VELEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Robert B. Kugler on 12/23/2013. (tf, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
SANTA VELEZ
:
:
Plaintiff,
:
Civil No. 12-7592 (RBK)
:
v.
:
OPINION
:
CAROLYN W. COLVIN, Acting
:
Commissioner of Social Security,
:
:
Defendant.
:
___________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court on the appeal filed by Plaintiff Santa Velez from the
decision of the Commissioner of Social Security (the “Commissioner”) denying Plaintiff
disability insurance benefits (“DIB”) and supplemental security income (“SSI”) pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g). For the reasons
expressed below, the Court will vacate the Commissioner’s decision that Plaintiff is not entitled
to DIB and SSI, and remand the matter to the Administrative Law Judge (“ALJ”).
I.

BACKGROUND
A. Procedural History
On December 4, 2006, Plaintiff filed applications with the Social Security Administration

(the “Administration”) for DIB and SSI, alleging that she became disabled on June 1, 2005. Tr.
188-99. 1 Plaintiff alleged disability due to back and neck problems, a knee injury, depression,

1

The Court notes that the ALJ Decision of June 10, 2010 lists the filing date of Plaintiff’s claim as November 8,
2006 (Tr. 73). The Court assumes that the correct date for Plaintiff’s Applications for DIB and SSI is the date listed
on the Applications themselves—December 4, 2006. Tr. 188, 196.

and osteoporosis. Tr. 223. Plaintiff’s claim was denied on April 25, 2007. Tr. 91-96. Plaintiff’s
claim was denied again on reconsideration on August 20, 2008. Tr. 101-06. Thereafter, Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 107-09. On April 14,
2010, Plaintiff appeared before ALJ Joseph Hillegas. Tr. 73. On June 10, 2010, the ALJ found
that Plaintiff was not disabled within the meaning of the Social Security Act at any time between
Plaintiff’s alleged disability onset date of June 1, 2005 and the date of the ALJ’s decision. Tr.
73-80. Plaintiff then sought review of the ALJ’s decision by the Appeals Counsel, which
vacated the ALJ’s decision and remanded the case with instructions to make additional findings
on May 9, 2011. Tr. 86-90. On remand, Plaintiff again appeared before ALJ Hillegas on July
15, 2011. Tr. 44-65. On September 15, 2011, the ALJ again found that that Plaintiff was not
disabled within the meaning of the Social Security Act. Tr. 10-19. The Appeals Council denied
Plaintiff’s request for review of this decision by the ALJ on October 17, 2012. Tr. 1. Plaintiff
then filed this action on December 12, 2012, seeking district court review of the ALJ’s decision.
B. Plaintiff’s Physical Condition and Medical History
Plaintiff’s alleged disability is caused by depression and anxiety, as well as various
physiological disorders. The Court describes her impairments to the extent necessary for this
Opinion.
The record indicates that in 2004, Plaintiff began treatment with Dr. Jatin Gandhi, an
orthopedist, for back pain, hip pain, and other orthopedic complaints. Tr. 14, 327-38. In 2005,
Plaintiff was referred by Dr. Gandhi to Dr. Sharan Rampal, a neurologist, for severe low back
pain radiating into her hips, accompanied by tingling and numbness. Tr. 14, 311. An MRI
showed that Plaintiff had a bulging disc in her lumbar spine. Tr. 350. On July 25, 2005, Dr.

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Rampal gave her a lumbar epidural injection to alleviate her pain. Tr. 310. On September 19,
2005, Plaintiff received a sacroiliac block injection in a further attempt to relieve the pain. Tr.
306. Dr. Rampal also recommended an additional epidural injection to the lumbar spine for this
condition. Tr. 306-07. Records show that Plaintiff also treated for a right knee injury that she
sustained in a fall in a supermarket in 2006. Tr. 383. She received an MRI of the knee, which
was read as “essentially unremarkable,” except for a “subtle tear of the posterior horn of the
medial meniscus.” Tr. 341. In October, 2006, Plaintiff underwent arthroscopic debridement
surgery for the knee condition. Tr. 359.
Plaintiff also sought treatment with Dr. Stephen Soloway starting in June, 2007, for
decreased range of motion in her elbows, wrists and knees, as well as left hip and bilateral hand
pain. Tr. 453-61. Dr. Soloway found that she had seronegative rheumatoid arthritis,
osteoarthritis of the knees, hips, hands, wrist, feet and ankles, cervical and lumbar disc disease,
osteoporosis, and accelerated bone loss. Tr. 453. Dr. Soloway subsequently administered
injections in an effort to treat Plaintiff’s symptoms. Tr. 454. Plaintiff also has been diagnosed
with hypertension and diabetes. Tr. 453.
Plaintiff was evaluated by Dr. Khona Nithyashuba on March 15, 2007, at the request of the
Division of Disability Determination Services of the New Jersey Department of Labor. Tr. 409.
Dr. Nithyashuba noted her complaints related to her neck, back and knees, as well as her history
of the epidural injection and knee surgery. Tr. 409. He also recorded that she complained of
depression since 2005 and that she stated that she “sleeps all the time and she is tearful all the
time.” Tr. 409. Dr. Nithyashuba’s diagnoses were degenerative joint disease of the back and knee,

