ROBERTSON V. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Jerome B. Simandle on 9/28/2017. (dmr)

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

DALE ROBERTSON,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 16-4688 (JBS)

COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.

APPEARANCES:
Alan H. Polonsky, Esq.
Polonsky and Polonsky
512 S White Horse Pike
Audubon, NJ 08106
Attorney for Plaintiff Dale Robertson
Gregg W. Marsano, Esq.
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
P.O. Box 41777
Philadelphia, PA 19123
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 (“SSA”) denying Plaintiff
Dale Robertson’s (“Plaintiff”) application for disability
benefits under Title II and Title XVI of the Social Security
Act, 42 U.S.C. § 401, et seq. Plaintiff, who suffers from

rosacea blepharitis, essential hypertension, obesity, type II
diabetes, depression, post-traumatic stress disorder (“PTSD”),
and panic disorder with agoraphobia, was denied benefits for the
period beginning March 13, 2011, the alleged date of disability,
to April 27, 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 two grounds. Plaintiff
contends: (1) the ALJ’s finding that Plaintiff had a residual
functional capacity (“RFC”) to perform medium work, subject to
certain limitations, was not supported by substantial evidence;
and (2) the ALJ’s determination that a significant number of
alternative jobs existed in the national economy that Plaintiff
was able to perform was not supported by substantial evidence.
For the reasons stated below, the Court will affirm the ALJ’s
decision denying Plaintiff disability benefits.
II. BACKGROUND
A.

Procedural History

Plaintiff filed an application for disability insurance
benefits on October 14, 2013, alleging an onset of disability
beginning March 13, 2011. (R. at 21.) On February 12, 2014, the
SSA denied the claim, and upon reconsideration on May 6, 2014.
(R. at 21.) Hearings were held on December 2, 2015 before ALJ
Jennifer Spector, at which Plaintiff appeared with counsel and

2

testified, and at which a vocational expert also testified. (R.
at 21.) On April 27, 2016, ALJ Spector denied Plaintiff’s appeal
at step five of the sequential analysis, finding that Plaintiff
could perform work as a presser, marker, or factory helper. (R.
at 32.) The Appeals Council denied Plaintiff’s request for a
review and Plaintiff timely filed the instant action. (R. at 116.)
B.

Medical History

The following are facts relevant to the present motion.
Plaintiff was 54 years old as of the date of the ALJ Decision.
(R. at 85.) Plaintiff completed two years of college and has an
associate’s degree in accounting. (R. at 48, 259.) He had
previous work experience as a shift supervisor at a pharmacy, a
realtor, and president of an outsourcing trucking company. (R.
at 260.)
1.

Physical Impairments

Plaintiff filed a claim for disability insurance benefits,
alleging that he suffered from physical impairments, including
type II diabetes, high blood pressure, high cholesterol, blurred
vision in his left eye from rosacea, and light sensitivity. (R.
at 258.)
On June 25, 2007, Plaintiff complained of left eye pain,
which he had been experiencing off and on for seven years. (R.
at 351.) After noting that Plaintiff had visual acuity of 20/200

3

in both eyes, Dr. Jennifer Resnick anesthetized Plaintiff’s eye,
“which made him feel much better.” (R. at 351.) Dr. Resnick
noted that Plaintiff had “multiple punctate uptake areas of the
cornea.” (R. at 351.) Plaintiff was prescribed eye ointment and
discharged with instructions to follow up with a doctor in
ophthalmology. (R. at 351.)
Plaintiff’s next medical records come from April 23, 2012,
when Dr. Alexander Higgins evaluated Plaintiff as a new patient.
(R. at 440-44.) Plaintiff complained that his feet were tingling
at night and that he had an ongoing problem with his left eye,
in addition to issues relating to his mental health discussed
below. (R. at 440.) Dr. Higgins reported that Plaintiff had not
been on any medications, including those prescribed to him for
diabetes and high blood pressure, for over one year. (R. at
440.) Upon examination, Plaintiff was not in acute distress, but
his left upper eyelid and periorbital appeared “dry scaly.” (R.
at 440-41.) Dr. Higgins conducted a diabetes management exam,
which appeared normal except that his toe nails were “too long.”
(R. at 441.) For his type II diabetes and benign hypertension,
Dr. Higgins recommended diet and exercise and advised Plaintiff
to start taking Lisnopril and Sertraline daily. (R. at 441-42.)
Dr. Higgins also suggested that Plaintiff schedule an eye
appointment. (R. at 443.)

4

Two days later, Plaintiff met with Dr. Humeera Hina. (R. at
434-39.) Plaintiff complained of cotton mouth, feeling weak, and
frequent urination, but denied any chest pain, shortness of
breath, heart palpitations, syncope, dizziness, or edema. (R. at
434.) Dr. Hina noted that Plaintiff had been taking his
medication as prescribed but was “NOT doing the following:
monitoring [blood pressure], monitoring home glucose, watching
diet, and exercising.” (R. at 434.) Upon inspection, Dr. Hina
reported that Plaintiff’s toenails looked normal. (R. at 435.)
Dr. Hina ordered new tests and instructed Plaintiff to see an
ophthalmologist, podiatrist, endocrinologist, and nutritionist,
to keep a blood glucose log, to call every three days to report
his blood sugar levels, to get labs, to exercise five days a
week, and to follow-up in one week. (R. at 438.)
Plaintiff returned to Dr. Hina on May 9, 2012. (R. at 43033.) At this appointment, Plaintiff informed Dr. Hina he was
seeing an ophthalmologist and had scheduled an endocrinologist
appointment for July. (R. at 430.) Plaintiff also notified Dr.
Hina that he was eating better and no longer felt cotton mouth
or tingling or numbness in his feet. (R. at 430.) Plaintiff had
not started exercising yet and did not get a chance to do labs.
(R. at 430.) Dr. Hina instructed Plaintiff to continue taking
his medication and calling every three days to report the

