KIMBLE v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Jerome B. Simandle on 9/25/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

WILLIAM C. KIMBLE, JR.,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 16-04448 (JBS)

COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.

APPEARANCES:
Steven Hordis, Esq.
102 Browning Lane
Cherry Hill, NJ 08003
Attorney for Plaintiff William Kimble, Jr.
Heather Benderson, Esq.
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel, Region III
P.O. Box 41777
Philadelphia, PA 19101
Attorney for Defendant Commissioner of Social Security
SIMANDLE, District Judge:
I. INTRODUCTION
This matter comes before the Court pursuant to 42 U.S.C. §
405(g) for review of the final decision of the Commissioner of
the Social Security Administration denying Plaintiff William
Kimble’s applications for disability benefits and supplemental
security benefits under Title II and Title XVI of the Social
Security Act, 42 U.S.C. § 401, et seq. Plaintiff, who suffers

from status-post left shoulder rotator cuff surgery, status-post
right shoulder rotator cuff surgery, an intellectual/learning
disability, hearing loss and degenerative disc disease of the
lumbar spine was denied benefits for the period beginning
December 27, 2011, the alleged onset date of disability, to
January 7, 2016, the date on which the Administrative Law Judge
(“ALJ”) issued a written decision.
In the pending appeal, Plaintiff argues that the ALJ’s
decision must be reversed and remanded on four grounds.
Plaintiff contends that the ALJ erred in (1) determining at step
three that Plaintiff did not meet Listing 12.05C; (2) finding
that Plaintiff lacked sufficient credibility; (3) failing to
accord proper weight to the Third Party Function Report of
Plaintiff’s wife; and (4) according “great weight” to the
consultative report of Dr. William Dennis Coffey. For the
reasons stated below, this Court finds that substantial evidence
supports the ALJ’s determinations, and will affirm the ALJ’s
decision denying Plaintiff disability benefits and supplemental
security benefits.
II. BACKGROUND
A. Procedural History
Plaintiff William Kimble filed an application for
disability insurance benefits on April 23, 2013. (R. at 140.)
Plaintiff also filed an application for supplemental security
2

benefits on July 30, 2013. (R. at 141.) In both applications,
Plaintiff alleged an onset of disability as of December 27,
2011. (R at 141-42.) On November 12, 2013, the Social Security
Administration (“SSA”) denied these claims, and upon
reconsideration on April 15, 2014. (R. at 20.) A hearing was
held on December 1, 2015 before ALJ Karen Shelton, at which
Plaintiff appeared with counsel and testified. (Id.) On January
7, 2016 the ALJ issued a written decision finding that Plaintiff
was not disabled (R. at 32.) On May 20, 2016, the Appeals
Council denied Plaintiff’s request for a review, and Plaintiff
timely filed the instant action. (R. at 1-7.)
B. Medical History
The following are facts relevant to the present motion.
Plaintiff was 44 years old as of the date of the ALJ Decision.
Plaintiff graduated from high school and obtained vocational
training as a cook at the Burlington County Special Services.
Plaintiff had work experience as a cook, a gas attendant, a
housekeeper, and a factory operations worker. (R. at 58-59.)
1. Physical Impairments
Plaintiff filed a claim for disability insurance benefits
and supplemental security benefits, alleging that he suffered
from disability due to status-post left shoulder rotator cuff
surgery, status-post right shoulder rotator cuff surgery, an

3

intellectual/learning disability, hearing loss and degenerative
disc disease of the lumbar spine (R. at 43.)
Plaintiff’s medical records commence with a December 2011
report that indicates that Plaintiff’s family physician, Dr.
Kennedy Ganti, ordered that an ADX 2105 - Spine Lumbosacral
procedure be performed on Plaintiff. (R. at 351.) The resulting
report indicated a finding of degenerative disc disease at L5-S1
of the lumbar spine. (Id.) The report also indicated that
Plaintiff’s intervertebral disc space levels were maintained in
height; that his facet joints were intact; and, that there was
no destructive osseous pathology.

(R. at 352.)

In November 2012, Plaintiff underwent a physical examination,
performed by Dr. Ronald Bagner (R. at 361.) Dr. Bagner noted
that Plaintiff claimed that he sustained injury to his lower
back in December of 2011 while working as a machine operator.
Plaintiff complained of difficulty bending, which caused the
pain to radiate up to the mid-back. (Id.) Plaintiff stated that
he had an MRI in January of 2012, but had not seen a physician
or received medicine for back pain since then. (Id.) Plaintiff
also informed Dr. Bagner that he fractured both clavicles years
prior. (Id.)
Throughout the Physical Examination, Dr. Bagner observed
that Plaintiff ambulated without difficulty, got on and off the
examining table without difficulty, and dressed and undressed
4

without assistance. (Id.) Moreover, Plaintiff did not display
any discomfort while in the seated position throughout the
examination. (Id.) Dr. Bagner noted that Plaintiff’s upper
extremities, including his shoulders, elbows, forearms, wrists,
and fingers showed a normal range of movement. (Id.) With regard
to Plaintiff’s back, Dr. Bagner observed that Plaintiff
possessed 0-90 degrees of flexion, yet Plaintiff experienced
pain on movement of the lower back. (Id.) Dr. Bagner’s overall
impression was that Plaintiff suffered from a Lumbosacral
strain. (R. at 365.)
In November 2012, Plaintiff underwent a LS Spine Film,
conducted by Dr. Samuel Wilchfort. (R. at 366). Dr. Wilchfort
recorded that the LS Spine Film indicated normal “alignment,
vertebral heights,” but also showed moderate narrowing of L5-S1
of the lumbar spine. (Id.) No other abnormalities were noted.
(Id.)
In April 2013, Plaintiff was examined by Dr. Asha
Vijayakumar for a complaint of “dislocating arm and torn
ligaments.” (R. at 367.) Plaintiff informed Dr. Vijayakumar that
he had experienced recurrent shoulder dislocation since being
the victim of a mugging at age 18. (Id.) Plaintiff informed the
doctor that the shoulder pain interfered with his sleep and his
activity. (Id.) Dr. Vijayakumar noted that Plaintiff experienced
shoulder joint pain that gradually worsened as Plaintiff
5