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depression, and osteoporosis. He indicated “minimal findings during this examination with most
subjective complaints of pain.” Tr. 411.
Dr. Isabella Rampello, a state agency medical consultant, subsequently reviewed Plaintiff’s
medical records upon request of the Administration, and completed a Physical Residual Functional
Capacity (“RFC”) Assessment. Tr. 438. She found that Plaintiff could sit for about six hours in
an eight-hour workday, and stand or walk for about six hours. Tr. 439. She indicated that Plaintiff
could lift and carry up to twenty pounds occasionally and ten pounds frequently, but that Plaintiff
could only occasionally climb stairs, stoop, kneel, crouch or crawl, and could never climb a ladder,
rope or scaffold. Tr. 439-40.
As a result of these physiological impairments, Plaintiff described experiencing pain when
she stands for a prolonged period of time. Tr. 29. She also indicated that she cannot comfortably
sit for a long time. Tr. 30. She further claims that she experiences pain in her feet when she drives
a car for “a half an hour or an hour.” Tr. 31. Plaintiff testified that she could only walk
approximately one block at most before she needs to sit down and take a break. Tr. 39. She testified
that she was unable to remain standing for longer than forty-five minutes, and unable to sit for
longer than thirty minutes at a time. Tr. 39. She also indicated that she was unable to lift and carry
more than ten pounds. Tr. 40.
With respect to her psychological problems, Plaintiff reported initially treating for
depression as early as 1980, when she received treatment for approximately two months. Tr.
415. Plaintiff also indicates that she was hospitalized for one to two months for psychiatric
problems in 1986 in Brooklyn, New York, because her marriage broke down. Tr. 494. More
recently, Plaintiff sought treatment at the Cumberland County Guidance Center in 2006 and

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2007, and again in 2009 and 2010. Tr. 476-80; 606-10. Plaintiff was diagnosed by her treating
doctors with major depressive disorder. Tr. 606. Her doctor also indicated that she has suffered
from anxiety, insomnia, and occasional suicidal ideas. Id. She has been placed on medications
for these conditions, including Vistaril, Effexor and Trazodone. Tr. 608.
On March 27, 2007, Plaintiff was seen by Dr. Kim Arrington for a consultative
psychiatric evaluation. Dr. Arrington noted that Plaintiff indicated that she left her last job in
2005 due to depression and had not worked since. Tr. 415. At the time of her evaluation with
Dr. Arrington, Plaintiff reported that she sometimes thought of suicide but “changes her mind by
thinking about religion.” Tr. 416. At the time of that evaluation, Plaintiff traced her depressive
symptoms back to a car accident in 2002. Id. Plaintiff reported spending “her days watching TV
and sometimes socializing with friends.” Tr. 417. Dr. Arrington diagnosed Plaintiff with major
depressive disorder with psychotic features, generalized anxiety disorder and “rule out
posttraumatic stress disorder.” Tr. 418. She recommended that Plaintiff continue with her
psychiatric treatment. Id. Dr. Arrington indicated that Plaintiff was “able to follow and
understand simple instructions and directions,” although she struggled to “maintain attention and
concentration.” Id. She further indicated that Plaintiff “may be able to maintain a regular
structure if it is structured, and supported. She will have difficulty learning new tasks and
performing complex tasks. She appears able to make appropriate decisions and relate adequately
with others.” Id.
Plaintiff was also seen by Dr. Lewis Lazarus, Ph.D., of the New Jersey Division of
Disability Determination Services on June 27, 2008. This was a consultative examination at the
request of the Administration. Tr. 492-95. Dr. Lazarus noted her treatment with Cumberland

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County Guidance Center. Tr. 494. He also commented on Plaintiff’s history of psychiatric
treatment dating back to the 1980’s. Id. Dr. Lazarus described Plaintiff as “friendly” and
indicated that her “manner of relating and social skills were adequate.” Tr. 494. Dr. Lazarus
found that the examination results were “somewhat” consistent with her allegations, “but not
entirely.” Tr. 495. Dr. Lazarus reported Plaintiff’s diagnosis as “pain disorders, associated with
both psychological factors and a general medical condition,” and also “Cognitive disorder,
NOS.” Id. He recommended continued treatment and follow up for her cognitive defects, as
well as “a vocational assessment and rehabilitation . . . in order to assist the [Plaintiff] in finding
an appropriate vocation given her noted work history and current level of functioning.” Id. He
also noted that Plaintiff “may have some difficulties with following and understanding complex
instructions because of . . . memory impairments, as well as difficulties with attention.” Id.
After the evaluation of Dr. Arrington, but before that of Dr. Lazarus, Plaintiff’s
psychological treatment records were reviewed by Dr. Jane Curran for the purposes of
completing a Mental RFC Assessment. Tr. 434. Dr. Curran found that claimant was
“moderately limited” in several areas, particularly those relating to following instructions and
concentrating. Tr. 434-45. Dr. Curran did not find that Plaintiff was “markedly limited” in any
psychological category. Id. She indicated that attempts to obtain the treatment records from
Cumberland County Guidance Center had been unsuccessful. Tr. 436. Dr. Curran concluded
that Plaintiff could “make simple decisions, adapt to routine change and respond appropriately to
others.” She also found that Plaintiff could “meet the basic demands of unskilled work” from a
psychological perspective. Id.

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Plaintiff evidently ceased treatment with mental health professionals between July 2007
and March 2009, although she continued to take Vistaril and Effexor. Tr. 608-10. In 2009, she
returned to the Cumberland County Guidance Center, and on August 17, 2009, a Dr. E. Balita,
from that facility, completed an examination report indicating that Plaintiff should not work for
the period from June 17, 2009 through November 30, 2009 due to her psychological
impairments. Tr. 606-07.
C. Plaintiff’s Work History
Plaintiff worked as a floor worker at a costume company from 2000 through 2002. Tr.
237-38. She also reported past work as a housekeeper from 1996-1998, and 2002-2003, a preschool teacher’s assistant in 2003, a home health aide in 2004, and as a cook in 2005. Tr. 61,
224, 237. Plaintiff never had a job that did not involve being on her feet all day. Tr. 61. At the
costume company, she reported picking up materials, carrying light items that weighed less than
ten pounds, and standing and walking for eight hours per day. Tr. 238. As a housekeeper, she
made beds, cooked meals, and helped her client dress. Tr. 224. As a teacher’s assistant, Plaintiff
helped the children with homework, and assisted the teacher with tasks. Tr. 239. Plaintiff
worked as a cook at a fast food restaurant for five months in 2005, but states that she left because
of depression. Tr. 34-35. She was required to stand all day at that job, and prepared and cooked
various food items. Tr. 242. Plaintiff most recently worked as a crossing guard in for
approximately one month in the winter of 2009-2010. Tr. 29. She stated that she could not
continue with that job because she became scared when she was almost struck by a car, and also
had pain from all the standing that she had to do in that capacity. Id.
II.

