SEEWAGEN v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION. Signed by Judge Noel L. Hillman on 4/10/2019. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KENNETH M. SEEWAGEN, III,
1:18-cv-01818-NLH
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
KELLY A. OHLERT
BROSS & FRANKEL, P.A.
102 BROWNING LANE
BUILDING C-1
CHERRY HILL, NJ 08003
On behalf of Plaintiff
ANDREW CHARLES LYNCH
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
6TH 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 Disability

Insurance Benefits (“DIB”) 1 under Title II of the Social Security
Act.

42 U.S.C. § 423, et seq.

The issue before the Court is

whether the Administrative Law Judge (“ALJ”) erred in finding
that there was “substantial evidence” that Plaintiff was not
disabled at any time since his alleged onset date of disability,
March 27, 2011.

For the reasons stated below, this Court will

affirm that decision.
I.

BACKGROUND AND PROCEDURAL HISTORY
On April 23, 2013, Plaintiff, Kenneth M. Seewagen, III,

protectively filed an application for DIB, 2 alleging that he
became disabled on March 27, 2011.

Plaintiff claims that he can

no longer work in his prior jobs in the food, retail, and
warehouse industries because of his various severe mental and
physical impairments, including a left knee impairment and
depression, anxiety, and PTSD.
Plaintiff’s initial claim was denied on August 9, 2013 and
upon reconsideration on January 24, 2014.

Plaintiff requested a

1

DIB is a program under the Social Security Act to provide
disability benefits when a claimant with a sufficient number of
quarters of insured employment has suffered such a mental or
physical impairment that the claimant cannot perform substantial
gainful employment for at least twelve months. 42 U.S.C. § 423
et seq.
2

A protective filing date marks the time when a disability
applicant made a written statement of his or her intent to file
for benefits. That date may be earlier than the date of the
formal application and may provide additional benefits to the
claimant. See SSA Handbook 1507; SSR 72-8.
2

hearing before an ALJ, which was held on March 31, 2016.

After

Plaintiff submitted supplemental medical records in May 2016,
the ALJ issued an unfavorable decision on September 16, 2016.
Plaintiff’s Request for Review of Hearing Decision was denied by
the Appeals Council on December 5, 2017, making the ALJ’s
September 16, 2016 decision final.

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 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).
more than “a mere scintilla.”

Substantial evidence means

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
3

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.”
Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing
Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)).

The Third

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

Burnett

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

Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d
700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the
Commissioner’s reasoning is indeed essential to a meaningful
court review:
4

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).

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 DIB

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
5

physical or mental impairment which can be expected to result in
death, or which has lasted or can be expected to last for a
continuous period of not less than 12 months.
1382c(a)(3)(A).

See 42 U.S.C. §

Under this definition, a Plaintiff qualifies as

disabled only if her physical or mental impairments are of such
severity that she is not only unable to perform her past
relevant work, but cannot, given her age, education, and work
experience, engage in any other type of substantial gainful work
which exists in the national economy, regardless of whether such
work exists in the immediate area in which she lives, or whether
a specific job vacancy exists for her, or whether she would be
hired if she 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. § 404.1520.

This five-step

process is summarized as follows:
1.

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

2.

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

3

The regulations were amended for various provisions effective
March 27, 2017. See 82 F.R. 5844. Social Security Rulings 962p, 96-5p, and 06-03p were rescinded. See 82 F.R. 15263. The
ALJ cited to these SSRs, but because the ALJ issued his decision
before this date, the amendments are not applicable to
Plaintiff’s appeal.
6

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 she has done in
the past (“past relevant work”) despite the severe
impairment, she will be found “not disabled.”

5.

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

20 C.F.R. § 404.1520(b)-(f).

Entitlement to benefits is

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

In the first four steps of the

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

See id.

In

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

7

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.

At step two, the ALJ found that Plaintiff had the

serve impairments of lumbar degenerative disc disease, post
traumatic internal derangement to the left knee, aggravation of
pre-existing chondromalacia to the patellofemoral joint of the
left knee, major depressive disorder, post-traumatic stress
disorder (“PTSD”), generalized anxiety disorder, learning
disorder and borderline intellectual functioning.

At step

three, the ALJ determined that Plaintiff’s severe impairments or
his severe impairments in combination with his other impairments
did not equal the severity of one of the listed impairments.
The ALJ then determined that Plaintiff had the residual
functional capacity (“RFC”) to perform sedentary work with
certain restrictions. 4

After considering a vocational expert’s

testimony, the ALJ concluded that Plaintiff’s RFC did not enable
him to perform his past relevant work, but he was capable of
performing jobs such as an addressing clerk, final assembler –
optical goods, and surveillance system monitor (steps four and

4

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.”).
8

five).
Plaintiff’s appeal of the ALJ’s decision presents three
issues: (1) Whether the ALJ erred in rejecting the opinions of
the treating and examining sources with regard to Plaintiff’s
physical impairments and mental impairments; (2) Whether the ALJ
erred in rejecting the Third-Party Function Report of
Plaintiff’s wife; and (3) Whether the ALJ erred in failing to
perform a complete function-by-function analysis.
1.