attempted to raise his shoulders. (Id.) Dr. Vijayakumar ordered
that Plaintiff follow up in one month, to consult with an
Orthopedic Surgeon, to wear a sling as needed and to take Motrin
for pain. (R. at 368.)
Plaintiff’s follow-up appointment took place on May 24,
2013. (R. at 369.) Dr. Wayne Shaw performed the examination on
this date. (Id.) Dr. Shaw noted that Plaintiff was not able to
visit an orthopedist because his appointment was rescheduled.
(Id.) Plaintiff also reported that he had a broken arm at that
time, which was in a sling. (Id.) Dr. Shaw ordered that
Plaintiff follow up in two months, to consult an Orthopedic
Surgeon, and to take Tramadol for pain. (Id.)
In August 2013, Plaintiff’s left shoulder was examined by
Dr. Sean McMillan of Lourdes Medical Associates Professional
Orthopaedics. (R. at 391.) Examination of the left shoulder
revealed that Plaintiff had range of motion from 0 to 140
degrees overhead, which is about 10 degrees shy of the
contralateral side. (R. at 391.) Dr. McMillan noted that
Plaintiff experienced pain when making such motion. Plaintiff’s
internal rotation was to his chest wall, and external rotation
was about 25 degrees. (Id.) Abduction was from 0 to 80 degrees.
Plaintiff had negative sulcus sign, and experienced pain with
Jobe relocation testing. (Id.) Dr. McMillan noted that Plaintiff
had a 4/5 rotator cuff strength. (Id.) Lastly, Dr. McMillan
6

noted that Plaintiff had negative impingement and positive
bicipital groove pain. (Id.) Dr. McMillan’s assessment was not
certain that Plaintiff was experiencing “true dislocation.”
(Id.) An MRI of Plaintiff’s left shoulder was prescribed in
order to make this determination. (Id.)
In September 2013, following the MRI, Dr. Mc Millan
informed Plaintiff that he had a left shoulder ALPSA lesion, as
well as a SLAP tear and sub-acromial impingement. (Id.) After
discussing the pros and cons of surgery with Dr. McMillan,
Plaintiff was scheduled for surgery to repair his left shoulder.
(R. at 390.) On September 23, 2013, Dr. Ronald Bagner performed
his second examination of Plaintiff. (R. at 372.) Dr. Bagner,
again, noted Plaintiff’s claim of dislocation of the left
shoulder and the pain caused by movement of the left shoulder.
(Id.) However, Dr. Bagner noted that Plaintiff was scheduled for
surgery to repair the left shoulder in four days from the date
of the examination. (Id.) Plaintiff’s left shoulder showed 0-70
degrees forward elevation, 0-70 degrees of abduction, 0-50
degrees internal rotation and normal external rotation. (Id.)
Plaintiff’s right shoulder showed a normal range of motion.
(Id.) Notably, Dr. Bagner, again, noted that Plaintiff was able
to ambulate, get on and off the examining table, and get dressed
and undressed without any assistance or difficulty. (R. at 373.)

7

Plaintiff was also examined by Dr. Stephen Toder on
September 23, 2013. (R. at 376.) Dr. Toder opined that
Plaintiff’s left shoulder was intact, that there existed no
fracture or dislocation, and that there was minimal degenerative
change. (Id.)
In September 2013, Dr. McMillan performed a surgical
arthroscopy of Plaintiff’s left shoulder, which consisted of a
SLAP repair and a biceps tenodesis. Thereafter, in October 2013,
Plaintiff returned to Lourdes Medical Associates Professional
Orthopaedics for a post-surgery follow-up appointment. Dr.
Danielle Thorn examined Plaintiff’s left shoulder and noted
bruising and swelling that was consistent with the surgery. (R.
at 387.) Dr. Thorn also noted that Plaintiff was to begin
physical therapy. (Id.)
In November 2013, Plaintiff told Dr. McMillan that he
believed that he re-tore his biceps tendon while changing a flat
tire for his wife. (R. at 385.) Dr. McMillan noted that
Plaintiff had a “biceps tendon, which [was] sunken down somewhat
distally.” (Id.) Dr. McMillan believed that this may have
indicated a rupture versus incompetence due to healing. (Id.)
Although Dr. McMillan was not certain as to whether Plaintiff’s
bicep was torn, he informed that it was an acceptable form of
treatment modality and insisted that Plaintiff continue

8

treatment. (Id.) Plaintiff was given a corticosteroid injection
for pain. (R. 386.)
In December 2013, Plaintiff was again examined by Dr. Thorn
for status post left shoulder athroscopic SLAP repair, bicep
tendesis and subacromial decompression. (R. at 383.) Plaintiff
continued to complain of pain when performing overhead activity,
but his range of motion had improved. (Id.) Dr. Thorn suggested
that Plaintiff continue physical therapy. (Id.)
On December 18, 2013, an Appeal Disability Report was filed
on Plaintiff’s behalf by his sister, Cynthia Vassey. (R. at 306311.) The report indicated that the Plaintiff could barely lift
his left arm, as he reportedly “slipped on black ice and injured
[his] arm even worse.” (Id. at 306.) Additionally, the report
indicated that Plaintiff’s right arm was worsening as well.
(Id.) The approximate date of the Plaintiff’s changed conditions
was listed for September 2013. (Id.)
From October 2013 to January 2014, Plaintiff attended
physical therapy for his left shoulder for three days per week
for a total of 25 sessions.

(R. at 393-406.)

In January 2014, Plaintiff informed Dr. McMillan that, on
January 2, 2014, he had a slip and fall and landed on his left
shoulder. (R. at 429.) The apparent discrepancy in dates of his
falling accident are unexplained, namely, September 2013,
according to his sister’s ADR (R. at 306.), supra, and his
9

statement to Dr. McMillan that he fell on January 2, 2014 (R, at
429.).