5

results of his blood glucose log, and to follow-up in two weeks.
(R. at 432-33.)
On May 16, 2012, Plaintiff returned to Dr. Hina reporting
that he was “feeling pretty good/great” and that he was eating
healthier and exercising more often. (R. at 426.) Dr. Hina
advised Plaintiff that he should continue to work on his diet
and see a nutritionist. (R. at 427.) Plaintiff also informed Dr.
Hina that his vision was still blurry, but that he was seeing an
ophthalmologist the following week. (R. at 426.) Dr. Hina told
Plaintiff to follow-up again in three months. (R. at 429.)
The following month, Plaintiff returned to see Dr. Hina.
(R. at 423-25.) At this follow-up appointment, Plaintiff told
Dr. Hina he had started receiving unemployment compensation and
was “feeling good.” (R. at 423.) Plaintiff also reported that
his appetite was good, but that he was trying to cut back. (R.
at 423.) Dr. Hina recommended that he eat healthier, exercise
more often, and to follow-up in two weeks. (R. at 425.)
On July 13, 2012, Plaintiff met with Dr. Maryam Khan for an
evaluation and further management of his diabetes, hypertension,
and hyperlipidemia. (R. at 455-56.) Dr. Khan assessed Plaintiff
as having diabetes type II, poorly controlled, with elevated
hemoglobin Alc of 13%. (R. at 455.) Dr. Khan recommended
metformin at 500mg, twice a day, to help improve insulin
resistance and Titrate up to 1 gram, twice a day. (R. at 455-

6

56.) Dr. Kahn also suggested that Plaintiff schedule an
appointment with a diabetes educator to go over appropriate
insulin injection technique and an appointment with Doctor Weigh
to make lifestyle changes with respect to his hyperlipidemia.
(R. at 456.)
On September 19, 2012, Plaintiff again met with Dr. Hina.
(R. at 418-22.) Plaintiff explained he had not been taking his
metformin, but Plaintiff had not taken because he was worried
about his kidneys and wanted to discuss with Dr. Hina first. (R.
at 418.) Feeling overwhelmed by having to check his sugar levels
four times per day, Plaintiff had stopped keeping his blood
glucose log the following month. (R. 418.) Plaintiff cancelled
his last appointment with his ophthalmologist and had not
scheduled another appointment with his endocrinologist. (R. at
418.) Plaintiff also stopped exercising. (R. at 418.) Dr. Hina
encouraged Plaintiff to take the medication he had been
prescribed, including the metformin, to go back to keeping a
blood glucose log, to reschedule the appointments with his
ophthalmologist and endocrinologist, to limit his fat intake, to
exercise four times a week, to follow a diabetic diet, and to
follow-up in two weeks. (R. 421.)
Plaintiff next returned to Dr. Hina on June 13, 2013. (R.
at 412-16.) At this visit, Plaintiff that reported he had not
seen the ophthalmologist or nutritionist, nor had he been

7

checking his blood sugars or keeping a blood glucose log. (R.
412.) Dr. Hina also noted that Plaintiff was “NOT doing the
following: taking medications as prescribed, watching diet, and
exercising.” (R. at 412.) Dr. Hima conducted another diabetes
management exam, which was normal except for thickened nails on
one foot and nails that were too long on the other. (R. at 413.)
Dr. Hina instructed Plaintiff to return to taking his
medication, to see a nutritionist, endocrinologist, and
ophthalmologist as soon as possible, and to follow-up in two
weeks. (R. at 415-16.)
On June 26, 2013, Plaintiff went back to Dr. Hina for a
follow-up appointment. (R. at 408-11.) Plaintiff was “doing
good” and had scheduled appointments with a nutritionist,
ophthalmologist, endocrinologist, and podiatrist for July. (R.
at 408.) According to Dr. Hina, Plaintiff’s “mood is good,” and
he had been taking medications as prescribed. (R. at 408.) Dr.
Hina described Plaintiff’s diabetes condition as “improving” and
his benign hypertension as “unchanged.” (R. at 409-10.) Dr. Hina
instructed Plaintiff to continue monitoring his blood sugars, to
keep his scheduled appointments, and to follow-up in four weeks.
(R. at 410.)
On July 30, 2013, Plaintiff returned to Dr. Hina. (R. at
404-407.) Plaintiff informed Dr. Hina that, because he did not
have a job and had lost his health insurance one month ago, he

8

decided to cancel all of his previously-scheduled appointments,
except for the ophthalmologist appointment he had scheduled for
the following day. (R. at 404.) Plaintiff explained that he was
sleeping all day, did not leave the house or shave, and was
unable to watch television because his eyes “get shaky.” (R. at
404.) Dr. Hina noted that, although Plaintiff was taking
medications as prescribed and watching his diet, he was not
exercising. (R. at 404.) Dr. Hina further observed that
Plaintiff’s type II diabetes was “getting better” and that his
benign hypertension was still “unchanged.” (R. at 405.) Dr. Hina
advised Plaintiff to limit his fat intake, to start walking and
exercising, to continue taking his medication as prescribed, and
to schedule a follow up visit in three months with Dr. Rakickas.
(R. at 407.)
On October 27, 2013, Dr. Jeffrey Rakickas completed a
“medical source statement,” which assessed Plaintiff’s ability
to do work-related activities. (R. at 386-87.) Because Dr.
Rakickas had never treated or interacted with Plaintiff, his
report was based entirely on his interpretation of Dr. Hina’s
office notes. (R. at 386.) Based on these notes, Dr. Rakickas
concluded that Plaintiff could only sit for 0-2 hours and stand
for 1 hour in an 8-hour workday. (R. at 386.) Dr. Rakikas also
determined that Plaintiff would likely be absent from work due
to impairments and/or treatments for three or more days per

