SCHEMELIA v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION FILED. Signed by Judge Renee Marie Bumb on 6/9/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
CHARLES E. SCHEMELIA, JR.,
Plaintiff,

Civil No. 16-3225 (RMB)

v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Appearances:
Richard L. Frankel, Esq.
Bross & Frankel, PA
102 Browning Lane, Bldg. C-1
Cherry Hill, New Jersey 08003
Attorney for Plaintiff
Lauren Donner Chait, Esq.
Meriah Russell, Esq.
Social Security Administration
Office of the General Counsel
300 Spring Garden Street
Philadelphia, Pennsylvania 19123
Attorneys for Social Security
BUMB, United States District Judge:
This matter comes before the Court on an appeal from a
final administrative decision by the Commissioner of Social
Security which denied benefits to Plaintiff Charles Schemelia
(“Plaintiff”). (Administrative Record (“AR”) 25-26).
2017, this Court conducted oral argument.

On June 5,

For the reasons set

forth below, the case will be remanded on a limited basis for
further proceedings.
I.

PROCEDURAL BACKGROUND
Plaintiff applied for Social Security Disability Benefits

on February 7, 2012, alleging a disability onset date of August
22, 2010.

(AR 15, 58).

His complained of conditions are

vertiginous syndromes and other disorders of the vestibular
system including severe vertigo and fractures of his lower right
limb resulting in plates with pins and screws in his leg. (Id.
at 58, 70).

Plaintiff’s claim was denied on July 17, 2012 and

on December 14, 2012, reconsideration was also denied.

(Id. at

84, 95-97). Thereafter, Plaintiff requested a hearing, which was
held on March 11, 2014. (Id. at 31-56).

At that hearing,

Plaintiff amended his alleged onset date from August 22, 2010 to
February 7, 2012.

(Id. at 15).

The hearing resulted in a July

24, 2014 decision finding that Plaintiff was not disabled.
at 12-30).

(Id.

The Appeals Council denied review of this decision

on March 31, 2016, (id. at 1-5), and Plaintiff thereafter
commenced the instant appeal before this Court pursuant to 42
U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).

(Compl. [ECF No.

1]).
II.

FACTUAL BACKGROUND
Plaintiff’s alleged disability seems to have arisen

primarily from a car accident in August 2010.
2

(AR 237-243, 254-

77, 300-07).

In addition to fracturing his right leg in that

accident, some degree of head trauma was noted, and his medical
records indicate that he felt dizzy.

(Id. at 271-72).

A CT

scan performed showed no acute intercranial abnormality,
however. (Id. at 237, 257).

He was discharged on August 24,

2010 and given instructions to follow up on treatment for his
injured leg.

Soon thereafter, he underwent surgery on his leg

by Dr. Brady, which inserted pins and screws into his right
knee.

(Id. at 308-10, 331-32).

Plaintiff was back in the emergency room several weeks
later, on September 17, 2010, with complaints of dizziness and
the inability to taste food, which Plaintiff attributed to the
earlier car accident. (Id. at 244-253, 320-330).

He complained

of dizziness for the preceding 3-4 weeks, with his two worst
days being the two days prior to the ER visit. (Id. at 250).

At

that time, Plaintiff’s symptoms were attributed to acute vertigo
with a diagnosis of post-concussive syndrome.

He was prescribed

Mezclizine, Valium, and Phenargen. (Id. at 249, 251).
Over the ensuing months, Plaintiff continued to be treated
by Dr. Brady for his leg fracture.

On November 11, 2010, Dr.

Brady noted that Plaintiff suffered from decreased mobility,
stiffness, swelling, difficulty going to sleep and nighttime
awakening.

(Id. at 314).

Dr. Brady continued Plaintiff’s

prescriptions for Dilaudid and Vistenl for the pain.
3

(Id. at

314).

During this time, Plaintiff was also undergoing physical

therapy for his leg. (Id. at 278-298).
In March 2011, Plaintiff saw a neurologist, Dr. Townsend,
who noted Plaintiff’s many complaints and offered a diagnosis of
post-concussion syndrome.

