to rubberstamp the Commissioner’s decision. Kent v. Schweiker, 710 F.2d 110, 114

(3d Cir. 1983) (explaining the substantial evidence standard is not “a talismanic or

self-executing formula for adjudication,” rather, the standard requires a “qualitative

exercise”). Thus, when reviewing the Commissioner’s decision, courts must “review

the evidence in its totality” and “take into account whatever in the record fairly

detracts from its weight.” K.K. ex rel. K.S. v. Comm’r of Soc. Sec., 2018 WL 1509091,

at *4 (D.N.J. Mar. 27, 2018) (internal quotation marks and citation omitted).

Where, as here, the Appeals Council denies a claimant’s request for a review of

an ALJ’s decision, the “ALJ’s decision is the Commissioner’s final decision.”

Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). The ALJ’s decision must have

enough information to “permit meaningful judicial review.” Jones v. Barnhart,

364 F.3d 501, 505 (3d Cir. 2004). This requires the ALJ to explain what evidence the

judge considered that “supports the result” and “some indication of the evidence

[the judge] rejected.” Smith v. Comm’r of Soc. Sec., 178 F. App’x 106, 111 (3d Cir. 2006)

(quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)). Otherwise, a reviewing

court “cannot tell if significant probative evidence was not credited or simply ignored.”

Cotter, 642 F.2d at 705. A court will set aside an ALJ’s decision if the judge failed to

consider the entire record or resolve an evidentiary conflict. See Fargnoli v. Massanari,

247 F.3d 34, 41–42 (3d Cir. 2001).

B. Establishing Disability under the Social Security Act

Every qualifying individual who is under a “disability” is entitled to disability

insurance benefits. 42 U.S.C. § 423(a)(1). The Act defines “disability” as the inability

“to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than 12 months.”

42 U.S.C. § 423(d)(1)(A); accord id. § 1382c(a)(3)(A). “A claimant is considered unable

to engage in any substantial 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.’” Plummer v. Apfel,

186 F.3d 422, 427–28 (3d Cir. 1999) (quoting 42 U.S.C. § 423(d)(2)(A));

accord 42 U.S.C. § 1382c(a)(3)(B). The burden of proving disability is on the claimant.

Sanborn v. Comm’r of Soc. Sec., 613 F. App’x 171, 174 (3d Cir. 2015) (citing 42 U.S.C.

§ 423(d)(5)(A); 20 C.F.R. § 404.1512(a)).

The Commissioner has promulgated a five-step, sequential analysis for

evaluating a claimant’s disability, as outlined in 20 C.F.R. § 404.1520(a)(4). The

analysis proceeds as follows:

At step one, the ALJ determines whether the claimant is performing

“substantial gainful activity[.]” 20 C.F.R. §§ 404.1520(a)(4)(i),

416.920(a)(4)(i). If he is, he is not disabled. Id. Otherwise, the ALJ

moves on to step two.

At step two, the ALJ considers whether the claimant has any “severe

medically determinable physical or mental impairment” that meets

certain regulatory requirements. Id. §§ 404.1520(a)(4)(ii),

416.920(a)(4)(ii). A “severe impairment” is one that “significantly limits

[the claimant’s] physical or mental ability to do basic work activities[.]”

Id. §§ 404.1520(c), 416.920(c). If the claimant lacks such an impairment,

he is not disabled. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If he has

such an impairment, the ALJ moves on to step three.

At step three, the ALJ decides “whether the claimant’s impairments meet

or equal the requirements of an impairment listed in the regulations[.]”

[Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010)]. If the

claimant’s impairments do, he is disabled. 20 C.F.R.

§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If they do not, the ALJ moves

on to step four.

At step four, the ALJ assesses the claimant’s “residual functional

capacity” (‘RFC’) and whether he can perform his “past relevant work.”

Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). A claimant’s “[RFC] is the

most [he] can still do despite [his] limitations.” Id. §§ 404.1545(a)(1),

416.945(a)(1). If the claimant can perform his past relevant work despite

his limitations, he is not disabled. Id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). If he cannot, the ALJ moves on to step five.

At step five, the ALJ examines whether the claimant “can make an

adjustment to other work[,]” considering his “[RFC,] . . . age, education,

and work experience[.]” Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That

examination typically involves “one or more hypothetical questions

posed by the ALJ to [a] vocational expert.” Podedworny v. Harris,

745 F.2d 210, 218 (3d Cir. 1984). If the claimant can make an adjustment

to other work, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If he cannot, he is disabled.

