SULLIVAN v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Judge Renee Marie Bumb on 11/8/2013. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

MARK SULLIVAN,
Plaintiff,

Civil No. 12-7668 (RMB)

v.

OPINION

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
Richard L. Frankel
Bross & Frankel, P.A.
102 Browning Lane, Building C-1
Cherry Hill, NJ 08003
Attorneys for Plaintiff
Maria Fragrassi Santangelo
United States Attorney’s Office
c/o Social Security Administration
26 Federal Plaza, Room 3904
New York, NY 10278
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:

Plaintiff Mark Sullivan (the “Plaintiff”) seeks judicial
review pursuant to 42 U.S.C. § 405(g) of the final decision of
the Acting Commissioner of Social Security (the “Commissioner”)
denying his application for Disability Insurance Benefits

(“DIB”) and Social Security Supplemental Income (“SSI”).

For

the reasons set forth below, the Court will vacate the decision
of the ALJ and remand.

I.

Background
a) Procedural History

Beginning on October 14, 2009, Plaintiff filed applications
for SSI and DIB, alleging a disability onset date of December
20, 2007.

(Administrative Record “R.” 134-39).

Plaintiff’s

disability onset date was amended to May, 9, 2009 at the
administrative hearing. (R. 30).

Plaintiff’s claims were denied

on March 8, 2010, (R. 59-60), and again on August 20, 2010,
after Plaintiff timely filed a Request for Reconsideration. (R.
61-62).

Plaintiff then filed a request for a hearing before an

Administrative Law Judge (“ALJ”), which was held before the
Honorable Jonathan L. Wesner, ALJ, on May 31, 2011; Plaintiff
appeared at the hearing and was represented by counsel. (R. 2858).
The ALJ issued his determination on August 25, 2011,
finding that Plaintiff was not disabled and denying Plaintiff’s
claim for benefits. (R. 11-23).

Thereafter, Plaintiff filed a

Request for Review of Hearing Decision with the Appeals Council
on October 18, 2011. (R. 8).

The request for review was denied

2

and, thus, the ALJ’s decision became the final decision of the
Commissioner of Social Security on October 12, 2011. (R. 2-6). 1

b) Hearing Testimony
During the ALJ hearing, Plaintiff testified that he was 42
years old and had previously worked in heavy construction.
31-32).

(R.

Plaintiff has not worked since 2008. (R. 31).

Plaintiff suffered a heart attack in May of 2009, his disability
onset date. (R. 30).
With respect to his physical symptoms, Plaintiff testified
that he “can’t really stay in an upright position for long
periods of time,” (R. 32), and that he has pains throughout his
body, including his legs and shoulder, that require him to lay
down or be in different positions throughout the day.

(R. 33).

Plaintiff testified that he has continued to smoke even after
his heart attack. (R. 34).

As a result of the heart attack,

Plaintiff states that he has experienced a loss of strength and
stamina. (R. 42).
Plaintiff stated that he has shoulder pain and that he has
received cortisone treatments.

(R. 35-36).

Plaintiff is right-

handed and testified that his shoulder pain impacts his range of

1

The parties do not address why the request for review by
the Appeals Council on October 18, 2011 is dated after the
Council denied that request on October 12, 2011 (R. 2-8). Thus,
this Court will not deem this discrepancy material for purposes
of the instant analysis.
3

motion, as he can only raise his arm to “almost get it level,
but nothing higher than that.” (R. 36).

As a result, Plaintiff

avers that he has lost strength in his arm and cannot lift
things to any sort of height; the most he can lift is a small
grocery bag, and he has decreased grip strength and gets
numbness and tingling in his hand and forearm that prevent
extended fine manipulation.

(R. 36-37).

Plaintiff also testified that he has received treatment for
his right foot from a podiatrist, including injections, and uses
a cane to help keep his balance, even though no doctor
prescribed the use of that cane. (R. 36-37).

Plaintiff states

that he can stand for between 10-20 minutes before experiencing
pain and is most comfortable laying down with his legs elevated.
(R. 38-39).

He also soaks his feet and uses a massage chair to

help his foot and shoulder pain. (R. 40).

