KALB v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Jerome B. Simandle on 12/21/18. (dd, )

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

DONNA LYNN KALB,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 17-5262 (JBS)

COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.

APPEARANCES:
Robert Anthony Petruzzelli, Esq.
JACOBS, SCHWALBE & PETRUZZELLI, PC
Woodcrest Pavilion
10 Melrose Avenue, Suite 340
Cherry Hill, NJ 08003
Attorney for Plaintiff
Heather Tashman Fritts, Special Assistant U.S. Attorney
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 Spring Garden Street, 6th Floor
Philadelphia, PA 19123
Attorney for Defendant
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 the
application of Plaintiff Donna Lynn Kalb (“Plaintiff”) for
Social Security Disability Benefits and Supplemental Security
Income under Title II and XVI of the Social Security Act, 42

U.S.C. § 401 et seq. Plaintiff, who suffers from diabetes,
neuropathy, and lupus, was denied benefits for the period of
disability from March 20, 2013, the alleged onset date of
disability, to January 15, 2016, the date on which the
Administrative Law Judge (“ALJ”) issued a written decision.
In the pending appeal, Plaintiff contends that the ALJ’s
decision must be reversed and remanded on three grounds. To that
end, Plaintiff contends that the ALJ erred by: (1) failing to
properly evaluate and weigh the medical evidence of record,
including the opinions of Plaintiff’s treating physician; (2)
failing to make a finding of disability based on the existence
of a listing level impairment consistent with Listing 1.04 in
the Listings of Impairments; and (3) failing to consider all of
Plaintiff’s impairments in assessing her Residual Function
Capacity (“RFC”). For the reasons that follow, the Court will
affirm the ALJ’s decision.
II.

BACKGROUND
A.

Procedural History

Plaintiff filed an application for Social Security
Disability Benefits on April 16, 2013 (R. at 240-44), and an
application for Supplemental Security Income on April 24, 2013
(R. at 245-50), alleging a disability onset date of March 20,
2013. Plaintiff’s claim was denied by the SSA on July 15, 2013.
(R. at 175-80). Her claim was again denied upon reconsideration

2

on December 16, 2013. (R. at 185-90.) A hearing was held before
ALJ Karen Shelton on November 24, 2015. (R. at 48-118.) The ALJ
issued her opinion on January 15, 2016, denying benefits. (R. at
23-47.) On May 17, 2017, the Appeals Counsel denied Plaintiff’s
request for review. (R. at 3-8.) This appeal timely follows.
B.

Personal and Medical History

Plaintiff was 50 years old on the alleged disability onset
date and 52 years old at the time of her hearing before the ALJ.
(R. at 61.) She graduated from high school and subsequently
earned a degree in office automation. (R. at 65.) Plaintiff
subsequently worked for several years at various law firms,
before spending ten years as a foreclosure coordinator at a
mortgage company. (R. at 66-67.) In late 2012, Plaintiff left
the mortgage company to work at a mortgage foreclosure law firm
that laid her off in March 2013. (R. at 69-70, 73-74.) She then
reapplied to work at the mortgage company she had previously
left, but the mortgage company decided not to hire her back. (R.
at 74.) Plaintiff then collected unemployment benefits while
looking for other jobs. (R. at 75-76.) She has not worked since.
Plaintiff was diagnosed with lupus in 1993 (R. at 406),
which was in remission until sometime in 2012. (R. at 433.) She
was also diagnosed with diabetes mellitus in November 2012.
(Id.)