STANDARD FOR REVIEW OF COMMISSIONER’S DECISION

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District court review of the Commissioner’s final decision is limited to ascertaining
whether the decision is supported by substantial evidence. Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999) (citing 42 U.S.C. § 405(g)). Substantial evidence is “‘more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000) (quoting Plummer v. Apfel,
186 F.3d 422, 427 (3d Cir. 1999)). If the Commissioner’s determination is supported by
substantial evidence, the Court may not set aside the decision, even if the Court “would have
decided the factual inquiry differently.” Fargnoli v. Masanari, 247 F.3d 34, 38 (3d Cir. 2001)
(citing Hartranft, 181 F.3d at 360). A district court may not weigh the evidence “or substitute its
conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.
1992).
Nevertheless, the reviewing court must be wary of treating “the existence vel non of
substantial evidence as merely a quantitative exercise” or as “a talismanic or self-executing
formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (“The search for
substantial evidence is thus a qualitative exercise without which our review of social security
disability cases ceases to be merely deferential and becomes instead a sham.”). The Court must
set aside the Commissioner’s decision if the Commissioner did not take into account the entire
record or failed to resolve an evidentiary conflict. Schonewolf v. Callahan, 972 F. Supp. 277,
284-85 (D.N.J. 1997) (“Unless the [Commissioner] has analyzed all evidence and has
sufficiently explained the weight he has given to obviously probative exhibits, to say that his
decision is supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are rational.”)

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(quoting Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)). Furthermore, evidence is not
substantial if it constitutes “not evidence but mere conclusion,” or if the ALJ “ignores, or fails to
resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of Health & Human
Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114).
III.

DISCUSSION
The Commissioner conducts a five-step inquiry to determine whether a claimant is

disabled, and therefore eligible for DIB and SSI benefits. 20 C.F.R. § 404.1520(a)(4); Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). The Commissioner first evaluates whether the
claimant is currently engaging in any “substantial gainful activity.” Such work activity bars the
receipt of benefits. 20 C.F.R. § 404.1520(b). The Commissioner then ascertains whether the
claimant is suffering from a severe impairment, meaning “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c). If the claimant does not have such a severe
impairment that limits her ability to do basic work activities, the claim will be denied. Id. If the
Commissioner finds that the claimant’s condition is severe, the Commissioner moves to the third
step and determines whether the impairment meets or equals the severity of a listed impairment.
20 C.F.R. § 404.1520(d). If the condition is equivalent to a listed impairment, then it is
presumed that the claimant is entitled to benefits; if not, the Commissioner continues to step four
to evaluate the claimant’s residual functional capacity (“RFC”) and analyze whether the RFC
would enable the claimant to return to her “past relevant work.” 20 C.F.R. § 404.1520(e). The
ability to return to past relevant work precludes a finding of disability. 20 C.F.R. § 404.1520(f).
If the Commissioner finds the claimant unable to resume past relevant work, in the fifth and final

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step, the Commissioner determines whether the claimant can adjust to other work. If the
claimant has the capacity to perform other work available in significant numbers in the national
economy, based upon factors such as the claimant’s age, education and work experience, the
claimant will be found not disabled. 20 C.F.R. § 404.1520(g). If the claimant cannot make an
adjustment to other work, she will be found to be disabled. Id.
In his first decision, the ALJ began his analysis by finding that Plaintiff had not engaged
in substantial gainful activity since her alleged disability onset date of June 1, 2005. Tr. 75.
Moving to the second step, he found that she had severe impairments that affected her ability to
do basic work activities. Id. He found that the severe impairments related to her physical
condition, and found that her mental impairment was not severe as it did not “cause more than
minimal limitation in the claimant’s ability to perform basic mental work activities.” Id.
Moving to the third step, the ALJ found that Plaintiff’s impairment did not meet or exceed one of
the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. Tr. 76. The ALJ reached a
decision at the fourth step, where he determined that Plaintiff had the RFC to perform a full
range of light work, which would permit her to return to her past work as a floor worker. Tr. 7679. Although the ALJ did not need to make findings as to step five, he indicated that “there are
other jobs that exist in significant numbers in the national economy that the claimant also can
perform.” Tr. 79.
After the matter was remanded to the ALJ by the appeals council, with the direction to
further evaluate Plaintiff’s mental impairments, the ALJ arrived at the same ultimate conclusions
at all steps of the analysis. Tr. 12. The ALJ again resolved the case on the grounds that Plaintiff
had the RFC to return to her past work. Tr. 18. However, in his second decision, the ALJ