Hess, 931 F.3d at 201–02.

III. FACTUAL BACKGROUND

The Court recites herein only the facts that are necessary to its determination

on appeal, which is narrow. Plaintiff was 51 years old on his alleged onset date and

54 years old on his date last insured. [R. at 39.] He met the insured status requirements

of the Act through December 31, 2020, meaning that he had to establish disability on

or before that date to be entitled to benefits.

A. Plaintiff’s Educational and Work History

Plaintiff has a high school education. [R. at 39.] Prior to his alleged onset date,

Plaintiff last worked as a commercial and industrial painter. [R. at 72, 355.] He was

also previously employed as a warehouse worker. [R. at 83, 355.]

B. Plaintiff’s Medical History

Plaintiff suffers from the following physical and mental impairments: lumbar

degenerative disc disease, migraine headaches, tremor/ataxia, cellulitis of the right

axilla, right fifth digit laceration, traumatic hematoma of the right buttock, psoriasis,

and emphysema. [R. at 20.]

The medical record establishes that Plaintiff reported to the emergency

department after a fall in August 2017. [R. at 561.] Beginning in April 2019, Plaintiff

was treated by neurology specialists with complaints of aphagia, ataxia,

cerebrovascular small vessel disease, headaches, and psoriasis. [R. at 602–04.] In

early October 2020, Plaintiff presented to the emergency department after

experiencing difficulty with balance for several days. [R. at 506.] Medical records

from later that month noted that Plaintiff was diagnosed with small vessel disease in

2012; he reported that the disease “causes his limbs and muscles to shut down . . . He

sometimes [cannot] walk, move, write, or even speak clearly.” [R. at 618.] Plaintiff

reported constant headaches since 2012, impaired speech, issues with his motor skills,

tremors, shaking, and trouble pressing buttons on his phone. [R. at 618.] The provider

observed a tremor, chronic ataxia, chronic aphagia, and chronic headaches, and

referred Plaintiff for a CT and to a neurologist for further evaluation. [R. at 619.]

On April 21, 2021, Plaintiff was examined by consultative examiner Dr. Karen

Sciascia in connection with his migraine headaches, cerebral chronic small vessel

disease, and concussion. [R. 628.] Dr. Sciascia observed bilateral nystagmus and both

an intention and a resting tremor in his arms and hands, which made it difficult for

Plaintiff to put on his shoes and socks. [R. 628–29.] She also observed an intention

tremor in both legs, dizziness at times, and noted that Plaintiff had “very poor

balance.” [R. at 629–31.] Dr. Sciascia finally noted that “obviously he should not be

climbing ladders [as he did in his prior work as a painter] with his dizziness and he

does fall rather frequently.” [R. at 633.]

On May 3, 2021, non-examining State agency review physician Dr. Darrin

Campo opined, based on the records described above, that Plaintiff should be limited

to light work due to his impairments and that his neurological disorders were severe.

[R. at 95–99.]

Plaintiff testified before the ALJ that he has difficulty with balance and cannot

write due to tremors in both hands that started in 2018. [R. at 43.] He further testified

that during the relevant period he suffered from headaches twenty out of thirty days a

month and struggled walking on steps. [R. at 45, 51.] He described difficulty

completing basic tasks like brushing his teeth, tying his shoes, combing his hair, typing

on his phone, and drinking water without spilling. [R. at 46, 48–49, 53.]

IV. THE ALJ’S DECISION

On remand, ALJ Lardaro found that Plaintiff was not disabled. At step one,

the ALJ determined that Plaintiff had not engaged in gainful activity during the

relevant period of May 1, 2018, through December 31, 2020. [R. at 20.] At step two,

the ALJ found that Plaintiff did not have a severe impairment or combination of

impairments and, therefore, that he was not disabled. [R. at 23.] The ALJ noted that

Plaintiff appeared to suffer from ataxia and migraine headaches, but that the medical

record was insufficient to establish that any of these disorders either alone or in

combination were severe prior to the date last insured. [R. at 23–28.] The ALJ’s

analysis stopped there.2

2 The Court notes that the initial ALJ decision found that Plaintiff’s chronic small

vessel disease and chronic migraine headaches were severe impairments at step 2 and

proceeded with the five-step analysis. [R. at 120.] That ALJ found that Plaintiff was

not disabled at step five of the sequential analysis. [R. at 126–27.] This decision,

however, was vacated by the Appeals Council in its entirety. [R. at 135–36.]