3

On March 22, 2013, Plaintiff visited Dr. Vincent Savarese,
M.D., an endocrinologist, for a follow up relating to poor
glycemic control. (R. at 421.) Dr. Savarese observed that
Plaintiff’s blood glucose control was improving and that she had
been working hard on diet and exercise. (Id.) Plaintiff
complained of persistent lower extremity pain and reported that
she had been recently laid off. (Id.) Dr. Savarese noted a
“[m]arked improvement” in Plaintiff’s diabetes and recommended
“no changes for now but instructed on dose titration of both
insulin, particularly decreasing NovoLog with meals if having
frequent postprandial hypoglycemia,” as well as to “[c]ontinue
to work on diet and exercise. (Id.)
On April 12, 2013, Dr. Savarese observed that Plaintiff had
full muscle strength in her upper and lower extremities with no
atrophy noted. (R. at 437.) He also assessed Plaintiff with
having diabetic peripheral neuropathy and prescribed her with
60mg Cymbalta per day. (R. at 438.) The following month,
Plaintiff returned to Dr. Savarese who observed that Cymbalta
improved her symptoms, though her neuropathic pain remained
present. (R. at 433.) Dr. Savarese also noted that Plaintiff’s
lupus was no longer in remission. (Id.)
A September 6, 2013 MRI of Plaintiff’s lumbar spine
revealed: a disc herniation at L4-L5 indenting the ventral
thecal sac; disc herniation and disc bulge at L3-L4 also
4

indenting the ventral thecal sac; L3-L4 lateral recess and
bilateral neural foramina with the disc contacting the exiting
right L3 nerve root; disc bulge at L5-S1 indenting the ventral
thecal sac; and straightening of the normal lordosis. (R. at
617.) An MRI of Plaintiff’s cervical spine showed: a disc
herniation at C3-C4 indenting the ventral thecal sac; disc
bulges at C5-C6 and C6-C7 indenting the ventral thecal sac;
narrowing bilateral neural foramina; and straightening of the
normal lordosis. (R. at 619.)
From November 15, 2013 through July 15, 2015, Plaintiff
attended pain management with RA Pain Services of Cherry Hill,
consistently complaining of neck, lower back, and generalized
joint pain. (R. at 702-58, 799-895.) On several occasions, she
was noted as using a cane to ambulate. (R. at 705, 715, 721,
727, 738, 744, 750, 756, 802, 808, 815, 821, 827, 834, 841, 848,
862, 868, 874, 880, 886, 892.) On examination, Plaintiff had
normal muscle strength and tone, and she was able to walk on her
heels and toes. (Id.) On March 24, 2014, Plaintiff complained of
diffuse pain from her neck down with some numbness traveling to
her arms and legs, but was told she was not a surgical candidate
for her cervical spine degenerative changes. (R. at 718.) By
August 2014, Plaintiff reported she was “hanging in there” and
doing well with her current medication regimen. (R. at 877.)

5

On March 5, 2014, Dr. Savarese prepared a physical residual
functional capacity assessment wherein he opined that
Plaintiff’s symptoms would frequently interfere with her
attention and concentration required to perform simple workrelated tasks; she would not be required to lie down during a
workday in excess of her normal breaks or lunch; she could walk
a half a block before needing to rest; she could sit and
stand/walk for five minutes each at one time; she would need a
job which permits shifting positions from sitting, standing, or
walking; she would need to take two or three unscheduled breaks
during an eight-hour workday; she could occasionally lift less
than 10 pounds; and she would likely be absent once or twice a
month. (R. at 976-78.) Ultimately, Dr. Savarese opined that
Plaintiff was capable of working an eight-hour workday, five
days a week with the limitations noted. (R. at 977.)
On or before March 19, 2014, Plaintiff started treating
with Dr. James Dwyer, D.O., a rheumatologist. (R. at 966-68). On
October 22, 2014, Plaintiff reported to Dr. Dwyer that “since
last seen, she is doing somewhat better,” but that she remains
uncomfortable and fatigued. (R. at 961.) On examination, Dr.
Dwyer noted that Plaintiff walked with a normal gait, had no
swelling, warmth, or erythema in her joints, had a full range of
motion in all joints with the exception of generalized
tenderness in her upper and lower extremities with some light
6

