ROBERTSON v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Renee Marie Bumb on 6/26/2017. (tf, )
[Dkt. No. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROBERT LEE ROBERTSON,
Civil No. 16-3331 (RMB)
COMMISSIONER OF SOCIAL
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 Robert Lee Robertson
(Administrative Record (“AR”) 7-9).
2017, this Court conducted oral argument.
On June 6,
For the reasons set
forth below, the Commissioner’s decision is affirmed.
On October 19, 2011, Plaintiff filed an application for
Social Security disability benefits under Title II and Title XVI
of the Social Security Act.
Plaintiff alleged a
disability onset date of August 20, 2010 with underlying
conditions of anxiety, heart problems, and Hepatitis C.
Pursuant to the determination of the Administrative Law
Judge (“ALJ”) currently being reviewed by this Court, Plaintiff
meets the insured status requirements of the Social Security Act
through March 31, 2016.
(Id. at 12).
denied on June 28, 2012.
The claim was initially
(Id. at 116).
The claim was denied
upon reconsideration on December 31, 2012.
(Id. at 125).
hearing was held before an ALJ on April 22, 2014.
(Id. at 28).
On August 14, 2014, the ALJ entered an unfavorable decision.
(Id. at 7-9).
A request for review was denied by the Appeals
Council on May 12, 2016.
(Id. at 1-3).
Plaintiff was born on April 9, 1962, making him 55 years old
on the date of argument of this appeal.
On the alleged onset
date, Plaintiff was 48 years old, but he has since aged into the
“closely approaching advanced age” category as of April 8, 2012.
A. Treatment History
i. Coronary Artery Disease
As reflected in treatment records of Dr. Edward Wrobleski in
a letter to Plaintiff’s GP, Dr. Stephen J. Giamporcaro, in March
of 2010, Plaintiff suffered an inferior wall myocardial
“He was urgently taken to the cardiac
catheterization laboratory where thrombectomy was performed on
the right coronary artery.
A Xience drug-eluting stent was
Since that time, Dr. Wrobleski reports in his
treatment notes, Plaintiff had been asymptomatic and had denied
chest pain, shortness of breath, and dyspnea.
remarked that Plaintiff had a good activity level and had
returned to working full time.
On December 1, 2010, Plaintiff was assessed for chest pain
and stress imaging was generated.
(Id. at 497).
indicated an impression that: (1) there was no evidence of
stress-induced myocardial ischemia; (2) there was normal wall
motion; and (3) the left ventricular ejection fraction was 60%.
On October 27, 2011, Plaintiff again was evaluated for
chest pain, and the conclusion of the echocardiographic study was
(Id. at 485).
(Id. at 484).
Plaintiff had no reversible ischemic
A stress test indicated that there were
no pharmacologically induced symptoms of chest pain and no
(Id. at 486).
treatment in September 2012, Plaintiff reported that he was not
suffering from chest pain, shortness of breath, or abdominal
(Id. at 379).
Back Pain and Evaluations by Dr. Giamporcaro
During the relevant period, Plaintiff has also sought
treatment for back pain.
The records, however, are inconsistent
on the degree of Plaintiff’s back problem.
In July, October, and
November 2011 and May 2012, Plaintiff had a normal
In that medical report, it was also noted that Plaintiff
“continues to do cocaine. . . . [H]e is also on methadone
program[.]” (AR 379).
musculoskeletal or back examination, (id. at 406, 409, 412, 396),
although it was noted that he suffered from “back spasm” in some
(Id. at 410, 412).
At other times, for instance in
June, July, August, and September 2012, Plaintiff’s record
reflects diagnoses of “backache” or generalized complaints of
(Id. at 379, 382, 384, 387, 390).2
indicate that Plaintiff was working full time.
The records also
(See, e.g., id.
In April 2012, an x-ray examination of Plaintiff’s spine
revealed “a normal appearance to the vertebral bodies.
spaces [were] well preserved.
There [was] no evidence of
fracture, bone destruction or other abnormalities.”
The overall impression was that Plaintiff had a normal
In subsequently treating Plaintiff, Dr. Giamporcaro
indicated that Plaintiff was totally disabled and attributed it –
at least in part – to Plaintiff’s back, diagnosing Plaintiff with
coronary artery disease, diabetes mellitus, and a herniated
(Id. at 556-57).
He remarked that Plaintiff had
been disabled from February 20, 2013 through February 20, 2014.
In April 2014, Dr. Giamporcaro noted that Plaintiff had
diagnoses of coronary artery disease, herniated disc, and
Plaintiff’s medical records contain references to back pain as
far back as 2010. (AR 423).