9

month. (R. at 387.) On the other hand, Dr. Rakikas concluded
that Plaintiff’s experience of pain or other symptoms was
“never” severe enough to interfere with his attention or
concentration and recommended only that he avoid noise at the
workplace. (R. at 387.) Rakikas “never assessed” Plaintiff’s
ability to lift and carry or push and pull, as well as other
“manipulative limitations.” (R. at 386.)
Three days later, Dr. Rakickas met with Plaintiff for the
first time. (R. at 398-402.) Plaintiff reported that he had been
able to get out of the house the week before. (R. at 398.) Dr.
Rakickas stressed the need for Plaintiff to make dietary changes
and to set up a routine appointment with the ophthalmologist,
(R. 400-401.) Dr. Rakickas also ordered lab work regarding
Plaintiff’s diabetes and hypertension. (R. at 400.)
On November 19, 2013, Plaintiff went back to see Dr.
Rakickas. (R. at 392-96.) Dr. Rakickas observed that Plaintiff
had been eating healthier, avoiding sugars and carbohydrates,
and that his blood sugars were lower. (R. at 392.) Plaintiff
reported having some urinary symptoms over the past several
days, but those issues had been resolved. (R. at 392.) Plaintiff
also complained of left flank pain, which Dr. Rakickas
determined could be a possible kidney stone. (R. at 394.) Dr.
Rakickas otherwise noted that there were “[n]o complaints today
in the office” and that Plaintiff “[f]eels well.” (R. at 392.)

10

Dr. Rakickas recommended that Plaintiff cut back on his
nighttime insulin by two units per night and schedule
appointments with a kidney doctor and podiatrist. (R. at 395.)
On December 26, 2013, Plaintiff met with Dr. Cheryl
Mitchell, an ophthalmological consultant. (R. at 462-66.) Dr.
Mitchell noted that Plaintiff “has an ocular history of Rosacea
related blepharitis” and that he “complains that his left
eyelashes ‘rub and irritate my left eye.’” (R. at 462.) Dr.
Mitchell recounted that Plaintiff had seen two other
ophthalmologists in the past, one of whom had prescribed an
ophthalmic ointment. (R. at 462.) Plaintiff’s visual acuity was
20/30 in one eye and 20/40 in his other eye, and his near acuity
was “Jaeger 3 right eye” without his glasses and “Jaeger 4 left
eye” without his glasses. (R. at 462.) Dr. Mitchell further
noted that Plaintiff had “a very apparent left ptosis upper
eyelid with an upper and lower left eyelid entropion
appearance,” but that there was no retinopathy. (R. at 463.)
Ultimately, Dr. Mitchell concluded “Left Eye: Superior lid
artifact but otherwise normal.” (R. at 463.) Dr. Mitchell
recommended repair of his left ptosis and lower eyelid entropion
and “aggressive management of his rosacea through topical
treatment and or systemic doxycycline.” (R. at 463.) Dr.
Mitchell found that there is “no disability based upon vision
alone.” (R. at 463.)

11

Plaintiff visited Dr. Alexander Hoffman on January 21,
2014. (R. at 467-68.) Upon physical examination, Dr. Hoffman
noted that Plaintiff was obese, had 20/25 acuity in his right
eye and 20/50 acuity in his left eye, and had mild rosacea. (R.
at 467.) Plaintiff otherwise appeared to be normal, had
“excellent” straight leg raising, and could balance on either
leg. (R. at 468.) Dr. Hoffman concluded that Plaintiff had
slightly reduced visual acuity in his left eye due to rosacea, a
normal gait and station, and no sensory or reflex deficit. (R.
at 468.)
On July 28, 2014, Plaintiff started treatments with Dr.
Sangita Doshi at Cooper Family Medicine due to issues with his
medical insurance. (R. at 571-74.) Plaintiff reported that he
did not check his blood sugars regularly and had not had
bloodwork done in two years. (R. at 571.) Plaintiff also told
Dr. Doshi that his “kidneys shut down on occasion,” but that he
“has never had this worked up.” (R. at 571.) Dr. Doshi
determined that Plaintiff’s urinary disorder was more likely to
be caused by urinary retention than a kidney problem and
recommended that Plaintiff see an urologist. (R. at 574.) Dr.
Doshi also instructed Plaintiff to start checking his home blood
sugar. (R. at 574.)
On October 7, 2014, Plaintiff returned to Cooper Family
Medicine, this time meeting with Dr. Nirandra Mahamitra. (R. at

12

568-70.) Dr. Mahamitra noted Plaintiff’s chronic hypertension,
but determined “[t]he problem is controlled.” (R. at 568.) The
results of Plaintiff’s physical exam were otherwise normal. (R.
at 569.) Dr. Mahamitra referred Plaintiff to Cooper
Endocronology Associates to help address his uncontrolled
diabetes. (R. at 570.) Dr. Manamitra also reminded Plaintiff to
follow up with his ophthalmologist and podiatrist. (R. at 570.)
Plaintiff returned to Cooper Family Medicine on November
19, 2014, when he met with Dr. Marie Kairys. (R. at 565-68.)
After finding out that his wife had been having a marital
affair, Plaintiff became “very stressed out” and began smoking
again. (R. at 566.) This caused his blood pressure to rise on
occasion. (R. at 566.) Plaintiff reported “that he may
occasionally get some chest pain and once in a while some
tingling in his left arm.” (R. at 566.) Plaintiff also
complained that his kidneys “shut down on me” in the past. (R.
at 566.) To that end, Plaintiff met with an urologist, but he
had not yet seen a nephrologist. (R. at 566.) Dr. Kairys
referred Plaintiff to Cooper University Nephrology and
instructed Plaintiff to continue to monitor his blood pressure.
(R. at 568.)
On December 8, 2014, Plaintiff met with Dr. Kairys again.
(R. at 563-65.) This time, Plaintiff complained of a “sore
throat that moved down into chest.” (R. at 563.) Plaintiff

