O'NEILL v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Robert B. Kugler on 1/31/2019. (dmr)

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
Margaret O’NEILL,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________

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Civil No. 18-0698 (RBK/KMW)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court upon the appeal of Plaintiff Margaret O’Neill for
review of the final decision of the Commissioner of Social Security. (Doc. No. 1). The
Commissioner denied Plaintiff’s application for Social Security Disability Insurance (“SSID”)
benefits, finding that Plaintiff was not disabled as defined by the Social Security Act. As
explained below, the decision of the Commissioner is AFFIRMED.

I.

BACKGROUND1

A. Procedural and Plaintiff’s History

1

Because the record is voluminous, the Court sets forth only those facts necessary for context
and most relevant to the instant motion. “R.” in citations refers to pages in the administrative
record. Additional facts are set forth as needed in the “discussion” section below.

On May 9, 2013, Plaintiff protectively filed a Title II application for a period of disability
and disability insurance benefits, alleging disability beginning October 15, 2012. The claim was
denied initially on September 10, 2013, and upon reconsideration on February 22, 2014.
Plaintiff then filed a written request for hearing on April 4, 2014. Plaintiff appeared and testified
at a hearing held on April 14, 2016, in Pennsauken, New Jersey. In a decision dated August 2,
2016, the ALJ found that Plaintiff was not disabled. (R. at 155). On November 16, 2017, the
Appeals Council affirmed the ALJ’s decision. Plaintiff then filed this action.
Plaintiff was forty-eight years old and lived at home with her husband, daughter, and
granddaughter at the time of the hearing before the ALJ. (R. at 165, 168). During this period,
Plaintiff was 5’6’’ tall and weighed 220 pounds. (R. at 152). Her BMI was 37.3, which is
considered obese, according to the Adult BMI Calculator of the Centers for Disease Control. Id.
Plaintiff finished high school and completed approximately two years of college education, as
well as received nurse, surgical, and medical assistant training. (R. at 147). She has worked for
approximately fifteen years as a surgical technician instructor. (R. at 170). She has also worked
as a surgical technician. Id.
Plaintiff alleges that her impairments directly led to her inability to continue working as a
surgical technician instructor. (R. at 166). Plaintiff stated she stopped working as of October 15,
2012 because her cardiologist would not let her work any longer; however, Plaintiff’s work
history reports show that she worked until January 25, 2013. (R. at 147).
At her administrative hearing, Plaintiff testified about her mental health limitations.
Plaintiff testified that she has seen a psychiatrist for treatment since 2005. (R. at 140). In

addition, Plaintiff sees a therapist twice a week since 2012 as well as another therapist every two
weeks for anxiety. (R. at 147). Plaintiff was diagnosed with an adjustment disorder with
depressed, mood, and bipolar disorder and suffers from anxiety. (R. at 141). She has been
prescribed various medications to treat her depression, bipolar, and anxiety, including Latuda,
Abilify, Paxil, and Neurontin, Xanax, and Paxil. (R. at 141, 174). Plaintiff also testified she had
multiple suicidal thoughts connected with her mental health conditions. (R. at 178).
Plaintiff further provided testimony about her physical limitations. Specifically, Plaintiff
has a past medical history significant for coronary artery disease, hypertension, chronic
obstructive pulmonary disorder, emphysema, anemia, degenerative disc disease, and
degenerative joint disease of the knees. (Pl’s Br. [Doc. No. 9] at 4). She stated that she suffered
from extreme chest pressure and pain with significant shortness of breath and pain in her. Id.
Plaintiff also described having been hospitalized on multiple occasions as a result of this ongoing
shortness of breath and chest pain. Id.
Plaintiff further testified that since her cardiac problems began, her days were mostly
sedentary. (R. at 141). Plaintiff liked to read, spend time on the internet, watch television, and
listen to music. Id. Plaintiff denied having any problems with personal care and indicated that
she could cook, clean, vacuum, and do laundry as split 50/50 with her husband. Id. At the time
of the hearing, Plaintiff made her granddaughter breakfast before school, attended aqua therapy
five days a week for two to four hours a day, and was able to drive short distances. (R. at 142).
Plaintiff further testified that in social settings she had no difficulties interacting with others. Id.
B. ALJ Hearing and Medical Evidence