touch sensation changes in her lower extremity consistent with
known diabetic neuropathy. (R. at 961.)
On February 9, 2015, Plaintiff revisited Dr. Dwyer, who
this time noted that Plaintiff was taken off steroids because of
problems with her diabetes and recent laboratory studies, which
demonstrated improvement in her inflammatory markers. (R. at
959.) Plaintiff also reported to Dr. Dwyer that her depression
had improved with Cymbalta. (Id.) On examination, Dr. Dwyer
again noted that Plaintiff walked with a normal gait, had no
swelling, warmth, or erythema in her joints, had full range of
motion in all joints with the exception of pain with range of
motion in her lower extremity from her lumbar spine, and had
full range of motion in her cervical spine with no specific
tenderness. (R. at 959.)
A June 3, 2015 MRI of Plaintiff’s cervical spine revealed:
disc bulges at C4-C5 and C5-C6 that were associated with
bilateral facet hypertrophy and encouragement of the neural
foramina, as well as a partial fusion anomaly in the C2 odontoid
and a probably thyroid module. (R. at 772.) An MRI of
Plaintiff’s lumbar spine showed: disc bulges at L3-L4 and L4-L5
associated with bilateral facet hypertrophy and encroachment of
the neural foramina with moderate central disc herniation at L5S1. (R. at 774.)

7

On August 10, 2015, Dr. Dwyer observed on physical
examination that Plaintiff had a normal gait with no swelling,
warmth, or erythema in any joints and full range of motion of
all joints except for diffuse tenderness without localization.
(R. 956.) Additionally, Dr. Dwyer noted that recent laboratory
studies showed her lupus at the present time was negative. (Id.)
C.

State Agency Consultants

On June 25, 2013, Plaintiff visited Dr. Jonathan Wahl,
M.D., for a consultative examination. (R. at 525-27.) During
this examination, Plaintiff was “comfortable, anxiety free, and
in no apparent distress.” (R. at 525.) Plaintiff reported
burning neuropathy in her lower extremities, hip pain, and
dizziness caused by Type I diabetes, as well as depression with
decreased sleep and increased appetite. (Id.) On examination,
Dr. Wahl noted that Plaintiff had a fine tremor in both hands,
and some discomfort with lumbar range of motion movements. (R.
at 526.) Plaintiff could not perform heel-to-toe walking because
of pain in her toes and heels and refused to squat. (Id.) Dr.
Wahl opined that Plaintiff had minimal-to-moderate limitation
for activities requiring heel-toe walking any more than
infrequently, and that she had minimal-to-moderate limitation
for prolonged ambulation. (Id.)
On July 17, 2013, Dr. Wahl prepared an addendum, wherein he
noted that, while Plaintiff had somewhat decreased range of

8

motion in her elbows, she had full range of motion of both
shoulders and wrists, and unimpaired functioning of both hands.
(R. at 532.) Dr. Wahl observed that Plaintiff had no swelling,
effusion, tenderness, heat, or deformity in her wrists or hands,
and full range of motion in her knees, hips, and ankles. (Id.)
He also noted that Plaintiff retained full motor strength in her
upper and lower extremities with no atrophy or weakness. (Id.)
Dr. Wahl opined that Plaintiff had no limitation in her ability
to feel, finger, handle, or reach with a fine tremor in both
hands; she could sit, stand, and walk for four hours each in an
eight-hour work day; she could operate foot controls two and a
half hours in an eight-hour day; she could lift and carry 11-20
pounds frequently to constantly; she could continuously climb
stairs, ramps, ladders, and scaffolds with 15 minutes after one
hour of activity; and her ability to balance, stoop, kneel,
crouch, and crawl was unimpaired; but that she required
positional changes and breaks of 15 minutes after one hour of
standing, sitting, or walking. (R. at 533-34.) Dr. Wahl did not
believe an assistive device was needed. (R. at 533.)
Dr. Jyorthsna Shastry, M.D., a State agency medical
consultant, reviewed Plaintiff’s medical records and assessed
her physical residual functional capacity. (R. at 134-35.) Dr.
Shastry opined that Plaintiff could perform light work with
occasional stooping, kneeling, crouching, crawling, and climbing
9

ramps, stairs, ladders, ropes, or scaffolds. (Id.) Dr. Seung
Park, M.D., another State agency medical consultant, reviewed
Plaintiff’s medical records and affirmed Dr. Shastry’s physical
residual functional capacity in all respects.
D.