13

expressed concern that his wife had been trying to dose him with
small amounts of heroin daily or poison him with Tylenol, but he
was never tested for drugs and never called the police. (R. at
563.) Dr. Kairys recommended that Plaintiff contact the police
if he believed he had been dosed and offered blood or urine
testing. (R. at 565.) Dr. Kairys also prescribed Plaintiff
medication for bronchitis. (R. at 565.)
On December 11, 2014, Plaintiff met with Dr. Jason Kline, a
nephrologist. (R. at 472-74.) Plaintiff complained to Dr. Kline
that he believed “Tylenol and Blistex lip balm shut his kidneys
down” and that “his wife has been poisoning him and is concerned
his kidneys are shutting down from this poison.” (R. at 472.)
Dr. Kline observed that Plaintiff smelled strongly of
cigarettes, but otherwise appeared to be well. (R. at 473.)
After reviewing Plaintiff’s urinalyses and performing a CT
abdomen, Dr. Kline diagnosed Plaintiff with chronic kidney
disease, “stage II – controlled.” (R. at 472-73.) Dr. Kline
“suspect[ed] mild diabetic nephropathy given his uncontrolled
diabetes and proteinuria” and advised Plaintiff to “work harder
at controlling his diabetes, including dietary modifications and
increasing physical activity to help lose weight.” (R. at 473.)
On January 22, 2015, Plaintiff met with Dr. Mahamitra. (R.
at 558-62.) Dr. Mahamitra noted that Plaintiff was still
congested and coughing, but that he had not been taking the

14

medication that had been prescribed to him for bronchitis. (R.
at 558.) Plaintiff also reported that he had not been
exercising. (R. at 558.) The results of Plaintiff’s physical
exam were otherwise normal. (R. at 561.) Dr. Mahamitra
recommended that Plaintiff stop smoking and counseled a heart
healthy life style. (R. at 562.) Dr. Mahamitra also prescribed
Mucinex for Plaintiff’s chest congestion and Pravastatin for his
dyslipidemia. (R. at 562.)
On May 28, 2015, Dr. Doshi examined Plaintiff. (R. at 55358.) Plaintiff reported that he was eating better, cooking,
walking nightly, sleeping well, and had deliberately lost 55
pounds since November, 2014. (R. at 554-55.) Dr. Doshi also
observed that Plaintiff’s balance and hyperlipidemia had
improved and his diabetes were well-controlled. (R. at 556-57.)
Dr. Doshi examined Plaintiff again on July 15, 2015. (R. at
549-53.) This time, Plaintiff reported that he had been sleeping
in his truck with his 27-year-old son and complained of pain in
the neck area, right upper shoulder to elbow, and fingers. (R.
at 549.) Dr. Doshi noted that Plaintiff was now exercising and
weight lifting, but began feeling a sharp pain and numbness in
his right hand and arm. (R. at 549.) Otherwise, Plaintiff was
“feeling good.” (R. at 549.) The following week, Plaintiff
returned complaining of leg swelling and a rash, which he
believed to be poison ivy. (R. at 544.) On examination, APN

15

Marna Seitz observed a rash on Plaintiff’s calves. (R. at 547.)
Plaintiff was given a cream to help with the rash. (R. at 548.)
On November 15, 2015, Plaintiff returned to Dr. Doshi. (R.
at 540-43.) Plaintiff reported that he was currently living with
a married couple who had taken him and his son in. (R. at 540.)
Plaintiff now claimed he had “kidney failure” and was instructed
to be on dialysis in the past, but never got this done. (R. at
540.) Plaintiff told Dr. Doshi he had been smoking two packs of
cigarettes per day for 18 years, but quit smoking in March 2015.
(R. at 542.) Plaintiff complained of back pain and gait
instability, but was otherwise assessed to be healthy. (R. at
543.) Dr. Doshi referred Plaintiff to the Cooper Bone & Joint
Institute for the lower back pain and the Cooper Division of
Neurology for the gait instability. (R. at 543.)
2.

Mental Impairments

Plaintiff’s first medical records regarding his depression
and anxiety come from his April 23, 2012 appointment with Dr.
Higgins. (440-44.) According to Plaintiff he felt down at times,
and had been on medication about twenty years ago. Plaintiff
reported that he felt sad at times after losing his job, had
anxiety, and felt his memory was not as sharp since he was
having a hard time remembering names. (R. at 440.) Dr. Higgins
prescribed Plaintiff Zoloft 25mg daily for one week, and then
50mg daily going forward. (R. at 442.)

