NYHOLM v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/31/2017. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-187 (JBS)
COMMISSIONER OF SOCIAL
Richard Lowell Frankel, Esq.
BROSS & FRANKEL, PA
102 Browning Lane, Bldg C-1
Cherry Hill, NJ 08003
Attorney for Plaintiff
Roxanne Andrews, Esq.
Social Security Administration
Office of the Regional Chief Counsel
300 Spring Garden Street, 6th Floor
Philadelphia, PA 19123
Attorney for Defendant
SIMANDLE, Chief Judge:
In this action, Plaintiff Dawn Nyholm (hereinafter,
“Plaintiff” or “Ms. Nyholm”) 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 that she is disabled due to a host of
impairments, including lumbar and cervical radiculopathy,
degenerative disc disease, bulging discs, cervical facet
arthropathy, myofascial pain syndrome, left ankle tendonitis,
bilateral knee pain, urinary retention, post concussive
syndrome, endometriosis, psoriasis affecting feet and hands, and
anxiety and depression.
On January 22, 2015, Administrative Law
Judge (“ALJ”) Marguerite Toland issued a 27-page opinion finding
that Plaintiff was not entitled to Social Security benefits.
The ALJ arrived at the decision after taking testimony from
Plaintiff as well as receiving written interrogatories from
Vocational Expert (“VE”) Louis P. Szollosy.
In the pending appeal, Plaintiff argues that the ALJ’s
decision must be reversed and remanded on four grounds. First,
she argues that ALJ Toland’s finding as to her residual
functional capacity (“RFC”) was not supported by substantial
evidence because the ALJ did not give appropriate weight to the
opinions of Plaintiff’s treating physicians.
argues that ALJ Toland erred in her evaluation of the
interrogatories propounded by the Plaintiff on the VE.
she argues that the ALJ erred in her Step Two analysis by not
including Plaintiff’s non-severe impairments in the formulation
And finally, Plaintiff argues that ALJ Toland erred in
her determination of credibility.
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 inclusion of Plaintiff’s non-severe impairments in
the formulation of RFC.
A. Procedural Background
Plaintiff filed an application for social security
disability benefits on September 25, 2012, alleging an onset of
disability from June 1, 2011, at the age of 31. Her claim was
initially denied on January 15, 2013, and upon reconsideration
on July 8, 2013. (R. at 19.)
A hearing before ALJ Marguerite
Toland was held on March 6, 2014, which resulted in an
unfavorable decision, dated January 22, 2015, finding Plaintiff
not disabled. (Id. at 53.)
The VE was unable to attend the
hearing, but instead completed written interrogatories from the
ALJ, including additional interrogatories posited by the
Plaintiff (Id. at 56, 234-53.)
Plaintiff then requested review
of the hearing decision the Appeals Council, but the Council
denied Plaintiff’s Request for Review on November 10, 2015. (Id.
at 1, 14-15.)
This appeal followed.
B. Factual Background
Plaintiff was born on August 18, 1979 and is currently 37
years old. (Id. at 88.)
She is a high school graduate with two
years of college, and has past relevant work as a collection
agent. (Id. at 191.)
1. Initial Back Pain
Plaintiff began experiencing lower back pain as far back as
April 2003, when she was involved in a motor vehicle accident.
(Id. at 318.)
She saw Edward T. Soriano, D.O. and Trina Lasko,
D.O. on numerous occasions between 2005-2010 to help treat her
pain. (Id. at 305-310, 313, 316.)
In a November 2010 visit to
Dr. Philip Tasca, Plaintiff noted “continued back pain, which is
unchanged and chronic.” (Id. at 266.)
On April 7, 2011,
Plaintiff saw Jennifer Windstein, M.S., P.A.-C., and complained
of back pain radiating into the left glute (5-6/10 on the VAS
pain scale), and at times shooting pain into the bilateral feet.
(Id. at 262.)
Plaintiff was assessed with lumbosacral
spondylosis, chronic and stable; history of cervical spine
spondylosis, and eczema, and opted to proceed with injection
therapy. (Id. at 263.)
On June 9, 2011, Plaintiff informed Ms.
Windstein that she could not pay for an injection, so Ms.
Windstein changed Plaintiff’s medications to Percocet, MSContin,
Valium and Neurotonin.
On August 11, 2011, Plaintiff returned
to Ms. Windstein, complaining about muscle spasm and shooting
pain to the lower extremity. (Id. at 260.) She was observed
walking to the examination room, from the examination room, and
to her car. (Id.)
Barry Gleimer, D.O. examined Plaintiff on January 4, 2012,
and found that Plaintiff exhibited palpatory tenderness over the
lumbar musculature left more than right, with facet tenderness
at the L4-5 and L5-S1 levels (Id. at 521.)
diagnosed Plaintiff with lumbar disc protrusion at L5-SI with a
disc buldge at L4-5, facet arthrosis at L4-5 and L5-SI and
chronic lower back pain. On February 5, 2012, after seeing Dr.