In finding the Plaintiff not disabled, the ALJ considered Plaintiff’s relevant medical
history and examinations. Plaintiff’s relevant medical history spans several years and includes
various physical and mental complications. The following briefly notes the relevant medical
evaluations pertinent to the ALJ’s decision. These evaluations include those done by Dr. Iqbal,
Dr. Iofin, Dr. Shetty, Dr. Wilchfort, and the State Agency Medical Consultants.

1. Dr. Iqbal in 2012
In October 2012, Plaintiff entered the hospital for chest pain and shortness of breath. (R.
390). Shortly thereafter, Dr. Iqbal examined her and found no extremity blocks, an enlarged
cardiac silhouette, hyper-inflated lungs, signs of chronic obstructive pulmonary disorder
(“COPD”), pleural thickening, and parenchymal scarring. (R. 390–91). He then noted that
Plaintiff could only lift five pounds after her hospital discharge.

2. Dr. Iofin in 2013
Dr. Iofin examined the Plaintiff in July 2013. There, Dr. Iofin noted Plaintiff’s
depression, problems with sleep, irritability, crying spells, and generalized anxiety. As part of
this consultative examination, Dr. Iofin diagnosed Plaintiff with disorders relating to depression,
anxiety, and panic. He also assigned a Global Assessment of Functioning (“GAF”) score of 60.

3. Dr. Shetty in 2014

In November 2012, Plaintiff began treatment with Sanjay Shetty, M.D., who is boardcertified in cardiology, nuclear medicine, and echocardiography, for coronary artery disease and
primary hypercoagulable. In his 2014 evaluation, Dr. Shetty opined that Plaintiff was capable of
sedentary work less than 20 hours per week. He also indicated that Plaintiff suffered from
depression and anxiety. He found that Plaintiff was fatigued; however, he concluded that her
fatigue should only prevent Plaintiff from performing normal full-time work on an occasional
basis. He also concluded that Plaintiff would have to miss work more than four times a month.
Dr. Shetty also noted that Plaintiff’s CAD s/p PCID CAD, Angina, Hx PE, DVT,
hypercoagulable state on the form provided to the ALJ.

4. Dr. Wilchfort in 2015
In June 2015, Samuel Wilchfort, M.D, who is board-certified in cardiovascular disease
and internal medicine, consultatively examined Plaintiff. During an initial evaluation, Plaintiff
reported she was having ongoing chest pain that she described as a crushing pain on the right
side of her neck going into her shoulder. Plaintiff stated that this chest pain was relieved with
nitroglycerin. Plaintiff also explained that a nuclear stress test in January 2014 was abnormal.
She reported right knee pain and that she was told she needed a total knee replacement. She also
alleged low back pain due to herniated discs and a recent epidural injection in February 2015.
Plaintiff disclosed that, at the time, she was taking medications such as Xarelto, Cardizem,
Coreg, Imdur, Neurontin, Plavix, Protonix, Paxil, Xanax, and Tramadol.
Dr. Wilchfort’s physical examination of Plaintiff showed Plaintiff was 5’5”, weighed 270
pounds, and had multiple ecchymoses on her arms and legs from anticoagulation, blood pressure
of 124/70, clear lungs, normal heart, no edema, normal neurological examination, normal muscle

