GARDNER v. COMMISSIONER OF SOCIAL SECURITY

Filing 9

OPINION. Signed by Judge Noel L. Hillman on 9/28/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMAS ANDREW GARDNER,
1:16-cv-04567-NLH
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
ALAN H. POLONSKY
POLONSKY AND POLONSKY
512 S WHITE HORSE PIKE
AUDUBON, NJ 08106
On behalf of Plaintiff
GREGG WARNER MARSANO
OFFICE OF GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION
P.O. BOX 41777
PHILADELPHIA, PA 19101
On behalf of Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), regarding Plaintiff’s application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act.

42 U.S.C. § 401, et seq.

The issue before the Court is

whether the Administrative Law Judge (“ALJ”) erred in finding
that there was “substantial evidence” that Plaintiff was not

disabled at any time since his alleged onset date of disability,
October 16, 2012.

For the reasons stated below, this Court will

affirm the ALJ’s decision.
I.

BACKGROUND AND PROCEDURAL HISTORY
On November 19, 2012, Plaintiff, Thomas Andrew Gardener,

who was thirty-nine years old at the time, applied for benefits
alleging disability since October 16, 2012.

Plaintiff’s

impairments include degenerative disc disease of the thoracic
and lumbar spine, status post multilevel compression fracture of
the thoracic spine, status post Achilles tendon repair on right
ankle, asthma, obesity, major depressive disorder, and panic
disorder.

Plaintiff previously worked as a floor

technician/cleaner.
After the state agency denied Plaintiff’s application
twice, Plaintiff requested an administrative hearing.
before an ALJ was held on September 29, 2014.

A hearing

On January 23,

2015, the ALJ issued his decision, which determined that
Plaintiff was not disabled.

On May 11, 2016, the Appeals

Council denied Plaintiff’s request for review, rendering the
ALJ’s decision the final decision of the Commissioner.
Plaintiff brings this civil action for review of the
Commissioner’s decision.

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II.

DISCUSSION
A.

Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial
review of the Commissioner’s decision to deny a complainant’s
application for Disability Insurance Benefits.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995).

Ventura v.

A reviewing court

must uphold the Commissioner’s factual decisions where they are
supported by “substantial evidence.”

42 U.S.C. §§ 405(g),

1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.
2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000);
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Substantial evidence means more than “a mere scintilla.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting
Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

It

means “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id.

The inquiry is not

whether the reviewing court would have made the same
determination, but whether the Commissioner’s conclusion was
reasonable.

See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988).
A reviewing court has a duty to review the evidence in its
totality.

See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

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1984).

“[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’” Schonewolf v.
Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks
v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th
Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.
474, 488 (1951)).
The Commissioner “must adequately explain in the record his
reasons for rejecting or discrediting competent evidence.”
Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing
Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)).

The Third

Circuit has held that an “ALJ must review all pertinent medical
evidence and explain his conciliations and rejections.”

Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).
Similarly, an ALJ must also consider and weigh all of the nonmedical evidence before him.

Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d
700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
court review:
Unless the [Commissioner] has analyzed all
evidence and has sufficiently explained the
weight he has given to obviously probative
exhibits, to say that his decision is
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supported by substantial evidence approaches
an abdication of the court’s duty to
scrutinize the record as a whole to
determine whether the conclusions reached
are rational.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).

Although

an ALJ, as the fact finder, must consider and evaluate the
medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here
is no requirement that the ALJ discuss in its opinion every
tidbit of evidence included in the record,” Hur v. Barnhart, 94
F. App’x 130, 133 (3d Cir. 2004).

In terms of judicial review,

a district court is not “empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.”
Williams, 970 F.2d at 1182.

However, apart from the substantial

evidence inquiry, a reviewing court is entitled to satisfy
itself that the Commissioner arrived at his decision by
application of the proper legal standards.

Sykes, 228 F.3d at

262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);
Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B.

Standard for Disability Insurance Benefits

The Social Security Act defines “disability” for purposes
of an entitlement to a period of disability and disability
insurance benefits as the inability to engage in any substantial
gainful activity by reason of any medically determinable
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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 12 months.
1382c(a)(3)(A).