Whether the ALJ erred in rejecting the opinions of the
treating and examining sources with regard to
Plaintiff’s physical and mental impairments

Beginning with Plaintiff’s challenge to the ALJ’s
assessment of the medical evidence, the Court finds that
substantial evidence supports his conclusion that Plaintiff
retained the RFC to perform sedentary work despite his physical
and mental impairments.

“[A]n ALJ is 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.”
Plummer v. Apfel, 186 F.3d 422, 439 (3d Cir. 1999)); see also
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
9

rejected.”); Chandler v. Commissioner of Social Sec., 667 F.3d
356, 361 (3d Cir. 2011) (citing 20 C.F.R. §§ 404.1527(e)(1),
404.1546(c); 20 C.F.R. § 404.1527(d)(1)-(2); SSR 96–6p) (other
quotations, citations, and alterations omitted) (“The ALJ - not
treating or examining physicians or State agency consultants must make the ultimate disability and RFC determinations.
Although treating and examining physician opinions often deserve
more weight than the opinions of doctors who review records, the
law is clear . . . that the opinion of a treating physician does
not bind the ALJ on the issue of functional capacity, and state
agent opinions merit significant consideration as well.”).
Here, the ALJ has readily satisfied this obligation.

In a

detailed and thorough decision, the ALJ meticulously set forth
his reasoning, with detailed support from the record evidence,
for why he accepted and rejected the opinions of Plaintiff’s
treating physicians and the consultative examiners.

For both

Plaintiff’s physical and mental impairments, the ALJ
specifically discussed the content of each treating and
examining source’s opinion, explained what weight he provided to
that opinion, and cited to the record evidence that discounted
or supported his determinations.

(R. at 30-37.)

Ultimately, the ALJ found that even though Plaintiff, who
was 34 years old at the time of his application, experienced
pain, the record did not support the severity complained of by
10

Plaintiff.

As for his lumbar pain, the imaging revealed minimal

findings, he did not go to physical therapy as directed, he did
not seek treatment with a specialist, he refused steroids and an
injection, and he still engaged in many daily activities, such
as gardening.

(R. at 30.)

As for Plaintiff’s knee pain, the ALJ noted that Plaintiff
underwent one MRI in 2011, which did not show significant
pathology or a torn ligament as Plaintiff reported to one
physician; Plaintiff did not undergo a subsequent MRI despite
the recommendation of several doctors; Plaintiff’s symptoms were
a result of disuse atrophy, and physical therapy would alleviate
that condition, but Plaintiff failed to attend physical therapy;
and Plaintiff did not follow-up with an orthopedist as
recommended.

(R. at 30-31.)

With regard to Plaintiff’s mental impairments, the ALJ
found that Plaintiff underwent sporadic mental health treatment
prior to 2015, when he started treatment with a psychiatrist who
monitored his medication and provided therapy.

By January 2016,

Plaintiff’s mental health status examination was within normal
limits.

Additionally, all the medical records from the alleged

onset date in March 2011 through 2016 showed that Plaintiff had
only mild to moderate symptoms.

(R. at 38.)

Moreover,

Plaintiff reported that his pain levels decreased overall after
he started treatment for depression.
11

(R. at 31-33.)

Plaintiff challenges the ALJ’s consideration of each of the
medical providers’ opinions, but the Court finds that the bulk
of his challenges amount to simple disagreement with what the
ALJ found credible rather than a lack of record evidence to
support his decision.

See, e.g., Perkins v. Barnhart, 79 F.

App’x 512, 514–15 (3d Cir. 2003) (“Perkins's argument here
amounts to no more than a disagreement with the ALJ's decision,
which is soundly supported by substantial evidence.”); Moody v.
Commissioner of Social Security Administration, 2016 WL 7424117,
at *8 (D.N.J. 2016) (“[M]ere disagreement with the weight the
ALJ placed on the opinion is not enough for remand.”); Grille v.
Colvin, 2016 WL 6246775, at *8 (D.N.J. 2016) (“Distilled to its
essence, Plaintiff's argument here amounts to nothing more than
a mere disagreement with the ALJ's ultimate decision, which is
insufficient to overturn that decision.”).

The Court will

therefore affirm the ALJ’s assessment of Plaintiff’s physical
and mental impairments because all of his findings are
substantially supported by record evidence.

Hartzell v. Astrue,

741 F. Supp. 2d 645, 647 (D.N.J. 2010) (explaining that a court
may not second guess the ALJ’s conclusions, but may only
determine whether substantial evidence supports the ALJ’s
determinations) (citing Williams v. Sullivan, 970 F.2d 1178,
1182 (3d Cir. 1992) (explaining that the pinnacle legal
principal that applies to the assessment of all of the other
12

standards: A district court is not empowered to weigh the
evidence or substitute its conclusions for those of the ALJ)).
The Court, however, will directly address two more specific
arguments advanced by Plaintiff.