strength, normal range of motion throughout except lumbar bending to 80 degrees and knee
flexion to 130 degrees, mild crepitus on the right, and negative straight leg raise. During this
examination, Plaintiff reported that she could not squat. Following the examination, Dr.
Wilchfort diagnosed Plaintiff with coronary disease with chest pain syndrome, hypertension,
controlled, right knee pain, chronic low back pain with a history of herniated discs, high
cholesterol, morbid obesity, and history of DVT in the past.
In addition, Dr. Wilchfort completed a separate medical source statement, which showed
Plaintiff could occasionally lift and carry 10-20 pounds, sit for one hour at a time and for four
hours in an eight-hour workday, and stand or walk for thirty minutes at one time and for one
hour in an eight-hour workday. Dr. Wilchfort also found that Plaintiff could frequently reach,
handle, finger, feel, push, or pull, occasionally operate foot controls on the right, and frequently
operate foot controls on the left. He further found that Plaintiff could occasionally balance and
never climb, balance, stoop, kneel, crouch, or crawl. From this examination, Dr. Wilchfort
concluded that Plaintiff could frequently be exposed to unprotected heights, moving mechanical
parts, operating a motor vehicle, humidity, wetness, dust, odors, fumes, pulmonary irritants,
extreme cold, and vibrations.

5. State Agency Psychologists
The State Agency Psychological consultants found that Plaintiff could understand,
remember, and execute simple routine instructions/tasks, sustain concentration, pace, and
persistence, socially interact adequately, and adapt to changes. The consultants further found
that Plaintiff could perform light work, but never climb ladders, ropes, or scaffolds, occasionally
climb ramps or stairs or crawl, and frequently balance, stoop, kneel, and crouch. The consultants

ultimately found Plaintiff suffered from a severe mental impairment and that she had to avoid
concentrated exposure to fumes, odors, dusts, gases, and poor ventilation, and all exposure to
hazards, such as machinery and heights.

C. ALJ’s Decision
The ALJ followed the five-step sequential evaluation process for determining disability
claims and found that Plaintiff was not disabled on August 2, 2016. See 20 C.F.R. §
404.1520(a)(4). First, the ALJ found that Plaintiff has not engaged in substantial gainful activity
since October 15, 2012. (R. at 140). Second, the ALJ found that Plaintiff had the following
severe impairments: obesity, coronary artery disease, status post stenting, hypertension, anemia,
history of chronic obstructive pulmonary disorder (“COPD”), degenerative disc disease, and
degenerative joint disease of the knees. The ALJ then found that Plaintiff had the following nonsevere impairments: depressive disorder, NOS, bipolar disorder, and anxiety disorder.
Third, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20 C.F.R. pt. 404,
subpt. P, app’x 1. (R. at 144). Fourth, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform sedentary work, but that she was limited to sitting up no more than
half hour at a time, low stress work, and only occasionally climbing ramps, stairs, and stoops.
The ALJ also found that Plaintiff must avoid exposure to dust, fumes, pulmonary irritants,
humidity, and temperature extremes. (R. at 146). The ALJ concluded that Plaintiff would be off
task five percent of the workday. (R. at 147). Finally, the ALJ relied on testimony from a
vocational expert who averred that although Plaintiff could not perform her past work during the
relevant period, she was capable of performing other jobs that existed in significant numbers in

the national economy. (R. at 154). The ALJ therefore found that Plaintiff was not disabled
during the relevant period.

III.

DISCUSSION
The Social Security Act defines disability as the “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 423(d)(1)(A). The ALJ used the established five-step evaluation process to
determine whether Plaintiff was disabled. See 20 C.F.R. § 404.1520.
For the first four steps of the evaluation process, the claimant has the burden of
establishing her disability by a preponderance of the evidence. Zirnsak v. Colvin, 777 F.3d 607,
611–12 (3d Cir. 2014). First, the claimant must show that she was not engaged in “substantial
gainful activity” for the relevant time period. 20 C.F.R. § 404.1572. Second, the claimant must
demonstrate that she has a “severe medically determinable physical and mental impairment” that
lasted for a continuous period of at least twelve months. 20 C.F.R. § 404.1520(a)(4)(ii); 20
C.F.R. § 404.1509. Third, either the claimant shows that her condition was one of the
Commissioner’s listed impairments, and is therefore disabled and entitled to benefits, or the
analysis proceeds to step four. 20 C.F.R. § 404.1420(a)(4)(iii). Fourth, if the condition is not
equivalent to a listed impairment, the claimant must show that he cannot perform his past work,
and the ALJ must assess the claimant’s residual functional capacity (“RFC”). 20 C.F.R. §
404.1520(a)(4)(iv); 20 C.F.R. § 404. 1520(e).
If the claimant meets her burden, the burden shifts to the Commissioner for the last step.
Zirnsak, 777 F.3d at 612. At the fifth and last step, the Commissioner must establish that other