Mohsen Kalliny, Plaintiff was diagnosed with lumbar disc
herniation and lumbar radiculopathy. (Id. at 404.)
followed up with Dr. Kalliny on March 6, 2012, and indicated an
increase in her pain (8 out of 10) and pain during the procedure
(Id. at 402, 421.) After an MRI on March 22, 2012 revealed
multilevel lumbar disc bulging/protrusion; multilevel bulging
cervical disc; acute lumbar radiculopathy, and cervical facet
arthrosis with degenerative disc disease, Plaintiff was given
stronger medication, including 120 Percocet from Dr. Kalliny
each month. (Id. at 31.)1
Then, on August 10, 2012, Plaintiff indicated to Dr. Louis
Spagnoletti that she had neck pain radiating into the upper
extremities, low back pain radiating into the lower extremities,
and headaches. (Id. at 430.) Dr. Spagnoletti diagnosed Plaintiff
with lumbar and cervical radiculopathy, ambulatory dysfunction,
An MRI of the lumbar spine performed on March 22,2012 revealed
bulging discs at T11-12. (Id. at 395-422.)
cervical facet atrophy, cervical and lumbar degenerative disc
disease, migraine and myofascial pain syndrome (Id. at 431.)
Plaintiff continued to see Dr. Spagnoletti throughout the fall
of 2012 and into early 2013. (Id. at 527-29, 531-533, 690-693.)
After an examination on March 19, 2013, Plaintiff reported her
pain measured at 5 out of 10, and Dr. Spagnoletti continued
Plaintiff’s medications – Norflex, Kadian, Valium, and
Roxicodone. (Id. at 545.) Plaintiff’s pain remained at 5 to 6
out of 10 throughout 2013 visits with Dr. Spagnoletti (Id. at
Plaintiff last saw Dr. Spagnoletti on May 13, 2014,
when she reported pain that traveled from her left leg that was
sharp, stabbing, and burning.
But her pain remained between 5
and 6 out of 10. (Id. at 690.)
On October 24, 2013, Dr. Justin Schweitzer assessed
Plaintiff with low back pain. (Id. at 503.)
opined that the Plaintiff’s overall symptoms would preclude her
from working 3-4 days per month, and that she would be “offtask” in excess of 35% of an eight-hour workday. (R. at 584-86,
Additionally, Dr. Schweitzer opined that Plaintiff could
sit for less than four hours out of an eight-hour workday, stand
for less than two hours out of an eight-hour workday, and
occasionally lift and carry ten pounds. (Id. at 587.)
2. Cervical Impairments
On February 5, 2012, Dr. Kalliny examined Plaintiff, and
diagnosed her with cervical degenerative disc disease and
cervical facet arthrosis at C4-6, but on a follow-up visit on
March 6, 2012, Dr. Kalliny noted that an MRI of Plaintiff’s
cervical spine revealed no significant abnormality. (Id. at
On August 10, 2012, Dr. Spagnoletti diagnosed Plaintiff
with myofascial pain syndrome, cervical degenerative disc
disease, cervical facet arthropathy and cervical radiculopathy,
after Plaintiff stated that she experienced neck pain that
radiated to both upper extremities. (Id. at 427-32.)
prescribed Valium, Roxicodone and Tramadol. (Id.) On April 14,
2014, Plaintiff complained of neck stiffness, and Dr.
Spagnoletti observed tenderness in the levator scapulae,
scalenes, and sternalis. (Id. at 692-93.)
3. Migraine Headaches
On August 6, 2012, Plaintiff was evaluated by Dr. Albert J.
Tahmoush for her daily headaches, was diagnosed with occipital
neuralgia, and prescribed Topamax and Imitrex. (Id. at 424.)
Plaintiff informed Dr. Spagnoletti on August 10, 2012 that she
experienced migraine headaches. (Id. at 427-32.)
Orwitz, M.D. examined Plaintiff on July 30, 2013, and Plaintiff
stated there that she experienced daily headaches and severe
headaches 12 to 15 times per month. (Id. at 610-613.)
he declined to treat Plaintiff and informed her that she should
be seeing a high-level pain management specialist or headache
clinic to treat her headaches due to the combination of her
narcotic angalgesics and headache medication. (Id.)
Then, on September 27, 2013, Plaintiff saw Dr. Sean
Hubbard, and he added Nortriptyline to her treatment regimen in
addition to Imitrex, Topamax, and Fioricet. (Id. at 622.) A few
months later, Dr. Hubbard noted that Nortriptyline helped, but
Plaintiff’s migraines were still severe. (Id. at 616.)
December 26, 2013, Dr. Hubbard completed a Headache Medical
Source Statement (MSS), where indicated that Plaintiff’s
diagnosis was “frequent [and] intractable migraines” with
associated symptoms of vertigo, nausea/vomiting,
photosensitivity, visual disturbances, mood changes, mental
confusion, inability to concentrate and fatigue. (Id. at 548.)
Dr. Hubbard further indicated that Plaintiff would experience
headaches five out of seven days a week, and may be continuous.
(Id.) He opined that Plaintiff’s migraine pain was profound and
intractable, and virtually incapacitated her (Id. at 550.)
opined that Plaintiff would have to lay down 1.5-2 hours on a
daily unpredictable basis. (Id.)
Dr. Jay Klazer, D.O examined Plaintiff on April 23, 2014,
and he concluded that her migraines were likely related to
central nervous system polypharmacy. (Id. at 683-85.)
Spagnoletti examined Plaintiff on May 13, 2014, and prescribed
her Fioricet, as well as provided her a list of foods to avoid.
(Id. at 690-93.)
Plaintiff initially complained of right upper quadrant
abdominal pain on January 6, 2012, and an ultrasound revealed a
retroflexed uterus, a focal echogencity along the posterior
aspect of the endometrium, which could represent adenomyosis,
and two large simple cysts on the right ovary. (Id. 433-442.)
She was diagnosed with an ovarian cyst. (Id.) On March 7, 2012,
Plaintiff followed up with Dr. Donald Cannon, M.D., and he
informed her that her cysts would likely resolve, and prescribed
her Percocet and Motrin and ordered an imaging study. (Id. at
On May 14, 2013, Plaintiff indicated to Dr.