16

Plaintiff next discussed mental health issues with Dr. Hina
on May 2, 2012. (R. 430-33.) During this appointment, Plaintiff
reported that he had been taking the Zoloft, but was still
stressed and depressed. (R. at 430.) Dr. Hina noted that
Plaintiff had just started the Zoloft and that the dosage would
increase after a couple weeks. (R. at 431.) Dr. Hina advised
Plaintiff to relax and take deep breaths, to be optimistic, and
to rely on his wife for support. (R. at 432.)
On May 16, 2012, Plaintiff told Dr. Hina he was “feeling
pretty good/great” and that he wanted to stay on Zoloft at the
same dose. (R. at 426.) Dr. Hina noted that Plaintiff’s anxiety
and depression were “improved.” (R. at 428.)
During a June 14, 2012 follow-up appointment with Dr. Hina,
Plaintiff reported that his anxiety and depression had gotten
worse. (R. at 423-25.) Specifically, Plaintiff told Dr. Hina
that he was worried about his mother who had dementia and about
his daughter getting back on his insurance, he was still having
anxiety over losing his job, he was having trouble falling
asleep, and he did not feel like getting out of bed because he
lacked motivation. (R. at 423.) Plaintiff further reported that
he had been depressed all of his life, but that it was recently
“getting to him.” (R. at 423.) Plaintiff denied feeling suicidal
or homicidal and reported that his wife was very caring. (R. at
423.) Despite these issues, Plaintiff reported he was “feeling

17

good.” (R. at 423.) Plaintiff had been taking Zoloft 50mg daily,
but recently started taking 100mg per day. (R. at 423.) Dr. Hina
recommended that Plaintiff increase his Zoloft intake to 100mg
per day and stay on it, start seeing a psychologist and
psychiatrist, eat healthy, be optimistic and think positive, to
visit his mother, and to get out of bed even if he did not feel
like it. (R. at 424.)
On September 19, 2012, Plaintiff met with Dr. Hina to
obtain a refill on Zoloft, which had been “working for him.” (R.
at 418.) Dr. Hina again noted that Plaintiff’s depression had
“improved” and advised Plaintiff to continue taking Zoloft. (R.
at 419.)
On June 12, 2013, Plaintiff again met with Dr. Hina. (R. at
412-16.) Plaintiff reported that his mother had passed away in
April, that he was depressed, and that he had not been out of
the house other than a few times. (R. at 412.) Dr. Hina
increased Plaintiff’s Zoloft prescription to 150mg per day. (R.
at 416.) Two weeks later, Plaintiff reported that his “mood is
good” and Dr. Hina noted that his depression was “improved.” (R.
at 408.)
On July 30, 2013, Plaintiff discussed his mental health
with Dr. Hina. (R. at 404-407.) Plaintiff reported that he still
did not have a job, was sleeping all day, did not leave the
house, did not shave, was up all night, forgot things, and that

18

he still felt depressed. (R. at 404.) Notably, Plaintiff told
Dr. Hina that he was “thinking of applying for disability.” (R.
at 404.) Dr. Hina increased Plaintiff’s Zoloft prescription to
200mg per day. (R. at 407.)
As discussed above, Dr. Jeffrey Rakickas completed a
medical source statement on Plaintiff’s ability to do workrelated activities on October 27, 2013. (R. at 386-87.) Based on
Dr. Hina’s office notes, Dr. Rakickas concluded that Plaintiff
had “[s]evere depression and anhedonia precluding him from work
– Not responsive to SSRIs at this time.” (R. at 387.) Dr.
Rakickas further noted that Plaintiff suffered from “severe
depressed mood,” “poor concentration,” and “poor sleep.” (R. at
387.)
When Dr. Rakickas met Plaintiff three days later, Plaintiff
reported that his anxiety was “slightly better” and that he had
been able to get out of the house the week before. (R. at 398.)
Dr. Rakickas noted that Plaintiff’s depression was “stable” and
recommended that he continue taking the medication prescribed.
(R. at 400.) When Plaintiff returned to Dr. Rakickas on November
19, 2013, Dr. Rakickas noted that Plaintiff’s depression was
“stable” and ordered him to continue taking his medication. (R.
at 394.)
On November 7, 2013, Plaintiff was evaluated by Dr. P.
Lawrence Seifer for a psychological disability. (R. at 388-91.)

19

Plaintiff complained of anxiety and depression resulting from
the March 2011 robbery that led to his being fired. (R. at 388.)
He further explained, “I feel like I’m letting everybody down,”
“I get attacks since August 2011, whenever I think about going
out,” “I shake and sweat,” and “I tear up I get like light
headed.” (R. at 388.) Dr. Seifer noted that Plaintiff had never
been a psychiatric in-patient, was not in therapy, and had been
taking Zoloft. (R. at 388.) Plaintiff told Dr. Seifer he did not
shop, he did not use public transportation, he did not do house
work, he watched the news and read the newspaper, that he
thought he was “fine” in social interactions, and that he “likes
where he is” with respect to his ability to function
independently. (R. at 389.) Dr. Seifer observed that Plaintiff
cried when he spoke of the robbery and that his mood was
“depressed and tearful.” (R. at 389-90.) Plaintiff denied any
suicidal or homicidal ideation. (R. at 390.) Dr. Seifer
diagnosed Plaintiff with PTSD, dysthymic disorder, and panic
disorder with agoraphobia and assessed him with a Global
Assessment of Functioning (“GAF”) score of 50. (R. at 390.)
Finally, Dr. Seifer concluded that Plaintiff’s “moderate/severe
limitations are due to a combination of the physical and mental
status and appear to be enduring.” (R. at 390.)
On December 26, 2013, Plaintiff met with Dr. Mitchell to
discuss his left eye issues. (R. at 462-66.) During this eye

20

evaluation, Dr. Mitchell recommended a psychological
consultation for possible PTSD and further evaluation for
depression and other psychological factors which “appear to make
employment difficult for this claimant.” (R. at 466.)
On July 29, 2014, Plaintiff told his new primary care
provider, Dr. Doshi, that he had been off Zoloft for a year
because his prescription had not been refilled between the
switching of doctors, and that he did not want to restart it.
(R. at 571.) Dr. Doshi recommended that Plaintiff see a
therapist. (R. at 574.)
On November 19, 2014, Plaintiff told Dr. Doshi that his
wife had been having a marital affair, which caused him great
anxiety. In May 2015, Plaintiff returned to see Dr. Doshi, and
explained that he had been separated from his wife since
November 27, 2014 and was “[d]oing much better after [she]
left.” (R. at 553.) When Plaintiff met with Dr. Doshi on July
15, 2015, he reported that he was “feeling good,” despite having
recently divorced his wife and living out of his truck. (R. at
549.)
3.