Additionally, Plaintiff informed Dr. McMillan that he

believed that his right shoulder had “popped on him,” stating
that his right shoulder had become extremely painful following
the January 2, 2014 slip and fall. (Id.) However, an MRI
performed on the day of the slip and fall revealed no evidence
of acute fracture or dislocation. (R. at 492.)

During the

physical examination of Plaintiff, Dr. McMillan noted that
Plaintiff possessed a range of motion of the right shoulder of 0
to 130 degrees, with the left shoulder’s range of motion at 0 to
110 degrees. (Id.) Dr. McMillan also noted that Plaintiff had
tenderness to palpation at both shoulders and some periscapular
atrophy on the right shoulder. (Id.) Ultimately, Dr. McMillan
gave Plaintiff corticosteroid injections in both shoulders for
pain and decided that Plaintiff was to suspend physical therapy
for two weeks. (R. at 430.)
On January 29, 2014, Plaintiff’s wife filed an additional
Adult Function Report on his behalf. (R. at 312-19.) The report
indicated that, due to the worsening of his shoulders, Plaintiff
required assistance with dressing and grooming himself. (Id.)
The report also indicated that Plaintiff could no longer perform
yard or housework. (Id.) Plaintiff’s wife also reported,
however, that he pursued hobbies and interest including hunting
and fishing. (R. at 315.)
10

In February 2014, Plaintiff informed Dr. McMillan that he
believed that his shoulder “popped out” the week prior. (R. at
427.) During the examination, Dr. McMillan noted that Plaintiff
possessed a range of motion of the left shoulder of 0 to 140
degrees and about 110 degrees with abduction. (Id.) Plaintiff’s
right shoulder demonstrated a range of motion from 0 to 140
degrees with discomfort. (Id.) Dr. McMillan also noted that
Plaintiff’s right shoulder had some dimpling about the
posterior, which Dr. McMillan believed to indicate posterior
rotator cuff atrophy. (Id.) Plaintiff was provided a card for
Rainbow Rehab Physical Therapy in order for him to continue
working on his range of motion. (R. at 428.)
In March 2014, Plaintiff complained that pain in both of
his shoulders rendered him unable to return to work and unable
to complete simple house tasks, such as taking out the trash.
(R. at 475.) Nevertheless, Plaintiff reported that his right
shoulder was beginning to feel better. (Id.)

The physical

examination of Plaintiff indicated a range of motion of the left
shoulder from 0 to 150 degrees overhead and abduction at 0 to
120 degrees. (Id.) The right shoulder remained at 0 to 140
degrees with discomfort and abduction at 0 to 120 degrees. (Id.)
Again, Dr. McMillan noted that he did not believe that there was
any true evidence of apprehension or instability within the
right shoulder. (Id.) With regard to the left shoulder, Dr.
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McMillan noted that the repairs that were done had healed. (Id.)
To address Plaintiff’s complaint of weakness of his left
shoulder, Dr. McMillan set forth a plan to begin a “work
hardening” program. (Id.) Were the weakness to persist, Dr.
McMillan considered ordering an EMG versus a cervical MRI to
determine whether there was a cervical component to the
weakness. (Id.)
In October 2014, Plaintiff, again, complained to Dr.
McMillan of “unrelenting” pain in both shoulders and expressed
his belief that his left shoulder was popping out. (R. at 473.)
After evaluating an X-Ray of both shoulders, Dr. McMillan
determined that there was no evidence of fracture or dislocation
in either shoulder. (R. at 474.) However, Dr. McMillan ordered a
repeat MRI to determine the exact etiology of Plaintiff’s
instability. (Id.) Plaintiff was also directed to continue
physical therapy and the use of an arm sling. (Id.)
Progress notes from Dr. McMillan indicate that Plaintiff
reported complaints of pain in both shoulders during multiple
visits throughout 2015. (R. at 458-62.)
In June 2015, Plaintiff informed Dr. McMillan of three
subluxation or dislocation events, which rendered Plaintiff
unable to fulfill the obligation of lifting 50 pounds or more at
his Post Office job. (R. at 471-72.) Dr. McMillan ordered

12

another MRI and suggested that Plaintiff refrain from heavy
lifting. (Id.)
In July 2015, an MRI revealed mild rotator cuff tendinosis
and mild subacromial subdeltoid bursitis of Plaintiff’s right
shoulder. Thereafter, in September 2015, Plaintiff underwent a
right shoulder arthroscopic biceps tenodesis, distal clavicle
excision, subacromial decompression and extensive rotator cuff
and labral debridement. (R. at 478.)

Following the surgical

procedure, Mr. McMillan prescribed a right arm sling, pain
medication and physical therapy. (R. at 468.) Plaintiff attended
physical therapy on September 18, 2015, October 9, 2015 and
November 16, 2015. (R. at 498-502.)
In October 2015, Dr. McMillan discontinued the use of an
arm sling, prescribed anti-inflammatory cream and ordered that
Plaintiff continue physical therapy. (R. at 465.) Plaintiff’s
final visit to Dr. McMillan to precede the disability hearing
took place on November 16, 2015. (R. at 463.) During this visit,
Plaintiff noted that he was “doing okay,” but felt as if his
shoulder “popped out” during physical therapy that day. (Id.)
Dr. McMillan noted that it did not look as if his shoulder was
dislocated at all. (Id.) Dr. McMillan put Plaintiff’s right arm
back into a sling, prescribed anti-inflammatory cream and
ordered that Plaintiff continue physical therapy. (R. at 464.)