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explicitly discussed Plaintiff’s psychiatric disorders and treatment in detail in explaining how he
determined her RFC. He indicated that she had no psychiatric treatment between July 3, 2007
and March 18, 2009, and that a progress note on November 24, 2009 indicated that Plaintiff “had
‘(no) complaints’ and was sleeping well.” Tr. 15. He observed that her Trazodone was
discontinued on February 22, 2010 and there was no record of treatment since that date. Tr. 16.
The ALJ also observed Dr. Balita’s opinion that Plaintiff was disabled, but discounted
that opinion “because it is inconsistent with the clinical findings and diagnostic studies.” Tr. 16.
Specifically, the ALJ believed it was inconsistent with the progress notes, her discontinuation of
Trazodone, and her cessation of treatment. Id. The ALJ also concluded, based upon the
findings of Dr. Arrington, Dr. Lazarus, and Dr. Curran, that “her depression does not cause
significant limitation in the activities of daily living, or any significant vocational limitations.”
Tr. 17. He also found that “her symptoms are not of such severity, frequency, or duration as to
preclude the performance of unskilled light work which entails only simple repetitive tasks.” Id.
The ALJ pointed to Plaintiff’s testimony that although “she feels depressed . . . her depression
was under control, as she gets nervous and tense but tries to control it.” Id. He observed that
Plaintiff testified that she voluntarily stopped going to therapy because she did not like it. Id. He
further cited her testimony that she socializes with her adult children, friends and neighbors, and
helps care for her two-year old grandchild. Id.
Plaintiff claims that the ALJ erred in two ways. First, she argues that the ALJ failed to
consider the opinions of the psychological experts and provide an adequate rationale for his
conclusions when determining the extent of her RFC with respect to psychological impairments.
Pl. Br. at 11. She thus argues that the RFC arrived at by the ALJ is not based upon substantial

11

evidence, and it should reflect additional psychological limitations. Second, she argues that the
ALJ’s conclusion that Plaintiff can either return to past relevant work or perform alternative
work is not supported by substantial evidence. She argues that the determination that Plaintiff
can return to her past work is in conflict with the RFC stated by the ALJ, and the conclusion that
she can adjust to other work is improper because there was no testimony by a vocational expert.
Id. at 19-21. These arguments are addressed in turn.
A.

The ALJ’s Conclusion as to Plaintiff’s Residual Functional Capacity was Based

Upon Substantial Evidence
Plaintiff believes that the ALJ’s assessment of her RFC was not based on substantial
evidence, particularly his conclusion that her psychological impairments did not cause “any
significant vocational limitations.” Tr. 17. Plaintiff argues that the ALJ erred in misconstruing
and giving undue weight to the opinions of Dr. Lazarus, Dr. Arrington, and Dr. Curran, and in
improperly rejecting the opinion of Dr. Balita. With respect to all of them, Plaintiff argues that
the opinion of a treating physician such as Dr. Balita is generally entitled to more consideration
and weight than that of a one-time examiner such as Dr. Lazarus and Dr. Arrington, or a
reviewing doctor who never examined Plaintiff, such as Dr. Curran. Pl. Br. at 14. She also
argues that the ALJ improperly gave weight to the fact that Plaintiff stopped taking one of her
drugs and her testimony that she watches her grandchild. Id. at 12-13, 17. As a result, Plaintiff
does not believe that substantial evidence existed that she had the “mental ability to do basic
work activities.” 20 C.F.R. § 404.1520(c). 2
2

It is unclear whether Plaintiff also means to challenge the ALJ’s findings with respect to her psychological
disorders at step two of the analysis, where he found that these disorders were not “severe.” This argument is
asserted, but not discussed in detail in Plaintiff’s brief, but is argued in more detail in her reply brief. See Pl. Br. at
24; Pl. Reply at 2-3. Although the ALJ found “severity” based only upon physiological disorders, Plaintiff would

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The ALJ described Plaintiff’s RFC as follows:
[S]he can lift and carry twenty pounds occasionally and ten pounds frequently, can stand
and walk six hours in an eight hour workday, and can sit for six hours in an eight-hour
workday, as required for light work . . . . Further, she retains the ability to understand,
remember and carry out simple instructions, make judgments that are commensurate with
the functions of unskilled work, make simple work related decisions, respond
appropriately to coworkers and supervisors, and deal with changes in a routine work
setting.
Tr. 13. In explaining his findings as to Plaintiff’s psychological impairments, the ALJ
indicated that although she suffers from depression, it “does not cause significant limitation
in activities of daily living, or any significant vocational limitations.” Tr. 17. He believed
that the evidence supported Plaintiff’s ability to perform work that involves simple tasks and
does not involve a significant amount of stress. Id.

have nothing to gain by having the finding reversed at step two as to the psychological disorders. Plaintiff’s claim
was not denied at step two, and the ALJ moved on, eventually finding that the claim should be denied at step four.
Even if an ALJ “erroneously conclude[s] that some of [a claimant’s] other impairments were non-severe, any error
[is] harmless, if the ALJ found in the claimant’s favor at that step.” Salles v. Comm’r of Soc. Sec., 229 F. App’x
140, 145 n.2 (3d Cir. 2007). See also Ross v. Astrue, Civ. No. 08-5282, 2010 WL 777398 (D.N.J. Mar. 8, 2010)
(indicating that “where the Commissioner finds that the claimant suffers from even one severe impairment, any
failure . . . to identify other conditions as being severe does not compromise the integrity of the analysis.”). Because
the ALJ found in Plaintiff’s favor at step two, the analysis would have been no different had the ALJ found that
Plaintiff also cleared the “severe” hurdle based on psychological disorders. The Court does not agree with
Plaintiff’s further argument in this regard that if the ALJ’s finding “at Step Two is not supported by substantial
evidence, then the subsequent finding of the [ALJ] as to the Plaintiff’s residual functional capacity . . . is likewise
not supported by substantial evidence.” Pl. Reply at 2. Clearly, a finding in a Plaintiff’s favor at the second step
does not equate to a finding in her favor at steps four and five, or else it would not be necessary to have the fourth
and fifth steps. The idea that this Court can review the ALJ’s findings at step two, where the ALJ found in
Plaintiff’s favor, is without merit, and thus this Court will consider only the ALJ’s finding in steps four and five in
this Opinion.