Plaintiff’s Activities

Plaintiff testified to the ALJ that he helps around the
house, cooks, cuts coupons, and cleans up animal droppings in
the backyard. (R. at 58.) Plaintiff testified he had some
difficulty paying attention while driving (R. at 48), and that

21

he cannot concentrate long enough to read the sports section of
the newspaper or watch television. (R. at 59.) According to
Plaintiff, he does not leave the house often, except to drive
his son to work and, “on good days,” to get coffee. (R. at 27.)
Plaintiff lives in a house with his oldest son, his former
co-worker, and another individual. (R. 46.) Plaintiff testified
that he does not have difficulty climbing up the steps of his
current house to the second floor. (R. at 46.) Prior to living
in his current house, he was living in his truck for several
months. (R. at 54.)
On March 13, 2011, Plaintiff was terminated from his most
recent job as shift supervisor, for violating the pharmacy’s
policy while attempting to stop a store robbery. (R. at 49-50,
259.) Plaintiff then started collecting unemployment benefits
while applying for new jobs. (R. at 51-52.) Sometime thereafter,
Plaintiff stopped applying for jobs and he has not held a job
since being terminated as shift supervisor. (R. at 259.)
4.

State Agency Consultants

Plaintiff’s treatment records were reviewed by state agency
physicians and psychiatrists in December of 2013 and January,
February, and April of 2014. (R. at 76, 79-81, 108-114.)
In December 2013, Dr. Jan Jacobsen examined Plaintiff’s
medical records and prepared a mental residual functional
capacity assessment. (R. at 79-81.) Dr. Jacobson determined that

22

Plaintiff had no understanding and memory limitations, but did
have sustained concentration and persistence limitations. (R.
80.) Dr. Jacobson also opined that Plaintiff was not
significantly limited in his ability to carry instructions, was
moderately limited in his ability to maintain attention and
concentration for extended periods and his ability to perform
activities within a schedule, and was not significantly limited
in his ability to sustain an ordinary routine without special
supervision. (R. at 80.) Finally, Dr. Jacobson concluded that
Plaintiff had social interaction limitations and should not deal
directly with the public, but could sustain the basic demands
associated with relating adequately to coworkers and supervisors
within certain parameters. (R. at 81.) Dr. Joseph Wieliczko
reviewed the updated records on April 30, 2014 and affirmed Dr.
Jacobsen’s opinion. (R. at 109-14.)
On January 5, 2014, Dr. Gary Spitz, a state agency medical
consultant, reviewed Plaintiff’s limited vision records and
concluded that his visual impairments were non-severe. (R. at
76.) On February 6, 2014, Dr. Toros Shahinian reviewed
Plaintiff’s medical records and opined that the Plaintiff’s
diabetes, hypertension, and high cholesterol were non-severe.
(R. at 76.) Dr. Caroline Shubeck reviewed the updated records on
April 30, 2014 and affirmed the opinions of Dr. Spitz and Dr.
Shahinian. (R. at 108-109.)

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C.

ALJ Decision

In a written decision dated April 27, 2016, the ALJ 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 working as a presser, marker, or
factory helper. (R. at 32.)
At the first stage of the five-step sequential evaluation
process, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since March 13, 2011, the alleged
onset date of disability. (R. at 23.)
At step two, the ALJ determined that Plaintiff suffered
from the following “severe impairments: rosacea blepharitis,
essential hypertension, obesity, diabetes mellitus with diabetic
nephropathy, obesity, depression, [PTSD], and panic disorder
with agoraphobia.” (R. at 23.) The ALJ found that Plaintiff’s
hyperlipidemia was not severe because it is “well-controlled
with medication” and “the claimant has not alleged any
limitations due to this impairment and the record does not
contain any findings, which would support a limitation of his
physical abilities due to this disorder.” (R. at 24.) Further,
the ALJ found that Plaintiff’s alleged limitation due to neck
and back pain were “non-medically determinable impairments”
because “following complaints of lower back pain in November

24

2015, the claimant’s primary care provider ordered a lumbar
spine x-ray and referred to [sic] the claimant to the Cooper
Bone and Joint Institute,” but “the record does not contain
evidence that the claimant followed through with the recommended
treatment.” (R. at 24.)
Despite recognizing Plaintiff’s physical and mental
impairments as severe, at step three, the ALJ concluded that
Plaintiff’s impairments did not meet, or equal in severity, any
impairment found in the Listing of Impairments set forth in 20
C.F.R. Part 404. (R. at 24.) Specifically, the ALJ determined
that Plaintiff had “mild restriction” in activities of daily
living, “moderate difficulties” in social functioning, “moderate
difficulties” with regard to concentration, persistence or pace,
and no episodes of decompensation. (R. at 25.)
Between step three and step four, the ALJ determined that
Plaintiff possessed the RFC to perform “medium work” that is:
limited to occupations requiring no more than frequent near
visual acuity; no exposure to bright or flickering lights
as found in metal cutting or welding; no outdoor work; and
can understand and remember simple instructions in order to
carry out simple repetitive tasks with only occasional
exposure to the general public.
(R. at 26.) Although the ALJ found that Plaintiff’s physical and
mental impairments “could reasonably be expected to cause the
alleged symptoms,” she found Plaintiff’s statements concerning
the intensity, persistence and limiting effects of these

25

symptoms “are not entirely consistent with the medical evidence
and other evidence in the record.” (R. at 27.)
Based on written responses to interrogatories sent to a
vocational expert, the ALJ ultimately determined at steps four
and five that, although Plaintiff is unable to perform any past
relevant work, there are jobs that exist in significant numbers
in the national economy that he can perform, including those of
presser, marker, and factory helper. (R. at 31-32.)
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
“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

26

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
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

27

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
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, age, education, and
work experience. 20 C.F.R. § 1520(g); 20 C.F.R. 404.1560(c).