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2. Mental Impairment
In May 2012, Dr. Kenneth Goldberg performed a psychological
evaluation of Plaintiff at the request of the Division of
Vocational Rehabilitation (hereinafter, “DVR”). (R. at 355.) Dr.
Goldberg’s subsequent report indicated that Plaintiff claimed to
have a learning disability and that he read poorly. (Id.)
Plaintiff informed Dr. Goldberg that he was terminated from his
most recent job because of DYFS requirements that caused
Plaintiff to take too much time off from work. (R. at 356) Dr.
Goldberg’s testing included Intelligence Testing, Achievement
Tests and Personality Test. (Id.) According to the report,
Plaintiff tested in the mildly mentally deficient range of
intellectual functioning with a Full Scale IQ score of 66 and a
General Ability score of 61. (Id.) However, Plaintiff’s attained
a score of 94 in the area of Processing Speed, an area of
strength that Dr. Goldberg considered to be a good sign for work
potential at Plaintiff’s level of intellectual functioning.
(Id.) In the Achievement Tests, Plaintiff tested at a 1.1
reading grade level and at a 2.5 math grade level. With regard
to the Personality Tests, Dr. McMillan noted that Plaintiff
seemed frustrated, but did not display any other signs or
symptoms of psychopathology. (Id.) Moreover, Dr. Goldberg noted
that Plaintiff failed to comprehend instructions for the DAP.
(R. at 357.)
14

Notably, Dr. Goldberg reported that Plaintiff informed him
that he was on the verge of getting a job, as he was awaiting a
background check. (R. at 358.)

Yet, Dr. Goldberg later noted

that “between [Plaintiff’s] IQ and reading scores, he may meet
the formal qualifications used by the Social Security
Administration in determining disability.” (Id.) Dr. Goldberg’s
overall conclusion consisted of the following: that Plaintiff
tested in the mildly mentally deficient range, yet his strong
processing speed was a good sign for work; that Plaintiff was
essentially illiterate; and, that Plaintiff was capable of
handling work involving general labor. (R. at 358-59.)
On Plaintiff’s July 31, 2012 Adult Disability Report,
Plaintiff indicated the medical condition that limited his
ability to work was his “learning disability.” (R. at 264-69.)
Contrary to Plaintiff’s prior assertions to Dr. Goldberg,
Plaintiff reported that he stopped working because he “was
terminated because [he] cannot read and write.” (Id.)
In October 2013, Plaintiff underwent a mental status
examination with Dr. William Dennis Coffey. (R. at 377-81.)
Although Plaintiff required his wife’s assistance in completing
forms, Plaintiff had no difficulty following the topic of
conversation or participating in the examination. (R. at 379.)
Plaintiff displayed an ability to identify the president and
former presidents, perform simple arithmetic and complete
15

various sequence testing. (Id.) Dr. Coffey opined that Plaintiff
did not appear to meet the criteria for a major mental disorder
that would interfere with his capacity to work. (R. at 380.) In
accordance with this opinion, Dr. Coffey made the following
findings: that Plaintiff possessed an adequate understanding and
memory, but limited concentration; that Plaintiff was able to
respond to changes in a normal routine and work independently;
that Plaintiff was capable of understanding and remembering
short, simple instructions and making simple work related
decisions; and that Plaintiff had the adequate ability to adapt
to changes in the work environment, handle work stress and
maintain social interaction. (Id.)
In November 2013, as part of the Initial Determination, Dr.
Seymour Bortner examined Plaintiff and opined that Plaintiff’s
mental disability rendered him mildly limited in activities of
daily living and social functioning and moderately limited in
concentration, persistence and pace. (R. at 107.) Yet, Plaintiff
displayed an ability to “understand/execute simple instructions,
make work related decisions, interact with others and adapt to
workplace change. (Id.) In April 2014, as part of the
Reconsideration Determination, Dr. Michael D’Adamo provided an
opinion that was largely consistent with that of Dr. Bortner’s.
(R. at 119.) The only difference related to Dr. D’Adamo’s
opinion that “Plaintiff’s cognitive limitations restrict his
16

ability to adapt to rapid changes and to function independently
on a job.” However, Dr. D’Adamo concluded that “in real life
[Plaintiff] functions at a higher level and has worked several
jobs, maintaining them for stretches of time.”
C. ALJ Decision
In a comprehensive written decision dated January 7, 2016
(R. at 20-32), ALJ Shelton found that Plaintiff was not disabled
within the meaning of the Social Security Act at any time
through the date of the decision because, “consistent with his
age, education, work experience, and RFC, he was capable of
making a successful adjustment to other work that exists in
significant numbers in the national economy.” (R. at 32.) In
accordance with her determination, the ALJ made the following
findings:
1. Plaintiff meets the insured status requirements of the
Social Security Act through December 31, 2016. (R. at
22.)
2. Plaintiff has not engaged in substantial gainful
activity since December 27, 2011, the alleged onset date
(20 CFR 404.1571 et seq. and 416.971 et seq.). (Id.)
3. Plaintiff had the following severe impairments: statuspost left shoulder rotator cuff surgery; status-post
right shoulder rotator cuff surgery; and intellectual

17

disability (20 CFR 404.1520(c) and 416.920(c).). (R. at
22-23)
4. Plaintiff 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 404m
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,
416.920(d), 416.925 and 416.926). (R. at 23-25.)
5. Plaintiff has the RFC to lift/carry up to 10 pounds;
stand and walk for 6 of 8 hours and sit for 6 of 8
hours; occasionally push/pull with both upper
extremities; occasionally reach in the front or on the
side at desk level, but never reach overhead
bilaterally; never crawl or climb ladders, ropes or
scaffolds; and must avoid unprotected heights or
hazards. Additionally, Plaintiff is limited to simple
instructions and work decisions; can only concentrate
for 2 hours before needing a break; and requires a
routine environment with infrequent changes. (R. at 2530.)
6. Plaintiff is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965). (R. at 30-31.)
7. Plaintiff was born on October 12, 1971 and was 40 years
old, which is defined as a younger individual age 18-44,