available work exists that the claimant is capable of performing based on her RFC, age,
education, and work experience. Id.; 20 C.F.R. § 404.1520 (a)(4)(v). If the claimant can make
“an adjustment to other work,” she is not disabled. See 20 C.F.R. § 404.1520(a)(4)(v).
Here, Plaintiff appeals the ALJ’s decision on three issues. First, Plaintiff contends the
ALJ erred in finding Plaintiff’s mental health impairments were non-severe at step two. Second,
Plaintiff argues the ALJ erred in rejecting essentially all of the medical and lay opinion evidence
of the record because the ALJ misstated the content of that evidence, mischaracterized the
conclusions of the evidence, and relied on irrelevant factors to reject those opinions. Finally,
Plaintiff argues that remand is appropriate because the Vocational Expert’s testimony on which
the ALJ relied requires clarification regarding his off-task percentages.

1. Whether substantial evidence supports the ALJ’s step-two finding of non-severe
mental impairments
Plaintiff first argues that the ALJ erred in failing to find that Plaintiff’s mental health
impairments were severe. Specifically, Plaintiff charges that the ALJ ignored the treatment
records of her treating psychiatrist, Dr. Kammiel. While the ALJ concluded these notes were
largely illegible, Plaintiff argues that many of the notes were printed and therefore the ALJ’s
stated reasoning was improper.
At step two of the five-step sequential inquiry, the ALJ must determine whether the
claimant has a medically severe impairment or combination of impairments. See Bowen v.
Yuckert, 482 U.S. 137, 140–41 (1987); see also Social Security Ruling (SSR) 86–8, 1986 SSR
LEXIS 15, at *6–7; SSR 85–28, 1985 SSR LEXIS 19, at * 1. Under the applicable regulations,
an impairment is severe only if it significantly limits the claimant’s physical or mental ability to

do “basic work activities,” i.e., physical “abilities and aptitudes necessary to do most jobs,
including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or
handling,” or mental activities such as understanding, carrying out, and remembering simple
instructions; use of judgment; responding appropriately to supervision, co-workers and usual
work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b). A
“severe” impairment is distinguished from “a slight abnormality,” which has such a minimal
effect that it would not be expected to interfere with the claimant’s ability to work, regardless of
her age, education, or work experience. See Bowen, 482 U.S. at 149–51. The claimant has the
burden of showing that an impairment is severe. Id. at 146 n.5.
Plaintiff’s argument at step two is not entirely accurate because it misinterprets the Third
Circuit’s language in McCrea. There, the court made clear that the burdens on the plaintiff at
this stage are “not an exacting one.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir.
2004). The court then explained that the purpose of this step is to serve as a “de minimis
screening device to dispose of groundless claims.” Id. (citing cases). Plaintiff here attempts to
use this language to support the notion that the ALJ incorrectly concluded that the mental
impairments were non-severe. Plaintiff then recites the record to show that Plaintiff made a de
minimis showing.
This Court disagrees with Plaintiff’s reading of McCrea. This case only governs when an
ALJ denies a person’s benefits at step two. Since the ALJ did not deny the claim at this step, the
Court must consider if Plaintiff’s argument carries when the finding at step two is bifurcated, i.e.,
when the ALJ finds only mental or physical impairments to be severe, but not both at step two,
and the analysis proceeds to step three.