(Id. at 442-444).

Plaintiff

complained of vertigo all the time and that he “can’t lie in bed
facing the light.

He

can’t look up either.

vertigo will last 30 seconds or so.
in a haze all the time.
(Id. at 442).

He notes that the

He has a feeling like he is

Getting out of bed makes it worse.”

Plaintiff complained of a host of other symptoms

including memory issues, irritability, food tasting wrong, and
positional discomfort. (Id.)

Many of these same complaints

persisted at a later meeting with Dr. Townsend on May 16, 2011,
and several treatment sessions thereafter.

(Id.)

On October 3, 2011, Plaintiff was then referred to Dr.
Greenberg for a psychological evaluation for memory complaints.
(Id. 429).

Dr. Greenberg, after an interview with Plaintiff,

drafted a comprehensive report that assessed Plaintiff on many
levels.

The report concluded that Plaintiff was suffering from

at least mild depression.

(Id. at 430).

Later that month, Dr.

Townsend corresponded with the State of New Jersey Department of
Labor and Workforce Development, Division of Disability
Determination Service (“DDS”) and confirmed that he had been

4

treating Plaintiff for post-concussion syndrome, head injury,
vertigo, memory issues, and sleep issues.

(Id. at 458-61).

In February 2012, Dr. Greenberg responded to DDS that
Plaintiff did not return for neuropsychologic testing, however,
the same letter confirms that his preliminary diagnoses were
post-concussion syndrome and memory loss.

(Id. at 455).

Plaintiff underwent a consultative examination of his right
leg complaints in June 2012, and at that time Dr. Bagner found
no physical limitations.

(Id. at 472-75).

Specifically, Dr.

Bagner noted that “the patient ambulates at a reasonable pace
with a mild right limp, gets on and off the examining table
without difficulty, and dressed and undressed without
assistance.

He is not uncomfortable in the seated position

during the interview, does not use a cane or crutches, can heel
and toe walk. . . .
knee.

There is pain on movement of the right

The right knee shows a normal range of movement.”

at 472-73).

(Id.

However, the report did indicate problems with

dizziness. (Id. at 472).
On December 8, 2012, Dr. Villare examined Plaintiff on
behalf of the New Jersey Division of Family Development.

That

report indicated that Plaintiff had anxiety and memory loss
issues and noted that Plaintiff was totally disabled.
476-77).

5

(Id. at

Over a year later, Plaintiff was seen by Dr. Sheehan who
noted Plaintiff’s cognitive defects and diagnosed him with postconcussion syndrome.

(Id. at 478-82).

This diagnosis was

confirmed by Dr. Maltz, who saw Plaintiff in May 2014 and noted
the condition was exacerbated by post-injury sleep disorder and
post-traumatic psychological and emotional issues.

All of this

combined resulted in a “downward spiral” in his neurocognitive
and psychological functioning.

(Id. at 489).

“In any case, it

is clear that Mr. Schemelia is not functioning at the level that
he did prior to his accident and he is experiencing ongoing
disabling neuropsychological deficits.”

(Id.)

At his hearing before the ALJ, Plaintiff testified
concerning the range of his symptoms.

(Id. at 31-56).

This

testimony included his problems with vertigo and cognitive
deficits.

(Id. at 39 (“Certain days I’ll wake up and it’s like

I had the accident that day and I’ll vertigo anywhere from a day
to three days.

I kind of feel like I’m on the inside looking

out in a tunnel.”); id. at 49 (“It’s just stupid stuff like I
almost broke into tears because I changed [a]n outside light,
and I lost my tools and it took like an hour and a half to two
hours to do something that normally would take me 15 minutes”)).
Additionally, Plaintiff testified that he is limited to 4-6
hours of “terrible” sleep a night as he struggles to get
comfortable between his vertigo and painful leg.
6

(Id. at 42,

49-50).

Plaintiff complained as well of everyday headaches, the

inability to drive, walk, sit, and use stairs in a normal
manner.

(Id. at 38, 44, 47-48).1

III. ALJ DECISION
At Step One, the ALJ determined that Plaintiff’s earning
records show that he had no income since 2002.