See 42 U.S.C. §

Under this definition, a Plaintiff qualifies as

disabled only if his physical or mental impairments are of such
severity that he is not only unable to perform his past relevant
work, but cannot, given his age, education, and work experience,
engage in any other type 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)

(emphasis added).
The Commissioner has promulgated regulations for
determining disability that require application of a five-step
sequential analysis.

See 20 C.F.R. § 404.1520.

This five-step

process is summarized as follows:
1.

If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”

2.

If the claimant does not suffer from a “severe
impairment,” he will be found “not disabled.”

3.

If the severe impairment meets or equals a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1 and has lasted or is expected to last for a
continuous period of at least twelve months, the
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claimant will be found “disabled.”
4.

If the claimant can still perform work he has done in
the past (“past relevant work”) despite the severe
impairment, he will be found “not disabled.”

5.

Finally, the Commissioner will consider the claimant’s
ability to perform work (“residual functional
capacity”), age, education, and past work experience
to determine whether or not he is capable of
performing other work which exists in the national
economy. If he is incapable, he will be found
“disabled.” If he is capable, he will be found “not
disabled.”

20 C.F.R. § 404.1520(b)-(f).

Entitlement to benefits is

therefore dependent upon a finding that the claimant is
incapable of performing work in the national economy.
This five-step process involves a shifting burden of proof.
See Wallace v. Secretary of Health & Human Servs., 722 F.2d
1150, 1153 (3d Cir. 1983).

In the first four steps of the

analysis, the burden is on the claimant to prove every element
of his claim by a preponderance of the evidence.

See id.

In

the final step, the Commissioner bears the burden of proving
that work is available for the Plaintiff: “Once a claimant has
proved that he is unable to perform his former job, the burden
shifts to the Commissioner to prove that there is some other
kind of substantial gainful employment he is able to perform.”
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.

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Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C.

Analysis

At step one, the ALJ found that Plaintiff has not engaged
in substantial gainful activity since the alleged onset of
disability, October 16, 2012.

At step two, the ALJ found that

Plaintiff’s impairments of degenerative disc disease of the
thoracic and lumbar spine, status post multilevel compression
fracture of the thoracic spine, status post Achilles tendon
repair on right ankle, asthma, obesity, major depressive
disorder, and panic disorder were severe.

At step three, the

ALJ determined that Plaintiff’s severe impairments or his severe
impairments in combination with his other impairments did not
equal the severity of one of the listed impairments.

For step

four, the ALJ determined that Plaintiff could not perform his
past work as a floor technician/cleaner, but found that
Plaintiff retained the residual functional capacity to work at
the sedentary level 1 with certain restrictions in jobs such as

1

See 20 C.F.R. § 404.1567(a) (“Sedentary work. Sedentary work
involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as
one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and
other sedentary criteria are met.”)
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lens inserter, surveillance system monitor, and folder (step
five).

Accordingly, the ALJ found that Plaintiff was not

disabled.
Plaintiff presents two areas where he claims the ALJ erred
in his analysis:
1. The ALJ erred in his residual functional capacity
(“RFC”) analysis when he did not properly assess
Plaintiff’s mental limitations.
2. The ALJ erred in finding significant jobs in the
national economy existed for Plaintiff with his RFC.
The Court finds that the ALJ did not err in these two ways,
and holds that substantial evidence supports the ALJ’s decision
that Plaintiff retains the residual functional capacity to
perform sedentary work with certain limitations.
First, with regard to Plaintiff’s challenge to the ALJ’s
RFC assessment, in making a RFC determination, the ALJ is
required to do the following:
In determining whether you are disabled, we consider all
your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence. By
objective medical evidence, we mean medical signs and
laboratory findings . . . . By other evidence, we mean . .
. statements or reports from you, your treating or
nontreating source, and others about your medical history,
diagnosis, prescribed treatment, daily activities, efforts
to work, and any other evidence showing how your
impairment(s) and any related symptoms affect your ability
to work. . . .