(Id. at 856).
He remarked that as a result of
Plaintiff’s symptoms, he was severely limited and assessed him
with significant limitations, including that he would be absent
from work more than three times monthly and could not deal with
work related stress.
(Id. at 856-61).
An MRI of Plaintiff’s lumbar spine in February 2013 revealed
diffuse degenerative disc disease most pronounced at L5-SI with
broad-based desiccated disc bulge and a superimposed left
paracentral disc protrusion effacing the left lateral recess
causing central canal and neural foraminal narrowing, and less
severe degenerative disc narrowing and facet joint disease at L3L4 and L4-L5.
(Id. at 580).
iii. Bipolar Disorder
Although some medical records from 2011 and 2012 seem to
indicate that Plaintiff had a “normal” mental status, (id. at
393, 399, 404, 412), in February 2013, Plaintiff began treatment
at Crossroads for mental health issues.
A treatment note from
Crossroads notes that he was referred there from a recovery
program “due to an increase in depression, anxiety, feelings of
hopelessness, [history] of trauma – seeing friend shot.
[History] of criminal activity.
Desired to have mood stabilized,
[decrease] any feelings of depression[.]”
(Id. at 829).
Crossroads, Plaintiff was treated by Anne Albiez, APN.
In associated records, it was noted that Plaintiff
suffered from bipolar II disorder and opiate abuse.
In Plaintiff’s intake notice dated July 3, 2013, it was
noted that Plaintiff was “[v]ery depressed with difficulty
sleeping and isolation.
(Id. at 822).
Feelings of hopelessness and anxiety.”
Similarly, in an assessment of Plaintiff’s risk
factors, it was noted that Plaintiff suffered risk factors of
suicidal ideation, substance use, anxiety, physical
complaint/medical issues, and insomnia.
(Id. at 825).
that same evaluation noted that Plaintiff’s appearance and
behavior were appropriate, he was cooperative and oriented with
no thought disorder and goal directed and logical thought
Plaintiff also was noted to be of average
intellect, normal concentration, and fair insight/judgment.
Plaintiff had immediate, recent, and remote memory intact.
His Global Assessment of Function (“GAF”) score was noted to be a
“GAF scores are used by mental health clinicians and doctors to
rate the social, occupational, and psychological functioning of
adults. The GAF scale ranges from 1 to 100, with a score of 1
being the lowest and 100 being the highest. A GAF score of 41–50
indicates an individual has serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).
A GAF score of 51–60 indicates moderate symptoms or moderate
difficulty in social, occupational, or school functioning.” Rios
v. Comm'r of Soc. Sec., 444 F. App'x 532, 534 (3d Cir. 2011)
(internal citations and quotation marks omitted). See infra for
discussion of GAF scores in the context of appeals from the
denial of Social Security benefits.
On December 5, 2013, Ms. Albiez filled out a mental
impairment questionnaire which assessed Plaintiff’s residual
That evaluation determined Plaintiff’s GAF
score was 55, with a highest GAF of 60 in the past year.
At that time, she observed that Plaintiff had a stable
mood with medication and exhibited no oddities of thought,
perception, speech, or behavior.
Plaintiff was not socially
withdrawn, was without delusions or hallucinations, and was
without difficulty concentrating.
(Id. at 850-51).
time it was noted that Plaintiff’s prognosis was fair and most of
Plaintiff’s psychotic symptoms were related to drug use.
It was also noted that Plaintiff would be absent from a
job more than three times a month with his current impairments.
(Id. at 853).
An April 7, 2014 evaluation by Ms. Albiez determined that
Plaintiff would be markedly limited in his ability to remember
locations and work-like procedures, the ability to understand and
remember detailed instructions, the ability to carry out detailed
instructions, the ability to maintain attention and concentration
for extended periods, the ability to work in coordination with or
proximity to others without being unduly distracted by them, and
the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of
(Id. at 846-849).
Consultative Examinations and State Agency Assessments
Plaintiff has undergone a number of consultative
In an April 16, 2012 consultative examination by
Dr. P. Lawrence Seifer, Plaintiff complained of severe
depression, anxiety, and low energy.
(Id. at 340).
At the time, Plaintiff was
With regard to the activities of daily
living, Plaintiff reported to Dr. Seifer that he had trouble
shopping, using public transportation, and interacting with
(Id. at 341).
Plaintiff was also observed to have a
normal gait and posture.
His dress and hygiene appeared good.