Plaintiff had

not engaged in substantial gainful activity since the alleged
onset date. (AR 17).

At Step Two, the ALJ determined that

Plaintiff had the following severe impairments: status post
right tibial fracture, status post open reduction and internal
fixation, post-concussion syndrome, and traumatic brain injury.
(Id.)

At Step Three, the ALJ determined that Plaintiff did not

have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments.
(Id. at 17-19).

Having determined that Plaintiff did not have a

listed impairment, the ALJ then formulated a Residual Functional
The ALJ determined that

Capacity (“RFC”) for Plaintiff.

The ALJ also heard testimony at the hearing from medical expert
Dr. Cohen. Dr. Cohen analyzed Plaintiff’s traumatic brain
injury. However, Dr. Cohen testified that he could not fully
opine on his disability status without more information, such as
a neuropsychological evaluation. (AR 54). Plaintiff
subsequently underwent that examination with Dr. Maltz to
satiate Dr. Cohen’s criticisms, who determined that Plaintiff
suffered a severe level of depression and was experiencing
ongoing disabling neuropsychological deficits. (Id. at 489);
see infra.
1

7

Plaintiff possessed the RFC to: perform light work as defined in
20 CFR 416.967(b) except he can never climb ladders, ropes or
scaffolds; he can occasionally climb stairs, stoop, kneel,
crouch or crawl; he can frequently balance; he must avoid all
exposure to unprotected heights, moving mechanical parts, or
vibration; and he is limited to unskilled work, involving
simple, repetitive tasks and one to two step instructions.
at 19).

(Id.

Then, at Step Four, the ALJ determined that Plaintiff

was unable to perform any past relevant work based upon this
RFC.

At Step Five, with the burden having shifted off of

Plaintiff, the ALJ determined that Plaintiff was able to perform
many jobs in the national economy and was therefore not
disabled. (Id. at 25).
IV.

STANDARD OF REVIEW
When reviewing a final decision of an ALJ with regard to

disability benefits, a court must uphold the ALJ's factual
decisions if they are supported by “substantial evidence.”
Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§
405(g), 1383(c)(3).

“Substantial evidence” means “‘more than a

mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Cons.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Plummer v. Apfel,
186 F.3d 422, 427 (3d Cir.1999).
8

In addition to the “substantial evidence” inquiry, the
court must also determine whether the ALJ applied the correct
legal standards.

See Friedberg v. Schweiker, 721 F.2d 445, 447

(3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.
2000).

The Court's review of legal issues is plenary.

Sykes,

228 F.3d at 262 (citing Schaudeck v. Comm'r of Soc. Sec., 181
F.3d 429, 431 (3d Cir. 1999)).
“Disability” Defined
The Social Security Act defines “disability” as the
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.”

42 U.S.C. § 1382c(a)(3)(A).

The Act

further states,
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in
the national economy, regardless of whether such work
exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant's disability, as outlined in

9

20 C.F.R. § 404.1520(a)(4)(i-v). In Plummer, the Third Circuit
described the Commissioner's inquiry at each step of this
analysis:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § 1520(a). If a claimant is found
to be engaged in substantial activity, the disability
claim will be denied. Bowen v. Yuckert, 482 U.S. 137,
140 (1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show that
[his] impairments are “severe,” [he] is ineligible for
disability benefits.
In step three, the Commissioner compares the medical
evidence of the claimant's impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
five.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform [his] past relevant work. 20 C.F.R. §
404.1520(d).
The claimant bears the burden of
demonstrating an inability to return to [his] past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994). If the claimant is unable to resume [his]
former occupation, the evaluation moves to the final
step.
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R. § 404.1520(f).
The ALJ must show there are other jobs existing in
significant numbers in the national economy which the
claimant can perform, consistent with [his] medical
impairments, age, education, past work experience, and
residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant's impairments in
10

determining whether [he] is capable of performing work
and is not disabled. See 20 C.F.R. § 404.1523. The ALJ
will often seek the assistance of a vocational expert at
this fifth step. See Podedworny v. Harris, 745 F.2d 210,
218 (3d Cir. 1984).
186 F.3d at 428.
V.