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In arriving at this conclusion, the ALJ referred to the report of Dr. Lazarus, who
completed a consultative examination of Plaintiff. He summarized the findings of Dr.
Lazarus as follows:
Dr. Lazarus reported that the claimant would have difficulty maintaining attention and
learning new tasks. But he also reported that her speech was fluent and clear with
adequate expressive and receptive language functions; her thought processes were
coherent and goal-directed with no evidence of delusions or paranoia; and her affect was
appropriate. Further, her motor behavior and eye contact were both normal. Dr. Lazarus
opined that vocational rehabilitation might help the claimant find an appropriate vocation,
which suggests that she could do low-stress work which entails only simple, repetitive
tasks.
Tr. 17. Plaintiff argues that the ALJ mischaracterized the findings of Dr. Lazarus because he did
not note that Dr. Lazarus found that Plaintiff “might have some difficulties with following and
understanding complex instructions because of noted memory impairments, as well as
difficulties with attention.” Pl. Br. at 15. She also argues that the conclusion that Plaintiff
“could do low-stress jobs which entail only simple, repetitive tasks” is “an untenable leap” from
what Dr. Lazarus actually found, and was a result of the ALJ “imagining what Dr. Lazarus
means.” Pl. Br. at 15-16. After reviewing Dr. Lazarus’s report, the ALJ did not mischaracterize
his findings. The ALJ is not required to quote everything in an examining physician’s report.
See Hur v. Barnhart, 94 F. App’x. 130, 133 (3d Cir. 2004) (the ALJ need not discuss “every
tidbit of evidence included in the record.”). The ALJ did, in fact, cite the opinion of Dr. Lazarus
that “the claimant would have difficulty maintaining attention and learning new tasks.” Tr. 17.

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The finding by the ALJ that Plaintiff “could do low-stress work” involving “simple, repetitive
tasks” is not a leap of logic with no rational basis, as Plaintiff argues. It is based on substantial
evidence from the report of Dr. Lazarus. It seems clear that the ALJ found that such a low-stress
job involving simple tasks would be appropriate because Dr. Lazarus found that she would have
difficulty following complex instructions. When Dr. Lazarus recommended a vocational
assessment and rehabilitation “in order to assist the claimant in finding an appropriate vocation,”
he envisioned Plaintiff being able to do some kind of work. Tr. 495. The ALJ’s conclusion that
Plaintiff could work at a low-stress job therefore has a rational basis in the findings of Dr.
Lazarus.
Plaintiff similarly argues that the ALJ “left out a few” of Dr. Arrington’s findings, and
that “[t]he comments by the [ALJ] about [Dr. Arrington’s] report are factually wrong.” Pl. Br. at
14. Specifically, she argues that the ALJ did not properly consider Dr. Arrington’s findings
because he left out such findings as Plaintiff “struggling to maintain attention and
concentration,” and that she would “have difficulty learning new tasks and performing complex
tasks.” Plaintiff also points to the ALJ’s omission of the section of Dr. Arrington’s report that
indicates that “[t]he results of the present evaluation appear to be consistent with psychiatric
problems which may significantly interfere with the claimant’s ability to function on a daily
basis. Id. at 15. Again, the Court finds no error in the ALJ’s failure to quote all of Dr.
Arrington’s findings. His decision that Plaintiff could perform simple, repetitive tasks is not
inconsistent with Dr. Arrington’s finding that “[v]ocationally, the claimant is able to follow and
understand simple instructions and directions” and that “[s]he may be able to maintain a regular
schedule if it is structured, and supported.” Tr. 415.

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Plaintiff further complains about the ALJ’s conclusions from the assessment of Dr.
Curran. She argues that Dr. Curran never examined Plaintiff, but merely reviewed her file, and
at the time of the file review, did not have Dr. Lazarus’s report or all of the records from
Cumberland County Guidance Center. Pl. Br. at 16. She also argues that the ALJ did not
mention that Dr. Curran checked a box indicating that Plaintiff would be “moderately limited” in
the ability to maintain attention and concentration for extended periods of time. Id.
An ALJ may give weight to the opinions of non-examining state physicians when the
administrative record supports those opinions. See Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir.
1991) (noting that there are circumstances in which an ALJ may consider opinions of nonexamining state agency physicians when those opinions contradict the opinions of treating
physicians). Here, the non-examining physician, Dr. Curran, found that Plaintiff “can make
simple decisions, adapt to routine change and respond appropriately to others. She can meet the
basic mental demands of unskilled work.” Tr. 436. This was consistent with the ALJ’s finding
that Plaintiff could perform such basic, repetitive work. Further, her opinions are supported by
other evidence in the administrative record, such as the findings of Dr. Arrington. Given the
support for Dr. Curran’s assessment, and the evidence that she carefully examined the evidence
before her, the Court finds that the ALJ did not err in giving weight to Dr. Curran’s findings.
Although the ALJ, again, did not cite every part of Dr. Curran’s report that Plaintiff would like to
be cited, his findings are not inconsistent with Dr. Curran’s opinion that Plaintiff was
“moderately limited” in certain areas.
Plaintiff also believes that the ALJ improperly weighed Plaintiff’s decision to stop taking
Trazodone. The ALJ cites the records from Plaintiff’s February 22, 2010 session with