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20 C.F.R. § 404.1529.

The RFC reflects “what [the claimant] can

still do despite [his or her] limitations,” 20 C.F.R. §
416.945(a), and the controlling regulations are clear that the
RFC finding is a determination expressly reserved to the
Commissioner, 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2),
404.1546(c), 416.946(c).
Plaintiff argues that the ALJ failed to fully consider
Plaintiff’s mental impairments in determining that Plaintiff
retained the RFC to perform sedentary work with occasional
interaction with the public and co-workers.

Plaintiff argues

that his extreme anger and fear of strangers, in addition to his
diagnoses of major depression and panic disorder, preclude that
RFC finding.
The Court disagrees with Plaintiff’s view of the ALJ’s
decision.

In a well-reasoned analysis supported by documentary

evidence, the ALJ’s analysis of Plaintiff’s mental impairments
spans several pages.

In that analysis, the ALJ noted that

Plaintiff began treatment for his mental impairments in April
2013, which was after his initial claim for benefits was denied.
The ALJ recognized that in April 2013 Plaintiff reported
“breakdowns inside his head,” increased panic if he was in a
room with more than eight or nine people, trouble sleeping,

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intermittent passive suicidal thoughts, mood swings, verbal
outbursts, and poor memory on his initial evaluation by a mental
health professional, all of which his wife corroborated.
Additionally, the ALJ noted that at that time Plaintiff was
assessed a GAF of 45, which suggests serious impairment. 2

(R. at

26.)
However, the ALJ noted that over the course of treatment

2

The GAF Scale ranges from zero to one-hundred. An individual's
“GAF rating is within a particular decile if either the symptom
severity or the level of functioning falls within the range.”:
A GAF of 51-60 is “Moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational, or school
functioning (e.g.. few friends, conflicts with peers or coworkers).”
A GAF of 31-40 is “Some impairment in reality testing or
communication (e.g., speech is at times illogical, obscure,
or irrelevant) OR major impairment in several areas, such
as work or school, family relations, judgment, thinking, or
mood (e.g., depressed man avoids friends, neglects family,
and is unable to work; child frequently beats up younger
children, is defiant at home, and is failing at school).”
A GAF of 21-30 is “Behavior is considerably influenced by
delusions or hallucinations OR serious impairment in
communication or judgment (e.g., sometimes incoherent, acts
grossly inappropriately, suicidal preoccupation) OR
inability to function in almost all areas (e.g., stays in
bed all day; no job, home, or friends).
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. text rev. 2000) (“DSM–IV–
TR”) p. 34.
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and proper medication, by June 2013 Plaintiff’s mental status
evaluations were within normal ranges, including improved mood,
cooperative behavior, unimpaired memory and attention span, and
good insight and judgment, and he had been discharged from
treatment for meeting his treatment goals.

(R. at 27.)

His GAF

at discharge was 54, evidencing only moderate symptoms.

The ALJ

further noted that during Plaintiff’s treatment for his physical
impairments throughout 2014, the medical records relate that
Plaintiff presented as cooperative, well-groomed with normal
speech, and no psychiatric deficits were observed.

(Id.)

In addition to the ALJ’s observations of Plaintiff’s
improving mental impairments, the ALJ actually discounted the
state consultative examiner’s findings that determined that
Plaintiff suffered from mental limitations less severe than the
ALJ found was otherwise demonstrated in the record.

For

example, when a state consultative psychological examination was
conducted by Dr. Bogacki in February 2013, Dr. Bogacki found
that Plaintiff only suffered from mild depressive disorder,
schizoid personality traits, and a learning disorder, and
assessed Plaintiff a GAF of 65, which evidences only mild
limitations.

(R. at 26.)

The ALJ afforded Dr. Bogacki’s

assessment little weight because it was based on a one-time

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examination, there was no corroborative evidence of a learning
disability, and subsequent treatment records showed that
Plaintiff had more than mild psychological symptoms.
26.)