“A vacated decision is officially gone, has no legal effect whatever, is void, and none

of the statements made therein has any remaining force.” Lesh v. O’Malley, 2024 WL

4270368, at *5 (M.D. Pa. Sept. 23, 2024) (cleaned up). The ALJ on remand was not

required to consider any findings in the original ALJ decision because “they have been

vacated and are ‘officially gone.’” Id. Plaintiff contends that ALJ Lardaro was

required to consider ALJ Eklund’s findings, relying on Mari on Behalf of Mari v. Kijakazi,

2022 WL 4487986, at *9 (M.D. Pa. Sept. 27, 2022). But Plaintiff’s reliance on Mari is

misplaced. In Mari, the court found that the ALJ handling the claimant’s second

application for benefits was required to consider findings made by another ALJ in

The Appeals Council denied Plaintiff’s request for review on October 24, 2024.

[R. at 133–38.] The ALJ’s decision thus became final. See Chandler, 667 F.3d at 359.

Accordingly, on December 13, 2024, Plaintiff timely sought this Court’s review

pursuant to 42 U.S.C. § 405(g). [Compl. (Docket No. 1).]

V. DISCUSSION

On appeal, Plaintiff contends that the ALJ erred when she found that Plaintiff

did not have any severe neurological or headache impairment, thereby ending the

sequential analysis at step two, and requests that the Court vacate the ALJ’s decision

and remand the matter for further administrative proceedings. The Court agrees.

At step two, “an impairment is not severe if it does not significantly limit [the

applicant’s] physical ability to do basic work activities.” Newell v. Comm’r of Soc. Sec.,

347 F.3d 541, 546 (3d Cir. 2003). These are “the abilities and aptitudes necessary to

do most jobs,” such as walking, standing, sitting, carrying, handling, and speaking.

20 C.F.R. § 404.1522(b).

“The step-two inquiry is a de minimis screening device to dispose of groundless

claims.” Newell, 347 F.3d at 546. As such, “step two is to be rarely utilized as [the]

basis for the denial of benefits” and “its invocation is certain to raise a judicial

eyebrow.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 361 (3d Cir. 2004) (citing Social

Security Ruling (“SSR”) 85-28, 1985 WL 56856, at *4). The applicant’s burden at this

connection with the claimant’s first application for benefits. Id. But, unlike here, that

decision had not been vacated and was still part of the record before the judge.

step “is not an exacting one.” Id. at 360. The “applicant need only demonstrate

something beyond ‘a slight abnormality or a combination of slight abnormalities

which would have no more than a minimal effect on an individual’s ability to work.’”

Id. (quoting SSR 85-28, 1985 WL 56856, at *3). Critically, “[a]ny doubt as to whether

this showing has been made is to be resolved in favor of the applicant.” Id. (citing

Newell, 347 F.3d at 546–47).

The medical record before the ALJ and this Court establishes that Plaintiff

suffered a history of falls [R. at 561], difficulty with balance and dizziness [R. at 506],

tremors in his hands and all his limbs [R. at 618–19], as well as frequent prolonged

headaches [R. at 602–04, 618–19] – all prior to Plaintiff’s date last insured. The record

includes both Plaintiff’s subjective testimony, as well as clinical findings by his medical

providers. Then, in April 2021, not even four months after the last date insured, a

consultative examiner confirmed these impairments. [R. at 628–35.] While the ALJ

recounted the medical evidence after the date last insured, her decision does not reflect

whether she in fact considered this evidence in determining that Plaintiff’s

combination of impairments were not severe at step two, as required given its

proximity to the date last insured. See Newell, 347 F.3d at 547 (permitting

consideration of medical records beginning seven months after date last insured

because “[r]etrospective diagnosis of an impairment, even if uncorroborated by

contemporaneous medical records, but corroborated by lay evidence relating back to

the claimed period of disability, can support a finding of past impairment.”); Lucent v.

