GUZMAN v. COMMISSIONER OF SOCIAL SECURITY
Filing
20
OPINION. Signed by Judge Noel L. Hillman on 12/12/2018. (rss, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ELIZABETH GUZMAN,
1:17-cv-06590-NLH
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:
JAMES LANGTON
LANGTON & ALTER, ESQS.
1600 ST. GEORGES AVENUE
PO BOX 1798
RAHWAY, NJ 07065
On behalf of Plaintiff
QUINN E.N. DOGGETT
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET - SIXTH FLOOR
PHILADELPHIA, PA 19123
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 Supplemental
Security Income (“SSI”) 1 under Title XVI of the Social Security
1
Supplemental Security Income is a program under the Social
Security Act that provides supplemental security income to
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 between June 17, 2009 and April 16, 2013.
For the reasons stated below, this Court will affirm that
decision.
I.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, Elizabeth Guzman, claims that she is entitled
to SSI due to cervical and lumbar degenerative disc disease
with radiculopathy, diabetes mellitus, carpal tunnel syndrome,
asthma, depression, and anxiety.
Plaintiff had previously
filed for SSI claiming a disability onset date on June 17,
2009. 2
The Commissioner denied that claim on August 4, 2011, a
decision the Appeals Council upheld on February 21, 2013.
Plaintiff appealed to the District Court on May 2, 2013.
The
court issued its decision on June 30, 2015 reversing and
remanding the matter for further proceedings.
After the Appeals Council upheld the denial of her SSI
individuals who have attained age 65, or are blind or
disabled. 42 U.S.C. § 1381 et seq.
2
The claimant was 39 years old at the time of her first claim
for SSI, which is defined as a younger individual (age 18-49).
(20 C.F.R. § 416.963.)
2
claim for the alleged onset of disability of June 17, 2009,
but before she appealed the decision to the District Court,
Plaintiff filed a second application for SSI on April 17, 2013
alleging that date as her onset of disability.
While her
appeal before the District Court was pending, the Commissioner
granted her second SSI disability claim on November 10, 2014.
Because of the approval of her second SSI claim for
disability beginning on April 17, 2013, the issue before the
ALJ on remand from the District Court for Plaintiff’s first
claim became whether Plaintiff was disabled from June 17, 2009
through April 16, 2013.
A hearing was held on May 26, 2016,
and the ALJ issued his decision on May 10, 2017 denying
Plaintiff’s claim for disability between June 17, 2009 and
April 16, 2013.
2017.
The ALJ’s decision became final on July 10,
Plaintiff brings this civil action for review of the
Commissioner’s decision.
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 social security benefits.
55 F.3d 900, 901 (3d Cir. 1995).
Ventura v. Shalala,
A reviewing court must
uphold the Commissioner’s factual decisions where they are
3
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.
1984).
See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
“[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.”
4
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 non-medical 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 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).
5
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 SSI
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 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.
See 42 U.S.C. § 1382c(a)(3)(A).
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
6
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 3 for
determining disability that require application of a five-step
sequential analysis.
See 20 C.F.R. § 416.920.
This five-step
process is summarized as follows:
1.
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
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.
3
If the claimant currently is engaged in substantial
gainful employment, he will be found “not disabled.”
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
The regulations were amended for various provisions effective
March 27, 2017. See 82 F.R. 5844. Neither Plaintiff nor
Defendant contend that any amendments affect the issues
presented on this appeal.
7
found “disabled.” If he is capable, he will be
found “not disabled.”
20 C.F.R. § 416.20(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.
id.
See
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. Schweiker, 703 F.2d 751, 753 (3d Cir.
1983).
C.
Analysis
At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since the alleged onset of
disability through the end of the relevant time period.
8
At
step two, the ALJ found that Plaintiff’s cervical and lumbar
degenerative disc disease with radiculopathy, diabetes
mellitus, carpal tunnel syndrome, asthma, depression, and
anxiety were severe.