ANALYSIS
Plaintiff first contends that the ALJ erred in failing to

perform a function-by-function assessment of RFC as required by
SSR 96-8p:

“At Step 5, the ALJ determined that Mr. Schemelia

‘has the residual function capacity to perform a range of light
work’ with non-exertional limitation.’

But in so doing, the ALJ

expressed Mr. Schemelia’s RFC in terms of an exertional category
only and completely failed to address the exertional limitations
of sitting, standing, walking, lifting and carrying.” (Pl.’s Br.
18-19 (citation omitted)).
SSR 96-8p provides:
The RFC assessment must first identify the
individual's functional limitations or restrictions
and assess his or her work-related abilities on a
function-by-function basis, including the functions in
paragraphs (b), (c), and (d) of 20 CFR 404.1545 and
416.945. . . In assessing RFC, the adjudicator must
discuss the individual's ability to perform sustained
work activities in an ordinary work setting on a
regular and continuing basis (i.e. 8 hours a day, for
5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work related
activity the individual can perform based on the
evidence available in the case record. . . Therefore,
it is necessary to assess the individual's capacity to
perform each of these functions in order to decide
which exertional level is appropriate and whether the
individual is capable of doing the full range of work
11

contemplated by the exertional level. . . . Without a
careful consideration of an individual's functional
capacities to support an RFC assessment based on an
exertional category, the adjudicator may either
overlook limitations or restrictions that would narrow
the ranges and types of work an individual may be able
to do, or find that the individual has limitations or
restrictions that he or she does not actually have.
Id.

As Plaintiff identifies, Sections (b), (c), and (d) of 20

C.F.R. § 404.1545 include the following functions: sitting,
standing, walking, lifting, carrying, pushing, stooping, and
crouching.
In this case, the ALJ determined that Plaintiff possessed
the RFC to perform light work as defined in 20 C.F.R. §
416.967(b) except he can never climb ladders, ropes or
scaffolds; he can occasionally climb stairs, stoop, kneel,
crouch or crawl; he can frequently balance; he must avoid all
exposure to unprotected heights, moving mechanical parts, or
vibration; and he is limited to unskilled work, involving
228

simple, repetitive tasks and one to two step instructions.
F.3d at 262 19).

20 C.F.R. § 416.967 dictates that Light Work

“involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.

Even

though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.

To be considered capable of

12

performing a full or wide range of light work, you must have the
ability to do substantially all of these activities.

If someone

can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long
periods of time.”

Id.

“[T]he ALJ’s findings of residual functional capacity must
‘be accompanied by a clear and satisfactory explanation of the
basis on which it rests.’”

Faragnoli v. Massanari, 247 F.3d 34,

41 (3d Cir. 2001) (quoting Cotter v. Harris, 642 F.2d 700, 704
(3d Cir. 1981)).
Plaintiff relies on Mines v. Colvin, Civ. A. No. 14-2792
(JBS), 2015 WL 3902301, at *13 (D.N.J. June 24, 2015), a case
that seems similar to the current case.

In Mines, the court

observed: “Plaintiff does not argue that the RFC assessment of
‘light work’ is unsupported by substantial evidence.

Plaintiff

contends that it is impossible for her to meaningfully review
and challenge the ALJ’s RFC determination because the ALJ failed
to perform a function-by-function analysis.”

Id.

The court,

agreeing with Plaintiff, ruled that the “ALJ did not properly
consider the medical record for Plaintiff’s ankle disorder in
the RFC assessment.

Here, although the ALJ referenced most of

the relevant medical record, he ignored or discounted portions
of the record without explanation.
13

In reviewing Plaintiff’s

testimony at the hearing, the ALJ acknowledged Plaintiff’s
reports of difficulty walking, sitting, kneeling, and climbing
stairs, but did not make any reference to Plaintiff’s statements
about her ankle problems, which Plaintiff mentioned several
times throughout the hearing.”

Id.

The Court went on, “[the

plaintiff] testified that she starts to feel pain in her ankle
within 10 to 20 minutes of walking.”

Id.

The case was remanded

for further consideration of these issues.
Defendant responds that the ALJ, unlike in Mines, did
consider Plaintiff’s claimed limitations.

Specifically, the ALJ

considered Plaintiff’s claims but found them not credible.
Court agrees with Defendant.

The

As the ALJ set forth in his

opinion, “The undersigned finds that while the medical evidence
shows that claimant sustained a right tibia fracture, there
[was] no treating evidence beyond January 2011, just 5 months
after his accident, to corroborate claimant’s allegations of
limitations resulting from same.”

(AR 24).

The Court finds

this consideration by the ALJ to be substantial evidence upon
which to base the RFC determination.

Accordingly, the ALJ did

not err as alleged by Plaintiff in this regard.
The Court does agree with Plaintiff, however, that the ALJ
erred in assigning an RFC which included non-exertional
limitations, but failed to consult a vocational expert to
determine the effect additional limitations had on the
14

occupation base:

“[T]he ALJ erred by not providing a function-

by-function analysis of the Plaintiff’s exertional capacity as
required by SSR 98-6p.

The error is further compounded by the

fact that the ALJ included additional non-exertional limitations
which were never posed to a vocational expert.

There is no

vocational opinion on whether these non-exertional limitations
would impact Mr. Schemelia, nor did the ALJ provide any notice
of his intent to take Judicial Notice that the additional
limitations would not impact the occupational base.”
23).

(Pl.’s Br.

Because, the RFC contained non-exertional limitations,

Plaintiff argues the ALJ cannot rely exclusively on the grids to
make a decision pursuant to AR 01-1(3), but must instead take or
produce vocational evidence.
Defendant responds that where no specific rule applies, the
grids still provide a framework, such as in cases involving
combinations of exertional (strength) and non-exertional (nonstrength) limitations.

(Def.’s Br. at 14-15).

AR 01-1(3)

establishes that there is no need to call a vocational expert
when the ALJ relies on “an SSR that includes a statement
explaining how the particular non-exertional limitation(s) under
consideration in the claim being adjudicated affects a
claimant’s occupational job base.”

(Def.’s Br. 16).2

In this

As Defendant notes “Section 200.00(e)(2) of 20 C.F.R. Part 404,
Subpt P, Appendix 2 provides that when an individual has an
2

15

case, the ALJ relied upon two SSRs, 83-14 and 85-15, which
discuss non-exertional limitations and their effect on the
occupational base.
To carry the burden at Step Five, the ALJ may utilize the
Medical–Vocational Guidelines set forth in 20 C.F.R. Part 404,
Subpart P, Appendix 2.

See generally Rojas-Velez v. Comm’r of

Soc. Sec., Civ. No. 16-1324 (RMB), 2017 WL 969969, at *9 (D.N.J.
Mar. 13, 2017).

The Third Circuit has indicated, “[t]he grids

[in the Medical–Vocational 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.”
at 263.

Sykes, 228 F.3d

“Where a claimant's qualifications correspond to the

job requirements identified by a rule, the guidelines direct a
conclusion that work exists that the claimant can perform.”

Id.

Where a claimant has both exertional and non-exertional
limitations (as does Mr. Schemelia), the ALJ cannot rely upon

impairment or combination of impairments ‘resulting in both
strength limitations and nonexertional limitations,’ the grid
rules are first used to determine whether a finding of disabled
is possible based on the strength limitations alone. If not,
‘the same grid rules reflecting the individual’s maximum
residential strength capabilities, age, education, and work
experience are used as a framework for consideration of how much
the individual nonexertional limitations further erode the
occupational job base.’” (Def.’s Br. at 15 (citing quoting AR
01-1(3)).
16

the grids in the Medical–Vocational Guidelines alone to
determine non-disability.
969969, at *9.

Id. at 273; Rojas-Velez, 2017 WL

Instead, the ALJ must also obtain “the testimony

of a vocational expert or other similar evidence, such as a
learned treatise,” in order to carry his burden at the fifth
step.

Id.

“Alternatively, the ALJ must provide the claimant

with notice that he intends to take official notice of the fact
that the claimant's non-exertional impairments do not erode the
occupational base, and the claimant must have an opportunity to
oppose that conclusion.”

Rojas-Velez, 2017 WL 969969, at *9

(citing Sykes, 228 F.3d at 273)).
It is true that an ALJ also has the ability to rely on an
SSR to avoid calling a VE.

In Allen, the Third Circuit held

that if the Commissioner intends to rely on an SSR as a
replacement for a VE, “it must be crystal-clear that the SSR is
probative as to the way in which the non-exertional limitations
impact the ability to work, and thus, the occupational base.”
417 F.3d at 407 (emphasis added).

Here, the ALJ relied on two

SSRs as a replacement for a vocational expert.

The ALJ’s entire

analysis of the SSRs in lieu of a vocational expert is: “Social
Security Regulations state that limitations on the ability to
climb ladders, ropes or scaffolds, stoop, kneel, crouch or crawl
have little effect on the occupational base for light work.

17

Similarly exposure to unprotected heights, moving mechanical
parts, and vibration have little effect (SSR’s 83-14, 85-15).
finding of ‘not disabled’ is therefore appropriate under the
framework of these rules.”

(Id. at 25).

As noted above, the

ALJ determined that Plaintiff possessed the RFC to: perform
light work as defined in 20 CFR 416.967(b) except he can never
climb ladders, ropes or scaffolds; he can occasionally climb
stairs, stoop, kneel, crouch or crawl; he can frequently
balance; he must avoid all exposure to unprotected heights,
moving mechanical parts, or vibration; and he limited to
unskilled work, involving simple, repetitive tasks and one to
two step instructions. (Id. at 19).
The Court agrees with Plaintiff that the analysis by the
ALJ of the non-exertional limitations is a cursory one sentence
and does not meet the “crystal clear” standard required by the
regulations.

With respect to unprotected elevations, vibration

and moving mechanical parts, none of the SSRs cited by the ALJ
seems to stand directly for the proposition that they will not
affect the occupational base.3

Likewise, the SSRs cited do not

For instance, with regard to vibration, SSR 85-15 discusses
vibration (as a part of environmental restrictions) as follows:

3

A person may have the physical and mental capacity to
perform certain functions in certain places, but to do
so may aggravate his or her impairment(s) or subject the
individual or others to the risk of bodily injury.
Surroundings which an individual may need to avoid
18

A

discuss the limitation of stairs on the Light Work category with
particular clarity.

It is somewhat telling that Defendant does

a more detailed analysis than the ALJ in defending the
determination, including citing to an SSR that the ALJ did not
rely on in reaching his decision in this regard, SSR 96-9p.
Accordingly, a limited remand is necessary on this issue.

because of impairment include those involving extremes
of temperature, noise, and vibration; recognized hazards
such as unprotected elevations and dangerous moving
machinery; and fumes, dust, and poor ventilation. A
person with a seizure disorder who is restricted only
from being on unprotected elevations and near dangerous
moving machinery is an example of someone whose
environmental restriction does not have a significant
effect on work that exists at all exertional levels.
Where a person has a medical restriction to avoid
excessive amounts of noise, dust, etc., the impact on
the broad world of work would be minimal because most
job environments do not involve great noise, amounts of
dust, etc.
Where an individual can tolerate very little noise,
dust, etc., the impact on the ability to work would be
considerable because very few job environments are
entirely free of irritants, pollutants, and other
potentially damaging conditions.
Where the environmental restriction falls between very
little and excessive, resolution of the issue will
generally require consultation of occupational reference
materials or the services of a VS.
Id. (emphasis added). Here, the RFC indicated with respect to
Plaintiff’s conditions that he “must avoid all exposure to
unprotected heights, moving mechanical parts, or vibration[.]”

19

Plaintiff also contends that the ALJ erred in assigning
little weight to the opinion of Dr. Edward Maltz.