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B.

Substantial evidence supports the ALJ’s findings
regarding Plaintiff’s residual functional capacity

Plaintiff first argues that the ALJ erred between steps
three and four when she found that Plaintiff had an RFC to
perform medium work, subject to certain limitations. (Pl. Br. at
15.) According to Plaintiff, such a finding was not supported by
substantial evidence. (Pl. Br. at 15.) Specifically, Plaintiff
claims that the ALJ incorrectly gave “great weight” to the
opinion of a single psychological, non-examining state agency
doctor with respect to Plaintiff’s mental condition and that “no
doctors who opined on the Plaintiff’s physical condition were
given any significant weight.” (Pl. Br. at 17.) Plaintiff also
complains that the ALJ improperly dismissed the opinions of Dr.
Rakickas and Dr. Seifer. (Pl. Br. at 18-20.)
SSR 96-8p dictates that the RFC assessment be a “functionby-function assessment based upon all of the relevant evidence
of an individual's ability to do work-related activities.” In
order to meet the requirements of SSR 96-8p, the ALJ “must
specify the evidence that he relied upon to support his
conclusion.” Sullivan v. Comm'r of Soc. Sec., No. 12-7668, 2013
WL 5973799, at *8 (D.N.J. Nov. 8, 2013). Moreover, the ALJ's
finding of RFC must be “accompanied by a clear and satisfactory
explanation of the basis on which it rests.” Fargnoli, 247 F.3d

29

at 41 (quoting Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.
2011)).
It is well established that “the ALJ - not treating or
examining physicians or State agency consultants - must make the
ultimate disability and RFC determinations.” Chandler v. Comm'r
of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (citing 20 C.F.R.
§§ 404.1527(e)(1), 404.1546(c)). Furthermore, while an ALJ must
consider the opinions of treating physicians, “[t]he law is
clear . . . that the opinion of a treating physician does not
bind the ALJ on the issue of functional capacity” where it is
not well supported or there is contradictory evidence. Chandler,
667 F.3d at 361 (alteration in original) (quoting Brown v.
Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)); see also Coleman
v. Comm'r. of Soc. Sec. Admin., 494 Fed. App’x. 252, 254 (3d
Cir. Sept. 5, 2012) (“Where, as here, the opinion of a treating
physician conflicts with that of a non-treating, non-examining
physician, the ALJ may choose whom to credit but cannot reject
evidence for no reason or for the wrong reason.”) (quoting
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)).
When a conflict in the evidence exists, the ALJ retains
significant discretion in deciding whom to credit. Plummer, 186
F.3d at 429. The ALJ is entitled to weigh all evidence in making
its finding, and is not required to accept the opinion of any
medical expert. Astrue, 649 F.3d at 196. In discounting

30

evidence, the ALJ must give a clear explanation for why it is
doing so. Plummer, 186 F.3d at 429; Cotter, 642 F.2d at 704-05.
Up front, the Court disagrees with Plaintiff’s contention
that “no doctors who opined on the Plaintiff’s physical
condition were given any significant weight.” (Pl. Br. at 17.)
In determining Plaintiff’s RFC, the ALJ carefully considered all
available medical records reflecting the opinions of several
doctors who examined Plaintiff or reviewed Plaintiff’s medical
records between 2007 and 2015. (See R. at 26-31.) As discussed
above, the opinions considered by the ALJ include those of Dr.
Higgins, Dr. Hina, Dr. Khan, Dr. Hoffman, Dr. Rakickas, Dr.
Doshi, Dr. Mahamitra, Dr. Kairys, and Dr. Kline. The ALJ only
rejected the opinions of three state agency medical consultants
who concluded that Plaintiff’s physical impairments were nonsevere, instead finding that “evidence received at the hearing
[] supports a finding of severe impairments.” (R. at 30.)
Substantial evidence supports this decision.
Plaintiff also takes issue with the fact that the ALJ only
gave “great weight” to the psychological opinion of a single
non-examining state agency doctor, Dr. Jacobsen. (Pl. Br. at
17.) But Plaintiff overlooks the fact that the ALJ only did so
after specifically finding that Dr. Jacobsen’s opinions “are
supported by the limited objective mental health evidence and
limited treatment, and consistent with the record as a whole,

31

including the claimant’s subjective complaints and reported
activities of daily living.” (R. at 30.) Thus, the ALJ did not
simply take Dr. Jacobsen’s opinions at face value; she compared
Dr. Jacobsen’s opinions to all available medical records and to
Plaintiff’s own testimony, as she is permitted to do. Even Dr.
Seifer’s mental status examination, which is the most favorable
psychological opinion from Plaintiff’s perspective, “revealed
nothing more than a depressed and tearful mood with an
appropriate affect, good attention and concentration, intact
memory skills, and good social judgment.” (R. at 31.) The ALJ’s
reliance on Dr. Jacobsen’s opinion in assessing Plaintiff’s
mental impairments is thus supported by substantial evidence.
Next, Plaintiff argues that the ALJ improperly discounted
the October 27, 2013 opinion of Dr. Rakickas, in which Dr.
Rakickas concluded that Plaintiff “was unable to sit more than
0-2 hours, and stand for no more than 1 hour in an 8 hour work
day.” (Pl. Br. at 19.) The ALJ properly noted that Dr. Rakickas
had not examined Plaintiff prior to preparing this report and
nothing in Dr. Hina’s records, which Dr. Rakickas relied
exclusively upon, supported some of Dr. Rakickas’s findings,
including his recommendation that Plaintiff should avoid loud
noises at work. (R. at 29.) Indeed, when Dr. Rakickas actually
examined Plaintiff in the following days and weeks, he observed
no physical limitations. (R. at 398-402.) The ALJ’s decision to