(R. at

The ALJ similarly discounted two additional state agency

psychologist assessments because they also found that Plaintiff
did not suffer from more than mild limitations, and the record
evidence demonstrated that Plaintiff’s mental impairments were
actually more severe.

(R. at 28.)

Often, a claimant whose claim for benefits has been denied
argues that an ALJ improperly afforded greater weight to the
state consultative examiners’ assessments than the claimant’s
own treating physicians’ assessments.

See Morales v. Apfel, 225

F.3d 310, 317 (3d Cir. 2000) (citations and quotations omitted)
(“A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians'
reports 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.

Where []

the opinion of a treating physician conflicts with that of a
non-treating, non-examining physician, the ALJ may choose whom
to credit but cannot reject evidence for no reason or for the
wrong reason.”).

Here, however, the ALJ found the opposite, and

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essentially credited all of Plaintiff’s evidence regarding his
mental impairments over the opinions of the consultants.

In

doing so, the ALJ also properly explained why the medical
evidence did not fully support Plaintiff’s contention that his
mental impairments were as debilitating as he claimed.
28-29.)

(R. at

Accordingly, the ALJ placed the following restrictions

on Plaintiff’s RFC:

“occasional interaction with coworkers and

supervisors, and no interaction with members of the public.”
(R. at 23.)

The ALJ’s RFC assessment, therefore, was based on

substantial evidence and must be affirmed.
The second basis for Plaintiff’s appeal is that the ALJ
erred in finding that significant jobs exist in the national
economy that Plaintiff was capable of performing with his
particular RFC.

The ALJ determined that Plaintiff was capable

of sedentary work that is unskilled and involved routine and
repetitive tasks with occasional changes in the work setting,
but that the work could not involve quotas or was production
based rather than goal orientated work.

(R. at 23.)

Based on

these limitations, as well as the other RFC limitations related
to Plaintiff’s physical and mental impairments, the Vocational
Expert (“VE”) offered three positions that could be performed by
a person with Plaintiff’s RFC, age and experience:

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lens

inserter, surveillance system monitor, and folder.

(R. at 29-

30.)
Plaintiff argues that the jobs suggested by the VE do not
allow for his limitations.

Plaintiff argues that a lens

inserter and folder are assembly line jobs that involve quotas
and are production based.

Plaintiff also argues that the

surveillance system monitor job is not unskilled work.
The Court does not find any merit to Plaintiff’s argument.
The Dictionary of Occupational Titles defines the three jobs as
follows:
713.687-026 LENS INSERTER (optical goods) alternate
titles: roll-over loader - Fits lenses into plastic
sunglass frames and places frames on conveyor belt that
passes under heat lamps which soften frames preparatory to
setting of lenses.
685.687-014 CUFF FOLDER (knitting) alternate titles:
cuff turner - Folds cuffs preparatory to sewing cuffs to
sleeves of knitted garments: Lays flat cuff on table and
folds cuff in half or pulls tubular cuff over cone-shaped
form and turns cuff half-way back, matching edges. Stacks
folded cuffs.
379.367-010 SURVEILLANCE-SYSTEM MONITOR (government
ser.) Monitors premises of public transportation terminals
to detect crimes or disturbances, using closed circuit
television monitors, and notifies authorities by telephone
of need for corrective action: Observes television screens
that transmit in sequence views of transportation facility
sites. Pushes hold button to maintain surveillance of
location where incident is developing, and telephones
police or other designated agency to notify authorities of
location of disruptive activity. Adjusts monitor controls
when required to improve reception, and notifies repair
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service of equipment malfunctions.
Dictionary of Occupational Titles, available at 1991 WL 645958.
Other than Plaintiff’s interpretation of these jobs, there
is no support in the record that these positions do not match
Plaintiff’s RFC.