Plaintiff also

discussed his sleep apnea diagnosis and his use of a CPAP to
relieve his symptoms; he testified that he usually sleeps two to
two-and-a-half hours at a time, and then is awake for an hour.
(R. 39).

With respect to household activities, Plaintiff

testified that he helps with grocery shopping a “couple of times
a month,” and helps his wife she needs assistance with things
like dusting.

(R. 41).

Pursuant to the above testimony, the ALJ stated on the
record that he was downgrading Plaintiff’s Residual Functional
4

Capacity (“RFC”) 2 to “eliminate[] all but sedentary work.”
45).

(R.

During the hearing, the ALJ consulted with Louis Cellozzi,

a Vocational Expert (“VE”), to determine the types of work
Plaintiff could perform. (R. 44).

Based on the hypotheticals

presented by the ALJ, including the downgraded RFC, the VE
testified that the Plaintiff could perform the positions of
surveillance system monitor, information clerk, and charge
account clerk. (R. 47-50).

The VE testified that any impact of

limitations of fingering and manipulation on the surveillance
system monitor and information clerk positions “would be
nominal” and that the use of the keyboard in those jobs could be
modified if there was an incapacity. (R. 54).

c) The ALJ’s Decision

Applying the requisite five-step analysis, 3 the ALJ
concluded that Plaintiff met the insured status requirements of
the Social Security Act and had not engaged in substantial
gainful activity since May 9, 2009. (R. 16).

The ALJ found that

Plaintiff has the severe impairments of coronary artery disease,
status post myocardial infarction, and sleep apnea. (R. 16-19).
In making the “severe impairment” findings, the ALJ relied on

2
3

See discussion on pages 19-23 infra.
Described on pages 9-13 infra.
5

Plaintiff’s medical records related to his conditions,
including:
•
•
•

•

•
•
•

The report of Plaintiff’s podiatrist, Dr. Joseph
Santomauro, who treated Plaintiff for plantar
fasciitis of the right heel. (Exhibit 1F);
The records of Plaintiff’s hospitalization on May 9,
2009 due to acute inferior wall myocardial infarction.
(Exhibit 3F);
Treatment notes from Cardiovascular Associates by Dr.
George Mark from June 11, 2009, October 2009, November
2009, and April 2010, (Exhibits 5F & 8F) and January
2011 by Dr. Kartik Giri. (Exhibit 16F);
Treatment notes from Plaintiff’s treating physician,
Dr. Gross from July 26, 2009, November 17, 2009, March
2010, (Exhibit 4F), September 2010 and May 2011.
(Exhibit 14F);
The records of David Schneider, a medical consultant
for the New Jersey Division of Disability, from March
2010. (Exhibit 7F);
Records from Pulmonary and Sleep Associates of South
Jersey for sleep apnea evaluation and the findings of
Dr. John Bermingham. (Exhibit 13F); and
The treatment notes of Dr. Evangelisto from July 2010
related to Plaintiff’s shoulder pain. (Exhibit 12F).

Based on the above, the ALJ determined that Plaintiff’s
impairments did not meet the criteria for listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1.

(R. 19).

Furthermore, based on his findings, and considering Plaintiff’s
symptoms that “can reasonably be accepted as consistent with the
objective medical evidence and other evidence,” (R. 19) the ALJ
determined that Plaintiff had the following residual functional
capacity:
•

Lift and carry ten points occasionally and less than
ten pounds frequently;
6

•
•
•

(R. 19).

Sit for six hours in an eight-hour workday;
Stand/walk at least two hours in an eight-hour
workday; and
Occasionally push/pull with his lower extremities.

In making these findings, the ALJ stated that the

Plaintiff “has some subjective limitations, but not of the
intensity, frequency or duration alleged.” (R. 20).

