Maria M. Diaz v. COMMISSIONER OF SOCIAL SECURITY Appeal from the United States District Court for…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4067
__________
MARIA M. DIAZ,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
__________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-cv-00790)
District Judge: Honorable Stanley R. Chesler
__________
Argued May 22, 2009
Before: RENDELL, STAPLETON and ALARCÓN*,
Circuit Judges.
*Honorable Arthur L. Alarcón, Senior Judge, United
States Court of Appeals for the Ninth Circuit, sitting by
designation.

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(Filed : August 12, 2009)
Abraham S. Alter, Esq. [ARGUED]
Langton & Alter
2096 St. Georges Avenue
Rahway, NJ 07065
Counsel for Appellant
Karla J. Gwinn, Esq. [ARGUED]
Social Security Administration
Office of General Counsel - Region II
26 Federal Plaza, Room 3954
New York, NY 10278
Counsel for Appellee
__________
OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
Maria Diaz (“Diaz”) appeals from the Memorandum and
Order of the District Court concluding that the decision of the
Administrative Law Judge (“ALJ”) denying her Social Security
disability insurance benefits was supported by substantial
evidence. While the ALJ gave serious consideration to her
claim and issued a thoughtful nine-page opinion, we are
compelled to vacate the District Court’s Order and remand to
the District Court, directing it to remand this case to the

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Commissioner of Social Security (the “Commissioner”) for
further consideration.
I.
Diaz seeks a finding of disability as of December 31,
2000, when she was 40 years old. She turned 45 in July 2005,
and her age category changed to “closely approaching
advanced age,” so that she became “disabled” under section
1614(a)(3)(A) of the Social Security Act as of July 1, 2005. It
is the period between 2000 and 2005 that thus concerns us.
Diaz was last employed in 2000 as a babysitter. She
stopped working on December 31, 2000, because she “could not
keep bending down and assisting the children’s needs.”
Administrative Record (“AR”) 133. Diaz urges that several
medical conditions – scoliosis, diabetes, cholesterol, asthma,
high arterial blood pressure, and arthritis – prevent her from
standing for a long period of time and contribute to headaches,
asthma attacks, and chest pains. In addition, she is 4'11" tall,
weighs 252 lbs., and has been diagnosed as morbidly obese.
Diaz has been under the care of Dr. Diptika Patel, who
prescribed several medications for her ailments.
At the hearing before the ALJ, Diaz testified that she was
unable to work at a job that requires her to stand, and that she
could walk only half a block, due to back and leg pain. She
testified that her pain was most acute in the region between her
hip and left knee, and described frequent swelling in her knees
and ankles. Further, she indicated that she could sit for “about

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half an hour[,]” and that she needs to take “shifts between sitting
and standing.” AR 36, 40.
The ALJ considered evidence presented by numerous
doctors concerning Diaz’s physical and mental limitations. He
also considered vocational evidence provided by Rocco Meola,
a vocational rehabilitation counselor. Meola indicated that a
person like Diaz (who is between 40 and 45 years of age with
limited education and unable to speak English) could perform
certain sedentary occupations, including small parts assembler,
parts sorter, parts inspector, inspector, and weight tester, if
provided periodic breaks, and that approximately 1,500 jobs of
this type existed in the region.
The ALJ proceeded through the five-step sequential
evaluation process for determining whether an individual is
disabled under 20 C.F.R. §§ 404.1520(a) and 416.920(a). At
step one, the ALJ concluded that Diaz was not engaged in
substantial gainful activity. The ALJ then proceeded to step
two. At step two, the ALJ considered whether Diaz had a
medically determinable impairment that is “severe” or a
combination of impairments that is “severe.” He listed her
“severe” impairments as follows: diabetes, hypertension,
asthma, back disorder, degenerative joint disease of the knee,
adjustment disorder, and obesity.
The ALJ then discussed Diaz’s mental impairments,
indicating that the opinion of the state agency medical
consultant (who assessed her as having a “severe impairment”
because she has moderate difficulty maintaining concentration,
persistence, and pace) “did not appear to be supported, because
of her activities of daily living and lack of psychiatric
treatment.” AR 42. Nonetheless, the ALJ stated that “giving the
claimant every benefit of the doubt, I find her adjustment
disorder t[o] constitute a ‘severe’ impairment.” AR 18. The