Spagnoletti that she was using a synthetic hormone to treat her
endometriosis and polycystic ovary disease. (Id. at 541-42.)
MRI of Plaintiff’s pelvis performed on March 4, 2014 revealed
two simple cysts on the right ovary, and an enlarged right
ovary. (Id. at 666-668.)
5. Left Ankle Tendinosis
After twisting her left ankle tripping on an uneven
sidewalk on September 3, 2013, Plaintiff saw Carl Mogil, D.O.,
on October 14, 2013 (Id. at 573.)
Plaintiff was diagnosed with
a Grade I-11 left ankle sprain and/or peroneal nerve injury to
the left ankle (Id. at 574, 579.)
After she complained of
numbness in her left lateral foot, Dr. Spagnoletti recommended
that she use a cane. On November 4, 2013, Dr. Mogil ordered an
EMG and nerve conduction study. (Id. at 578-79.)
On January 6,
2014, MRI of Plaintiff’s left ankle revealed mild posttraumatic
tendinosis of the peroneal tendons, subtalar arthritis and joint
effusion. (Id. at 659.)
On April 27, 2011, Steven Manders, M.D. indicated that
Plaintiff had a history of an 8-month psoriasis eruption on her
feet and hands, and exhibited erythema and postulation,
bilaterally on the palm/plantar surfaces. (Id. at 361.)
Plaintiff underwent light treatment for her psoriasis on June
22, 2011, but she did not attend the treatments with enough
frequency in order to be successful (Id. at 356)
informed Dr. Spagnoletti on August 10, 2012 that she had
psoriasis on her hands and feet, which caused her to leave work
in June 2011. (Id. at 427-432.)
Plaintiff informed Dr.
Spagnoletti on August 6, 2013 that she was taking Enbrel,
prescribed by Dr. David Finkelstein, for psoriatic arthritis.
(Id. at 527-546.)
7. Bilateral Knee Pain
On July 29, 2013, Plaintiff told Dr. Joseph Gallagher that
she had bilateral knee pain, but exhibited a full range of
motion without pain. (Id. at 497-98.) Dr. Spagnoletti observed
crepitus in her knee on July 9, 2013, and ordered physical
therapy on August 6, 2013. (Id. at 537-38.)
8. Urinary Retention
On May 8, 2014, an imaging study of Plaintiff’s kidneys
revealed an extrarenal pelvis and hydronephrosis of the right
kidney, which persisted despite post voiding. (Id. at 676-77.)
9. Post Concussive Syndrome
Plaintiff testified that during a motor vehicle accident in
2003, she was at a stop light and was hit from the rear. (Id. at
Her head went forward and a hair clip went into her head.
She experienced a headache thereafter.
On June 24, 2011, Darany Toy, M.D. noted that Plaintiff had
been referred to psychiatry for depression on June 6, 2011, but
he was unaware of whether she followed up or not. (Id. at 23.)
Plaintiff started taking Prozac and Zoloft soon thereafter.
(Id.) On April 16, 2014, Dr. Schweitzer assessed Plaintiff with
depression and anxiety, after Plaintiff complained of anxiety
and depression. (Id. at 682.)
On May 13, 2014, Plaintiff
complained of uncontrollable anxiety to Dr. Spagnoletti, and he
increased her Buspar and Doxepin dosages. (Id. at 690-91.)
May 21, 2014, Dr. Schweitzer refilled Plaintiff’s Prozac, and
diagnosed Plaintiff with depression with anxiety. (Id.at 686-87)
State Agency Opinions
On January 14, 2013, Harpeet Khurana, M.D. concluded that
Plaintiff could lift 20 pounds occasionally, 10 pounds
frequently, stand or walk for 4 hours in an 7 hour day, sit for
6 hours in an 8 hour day, occasionally climbing a ramp or
stairs, stooping, kneeling, crouching, crawling, and balancing,
never climbing a ladder, rope or scaffold, and avoiding even
moderate exposure to hazards. (Id. at 92-93.)
Tiersten affirmed this conclusion upon reconsideration on April
25, 2013. (Id. at 104-105.)
Plaintiff’s Testimony Before the ALJ
On March 6, 2014, Ms. Nyholm testified at a hearing before
ALJ Marguerite Toland. (R. at 55.)
Plaintiff testified that she
limits her driving due to back pain, which shoots down her legs.
(Id. at 61-62.)
She testified that her migraine headaches
started when she had a motor vehicle accident in 2003. (Id. at
66.) Furthermore, she testified that she gets migraines “[l]ike
twice a week,” but will get them more frequently if she goes out
more and is exposed to environmental triggers (Id. at 70, 81.)
With regard to her back pain, Plaintiff testified that she
would rate her back pain as six or seven out of ten, but if she
is active or over asserts herself, it can go up to an eight “or
worse.” (Id. at 71-72.)
With regard to her neck pain, Plaintiff
rated that as a four out of ten, and indicated, “[i]t’s like
real tight.” (Id. at 72.)
Plaintiff further testified that she
has shooting pain down her arms “[a]ll the time,” has problems
dropping objects, and has difficulty opening soda bottles and
chips due to pain in her hands. (Id. at 84.)2
The ALJ Decision
ALJ Toland issued a 27-page decision on January 22, 2015,
ultimately finding that Plaintiff was not disabled within the
meaning of the Social Security Act, as she made the following
1. Ms. Nyholm meets the insured status requirements of the
Social Security Act through December 31, 2015.
2. Ms. Nyholm has not engaged in substantial gainful
activity since June 1, 2011, the alleged onset date (20
CFR 404.1571 et seq.)