In support

of the conclusion that the Plaintiff’s “alleged limitations
appear[] exaggerated compared to the objective medical evidence
of record,” (R. 20), the ALJ cited a Function Report (Exhibit
6E), completed by the Plaintiff in November 2009, wherein he
reported that he did light cleaning and laundry, takes care of
his two dogs, and had no difficulty paying attention. (R. 20).
Moreover, The ALJ predicated his findings on the following
medical determinations:
•

•

•
•

Dr. Gross’ November 2009 report that the Plaintiff
could stand/walk for up to two hours in an eighthour workday and had no sitting limitations or
limitations with his extremities. (R. 20 citing
Exhibit 4F);
Dr. Gross’ May 2011 report stating that Plaintiff’s
pain and fatigue are only occasionally severe enough
to interfere with his ability to maintain attention
and concentration. (R. 20 citing Exhibit 14F);
Dr. Santomauro’s finding that Plaintiff did not need
a hand-held assistive device to walk. (R. 20 citing
Exhibit 1F);
The reports of Dr. Mark, Plaintiff’s treating
cardiologist, (R. 20-21 citing Exhibits 5F & 8F)
including the results of a Nuclear Treadmill Stress
Test completed in January of 2011 showing that
Plaintiff had a good exercise tolerance. (R. 21,
citing Exhibit 16F); and
7

•

Pulmonary function studies from September of 2010
and the results of Plaintiff’s sleep study and
subsequent CPAP use. (R. 21 citing Exhibit 13F &
14F).

In evaluating the above, the ALJ noted that, with respect
to Plaintiff’s right shoulder pain, “there is no objective
medical evidence documenting that this impairments [sic] imposes
significant limitations on the [Plaintiff’s] ability to perform
basic work-related activities.” (R. 21).

In drawing this

conclusion, he noted Dr. Gross’ report dated June 1, 2011
(Exhibit 15F) wherein Dr. Gross determined that Plaintiff:
•
•
•
•
•

Had significant limitations with reaching, handling,
or fingering in the right upper extremity and pain
and weakness;
Could sit for less than two hours in an eight-hour
day;
Had to keep his legs elevated when sitting for
prolonged periods of time;
Required a cane for standing and walking; and
Could rarely lift/carry less than ten pounds.

In evaluating this assessment by Dr. Gross, the ALJ determined
that he “impeach[ed] Dr. Gross’ assessment as it is poorly
supported by his treatment notes and contravened by substantial
medical evidence from other treating and examining physicians
(SSR 96-2p)(See Exhibits 1F, 4F, 5F, 8F, 12F & 14F).” (R. 21).
Thus, the ALJ concluded that the substantial evidence
necessitated a finding that Plaintiff’s impairments did not

8

impose such severe limitations on his RFC as to preclude the
performance of all work activity. (R. 22).
After performing the RFC assessment, the ALJ determined
that Plaintiff was unable to perform any past relevant work. (R.
22).

Then, considering Plaintiff’s age, education, work

experience, and RFC as determined, the ALJ found that there were
jobs in significant numbers in the national economy that
Plaintiff could perform. (R. 22).

In making this finding, the

ALJ relied on a VE, who had been asked to determine whether jobs
exist in the national economy for an individual with the
claimant’s age, education, work experience and residual
functional capacity. (R. 22-23).

The VE found that Plaintiff

would be able to perform jobs as a surveillance system monitor,
information clerk, and charge account clerk.

(R. 23).

As a result of the above findings, the ALJ ultimately
determined that the Plaintiff is not disabled under Section
1614(a)(3)(A) of the Social Security Act. (R. 23).

II.

Standard of Review
A reviewing court must uphold the Commissioner of Social

Security’s factual findings if they are supported by
“substantial evidence,” even if the court would have decided the
inquiry differently. 42 U.S.C. §§ 405(g), 1383(c)(3); Knepp v.

9

Apfel, 204 F.3d 78, 83 (3d Cir. 2000); Fargnoli v. Massanari,
247 F.3d 34, 38 (3d Cir. 2001). “Substantial evidence” means
“‘more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Cons. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Where the
evidence is susceptible to “more than one rational
interpretation, the Commissioner’s conclusion must be upheld.”
Ahearn v. Comm’r, 165 F. App’x 212, 215 (3d Cir. 2006) (citing
Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984); Monsour Med.
Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986)).
If faced with conflicting evidence, however, the
Commissioner “must adequately explain in the record his reason
for rejecting or discrediting competent evidence.” Ogden v.
Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v.
Heckler, 786 F.2d 581 (3d Cir. 1986)). Stated differently,
[U]nless 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.
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978) (quoting
Arnold v. Sec’y of Health, Ed. & Welfare, 567 F.2d 258, 259 (4th
Cir. 1977)) (internal quotations omitted); see also Guerrero v.
10

