MOODY v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/23/2016. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 15-8319 (JBS)
COMMISSIONER OF SOCIAL
Alan H. Polonsky, Esq.
POLONSKY & POLONSKY
512 S. White Horse Pike
Audubon, NJ 01806
Attorney for Plaintiff
Andrew Charles Lynch, Esq.
Social Security Administration
Office of the General Counsel
300 Spring Garden Street, 6th Floor
Philadelphia, PA 19123
Attorney for Defendant
SIMANDLE, Chief Judge:
In this action, Plaintiff Debra Moody (hereinafter,
“Plaintiff” or “Ms. Moody”) seeks review of the Commissioner of
the Social Security Administration’s (hereinafter, “Defendant”
or “the Commissioner”) denial of her application for
Supplemental Security Benefits under Title XVI of the Social
Security Act (“SSA”), pursuant to 42 U.S.C. § 405(g).
Plaintiff claims she is disabled due to several ailments,
including fibromyalgia, rheumatoid arthritis, degenerative disc
disease of the cervical and lumbar spine, carpal tunnel
syndrome, osteoarthritis, internal derangement of the left knee,
osteoarthrosis localized to the pelvis, urinary retention, and
On May 1, 2015, Administrative Law Judge (“ALJ”)
Michael J. Stacchini, issued a 10-page opinion finding that
Plaintiff was not entitled to Social Security benefits.
arrived at this decision after taking testimony from a
vocational expert who noted that an individual with Plaintiff’s
education, residual functional capacity, and vocational profile
could still perform at least three types of unskilled jobs in
the light exertional category.
In the pending appeal, Plaintiff argues that the ALJ’s
decision must be reversed and remanded on two grounds.
she argues that ALJ Stacchini’s finding as to her residual
functional capacity was not supported by substantial evidence
because the ALJ did not give appropriate weight to Plaintiff’s
treating physician’s opinion.
Second, she argues that ALJ
Stacchini’s decision that the Commissioner had met his burden of
proof at Step Five of the Sequential Evaluation Process in
demonstrating that there were a significant number of alternate
jobs that Plaintiff was able to perform was not supported by
For the reasons that follow, and after careful review of
the entire record, the parties' submissions, and the applicable
law, the Court will remand the case for further adjudication
regarding the classification of Plaintiff’s past relevant work.
A. Procedural Background
Plaintiff Debra Annece Moody filed an application for
social security disability benefits on May 14, 2013, alleging an
onset of disability date of October 15, 2012, at the age of 54.
(R. at 21.)
Her claim was denied by the Social Security
Administration on August 9, 2013. (Id.)
After her claim was
also denied upon reconsideration on September 25, 2013,
Plaintiff appeared before ALJ Stacchini on March 4, 2015, during
which the ALJ received testimony from Vocational Expert (“VE”)
Linda A. Stein and from Plaintiff, via telephone. (Id.)
denied benefits in a May 1, 2015 Opinion. (Id.)
On November 4,
2015, the Appeals Council denied Plaintiff’s request for review.
(Id. at 1-4.)
This appeal followed.
B. Factual Background
Plaintiff was born on January 4, 1958 and is currently 58
years old. (R. at 287.)
From July 1990 to June 2012, she worked
at the Black People’s Unity Movement (BPUM) Child Development
Center in Camden, New Jersey. (Id. at 171, 250, 270).
alleges that she is disabled and unable to work since October
2012 due to generalized pain, swelling of the joints, and left
knee pain due to fibromyalgia and rheumatoid arthritis. (Id. at
1. Initial pain
Plaintiff has experienced a serious of ailments beginning
in 2002. (Id. at 304, 409.)
The record indicates that Ms. Moody
has a history of rheumatoid arthritis/fibromyalgia, causing
generalized joint pain in the ankles, wrist, back, shoulders,
both hands, left palm, and wrists with swelling in the left
ankle, wrists and hands, dry eyes/mouth (sicca) and morning
stiffness lasting one hour. (Id. at 25.)
the present matter, in February 2012, Ms. Moody tested positive
for rheumatoid factor and ANA, and was given Naproxen on an “as
per needed basis.” (Id.)
She was also diagnosed with
fibromyalgia, based on 18/18 tender points on examination,
together with paresthesias and numbness in the leg. (Id.)
2. October 2012 Emergency Room Visit
In October 2012, Ms. Moody sought emergency room treatment
for left leg and hip pain with ambulation. (Id. at 292-303.)
Physical examination showed that the claimant had a normal gait,
with no evidence of joint swelling, joint stiffness, or redness.
A follow—up visit with her primary care physician, Dr. Susan
Laws-Mobilio, yielded a diagnosis of osteoarthritis localized to
the pelvis, a hip strain, and urinary retention. (Id. at 36263.)
3. Treatment with Dr. Mishra (December 2012)
In December 2012, treating rheumatologist Richa Mishra
noted just 5/18 fibromyalgia tender points, in contrast to Ms.