3. Ms. Nyholm has the following severe impairments: history
of a motor vehicle accident with lumbar and cervical
radiculopathy, disc bulging at C3-4 through C6-7,
cervical facet arthropathy, myofascial pain syndrome,
small disc herniation at L4-5, S1 radiculopathy and
chronic L5 radiculopathy, migraine headaches, left ankle
Vocational Expert Louis Szollosy could not attend Plaintiff’s
live hearing, so he responded to a series of written
interrogatories submitted by the ALJ and by Plaintiff. (Id. at
234; see also infra Part IV.E.)
tendinosis, endometriosis and psoriasis affecting the
feet and hands (20 CFR 404.1520(c)).3
4. Ms. Nyholm 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. Nyholm has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
except that the individual could work and stand up to 6
hours per day, lift 10 pounds frequently and 20 pounds
occasionally. However, the individual could stand or walk
no more than one hour at a time and then would need to
sit or shift positions for 4 to 5 minutes while remaining
on task. The individual cannot climb ropes, ladders or
scaffolds; cannot work around heights, cannot work with
dangerous machinery, defined as machines that cur or
shear. The individual would be limited to frequent
handling, and she would be off task 5 percent of the
workday in addition to normal breaks.
Importantly for the purposes of this appeal, ALJ Toland found
that Plaintiff’s bilateral knee pain, urinary retention, postconcussive syndrome, depression and anxiety were all “nonsevere” because “the record does not support a conclusion that
it caused significant vocationally relevant limitations at all
times relevant to this decision. (R. at 22.)
6. Ms. Nyholm is capable of performing past relevant work as
a collection agent/clerk. This work does not require the
performance of work-related activities precluded by the
claimant’s residual functional capacity. (20 C.F.R.
Specifically regarding residual functional capacity, and at
issue in this appeal, the ALJ gave “little weight” to Dr. Toy’s
opinion that Plaintiff would not be able to perform full time
work from June 1, 2011 to July 1, 2011 and that she would
experience flares causing her to be absent from work twice a
month. (R. at 42.)
The ALJ also gave “little weight” to Dr.
Hubbard’s opinion that Plaintiff’s headache medication side
effects could be expected to limit her ability to focus and
concentrate up to 66 percent of the workday, that she would need
to recline for up to two hours per day on a daily basis, and
that she would be absent for more than 4 days per month.(R. at
Additionally, the ALJ gave “little weight” to Dr.
Schweitzer’s opinion that Plaintiff’s pain prevented her from
performing her normal, full time work on a frequent basis, and
that her medications caused significant side effects that
limited the claimant from focusing and concentrating for up to
66 percent of the workday.
Finally, the ALJ gave “little
weight” to the State agency medical consultants’ opinions that
Plaintiff could constantly handle and avoid moderate exposure to
hazards, because they did not consider Plaintiff’s subjective
complaint, but the ALJ gave “great weight” to the rest of their
opinion “because it is consistent with the medical record.” (Id.
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.
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. ALJ CONSIDERATION OF PLAINTIFF’S NON-SEVERE IMPAIRMENTS
IN THE FORMULATION OF RFC
Plaintiff argues that the ALJ erred in not including
Plaintiff’s non-severe impairments4 in the formulation of RFC
Plaintiff initially contested the ALJ’s characterization of
Plaintiff’s urinary retention, complex renal cysts, bilateral
knee pain, and mental impairments as non-severe, but she
conceded in her reply brief that it is “harmless that the ALJ
failed to find [these] impairments to be severe.” (Reply Br. at
1.) Moreover, because the ALJ found at least one impairment to
be severe and therefore continued the sequential analysis, even
if the ALJ had “erroneously concluded that some of her other
impairments were non-severe, any error was harmless”). Salles v.
Comm’r of Sec. Sec., 229 F. App’x 140, 145 n. 72 (3d Cir. 2007);
see also Barlow v. Comm’r of Soc. Sec., No. 13-538, 2014 WL
1225560, at *7 (D.N.J. Mar. 24, 2014)(“[A]ny error at step two
was harmless because the ALJ continued the sequential
analysis.”). As a result, the Court will focus on the fact that
the ALJ did not incorporate these non-severe conditions into the
because it “is simply impermissible for the ALJ
. . . to refuse
to include [these] limitations in the formulation of RFC.”
Plaintiff argues that even if the ALJ’s assessment of severity
was incorrect, the ALJ nevertheless erred in failing to
incorporate Plaintiff’s bilateral knee pain, urinary retention,
post concussive syndrome, depression and anxiety into the RFC
analysis that followed.
Defendant responds that “step two is
merely a threshold analysis requiring the claimant to prove only
one severe impairment,” so as long as “there is at least one
severe impairment at step two, the ALJ will continue the
sequential evaluation process.” (Def. Br. at 4)(citing 20 C.F.R.
A finding of non-severity does not eliminate Plaintiff's
impairments from consideration of Plaintiff's overall ability to
perform past work.
The ALJ is required to assess all of
Plaintiff's impairments—even ones that are not “severe”—in
combination when making the RFC determination. See 20 C.F.R. §
404.1545(a)(2) (“We will consider all of your medically
determinable impairments of which we are aware, including your
medically determinable impairments that are not ‘severe,’ as
explained in §§ 404.1520(c), 404.1521, and 404.1523, when we
assess your residual functional capacity.”). SSR 96-8p is clear
about what the ALJ must consider:
In assessing RFC, the adjudicator must consider limitations
and restrictions imposed by all of an individual’s
impairments, even those that are not “severe.” While a “not
severe” impairment(s) standing alone may not significantly
limit an individual’s ability to do basic work activities,
it may – when considered with limitations or restrictions
due to other impairments – be critical to the outcome of a
claim. For example, in combination with limitations imposed
by an individual’s other impairments, the limitations due
to such a “not severe” impairment may prevent an individual
from performing past relevant work or may narrow the range
of other work that the individual may still be able to do.