Plaintiff’s Activities

In an April 2013 Adult Function Report, Plaintiff reported
that she lived alone, cared for pets, tended to personal care,
prepared simple meals, washed laundry, cleaned when she could,
drove a car, shopped in stores, handled her personal finances,
watched television, and visited with friends and family at their
homes. (R. at 285-89.)
During a hearing held by the ALJ on November 24, 2015,
Plaintiff testified that she drove a car, prepared meals,
dressed herself, read books and magazines, played with her pets,
and shopped in stores. (R. at 285-89.) She also testified that
she has “extreme chronic pain” due to her lupus (R. at 77),
which she experiences 24 hours per day, 7 days per week. (R. at
114.) According to Plaintiff, she has flare ups of lupus that
occur four to five times per month, lasting anywhere from one to
three days. (R. at 85.) Since she was hospitalized in January
2013, Plaintiff reported that she has had “one flare after
another.” (R. at 80, 89.) Plaintiff testified that she could
probably return to her prior job at the mortgage company,
subject to certain limitations. (R. at 106-07) (Q: Do you think

10

that if you got the job back at the mortgage place, that you’d
be able to do it? A: As long as they could deal with me getting
up and moving around all the time. Q: How often would that be?
A: Probably every hour.).
E.

Vocational Expert Testimony

During Plaintiff’s hearing in front of the ALJ, the ALJ
also heard testimony from William Slaven, a vocational expert.
(R. at 110-113.) Based on Plaintiff’s testimony, the vocational
expert classified her past work as a Delinquent Account Clerk,
DOT 241.357-010, which is skilled work that is sedentary. (R. at
111.) The vocational expert opined that a person with
Plaintiff’s RFC could perform work as a Delinquent Account
Clerk, both as listed in the DOT, and as it was actually
performed by Plaintiff. (R. at 112-13.)
F.

ALJ Decision

In a written decision dated January 15, 2016, the ALJ found
that Plaintiff was not disabled within the meaning of the Social
Security Act at any time between the alleged onset date of
disability and the date of the ALJ’s written decision because,
consistent with Plaintiff’s age, education, work experience, and
RFC, she was capable of working in her past job as a delinquent
account clerk. (R. at 39.)
At the first stage of the five-step sequential evaluation
process, the ALJ determined that Plaintiff had not engaged in

11

substantial gainful activity since March 20, 2013, which was on
or around the date she stopped working. (R. at 28.) The ALJ also
noted that “the claimant applied for and received unemployment
benefits after the alleged onset date,” which “shows that the
claimant was actively applying for work, claimed to be available
for work and held themselves out [to] another agency to be able
and willing to work during the adjudicative period.” (R. at 2829.) “While acceptance of unemployment benefits in no way
impacts a medical determination of disability,” the ALJ stated,
“such acceptance . . . impacts the claimant’s overall
credibility regarding self-reported information.” (R. at 29.)
Next, at step two, the ALJ determined that Plaintiff had
the following “severe” impairments: systemic lupus erythematous;
diabetes mellitus; and degenerative disc disease of the cervical
and lumbar spine. (Id.) The ALJ found Plaintiff’s alleged
gastrointestinal issues to be “non-severe” because a February
2015 office visit and diagnostic imagery from April and May 2015
revealed “stable findings with normal gastric emptying,” and
that “any gastrointestinal problems were either acute and of
short-duration, or asymptomatic and did not impose more than
minimal work-related limitations, and thus are non-severe.”
(Id.) The ALJ also found that Plaintiff’s medically determinable
mental impairments of depression and anxiety, considered singly
and in combination, “do not cause more than minimal limitation
12