The Third Circuit has held that a bifurcated severity determination at step two is not
automatic grounds for remand. In Salles, the court explained, “[b]ecause the ALJ found in
[plaintiff] Salles’ favor at step two, even if he had erroneously concluded that some of her other
impairments were non-severe, any error was harmless.” See Salles v. Comm'r of Soc. Sec., 229
F. App’x 140, 145 n.2 (3d Cir. 2007). This Court similarly found that Plaintiff’s step-two
challenge did not automatically remand the case when the ALJ properly considered the nonsevere impairments at the RFC determination. Wells v. Acting Comm'r of Soc. Sec., No. 156048, 2016 WL 6824369, at *4 (D.N.J. Nov. 18, 2016). The central focus thus turns on whether
the ALJ considered the non-severe impairment forming Plaintiff O’Neill’s RFC.

2. Whether substantial evidence supports the ALJ’s RFC determination
Plaintiff makes two central arguments in challenging the ALJ’s RFC determination.
First, and related to the argument above, Plaintiff states that the ALJ did not properly consider
her mental impairments. Next, Plaintiff argues that the ALJ lacked a reasonable basis in
assigning weight to various medical opinions.
a. The ALJ’s finding of non-severe mental impairments
The ALJ must “consider all . . . medically determinable impairments . . . including
[those] that are not ‘severe’” when assessing the RFC. 20 C.F.R. § 404.1545(a)(2). The RFC
assessment must first identify the individual's functional limitations or restrictions and assess his
or her work-related abilities on a function-by-function basis. Only after that may the RFC be
expressed in terms of the exertional levels of work—sedentary, light, medium, heavy, and very
heavy. SSR 96-8p. Relatedly, the ALJ is responsible for assigning weight to the medical
opinions of record. See 20 C.F.R. § 404.1527. The ALJ must, however, “explain the basis for

his or her conclusions.” Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). If evidence is
rejected, “an explanation from the ALJ of the reason why probative evidence has been rejected is
required so that a reviewing court can determine whether the reasons for rejection were
improper.” Cotter v. Harris, 642 F.2d 700, 711 (3d Cir. 1981). The explanation need not be
comprehensive; “in most cases, a sentence or short paragraph would probably suffice.” Cotter v.
Harris, 650 F.2d 481, 482 (3d Cir. 1981).
Here, Plaintiff offers little to support her argument that the ALJ erred in failing to
consider Plaintiff’s mental impairments. In addition to conflating the analysis at step two with
the RFC determination, Plaintiff simply misrepresents the ALJ’s discussion and consideration of
her mental impairments. First, the ALJ clearly considered her mental disorders, depressed
mood, bipolar disorders, and treatment at length. (R. at 141–44). Second, with respect to one
doctor, the ALJ merely noted that much of the treatment notes were illegible. Contrary to
Plaintiff’s argument, this brief mention of illegibility is not an adequate basis for remand. See
Swanson v. Comm’r of Soc. Sec., No. 15-cv-8894, 2017 WL 825199 at *4–5 (D.N.J. Mar. 2,
2017) (finding the ALJ had no duty to consider mostly illegible treatment notes) (citing cases
holding similarly). Not only does Plaintiff ignore the fact that the ALJ considered her mental
impairments, but Plaintiff has not shown how any prejudice resulted from the contents of these
illegible treatment notes.
Courts throughout the country have rejected such illegibility arguments when, as is the
case here, Plaintiff has not shown prejudice. See, e.g., Mireles ex rel. S.M.M. v. Comm’r of Soc.
Sec., No. 13-cv-699, 2014 WL 4854426, at *5–6 (W.D. Mich. Sept. 29, 2014) (rejecting the
plaintiff’s argument that illegible portions of the administrative hearing transcript could represent
significant and relevant testimony of importance to the determination of the merits because