SSR 96-8p (emphasis added); see also Soboleski v. Comm’r of Soc.
Sec., No. 14-3156, 2015 WL 6175904, at *2 (D.N.J. Oct. 20, 2015)
(explaining that a finding of non-severity “does not obviate the
need for a separate analysis of how Plaintiff’s impairment
affects her RFC”).
The ALJ must therefore consider all relevant
evidence when determining an individual's RFC. See, e.g.,
Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001).
The Court finds that a remand is required on this issue
because the ALJ failed to address Plaintiff’s non-severe
impairments (urinary retention, ovarian cysts, bilateral knee
pain, mental impairments) in the RFC analysis.
The effect of
these impairments, even though they were determined to be “not
severe” by the ALJ, merits discussion in the RFC analysis in
accordance with SSR 96-8p, supra.
Accordingly, the RFC finding
is incomplete and not supported by substantial evidence.
C. WEIGHT OF TREATING SOURCE PHYSICIAN OPINIONS
Even though the Court is remanding for the above reasons,
the Court will address Plaintiff’s other arguments. Plaintiff
argues that the ALJ erred in rejecting the opinions of Dr.
Darany Toy, the Plaintiff’s primary care physician; Dr. Sean
Hubbard, the Plaintiff’s treating neurologist; and Dr. Justin
Schweitzer, another of Plaintiff’s primary treating physicians.
(Pl. Br. at 14-15.)
Specifically, Plaintiff argues that the ALJ
failed to address significant evidence in the record
contradicting her conclusions, and failed to evaluate the
opinions contradicting her conclusions. Defendant replies that
the “ALJ did everything that was required under the regulations:
she carefully considered the medical opinions, explained the
weight she gave to them, and articulated legally sufficient
reasons to support her conclusions.” (Def. Br. at 11.)
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)).5
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.
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)).
On the other hand, treating
physicians’ reports “should be accorded great weight, especially
‘when their opinions reflect expert judgment based on a
continuing observation of the patient’s condition over a
“A claimant’s RFC is ‘the most [she] can still do despite [her]
limitations.’” 20 C.F.R. § 416.945(a)(1)).
prolonged period of time.’” Plummer v. Apfel, 186 F.3d 422, 429
(3d Cir. 1999)
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, however,
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).
Additionally, pursuant to SSR 96-2p, if the ALJ finds that
the treating source's opinion is not well-supported, that “means
only that the opinion is not entitled to ‘controlling weight,’
not that the opinion should be rejected. Treating source medical
opinions are still entitled to deference and must be weighed
using all the factors provided in 20 CFR 404.1527 and 416.927.”
These factors include the examining relationship, the treatment
relationship (the length of the treatment relationship, the
frequency of examination, and the nature and extent of the
treatment relationship), supportability, consistency, and
specialization. See 20 C.F.R. § 404.1527(c)(1)-(5).
1. Dr. Schweitzer
Regarding Dr. Schweitzer, Plaintiff takes issue with the
ALJ’s characterization that his opinion was “inconsistent with
the record” and that his “lack of expertise in vocational
training and occupational health coupled with his specialty in
internal medicine has not provided a balanced review of the
claimant’s limitations.” (R. at 43.)
Plaintiff argues that not
only is Dr. Schweitzer’s opinion consistent with the records of
Dr. Louis Spagnoletti, Dr. Joseph Gallagher, and Dr. Carl Mogil,
but that the ALJ did not address the conflict of this consistent
evidence in her decision. (Pl. Br. at 17.)
argues that no doctors have specific “expertise in vocational
training,” and that under this standard, “it would be nearly
impossible for any treating doctor to be entitled to weight.”
(Pl. Br. at 17.)
The Court finds that the ALJ’s decision to assign little
weight to Dr. Schweitzer’s opinions is supported by substantive
The Third Circuit has consistently stated that form
reports in which a physician's obligation is only to check a box
or fill in a blank are weak evidence at best.
Where these so-
called “reports are unaccompanied by thorough written reports,
their reliability is suspect....” Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir. 1993); see also Hevner v. Comm’r of Soc.
Sec., No. 16-1851, 2017 WL 128499, at *2 (3d Cir. Jan. 13,
2017)(affirming the ALJ’s decision to discount the opinion of
the claimant’s treating physician who checked boxes on a form
titled “Mental Capacity Assessment”).
Here, Dr. Schweitzer
filled out a Medical Source Statement, which required him to
opine, without a full written report, about Plaintiff’s various
impairments. (R. 583-90.)
Moreover, the ALJ provided sufficient reasoning for her
discounting of Dr. Schweitzer’s opinion. She explained that
“[t]he record suggests that Dr. Schweitzer, who does not have a
specialization in dermatology, gynecology, orthopedics, or
neurology, relied heavily on the claimant’s subjective
complaints regarding her physical impairments to guide the
completion of his opinion.” (R. at 43.)
As a result, the ALJ
was entitled to discount Dr. Schweitzer’s opinion, and
Plaintiff’s disagreement with the ALJ’s opinion is not enough to
remand given the deferential “substantive evidence” standard.