16

Cumberland County Guidance Center where she discontinued this medication because the “client
feels that she can do without the Trazodone.” Tr. 608. Plaintiff argues that it was improper for
the ALJ to consider this, because there is nothing in the record to show that she discontinued the
drug because she was “better.” Pl. Br. at 13. Plaintiff suggests that perhaps it was discontinued
due to undesirable side effects or for some other reason.
The Court finds that the ALJ did not commit error by considering Plaintiff’s
discontinuation of one of her medications. There is substantial evidence in the record that
Plaintiff discontinued the medication because of improvement in her symptoms. Plaintiff
testified that the doctor took her off Trazodone because she was “sleeping better.” Tr. 38. She
also testified that she stopped going to therapy and taking the medication because “I felt better
but, yes, I don’t want medications because it’s ruining my body.” Tr. 52. Thus, although there is
some suggestion that Plaintiff was concerned about some negative effect of the medication, there
is substantial evidence that the primary reason that Plaintiff discontinued her medication was due
to improvement in her symptoms. See also Tr. 479-80, 609-10 (reports on several occasions by
Plaintiff treating doctor that she was “sleeping well.”)
Plaintiff further argues that the ALJ improperly gave weight to Plaintiff’s caring for her
grandchild, arguing that these are “occasional activities” that “do not mean that the Plaintiff is
not impaired. Pl. Br. at 17. She also states, without citing to the record “Does she watch [the
grandchild] on a regular basis or does she watch him alone or without help? No.” Id. The ALJ’s
discussion of Plaintiff’s grandchild appears to be limited to two sentences in the ALJ’s decision,
where he wrote that “[s]he helps take care of her two-year old grandchild” and “[f]urther, she
testified that she helps take care of her two-year old grandchild.” Tr. 14, 17. Aside from

17

observing that this does not seem to be a large factor in the ALJ’s decision, the ALJ did not
misstate anything in those sentences. Plaintiff did testify that she watches her grandchildren. Tr.
41 (“Q: Do you ever watch them? A: Yeah, I watch them.”). She also testified that at one point,
going to her therapist was difficult because she had her grandson at home, suggesting that she
had primary responsibility for supervising the child on some occasions. Tr. 58.
Plaintiff also argues that the ALJ ignored the opinion of Dr. Balita that Plaintiff was
“disabled.” She acknowledges that the ALJ is not bound by the opinion of a treating physician
that a claimant is disabled. Plaintiff argues, however, that if the ALJ “disbelieves Dr. Balita,
then he must base it on more than his own review of the medical evidence and not just his belief
that Dr. Balita is willing to lie and deceive to benefit his patient.” Pl. Br. at 13. This argument is
without merit. The ALJ did not reject Dr. Balita’s conclusion because he believed that Dr. Balita
is a liar. He suggested that Dr. Balita’s opinion was a “well-intentioned effort to help the
claimant gain state benefit payments,” but disagreed with it based upon all of the opinion and
medical evidence discussed in this section, including Plaintiff’s treatment records from
Cumberland County Guidance Center and the opinions of Dr. Arrington, Dr. Lazarus, Dr.
Curran, as well as Plaintiff’s testimony. Tr. 17. An ALJ “need not accept an opinion of a
physician—even a treating physician—if it is conclusionary and brief and is unsupported by
clinical findings.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). The ALJ found that
Dr. Balita’s opinion was “inconsistent with the clinical findings,” as he is entitled to do. Tr. 17.
It is clear that the ALJ’s decision as to Plaintiff’s RFC was based upon “substantial
evidence,” and not “a mere scintilla.” Morales, 225 F.3d at 316. Plaintiff essentially asks the
Court to weigh the evidence and determine that the weight of the evidence supports a different

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conclusion than the ALJ arrived at, which is not the appropriate standard of review. Williams,
970 F.2d at 1182. The ALJ did not conclude that Plaintiff had no psychological impairment.
Rather, his review of the evidence in the record as to Plaintiff’s impairment is evidently the
reason that he found that Plaintiff should be limited to work involving repetitive and simple tasks
and little stress. With respect to Plaintiff’s psychological disorders, the ALJ took into account
the entire record and arrived at a decision after weighing all conflicting evidence. Thus, even if
this Court would have weighed the evidence differently, it cannot disturb the Commissioner’s
final decision on this basis. Schonewolf, 972 F. Supp. at 284-85.
B. Plaintiff’s Ability to Return to Past Relevant Work or to Perform Alternative Work
Plaintiff further argues that even if the ALJ was correct in determining Plaintiff’s RFC,
based on his own description of her vocational capacity, he erred in concluding that she is able to
return to her prior work as a floor worker or to perform alternative work.
1. Plaintiff’s Prior Job as a Floor Worker
If, based on a claimant’s RFC, she would be able to perform the job requirements of a
past work position, she is determined not to be disabled at step four of the analysis, regardless of
whether any job positions are actually available in that trade or industry. 42 U.S.C. §
423(d)(2)(A). At step four, it is a plaintiff’s burden to show that she is not able to perform past
relevant work as it is performed both in her specific past job and in the national economy. See
Andrade v. Secr’y of Health & Human Servs., 985 F.2d 1045, 1052 (10th Cir. 1993) (citing
S.S.R. 82-61). Past relevant work means “work that you have done within the past 15 years, that
was substantial gainful activity, and that lasted long enough for you to learn to do it.” 20 C.F.R.
§ 404.1560(b)(1).