Comm’r of Soc. Sec., 2020 WL 2217269, at *6 (M.D. Pa. May 7, 2020) (“medical

evidence generated after the date last insured” is “relevant to the extent it is reasonably

proximate in time or relates back to the period at issue.”). Based on the ALJ’s written

decision, this Court cannot determine if this “evidence was not credited or simply

ignored” because it post-dated Plaintiff’s date last insured. See Cotter, 642 F.2d at 705.

This alone is cause for remand.

Similarly, a non-examining state agency review physician opined just two

weeks later that Plaintiff’s impairments were severe. [R. at 95–99.] Plaintiff rightly

takes issue with the ALJ’s rejection of this physician’s opinion. The ALJ stated that

Dr. Campo’s findings were not persuasive because they “are not supported by their

evaluation of the medical evidence at the time the opinion was formed or consistent

with other medical evidence of record as the totality of the medical evidence reveals

that his alleged physical impairments were either not medically determinable or not

severe for the reasons discussed above.” [R. at 27–28.] The ALJ, however, failed to

explain how the opinions were unsupported by and inconsistent with the record.

Without an explanation, the Court cannot determine whether this finding is supported

by substantial evidence, another cause for remand.

The ALJ also significantly discounted Plaintiff’s subjective complaints about

the severity of his symptoms in large part because of his sparse course of treatment.

Yet the ALJ did not – as required – first consider Plaintiff’s possible reasons for failing

to follow up with specialists or seek frequent care. Plaintiff testified that at varying

times he was on public assistance, Medicaid, and uninsured. [R. at 67–68.] Clearly,

whether insured or not, Plaintiff experienced financial strain throughout the relevant

period and beyond. And, it goes without saying that even with insurance, out of

pocket expenses can be prohibitively expensive. The ALJ erroneously did not consider

this explanation prior to disregarding Plaintiff’s testimony, also requiring remand.

See Newell, 347 F.3d at 547–48 (reversing and remanding where ALJ discredited

plaintiff’s testimony due to lack of treatment despite her testimony that she could not

afford care); see also Young v. Berryhill, 2018 WL 1256778, at *3 (W.D. Pa. Mar. 12,

2018) (noting that courts routinely remand cases where ALJs failed “to address

evidence that a claimant declined or failed to pursue more aggressive treatment due to

lack of medical insurance.”) (collecting cases).

Finally, the medical evidence, as well as Plaintiff’s corroborating testimony,

establish impairments or a combination of impairments that unquestionably impacted

his ability to work during the relevant period.3 The question, however, is how

significantly these impairments impacted his ability to work. This question is not for

this Court to answer, but for the ALJ. The ALJ was required to “assess the impact of

the combination of [Plaintiff’s] impairments on [his] ability to function.” SSR 85-28,

1985 WL 56856, at *3. This necessitates “an evaluation of the effect of the

impairment(s) on the person’s ability to do basic work activities,” as well as “a careful

3 For example, his balance difficulties, dizziness, and the tremors in his legs

would have impacted his ability to climb ladders as required by his previous work, as

well as the basic tasks of walking and standing. Likewise, the tremors in his arms and

hands would have impacted his ability to carry and handle things. See 20 C.F.R.

§ 404.1522(b) (enumerating examples of “basic work activities”).

evaluation of the medical findings which describe the impairment(s) and an informed

judgment about [their] limiting effects on the individual’s [ability] to perform basic

work activities.” Id. at *4. Yet the ALJ failed to undertake this careful evaluation.

The ALJ did not provide any explanation for concluding that Plaintiff’s impairments

were so slight that they could not have more than a minimal effect on Plaintiff’s ability

to work. This, too, requires remand, especially given that any doubts as to whether

Plaintiff has met his burden at step two must be resolved in his favor.4 See McCrea,

370 F.3d at 360.

VI. CONCLUSION

For the reasons expressed above, the ALJ’s decision is VACATED, and the

case is REMANDED for further administrative proceedings consistent with this

Opinion. An accompanying Order shall issue on this date.

s/Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge

Dated: December 23, 2025

4 Since the ALJ did not proceed with the other steps in the sequential analysis,

the errors identified by this Court are not harmless and require remand. See Julieann H.

v. O’Malley, 2024 WL 511633, at *6 (D.N.J. Feb. 8, 2024); see also Salles v. Comm’r of

Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007).