2. Dr. Hubbard
Next, regarding Dr. Hubbard, Plaintiff argues that the ALJ
improperly substituted her own medical opinion for that of a
doctor when she assigned “little weight” to his opinion because
Dr. Hubbard “did not suggest that the claimant seek treatment at
a specialized headache center secondary to the combination of
medications she was taking as another of his colleagues had
recommended.” (Pl. Br. at 19.)
Plaintiff argues that the ALJ
does not explain how Dr. Hubbard’s belief that he was qualified
to treat the Plaintiff somehow disqualifies him for offering an
opinion as to her neurological condition, and moreover, his
opinions are not contradicted by any evidence in the record, nor
does the ALJ attempt to offer specific contradictory evidence.
Moreover, he “spent sufficient time with Plaintiff to
develop a treatment plan and undertake specialized care for her
migraines,” so length of treatment and number of visits is not
dispositive. (Reply Br. at 4.)
The Court finds that the ALJ’s decision to discount the
opinion of Dr. Hubbard was based on substantial evidence. In a
“Headache Medical Source Statement,” Dr. Hubbard responded “Yes”
when asked “During times your patient has a headache, would you
patient generally be precluded from performing even basic work
activities and need a break from the workplace?” (R. at 551.)
The ALJ permissibly discounted Dr. Hubbard’s opinion because he
only treated her twice prior to rendering his opinion. See 20
C.F.R. § 404.1527(c)(2)(i)(“Generally, the longer a treating
source has treated you and the more times you have been seen by
a treating source, the more weight we will give to the source's
medical opinion.”). The ALJ appropriately gave weight the
opinion of another treating physician, Dr. Jay Klazmer, who
opined that her “multiple other complaints are likely related to
her CNS polypharmacy” as well as “unequivocal medication and
caffeine overuse components . . . especially given a normal
neurological examination and brain MRI in 2009.” (R. at 684.) As
a result, the ALJ did not err in assigning little weight to Dr.
Hubbard’s opinion regarding Plaintiff’s migraine headaches,
given that his opinion conflicted with other record evidence
from a treating physician who had a broader view of the
3. Dr. Toy
Finally, regarding Dr. Toy, Plaintiff argues that the ALJ
erred when she assigned “little weight” to her opinion that
Plaintiff was incapacitated between June 1, 2011 and July 1,
2011 because like with Dr. Schweitzer, her opinions were not
“inconsistent with the record” and her “lack of expertise in
vocational training” is not relevant to evaluating the weight of
a treating physician’s opinion. (Pl. Br. at 20.)
On a fill-in-the-blank FMLA leave form, Dr. Toy
checked “Yes” when asked “Will the employee be incapacitated for
a single continuous period of time due to his/her medical
condition, including any time for treatment and recovery?” (R.
However, on the form, Dr. Toy wrote that “[t]reatment
options are available for her condition.” (Id.) The ALJ properly
explained that “the totality of the medical evidence shows that
the claimant is not as limited as determined by Dr. Toy,” and
his own form suggests that Plaintiff could be treated. Moreover,
the ALJ properly discounted Dr. Toy’s opinion given her lack of
specialization. See 20 C.F.R. § 404.1527(c)(5)(“We generally
give more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the
opinion of a source who is not a specialist.”).
The ALJ also correctly noted that the determination of
whether a claimant meets the statutory definition of “disabled”
is an issue reserved for the ALJ, not a physician, pursuant to
The ALJ therefore acted correctly in not giving
significant weight to Dr. Toy’s opinion that Plaintiff was
“incapacitated;” see 20 CFR §§ 404.1527(d)(1)(“ A statement by a
medical source that you are “disabled” or “unable to work” does
not mean that we will determine that you are disabled.”);
Schwartz v. Halter, 134 F. Supp. 2d 640, 650 (D.N.J. 2001)
(“Opinions on issues reserved to the Commissioner, such as an
opinion that the claimant is disabled, are not medical opinions,
however, and thus are not entitled to controlling weight.”).
Finally, Plaintiff argues that the ALJ erred in finding
that the three treating physician opinions discussed above were
“inconsistent with the record.” However, the ALJ describes the
conflicting evidence in detail throughout the entirety of her
reasoning on residual functional capacity. For instance, the ALJ
was entitled to rely on the state agency physician opinions in
her discretion, especially since those physicians provided ample
reasoning in their decisions. See Grimaldi v. Colvin, No. 126522, 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”).
C. CREDIBILITY DETERMINATION
Plaintiff argues that the ALJ erred in her determination of
credibility, specifically taking issue with the ALJ’s statement
that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely
credible.” (R. at 29; Pl. Br. at 26.)6
Defendant responds that
under 20 C.F.R. § 404.1529, the ALJ properly weighed Plaintiff’s
testimony against the rest of the relevant evidence. (Def. Br.
“The credibility determinations of an administrative judge
are virtually unreviewable on appeal.” Hoyman v. Colvin, 606 F.
App’x 678, 681 (3d Cir. 2015) (quoting Bieber v. Dep't of the
Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002)).