Comm’r, No. 05-1709, 2006 WL 1722356, at *3 (D.N.J. June 19,
2006) (“The [administrative law judge’s] responsibility is to
analyze all the evidence and to provide adequate explanations
when disregarding portions of it.”), aff’d, 249 F. App’x 289 (3d
Cir. 2007).
While the Commissioner’s decision need not discuss “every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004), it must consider all pertinent
medical and non-medical evidence and “explain [any]
conciliations and rejections,” Burnett v. Comm’r, 220 F.3d 112,
122 (3d Cir. 2000). See also Fargnoli, 247 F.3d at 42 (“Although
we do not expect the [administrative law judge] to make
reference to every relevant treatment note in a case where the
claimant . . . has voluminous medical records, we do expect the
ALJ, as the factfinder, to consider and evaluate the medical
evidence in the record consistent with his responsibilities
under the regulations and case law.”).
In addition to the “substantial evidence” inquiry, the
reviewing court must also determine whether the ALJ applied the
correct legal standards. See Friedberg v. Schweiker, 721 F.2d
445, 447 (3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000). The court’s review of legal issues is plenary.
Sykes, 228 F.3d at 262 (citing Schaudeck v. Comm’r, 181 F.3d
429, 431 (3d Cir. 1999)).
11

“Disability” Defined
The Social Security 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act
further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment
or impairments are of such severity that he is not
only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work.

42 U.S.C. § 1382c(a)(3)(B).
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)(i-v). In Plummer, 186 F.3d at 428,
the Third Circuit described the Commissioner’s inquiry at each
step of this analysis:
In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial
gainful activity. 20 C.F.R. § 1520(a). If a claimant
is found to be engaged in substantial activity, the
disability claim will be denied. Bowen v. Yuckert, 482
U.S. 137, 140 (1987).
12

In step two, the Commissioner must determine whether
the claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show
that [his] impairments are “severe,” [he] is
ineligible for disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant's impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform [his] past relevant work. 20 C.F.R.
§ 404.1520(d). The claimant bears the burden of
demonstrating an inability to return to [his] past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume [his]
former occupation, the evaluation moves to the final
step.
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R.
§ 404.1520(f). The ALJ must show there are other jobs
existing in significant numbers in the national
economy which the claimant can perform, consistent
with [his] medical impairments, age, education, past
work experience, and residual functional capacity. The
ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether [he] is
capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. The ALJ will often seek the
assistance of a vocational expert at this fifth step.
See Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.
1984).

13

III. Analysis
a) The Opinion of the Plaintiff’s Treating Physician 4

Plaintiff avers that the ALJ erred in rejecting the opinion
of the Plaintiff’s primary care physician, Dr. David Gross,
contained in a June 1, 2011 report (Exhibit 15F), which found
that Plaintiff had significant limitations.

More specifically,

Plaintiff contends that the ALJ erred when, in discussing Dr.
Gross’ opinion, he simply stated “I impeach Dr. Gross’
assessment as it is poorly supported by his treatment notes and
contravened by substantial medical evidence from other treating
and examining physicians (SSR 96-2p)(See Exhibits 1F, 4F, 5F,
8F, 12F, & 14F).” (R. 19 & 21).

Plaintiff argues that this

“‘string–cite’ rationale,” (Pl.’s Reply Br. at 3), falls short
of the requirements of SSR 96-2p and the analysis required
pursuant to 20 C.F.R. § 404.1527 because the ALJ did not
explicitly discuss the evidence he referenced and offered no
comment regarding the weight given go Dr. Gross’ opinion other
than indicating it was “impeached.”