plaintiff did not show any prejudice resulting from the portion of the testimony cited in his brief
(citing Williams v. Barnhart, 289 F.3d 556, 557–58 (8th Cir. 2002)) (“Absent an indication that
the missing portion of the transcript would bolster appellant's arguments or prevent judicial
review, this Court will not remand a case based upon inaudible portions of the record.”)).
Plaintiff next seems to suggest that because the ALJ’s discussion of her mental
impression did not occur within the area of the opinion devoted to the RFC, the ALJ has not
properly considered the impairments as required under 20 C.F.R. § 404.1545. This Court does
not agree with Plaintiff’s formalistic reading of RFC determinations. First, the Third Circuit
makes clear that an ALJ need not “use particular language or adhere to a particular format in
conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). Thus, the
question is not whether the portion of the opinion discussing RFC mention every impairment,
rather it is whether the decision, “read as a whole, illustrates that the ALJ considered all
appropriate factors in reading the conclusion that [Plaintiff] did not meet the requirements for
any listing . . . .” Id. This Court therefore rejects Plaintiff’s formalist argument and finds that the
ALJ carefully considered Plaintiff’s mental impairments and treatments in the RFC
determination. (R. at 141–44).
b. The ALJ’s weighing of medical evidence
The Court now turns to Plaintiff’s next challenge to the RFC determination—that the
ALJ lacked a reasonable basis in assigning weight to various medical opinions. Specifically,
Plaintiff argues that the ALJ erred in assigning weight to the opinions of Dr. Iqbal, Dr. Shetty,
Dr. Wilchfort, and the state agency medical consultants.
20 C.F.R. § 404.1527(c) sets forth factors to consider in determining how to weigh
evidence from medical sources, including: (1) the examining relationship; (2) the treatment

relationship, including the length, frequency, nature, and extent of the treatment; (3) the
supportability of the opinion; (4) its consistency with the record as a whole; and (5) the
specialization of the individual giving the opinion. See Labanda v. Comm’r of Soc. Sec., No. 17cv-3354, 2018 WL 259948, at *1 (D.N.J. Jan. 2, 2018); see also Michael Edward Davern v.
Comm’r of Soc. Sec., 660 F. App’x 169, 172 (3d Cir. 2016) (noting that “the weight due a
medical opinion depends on a variety of factors” under 20 C.F.R. § 404.1527(c)). An ALJ need
not explicitly discuss each factor in his decision. See Green v. Colvin, No. 13-cv-03463, 2014
WL 3105037, at *7 (D.N.J. July 2, 2014). “Where inconsistency in evidence exists, the ALJ
retains significant discretion in deciding whom to credit.” Ganges v. Comm’r of Soc. Sec., No.
17-cv-1982, 2018 WL 5342717, at *11 (D.N.J. Oct. 29, 2018) (citing Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999)). However, the ALJ “cannot reject evidence for no reason or for the
wrong reason.” Plummer, 186 F.3d at 429 (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d
Cir. 1993)).
Here, Plaintiff first challenges the ALJ’s treatment of Dr. Iqbal, who in November 2012,
found that Plaintiff could only lift five pounds. The ALJ only gave the opinion some weight
because the report was vague, conclusory, and dated. The ALJ also noted that the opinion did
not make clear if the lifting restriction applied was temporary or permanent or whether it was
work-related.
The ALJ properly considered the opinion of Dr. Iqbal. First, the Third Circuit makes
clear that an ALJ has broad discretion in determining the credibility of medical opinions. More
narrowly, it has affirmed ALJ determinations based on the same reasons at issue here. See Jones
v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (explaining that vague and conclusory opinions

may be given little weight); see also 20 C.F.R. § 404.1512(a) (discussing relevant medical
evidence).
Plaintiff’s related challenges to the ALJ’s weighing of medical opinions similarly fail.
Again, our Circuit has interpreted the regulations clearly on this point. “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). If
“the opinion of a treating physician conflicts with that of a non-treating, non-examining
physician, the ALJ may choose whom to credit.” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.
2000). In assigning weight to Dr. Wilchfort and the state agency medical consultants, the ALJ
relied on proper reasons for assigning some or little weight. As explained above, an ALJ may
assign less weight to an opinion that has conclusory language, vagueness, and evidentiary gaps.
The ALJ therefore properly assigned weight to these opinions.
Plaintiff next challenges the ALJ’s treatment of Dr. Shetty. Dr. Shetty opined that
Plaintiff could perform sedentary work for less than 20 hours per week. (R. at 491). His
treatment notes also indicate that Plaintiff’s fatigue would only prevent her from performing
normal full-time work on an occasional basis (three to four days per month). (R. at 493). In the
opinion, the ALJ found Dr. Shetty’s report to be “internally inconsistent” and gave it “some
weight.” (R. at 152).
Contrary to Plaintiff’s argument, substantial evidence supports the ALJ’s treatment of Dr.
Shetty’s opinion. First, Dr. Shetty’s report offers seemingly contradictory conclusions. In one
section, he states that Plaintiff can perform “sedentary work” for less than 20 hours per week.
(R. at 491). In another area, he indicates that Plaintiff’s fatigue will only prevent her from
performing “normal, full-time work activities on an occasional (approximately 3-4 days per