It was also reported that Plaintiff could do a little
housework, follow simple instructions, and function
Plaintiff was observed to have
“moderate/severe” limitations due to a combination of physical
and mental states, including major depressive disorder with
psychotic features and panic disorder without agoraphobia.
In June 2012, Dr. C. Ivan Gordan evaluated Plaintiff.
At that time, Plaintiff’s chief complaint was
depression dating back to 2004, along with Hepatitis C,
gastroesophageal reflux disease (“GERD”), and hypertension.
Plaintiff was not working at the time.
(Id. at 345).
physical examination showed full range of motion in all joints,
with an intact muscle system.
Dr. Gordon’s impressions
were that Plaintiff suffered from reactive depression, not
currently stabilized; postmyocardial infarction; GERD (controlled
with medication); hypertension (controlled with medication); and
On June 26, 2012, Dr. Morris Feman completed an assessment
of Plaintiff’s residual functional capacity (“RFC”) and
determined that Plaintiff had no postural, manipulative, visual,
communicative, or environmental limitations.
(Id. at 69-70).
Dr. Feman determined Plaintiff could occasionally lift/carry 20
pounds, could frequently lift or carry 10 pounds, could stand or
walk for about 6 hours in an 8-hour workday, could sit for a
total of six hours in an 8-hour workday, and could do an
unlimited amount of pushing, and/or pulling.
(Id. at 70).
December 12, 2013, Dr. Nancy Simpkins agreed on reconsideration.
(Id. at 100).
Plaintiff’s mental RFC was also assessed by state agency
On June 7, 2012, Dr. Amy Brams reviewed
Plaintiff’s medical records and completed a case analysis.
Brams indicated that Plaintiff had mild restriction of daily
living activities, moderate difficulty maintaining social
functioning, moderate difficulties maintaining concentration, and
no repeated episodes of decompensation.
(Id. at 68).
completing a mental RFC assessment for Plaintiff, Dr. Brams
concluded that Plaintiff was not significantly limited in his
ability to carry out very short and simple instructions, his
ability to sustain an ordinary routine without special
supervision, and his ability to work in coordination with or in
proximity to others without being distracted by them.
Plaintiff was moderately limited in his abilities to:
maintain attention and concentration for extended periods,
perform activities within a schedule, maintain regular
attendance, be punctual within customary tolerances, make simple
work-related decisions, and complete a normal workday and
workweek without interruptions from psychologically based
symptoms, and perform at a consistent pace without an
unreasonable number and length of rest periods.
i. Plaintiff’s Testimony
Plaintiff testified in his hearing before the ALJ.
In detailing his work history, Plaintiff testified that he
previously worked as a Bellman/Valet from 1999 through 2010.
(Id. at 30).
During that same timeframe, Plaintiff also worked
in medical transport and worked as a cashier.
Plaintiff last worked in 2011.
(Id. at 32).
(Id. at 30-31).
At the hearing,
Plaintiff testified that he did not think he would be able to
return to his previous work because of the lifting required and
the fact that his back “locks up.”
(Id. at 45).
As far as Plaintiff’s medical conditions, he first testified
about problems with his back.
(Id. at 33).
He was using a cane
during the hearing, which Plaintiff testified was prescribed by a
Plaintiff testified that he has “messed discs in
I have a lot of arthritis.
I get real, real bad
muscle spasms and my back locks up on me.”
testified that Dr. Giamporcaro had been been treating him for his
back and treating him more generally for 25 years.
(Id. at 34).
Plaintiff testified that Dr. Giamporcaro had been prescribing
“muscle relaxers” to Plaintiff and sending him to specialists,
although the specialists had done “[n]othing, really.”
Second, Plaintiff testified about his Hepatitis C treatment.
Plaintiff indicated that his Hepatitis C is “non-detectable,” but
had recently “spiked up a little bit.”
(Id. at 36).
As a result
of the condition, Plaintiff testified that he suffers from
Third, Plaintiff testified about heart problems from which
Plaintiff testified that his “artery was 95%
clogged” and he received a stent in 2000.
Plaintiff testified that he has received medication for his heart
problems, including chest pain, but that apart from medication,
no other procedures have been done.
(Id. at 37).
Fourth, Plaintiff testified about his psychological
Plaintiff testified that he was currently
seeing a psychologist due to anxiety and depression issues.
Plaintiff indicated he was having trouble sitting in the
room in which he was testifying because he felt as though he was
“being closed in.”
(Id. at 38).
Fifth, Plaintiff testified that he had trouble with
(Id. at 38).