First,

Plaintiff contends that in an on-the-record discussion with the
ALJ, the ALJ agreed to hold open the record to permit
neuropsychological testing of the Plaintiff for the purpose of
providing this to Dr. Cohen, a medical expert in the case who
testified that neuropsych analysis would be helpful in his
analysis.

Plaintiff obtained this analysis from Dr. Maltz, but

the ALJ never passed along the findings to Dr. Cohen.

Second,

Plaintiff contends that the ALJ improperly assigned little
weight to Dr. Maltz because he only treated Plaintiff one time,
failed to provide specific functional limitations as opposed to
broad generalized conclusions, and he opined on an issue
reserved for the ALJ.

Finally, Plaintiff argues that despite

discounting Dr. Maltz’s comprehensive analysis, the ALJ assigned
great weight to other doctors who never treated Plaintiff.
Defendant responds that, contrary to Plaintiff’s argument,
the ALJ clearly explained why he assigned Dr. Maltz’s opinion
little weight.

According to the ALJ’s analysis, Dr. Maltz

failed to provide specific functional limitations to broad
generalized conclusions.

Moreover, Dr. Maltz made a general

finding that Plaintiff had disabling limitations without
explaining what those limitations were.

The Court agrees with

Defendant and disagrees with Plaintiff’s position at oral
20

argument that the ALJ improperly injected his own lay opinion.
Rather, the ALJ discounted Dr. Maltz’s opinion because it was
premised on unsubstantiated conclusions reserved to the ALJ and
was based only on a single meeting.

Accordingly, the ALJ did

not err.4
Plaintiff additionally contends that the ALJ erred in
assessing his credibility.

First, Plaintiff argues that it was

incorrect for the ALJ to dock Plaintiff’s credibility for his
testimony that he admitted to no prior problems with employers,
when in actuality Plaintiff just testified that he had not had a
lot of encounters with employers, so he does not know what his
problems are or are not.

It is not evident the ALJ even

penalized Plaintiff’s credibility for this factor.
appears to be a properly supported statement.

Moreover, it

It is not false

that Plaintiff admitted no problems with employers.
Second, the ALJ appears to have docked Plaintiff’s
credibility on pain and severity of his symptoms due to noncompliance with his treatment, despite Plaintiff’s assertion
that he testified that at least some portion of his noncompliance was due to his inability to pay for treatment.

(AR

To the extent Plaintiff claims that the ALJ did not provide the
report to Dr. Cohen, Plaintiff did not raise this before the
Appeals Council, and admits as much. [Docket No. 15]. Even so,
even if Dr. Cohen had received Dr. Maltz’s report, it is
unlikely it would have been of any value to Dr. Cohen given its
conclusory nature.
4

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24, 44).

Defendant admits that “[a]n ALJ cannot deny a claimant

benefits based on the claimant’s failure to obtain treatment she
cannot afford.”

(Def.’s Br. 10); Gordon v. Schweiker, 725 F.2d

231, 237 (4th Cir. 1984).

Defendant argues that instead of

docking Plaintiff’s credibility for non-compliance, the ALJ’s
citation of Plaintiff’s non-compliance in this regard was to
show that perhaps the treatments were not required.
Regardless of Defendant’s arguments, the Court does not
agree with Plaintiff that the record supports Plaintiff’s
argument that he testified to an inability to pay for treatment
as the explanation for his non-compliance with treatment.
Indeed, from Plaintiff’s testimony it is not evident at all that
he missed treatment due to his inability to pay, only that he
had to call several neurologists before he could find one that
would accept payment from him.

(AR 50).

Plaintiff never

testified that the reason he did not follow up with Dr.
Greenberg – who he had seen before – was that he was unable to
pay for it.

And, once Plaintiff was able to see Dr. Sheehan

(whose prices he described as “extremely reasonable”), he was
again non-compliant (even though he subsequently obtained
insurance).

(Id.)

In all, the ALJ’s credibility determinations

can be fairly said to be supported by substantial evidence in
this regard.

As such, the Court finds no errors in the

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credibility determinations of the ALJ as identified by Plaintiff
on appeal.
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: June 9, 2017

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