in [Plaintiff’s] ability to perform basic mental work activities
and are therefore non-severe.” (Id.) The ALJ considered the four
broad functional areas set out in the disability regulations for
evaluating mental disorders and in section 12.00C of the Listing
of Impairments known as the “paragraph B” criteria, examined
Plaintiff’s medical records and other relevant evidence, in
detail, and described the reasons she found Plaintiff’s mental
health impairments to be “non-severe,” including that Plaintiff
had received little treatment for these conditions and admitted
that she could perform her old job if allowed to stand and
stretch when needed (R. at 29-31.)
At step three, the ALJ concluded that none of Plaintiff’s
impairments or combination of impairments met or medically
equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1, including those set
forth in Listings 1.04, 11.14, and 14.02. (R. at 31.)
Between step three and step four, the ALJ determined that
Plaintiff possessed the RFC to perform “sedentary work,” as
defined in C.F.R. §§ 404.1567(a) and 416.967(a), except that:
[S]he can stand/walk 2 hours in an 8-hour workday; sit
6 hours in an 8-hour workday (but requires the
opportunity to switch positions for 5 minutes per
hour); lift/carry up to 10 pounds; occasionally climb
ramps/stairs, but never climb ladders, ropes or
scaffolds; occasionally stoop, kneel, crouch and crawl
and occasionally use of [sic] foot controls/pedals.
She cannot reach overhead or tolerate any exposure to
extreme heat/cold. Finally, she can only occasionally
13

push/pull
ambulate.

with

the

feet

and

requires

a

cane

to

(R. at 31.)
In determining Plaintiff’s RFC, the ALJ considered “all
symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence
and other evidence.” (R. at 32.) Although the ALJ found that
Plaintiff’s impairments “could reasonably be expected to cause
the alleged symptoms,” she concluded that Plaintiff’s statements
“concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons
explained in this decision.” (R. at 33.) In doing so, the ALJ
analyzed the medical evidence in the record with respect to each
of Plaintiff’s impairments, as well as the opinions of various
treating physicians and State agency medical consultants. (R. at
31-39.)
In crafting the RFC, the ALJ assigned “little weight” to
the March 2014 Physical RFC Assessment prepared by Plaintiff’s
treating endocrinologist, Dr. Savarese, after finding “it is a
gross overstatement of [Plaintiff’s] mental health limitations,
the limiting effect(s) of her experience of pain/other symptoms
and her physical limitations,” and, according to the ALJ, “[t]he
record simply does not corroborate Dr. Saverese’s opinion and
does not reveal the amount or frequency of positional changes
that would have been observed in office visits if [Plaintiff]
14

were limited as suggested in this opinion.” (R. at 38.) The ALJ
also assigned “little weight” to the May 2013 Residual
Functional Capacity Questionnaire Jamie Strause prepared on
Plaintiff’s behalf, because:
[I]t
is
a
gross
overestimate
of
[Plaintiff’s]
functional limitations and is inconsistent with her
broad range of daily activities, which suggests some
difficulty with prolonged walking/standing, but does
not reveal any difficulty with prolonged sitting (so
long as she is given the ability to switch positions
as set forth in the [RFC] above.
(R. at 37.) With respect to Ms. Strause, the ALJ further noted
that “as an advanced practice nurse, [she] is not an acceptable
medical source,” and her opinion thus carries “no weight.” (Id.)
(citing 20 C.F.R. §§ 404.1513, 416.913). Moreover, the ALJ
assigned “partial weight” to Dr. Wahl’s opinions regarding
Plaintiff’s ability to walk, stand, lift/carry, climb, stoop,
kneel, crouch, crawl, and sit, and “great weight” to Dr. Wahl’s
opinions regarding her ability to operate foot controls and
tolerate environmental conditions because they are “consistent
with the record as a whole.” (Id.) Furthermore, the ALJ assigned
“little weight” to three forms filled out by various treating
physicians which indicated that Plaintiff was unable to work
between February 2014 and November 2016 because “these forms do
not provide a function-by-function analysis of [Plaintiff’s]
limitations” and “these opinions are on the issue of disability,
which is an issue that is reserved to the Commissioner.” (R. at
15