Specifically, he testified at his
hearing that he had been clean for 14 months prior to the hearing
and did not take pain medication for his back for that reason.
(Id. at 39).
Sixth, Plaintiff testified about his everyday activities.
(Id. at 40).
Plaintiff was living alone at the time of the
hearing, but his sister would visit to help sometimes with the
cooking, cleaning laundry, and shopping.
(Id. at 40).
also testified that he is able to spend time with his
(Id. at 41).
He has trouble going to the
supermarket because of the requirements of standing in line and
(Id. at 46).
However, at another point in his
testimony, Plaintiff also testified that he could lift a gallon
of milk “a couple times an hour.”
(Id. at 54).
Plaintiff will host his family for dinner and he might cook them
dinner (or his sister might).
Plaintiff testified that he
is largely unable to drive a vehicle due to his back pain.
Plaintiff testified that he typically does little to
entertain himself and he has “totally got a boring life.”
Plaintiff testified that while he used to like to run,
exercise, fish, bicycle, and play sports, he no longer does those
(Id. at 53).
He has some trouble managing his own
business affairs, but reported that he has not had trouble
getting along with coworkers in the past.
(Id. at 46).
Plaintiff also testified that he experiences shortness of breath
while climbing stairs.
(Id. at 52).
Finally, Plaintiff also testified about his psychological
Plaintiff explained that he attends a treatment
program everyday from 9:00 to 4:00.
(Id. at 50).
program, Plaintiff attends many classes, including classes
covering “how to get into life, how to interact with people.”
Plaintiff additionally testified that although he used to
have up to ten panic attacks a month, with medication, that
number is four or five times per month.
testified that his chest pain appears to be linked with his
(Id. at 51).
Vocational Expert Testimony
The ALJ also took testimony from a Vocational Expert (“VE”).
The VE testified that if Plaintiff were limited to light work but
only occasional postural activities and could only occasionally
focus and concentrate, he would be unable to do his past work.
(Id. at 58).
After the hearing, the ALJ sent interrogatories to the VE
for additional information.
The ALJ asked the VE to assume two
hypothetical individuals each with Plaintiff’s age and
The first individual would possess the RFC to
perform light work, but limited to occasional climbing,
balancing, stooping, kneeling, crouching and crawling, limited to
simple, routine tasks and simple work decision with frequent
contact with coworkers and supervisors and occasional contact
with the public, without production quotas or a production rate
The second individual would be limited to light work
limited to occasional climbing, balancing, stooping, kneeling,
crouching and crawling, limited to simple routine tasks and
simple work decisions, with frequent contact with co-workers,
supervisors and the public.
(Id. at 313).
The VE determined
that this individual could perform jobs in the national economy,
including photocopy machine operator, deliverer, and cafeteria
(Id. at 314).
Asked whether this same person would
be able to work jobs in the national economy if he was limited to
occasional concentration and attention or had to miss three or
more days per month, the VE answered no.
(Id. at 326).
C. ALJ Decision
At Step One of the analysis, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since
August 20, 2010, the alleged onset date.
(Id. at 12).
At Step Two, the ALJ determined that Plaintiff had the
severe impairments of: disorder of the lumbar spine, coronary
artery disease, obesity, and bipolar disorder.
determined that the shoulder injury Plaintiff testified to at the
hearing and Hepatitis C both did not meet the criteria for being
a severe impairment.
At Step Three, the ALJ determined that Plaintiff did not
have an impairment or a combination of impairments that meets or
medically exceeds the severity of a listed impairment.
The ALJ then formulated an RFC for Plaintiff: the ALJ
determined that Plaintiff had the RFC to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b), characterized by an
ability to sit, stand, and walk up to six hours in an eight-hour
day, and lift/carry up to 20 pounds; limited to occasional
climbing, balancing, stooping, kneeling, crouching and crawling;
limited to simple routine tasks and simple work decisions; with
frequent contact with co-workers and supervisors and occasional
contact with the public; without production quotas or a
production rate pace.
(Id. at 13-14).
Having formulated an RFC, at Step Four, the ALJ determined
that Plaintiff was unable to perform any past relevant work.
(Id. at 18).
Finally, having considered the Plaintiff’s relevant
characteristics and RFC, as well as the VE’s testimony and
interrogatory responses, the ALJ determined that there were jobs
that existed in significant numbers in the national economy that
Plaintiff could perform.
(Id. at 18-19).
Accordingly, the ALJ
determined that Plaintiff has not been under a disability since
August 20, 2010, and his claim was therefore denied.
III. LEGAL STANDARD
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.”