4

Moreover, Plaintiff argues

Plaintiff’s brief states that the issue presented in this
case is “whether Plaintiff is capable of sustained work, i.e.,
full-time work.” (Pl.’s Br. at 12). This Court, thus, construes
Plaintiff’s arguments regarding the ALJ’s determinations with
respect to his treating physician as a challenge to the ALJ’s
step four finding of Residual Functional Capacity. See Johnson
v. Comm’r, 529 F. 3d 198, 201 (3d Cir. 2008)(construing
arguments regarding treating physician’s opinions as a challenge
to the ALJ’s step four finding).
14

that when the evidence in the string-cite is actually examined,
it does not support the ALJ’s conclusion, but rather provides
support for Dr. Gross’ ultimate opinions.

In response to

Plaintiff’s arguments, the Commissioner responds by contending
that the ALJ’s opinion properly noted that Dr. Gross’ opinion
was inconsistent with other substantial evidence of record,
including the findings of Dr. Santomauro, Dr. Mark, Dr.
Schnieder, and Dr. Evangelisto.
SSR 96-2p states, in relevant part: “If a treating source's
medical opinion is well-supported and not inconsistent with the
other substantial evidence in the case record, it must be given
controlling weight; i.e., it must be adopted.”

That said, an

ALJ must consider every medical opinion and decide how much
weight to give the opinion. 20 C.F.R. § 404.1527(c).

An ALJ

must accord “[t]reating physicians' reports . . . 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." Plummer, 186 F.3d at 429 (internal
citations omitted).

The ALJ must also consider the findings and

opinions of state agency medical consultants and other sources
consulted in connection with ALJ hearings. 20 C.F.R. §
404.1527(e)(2)(i).

If non-examining medical source opinions are

supported by medical evidence in the record, they may constitute
substantial evidence and override a treating physician's
15

opinion.

Alexander v. Shalala, 927 F. Supp. 785, 795 (D.N.J.

1995), aff'd per curiam, 85 F.3d 611 (3d Cir. 1996).

"When a

conflict in the evidence exists, the ALJ may choose whom to
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."
186 F.3d at 429 (internal citations omitted).

Plummer,

An ALJ errs by

failing to address evidence in direct conflict with his
findings. Landeta v. Comm’r, 191 F. App’x. 105, 110 (3d Cir.
2006).
This Court agrees that the ALJ has failed to adequately
address evidence in the record that conflicts with his finding
that Dr. Gross’ conclusions were “impeach[ed].”

In his opinion,

the ALJ bolstered his determination that Dr. Gross’ conclusions
were unfounded by citing, inter alia, Exhibit 14F - Dr. Gross’
treatment records from January 2010 through May 2011.

In doing

so, however, the ALJ failed to resolve or even address certain
conflicts.

For example, the ALJ did not address Dr. Gross’

finding in Exhibit 14F that Plaintiff’s pain would “prevent
[him] from performing normal, fulltime work activities on a
frequent (more than 3-4 days per month) basis,” or that physical
activity such as walking, standing, bending, stooping, moving of
extremities would mean that “[g]realty increased pain is likely
to occur, and to such a degree as to cause total abandonment of
16

the task.”

(R. 335).

Instead, the ALJ focused only on the

portions of this record that arguably, supports his
determination – i.e., sections dealing with fatigue and
Plaintiff’s ability to concentrate. (R. 18 & 20).

As such, this

Court cannot find that the ALJ’s finding is supported by
substantial evidence, and this Court will remand for resolution
of this conflicting probative evidence.

See Fargnoli, 247 F.3d

at 42 (“Where there is conflicting probative evidence in the
record, we recognize a particularly acute need for an
explanation of the reasoning behind the ALJ’s conclusions, and
will vacate or remand a case where such an explanation is not
provided.”).
Plaintiff is also correct that the Commissioner seeks to
improperly bolster the ALJ’s determination with records not
cited in his opinion.

For example, the Commissioner seeks to

rely on the findings of Dr. Schneider contained in Exhibit 7F in
support of the ALJ’s rejection of Dr. Gross’ findings.

This

Court, however, cannot read the findings of Dr. Schneider into
the ALJ’s “string-cite” rejection of Dr. Gross’ findings.

See

Id. at 43 n.7 (rejecting the District Court’s attempt to rectify
ALJ’s error by analyzing records not mentioned by the ALJ).
While the ALJ may again find Dr. Gross’ determinations to
be unfounded on remand, he must provide a more thorough
treatment and explanation for doing so.
17

Id. at 43 (“Although

the ALJ may weigh the credibility of evidence, he must give some
indication of the evidence that he rejects and his reason(s) for
discounting the evidence.”).