32

assign Dr. Rakickas’s first opinion “little weight” is well
supported by the evidence in the record.
Plaintiff further contends that the ALJ failed to provide a
“substantive discussion” regarding Dr. Seifer’s findings that
Plaintiff “suffered from [PTSD], dysthymic disorder, and panic
disorder with agoraphobia, and found the severity to be
consistent with a GAF score of 50.” (Pl. Br. at 18.) Not so. The
ALJ specifically addressed Dr. Seifer’s examination report and
described Dr. Seifer’s diagnoses of Plaintiff’s PTSD and
depression. (R. at 28.) In fact, the ALJ actually found that all
of Dr. Seifer’s previously referenced diagnoses were “severe”
impairments. (R. at 23.) The ALJ also directly addressed
Plaintiff’s GAF score of 50. As the ALJ explained, a GAF of 50
is normally “indicative of serious symptoms or any serious
impairment in social, occupational, or school functioning,” but
a GAF score is “only a snapshot at a point in time, often based
on inadequate evidence of the claimant’s condition and treatment
course.” (R. at 30.) Indeed, the American Psychiatric
Association eliminated the use of the GAF scale in 2013, noting
its “conceptual lack of clarity” and “questionable psychometrics
in routine practice.” (R. at 30 n. 2.) But even if Plaintiff’s
GAF score of 50 were fully credited, it is possible he “could
perform some substantial gainful activity.” Hillman v. Barnhart,
48 F. App’x 26, 30 n.1 (3d Cir. 2002). Thus, the ALJ’s treatment

33

of Dr. Seifer’s psychological disability evaluation and decision
to assign little value to Plaintiff’s GAF score is supported by
substantial evidence in this record.
For all of these reasons, substantial evidence supports the
ALJ’s finding that Plaintiff had the RFC to perform the full
range of medium work:
except limited to occupations requiring no more than
frequent near visual acuity; no exposure to bright or
flickering lights as found in metal cutting or welding; no
outdoor work; and can understand and remember simple
instructions in order to carry out simple repetitive tasks
with only occasional exposure to the general public.
(R. at 26.)
C.

Substantial evidence supports the ALJ’s findings
regarding whether there were a significant number of
alternative jobs that Plaintiff was able to perform

Plaintiff next argues that the ALJ erred at step five by
relying on vocational expert testimony that was based on an
erroneous RFC1 and by improperly concluding that the alternative
jobs listed were “consistent with a worker being limited to
simple, repetitive tasks that can be learned with no more than
simple instruction.” (Pl. Br. at 23.)
In assessing a claimant's application for benefits, the ALJ
is required to: (1) ask, on the record, whether a vocational
expert's testimony is consistent with the Dictionary of

1

For the reasons discussed above, the Court finds that the RFC
was based on substantial evidence. Accordingly, the Court need
not address this argument a second time.
34

Occupational Titles2 (“DOT”); (2) elicit a reasonable explanation
where any inconsistency appears, and (3) explain in its decision
how the conflict was resolved. Zirnsak v. Colvin, 777 F.3d 607
(3d Cir. 2014); see also Burns v. Barnhart, 312 F.3d 113, 117
(3d Cir. 2002) (explaining that, where there is a conflict, an
explanation must be made on the record and the ALJ must explain
in his decision how the conflict was resolved). The Third
Circuit has emphasized that the presence of inconsistencies does
not mandate remand, so long as “substantial evidence exists in
other portions of the record that can form an appropriate basis
to support the result.” Zirnsak, 777 F.3d at 617 (quoting
Rutherford v. Barnhart, 299 F.3d 546, 557 (3d Cir. 2005)).
Here, the ALJ asked a vocational expert, via interrogatory,
whether jobs exist in the national economy for an individual
with the claimant’s age, education, work experience, and RFC.
(R. at 336.) As reflected in the ALJ’s report, the ALJ
determined that Plaintiff had the ability to “understand and
remember simple instructions in order to carry out simple
repetitive tasks with only occasional exposure to the general

2

The Dictionary of Occupational Titles is a publication of the
United States Department of Labor that contains descriptions of
the requirements for thousands of jobs that exist in the
national economy. Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir.
2002).
35

public.” (R. at 26.) This was consistent with the interrogatory
posed to the vocational expert. (R. at 336.)
In response to the ALJ’s interrogatory, the vocational
expert listed three unskilled positions that could be performed
by an individual with Plaintiff’s RFC (presser, marker, and
factory helper), as well as the number of jobs that exist in the
national economy for each. (R. at 337.) The vocational expert
additionally confirmed there were no conflicts between her
responses and the occupational information contained in the DOT
(R. at 337), thereby satisfying the first Sirnsak factor.
As there are no apparent defects or conflicts in the
vocational expert’s testimony, substantial evidence supports the
ALJ’s determination that Plaintiff could perform work existing
in the national economy.
V. CONCLUSION
For all of these reasons, the Court finds that substantial
evidence supports the ALJ’s decision to deny Plaintiff benefits,
and that it should be affirmed. An accompanying Order will be
entered.

September 28, 2017
Date

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

36