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The District Court exercised jurisdiction under 42 U.S.C. §1
405(g), and this Court has jurisdiction over Diaz’s appeal
pursuant to 28 U.S.C. § 1291.
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mental condition was the sole impairment discussed by the ALJ
at step two. The ALJ then proceeded to step three.
At step three, an ALJ is charged with determining
whether a claimant’s impairment or combination of impairments
meets, or medically equals, the criteria of an impairment listed
in 20 C.F.R. §§ 404.1520(d) and 416.920(d). If the impairment,
or combination of impairments, meets or equals the criteria of
the Listing and meets the duration requirement, the claimant
qualifies as disabled. Here, at step three, the ALJ commented
on Diaz’s individual impairments: her diabetes, hypertensive
cardiovascular disease, chronic pulmonary insufficiency and
asthma, disorder of the spine, joint dysfunction, and mental
capacity. The ALJ emphasized that Dr. Martin Fechner, the
court-appointed medical expert, testified that Diaz did not meet
or equal any Listing.
The ALJ then reviewed the evidence presented, including
the testimony of various experts, and concluded that Diaz “has
the residual functional capacity to perform simple, routine
sedentary work that does not require concentrated exposure to
pulmonary irritants and never requires crawling or the climbing
of ropes or ladders.” AR 19. In so concluding, the ALJ assigned
“[c]ontrolling weight” to the “very detailed reports of the
examinations conducted by Drs. Merlin, Potashnik, and
Tiersten.” AR 20.
The District Court affirmed.1

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II.
Congress has provided that our review of the
Commissioner’s determination of disability benefits is for
substantial evidence. 42 U.S.C. § 405(g). If supported by
substantial evidence in the record, we are bound by the ALJ’s
findings of fact. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999). Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept
as adequate.” Id. (citing Ventura v. Shalala, 55 F.3d 900, 901
(3d Cir. 1995)).
In order to establish a disability under the Social Security
Act, Diaz must demonstrate some “‘medically determinable
basis for an impairment that prevents her from engaging in any
“substantial gainful activity” for a statutory twelve-month
period.’” Burnett v. Comm’r of Social Sec. Admin., 220 F.3d
112, 118 (3d Cir. 2000) (quoting Plummer, 186 F.3d at 427); see
also 42 U.S.C. § 423(d)(1). Diaz will be considered unable to
engage in any substantial gainful activity “‘only if [her] physical
or mental impairment or impairments are of such severity that
[s]he is not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy.’” Burnett, 220 F.3d at 118 (quoting Plummer,
186 F.3d at 427-28).
On appeal, Diaz urges that the ALJ’s ruling is not
supported by substantial evidence because, contrary to Social
Security Ruling (“SSR”) 00-3p, 65 Fed. Reg. 31039, 31040-42
(May 15, 2000), no consideration was given to Diaz’s severe
obesity. The ALJ acknowledged this impairment at step two,
but failed to consider its impact, in combination with her other
impairments, at step three, as required. In 2000, the
Commissioner rescinded Paragraph 9.09 of the Listing of