19

The ALJ compared Plaintiff’s RFC with her job duties at a previous job as a floor
worker. Tr. 13, 18. In a Work History Report that Plaintiff completed, she described her
employer, a company called “Ruby’s” as a “costume company” and indicated that she worked
there between 2000 and 2002, and wrote as a description “floor job, pick up materials like
costumes, check bag.” Tr. 237-38. It appears that she also described this employer as a
“[s]ewing factory” during her testimony before the ALJ. Tr. 55. The ALJ found that at this job,
“she stood and walked most of the day and picked up items weighing less than ten pounds, such
as pieces of material. This work was unskilled and light exertionally, as she performed it.” Tr.
13.
The problem with the ALJ’s decision is that Plaintiff’s description of her job places it
outside of her ability to perform based upon the RFC assigned to her in the ALJ’s decision. The
ALJ found the following as to Plaintiff’s RFC:
After careful consideration of the entire record, the undersigned finds that the claimant
has the following residual functional capacity: she . . . can stand and walk six hours in an
eight hour workday, and can sit for six hours in an eight hour workday, as required for
light work . . . .
Tr. 13. However, he found that Plaintiff was not disabled because:
The claimant’s past relevant work as a floor worker (materials handler) did not require
the performance of work-related activities precluded by the above limitations. Thus, the
claimant’s impairments do not prevent her from performing her past relevant work, as
actually and generally performed in the national economy.
Tr. 18.

20

The ALJ’s understanding of Plaintiff’s past work as a floor worker appears to be
almost entirely based upon her self-reported answers to the Work History Report that she
completed on December 10, 2006. Tr. 237-44. In that document, Plaintiff indicated that she
worked eight hours per day, Monday through Friday, and where asked how many total hours
per day she was required to walk, she indicated “all day 8 hrs.” Tr. 238. Similarly, where
she was asked how many hours she was required to stand, she wrote “8 hrs.” Id. There was
no testimony before the ALJ about how long she was required to stand or walk at her prior
job as a floor worker. See Tr. 55. The ALJ evidently considered the Work History Report in
finding that Plaintiff only was required to carry items weighing less than ten pounds at her
floor worker job, as this is indicated in the Report, but was not found in her testimony or
elsewhere in the records. See Tr. 13, Tr. 238. He says nothing in his decision to reconcile
his conclusion that Plaintiff’s RFC permitted her to stand and walk for up to six hours per
day with his conclusion that her past work, as actually performed, required her to walk and
stand for eight hours per day. Although the ALJ summarily concluded that she could also
perform her work as it is generally performed in the national economy, the decision contains
no discussion of the requirements of a floor worker or materials handler job in the national
economy, nor does it suggest that these jobs require less walking or standing than the job as it
was actually performed by Plaintiff. See Tr. 18. 3 Because an ALJ must explicitly indicate
why he rejects evidence in the record that would support a contrary conclusion, and the ALJ

3

To the extent that it is Plaintiff’s burden to also show that she cannot perform the job as it is performed in the
national economy, Plaintiff argues, using the Dictionary of Occupational Titles, that the job description of “materials
handler,” which the ALJ used in his decision, is inconsistent with Plaintiff’s RFC. Pl. Br. at 20-21. This is an
appropriate method of demonstrating how a job is performed in the national economy, and in any event, the
Commissioner does not dispute this issue. See McQueen v. Comm’r of Soc. Sec., 322 F. App’x 240, 244 (3d Cir.
2009).

21

made no mention of the seeming contradiction between Plaintiff’s RFC and her past job
duties, the Court cannot uphold the decision based on the Commissioner’s finding at step
four that Plaintiff is not disabled. See Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994). The
ALJ’s findings at step four failed to resolve a conflict of evidence, and thus was not based
upon substantial evidence. Wallace, 722 F.2d at 1153. 4
2. Plaintiff’s Ability to Perform Other Jobs that Exist in the National Economy
The ALJ’s error at step four does not end the analysis, because the ALJ also made a
finding that Plaintiff can perform other jobs that exist in significant numbers in the national
economy, considering her age, education, work experience, and RFC. This is the fifth and final
step of the disability analysis. At this step, the burden shifts back to the Commissioner to prove
that Plaintiff can perform another job besides past work. Smith v. Comm’r of Soc. Sec., 631
F.3d 632, 634 (3d Cir. 2010). Unlike at step four, jobs that a claimant can perform must actually
be available in the national economy if disability status is to be denied at this step. See 42
U.S.C. § 423(d)(2)(A). The Social Security Agency has set forth regulations in the form of
medical-vocational guidelines, or “grids,” that establish the number and type of jobs available in
the national economy for claimants with exertional impairments. Sykes v. Apfel, 228 F.3d 259,
263 (3d Cir. 2000). “The grids consist of a matrix of four factors—physical ability, age,
education, and work experience,” and indicate, based on a claimant’s qualifications, whether
work exists in the national economy that a claimant can perform. Id. Although the grids yield a
presumption as to whether work is available in the national economy for someone with the

4

The Court notes that although Plaintiff, in her opening brief, pointed out the contradiction discussed in this section,
Pl. Br. at 21, the Commissioner did not attempt to address or explain this issue when responding to Plaintiff’s
arguments related to step four of the analysis. See Def. Br. at 14-15.

22

claimant’s qualifications, claimants may rebut the presumption by offering evidence relating to
their own abilities and evidence that the guidelines do not apply to them. Id. at 264; see Heckler
v. Campbell, 461 U.S. 458, 467 (1983). The grids were developed, in part, to avoid the need for
the Commissioner to rely on the testimony of a vocational expert at every hearing. Campbell,
461 U.S. at 461.
The grids are designed to assess whether work is available that a claimant can
perform based only on her exertional impairment(s). Exertional means an impairment that
affects the claimant’s “ability to meet the strength demands of jobs.” 20 C.F.R. § 404.1569a.
Mental health impairments are generally considered non-exertional, although depression may
affect a person’s exertional capacity. See 20 C.F.R. § 404.1569a(c); S.S.R. 83-14, 1983 WL
31254 at *2 (S.S.A.). Because the “grids do not purport to answer [the] question” of whether
“there are jobs in the national economy that [a claimant] can perform given his combination
of impairments,” an ALJ cannot determine whether a claimant with both exertional and nonexertional impairments is disabled based upon the grids alone. Sykes, 228 F.3d at 270. 5 The
key issue when both types of impairments are involved is whether the claimant’s
“occupational base” is eroded, or diminished. Id. At 265. Erosion of the base occurs when,
because of the non-exertional impairment, the pool of jobs normally available to a claimant
with only the exertional impairment shrinks because of the additional impairment. Id.
Typically, the additional evidence that an ALJ weighs includes the testimony of a vocational
expert at the hearing before the ALJ. See Kuczewski v. Comm’r of Soc. Sec., Civ. No. 12-