month) basis.” (R. at 493) (emphasis added). The ALJ here reasonably discounted the opinion
at issue upon a reasonable reading of seemingly contradictory treatment notes. See Smith v.
Astrue, 359 F. App’x 313, 316–17 (3d Cir. 2009) (treating opinion may be rejected if
contradicted by physician’s own treating notes or patient’s daily activities). As such, this Court
finds that substantial evidence supports the ALJ’s treatment of the medical opinions at issue.

3. Whether substantial evidence supports the ALJ’s finding of jobs
Plaintiff next challenges the ALJ’s determination that, based on her age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national economy
that Plaintiff could perform. Specifically, Plaintiff argues that the Vocational Expert’s (“VE”)
testimony is unclear and therefore creates a conflict with the DOT job descriptions. Meanwhile,
the Defendant argues that substantial evidence supports the ALJ’s determination, and that the
alleged conflict, if any, is at most harmless.
At the fifth step of the evaluation process, “the ALJ often seeks advisory testimony from
a vocational expert. In addition, the ALJ will generally consult the Dictionary of Occupational
Titles (‘DOT’), 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, in order to
determine whether any jobs exist that a claimant can perform.” Burns, 312 F.3d at 119; see also
id. at 126 (“[The] Social Security Administration has taken administrative notice of the reliability
of the job information contained in the [DOT].”) (citing 20 C.F.R. § 416.966(d)). The Social
Security Regulations provide additional instruction in resolving conflicts in occupational
information. SSR 00-4P.
When there is an apparent unresolved conflict between VE evidence
and the DOT, the adjudicator must elicit a reasonable explanation

for the conflict before relying on the VE or VS evidence to support
a determination or decision about whether the claimant is disabled.
At the hearings level, as part of the adjudicator’s duty to fully
develop the record, the adjudicator will inquire, on the record, as to
whether or not there is such consistency. Neither the DOT nor the
VE evidence automatically “trumps” when there is a conflict. The
adjudicator must resolve the conflict by determining if the
explanation given by the VE or VS is reasonable and provides a
basis for relying on the VE testimony rather than on the DOT
information.
SSR 00-4P.
Here, the record indicates that the ALJ properly conveyed Plaintiff’s limitations to the
VE and determined that jobs existed in significant numbers in the national economy. At the
ALJ hearing, the ALJ asked the VE to “assume an individual having the claimant’s age,
education and past work as described. Please assume that this individual is limited to sedentary
work . . . [and] can only occasionally climb ramps and stairs . . . .” (R. at 188). The ALJ added
additional restrictions consistent with Plaintiff’s RFC. The VE then testified that given all of
these factors, the individual would be able to perform at least three jobs with the requirements of
representative sedentary unskilled work with an SVP of 2: a charge account clerk (DOT
205.367-014), an inspector (DOT 669.687-014), and a bench assembler (DOT 732.684-064).
The VE then testified that a person could be “off task” for breaks up to ten percent of the time,
but if a person is off task more than ten-to-fifteen percent of the workday, the work becomes
“unmaintainable.” (R. at 189 –90). The ALJ then asked the VE whether someone who was
routinely off-task sixteen-to-twenty percent of the workday “in addition to breaks” could perform
these jobs. The VE said they could not. Later, when Plaintiff’s counsel asked about the
tolerance for breaks in these settings, the VE explained, “if an individual needed an additional
twenty-minute break somewhere in the day,” beyond the two fifteen-to-twenty-minute breaks
permitted each day, “it would probably preclude employment.” (R. at. 190).