Citing only to portions of an

exhibit while failing to address other portions of that very
exhibit that contradict the ALJ’s findings will not suffice.
See Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)(“[W]e
need from the ALJ not only an expression of the evidence s/he
considered which supports the result, but also some indication
of the evidence which was rejected. In the absence of such an
indication, the reviewing court cannot tell if significant
probative evidence was not credited or simply ignored.”).

b) ALJ’s Finding of Severity at Step Two

Plaintiff argues that the ALJ erred by not properly
considering his plantar fasciitis and shoulder impairments to be
“severe” impairments at step two of the Sequential Evaluation
Process.

The ALJ, however, did find in Plaintiff’s favor at

step two, holding that Plaintiff suffered from the severe
impairments of coronary artery disease, status post myocardial
infarction, and sleep apnea.

(R. 16-19).

Thus, “even if [the

ALJ] had erroneously concluded that some of [Plaintiff’s] other
impairments were non-severe, any error was harmless.”
Comm’r, 229 F. App’x 140, 145 n.2 (3d Cir. 2007)(citing

Salles v.

18

Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).
Thus, remand is not warranted on these grounds.

See Williams v.

Comm’r, No. 12-5637, 2013 U.S. Dist. LEXIS 118525, at *48
(D.N.J. Aug. 21, 2013)(finding that remand was not warranted to
reconsider the step two determination as any error regarding a
severe impairment determination was harmless).

c) The ALJ’s Credibility Determinations

This Court will consider together Plaintiff’s arguments
that the ALJ failed to properly weigh Plaintiff’s plantar
fasciitis and shoulder impairment in determining Plaintiff’s
Residual Functional Capacity ("RFC") and whether the ALJ erred
in his credibility determinations with respect to Plaintiff’s
subjective complaints regarding those same impairments.
RFC is what a person is still able to do despite the
limitations caused by his impairments. 20 C.F.R. §§ 404.1545(a)
and 416.945. Social Security Ruling 96-8p (“SSR” 96-8p),
dictates that the RFC assessment is a "function-by-function
assessment based upon all the relevant evidence of an
individual's ability to do work related activities." SSR 96-8p.
In order to meet the requirements of 96-8p, the ALJ "must
'specify the evidence that he relied upon to support his [or
her] conclusion.'" Pearson, 380 F. Supp. 2d at 506 (citation

19

omitted). Moreover, "the ALJ's residual functional capacity
assessment must ‘be accompanied by a clear and satisfactory
explanation of the basis on which it rests.'" Id. (quoting
Fargnoli, 247 F.3d at 41).
In addition,
[T]he ALJ is required to "discuss the individual's
ability to perform sustained work activities in an
ordinary work setting on a regular and continuing
basis (i.e., 8 hours a day for 5 days a week, or an
equivalent work schedule), and describe the maximum
amount of each work-related activity the individual
can perform based on the evidence available in the
case record." SSR 96-8p. Moreover, such a discussion
must be made by the ALJ in narrative form, "citing
specific medical facts (e.g., laboratory findings) and
nonmedical evidence (e.g., daily activities,
observations)." SSR 96-8p.
Pearson, 380 F. Supp. 2d at 505-06.
Plaintiff’s first RFC-related argument is that the ALJ did
not assess any upper-extremity limitations in his formation of
Plaintiff’s RFC.

Moreover, Plaintiff contends that, had the ALJ

found Plaintiff’s plantar fasciitis to be severe, he might have
further limited Plaintiff’s ability to stand and walk, which
would have impacted Plaintiff’s ability to perform 8 hours of
work activity.
This Court notes, however, that during the hearing, the ALJ
modified Plaintiff’s RFC determination found at Exhibit 7F in
order to reflect Plaintiff’s “lower-extremity problems” and
reduced the occasional lifting to 10 pounds and frequent lifting

20

to less than 10 pounds to “eliminate[] all but sedentary work.”
(R. 45).