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For example, the Ruling notes:2
The functions likely to be limited depend on many
factors, including where the excess weight is
carried. An individual may have limitations in
any of the exertional functions such as sitting,
standing, walking, lifting, carrying, pushing, and
pulling. It may also effect ability to do postural
functions, such as climbing, balance, stooping,
and crouching.
SSR 02-1p.
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impairments, which dealt exclusively with obesity; however, this
did not eliminate obesity as a cause of disability. To the
contrary, the Commissioner promulgated SSR 00-3p, indicating
how obesity is to be considered. This SSR replaced an
automatic designation of obesity as a Listed impairment, based
on a claimant’s height and weight, with an individualized
inquiry, focused on the combined effect of obesity and other
severe impairments afflicting the claimant: “We will also find
equivalence if an individual has multiple impairments, including
obesity, no one of which meets or equals the requirements of a
listing, but the combination of impairments is equivalent in
severity to a listed impairment.” Although SSR 00-3p was
superseded by SSR 02-1p, 67 Fed. Reg. 57859, 57859 (Sept. 12,
2002), SSR 02-1p did not materially amend SSR 00-3p. See
Rutherford v. Barnhart, 399 F.3d 546, 552 n.4 (3d Cir. 2005).
SSR 00-3p instructs that “obesity may increase the severity of
coexisting or related impairments to the extent that the
combination of impairments meets the requirements of a listing.
This is especially true of musculoskeletal, respiratory, and
cardiovascular impairments. It may also be true for other
coexisting or related impairments, including mental disorders.”2
Hence, an ALJ must meaningfully consider the effect of a

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claimant’s obesity, individually and in combination with her
impairments, on her workplace function at step three and at
every subsequent step.
In Burnett, we held that an ALJ must clearly set forth the
reasons for his decision. 220 F.3d at 119. Conclusory
statements that a condition does not constitute the medical
equivalent of a listed impairment are insufficient. The ALJ must
provide a “discussion of the evidence” and an “explanation of
reasoning” for his conclusion sufficient to enable meaningful
judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501,
505 & n.3 (3d Cir. 2004). The ALJ, of course, need not employ
particular “magic” words: “Burnett does not require the ALJ to
use particular language or adhere to a particular format in
conducting his analysis.” Jones, 364 F.3d at 505.
Citing Rutherford v. Barnhart, the government urges that
the “ALJ’s adoption of their [Drs. Merlin, Potashnik, Tiersten,
and Fechner’s] conclusions constitutes a satisfactory, if indirect,
consideration of that condition [obesity].” Respondent’s Br. at
29; see 399 F.3d at 552. Significantly, however, in Rutherford,
the claimant did not assert obesity as an impairment, nor did the
ALJ note, or discuss, it. On appeal, Rutherford urged that the
ALJ was required to consider her obesity explicitly and,
therefore, remand of the case was required. We noted that the
references to obesity in the doctors’ reports were sufficient to
put the ALJ on notice of the impairment, which was factored
indirectly, although not explicitly, in the ALJ’s determination.
We then concluded that Rutherford’s claim would fail in any
event, because Rutherford never argued that her obesity
impacted her job performance.
Here, by contrast, Diaz asserted – and the ALJ
specifically determined – that Diaz’s obesity constituted a severe
impairment. Further, we cannot conclude, as we did in

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See, e.g., Villano v. Astrue, 556 F.3d 558, 563 (7th Cir.3
2009) (remanding where obesity was noted as a severe
impairment, because the “ALJ failed to analyze the combined
effect of Villano’s obesity and her other impairments[,]”
including arthritis in her right knee); Celaya v. Halter, 332 F.3d
1177, 1182 (9th Cir. 2002) (“Given the potential effect of
obesity on these conditions [diabetes and hypertension], the ALJ
had a responsibility to consider their interactive effect.”);
Clifford v. Apfel, 227 F.3d 863, 873 (7th Cir. 2000) (remanding
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Rutherford, that Diaz’s obesity had no impact, alone or in
combination with her other impairments, on her workplace
performance. To the contrary, Diaz’s morbid obesity would
seem to have exacerbated her joint dysfunction as a matter of
common sense, if not medical diagnosis. See Clifford, 227 F.3d
at 873 (noting significant relationship between obesity and
severe arthritis of the knees). SSR 02-1p also underscores the
interplay between obesity and joint dysfunction, mobility, and
musculoskeletal function. Although in Rutherford we expressed
some willingness to view the reference to the reports of the
claimant’s examining physicians as constituting adequate,
implicit treatment of the issue by the ALJ, we decline to do so
here, where Diaz’s obesity was urged, and acknowledged by the
ALJ, as a severe impairment that was required to be considered
alone and in combination with her other impairments at step
three.
Accordingly, the District Court’s critical determination
– that the ALJ’s citation of reports by doctors who were aware
of Diaz’s obesity sufficed – was error. Were there any
discussion of the combined effect of Diaz’s impairments, we
might agree with the District Court. However, absent analysis
of the cumulative impact of Diaz’s obesity and other
impairments on her functional capabilities, we are at a loss in
our reviewing function. In Burnett, we remanded to the ALJ3