38-39.) Finally, the ALJ assigned “partial weight” to the State
agency medical consultants’ opinions that Plaintiff could
stand/walk 6 hours in an 8-hour workday, finding instead that
Plaintiff “is best suited to a range of work at the sedentary
exertional level,” while giving “great weight” to their opinions
with respect to Plaintiff’s ability to climb ramps/stairs,
stoop, kneel, crouch, and crawl because these limitations “are
consistent with the record and [Plaintiff’s] admissions
regarding her daily activities.” (R. at 38.)
Based on Plaintiff’s RFC and the vocational expert’s
testimony from the November 24, 2015 hearing, the ALJ found, at
step four, that Plaintiff was able to perform her past relevant
work as a delinquent account clerk. (R. at 39.) Accordingly, the
ALJ found that Plaintiff was not under a disability, as defined
in the Social Security Act, from March 20, 2013 through the date
of the decision. (Id.)
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); see also 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

16

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); see also 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, those findings bind the
reviewing court, 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 an error or oversight 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

17

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
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(s) 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. Between steps three and four, the ALJ
determines the claimant’s RFC. 20 C.F.R. § 404.1545. Step four
requires the ALJ to consider whether, based on his or her RFC,
18

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, at
step five 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), 404.1560(c).
B.

Analysis

Plaintiff argues that the ALJ erred by: (1) failing to
properly evaluate and weigh the medical evidence of record,
including the opinions of Plaintiff’s treating physician; (2)
failing to make a finding of disability based on the existence
of a listing level impairment consistent with Listing 1.04 in
the Listings of Impairments; and (3) failing to consider all of
Plaintiff’s impairments in assessing her RFC. The Court
addresses each argument in turn.
1.

Substantial evidence supports the ALJ’s decision
to discount Plaintiff’s treating physician, Dr.
Savarese

Plaintiff first avers that the ALJ erred in formulating her
RFC between steps three and four by assigning “little weight” to
the opinion of Plaintiff’s treating endocrinologist, Dr.
Savarese. (Pl.’s Br. at 7-10.) Specifically, Plaintiff argues
that the ALJ improperly discounted Dr. Savarese’s March 5, 2014

19

opinion that, because of her symptoms, Plaintiff would need to
take unscheduled breaks, possibly two to three times per day and
lasting up to thirty minutes at a time, and that Plaintiff would
also likely miss one or two days of work per month. (Id. at 8-9)
(citing R. at 976-78). For the reasons explained below, the
Court finds that substantial evidence supports the ALJ’s
treatment of Dr. Savarese’s opinion.
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
at 41 (quoting Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.
1981)).
“[T]he ALJ — not treating or examining physicians or State
agency consultants — must make the ultimate disability and RFC
determinations.” Chandler, 667 F.3d at 361; see also 20 C.F.R §§
404.1527(e)(1). The ALJ is entitled to weigh all the evidence in
making his or her finding. Brown v. Astrue, 649 F.3d 193, 196
(3d Cir. 2011). It is established that, “[a]lthough treating and
20