5

The Third Circuit recognized that other Circuits have reached different conclusions about the scope of the use of
the grids when a claimant has both types of impairments. See Sykes, 228 F.3d at 268. Of course, this Court is
bound to follow Third Circuit precedent.

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43, 2013 WL 1007684 at *4 (D.N.J. Mar. 12, 2013) (“Since the ALJ recognized that Plaintiff
has both exertional and nonexertional limitations, such vocational evidence was critical to
satisfy the Commissioner’s burden of proof at this stage.”)
The Administration responded to Sykes when it issued an Acquiescence Ruling
(“AR”) in 2001 that set forth guidelines explaining how it would deal with cases involving
both exertional and nonexertional impairments in jurisdictions within the reach of the Third
Circuit in light of Sykes. The AR indicated that in these cases, it would either take or
produce vocational evidence, or provide notice that the Administration is taking
administrative notice regarding erosion of the occupational base. AR 01-1(3), 2001 WL
65745 at *4 (S.S.A.). However, the AR indicated that:
This Ruling does not apply to claims where we rely on an SSR [Social Security Ruling]
that includes a statement explaining how the particular nonexertional limitation(s) under
consideration in the claim being adjudicated affects the claimant's occupational job base.
When we rely on such an SSR to support our finding that jobs exist in the national
economy that the claimant can do, we will include a citation to the SSR in our
determination or decision.
Id.
Following Sykes and the promulgation of AR 01-1(3), the Third Circuit again spoke
on the issue of agency rulemaking as a substitute for vocational expert testimony in Allen v.
Barnhart, 417 F.3d 396 (3d Cir. 2005). The Third Circuit there indicated that although the
Secretary may “rely on an SSR as a replacement for a vocational expert, it must be crystal-

24

clear that the SSR is probative as to the way in which the nonexertional limitations impact
the ability to work, and thus, the occupational base. Id. at 407. 6
Here, the ALJ relied on the “grids” to determine that Plaintiff was not disabled. Tr.
18. He applied Rule 202.21 of the grid, which indicates that an individual under age 49,
limited to light work as a result of a severe medical impairment, with a high school education
or greater, and “skilled or semi-skilled” non-transferrable previous work experience is not
disabled. 20 C.F.R. § 404 Subpart P, App. 2. Plaintiff does not object to this Rule of the grid
being applied to her, but objects that it was improper for the ALJ to base his decision entirely
on the grid without taking vocational expert testimony, due to her combination of exertional
and nonexertional impairments.
Here, the ALJ took no vocational expert testimony, and cited SSR 83-11, 83-12, 8314, and 85-15 in summary fashion when determining that there are jobs that exist in the
national economy that the claimant can perform. Tr. 18. Although the ALJ found that
Plaintiff’s depression and anxiety was not severe enough to preclude her from performing
unskilled light work, he was not “crystal-clear” that any of the SSRs were probative with
respect to the Plaintiff. Id. Although the Commissioner argues that Plaintiff’s occupational
light work base was not eroded, and therefore the ALJ did not need to take vocational expert
testimony, there is no support for such a holding in Third Circuit law. This case is
indistinguishable from Allen. In that case, the Third Circuit remanded to the ALJ where he
made a “conclusory reference to SSR 85-15” instead of “an individualized assessment”
6

Social Security Rulings (“SSRs”) are published under the authority of the Commissioner and are binding on all
components of the Administration. Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990). SSRs do not have the force of
law or regulations, but serve as precedent in deciding other cases when the facts are basically the same. See Allen,
417 F.3d at 402 n.3.

25

where the claimant asserted both physical and mental limitations. Allen, 417 F.3d at 406-07.
The Third Circuit indicated that the ALJ relied “on SSR 85-15 in this instance . . . in
summary fashion . . . as though it resolves the issue. However, SSR 85-15 is a ten-page
ruling that specifically addresses the relationship of different mental impairments to job
activity.” Id. at 404. Here, the ALJ’s discussion of SSR 85-15 is limited to the following
sentence:
If the claimant has solely nonexertional limitations, section 204.00 in the MedicalVocational Guidelines provides a framework for decisionmaking (SSR 85-15)
Tr. 18. The ALJ’s discussion of the SSR here does not appear to be applied in any way to
Plaintiff, and actually seems to be mere boilerplate language that is even more conclusory
than that contained in the decision discussed in Allen. On remand, if the ALJ reaches step
five, he should consider how the specific nonexertional limitations experienced by Plaintiff
would affect her ability to perform tasks in a job available to her in the national economy,
and to what extent, if at all, the occupational base is eroded due to any nonexertional
impairments. The ALJ may accomplish this by explaining how SSR 85-15 or other
regulations are relevant to Plaintiff’s situation, or by an individualized assessment through a
vocational expert.
III.

CONCLUSION
For the foregoing reasons, the Court will vacate the Commissioner’s final decision and

remand the matter for further proceedings consistent with this Opinion. An appropriate order
shall enter today.

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Date: 12/23/2013

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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