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§ 405(g),
“Substantial evidence” means “‘more than a mere
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).
In addition to the “substantial evidence” inquiry, a court
must also determine whether the ALJ applied the correct legal
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)).
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).
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in
the national economy, regardless of whether such work
exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant's disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i-v).
In Plummer, the Third Circuit
described the Commissioner's inquiry at each step of this
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,
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment.
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. §
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
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R. § 404.1520(f).
The ALJ must show there are other jobs existing in
significant numbers in the national economy which the
claimant can perform, consistent with [his] medical
impairments, age, education, past work experience, and
residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant's impairments in
determining whether [he] is capable of performing work
and is not disabled. See 20 C.F.R. § 404.1523. The ALJ
will often seek the assistance of a vocational expert at
this fifth step.
See Podedworny v. Harris, 745 F.2d
210, 218 (3d Cir. 1984).
186 F.3d at 428.
Plaintiff has two primary contentions on appeal.
is that the ALJ’s weighing of medical evidence was erroneous.
(Pl.’s Br. 16-26).
The second contention is that the Step Five
analysis by the ALJ was not supported by substantial evidence.
(Id. at 26-31).
A. RFC Analysis
As noted above, the ALJ determined that Plaintiff had the
RFC to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), characterized by an ability to sit, stand, and walk
up to six hours in an eight-hour day, and lift/carry up to 20
pounds; limited to occasional climbing, balancing, stooping,
kneeling, crouching, and crawling; limited to simple routine
tasks and simple work decisions; with frequent contact with coworkers and supervisors and occasional contact with the public;
without production quotas or a production rate pace.
A claimant’s RFC is the most that he can do despite his
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)91).
assessing that RFC, an administrative decision should be
“accompanied by a clear and satisfactory explication of the basis
on which it rests.”
Williams v. Apfel, 98 F. Supp. 2d 625, 631
(E.D. Pa. 2000) (quoting Cotter v. Harris, 642 F.2d 700, 704-05)
(3d Cir. 1981)).
Plaintiff contends that the ALJ improperly
weighed the medical evidence in arriving at Plaintiff’s RFC.
(Pl.’s Br. 16-26).
In so arguing, Plaintiff identifies three
purported errors by the ALJ.
According to Plaintiff: (1) the ALJ
should have relied more heavily on the opinions of Dr.
Giamporcaro, Ms. Albiez, and Dr. Seifer with regard to
Plaintiff’s RFC; (2) the ALJ relied too heavily on state agency
opinion; and (3) the ALJ discounted opinion evidence on the basis
of the ALJ’s own lay medical opinion which was given controlling
weight without affording the Plaintiff opportunity to voir dire
and cross examine the opinion.
(Pl.’s Br. 18).
Those three sub-
issues tend to overlap and the Court addresses them together
With regard to the Plaintiff’s first argument, Plaintiff
complains that the ALJ improperly assessed the weight to be given
to Dr. Giamporcaro, Plaintiff’s treating physician.
As the Third
Circuit has held, “[t]reating 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 prolonged period of time.’”
186 F.3d at 429.
Dr. Giamporcaro opined that Plaintiff remained disabled from
February 2013 to February 2014 due to coronary artery disease,
diabetes mellitus, and herniated lumbar disc.
As set forth by
the ALJ, “In April 2014, Dr. Giamporcaro assessed that the
claimant was unable to sit, stand or walk two hours in an eighthour day, or lift/carry greater than 10 pounds.
He opined that
the claimant would be absent from work more than three times
monthly and could not deal with work stress.”
evaluating these findings, the ALJ afforded “little weight” to
them because “they [were] unsupported by diagnostic testings,
findings on physical examinations, which are minimal, the
claimant’s ability to perform activities of daily living as
reported and testified to at the hearing, and the claimant’s
conservative course of care, which has included limited treatment
and physical therapy.”
(Id. at 16).
Plaintiff contends that it was error to determine that the
findings on physical examinations “are minimal.”
The Court is
not convinced that this amounts to an impermissible medical
As Defendant properly points out, the regulations
charge the ALJ with the duty to evaluate medical opinions.
C.F.R. §§ 404.1527, 416.927.
Findings by Plaintiff on physical
examinations have often revealed that Plaintiff had a normal
musculoskeletal system or spine, see supra.
Gordon, who performed a consultative examination of Plaintiff,
determined that Plaintiff had no muscle weakness and was able to
squat, walk on heels, walk on toes, and had no sensory loss.
Such finding is contradictory to the findings of Dr.