examining physician opinions often deserve more weight . . .
[t]he law is clear . . . that the opinion of a treating
physician does not bind the ALJ on the issue of functional
capacity.” Chandler, 667 F.3d at 361 (citing Brown, 649 F.3d at
197 n.2). Where inconsistency in evidence exists, the ALJ
retains significant discretion in deciding whom to credit.
Plummer, 186 F.3d at 429. However, the ALJ “cannot reject
evidence for no reason or for the wrong reason.” Id. (quoting
Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)); Cotter,
642 F.2d at 704-05.
In determining Plaintiff’s RFC, the ALJ carefully
considered and thoroughly discussed all available medical
records and the opinions of several doctors who examined
Plaintiff, including Dr. Savarese. (R. at 31-39.) Ultimately,
the ALJ assigned “little weight” to Dr. Savarese’s opinion after
finding “it is a gross overstatement of [Plaintiff’s] mental
health limitations, the limiting effect(s) of her experience of
pain/other symptoms and her physical limitations,” and because
“[t]he record simply does not corroborate Dr. Saverese’s opinion
and does not reveal the amount or frequency of positional
changes that would have been observed in office visits if
[Plaintiff] were limited as suggested in this opinion.” (R. at
38.)

21

Substantial evidence supports the ALJ’s decision to
discount Dr. Savarese’s opinion. For example, Dr. Savarese’s
opinion was inconsistent with treatment notes from Plaintiff’s
pain management physicians showing she had normal muscle
strength and was able to walk on her heels and toes (R. at 705,
715, 721, 727, 738, 744, 750, 756, 802, 827, 834-35, 841-42,
848-49, 855-56, 862, 868, 874, 880, 886, 892), as well as Dr.
Dwyer’s treatment notes indicating that Plaintiff walked with a
normal gait, had no swelling, warmth, or erythema in her joints,
and had full range of motion in all joints with the exception of
generalized tenderness in her upper and lower extremities with
some light touch sensation changes in her lower extremity
consistent with known diabetic neuropathy. (R. at 956, 959,
961.) Dr. Savarese’s opinion was also inconsistent with Dr.
Wahl’s examination (R. at 532), and the opinions of the State
agency medical consultants. (R. at 134-35, 164-66.) On this
record, the ALJ did not err.
2.

Substantial evidence supports the ALJ’s step
three finding that Plaintiff did not meet the
requirements of Listing 1.04

Plaintiff next argues that the ALJ failed to make a finding
that Plaintiff meets or equals a level impairment consistent
with Listing 1.04A. (Pl. Br. at 10-13.) To that end, Plaintiff
maintains “there is sufficient evidence in the record that meets
or equals a Listing level impairment consistent with 1.04(A).”

22

Listing 1.04A. (Id. at 12.) As relevant here, the Listing
requires that a claimant have:
Disorders of the spine. (e.g., herniated nucleus
pulposus,
spinal
arachnoiditis,
osteoarthritis,
degenerative disc disease, facet arthritis, verbal
fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
A.

Evidence
of
nerve
root
compression
characterized by neuro-anatomic distribution
of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is
involvement of the lower back, positive
straight-leg
raising
test
(sitting
and
supine). . . .

20 C.F.R. §§ 404.1512(g), 404.1560(c). The ALJ found:
Although [Plaintiff] has degenerative disc disease of
the cervical and lumbar spine, a thorough review of
the medical evidence fails to reveal (a) neuroanatomic distribution of pain, limitation of motion of
the spine, motor loss accompanied by sensory or reflex
loss; (b) spinal arachnoiditis, requiring the need to
change positions/ posture more than once every two
hours; nor (c) an inability to ambulate effectively.
(R. at 31) (emphasis added). The ALJ’s finding is consistent
with the notes of several physicians that concluded Plaintiff
had full strength with no evidence of atrophy. (R. at 434, 437,
532, 705, 715, 721, 727, 738, 744, 750, 745, 802, 808, 815, 821,
827, 834-35, 841-42, 848-49, 855-56, 862, 868, 874, 880, 886,
892.) Accordingly, substantial evidence supports the ALJ’s
findings regarding Listing 1.04.

23

3.