ALJ's credibility determination is accorded great deference and
The ALJ also found that Plaintiff “experiences some pain and
discomfort from her severe impairments; however, not the extent
maintained by the claimant.” (R. at 41.)
will not be disturbed unless it is “inherently incredible or
patently unreasonable.” See St. George Warehouse, Inc. v. NLRB,
420 F.3d 294, 298 (3d Cir. 2005); see also Blue Ridge Erectors
v. Occupational Safety & Heath Review Comm'n, 261 F. App’x 408,
410 (3d Cir. 2008). Pursuant to SSR 96-7p, the ALJ “must
consider the entire case record and give specific reasons for
the weight given to the individual's statements.” SSR 96-7p also
“mandates that the [credibility] ‘determination ... must contain
specific reasons for the finding on credibility, supported by
the evidence in the case record, and must be sufficiently
specific to make clear to ... any subsequent reviewers the
weight the adjudicator gave to the individual's statements and
the reasons for that weight.” Williams v. Barnhart, 211 F. App’x
101, 105 (3d Cir. 2006) (quoting SSR 96-7p).7
inconsistencies in a claimant's testimony or daily activities
permit an ALJ to conclude that some or all of the claimant's
testimony about her limitations or symptoms is less than fully
SSR 96-7p also provides that the ALJ “must consider the entire
case record, including the objective medical evidence, the
individual's own statements about symptoms, statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they
affect the individual, and any other relevant evidence in the
case record.” The ALJ should also give weight to factors such as
the medical reports, a plaintiff's daily activities, duration
and intensity of symptoms, and treatments that have been used to
relieve symptoms. 20 C.F.R § 404.1529(c).
credible. See Burns v. Barnhart, 312 F.3d 113, 129–30 (3d Cir.
Furthermore, an individual's subjective reports of the
nature and extent of their symptoms cannot be rejected “solely
because the available objective medical evidence does not
substantiate [the individual's] statements.” 20 C.F.R.
This recognizes the fact that “symptoms, such
as pain, sometimes suggest a greater severity of impairment that
can be shown by objective medical evidence alone.” SSR 96-7p.
In considering a plaintiff's subjective reports of symptoms,
such as pain, as the Court has already noted, the ALJ should not
rely upon her own lay opinion or speculation in making a
credibility determination. See Morales, 225 F.3d at 319.
The Court finds that the ALJ’s credibility determinations
were based on substantial evidence. The ALJ conceded that a
number of Plaintiff’s impairments “could reasonably cause some
symptomatology,” but after carefully walking through each
ailment and the objective medical evidence, she found that the
symptoms did not “occur with such frequency, duration or
severity” to “preclude all work activity on a continuing and
regular basis.” (R. at 39.)
For instance, the ALJ acknowledged
that Plaintiff experienced “occasional pain” from her
endometriosis, as she stated at the hearing, but then concluded
that “her pain is generally well controlled with her
medication.” (Id. at 40.)
With other ailments, such as
Plaintiff’s left ankle pain, the ALJ took into account her
subjective complaints in assigning an RFC of light level of
exertion with a sit/stand option. (Id. at 41.)
Regarding headaches, Plaintiff argues that the ALJ
mischaracterized the notes of Drs. Orwitz and Klazmer, and
instead inserted her own lay opinion as to the proper course of
treatment that Plaintiff should have followed for that of her
treating doctors. (Pl. Br. at 26-27.)
But the ALJ explained
that Plaintiff’s “reported elevated pain levels, which mirrors
complaints of those individuals having significantly more
pathology in their imaging studies, objective evaluations, and
lab test results, casts doubt on [Plaintiff’s] testimony
[regarding her pain].” (R. at 41.)
The ALJ cited to the
“conservative treatment” for her headaches, including Topamax,
Imitrex, Fioricet and Pamelor, and that Dr. Klazmer suggested
that Plaintiff’s headaches were appropriate for treatment at a
specialized headache center. (R. at 41, 612.) The Court finds
that that ALJ permissibly found that Plaintiff’s subjective
complaints regarding her headaches did not match up with the
objective medical evidence given her medication; thus, the
credibility determination was based on substantial evidence.
Plaintiff also takes issue with the ALJ’s discounting
Plaintiff’s credibility based on one instance of pulling weeds
in her garden. The ALJ found that Plaintiff’s “activity level in
engaging in outdoor yard work suggests that her physical
limitations were not as significant as she alleged in her Adult
Function Report,” where Plaintiff indicated that she had
difficulty performing most activities of daily living due to
pain. (R. at 41, 497.)
The Court agrees with Defendant, that
the ALJ “did not base her entire credibility assessment on the
fact that Plaintiff was pulling weeds in her yard, because she
appropriately cited it as one factor, in addition to the
objective evidence.” (Def. Br. at 10.)
Of course, if the ALJ
only cited to one buried instance of physical activity in
discounting Plaintiff’s credibility, that might not be based on
substantial evidence, but this is not what the record
Moreover, by no means did the ALJ simply dismiss
Plaintiff’s complaints; the strict limitations of her RFC are
Plaintiff additionally takes issue with the ALJ’s statement,
regarding Plaintiff’s lower back pain, that Plaintiff “admitted
in testimony that her pain levels reduced with her medications
down to 3 or 4 out of 10 when she was not engaging in strenuous
activities.” (R. at 40, 72.) She argues that the ALJ failed to
indicate how reduced pain due to inactivity and the use of
narcotic pain medication negatively affects Plaintiff’s
credibility. (Pl. Br. at 26.) However, it does not appear that
the ALJ was discounting Plaintiff’s credibility regarding her
subjective back pain complaints here; instead, the ALJ
considered these “mild to moderate pain levels” when determining
her RDC. (R. at 40.) This finding was based on substantial
testimony to that.
But the ALJ did find Plaintiff less than
credible as to the disabling severity of her impairments.
ALJ's decision, supported by substantial evidence of record,
represents a classic credibility determination and a weighing of
the evidence, to which the court must defer. See Jimenez v.