The Court does not find the terming of these
medical evaluations by others as “minimal” to amount to an
impermissible medical opinion on the part of the ALJ, so much as
an evaluation of the record’s consistency.
The ALJ clearly set
forth the reasoning behind affording the opinion of Dr.
Giamporcaro little weight.
See generally Kanakis v. Comm’r of
Soc. Sec., 649 F. App’x 288, 291 (3d Cir. 2016) (“The ALJ fully
considered the opinions of [the treating physicians], and
adequately explained why they are entitled to little weight”).
As such, the ALJ’s handling of the medical opinion of Dr.
Giamporcaro in this regard does not amount to error.
generally Kerdman v. Comm’r of Soc. Sec., 607 F. App’x 141, 144
(3d Cir. 2015) (noting that “the extreme degree of limitation
assessed by [treating physician] was inconsistent with the
substantial medical evidence of the record.
examiner and a board certified internist examined [the
plaintiff] and rendered an opinion inconsistent with [the
With regard to Plaintiff’s second contention as to Dr.
Giamporcaro’s medical opinion, that the ALJ erred by discounting
it for being illegible, the Court does not agree with Plaintiff.
The Court does take note of the fact that Kanakis and Kerdman
were not dispositions of the full Third Circuit, however, the
Court does find the reasoning set forth in those cases’ analyses
to be persuasive.
As an initial matter, the Court does not find that the ALJ even
discounted the opinion for this reason, so much as “noted” that
they were illegible.
Moreover, to the extent the ALJ did in fact diminish the
weight given to the opinion due to the legibility of the
treatment notes from Dr. Giamporcaro, the Court does not find
this would amount to error.
As recently noted by a court in this
District, even in the context of illegible notes, “the burden of
proving [his or] her disability ultimately remains on [the
Swanson v. Comm’r of Soc. Sec., 1:15-cv-08894-NLH,
2017 WL 825199, at *6 (D.N.J. Mar. 2, 2017).
In Swanson, where a
plaintiff had not shown prejudice in refusing to consider
portions of illegible notes, remand was improper.
is true in this case.
Plaintiff has not demonstrated prejudice
in the failure to consider certain illegible portions of Dr.
Giamporcaro’s medical records.
Indeed, this is clear where the
reason that the ALJ gave little weight to Dr. Giamporcaro’s
assessment was because it was inconsistent with Plaintiff’s
treatment history, with his physical assessments taken by others,
and with his own testimony and recollection of his activities.
(AR 16; see also id. 42 (testifying that he goes to see Dr.
Giamporcaro twice a month for blood work on his cholesterol and
Even if the illegible portions of Dr.
Giamporcaro’s treatment notes were 100% consistent with his
legible opinion as to Plaintiff’s abilities, that opinion would
still remain at odds with Plaintiff’s own treatment history,
abilities as assessed by other examiners of Plaintiff, and
testimony and adult function report, which is the very ground
upon which the ALJ afforded the opinion little weight.
50 (testifying that he attends classes each day from 9:00 to
4:00); id. at 41 (testifying that he spends time with his
grandkids until they “wear him out”); id. (testifying that he
“might cook [his family] dinner” when they come over); id. 239-46
(Adult Function Report concerning Plaintiff’s limitations and
On that record, the Court cannot determine that the
Plaintiff is prejudiced by the inability of the ALJ to decipher
portions of Dr. Giamporcaro’s notes and that the determination
was based on substantial evidence.5
On this ground, as well, the
ALJ did not err in assessing Dr. Giamporcaro’s testimony.
Plaintiff also contends that the ALJ improperly granted
little weight to the assessment of Ms. Albiez.
The ALJ noted
The Court is also mindful of Grabowski v. Astrue, in which
another court in this District determined that remand was not
appropriate on the ground that certain treatment notes were
illegible. “In this case . . . the evidence was adequate to
determine that Plaintiff was not disabled, regardless of whether
some of Dr. Gandhi’s notes were illegible. Moreover, [the] Court
notes that Plaintiff shoulders the ultimate responsibility to
provide evidence that supports his claim.” Civ. A. No. 09-6218
(JAP), 2011 WL 867547, at *6 (D.N.J. Mar. 10, 2011).
[l]ittle weight is given to this opinion, primarily
because the assessment made by Ms. Albiez is not
consistent with her reported findings on mental status
examinations throughout treatment. Few clinical signs
were noted in her report, and as such, her assessment of
moderate to marked limitations is inconsistent. Also,
at the hearing, the claimant reported that he remains
able to engage in a wide range of daily activities, which
further contradicts the significant limitations assessed
by Ms. Albiez.
Ms. Albiez’s assessment of Plaintiff found him to be
markedly or moderately limited in all categories related to
understanding and memory, as well as sustained concentration and
As an initial matter, Defendant contends – and Plaintiff dos
not refute – that Ms. Albiez’s opinion is not a proper medical
source to be considered.
Although Plaintiff refers to Ms. Albiez
as “Dr. Albiez” in his brief at various times, (Pl.’s Br. at 22),
the record is clear that she is not a doctor but a nurse
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 362
(3d Cir. 2011) (indicating that ALJ “was not required to consider
[nurse practitioner’s] opinion at all because, as a nurse
practitioner, she is not an ‘acceptable medical source.’”).
Accordingly, the Court is mindful that the ALJ did not need to
treat Ms. Albiez’s treatment notes as a medical source.
That noted, the Court finds no error in the assessment of
Ms. Albiez’s opinion as to Plaintiff.
Although Plaintiff was
assessed to be moderately or markedly limited in areas related to
concentration and memory by Ms. Albiez, on December 5, 2013 – a
few months before this evaluation, Ms. Albiez reported that
Plaintiff had a current GAF score of 55,6 with a highest GAF in
the past year of 60 – findings that are inconsistent with
Plaintiff’s extreme limitations as assessed only a month prior.
In that same assessment, Ms. Albiez noted that Plaintiff had no
“difficulty thinking or concentrating.”
Ms. Albiez similarly did
not identify Plaintiff as having a poor memory.
these inconsistencies, and others which were referenced by the
ALJ, the decision to afford little weight is based on substantial
evidence and the Court does not find that the ALJ substituted his
own medical opinion.7
As has been frequently noted, the Diagnostic and Statistical
Manual of Mental Disorders, DSM–5, abandoned the GAF scale as a
measurement tool. Accordingly, the Social Security
Administration now permits ALJs to use GAF ratings as opinion
evidence when assessing disability claims involving mental
disorders. But, ALJs have been instructed that a “GAF score is
never dispositive of impairment severity,” and an ALJ should not
“give controlling weight to a GAF from a treating source unless
it is well supported and not inconsistent with other evidence.”
SSA AM–13066 at 5 (July 13, 2013).
Plaintiff seeks remand due to the fact that the ALJ relied upon
Plaintiff’s testimony that he could still perform a wide-range of
daily activities in discounting Ms. Albiez’s opinion. Plaintiff
contends that no reading of Plaintiff’s testimony could support
such a finding. (Pl.’s Br. 24-26). While the Court does find
that Plaintiff testified to some daily activities he could still
perform such as cooking and spending time with his grandchildren,
(AR 41, 54), the Court additionally finds that Plaintiff’s adult
function report, (AR 236-43), which the ALJ determined to attest
to a wide range of daily activities in other portions of his
analysis of the RFC, (AR 16 (“the claimant's ability to perform
i. Consideration of Other Opinions
The ALJ also reasonably relied on the opinions by the state
agency psychologists and physicians.
ALJs are required to
consider state agency physician assessments as opinion evidence.
20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i).
because, as Defendant notes, these “are highly qualified
physicians . . . and experts in Social Security disability
See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356,
361 (3d Cir. 2012) (under the Commissioner’s regulations,
opinions of non-examining state agency physicians “merit
significant consideration” in the RFC assessment); Jones v.
Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (holding that an ALJ
may rely on the opinion of a non-examining medical source, even
when it contradicts the opinion of a treating physician, when it
is consistent with the record).
Simply put, the fact that the
ALJ weighed the state agency consultants better than the treating
physicians in the end is not dispositive provided that it was
done with adequate reasoning.
The Court does not agree with
Plaintiff that these state agency findings were “mined for their
benign findings while the limitations are systematically
activities of daily living as reported and testified to at the
hearing”)), shows the full range of activities Plaintiff
indicated he was able to perform.
(Pl.’s Br. 19).
The record contains adequate
evidence to arrive at an RFC determination.
Likewise, Plaintiff’s argument that the ALJ erred by
substituting his own opinion for that of Dr. Seifer also misses
(Pl.’s Br. 21).
For the same reasons Ms. Albiez’s
opinion was not afforded greater weight – it was inconsistent
with the record as a whole – the ALJ determined that Dr. Seifer’s
GAF assessment of Plaintiff was only afforded some weight because
of the nature of GAF scores and the consistency of that GAF score
with the rest of the record.
As the ALJ made clear and as Plaintiff concedes, GAF scores
“are of limited utility,” although they are not insignificant.