18

on the alleged disability onset date (20 CFR 404.1564
and 416.963). (R. at 31)
8. Plaintiff is illiterate, but is able to communicate in
English (20 CFR 404.1564 and 416.964). (Id.)
9. Transferability of job skills is not an issue in this
case because the Plaintiff’s past relevant work is
unskilled (20 CFR 404.1568 and 416.968). (Id.)
10. Considering the Plaintiff’s age, education, work
experience and RFC, there are jobs that exist in
significant numbers in the national economy that the
Plaintiff can perform (20 CFR 404.1569, 404.1569(a) and
416.969(a)). (R. at 31-32.)
11. Plaintiff has not been under a disability, as defined
in the Social Security Act, from December 27, 2011,
through the date of the ALJ decision (20 CFR 404.1520(g)
and 416.920(g)).
Despite recognizing Plaintiff’s physical and mental
impairments as severe (Finding 3), at step three of the
sequential evaluation, the ALJ concluded that Plaintiff’s
impairments, did not meet or equal the severity of any
impairment found in the Listing of Impairments set forth in 20
C.F.R. Part 404, and specifically, listings 1.02 and 12.05. (R.
at 32.) In support of this finding, the ALJ noted that, “no
medical expert [had] concluded that the [Plaintiff’s]
19

impairments meet or equal to a listed impairment.” (Id.)
Regarding the injuries to Plaintiff’s shoulders, the ALJ
determined that the injuries, “[did] not interfere with
[Plaintiff’s] ability to perform gross and fine motor movements
effectively.” (Id.) The ALJ further noted that Plaintiff was
able to “ambulate effectively, as that term is defined in
Section 1.00B2b.” (Id.)
The ALJ then considered Plaintiff’s mental impairment under
the requirements of listing 12.05, ultimately, determining that
there was no evidence to support a finding of sub-average
general intellectual functioning with deficits in adaptive
functioning manifested during Plaintiff’s developmental period.
(R. at 24.) In making this determination, the ALJ evaluated
Plaintiff’s testimony, Plaintiff’s Initial Determination
reports, psychological evaluations performed by Dr. Goldberg and
Dr. Coffey, Plaintiff’s Disability Report and Plaintiff’s
Function Report. (Id.) The ALJ noted that Plaintiff’s “gainful
employment history,” which indicated that Plaintiff possessed
the mental capability to work prior to his alleged onset date.
(Id.) Also, the ALJ highlighted Dr. D’Adamo and Dr. Goldberg’s
observations that suggested that, despite Plaintiff’s relatively
low aptitude and achievement testing, Plaintiff possessed a
strong processing speed that allowed Plaintiff to function at a
high level in real life. (Id.) Accordingly, the ALJ adopted the
20

observation of Dr. Goldberg, which suggested that Plaintiff’s
strong processing speed was a “very positive sign that someone
with Plaintiff’s limitations could hold a job.” (Id.)
With respect to Plaintiff’s dependency upon others and
ability to follow directions, the ALJ noted that Plaintiff
indicated that his ability to attend to his personal care
without difficulty and follow spoken directions very well. (Id.)
Although the ALJ acknowledged Plaintiff’s relatively low full
scale IQ of 66, an evaluation of Plaintiff’s Function Report and
Psychological Evaluation revealed that Plaintiff’s mental
disability presented mere mild/moderate difficulties, as the
Plaintiff had the ability to assist with light household chores,
make simple meals, maintain friendships and engage in various
social activities with his friends and family. (R. at 25.)
In making a determination as to Plaintiff’s RFC (Finding
5), the ALJ provided a thorough analysis of, inter alia,
Plaintiff’s testimony, Plaintiff’s extensive medical records,
Plaintiff’s Initial Determination and Plaintiff’s
Reconsideration Determination. (R. at 25-30.) Although the ALJ
found that Plaintiff’s physical and mental impairments could
reasonably be expected to cause the alleged symptoms, he found
Plaintiff’s statements concerning the intensity, persistence,
and limiting effects of those symptoms to lack sufficient
credibility. (R. at 26, 30.) The ALJ noted a number of perceived
21

discrepancies between Plaintiff’s assertions, testimony and the
medical record, including: Plaintiff’s conflicting reasons as to
why he was terminated from his job, Plaintiff’s inconsistent
statements regarding whether he possessed a driver’s license and
Plaintiff’s inconsistent statements regarding his physical and
mental impairments. (R. 26-30.) For similar reasons, the ALJ
found the Third-Party Function Report of Plaintiff’s wife to be
unpersuasive, as it merely corroborated Plaintiff’s claims,
which the ALJ determined to be outweighed by the medical
evidence. (R. at 30.)
Ultimately, after adopting the Vocational Expert’s
testimony, the ALJ determined that, “consistent with his age,
education, work experience, and RFC, he was capable of making a
successful adjustment to other work that exists in significant
numbers in the national economy.” (R. at 32.)
III. STANDARD OF REVIEW
This Court reviews the Commissioner's decision pursuant to
42 U.S.C. § 405(g). The Court’s review is deferential to the
Commissioner’s decision, and the Court must uphold the
Commissioner’s factual findings where they are supported by
“substantial evidence.” 42 U.S.C. § 405(g); Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Cunningham v. Comm’r
of Soc. Sec., 507 F. App’x 111, 114 (3d Cir. 2012). Substantial
evidence is defined as “more than a mere scintilla,” meaning
22

“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 400 (1971); Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 292 (3d Cir. 2012) (using the same language as Richardson).
Therefore, if the ALJ’s findings of fact are supported by
substantial evidence, the reviewing court is bound by those
findings, whether or not it would have made the same
determination. Fargnoli, 247 F.3d at 38. The Court may not weigh
the evidence or substitute its own conclusions for those of the
ALJ. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011). Remand is not required where it would not affect the
outcome of the case. Rutherford v. Barnhart, 399 F.3d 546, 553
(3d Cir. 2005).
IV. DISCUSSION
A. Legal standard for determination of disability
In order to establish a disability for the purpose of
disability insurance benefits, a claimant must demonstrate a
“medically determinable basis for an impairment that prevents
him from engaging in any ‘substantial gainful activity’ for a
statutory twelve-month period.” Plummer v. Apfel, 186 F.3d 422,
426 (3d Cir. 1999); 42 U.S.C. § 423(d)(1). A claimant lacks the
ability to engage in any substantial 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
23

cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.” Plummer, 186 F.3d at 427–428;
42 U.S.C. § 423(d)(2)(A).
The Commissioner reviews claims of disability in accordance
with the sequential five-step process set forth in 20 C.F.R. §
404.1520. In step one, the Commissioner determines whether the
claimant currently engages in “substantial gainful activity.” 20
C.F.R. § 1520(b). Present engagement in substantial activity
precludes an award of disability benefits. See Bowen v. Yuckert,
482 U.S. 137, 140 (1987).