Plaintiff first argues that the ALJ’s questions to the VE are unclear and therefore require
this Court to remand the matter for clarity. Specifically, Plaintiff argues that the ALJ’s second
question’s specific mention of “in addition to breaks” confuses the first question. We disagree.
First, we note that Plaintiff’s emphasis on the VE’s testimony regarding “off task” periods of
time seems irrelevant. SSR-004P focuses on the apparent conflict with the testimony and the
DOT listing. Nothing in the record or in Plaintiff’s brief suggests that the proffered jobs have
specific “off task” constraints. Second, while Plaintiff cites to another case in this district that
found these questions confusing,2 this Court does not agree with its interpretation of these
questions. Rather than read the questions in a vacuum, we have considered the transcript and
view the second question as a natural outgrowth of the first. In the first question, the ALJ asked
whether a person who was off-task for five percent of the workday could perform the job. The
VE answered, yes. The ALJ then asked whether a person off task sixteen-to-twenty percent of
the workday in addition to breaks could perform the job. The VE answered, no. Taken together,
we find that being on- or off-task is unrelated to the breaks in one’s work day. The questions
therefore do not appear to create any overt ambiguity.
Plaintiff next argues that Plaintiff’s counsel’s later questioning of the VE created
additional ambiguity. Plaintiff’s counsel appears to alter the hypothetical by changing the
percentage “off task” into minutes per day. At first, the VE testified that a person could be offtask for five percent of the workday and maintain employment. Plaintiff’s counsel converted this
five percent (of an eight-hour work day) to twenty-four minutes per day. Then, Plaintiff’s
counsel asked the VE if an additional break of twenty minutes would preclude employment. The
VE answered, yes. Thus, Plaintiff argues that the VE’s earlier testimony, that twenty-four

2

See Kirby v. Commissioner, No. 16-cv-5159, 2017 WL 4330361 (D.N.J. Sept. 29, 2017).

minutes off-task per day would not preclude employment, is inconsistent with his later statement
that a twenty-minute break would preclude employment. We disagree.
Plaintiff’s attempt to parse minute differences and expand the ALJ’s hypothetical is
unpersuasive. First, the ALJ does not have a duty to respond to Plaintiff’s counsel’s attempts to
expand the hypothetical question. Again, SSR-004P only focuses on apparent conflicts with the
VE’s testimony and the DOT listing, not attempted conflicts with the initial ALJ hypothetical
and a newly revised one from Plaintiff’s counsel. Second, even if we accept this contortion of
testimony, the Court notes that nothing in the record indicates that being “off task” has to occur
in one neat block of time. Thus, as Defendant aptly points out, the five-percent off-task period
could occur in short periods throughout the day.
Finally, we note that, even if there was a discrepancy at the hearing, this Court is
persuaded by the Seventh Circuit in Donahue v. Barnhart and finds that substantial evidence still
supports the ALJ’s decision. 279 F.3d 441, 447 (7th Cir. 2002). There, Judge Easterbrook
considered what should result when a discrepancy between the VE’s testimony and the DOT
listings is unexplored during the hearing but is later raised by the plaintiff in challenging the
ALJ’s ruling. Judge Easterbrook provides a useful framework in identifying two instances. In
one instance, the plaintiff questions the basis of the VE’s conclusions at the hearing where the
ALJ has a duty to make an inquiry to determine the reliability of the VE’s conclusions. In the
second instance, however, “raising a discrepancy only after the hearing, as [plaintiff’s] lawyer
did, is too late,” and the ALJ “is not obliged to open the record.” Id. Thus, while we find no
apparent conflict in this matter, even if there was, we are guided by Judge Easterbrook’s
approach and decline to remand the matter.

IV.

CONCLUSION
For the reasons discussed above, this Court AFFIRMS the ALJ decision.

Dated: 1/31/2019

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge