D'ARMI v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Noel L. Hillman on 7/31/2015. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THERESA D’ARMI,
Plaintiff,
Civil No. 14-5650(NLH)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
ROBERT ANTHONY PETRUZZELLI
JACOBS, SCHWALBE & PETRUZZELLI, PC
WOODCREST PAVILION
TEN MELROSE AVENUE
SUITE 340
CHERRY HILL, NJ 08003
On behalf of Plaintiff
KATIE M. GAUGHAN
SOCIAL SECURITY ADMINISTRATION
OFFICE OF GENERAL COUNSEL
300 SPRING GARDEN STREET
PHILADELPHIA, PA 19123
On behalf of Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), to review the final decision of the Commissioner of the
Social Security Administration, denying Plaintiff’s application
for Disability Insurance Benefits and Supplemental Security
Income (“Social Security benefits”) under Title II and Title XVI
of the Social Security Act.

42 U.S.C. § 401, et seq.

The issue

before the Court is whether the Administrative Law Judge (“ALJ”)
erred in finding that there was “substantial evidence” that
Plaintiff was not disabled at any time since her alleged onset
date of disability, August 28, 2011.

For the reasons stated

below, this Court will affirm that decision.
I.

BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed an application for disability benefits,

claiming that as of August 28, 2011, her osteoarthritis,
melanoma, carpal tunnel syndrome, planter fasciitis, obesity,
and mood disorder and anxiety have left her completely disabled
and unable to work.

Prior to that date, Plaintiff worked as an

office manager.
After a hearing before an ALJ, it was determined that
Plaintiff was not disabled.

Plaintiff appealed the decision.

The Appeals Council reviewed the ALJ’s decision, and upheld it,
thus rendering it as final.

Plaintiff now seeks this Court’s

review.
II.

DISCUSSION
A.

Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for Disability Insurance Benefits.

2

Ventura v.

Shalala, 55 F.3d 900, 901 (3d Cir. 1995).

A reviewing court

must uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”

42 U.S.C. §§ 405(g),

1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.
2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000);
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Substantial evidence means more than “a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

It

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

Id.

The inquiry is not

whether the reviewing court would have made the same
determination, but whether the Commissioner’s conclusion was
reasonable.

See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988).
A reviewing court has a duty to review the evidence in its
totality.
1984).

See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

“[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’” Schonewolf v.
Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks
v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th
Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.

3

474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons 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)).

The Third

Circuit has held that an “ALJ must review all pertinent medical
evidence and explain his conciliations and rejections.”

Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Similarly, an ALJ must also consider and weigh all of the nonmedical evidence before him.

Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d
700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
court review:
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.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).

Although

an ALJ, as the fact finder, must consider and evaluate the
4

medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here
is no requirement that the ALJ discuss in its opinion every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004).

In terms of judicial review,

a district court is not “empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.”
Williams, 970 F.2d at 1182.

However, apart from the substantial

evidence inquiry, a reviewing court is entitled to satisfy
itself that the Commissioner arrived at his decision by
application of the proper legal standards.

Sykes, 228 F.3d at

262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);
Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B.

Standard for Disability Insurance Benefits

The Social Security Act defines “disability” for purposes
of an entitlement to a period of disability and disability
insurance benefits as the inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in
death, or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
1382c(a)(3)(A).

See 42 U.S.C. §

Under this definition, a Plaintiff qualifies as

disabled only if his physical or mental impairments are of such

5

severity that he is not only unable to perform his past relevant
work, but cannot, given his age, education, and work experience,
engage in any other type 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)

(emphasis added).
The Commissioner has promulgated regulations for
determining disability that require application of a five-step
sequential analysis.

See 20 C.F.R. § 404.1520.

This five-step

process is summarized as follows:
1.

If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”

2.

If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”

3.

If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1 and has lasted or is expected to last for a
continuous period of at least twelve months, the
claimant will be found “disabled.”

4.

If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”

5.

Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience
to determine whether or not he is capable of
6

performing other work which exists in the national
economy. If he is incapable, he will be found
“disabled.” If he is capable, he will be found “not
disabled.”

20 C.F.R. § 404.1520(b)-(f).

Entitlement to benefits is

therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d
1150, 1153 (3d Cir. 1983).

In the first four steps of the

analysis, the burden is on the claimant to prove every element
of his claim by a preponderance of the evidence.

See id.

In

the final step, the Commissioner bears the burden of proving
that work is available for the Plaintiff: “Once a claimant has
proved that he is unable to perform his former job, the burden
shifts to the Commissioner to prove that there is some other
kind of substantial gainful employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.
Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C.

Analysis

In this case, the ALJ found that Plaintiff has not engaged
in substantial gainful activity since the alleged onset of
disability (Step One).

The ALJ next found that Plaintiff’s

7

osteoarthritis, melanoma, carpal tunnel syndrome, planter
fasciitis, obesity, and mood disorder and anxiety were severe
(Step Two). 1

The ALJ then found that Plaintiff’s impairments did

not meet the medical equivalence criteria (Step Three).

At Step

Four, the ALJ found that even though Plaintiff was not capable
of performing her previous jobs as an office manager,
administrative secretary, and receptionist, Plaintiff had the
residual functional capacity (RFC) to perform other jobs at the
light work level, such as office helper, information desk clerk,
and assembler, which are in significant numbers in the national
economy (Step Five).
Plaintiff challenges three aspects of the ALJ’s decision.
First, she contends that the ALJ erred in discounting the
“statement of claimant’s ability to perform work-related
physical activity” form filled out by her treating physician in
determining Plaintiff’s residual functional capacity (“RFC”) and
her capability of performing the duties of light work.

Second,

Plaintiff argues that the ALJ did not properly consider her
mental impairments with respect to her RFC.

Third, Plaintiff

contends that the ALJ did not properly assess her testimony and

1

The ALJ found that her seizure disorder and sleep apnea were
not severe. Plaintiff has not challenged this finding.
8

erred in his credibility determination.

The Court finds that

substantial evidence supports the ALJ’s determination, and the
ALJ therefore did not err in his decision.
In a thorough and detailed manner, the ALJ articulated the
medical evidence and Plaintiff’s own statements about her
abilities and limitations.
•

He noted the following:

Plaintiff cooks complete meals with several courses on a
daily basis;

•

Plaintiff takes care of her two cats;

•

Plaintiff does the laundry, vacuums the rugs, mops floors
and cleans 2 1/2 bathrooms;

•

Plaintiff drives a car;

•

Plaintiff grocery shops twice a week for two to three hours
at a time;

•

Plaintiff was able to manage her finances;

•

Plaintiff does crafts, plays bingo and plays with her
grandchildren as much as possible;

•

Plaintiff makes dinner for her children and grandchildren
on Sunday;

•

Plaintiff visits her family and neighbors during the week;

•

Plaintiff has no problems with getting along with family,
friends or neighbors;
9

•

Plaintiff was an excellent employee and she never had
issues with her bosses or other employees;

•

Plaintiff could follow written instructions "very well" and
spoken instructions "well";

•

Plaintiff had no problems with paying attention and that
she finishes what she starts;

•

When the claimant was seen at the Social Security Field
Office on January 9, 2012, the claims interviewer noted
that the claimant had no problems with understanding,
coherency, concentrating, answering questions and she had
no problems with sitting, standing, walking, writing or
using her hands; and

•

Plaintiff told Dr. Mosby, the consultative physician, that
she did light household chores, that she can go shopping
alone and unsupervised, and that she has a driver's license
and can drive, and that her interests and hobbies were
cooking, fishing and travel. 2

2

Plaintiff argues that these are activities she was able to
engage in at the outset of the adjudication of her claim for
disability benefits, but that her condition has progressively
become worse. The ALJ was tasked with determining whether
plaintiff was disabled as of August 28, 2011, and, as explained
herein, the substantial evidence supports his conclusion that
plaintiff was capable of unskilled, light work. It does not
appear that Plaintiff is prohibited from filing a new claim for
10

(R. at 73.)
Weighed against these abilities, the ALJ discussed
Plaintiff’s limitations.

He noted Plaintiff’s testimony about

her pain, which she says is usually 8 out of 10 on the pain
scale, and that the pain is worse in the cold weather.

He

recounted that Plaintiff stated that she cries a lot, has mood
swings, she is anxious and nervous, although she does not
experience panic attacks, and that Xanax helps, but makes her
tired.

The ALJ also noted that Plaintiff complains of not being

as sharp as she used to be, that she can only focus for 30
minutes at a time, and that she needs breaks to finish tasks.
He also detailed her treatment for melanoma and how she feels as
a result, as well as how her carpal tunnel and obesity affect
her functioning.
Based on these, and many other, specific references to
Plaintiff’s condition, it cannot be found that the ALJ
improperly discounted Plaintiff’s statements about her abilities
and limitations.

See 20 C.F.R. § 404.1529(c) (“In evaluating

the intensity and persistence of your symptoms, we consider all
of the available evidence, including your history, the signs and
laboratory findings, and statements from you, your treating or

disability benefits based on her current condition.
11

nontreating source, or other persons about how your symptoms
affect you.

We also consider the medical opinions of your

treating source and other medical opinions. . . . .”); Schaudeck
v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999)
(explaining that allegations of pain and other subjective
symptoms must be supported by objective medical evidence, and an
ALJ may reject a claimant's subjective testimony if he does not
find it credible as long as he explains why he is rejecting the
testimony); SSR 96–7p (“No symptom or combination of symptoms
can be the basis for a finding of disability, no matter how
genuine the individual’s complaints may appear to be, unless
there are medical signs and laboratory findings demonstrating
the existence of a medically determinable physical or mental
impairment(s) that could reasonably be expected to produce the
symptoms.”).
With regard to Plaintiff’s argument that the ALJ improperly
discounted Plaintiff’s treating physician Dr. DiPiero’s “ability
to work assessment” because it was just a “check the box” form
(R. at 74), the ALJ’s assessment of Dr. DiPiero’s report also
considered that there was little supporting evidence to support
his findings, and his selections on the form were inconsistent
with his treatment notes and the treatment notes of other

12

doctors.

Dr. DiPiero’s treatment notes, as well as the other

treating and consultative doctor notes, as detailed earlier in
the ALJ’s decision (R. at 69), demonstrate that Dr. DiPiero’s
“checks” in the “boxes” on the form were not consistent with the
medical evidence. 3

Although it is true that Social Security

regulations provide that a treating physician will be afforded
controlling weight as to the nature and severity of a claimant’s
impairment, that weight is not automatic: only if the opinion is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and is not inconsistent with other
substantial evidence of record, will the treating physician’s
opinion carry more weight than any other doctor.
§§ 404.1527(d)(2), 416.927(d)(2); SSR 96–2p.

See 20 C.F.R.

These factors are

not met here.

3

The form lists a variety of plaintiff’s abilities, including
her ability to “frequently” bend, stoop, squat, crawl, climb,
and reach above shoulder level. Dr. DiPiero also notes that
plaintiff does not have any restrictions in activities involving
unprotected heights, being around moving machinery, or exposure
to marked changes in temperature and humidity. (R. at 598.)
Some of these “abilities” actually support the ALJ’s
determination that plaintiff is capable of light work, while
others conflict with the medical evidence. For example, the ALJ
found that the evidence demonstrated that plaintiff could not
work in environments with extreme cold or ones that involve
heavy machinery, even though Dr. DiPiero did not restrict these
conditions on the form. (R. at 71.) These, and other,
inconsistencies support the ALJ’s rejection of the “check the
box” form.
13

Next, with regard to Plaintiff’s challenge to the ALJ’s
assessment of Plaintiff’s mental impairment as it affects her
residual functional capacity in combination with her physical
impairments, the ALJ discounted the consultative physician’s
Global Assessment Functioning (“GAF”) score of 50 because it was
inconsistent with the other information contained in the
doctor’s report.

A GAF of 41-50 represents “Serious symptoms

(e.g. suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).” 4
DSM–IV–TR 34.

The ALJ properly articulated the inconsistencies

in the doctor’s report to support why he did not credit this GAF
assessment (R. at 74-75), and also noted that Plaintiff has
never been under any form of psychiatric care, and she has never
experienced any periods of decompensation (R. at 68, 71).

This

is the appropriate methodology to discount certain medical

4

A GAF of 60/51 represents “Moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers)”; a GAF of
70/61 represents “Some mild symptoms (e.g., depressed mood and
mild insomnia) OR some difficulty in social, occupational, or
school functioning (e.g., occasional truancy, or theft within
the household), but generally functioning pretty well, has some
meaningful interpersonal relationships.” DSM–IV–TR 34.
.

14

assessments.

See Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.

1999) (citations omitted) (“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.”); Diaz v. Commissioner, 577 F.3d 500,
505–06 (3d Cir. 2009) (“In evaluating medical reports, the ALJ
is free to choose the medical opinion of one doctor over that of
another.”).
With regard to Plaintiff’s argument that the ALJ erred in
finding at Step Two that Plaintiff’s mental impairments were
“severe,” but then ultimately does not find them to be “severe”
in the RFC analysis at Step Four, what is considered “severe” at
Step Two is different from the Step Four analysis of the
severity of a claimant’s disability.

The Third Circuit has

explained,
The burden placed on an applicant at step two is not an
exacting one. Although the regulatory language speaks in
terms of “severity,” the Commissioner has clarified that an
applicant need only demonstrate something beyond “a slight
abnormality or a combination of slight abnormalities which
would have no more than a minimal effect on an individual's
ability to work.” SSR 85–28 . . . In short, the step-two
inquiry is a de minimis screening device to dispose of
groundless claims.
McCrea v. Commissioner of Social Sec., 370 F.3d 357, 360 (3d

15

Cir. 2004) (citations and quotations omitted).

Thus, when the

ALJ determined that Plaintiff’s mental impairment at Step Two
was “severe,” it was in the context of permitting Plaintiff’s
claim to move along in the sequential step analysis, rather than
constituting a finding as to the degree that impairment disabled
Plaintiff, which the ALJ did at Step Four.

Accordingly, it

cannot be found that the ALJ erred in his assessment of
Plaintiff’s mental impairment and how it impacted her RFC.
Finally, with regard to the ALJ’s assessment of Plaintiff’s
residual functional capacity to perform light work, an ALJ does
not need to give any particular weight to a treating physician’s
conclusions about a claimant’s RFC or ability to work.

20

C.F.R. § 404.1527(e) (explaining that the issue of the RFC
assessment is reserved for the Commissioner, and a physician’s
opinion thereon is not entitled to any special significance).
Moreover, an ALJ is not required to blindly follow a treating
physician’s conclusions.

Brownawell v. Commissioner Of Social

Security, 554 F.3d 352, 355 (3d Cir. 2008).

Thus, because, as

discussed above, the ALJ properly supported his decision to
credit the bulk of evidence in the record, and discount
inconsistent evidence in the record, in order to conclude that
Plaintiff was capable of performing light work with several,

16

specific limitations, 5 the Court cannot find that the ALJ erred
in his decision.
III. Conclusion
For the reasons expressed above, the ALJ’s determination
that Plaintiff is not totally disabled as of August 28, 2011, is
supported by substantial evidence.
the ALJ is affirmed.

Accordingly, the decision of

An accompanying Order will be issued.

Date:
July 31, 2015
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

5

The ALJ determined, “After careful consideration of the entire
record, the undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) except she can only occasionally climb ramps and
stairs; and she cannot climb of ropes, ladders, or scaffolds.
She can occasionally balance, stoop, kneel, crouch, and crawl;
and she can frequent handle, finger, and feel; but she must
avoid concentrated exposure to extreme cold and hazards such as
unprotected heights and moving machinery. She is further limited
to unskilled work involving routine and repetitive tasks; in a
low stress environment, defined as occasional changes in the
work setting and occasional independent decision-making; she can
have frequent interaction with coworkers, supervisors, and the
public; and she would be absent from work 1 day per month.” (R.
at 71.)
17