In step two, the claimant must

demonstrate that the claimant suffers from a “severe
impairment.”

20 C.F.R. § 1520(c).

Impairments lacking

sufficient severity render the claimant ineligible for
disability benefits.

See Plummer, 186 F.3d at 428.

Step three

requires the Commissioner to compare medical evidence of the
claimant’s impairment to the list of impairments presumptively
severe enough to preclude any gainful activity.

20 C.F.R. §

1520(d). If a claimant does not suffer from a listed impairment
or its equivalent, the analysis proceeds to steps four and five.
Plummer, 186 F.3d at 428. Step four requires the ALJ to consider
whether the claimant retains the ability to perform past
relevant work. 20 C.F.R. § 1520(e). If the claimant’s
impairments render the claimant unable to return to the
24

claimant’s prior occupation, the ALJ will consider whether the
claimant possesses the capability to perform other work existing
in significant numbers in the national economy, given the
claimant’s residual functional capacity (RFC), age, education,
and work experience. 20 C.F.R. § 1520(g); 20 C.F.R. 404.1560(c).
B. Substantial evidence supports the ALJ’s determination
that Plaintiff’s mental disability did not meet Listing
12.05C
At step three, the ALJ concluded that Plaintiff's
intellectual impairment failed to meet or equal section 12.05 of
the Listing of Impairments because “there is nothing in the
record to support deficits in adaptive functioning initially
manifested during the developmental period, namely prior to age
22.” (R. at 24.)
Plaintiff contends that the ALJ misconstrued the
requirements of Listing 12.05C as requiring Plaintiff to have
been unable to work prior to the alleged onset date, requiring
an inability to be trained to perform simple tasks or count
basic change and requiring that the additional severe impairment
to have had an onset prior to age 22.

(Pl.'s Br. at 20.)

Further, Plaintiff argues that the ALJ “erroneously equated
‘adaptive functioning’ with the ability to work.” (Id. at 21.)
Defendant counters, however, that Plaintiff merely
“misunderstands the ALJ’s findings” that led to its
determination that Plaintiff’s intellectual impairment failed to
25

meet or equal section 12.05 of the Listing of Impairments.
(Def.'s Opp'n at 5.)
Listing 12.05 provides, in relevant part, that
Intellectual disability refers to significantly
subaverage general intellectual functioning with
deficits in adaptive functioning initially
manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of
the impairment before age 22.
(Id.) In order to meet or equal the Listing, however, the
plaintiff must meet both the introductory criteria, requiring
"significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested [before
age 22]," and, as relevant here, the criteria of subpart C. See
Gist v. Barnhart, 67 F. App'x. 78, 81 (3d Cir. 2003) ("[a]s is
true in regard to any 12.05 listing, before demonstrating the
specific requirements of Listing 12.05(C), a claimant must show
proof of a 'deficit in adaptive functioning' with an initial
onset prior to age 22."); Cortes v. Comm'r of Soc. Sec., 255 F.
App'x. 646, 651 (3d Cir. 2007).
Subpart 12.05(C), in turn, requires the plaintiff to
demonstrate a "valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function."
20 C.F.R. pt. 404, subpt. P, app.1 (emphases added). In other
words, Plaintiff must establish "another impairment, in addition

26

to the [intellectual disability], that imposes an additional and
significant work-related limitation of function." Williams v.
Sullivan, 970 F.2d 1178, 1184 (3d Cir. 1992).
Thus, in order for Plaintiff to meet listing 12.05C,
Plaintiff must demonstrate (1) an intellectual disability, i.e.,
significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the
developmental period; (2) a valid verbal, performance, or full
scale I.Q. in the range of 60 through 70; and (3) a physical or
other mental impairment imposing an additional and significant
work-related limitation of function. See 20 C.F.R. pt. 404,
subpt. P, app.1.
The Third Circuit has held that the claimant bears the
burden of establishing the existence of an intellectual
disability during the developmental period. Cortes v. Comm'r of
Soc. Sec., 255 F. App'x 646, 652 (3d Cir. 2007) (citing Williams
v. Sullivan, 970 F.2d 1178, 1185 (3d Cir. 1992)); Markle v.
Barnhart, 324 F.3d 182, 188-89 (3d Cir. 2003). To satisfy this
burden, "it is unnecessary to produce intellectual testing (or
other contemporary evidence) prior to age 22. The claimant need
only produce evidence that demonstrates or supports onset of the
impairment before age 22." Cortes, 255 F. App'x at 652-53.
In this instance, the ALJ began her analysis under Listing
12.05 with the first prong of the above listed three-prong test,
27

determining that “there is nothing in the record to support
deficits in adaptive functioning initially manifested during the
developmental period, namely prior to age 22.” (R. at 24.) The
ALJ noted that Plaintiff failed to produce any evidence that he
was in special education classes throughout his high school
career. The ALJ also noted the psychological examinations
performed by Dr. D’Adamo and Dr. Goldberg, which highlighted
Plaintiff’s ability to maintain gainful employment for much of
his adult life. (Id.) Moreover, the ALJ noted that Plaintiff
admitted that he could read some things, count change and that
he received hands-on training to prepare food. (Id.)
Plaintiff challenges the ALJ’s determination and argues
that the ALJ “erroneously equated ‘adaptive functioning’ with
the ability to work.” (R. at 21.) Further, Plaintiff avers that,
contrary to the ALJ’s finding, Plaintiff did produce evidence to
support his claim that he participated in special education
classes. Accordingly, Plaintiff asserts that he offered sworn
testimony and “provided the Social Security Administration with
the precise contact information for the child study team and
Burlington County Special Services, which would have the
appropriate detail on his attendance in Special Education.”
(Pl.'s Reply Br. at 3.) The Court rejects these arguments for
the reasons discussed below.

28

The Court finds that the ALJ did not err in determining
that “there is nothing in the record to support deficits in
adaptive functioning initially manifested during the
developmental period, namely prior to age 22.” (R. at 24.) First
and foremost, Plaintiff’s apparent suggestion that the ALJ
failed in her duty to develop the record by not contacting “the
child study team and the Burlington County Special Services” is
without merit. (Pl.'s Reply Br. at 20.) Rather, the Court finds
that Plaintiff failed to produce all relevant evidence to
support its argument that Plaintiff participated in special
education classes. Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir.
2001)(providing that an ALJ's duty to develop the record
coexists with a claimant's duty to present all relevant evidence
to the ALJ, and establish good cause for omitted evidence). This
evidence of special education classification, if it exists, was
readily available to Plaintiff and his attorney, yet there is no
indication that Plaintiff attempted to obtain and submit it to
the Social Security Administration for consideration. The Third
Circuit has recognized in a similar case in which the claimant
claimed to have been assigned to special education classes
through their time in school and produced no documentary
evidence of participating in a special education curriculum that
substantial evidence supported the ALJ’s determination that
claimant failed to demonstrate she suffered from the requisite
29

deficits in adaptive functioning prior to age 22. See Gist v.
Barnhart, 67 F. App’x 78, 81-82 (3rd Cir. 2003).

The only other

testimony that was offered on this issue was Plaintiff’s
testimony and his wife’s corroborating statements within the
Third Party Function Report, both of which the ALJ found to be
inconsistent with the evidence as a whole. (R. at 30.)
The Court further finds that the ALJ did not err by
considering the Plaintiff’s gainful employment history, as the
regulations indicate, in the context of determining one’s degree
of intellectual disability, “that an ability to hold a job is
particularly useful in determining the individual's ability or
inability to function in a work setting.” Williams v. Sullivan,
970 F.2d 1178, 1185 (3d Cir. 1992) (quoting 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.00(D).) Additionally, the Court finds
that the ALJ did not solely rely on Plaintiff’s gainful
employment history in making her determination. As
aforementioned, the ALJ also considered the fact that Plaintiff
graduated from high school and that he possessed a strong
processing speed, which allowed him to “function at a higher
level in real life.” (R. at 24.) The ALJ further noted
Plaintiff’s ability to assist with light household chores, make
simple meals, maintain friendships and engage in various social
activities with his friends and family. (R. at 25.)

30

The Court acknowledges that the ALJ’s findings with respect
to the last two prongs of the three-prong test are somewhat
unclear. The ALJ stated that,
[i]n terms of the requirements in paragraph C,
they are not met because the claimant does not
have a valid verbal, performance, or full scale
IQ of 60 through 70 and a physical or other
mental impairment imposing an additional and
significant work-related limitation of function.
(R. at 24.) However, in the preceding sentence, the ALJ had
explicitly noted Plaintiff’s full scale IQ of 66. (Id.)
Moreover, the ALJ specifically found that “[Plaintiff’s]
bilateral rotator cuff injuries are severe impairments.” (Id.)
Thus, the Court finds this discrepancy to be immaterial to its
overall analysis.
For the aforementioned reasons, the Court finds that
substantial evidence supports the ALJ’s determination that
“there is nothing in the record to support deficits in adaptive
functioning initially manifested during the developmental
period,” as required by Listing 12.05C. (R. at 24.)
C. Substantial evidence supports the ALJ’s credibility
findings
The ALJ found that Plaintiff had medically determinable
impairments that could reasonably be expected to produce some
symptoms. (R. at 30.) However, a review of the record, the ALJ
found that Plaintiff’s statements regarding his level of pain
and inability to work were not credible, as they were
31

inconsistent with the medical evidence and with Plaintiff’s own
testimony. (R. at 30.)
"The extent to which an individual's statements about
symptoms can be relied upon as probative evidence in determining
whether the individual is disabled depends on the credibility of
those statements." (Social Security Ruling 96-7.) When making
credibility findings, the ALJ must indicate which evidence they
reject and which they rely upon as the basis for their findings.
See Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d
429, 433 (3d Cir. 1999). 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 credible. See Burns v. Barnhart, 312
F.3d 113, 129-30 (3d Cir. 2002). Moreover, allegations of pain
and other subjective symptoms must be supported by objective
medical evidence. See 20 C.F.R. § 404.1529; see also Hartranft
v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). Even "[l]imitations
that are medically supported but are also contradicted by other
evidence in the record may or may not be found credible - the
ALJ can choose to credit portions of the existing evidence." See
Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 146 (3d Cir.
2007)(Quoting Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.
2005)).

32

Plaintiff challenges the ALJ’s credibility determination,
arguing that the ALJ incorrectly considered Plaintiff’s multiple
statements about his shoulder “popping out” and his doctor’s
doubt that Plaintiff was experiencing “true dislocations” to be
a sign of untruthfulness. (Pl. Br. at 25; R. at 27-28.)
Plaintiff notes that Dr. McMillan stated that while he doubted
that Plaintiff was experiencing “true dislocations,” Dr.
McMillan did state that “[Plaintiff] may be subluxing.”
Plaintiff asserts that he was essentially discredited because of
his lack of medical expertise while describing the pain in his
shoulders. (Pl. Br. at 25.) Additionally, Plaintiff argues that
the ALJ incorrectly relied on contradictory statements regarding
Plaintiff’s ability to maintain a driver’s license, averring
that Dr. Coffey’s assertion that Plaintiff produced a valid
driver’s license is unsubstantiated. (R. at 26, 48, 379; Pl. Br.
at 26.)
The Court does not find Plaintiff’s arguments to be
persuasive, as the ALJ highlighted various clear discrepancies
that are supported by the record, and which undermine
Plaintiff’s credibility. Further, the Court finds that, in
making credibility findings, the ALJ properly indicated which
evidence she rejected and which she relied upon as the basis for
her findings. See Schaudeck, supra, at 433. As previously
mentioned, a careful review of the ALJ’s detailed analysis
33

indicates that the ALJ provided due consideration to Plaintiff’s
assertions, testimony and medical record in order to determine
Plaintiff’s limitations and ability to work. (R. at 25-30.) This
analysis included an extensive break down of every report that
each treating physician provided after examining Plaintiff.
(Id.) The ALJ noted that Plaintiff made statements regarding his
pain and inability to work that were inconsistent with other
statements that he made regarding the same. (R. at 26.) The ALJ
also noted that some of Plaintiff’s subjective claims were
simply inconsistent with what the medical evidence suggested,
thus justifying the ALJ to reject such evidence. (R. at 29-30.);
See Burns, supra, at 129-30. Upon its own review of the record,
the Court identified rather glaring inconsistencies regarding
Plaintiff’s claims as to his ability to work. For instance, in
May 2012, Plaintiff informed Dr. Goldberg that he was terminated
from his most recent job because of DYFS requirements that
caused Plaintiff to take too much time off from work. (R. at
356.) Yet, in the July 2012 Disability Report, contrary to
Plaintiff’s prior assertions to Dr. Goldberg, Plaintiff reported
that he stopped working because he “was terminated because [he]
cannot read and write.” (R. at 264-69.)
For these reasons, the Court finds that substantial
evidence supports the ALJ’s credibility findings. (R. at 30.)