The ALJ adequately considered all of Plaintiff’s
“severe” and “non-severe” impairments in
formulating her RFC

Finally, Plaintiff argues that the ALJ failed to properly
consider all of Plaintiff’s “severe” and “non-severe”
impairments in formulating her RFC. (Pl. Br. at 13-18.)
Specifically, Plaintiff avers that the ALJ overlooked, ignored,
or improperly evaluated Plaintiff’s cervical and lumbar
radiculopathy, mental impairments, lupus, and peripheral
neuropathy. To the contrary, the Court finds that substantial
evidence supports the ALJ’s determination that, notwithstanding
these conditions, Plaintiff could perform a range of sedentary
work.
Between steps three and four, the ALJ is required to assess
all of the claimant’s impairments - even ones that are not
“severe” - in combination, when making the RFC determination.
See 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your
medically determinable impairments of which we are aware,
including your medically determinable impairments that are not
‘severe,’ as explained in §§ 404.1520(c), 404.1521, and
404.1523, when we assess your residual functional capacity.”).
SSR 96–8p is clear about what the ALJ must consider:
In assessing RFC, the adjudicator must consider limitations
and restrictions imposed by all of an individual's
impairments, even those that are not “severe.” While a “not
severe” impairment(s) standing alone may not significantly
limit an individual's ability to do basic work activities,
it may—when considered with limitations or restrictions due
24

to other impairments—be critical to the outcome of a claim.
For example, in combination with limitations imposed by an
individual's other impairments, the limitations due to such
a “not severe” impairment may prevent an individual from
performing past relevant work or may narrow the range of
other work that the individual may still be able to do.
SSR 96–8p (emphasis added); see also Soboleski v. Comm'r of Soc.
Sec., 2015 WL 6175904, at *2 (D.N.J. Oct. 20, 2015) (explaining
that a finding of non-severity “does not obviate the need for a
separate analysis of how Plaintiff's impairment affects her
RFC”). The ALJ must therefore consider all relevant evidence
when determining an individual's RFC. See, e.g., Fargnoli, 247
at 41.
Here, the ALJ accounted for all of Plaintiff’s “severe” (R.
at 32-39) and “non-severe” impairments (R. at 29-31), before
finding that she possessed the RFC to perform “sedentary work,”
except that:
[S]he can stand/walk 2 hours in an 8-hour workday; sit
6 hours in an 8-hour workday (but requires the
opportunity to switch positions for 5 minutes per
hour); lift/carry up to 10 pounds; occasionally climb
ramps/stairs, but never climb ladders, ropes or
scaffolds; occasionally stoop, kneel, crouch and crawl
and occasionally use of [sic] foot controls/pedals.
She cannot reach overhead or tolerate any exposure to
extreme heat/cold. Finally, she can only occasionally
push/pull with the feet and requires a cane to
ambulate.
(R. at 31.) As the ALJ explained:
In sum, the above [RFC] assessment is supported by
[Plaintiff’s] broad range of daily activities, her
good response to pain medications, her physical
examinations (as documented above) and the opinion
evidence,
as
set
forth
above.
Considering
the
25

combination of her neuropathy and spinal impairments,
I find it prudent to limit her to a range of work at
the
sedentary
exertional
level,
but
with
the
additional restrictions adopted herein. Though her
cane was not prescribed, giving [Plaintiff] the
benefit of the doubt, I have accommodated [her]
purported need for this device in the above [RFC].
Finally, in light of her limited and painful range of
motion of her shoulders and purported difficulty with
overhead reaching, I find it prudent to limit
[Plaintiff] to work with no overhead reaching and
lifting/carrying up to 10 pounds.
(R. at 39.) The Court finds that the ALJ fully considered all of
Plaintiff’s severe and non-severe impairments, including her
cervical and lumbar radiculopathy, mental impairments, lupus,
and peripheral neuropathy, and reasonably determined that
Plaintiff could perform sedentary work with the limitations set
forth in the RFC. Accordingly, substantial evidence supports the
ALJ’s treatment of Plaintiff’s impairments in the formulation of
her RFC.
V.

CONCLUSION
For the foregoing reasons, the ALJ’s decision will be

affirmed. An accompanying order will be entered.

December 21, 2018
Date

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

26