Plaintiff does not provide any support for his

contention that the lens inserter and cuff folder positions are
“production” based (excluded by the RFC) and not “goal
orientated” (permitted by the RFC). 3

3

Even if they were,

See, e.g., Butler v. Colvin, 2015 WL 570167, at *7 (D.N.J.
2015) (“ The VE explained the distinction between ‘production
paced’ and ‘goal-oriented’ as the difference between needing to
produce a certain number of products in a given time period
(production paced) versus quality control (goal-oriented),” and
provided an example: “a job as a mail clerk in a post office
would be a production paced job because of the need to process a
high volume of mail, whereas a job as a mail clerk in a private
sector office such as an attorney's office would be goaloriented because of the lesser pace”); Martell v. Colvin, 2015
WL 1310269, at *7 (D.N.J. 2015) (“At the hearing, the VE
explained that production-paced work involves a job where you
complete a task in order for it to move to the next employee,
such as an assembly line worker. She described goal-oriented as
more independent, where ‘you're given a job to do, and you just
perform that.’”); Gropp v. Astrue, 2009 WL 5103619, at *2 (W.D.
Ky. 2009) (“Claimant apparently is arguing that the ALJ's
limitation of ‘simple, repetitive tasks but no production or
rate paced work rather only goal oriented work’ would preclude
any work where there is even a minimal expectation of
production. Such an interpretation of ‘only goal oriented work’
would defy logic and most any definition of productive
employment. While there may not be mandatory production or rate
paced work, it stands to reason that all jobs require at least
some minimum level of productivity from employees.”).
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Plaintiff does not provide any support for his view that a
surveillance system monitor is more than unskilled work. 4

To

support the Step Five determination, the ALJ is only required to
identify a single job within the claimant's capacity that exists
in significant numbers in the national economy.

Lippincott v.

Commissioner of Social Sec., 982 F. Supp. 2d 358, 384 (D.N.J.
2013) (citing 20 C.F.R. § 404.1566(b) (“Work exists in the
national economy when there is a significant number of jobs (in
one or more occupations).”); 20 C.F.R. § 416.966(b) (same)).
The ALJ asked the VE whether these jobs conflicted with
Plaintiff’s RFC, and she testified that they did not.
76.)

(R. at

Based on that testimony, the ALJ concluded that the VE’s

testimony was consistent with the DOT, and that the number of
jobs cited exist in significant numbers.

(R. at 30, citing SSR

00-4p, “When a VE or VS provides evidence about the requirements

4

See, e.g., Hume v. Berryhill, 2017 WL 3978392, at *10 (D. Or.
2017) (VE testifying that surveillance system monitor is
sedentary, unskilled work); Strong v. Colvin, 2016 WL 4708491,
at *4 (E.D. Cal. 2016) (same); Corbett v. Barnhart, 2006 WL
5527015, at *26 (N.D.W. Va. 2006) (VE testifying: “Jobs would
include surveillance system monitor with 105,000 nationally,
3,000 in Virginia and sedentary assembler with 50,000
nationally, 1,500 in Virginia. Those are sedentary, unskilled
jobs,” and the court finding “the job of surveillance system
monitor, with an SVP of 2, is consistent with the ALJ's
hypothetical requiring the work to be ‘unskilled’”); Merrill v.
Astrue, 2007 WL 922254, at *4 (D. Me. 2007) (stating that the
surveillance system monitor job is unskilled).
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of a job or occupation, the adjudicator has an affirmative
responsibility to ask about any possible conflict between that
VE or VS evidence and information provided in the DOT. In these
situations, the adjudicator will: Ask the VE or VS if the
evidence he or she has provided conflicts with information
provided in the DOT; and If the VE's or VS's evidence appears to
conflict with the DOT, the adjudicator will obtain a reasonable
explanation for the apparent conflict.”).
The ALJ satisfied his obligations at step five by
identifying jobs in significant numbers that do not conflict
with Plaintiff’s RFC, and by determining that Plaintiff, with
his specific RFC, was capable of performing other work that
exists in significant numbers in the national economy.
III. Conclusion
For the reasons expressed above, the ALJ’s determination
that Plaintiff is not totally disabled is supported by
substantial evidence.

The decision of the ALJ is therefore

affirmed.
An accompanying Order will be issued.

Date: September 28, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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