34

D. Substantial evidence supports the ALJ’s determination
that the Third-Party Report of plaintiff’s wife was
entitled to little weight
At step four, the ALJ gave little weight to Plaintiff’s
wife’s Third Party Function Report for various reasons,
including the fact that it “[did] not outweigh the accumulated
medical evidence regarding the extent to which the [Plaintiff’s]
impairments limit his functional abilities. (R. at 30.) The ALJ
also stated that the report was “not persuasive for the same
reasons set forth. . . in finding [Plaintiff’s] allegations less
than credible. (Id.)
Plaintiff argues that the ALJ erred in assigning little
weight to his wife’s Third Party Function report because “SSR
06-03p requires evidence from non-medical sources . . . such as
spouses. . . whether the evidence is evidence is consistent with
other evidence, and any other factors that tend to support or
refute the evidence.” (Pl. Br. at 28.) Plaintiff further
contends that his wife’s statements are not merely lay opinion
because they are supported by the medical record. (Id.)
Social Security Ruling 06-03-p provides that an ALJ should
consider "such factors as the nature and extent of the
relationship, whether the evidence is consistent with other
evidence, and any other factors that tend to support or refute
the evidence" when evaluating evidence from non-medical sources
such as family or friends. See also Zirnsak v. Colvin, 777 F.3d
35

607, 612 (3d Cir. 2014). However, in order to properly evaluate
such factors, ALJ’s must make certain credibility
determinations. (Id.)
Here, the ALJ determined that Plaintiff’s wife’s Third
Party Function report was merely lay opinion that corroborated
Plaintiff’s allegations and resulting limitations. (R. at 30.)
Though Plaintiff asserts that his wife’s statements are
supported by the medical record, as noted in great detail above,
the ALJ disagreed.

, the ALJ did not find Plaintiff’s

statements regarding his allegations and resulting limitations
to be credible. The Court finds that the ALJ provided sufficient
reasoning in making this determination. Therefore, for much of
the same reasons listed in the previous section, the Court finds
that substantial evidence supports the ALJ’s finding that
Plaintiff’s wife’s Third Party Function Report was entitled to
little weight. (R. at 30.)

E. Substantial evidence supports the ALJ’s decision to
accord substantial weight to Dr. Coffey’s consultative
examination report.
At step four, the ALJ decided to “accord significant weight
to Dr. Coffey’s opinion, as it is consistent with the evidence
of record, including [Plaintiff’s] good work history.” (R. at
29.) Following the October 2013 mental status examination, Dr.
Coffey made the following findings: that Plaintiff possessed an

36

adequate understanding and memory, but limited concentration;
that Plaintiff was able to respond to changes in a normal
routine and work independently; that Plaintiff was capable of
understanding and remembering short, simple instructions and
making simple work related decisions; and that Plaintiff had the
adequate ability to adapt to changes in the work environment,
handle work stress and maintain social interaction. (R. at 379.)
Plaintiff contends that “the ALJ erred in according great
weight to the consultative report of Dr. Coffey,” because Dr.
Coffey’s conclusion that Plaintiff “did not meet criteria for a
major mental disorder that would interfere with his capacity to
work” is inconsistent with the doctor’s own findings and other
evidence in the record. (Pl. Br. at 29.) Specifically, Plaintiff
directs the Court’s attention to aspects of Dr. Coffey’s
examination that highlighted some of Plaintiff’s weaknesses,
such as his relatively low full-scale IQ, the fact that his wife
had to complete forms for him, and the fact that his
intelligence was estimated in the “mentally deficient range.”
(R. at 380.) Additionally, Plaintiff argues that Dr. Coffey’s
conclusion is inconsistent with the 2012 results of the
examination by Dr. Goldberg, who rendered an Axis I diagnosis of
learning disorder – reading. (Pl. Br. at 29.)
Again, this Court “may not weigh the evidence or substitute
its own conclusions for those of the ALJ.” Chandler, supra, at
37

359. The Court finds that the ALJ considered the reports of
every doctor who examined the Plaintiff’s mental status,
particularly as it related to Plaintiff’s ability to work. (R.
at 29-30.)

Though each doctor noted Plaintiff’s inability to

read and his relatively low IQ, each doctor also opined that
Plaintiff’s areas of strength and good work history were
indicative of Plaintiff’s ability to work and hold a job. These
medical opinions were also consistent with the vocational
expert’s testimony that Plaintiff’s ability to perform a
significant number of jobs in the national economy would not be
impacted by his learning disability, particularly his inability
to read. (R. at 91-93.) Further, Plaintiff does not identify any
document in the record wherein a doctor opined that Plaintiff’s
intellectual disability rendered him unable to work. Therefore,
the Court rejects Plaintiff’s argument that Dr. Coffey’s medical
opinion and the ALJ’s finding are inconsistent with substantial
evidence in the record.
To the contrary, the Court finds that substantial evidence
supports the ALJ’s determination that Dr. Coffey’s examination
report was entitled to significant weight. (R. at 29.)

V. CONCLUSION
For all of these reasons, the Court finds that substantial
evidence supports the ALJ’s decision to deny Plaintiff benefits,

38

and that it should be affirmed.

An accompanying Order will be

entered.

September 25, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

39