Furthermore, the ALJ noted that he “did somewhat

downgrade the claimant’s residual functional capacity to take
into account at least to the extent to which his testimony could
be deemed believable, his symptoms, including pain.” (R. 20).
Despite this “downgrade,” Plaintiff similarly avers that
the ALJ erred in his determination of Plaintiff’s credibility
with respect to his subjective complaints.

More specifically,

the Plaintiff contends that the ALJ failed to give any explicit
consideration to the Plaintiff’s hearing testimony and only
credited portions of Plaintiff’s Function Report related to what
Plaintiff could do despite his limitations while failing to
credit sections of that same report discussing what he could not
do. (Exhibit 6E).

In response, the Commissioner argues that the

ALJ reasonably found that Plaintiff’s daily activities and the
record’s medical evidence undermined the existence of totally
disabling symptomatology.
"An ALJ must give serious consideration to a claimant's
subjective complaints of pain, even where those complaints are
not supported by objective evidence." Mason v. Shalala, 994 F.2d
1058, 1067 (3d Cir. 1993) (citing Ferguson v. Schweiker, 765
F.2d 31, 37 (3d Cir. 1985)). "Where medical evidence does
support a claimant's complaints of pain, the complaints should
then be given 'great weight' and may not be disregarded unless
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there exists contrary medical evidence." Id. at 1067-68
(citations omitted).

Nevertheless, "[a]lthough the ALJ may

weigh the credibility of the evidence, he must give some
indication of the evidence that he rejects and his reason(s) for
discounting that evidence." Fargnoli, 247 F.3d at 43.
For reasons similar to those discussed above with respect
to the ALJ’s treatment of Plaintiff’s treating physician’s
opinion, this Court finds that remand is warranted as to the
assessment of Plaintiff’s credibility related to his subjective
limitations.

As Plaintiff correctly points out, the ALJ cites

to portions of Plaintiff’s Function Report (Exhibit 6E) that
support his conclusions as to the intensity, frequency and
duration of this subjective limitations, but seemingly ignores
the portions of that same report that conflict with his
conclusions.

For example, while the ALJ notes that Plaintiff

reported that he can do light cleaning, laundry, help with his
two dogs and had no difficulty paying attention, he does not
address the Plaintiff’s assertions in that same report that
state that he cannot walk more than twenty-feet without rest,
that reaching is painful, and that he cannot be upright for more
than five minutes. (R. 178). While the ALJ stated that he
“downgraded” Plaintiff’s RFC to take into account the “extent to
which his testimony could be deemed believable,” (R. 20), he
says this immediately after writing that the Plaintiff’s
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“alleged limitations appeared exaggerated compared to the
objective medical evidence.”

(R. 20).

It is, therefore,

unclear what evidence was credited and what evidence was
rejected with respect to Plaintiff’s subjective limitations in
the formulation of his RFC, and the ALJ must revisit this issue
on remand.

See Cotter, 642 F.2d at 705 (“[W]e need from the ALJ

not only an expression of the evidence s/he considered which
supports the result, but also some indication of the evidence
which was rejected. In the absence of such an indication, the
reviewing court cannot tell if significant probative evidence
was not credited or simply ignored.”).
Although the ALJ may again determine that Plaintiff’s
subjective complaints are not credible on remand under a more
thorough analysis, the ALJ failed to adequately address the
conflicting evidence in the record.

It is the responsibility of

the ALJ to weigh the evidence and make determinations on
contradicting evidence.

Id.

Thus, this Court remands this case

for further discussion of Plaintiff’s subjective limitations as
related to Plaintiff’s RFC. 5

5

With respect to Plaintiff’s argument that the ALJ failed to
consider Plaintiff’s hearing testimony, this Court agrees that
the ALJ did not err in failing to reiterate every word of that
testimony to the extent such testimony is either irrelevant or
not probative. See Johnson, 529 F.3d at 204-05. While an ALJ
need not cite all evidence where such evidence is irrelevant/not
probative, it is clear that he “may not reject pertinent or
probative evidence without explanation.” Id. at 204. On
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IV.

Conclusion

For the reasons stated above, this Court will vacate the
decision of the ALJ and remand.

An accompanying Order will

issue this date.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated November 8, 2013

remand, probative hearing testimony should be considered as
appropriate.
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