At step three, the ALJ determined that
Plaintiff’s severe impairments or her severe impairments in
combination with her other impairments did not equal the
severity of one of the listed impairments.
Plaintiff did not
have any past relevant work, but the ALJ determined that
Plaintiff’s residual functional capacity (“RFC”) rendered her
capable of performing unskilled work at the sedentary
exertional level (steps four and five) during the period of
June 17, 2009 and April 16, 2013. 4
The ALJ determined Plaintiff’s RFC to be as follows:
After careful consideration of the entire record, the
undersigned finds that from June 17, 2009 through April
16, 2013, the claimant had the residual functional
4
See 20 C.F.R. § 404.1568 (explaining that unskilled work “is
work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time”);
20 C.F.R. § 404.1567 (“Physical exertion requirements. To
determine the physical exertion requirements of work in the
national economy, we classify jobs as sedentary, light,
medium, heavy, and very heavy.”); 20 C.F.R. § 404.1567
(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.”).
9
capacity to perform sedentary work as defined in 20 CFR
416.967(a) except the claimant required the option to
stand or stretch every 20 minutes. The claimant could
never climb ladders or crawl. The claimant could only
occasionally climb stairs, balance, stoop, kneel, or
crouch and only frequently handle or finger. The
claimant could only occasionally be exposed to extreme
heat and humidity, or to pulmonary irritants. The
claimant was further limited to understanding,
remembering, and carrying out simple instructions where
public interaction was no more than occasional.
(R. at 451-52.)
Based on that RFC and the hypotheticals posed by the ALJ
to the VE at the hearing, the VE testified that someone with
Plaintiff’s RFC would be capable of performing jobs such as an
assembly worker, inspector, and office clerical worker.
(R.
at 459.)
Plaintiff argues that the ALJ erred in his formulation of
Plaintiff’s RFC by not supporting his determination with
medical evidence but instead with only his lay speculations,
which he also used to reject the severity and nature of
Plaintiff’s pain.
Plaintiff also contends that those errors
were compounded when the ALJ failed to consider the Vocational
Expert’s testimony regarding Plaintiff’s “stand and stretch”
requirement in determining that jobs existed in the national
economy that Plaintiff was capable of performing.
1.
Whether the ALJ erred in his RFC determination
Focusing first on Plaintiff’s objection to the ALJ’s RFC
10
assessment, in making the RFC assessment the ALJ was required
to consider all evidence before him.
“In doing so, an ALJ may
not make speculative inferences from medical reports,” he is
“not free to employ [his] own expertise against that of a
physician who presents competent medical evidence,” and
“[w]hen a conflict in the evidence exists, the ALJ may choose
whom to credit but cannot reject evidence for no reason or for
the wrong reason.”
Plummer v. Apfel, 186 F.3d 422, 429 (3d
Cir. 1999) (citation omitted).
What the Third Circuit
admonished in Plummer is what Plaintiff contends the ALJ did
in this case.
The Court does not agree.
The ALJ detailed the medical evidence in the record,
which spanned from April 2009 through April 2011.
Notably,
despite claiming disability through April 16, 2013, the record
does not contain any treatment records from May 2011 through
April 16, 2013.
(R. at 455.)
During those two years
documented in the record, the ALJ noted that beginning in
2009, Plaintiff suffered from impairments of her lumbar and
cervical spine, which caused her pain, and required her to use
a cane.
The ALJ related that by February 2010, physical
therapy and anti-inflammatory medications had not provided any
relief for her pain, and a right LS-S1 transforaminal epidural
steroid injection was recommended.
11
On July 13, 2010, Plaintiff had her first epidural
injection, which was helpful for pain in her lower back.
Because she had pain in her neck and left shoulder, on August
5, 2010 Plaintiff had a left shoulder trigger point injection,
which she reported was also helpful.
At that time, on
examination and based on her own reports, Plaintiff was
feeling better overall, and she had near full motion of the
left shoulder and 5/5 strength throughout.