The ALJ found that the nature of GAF scores, which are “a GLOBAL
assessment, paints a rather broad picture that is somewhat less
definitive with respect to particular aspects of workplace
functions, for example, and that is, furthermore, subject to
greater variability day to day and practitioner to practitioner.”
This discussion of GAF scores is consistent not only
with Plaintiff’s understanding of GAF scores, (Pl.’s Br. 21), it
is also consistent with regulations and court treatment on the
See supra; see also Hughes v. Comm'r Soc. Sec., 643 F.
App'x 116, 119 (3d Cir. 2016).
Moreover, the ALJ also discounted the assessment of
Plaintiff because of inconsistencies with the record as a whole,
including inconsistencies with examinations by others and with
Plaintiff’s description of his activities.
It is not for this
Court to determine if it disagrees with the ALJ’s ultimate
Rather, it is for this Court to determine whether the
ALJ’s reasoning was based on substantial evidence.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ's
findings of fact are supported by substantial evidence, we are
bound by those findings, even if we would have decided the
factual inquiry differently.”)
Here, the Court finds that the
ALJ’s RFC analysis was supported by substantial evidence.
B. Step Five Analysis
Plaintiff’s second contention on appeal is that the ALJ did
not adequately support his Step Five finding that significant
jobs in the national economy were available to Plaintiff.
Plaintiff correctly points out, “Questions posed to the
Vocational Expert must accurately portray the Plaintiff’s
individual physical and mental limitations” in order to consider
the VE’s testimony as valid concerning a Plaintiff’s ability to
perform other employment.
Schonewolf v. Callahan, 972 F. Supp.
277, 289 (D.N.J. 1997) (internal quotation marks omitted).
hypothetical question is not complete if it does not properly
analyze a Plaintiff’s impairment and his possible functional
Plaintiff specifically contends that a switch in the
questions posed to the VE demonstrates a problem with the
ultimate determination that Plaintiff could get jobs in the
As he notes, “It is not at all clear that the
jobs provided by the Vocational Expert via interrogatory are
actually consistent with a worker being limited to simple routine
tasks and simple work decision[s].
The positions listed are SVP
2 positions, which by definition [are] something more than simple
An SVP 1 job is defined as one requiring a ‘short
demonstration only’, while an SVP 2 job is defined as one
requiring anything beyond short demonstration up to and including
(Pl.’s Br. at 29).
rejected this precise argument.
As Defendant notes, courts have
Thrash v. Astrue, No. 09-1304,
2010 WL 3775063, at *12 (D. Ariz. Sep. 21, 2010) (finding no
conflict between the VE’s testimony and the DOT regarding the
identification of jobs having an SVP of 2 and the limitation to
This is because the SVP and the reasoning level of
a job are two different considerations:
A job's SVP is focused on “the amount of lapsed time” it
takes for a typical worker to learn the job's duties. A
job's reasoning level, by contrast, gauges the minimal
ability a worker needs to complete the job's tasks
themselves . . . . “SVP ratings speak to the issue of
the level of vocational preparation necessary to perform
the job, not directly to the issue of a job's simplicity,
which appears to be more squarely addressed by the GED
[reasoning level] ratings.”
Id. (quoting Meissl v. Barnhart, 403 F.Supp.2d 981, 983 (C.D.
Cal. 2005) (internal citation omitted)).
Defendant’s clear reliance on it, Plaintiff does not cite or try
to distinguish this on-point case in his reply brief.
Plaintiff also argues that the jobs proffered by the VE,
such as a photocopying-machine operator are not simple at all.
Plaintiff cites only the descriptions of the job and his
own belief that “these tasks are more than simple, routine tasks
that only require simple work decision.”
(Id. at 30).
unsupported assertion is plainly contrary to the VE testimony on
the point, upon which the ALJ relied, and is not underscored by
any citation to case law by Plaintiff.
Simply put, the ALJ is
entitled to rely upon VE testimony as substantial evidence at
Flynn v. Colvin, 2014 WL 3827849, at *6 (D.N.J. Aug.
4, 2014) (citing Rutherford v. Barnhard, 399 F.3d 546, 555 (3d
Cir. 2005) (explaining that the ALJ is entitled to rely upon VE
testimony as substantial evidence for step-five determination)).
The Court is unpersuaded by Plaintiff’s unsubstantiated
opinion that the Commission has failed to meet its Step Five
Accordingly, the Court finds no error.
For the reasons set forth above, the determination of the
Commissioner is affirmed.
An Order follows.
DATED: June 26, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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