Moody’s February 2012 diagnosis of 18/18 tender points. (Id. at
X-rays of the bilateral wrists and the bilateral
knees showed arthopathy at the right first carpometacarpal
joint, and, to a lesser degree, on the left at the same level;
mild medial compartment joint space narrowing at the right knee
and medial femoral tibial compartment joint space narrowing at
the left knee, with no evidence of acute osseous abnormality at
either knee. (Id. at 25, 388-390.)
Dr. Mishra diagnosed
Plaintiff with fibromyalgia, chronic polyarthritis,
osteoarthritis, anserine bursitis, sicca, and carpal tunnel
syndrome. (R. at 370.)
4. Treatment with Dr. Montemayor (July 2013)
In July 2013, consulting orthopedist Mary Montemayor, M.D.
noted no evidence of muscular tender points or trigger points on
physical exam with full range of motion of the joints. (Id. at
She opined that Ms. Moody would be able to sit,
stand, and walk “normally” in an 8-hour workday, and that she
would be able to finger and grasp, and to reach with the right
and left upper extremity. (R. at 28.)
5. State Agency Opinions (August and September 2013)
In August 2013, State Agency medical consultant Arvind
Chopra, M.D. reviewed all of Plaintiff’s medical records up to
that point, and opined that Ms. Moody had the residual
functional capacity for a full range of light exertion work.
(Id. at 77-79.) In September 2013, upon reconsideration, State
Agency medical consultant Mary McLarnon, M.D. affirmed the
findings of Dr. Chopra. (Id. at 85-90.) Both doctors
characterized Plaintiff’s past relevant work as an
Administrative Supervisor, SVP 4, DOT 219.362-010. (Id. at 79,
6. Treatment with Dr. Traisak (July 2014)
Plaintiff further sought treatment with rheumatologist
Pamela Traisak in July 2014. Dr. Traisak found that Ms. Moody
still had active rheumatoid arthritis and fibromyalgia with
evidence of synovitis in her ankles, as well as in the hands and
wrists and mild myofascial tenderness at 11 of 18 tender points.
(Id. at 26-27, 492.)
Dr. Traisak further noted that Ms. Moody
had full strength (5/5) for the bilateral upper and lower
extremities; full range of motion of the major joints, no knee
effusions, and a nonfocal neurological exam. (Id. at 27, 494.)
She further advised Ms. Moody to “exercise regularly to help
with Fibromyalgia.” (Id. at 495.)
7. Other Pain
Plaintiff has experienced further health problems,
specifically back pain and longstanding radiculopathy, and an
MRI of her lumbar spine in November 2014 showed degenerative
changes with moderate central canal stenosis and mild foraminal
stenosis, but no disc herniation. (Id. at 27, 500.)
She had one
session of physical therapy in January 2015, but it did not
help. (Id. at 527-28).
Regarding Plaintiff’s left knee, x-rays done in August 2014
showed mild tricompartmental degenerative changes/osteoarthritis
and no joint effusion (Id. at 27.)
A follow-up MRI in October
2014 revealed minimal joint effusion; medial and lateral
compartment chondrosis; high-grade patellofemoral chondrosis;
questionable post-operative meniscus repair vs. meniscal retear;
and moderate insertional quadriceps tendinosis. (Id. at 512.)
Ms. Moody uses nighttime braces for her carpal tunnel
syndrome, but she has received no surgical intervention or
additional therapy. (Id. at 27, 75.)
8. Treatment with Dr. Laws-Mobilio (February 2015)
Finally, in February 2015, Plaintiff’s primary care
physician, Dr. Susan Laws-Mobilio opined that Plaintiff can lift
10 pounds occasionally, as well as sit/stand/walk a total of 4
hours in an 8-hour workday, and only occasionally engage in
activities using her hands and feet, while never engaging in
postural activity such as climbing, stooping, kneeling,
crouching, or crawling. (Id. at 28, 590-598.)
C. Plaintiff’s Testimony Before the ALJ
Plaintiff testified before ALJ Michael J. Stacchini on
March 4, 2015. (Id. at 38.)
She was represented by Leo
Hamilton, a non-attorney representative. (Id. at 41.)
testified that she lives in a house with her husband, daughter,
and two granddaughters, ages 6 and 4. (R. at 46.)
testified that “when [she is] able,” she helps her
granddaughters get ready for daycare, prepares meals, and
changes them. (Id. at 48.)
She “sometimes” drives her husband
and daughter to work, as well as drops her grandchildren off at
school and daycare. (Id.)
During the days, she “make[s]
[her]self breakfast” and does “housework or laundry.” (Id. at
Finally, she testified that since October 2012, she has
been applying for “clerical or bookkeeping” types of jobs, and
her last job ended because she “was laid off due to lack of
funds.” (Id. at 50.)
Ms. Moody then articulated her various medical ailments to
the ALJ – the fact that she gets “numbness and tingling in [her]
hands and [her] feet and arms” almost every day from her
fibromyalgia, her “swelling and pain” that occurs “all the time”
from her RA, as well as pain in her neck and upper back. (Id. at
She also described pain in her hip and lower back, as
well as her wrist braces for carpal tunnel syndrome. (Id. at
Ms. Moody explained that her urinary retention problems
force her to go to the bathroom “every two hours.” (Id. at 54.)
Finally, she further testified that she uses a cane “around the
house” and primarily for “support.” (Id. at 56.)
D. VE Testimony Before the ALJ
Vocational Expert Linda Stein also testified at the March
4, 2015 hearing.
First, during a discussion about classifying
Plaintiff’s past work, after Ms. Moody confirmed that she dealt
with children and was a substitute teacher, the ALJ asked if she
prepared curriculums. (Id. at 44-45.) The following colloquy
ALJ: You were teaching classes? Were you preparing
curriculum at all?
CLMT: Yes, mm-hmm.
ALJ: What were you preparing curriculums for?
CLMT: Oh, curriculum, I’m sorry, no, I didn’t prepare
curriculum. That’s usually done in advance.
ALJ: Oh. So at times you were teaching the classroom, in
the classroom. What other responsibilities did you have?
CLMT: Well, there was changing children, the infants,
playing with them or doing, helping them do circle time.
ALJ: All right. So sometimes you were actually in the
classroom. That you described. What were your other duties
and responsibilities as the supervisor?
CLMT: As the supervisor, I was the director’s right hand,
so I did anything that needed to be done.
ALJ: And what was that? You were preparing reports? What
else were you doing?
CLMT: Preparing reports, payroll, setting up for meetings,
sometimes conducting meetings, and then the usual
additional stuff, typing, filing, answering the phones.
ALJ: Okay, Is that enough information, Ms. Stein?
VE: I’m going to describe that as a school administrator,
and it’s also known as a supervisor, education.
VE: The DOT for that is 099.117.026. It has an SVP of 8 and
an exertional level of light.
ALJ: Are there any transferable skills in that job or not
VE: Well, there are the clerical skills that were described
are universally generalizable and it’s described using
computers, keeping records.
Then, later in the examination, the VE explained
that “the [school administrator classification] is closest to
what I believe the position was. There’s not an exact fit in the
DOT.” (Id. at 60.) The ALJ responded: “All right, But based on
your expertise, based on your training, this is how you would
classify it, correct?
The VE responded: “Yes.” (Id.)
E. The ALJ Decision
ALJ Stacchini issued a 10-page written decision on May 1,
2015, ultimately finding that Plaintiff was not disabled within
the meaning of the Social Security Act, as he made the following
1. Ms. Moody meets the insured status requirements of the
Social Security Act through December 31, 2016.
2. Ms. Moody has not engaged in substantial gainful activity
since October 15, 2012, the alleged onset date (20 CFR
404.1571 et seq.)
3. Ms. Moody has the following severe impairments:
fibromyalgia, rheumatoid arthritis (RA)/polyarthritis;
degenerative disc disease (DDD) of the cervical and
lumbar spine; carpal tunnel syndrome (CTS),
osteoarthritis; internal derangement of the left knee,
osteoarthrosis localized to the pelvis; urinary
retention, and obesity (20 CFR 404.1520(c)).
4. Ms. Moody does not have an impairment or combination of
impairments that meets or medically equals the severity
of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
5. Ms. Moody has the residual functional capacity to perform
sedentary work, as defined in 20 CFR 404.1567(a), with
the following additional limitations: Ms. Moody can
balance, stoop, kneel, crouch, crawl, and climb ramps and
stairs occasionally, but she cannot climb ladders, ropes
or scaffolds. She can frequently use her hands for
handling and fingering, and she is allowed to use a cane
for ambulation and use the contralateral upper extremity
to lift/carry up to 10 pounds. She is allowed regularly
scheduled breaks of 15 minutes each in the mornings and
afternoons, and a 1/2 hour to 1-hour midday break.
6. Ms. Moody is unable to perform any past relevant work (20
7. Ms. Moody was born on January 4, 1958 and was 54 years
old, which is defined as “an individual closely
approaching advanced age,” on the alleged disability
onset date. The claimant subsequently changed age
category to “advanced age” (20 CFR 404.1563).
8. Ms. Moody has at least a high school education and is
able to communicate in English (20 CFR 404.1564).
9. Ms. Moody has acquired work skills from past relevant
work (20 CFR 404.1568).
Considering Ms. Moody’s age, education, work
experience, and residual functional capacity, Ms. Moody
has acquired work skills relevant work that are
transferable to other occupations with jobs existing in
significant numbers in the national economy (20 CFR
404.1569, 404.1569(a) and 404.1568(d)).
Ms. Moody has not been under a disability, as defined
in the Social Security Act, from October 15, 2012,
through the date of the ALJ decision (20 CFR
Specifically regarding residual functional capacity
(Finding 5), the ALJ gave “some weight” to Dr. Montemayor’s July
2013 opinion, “as it is consistent with normal findings on
examination, including a steady gait, full range of motion in
the upper and lower extremities, and no tender or trigger
points.” (R. at 28.)
The ALJ gave “significant weight” to Dr.
McLarnon’s September 2013 opinion, “as it was based on a review
of the available medical records and objective clinical and
diagnostic findings.” (Id.) The ALJ gave “some weight” to Dr.
Mobilio’s February 2015 opinion that Ms. Moody can lift 10
pounds occasionally, but gave “little weight” to the portion of
her opinion regarding Ms. Moody’s only being able to
sit/stand/walk a total of 4 hours in an 8 hour workday, and only
occasionally engaging in activities using her hands and feet.
He reasoned that this was “inconsistent with the medical
evidence including the claimants (sic) conservative course of
treatment and physical examinations described in detail above
and with the claimant’s testimony regarding her ADLs.” (Id.)
Regarding Plaintiff’s past relevant work (Findings 6 and
9), the ALJ adopted the VE’s testimony that her past relevant
work was classified as a School Administrator (DOT 099.117-026),
light, skilled SVP 8. (Id. at 29.)
The ALJ also adopted the
VE’s testimony regarding the School Administrator position
requiring the following skills: clerical skills including
preparing payroll, report-writing, typing, greeting customers
and telephone skills. (Id.)
Finally, the ALJ adopted the VE’s
testimony that Plaintiff’s skills to transfer to occupations
such as Administrative Assistant (DOT 169.167-010), Sedentary,
SVP 7; Information Clerk, (DOT 237.367-022), Sedentary, SVP 4;
and Receptionist (237.367-038), Sedentary, SVP 4. (R. at 30.)
The ALJ concluded that these jobs were so similar to Plaintiff’s
past work that she would need very little, if any, vocational
adjustment in terms of tools, work processes, work setting or
The ALJ thus determined that Plaintiff was not
disabled within the meaning of the Act.
III. STANDARD OF REVIEW
The Court has jurisdiction to review the final decision
pursuant to 42 U.S.C. § 405(g).
When reviewing the denial of
disability benefits, the Court must determine whether
substantial evidence supports the denial. See Brown v. Bowen,
845 F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Comm’r of Soc.
Sec., 529 F.3d 198, 200 (3d Cir. 2008).
The requirement of
substantial evidence, however, constitutes a deferential
standard of review, see Jones v. Barnhart, 364 F.3d 501, 503 (3d
Cir. 2004), and does not require “a large or [even] considerable
amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 564
Rather, substantial evidence requires “more than a mere
scintilla[,]” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999), but generally less than a preponderance. See Jones, 364
F.3d at 503.
Consequently, substantial evidence supports the
Commissioner’s determination where a “reasonable mind might
accept the relevant evidence as adequate” to support the
conclusion reached by the Commissioner. Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999).
In order to facilitate this Court’s review, the ALJ must
set out a specific factual basis for each finding. See Baerga v.
Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S.
Additionally, the ALJ “must adequately explain in
the record [the] 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)), and
must review all pertinent medical and nonmedical evidence “and
explain his conciliations and rejections.” Burnett v. Comm’r of
Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
the ALJ need not discuss “every tidbit of evidence included in
the record.” Hur v. Barnhart, 94 F. App’x 130, 133 (3d Cir.
Rather, the ALJ must set forth sufficient findings to
satisfy the reviewing court that the ALJ arrived at a decision
through application of the proper legal standards, and upon a
complete review of the relevant factual record. See Friedberg v.
Schweiker, 721 F.2d 445, 447 (3d Cir. 1983).
A. LEGAL STANDARD FOR DETERMINING DISABILITY
To be eligible for social security disability insurance
benefits, a claimant must have a “medically determinable
physical or mental impairment” that prevents her from engaging
in any “substantial gainful activity” for a continuous twelvemonth period. 42 U.S.C. § 1382c(a)(3)(A); Plummer v. Apfel, 186
F.3d 422, 427 (3d Cir. 1999).
A claimant lacks the ability to
engage in any substantial gainful activity “only if his physical
or mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 1382c(a)(3)(B); Plummer, 186 F.3d
The Commissioner reviews disability claims in accordance
with a five-step process set forth in 20 C.F.R. § 404.1520. In
step one, the Commissioner must determine whether the claimant
is currently engaged in “substantial gainful activity.” 20
C.F.R. § 1520(b).
If the answer is yes, the disability claim
will be denied. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a “severe impairment,” defined as an
impairment “which significantly limits [the claimant’s] physical
or mental ability to do basic work activities.” 20 C.F.R. §
A claimant who cannot claim a “severe” impairment is
ineligible for benefits. Plummer, 186 F.3d at 428.
Step three requires the Commissioner to compare the medical
evidence of the claimant’s impairment to a list of impairments
presumed severe enough to preclude any gainful activity. 20
C.F.R. § 1520(d).
If a claimant suffers from a listed
impairment or its equivalent, she is approved for disability
benefits and the analysis stops.
If she does not suffer from a
listed impairment or its equivalent, the analysis proceeds to
steps four and five to determine whether the she retains the
ability to engage in substantial gainful activity. Plummer, 186
F.3d at 428.
The Commissioner conducts a residual functional capacity
(“RFC”) assessment at steps four and five.
The RFC assessment
considers all of the claimant’s medically determinable
impairments and determines the most the claimant can still do
despite his limitations. 20 C.F.R. § 404.1545(a)(1)-(2).
RFC is expressed in terms of physical exertional levels of
sedentary, light, medium, heavy, or very heavy work. 20 C.F.R. §
Based on the claimant’s RFC, the Commissioner
determines, at step four, whether the claimant can perform the
physical exertion requirements of his past relevant work. 20
C.F.R. § 404.1520(f).
If she is unable to resume her former
occupation, the Commissioner will then proceed to the final step
and decide whether the claimant is capable of performing other
work existing in significant numbers in the national economy,
taking into account her RFC and vocational factors such as age,
education, and work experience. 20 C.F.R. §§ 404.1520(g),
In the final step, Step Five, the ALJ relies on the
Medical-Vocational Guidelines (“Guidelines” or “Grids”) set
forth in 20 C.F.R. Part 404, Subpart P, Appendix 2, which
establish the types and number of jobs that exist in the
national economy for claimants with certain exertional
The Guidelines “consist of a matrix of four
factors – physical ability, age, education, and work experience
– and set forth rules that identify whether jobs requiring
specific combinations of these factors exist in significant
numbers in the national economy.” Sykes v. Apfel, 228 F.3d 259,
273 (3d Cir. 2000).
When a claimant’s combination of factors correspond with
the same combination of factors in the Grid, the Grid will
direct a conclusion as to disability, which the ALJ must follow.
Id.; see also Hall v. Comm’r of Soc. Sec., 218 F. App’x 212, 216
(3d Cir. 2007) (“When the four factors in a claimant’s case
correspond exactly with the four factors set forth in the grids,
the ALJ must reach the result the grids reach.”) (emphasis in
original). However, where a claimant’s specific profile is not
listed in the Grid, such as when the claimant has certain
limitations to their exertional capacity and can perform
something in between two exertional ranges of work, the Grid
does not mandate a specific finding, and may only be used as a
framework to guide the disability decision. See 20 C.F.R. Pt.
404, Subpt. P, App. 2, § 200.00(d).
In such cases, the ALJ must
support his determination by relying on vocational testimony or
similar evidence to decide whether a significant number of jobs
exist for a particular claimant given his specific background
and exertional limitations. See Sykes, 228 F.3d at 264; Hall,
218 F. App’x at 217. If, after considering all the evidence, the
answer is no, a finding of “disabled” is required. However, if
the Commissioner determines that jobs exist in significant
numbers in the national economy for a particular claimant, the
Commissioner will find the claimant “not disabled.” See Sykes,
228 F.3d at 273.
B. THE ALJ DID NOT ERR IN ITS WEIGHING OF PLAINTIFF’S
TREATING AND NON-TREATING PHYSICIANS’ OPINIONS
Plaintiff first contests the ALJ’s RFC determination,
arguing that the ALJ did not properly weigh her treating
She makes three arguments: (1) the ALJ
improperly relied on non-examining and non-treating physicians,
(2) Plaintiff’s treating physician was improperly discounted,
and (3) the ALJ’s decision lacked an adequate discussion of
activities of daily living and credibility.
SSR 96-8p dictates that the RFC assessment is a “functionby-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.” SSR
In order to meet the requirements of SSR 96-8p, the ALJ
“must specify the evidence that he relied upon to support his
conclusion.” Sullivan v. Comm’r of Soc. Sec., No. 12-7668, 2013
WL 5973799, at *8 (D.N.J. Nov. 8, 2013). “Moreover, the ALJ’s
finding of residual functional capacity must be “accompanied by
a clear and satisfactory explanation of the basis on which it
rests.” Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2011)
(quoting Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 2011)).
It is well established that “the ALJ - not treating or
examining physicians or State agency consultants - must make the
ultimate disability and RFC determinations.” Chandler v. Comm'r
of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (citing 20 C.F.R.
§§ 404.1527(e)(1), 404.1546(c)).
Furthermore, while an ALJ must
consider the opinions of treating physicians, “[t]he law is
clear . . . that the opinion of a treating physician does not
bind the ALJ on the issue of functional capacity” where it is
not well supported or there is contradictory evidence. Chandler,
667 F.3d at 361 (alteration in original) (quoting Brown v.
Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)); see also Coleman
v. Comm'r. of Soc. Sec. Admin., 494 F. App’x 252, 254 (3d Cir.
Sept. 5, 2012) (“Where, as here, the opinion of a treating
physician conflicts with that of a non-treating, non-examining
physician, the ALJ may choose whom to credit but cannot reject
evidence for no reason or for the wrong reason.”) (quoting
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)).
When a conflict in the evidence exists, the ALJ retains
significant discretion in deciding whom to credit. Plummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999).
The ALJ is entitled to
weigh all evidence in making its finding, and is not required to
accept the opinion of any medical expert. Brown v. Astrue, 649
F.3d 193, 196 (3d Cir. 2011).