On December 7, 2010, Plaintiff complained of left wrist
pain, but she had only slightly decreased left grip, x-rays of
the left wrist from December 20, 2010 were negative, and an
MRI on that same date of the cervical spine revealed that her
C5-6 disc herniation had regressed slightly when compared with
the April 3, 2010 study.
The MRI also showed a C5-6 disc
herniation produced minimal impression on the cord and a small
left disc protrusion was noted at C6-7 with no cord
compression, which was unchanged from the prior study.
The last treatment note for her physical impairments on
April 1, 2011 related that after a second epidural injection,
Plaintiff reported that her right lower extremity pain had
completely resolved and she stated that she still has lower
back pain, “but that it is okay.”
On examination, Plaintiff
had cervical and paraspinal tenderness, but straight leg
12
raising was negative, deep tendon reflexes were 2+ (i.e.,
normal), motor strength was 5/5, and sensory functioning was
intact.
With regard to her mental impairments, the ALJ noted that
during the relevant time period, Plaintiff’s treating
psychiatrist, Dr. Stephen Grelecki, had only seen her two
times on July 1, 2010 and October 4, 2010.
He determined that
Plaintiff (1) had moderate restriction of the activities of
daily living, (2) had marked difficulties in maintaining
social functioning, (3) had extreme difficulties in
maintaining concentration, persistence, or pace, (4) had no
episodes of decompensation, and (5) would be absent from work
more than 4 days per month.
After detailing the medical evidence of Plaintiff’s
physical and mental impairments from her treating sources, as
well the reports of three consultative examiners, the ALJ
explained the weight he afforded each opinion, and how the
medically established impairments supported Plaintiff’s RFC.
For Dr. Grelecki, the ALJ explained:
Dr. Grelecki's opinion is inconsistent with the
claimant’s [activities of daily living], since he notes
that the claimant has marked difficulties in maintaining
social functioning and extreme difficulties in
maintaining concentration, persistence, or pace, but the
claimant was able to live independently, do housework,
and care for her children (Exhibit 20F). Dr. Grelecki’s
13
opinion is also inconsistent with the nature of the
treatment that he provided and is not well supported by
signs or medical findings. Dr. Grelecki notes that the
claimant has anhedonia and recurrent severe panic
attacks, but this is not well documented in the record.
Additionally, the undersigned notes that reports from
early 2009 indicate that the claimant was able to travel
to Puerto Rico and stay for 3 months (Exhibit SF) and
that on October 22, 2010, the claimant was cleared to
attend gym 3 times a week, at her request (Exhibit 19F).
Thus, it appears that the claimant was active and able to
pursue her interests despite her mental and physical
impairments. 5
5
The ALJ also referred to a May 25, 2011 letter report by Dr.
Grelecki, which stated:
To Whom It May Concern
Elizabeth Guzman has [been] receiving treatment under my
care at Trinitas Regional Medical Center Outpatient
Department since July 1, 2010. She is diagnosed with
Depressive Disorder NOS, Anxiety Disorder NOS, and
Asthma. It is medically necessary for her to have air
conditioning in her home during the summer months.
Thank you,
Stephen Grelecki, MD
(R. at 442.) The ALJ addressed the letter in his decision by
stating, “Dr. Grelecki stated that a home air conditioner was
medically necessary during the summer months but did not state
that the claimant is totally disabled (Exhibit 24F). The
undersigned notes that the issue of disability is reserved to
the Commissioner and that Dr. Grelecki is less knowledgeable
than the state doctors about SSA's definition of disability.”
(R. at 457.)
Plaintiff takes issue with this statement, arguing that the
ALJ considers Dr. Grelecki’s silence on whether he finds
Plaintiff disabled or not to undermine the severity of her
mental impairments, but in the same breath, chastises him if
he would have made such a statement, since the determination
of whether a claimant is “disabled” under the regulations is
for the ALJ and not a physician. While Plaintiff’s point is
14
(R. at 457.)
The ALJ also considered a June 25, 2010 report to Work
First New Jersey by Dr. Groves, who treated Plaintiff for her
physical impairments.
The ALJ assigned little weight to Dr.
Groves’ estimation of Plaintiff’s disability from June 25,
2010 to June 25, 2011, and the finding that Plaintiff could
not lift more than 10 pounds, and cannot bend, stoop, or
climb.
(R. at 456.)
The ALJ accorded little weight to this
opinion because it was inconsistent with the record as a whole
and Plaintiff’s reported activities.
(Id.)
The ALJ also discussed the weight he afforded to the
consultative examiners’ reports.
In a December 16, 2009 Case
Analysis report, Dr. Shapiro, a non-examining state agency
medical consultant, noted that (1) Plaintiff was not in
psychiatric treatment and was not prescribed psychiatric
well-taken when the ALJ’s statement is read literally, the
Court construes that statement to mean that the most recent
report from Plaintiff’s treating psychiatrist, which is a
brief letter almost a year after the last visit with Dr.
Grelecki on October 4, 2010, does not support the severity of
the limitations Plaintiff claims, especially when contrasted
against her daily living activities. By only recommending air
conditioning during the summer the ALJ construed Dr.
Grelecki’s statement as unsupportive of a finding of disabling
mental impairments. On the record as a whole, the ALJ’s
characterization of the Grelecki letter is not legal error.
15
medication, (2) Plaintiff’s activities of daily living did not
report any limitations with following directions, getting
along with others, handling stress, or change in routine, (3)
Plaintiff got along very well with authority figures, cared
for her children, managed her finances, shopped, traveled,
prepared meals, and did household chores, and (4) noted that
he felt that psychiatric development was not indicated.
at 455.)
(R.
The ALJ assigned little weight to this assessment
because the record as a whole supported Plaintiff had some
mental limitations.
(Id.)
On January 4, 2010, Dr. Potashnik performed a
consultative examination as to Plaintiff physical impairments,
where he noted that, among other findings, Plaintiff’s gait
was normal without the cane during the examination, she was
independent with dressing and mounting the exam table, and she
was able to squat holding onto the exam table, and was able to
walk on heels and tiptoes.
(Id.)
The ALJ afforded Dr.
Potashnik’s opinion little weight because even though it was
based on an examination of Plaintiff, the record as a whole
supported that Plaintiff was more limited in her physical
functioning during the adjudication period.
(R. at 456.)
In a January 13, 2010 RFC report, Dr. Bustos, a nonexamining state agency medical consultant, found that
16
Plaintiff could lift and carry up to 20 pounds occasionally
and 10 pounds frequently, stand/walk at least 2 hours in an 8hour day, sit 6 hours in an 8-hour day, and perform unlimited
pushing and/or pulling, but she could not climb ladders,
ropes, or scaffolds, but could perform all other postural
functions occasionally.
(Id.)
The ALJ assigned some weight
to Dr. Bustos assessment because it was based on a review of
the medical evidence of record.
(Id.)
Based on the foregoing, the ALJ concluded that Plaintiff
had reported daily activities that were not limited to the
extent one would expect given Plaintiff’s complaints of
disabling symptoms and limitations, and Plaintiff’s
treatment had been essentially routine and conservative in
nature, including medication and regular doctor’s
appointments.
The ALJ determined that despite the evidence
demonstrating that Plaintiff had suffered from medically
determinable “severe” impairments, the evidence also
established that Plaintiff retained the capacity to function
adequately to perform many basic activities associated with
work.
(R. at 457.)
Plaintiff argues that the ALJ came to this conclusion out
of thin air by substituting his own perceptions of how
Plaintiff’s daily activities contradicted the disabling nature
17
of her physical and mental impairments.
agree.
The Court does not
The ALJ recounted the medical evidence, which
documented the successes of Plaintiff’s treatment for her
physical impairments, and otherwise related less than totally
disabling manifestations of her impairments, including her
mental impairments.
The ALJ also detailed Plaintiff’s daily
activities, as she self-reported in the disability claim
process, as well as through her reports to treating and
consultative physicians.
The ALJ did not conjure the
comparison between her daily living activities and the extent
of the physical and mental impairments from the ether – the
medical evidence provided the contrast.
Moreover, the ALJ
determined that Plaintiff suffered from limitations more
severe than two of the consultative examiners, which
demonstrates that the ALJ credited Plaintiff’s subject
complaints and the corroborating medical evidence from
Plaintiff’s treating physicians.
Based on this detailed analysis, the Court finds that the
ALJ properly supported his RFC determination. 6
6
See Plummer v.
The Court acknowledges that Plaintiff’s second SSI claim was
granted for disability beginning on April 17, 2013. (See
Docket No. 12 at 6 n.1.) Thus, the SSA found that Plaintiff
was “disabled” as of that date because she suffered from
medically determinable physical or mental impairments that
lasted, or were expected to last, for a continuous period of
18
Apfel, 186 F.3d 422, 439 (3d Cir. 1999) (“[A]n ALJ is
at least twelve months. 20 C.F.R. § 416.909. That finding is
not incongruous with the determination that Plaintiff was not
disabled prior to April 17, 2013, particularly when
considering the complete absence in the record here of
treatment records from May 2011 through April 16, 2013. In
order to obtain SSI, a definitive disability date must be
determined. See 20 C.F.R. § 416.202 (claimant is not eligible
for SSI until, among other factors, the date on which he files
an application for SSI benefits); 20 C.F.R. § 416.501
(claimant may not be paid for SSI for any time period that
predates the first month he satisfies the eligibility
requirements, which cannot predate the date on which an
application was filed). For Plaintiff, that date is April 17,
2013 and not before.
Relatedly, Plaintiff takes issue with the ALJ’s use of the
term “closed period” for Plaintiff’s claim that she was
disabled before April 17, 2013, beginning on June 17, 2009. A
“closed period” is a term of art in the SSA meaning “the
period of disability with a definite beginning date and a
definite ending date that the adjudicator establishes at the
time of adjudication.” SSA - POMS: DI 25510.001 - Closed
Period of Disability. That term as defined by the SSA usually
applies when a claimant has returned to work or has died. In
this case, Plaintiff did not return to work, but rather was
deemed disabled as of April 17, 2013, and the ALJ’s task was
to effectively determine whether Plaintiff’s disability had an
earlier onset date. The Court does not find that ALJ erred in
referring to the time period at issue here – June 17, 2009
through April 16, 2013 – as “closed” because ALJ was required
to determine a “definite beginning date and a definite ending
date.” Moreover, it is clear from the ALJ’s written opinion
that he was aware of Plaintiff’s application for disabled
status as of April 17, 2013 and we surmise also likely aware
of the favorable determination in November 2014 since the
request for a “closed” period was made by the Plaintiff’s
counsel. (R. at 446.) Even if the ALJ was unaware of the
November 2014 determination, nothing in the record suggests
that characterizing the period relevant here as “closed”, a
request actually made by the Plaintiff, improperly influenced
or changed the reasoning or process of the ALJ in this matter.
19
permitted to accept or reject all or part of any medical
source's opinion, as long as the ALJ supports his assessment
with substantial evidence.”); Cotter v. Harris, 642 F.2d 700,
705 (3d Cir. 1981) (“We are also cognizant that when the
medical testimony or conclusions are conflicting, the ALJ is
not only entitled but required to choose between them. . . .
[W]e need from the ALJ not only an expression of the evidence
s/he considered which supports the result, but also some
indication of the evidence which was rejected.”); Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (holding that an ALJ
“may properly accept some parts of the medical evidence and
reject other parts, but she must consider all the evidence and
give some reason for discounting the evidence she rejects”).
2.
Whether the ALJ erred at Step Five
Plaintiff also argues that the ALJ erred by including a
“stand and stretch” requirement in Plaintiff’s RFC but not
considering how that requirement would impact Plaintiff’s
ability to perform the jobs suggested by the VE.
Plaintiff
also argues that the ALJ’s hypothetical questioning to the VE
did not reasonably convey the extent of Plaintiff’s mental
limitations.
Plaintiff’s arguments are unavailing.
A hypothetical
posed by the ALJ must accurately portray the claimant’s
20
impairments, but only those impairments that are credibly
established.
Cir. 2005).
Rutherford v. Barnhart, 399 F.3d 546, 554 (3d
Plaintiff contends that the ALJ did not pose
proper hypotheticals to the VE because the ALJ erred in
formulating the RFC regarding her mental impairments.
Because
the Court has determined that substantial evidence supports
the ALJ’s RFC determination, however, the ALJ’s hypotheticals
based on that RFC satisfy the ALJ’s obligation at Step Five.
Plaintiff also challenges the effect of a “stand and
stretch” requirement on Plaintiff’s ability to perform the
jobs suggested by the VE.
The VE testified that the “stand
and stretch” requirement would not erode the jobs available
“[a]ssuming that [a] brief period of time does not interfere
with work, for the stretch.”
(R. at 490.)
Plaintiff argues
that for the assembly worker job, for example, it would not be
possible to remain on task while standing and stretching at
the sedentary work bench every 20 minutes, and the VE’s
“assumption” of no effect on the ability to do that job is
unsupported, and therefore improperly relied upon by the ALJ
for the Step Five determination.
There are two reasons why this argument is not
persuasive.
First, Plaintiff’s argument that the assembly
worker job – or any job - would not be properly performed if
21
she took stretch breaks every 20 minutes is Plaintiff’s own
opinion unsupported by the record.
Plaintiff’s opinion does
not compel a reversal and remand of the ALJ’s decision.
See,
e.g., Gardner v. Commissioner of Social Security, 2017 WL
4316877, at *6 (D.N.J. 2017) (“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).
Even if they were, Plaintiff does not
provide any support for his view that a surveillance system
monitor is more than unskilled work.”).
Second, the RFC did not impose a requirement that
Plaintiff would have to stand and stretch every 20 minutes.
Instead, the RFC provided that she was required to have the
“option” to stand and stretch every 20 minutes.
(“[T]he
claimant had the residual functional capacity to perform
sedentary work as defined in 20 CFR 416.967(a) except the
claimant required the option to stand or stretch every 20
minutes.”
R. at 451.)
A lack of specificity as to the number
of times Plaintiff would utilize that option and the length of
such breaks is not fatal to a finding that Plaintiff would be
22
capable of performing the suggested jobs based on Plaintiff’s
overall RFC.
See, e.g., McQueen v. Commissioner of Social
Sec., 2010 WL 3810707, at *4 (D.N.J. 2010) (distinguishing
Boone v. Barnhardt, 353 F.3d 203, 210 (3d Cir. 2004), where
the claimant's RFC that required the option to sit and stand
at will every thirty minutes eroded her ability to perform
light work, from the plaintiff’s RFC, which required only the
option to stand/stretch for three to five minutes every fortyfive minutes, and finding that the stand and stretch option
did not “preclude work by any means”).
The Court therefore finds that 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 her specific RFC, was capable
of performing other work that exists in significant numbers in
the national economy.
20 C.F.R. § 404.1566 (“Work exists in
the national economy when there is a significant number of
jobs (in one or more occupations) having requirements which
you are able to meet with your physical or mental abilities
and vocational qualifications.”).
III. CONCLUSION
This Court may not second guess the ALJ’s conclusions,
and may only determine whether substantial evidence supports
23
the ALJ’s determinations.
Hartzell v. Astrue, 741 F. Supp. 2d
645, 647 (D.N.J. 2010) (citing Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)) (explaining that the pinnacle legal
principal is that a district court is not empowered to weigh
the evidence or substitute its conclusions for those of the
ALJ).
The Court finds in this case the ALJ’s determination
that Plaintiff was not totally disabled from June 17, 2009
through April 16, 2013 is supported by substantial evidence.
The decision of the ALJ is therefore affirmed.
An accompanying Order will be issued.
Date: December 12, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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