Colvin, No. 15-3762, 2016 WL 2742864, at *8 (D.N.J. May 11,
2016)(“Whether the court would weigh the evidence the same way
is irrelevant.”). The disparity between Plaintiff's description
of her symptoms and the impairment documented in the objective
medical records cited by the ALJ therefore constitutes
substantial evidence in support of the ALJ's determination of
D. EVALUATION OF INTERROGATORIES PROPOUNDED BY PLAINTIFF ON
THE VOCATIONAL EXPERT, LOUIS P. SZOLLOSY
Finally, Plaintiff contests the ALJ’s finding that
Plaintiff could perform her past relevant work because the
Vocational Expert allegedly offered conflicting opinions in his
written testimony that the ALJ failed to reconcile.
argues that the VE offered conflicting opinions, both that an
individual could be off-task (i.e., not performing work duties)
for 5% of the workday in addition to routine work breaks, and
also that an individual only providing 6.5 hours of work in an
8-hour day would be unable to sustain employment. (Pl. Br. at
The ALJ concluded that “the workday involves an 8-hour
period, not a period reduced as reflected in the Plaintiff’s
representative argument,” but Plaintiff argues that the ALJ
“misinterpreted both the Plaintiff’s question to the VE, as well
as its relevance to her adopted RFC.” (R. at 45, Pl. Br at 22.)
The Commissioner responds that such objection to the VE
interrogatory responses relates to the alternative step five
finding, but the ALJ properly decided the case at step four.
(Def. Br. at 16.)
In the instant matter, although no VE was present during
the hearing, the ALJ posed post-hearing interrogatories to the
VE regarding a hypothetical individual with Plaintiff's RFC and
vocational factors, and the VE supplied answers to these written
inquiries. (R. 234-35.)
The ALJ asked the VE the following
Please assume an individual having claimant’s age education
and past work. Please assume this individual is limited to
light work as defined under the DOT in that he/she can walk
and stand up to 6 hours per day, lift 10 pounds frequently
and 20 pounds occasionally. However, this individual can
stand/walk no more than one hour at a time and then would
need to sit/shift positions for 4-5 minutes while remaining
on task. This individual cannot climb ropes, ladders or
scaffolds; cannot work around heights; cannot work with
dangerous machinery (defined as machines that cut or
shear). This individual would be limited to frequent
handling. Lastly, he/she would be off task 5% of the
workday in addition to normal breaks.
(Id. at 234)
The VE responded that she could perform her past
relevant work as a collection agent/clerk, DOT $241.367-010
(Sedentary), and explained that:
Based on the hypothetical above, and based on my
professional opinion, an individual would be able to
perform the past relevant work as performed and as
performed in the national economy. Being off task would not
be problematic based on my professional opinion, since
employees in the workforce can be categorized in such
levels as exceptional, average, and mediocre employee
levels, and the 5% would be within the latter category as
is tolerated in the competitive workforce.
Plaintiff was provided with a copy of the VE responses
and submitted additional hypotheticals and follow-up
hypotheticals to the VE. (Id. at 240-42.) Most notably,
Adding to the judge’s first hypothetical, I would like you
to consider whether each of the following limitations,
considered individually, would have an impact on the
ability to perform the past-relevant work or other jobs
that you have identified . . . (d) The inability to perform
more than 6.5 hours of work activity in an 8-hour workday,
please also give your opinion as to the expected amount of
time, in hours, an employee would be expected to actively
perform work-related activities in order to sustain
competitive employment and to be considered full-time.
(Id. at 241.) The VE responded:
Based on my professional opinion, full time employment is
considered 8.0 hours. Certain occupation settings have paid
lunch periods an (sic) in those settings full time is
considered 7.5 hours.
(Id. at 245-46)
Soon thereafter, on September 26, 2014, Plaintiff submitted
a letter to the ALJ with comments and concerns relating to the
VE’s responses, specifically regarding the alleged conflict
between the ALJ hypothetical and Plaintiff’s hypothetical. (Id.
at 252-253.) Plaintiff explains that she simply “reformulated
this question in terms of absolute time rather than a percentage
of time off-task without defining regular breaks.” (Reply Br. at
The Court finds that the ALJ’s evaluation of the VE’s
responses to both her interrogatories and Plaintiff’s
interrogatories was based on substantial evidence. Not only had
the VE already answered the question that Plaintiff had asked,
but the VE’s response to Plaintiff’s “reformulated” question
does not, on its face, contradict the VE’s first response, as
being “off task” is different than an “inability to perform,” as
Moreover, the ALJ relies on the VE’s response
to her (first) hypothetical, that Plaintiff could perform past
relevant work as a collections agent.
The ALJ then addressed
Plaintiff’s specific argument in her opinion, noting that
“[n]othing in the vocational expert’s responses to [Plaintiff’s]
interrogatories reflects that all work would be ruled out in the
national economy with this [5 percent off task] limitation.” (R.
The Court notes, however, that the hypotheticals posed
to the VE may have to be reformulated on remand, after the ALJ
reconsiders Plaintiff’s Residual Functional Capacity as required
above, in light of the combination of severe and non-severe
physical and mental impairments.
If the RFC, on remand, is more
constricted, that determination would also have to be considered
in addressing the subsequent step related to the ultimate
determination of disability status.
For all of these reasons, the Court finds that substantial
evidence supports the ALJ’s weighing of treating physician
opinions regarding residual functional capacity, the ALJ’s
credibility determination, and the finding that Plaintiff could
perform her past relevant work as it is usually performed in the
national economy, but that the case should be remanded to ensure
that all of Plaintiff’s non-severe impairments are incorporated
into the residual functional capacity analysis and the
subsequent steps of adjudication, as appropriate.
accompanying Order will be entered.
March 31, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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