In discounting evidence, the ALJ
must give a clear explanation for why it is doing so. Plummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999); Cotter v. Harris, 642
F.2d 700, 704-05 (3d Cir. 1981).
First, Plaintiff criticizes the ALJ’s giving “significant
weight” to the opinion of non-examining state agency physician
Dr. McLarnon because it was “simply . . . based on a review of
the record.” (Pl. Br. at 16.)
But the ALJ is entitled to rely
on Dr. McLaron’s opinion in his discretion, especially when the
state agency physician provides ample reasoning for her
decision. See Grimaldi v. Colvin, No. 12-6522, 2016 WL 1182704,
at *4 (D.N.J. Mar. 28, 2016)(citations omitted)(stating that
“the opinions of non-examining physicians may override a
treating source's opinions provided that the former are
supported by evidence in the record”).
Dr. McLarnon reviewed
Plaintiff’s medical history from January 2002 to July 2013, and
concluded that while Plaintiff’s conditions resulted in “some
limitations” in her ability to perform work-related activities,
they were “not severe enough” to keep her from working, as she
retained “the ability to perform work of a light and sedentary
nature.” (R. at 88-90.)
Plaintiff admits that Dr. McLarnon
provided “detailed opinion evidence,” and her mere disagreement
with the weight the ALJ placed on the opinion is not enough for
Next, Plaintiff argues that in dismissing treating
physician Dr. Laws-Mobilio’s opinions “with a summary
statement,” the ALJ improperly substituted his own lay opinion
with that of the treating physician. (Pl. Br. at 18.)
finds this argument unpersuasive.
Here, the ALJ found that Dr.
Laws-Mobilio’s February 2015 opinion was contradicted by medical
and other evidence in the record, so he gave her opinion “little
weight.” (R. at 28.)
Specifically, the ALJ did not accord
controlling weight to Dr. Laws-Mobilio’s opinion because it was
inconsistent with, and unsupported by, other substantial
evidence in the case record, particularly Ms. Moody’s
conservative treatment, list of daily activities, and examining
and non-examining doctors’ analyses.
Plaintiff argues that the
RFC evidence was only “evaluated in its entirety in one
paragraph,” but the ALJ describes the conflicting evidence in
detail throughout the entirety of his reasoning on residual
functional capacity. (Pl. Br. at 15.)
The ALJ notes that Ms.
Moody testified to “an active range of ADLs, which include
preparing light meals, cleaning, laundry, shopping, and driving
(including dropping her grandchildren off at daycare).” (R. at
Furthermore, the ALJ explained that “treatment notes show
some improvement [with her RA and fibromyalgia] with such”
medications Neurotonin, Lyrica, and OTC Ibuprofen. (Id.)
addition, Dr. Montemayor’s assessment that Mr. Moody could “sit,
stand, and walk normally in an 8-hour work day,” as well as
“finger and grasp” directly conflicts with Dr. Laws-Mobilio’s
assessment. (R. at 410).
The Court agrees that the record also
supports the ALJ’s finding – for instance, Dr. Mishra noted that
Plaintiff’s fibromyalgia symptoms “improved with neurotonin 600
mg at bedtime” (Id. at 368), and Dr. Traisak recommended that
Plaintiff “exercise regularly to help with Fibromyalgia” (Id. at
Although the ALJ could have explained his analysis more
clearly, the Court nevertheless agrees that the objective record
evidence contradicts Dr. Laws-Mobilio’s opinion.
Finally, Plaintiff argues that the ALJ’s decision lacked an
adequate discussion of activities of daily living and
Plaintiff’s credibility. (Pl. Br. at 18-20.)
She cites to SSR
96-7p for the proposition that “[i]t is not sufficient for the
adjudicator to make a single, conclusory statement that ‘the
individual’s allegations have been considered’ or that ‘the
allegations are (or are not) credible.’” (Id. at 19.)
responds that the ALJ did consider Plaintiff’s credibility, and
“reasonably determined that her subjective complaints were not
fully credible in light of her conservative treatment,
observations of evaluating specialists, and her activity level.”
(Def. Br. at 11.)
The Court agrees.
The ALJ called particular
attention to inconsistent statements made by Plaintiff regarding
ability to work and reflecting on her credibility, which
Plaintiff conspicuously omits from her briefing. (R. at 26).
evaluating her credibility, the ALJ explained: “I also note that
although the claimant has a good work history, her last job
ended because of lack of funding for her position, and not
because of her medical condition.
Since then, she has been
applying for similar work.” (Id. at 26.) Plaintiff’s testimony
supports this, as she stated at her hearing:
ALJ: Have you applied for work at all since October 2012?
ALJ: What kinds of jobs have you been applying for?
CLMT: The same type that I, like clerical or bookkeeping,
that type of thing.
ALJ: What have you done as far as looking for the work? Do
you get it off of like Craigslist, off of a newspaper,
internet? How do you find out about the job?
CLMT: Most times you have to go on the internet, even if—
ALJ: Have you gotten any interviews?
ALJ: Why did your last job end?
CLMT: I was laid off due to lack of funds, and then the
center closed shortly afterwards.