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to the ALJ to “adequately develop the record and, if necessary,
obtain expert opinions” because “the record does not indicate
that the ALJ properly considered the aggregate effect of all
Clifford’s ailments [including obesity]); Scott v. Heckler, 770
F.2d 482, 487 (5th Cir. 1985) (remanding because the ALJ
failed to “consider[] the combination or ‘cumulative impact’ of
all of Scott’s [claimant’s] physical problems[,]” including
obesity); see also Hamby v. Astrue, 260 Fed. Appx. 108, 112
(10th Cir. Jan. 7, 2008) (remanding because the ALJ “failed to
give adequate consideration to the effect of Ms. Hamby's obesity
in combination with her other severe impairments,” and because
“the ALJ provided no discussion of the effect of obesity on Ms.
Hamby’s other severe impairments.”); Kennedy v. Astrue, 247
Fed. Appx. 761, 768 (6th Cir. Sept. 7, 2007) (remanding
because the “record contains nothing to indicate that any effort
was made to determine what, if any, effect Kennedy’s
[claimant’s] obesity has on her current level of physical
functioning”); Petersen v. Barnhart, 213 Fed. Appx. 600, 605
(9th Cir. Dec. 20, 2006) (remanding to agency to “develop the
factual record necessary to determine the impact of Petersen’s
[claimant’s] obesity” because the ALJ did not discuss claimant’s
obesity and thus failed “to determine the effect of a [the]
claimant’s obesity on her other impairments, as well as its effect
on her overall health and ability to work, given the existence of
other impairments.”); cf. Marcia v. Sullivan, 900 F.2d 172, 176
(9th Cir. 1990) (“In determining whether a claimant equals a
listing under step three of the Secretary’s disability evaluation
process, the ALJ must explain adequately his evaluation of
alternative tests and the combined effects of the impairments.”).
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where his summary conclusion omitted any explanation or
reasoning. 220 F.3d at 119-20. We must vacate and remand
here as well. Surely the ALJ, having recognized obesity as an
impairment, should determine in the first instance whether, and
to what extent, Diaz’s obesity, in combination with her asthma,

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In Rutherford, we cited as support for our decision an4
opinion of the Seventh Circuit court of appeals, Skarbek v.
Barnhart, 390 F.3d 500 (7th Cir. 2004) (per curiam). There, as
in Rutherford, the ALJ did not discuss, much less determine,
whether the claimant’s obesity constituted a severe impairment.
Here, by contrast, the ALJ specifically determined that Diaz’s
obesity constituted a severe impairment. Accordingly, the
situation here more closely resembles the facts in a subsequent
decision of the Seventh Circuit court of appeals, Villano, 556
F.3d at 561-63. There, the court remanded because the ALJ –
despite identifying the claimant’s obesity as a severe impairment
– failed to analyze the cumulative impact of this condition and
her other impairments, including arthritis in her right knee.
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diabetes, arthritis, back pain, and hypertension, impacted her
workplace performance. See INS v. Ventura, 537 U.S. 12, 164
(2002) (“[T]he proper course, except in rare circumstances, is to
remand to the agency for additional investigation or
explanation.”).
Diaz also objects to the ALJ’s assignment of controlling
weight to three consultative examinations, over an opinion
offered by Dr. Fahreet Noor, a physician with the New Jersey
Division of Disability Determination Services, who testified
regarding Diaz’s arthritis. The three doctors relied upon by the
ALJ – Drs. Merlin, Potashnick, and Tiersten – issued fairly
perfunctory reports after brief exams and noted Diaz’s
successful navigation of the examining table. Dr. Noor, on the
other hand, noted severe arthritic changes, and limited range of
motion, in Diaz’s knees. AR 252.
In evaluating medical reports, the ALJ is free to choose
the medical opinion of one doctor over that of another. Cotter v.
Harris, 642 F.2d 700, 705 (3d Cir. 1981). However, “[w]hen a
conflict in the evidence exists, the ALJ may choose whom to

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In any event, Dr. Fechner testified that a knee x-ray, while5
helpful, is not necessary to detect crepitus:
Dr. Noor (phonetic) said there were, well he said
moderate to severe arthritic changes in the knees,
I don’t know, I don’t see where he’s looking at an
x-ray, but he found market crepitis [sic], both
knees and ankles. Crepitis [sic] is when you flex
and then extend the knee of the patient and you
can actually feel the crunching of the bone against
bone. So it shows fairly severe arthritis. I don’t
think one needs an x-ray to know that she has
that, but it would have been nice to have one.
AR 44 (emphasis added).
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credit but cannot reject evidence for no reason or for the wrong
reason. The ALJ must consider all the evidence and give some
reason for discounting the evidence she rejects.” Plummer, 186
F.3d at 429 (internal citation omitted).
Here, Dr. Noor observed that Diaz had “crepitus,” and
Dr. Fechner noted that this audible “crunching of the bone
against bone” reflected fairly severe arthritis. AR 44. Although
the government maintains that Dr. Fechner was critical of Dr.
Noor’s detection of crepitus, which was not based on an x-ray
or MRI of Diaz’s knee, the ALJ does not mention, much less
analyze, Dr. Fechner’s comments. AR 43-44.5
The ALJ’s dismissal of Dr. Noor’s diagnosis – without
explanation – is particularly troubling, because Dr. Patel, Diaz’s
treating doctor, as well as the physicians upon whom the ALJ
relied, documented Diaz’s arthritis. Dr. Patel repeatedly notes
Diaz’s swollen legs, arthritis, and complaints of joint pain in her
knees. AR 301, 303, 318-19; see Plummer, 186 F.3d at 429

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(quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987))
(noting that “[t]reating physician’s reports should be accorded
great weight, especially “when their opinions reflect expert
judgment based on a continuing observation of the patient’s
condition over a prolonged period of time”). Dr. Merlin also
observed a “history of arthritis,” albeit one that was stable. AR
265. Dr. Potashnick’s examination notes, similarly, reflect
Diaz’s complaints about pain in her left knee – complaints that
were substantiated by Potashnick’s examination findings. AR
373-75. Although he found no crepitus, Dr. Potashnick
specifically noted that the “left knee was tender on palpation of
patellofamoral joint”; that Diaz had a “[l]ongstanding history of
lower back and left knee pain”; and that an “[e]xamination
findings are supportive of left knee arthritis.” AR 375. Dr.
Miranda found, moreover, that Diaz’s complaints of pain in
multiple joints and back due to arthritis were substantiated by
the x-ray and clinical evidence in the record. AR 8. In fact, Dr.
Tiersten alone found no “joint effusion, inflammation, or
instability.” AR 385.
In short, while the ALJ may certainly credit the opinions
of certain doctors over others, here Dr. Noor’s diagnosis of
severe arthritis was supported by probative evidence in the
record. Yet, the severity of her arthritis and her significant joint
pain were downplayed by the ALJ. On remand, the ALJ should
reconsider this condition, and its severity, alone and in
combination with her other impairments, including obesity.
III.
In determining whether there is substantial evidence to
support an administrative law judge’s decision, we owe
deference to his evaluation of the evidence, assessment of the
credibility of witnesses, and reconciliation of conflicting expert

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opinions. However, there are cases where we cannot ascertain
whether the ALJ truly considered competing evidence, and
whether a claimant’s conditions, individually and collectively,
impacted her workplace performance. This is one such case.
Accordingly, we will VACATE the Order of the District
Court and REMAND to the District Court with instructions to
remand to the Commissioner for further proceedings consistent
with this Opinion.

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