(R. at 50.)
The court therefore cannot conclude that the
ALJ's finding on residual functional capacity is unsupported by
C. THE ALJ ERRED IN CLASSIFYING PLAINTIFF’S PAST RELEVANT
WORK UNDER STEP FOUR
Plaintiff next argues that the ALJ relied on flawed
Vocational Expert testimony to mischaracterize her past relevant
work as a “School Administrator.” (Pl. Br. at 24.)
argues in response that that ALJ did all that was necessary
under the Social Security regulations, and that Plaintiff’s
disagreement with the finding, which was based on the testimony
of a vocational expert, is insufficient to conclude that the
ALJ’s finding was not supported by substantial evidence. (Def.
Br. at 15.)
For the following reasons, the ALJ’s finding that
Plaintiff performed past relevant work as a “school
administrator” is not based on substantial evidence; therefore,
remand is required for proper classification of Plaintiff’s past
In assessing claimant's application for benefits, the ALJ
is required to (1) ask, on record, whether vocational expert's
(VE) testimony is consistent with the Dictionary of Occupational
Titles (DOT)1, (2) elicit a reasonable explanation where the
inconsistency does appear, and (3) explain in its decision how
conflict was resolved. Zirnsak v. Colvin, 777 F.3d 607 (3d Cir.
The Dictionary of Occupational Titles is a publication of the
United States Department of Labor that contains descriptions of
the requirements for thousands of jobs that exist in the
national economy . . . .” Burns v. Barnhart, 312 F.3d 113, 119
(3d Cir. 2002).
2014); see also Burns v. Barnhart, 312 F.3d 113, 117 (3d Cir.
2002) (explaining that where there is a conflict, an explanation
must be made on the record and the ALJ must explain in his
decision how the conflict was resolved).
The Third Circuit has
emphasized that the presence of inconsistencies does not mandate
remand, so long as “substantial evidence exists in other
portions of the record that can form an appropriate basis to
support the result.” Zirnsak, 777 F.3d at 617 (quoting
Rutherford v. Barnhart, 299 F.3d 546, 557 (3d Cir. 2005)).
The ALJ clearly satisfied the first Zirnsak factor, as he
asked the VE if her testimony was consistent with the DOT, and
she replied that it was. (R. at 30, 67.)
Regarding the second
Zirnsak factor, the ALJ did elicit an explanation about why the
VE classified Plaintiff’s occupation as School Administrator,
SVP 8, but it does not appear to be based on substantial
The VE explained that “the [school administrator
classification] is closest to what I believe the position was.
There’s not an exact fit in the DOT.” (Id. at 60.)
responded: “All right, But based on your expertise, based on
your training, this is how you would classify it, correct? The
VE responded: “Yes.” (R. at 44-46.)
The Court finds that the ALJ did not elicit a reasonable
explanation because even a cursory examination of the job that
the VE chose reveals that none of the tasks were actually
performed by Plaintiff.
The job description for a School
Administrator is as follows:
Develops program curriculum and directs teaching personnel
of school system: Confers with teaching and administrative
staff to plan and develop curriculum designed to meet needs
of students. Visits classrooms to observe effectiveness of
instructional methods and material. Evaluates teaching
techniques and recommends changes for improving them.
Provides teachers with supplies, equipment, and visual and
other instructional aids. Conducts workshops and
conferences for teachers to study new classroom procedures,
new instructional materials, and other aids to teaching.
Assists in recruitment and in-service training of teachers.
Emp’t & Training Admin., U.S. Dep’t of Labor, Dictionary of
Occupational Titles § 099.117-026 (4th ed. 1991), 1991 WL 646931
On the other hand, the record indicates that Plaintiff
described her job as an Administrative Assistant/Supervisor in a
daycare, where her duties included “typing, filing, answering
telephones, registration, generating reports, attending
meetings, occasional (sic) assisting in classrooms . . .
arranging repairs, supply ordering, etc.” (R. at 236.)
further wrote that her duties included “greet[ing] visitors . .
. reports, occasionally relieve classroom teachers, meetings and
workshops, process applications, etc. (R. at 250, 270.)
classroom, Plaintiff “chang[ed] children, the infants, playing
with them or doing, helping them do circle time.” (R. at 45.)
The ALJ never referenced Plaintiff's own descriptions of her
past relevant work,2 but only cited to the VE testimony that the
Plaintiff’s past work experience should be classified as a
Plaintiff’s duties as discussed on the
record have nothing to do with the job that the VE classified
Plaintiff as having.
When asked during the hearing if she
prepared curriculums, Plaintiff responded “Oh, curriculum, I’m
sorry, no, I didn’t prepare curriculum. That’s usually done in
Additionally, Plaintiff’s representative asked the VE about
this classification discrepancy on cross examination, yet the
ALJ still failed to follow up. Plaintiff’s representative asked
the VE if it was possible that the school administrator was a
“composite job” because it “was not an exact fit” in the DOT (R.
at 67.) The VE responded:
VE: For the school administrator did have some, I mean, it
describes a broad range of activities which was inclusive
of what the claimant did do. It also had aspects of
curriculum that, although she was in the classroom, she
said the curriculum was prescripted or prescribed already,
but she wasn’t particularly a curriculum developer. I
didn’t use director. There was a director of daycare and
the claimant said she worked under the director, so I
didn’t use that one. And I didn’t feel that administrative
assistant, although it’s close to the duties she did, you
know, provided, but it’s not specifically to a school, so
that’s why I used the supervisor, the school administrator,
The Court notes that a “claimant is the primary source for
vocational documentation, and statements by the claimant
regarding past work are generally sufficient for determining the
skill level; exertional demands and nonexertional demands of
such work.” SSR 82–62, 1982 WL 31386, at *3.
as supervisor, education job title. I thought it was the
closest that fit.
REP: Is the short answer no, it was not a composite job? Is
that her testimony?
ALJ: I believe it is. You’re saying that it is not a
composite job, correct?
VE: Not to my knowledge, because the other pieces that
would be considered would be beyond the scope of what she
did on a regular basis. For example, she said she was in
the classroom and she dealt with children but not on a
routine basis to consider that an integral part of what she
did, and that would be exertionally probably higher than
light. It would be light to maybe medium. And I did not
classify it as like a daycare worker. You know, there’s a
DOT for daycare worker, but that didn’t seem appropriate to
what I understand the claimant did. And she was working
there from 1990 to I believe 2012. That’s a long time in
the same setting.
(R. at 68-69.)
Regarding the third Zirnsak factor, the ALJ
failed to explain in his decision how the conflict between the
VE testimony and the DOT was resolved.
He simply adopted the
testimony of the VE that Plaintiff’s past work experience was a
School Administrator, an SVP 8, a skilled job.3
the state agency classified Plaintiff’s work as an
Administrative Clerk, DOT 219.362-010, semi-skilled SVP 4 (R. at
This demonstrates a clear inconsistency between what the
The ALJ states that Plaintiff was a “college graduate,” but the
record indicates that Plaintiff only completed one year of
college (R. at 25, 207.) While this error is harmless standing
alone, when coupled with the classification of Plaintiff’s work
as a highly skilled occupation, it demonstrates that the ALJ’s
classification of her past relevant work was not based on
VE testified, that Plaintiff had past relevant work at SVP 8,
and what the state agency found, an SVP 4 job.
The ALJ should
have asked the VE to explain this discrepancy, and included his
reasoning in his opinion. See Landeta v. Comm'r of Soc. Sec.,
191 F. App'x 105, 110 (3d Cir. 2006)(“The ALJ's failure to
address evidence in direct conflict with his/her findings or to
reject uncontradicted evidence without a clear statement of the
reasoning is erroneous.”).
Plaintiff offers other jobs in which
that Plaintiff could have been classified, such as a Nursery
School Attendant (DOT 359.677-018), a semi-skilled SVP 4
position (Pl. Br. at 27.)
The Court will not decide
specifically how Plaintiff should have been classified, as it
will remand to allow the ALJ to properly classify Plaintiff’s
job. See Bernisky v. Comm’r of Soc. Sec., No. 15-1284, 2016 WL
6106716, at *4 (D.N.J. Oct. 17, 2016)(remanding the case for the
ALJ to develop the record as to Plaintiff’s prior occupation and
noting that it “cannot discern, and the Defendant does not
identify, evidence in the record which supports the ALJ’s
conclusion at step four”).
Thus, the ALJ could and should have addressed the apparent
defects and conflicts in the vocational expert's testimony,
especially after plaintiff's representative called his attention
to some of those defects, but instead uncritically adopted it.
On remand, the ALJ should ensure that he has correctly
classified Ms. Moody's past relevant work, obtaining the
testimony of a vocational expert, if necessary.4
For all of these reasons, the Court finds that substantial
evidence supports the ALJ’s decision on residual functional
capacity, but that the case should be remanded to accurately
classify Plaintiff’s past relevant work and determine whether
claimant can perform the physical exertion requirements of her
past relevant work, and then proceed to reevaluate the final
step of whether the claimant is capable of performing other work
existing in significant numbers in the national economy.
accompanying Order will be entered.
December 23, 2016
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
The Court does not reach Plaintiff’s Step Five objections
regarding the transferability of skills. As Plaintiff correctly
argues, if the ALJ was incorrect about Plaintiff’s past work,
then the remainder of the VE testimony regarding what skills
were created by that past work and what skills would be
transferrable lacks any support. (Pl. Br. at 28) Once the ALJ
correctly classifies Plaintiff’s past relevant work on remand,
it will be necessary for the ALJ to reassess transferability of
any skills obtained by Plaintiff from the job she actually
performed. See Bruce v. Colvin, No. 12-827, 2013 WL 781990, at
*4 (D.N.J. Feb. 28, 2013)(“[D]ue to plaintiff’s age, the
vocational expert’s classification of plaintiff’s past relevant
work is material to the ALJ’s step five finding in this case.”).
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