One challenge Plaintiff mounts

to the ALJ’s consideration of the medical evidence regarding
Plaintiff’s physical impairments is Plaintiff’s failure to
follow through with prescribed medical testing, medication, and
physical therapy.

Plaintiff argues that because he was injured

in a workplace accident, his medical care was dictated by
Worker’s Compensation insurance, which would not cover certain
treatments, and he could not otherwise afford such tests and
treatments.

Plaintiff argues that his lack of compliance with

diagnostic and treatment options should not be held against him.
The Court finds Plaintiff’s argument to be without merit.
First, the record evidence cited by Plaintiff to support his
position (R. at 269-70, 294-95) does not indicate that
Plaintiff’s Worker’s Compensation insurance was the barrier to
all his prescribed treatment.

It was noted in a January 24,

2012 medical evaluation that Plaintiff injured his knee at work
on March 27, 2011 (R. at 270), and in October 2013 Plaintiff
stated to a doctor that he “financially cannot obtain surgery”
(R. at 294), 5 but Plaintiff cites to no evidence that his

5

The ALJ recounted this doctor note in his decision.
34.)
13

(R. at

Worker’s Compensation insurance denied the tests and treatment
prescribed by his doctors, including less invasive treatments
like medication and physical therapy. 6
Second, even accepting that financial inability precluded
him from pursing the treatment recommendations of his
physicians, the ALJ did not consider Plaintiff’s lack of
compliance with those recommendations, standing alone, to negate
Plaintiff’s complaints of pain and physical limitations.
Instead, the ALJ considered Plaintiff’s non-compliance as a
factor in determining whether Plaintiff’s pain and limitations
were as severe as he claimed.

In other words, Plaintiff’s

failure to undergo even the most conservative treatment for his

6

20 C.F.R. § 416.930(b) provides, “If you do not follow the
prescribed treatment without a good reason, we will not find you
disabled or blind . . . .” SSR 16-3p provides, “Persistent
attempts to obtain relief of symptoms, such as increasing
dosages and changing medications, trying a variety of
treatments, referrals to specialists, or changing treatment
sources may be an indication that an individual's symptoms are a
source of distress and may show that they are intense and
persistent. In contrast, if the frequency or extent of the
treatment sought by an individual is not comparable with the
degree of the individual's subjective complaints, or if the
individual fails to follow prescribed treatment that might
improve symptoms, we may find the alleged intensity and
persistence of an individual's symptoms are inconsistent with
the overall evidence of record. We will not find an
individual's symptoms inconsistent with the evidence in the
record on this basis without considering possible reasons he or
she may not comply with treatment or seek treatment consistent
with the degree of his or her complaints. . . . When we consider
the individual's treatment history, we may consider . . . An
individual may not be able to afford treatment and may not have
access to free or low-cost medical services.”
14

back and knee impairments, coupled with his daily living
activities and other medical evidence, supported the ALJ’s
conclusion that Plaintiff retained the RFC to perform sedentary
work.

This finding, and how the ALJ came to his conclusion, is

in compliance with the Social Security rules and regulations.
20 C.F.R. §§ 404.1527(d)(2), 404.1546(c) (RFC finding is a
determination expressly reserved to the Commissioner, not
medical providers);

20 C.F.R. § 416.929(c)(4) (“We will

consider whether there are any inconsistencies in the evidence
and the extent to which there are any conflicts between your
statements and the rest of the evidence . . . .”).
Plaintiff’s next main challenge to the ALJ’s consideration
of the medical evidence concerns Plaintiff’s claim that he needs
to elevate his leg.

Plaintiff argues that his need to keep his

leg elevated most of the day negates the ALJ’s RFC
determination, and the ALJ failed to properly credit this
limitation.
Contrary to Plaintiff’s argument, the ALJ properly
considered Plaintiff’s claim that he needs to elevate his leg.
The ALJ noted that Plaintiff testified about a need to elevate
his left leg.

The ALJ detailed medical findings that did not

support “a need to elevate the claimant’s left leg for the
length of time the claimant alleged or the need to do so on a
consistent basis” (R. at 30), and the ALJ did not “find the
15

claimant’s allegations of a need to elevate his leg to what is
essentially an entire work week to be persuasive” (R. at 31).
Although Plaintiff may disagree with the ALJ’s determination,
the ALJ properly supported his finding with the medical
evidence. 7
2.

Whether the ALJ erred in rejecting the Third-Party
Function Report of Plaintiff’s wife

Plaintiff argues that the ALJ did not properly consider the
reports and testimony of Plaintiff’s wife, Jennifer Seewagen,
regarding Plaintiff’s impairments and their effect on his daily
living activities.

The ALJ’s decision provides the following

with regard to Ms. Seewagen:
The claimant's wife, Jennifer Seewagen, completed a
Third Party Adult Function Report on May 3, 2013 (Exhibit
4E). The claimant could manage his personal care needs but
his physical impairments affected his functioning. The
claimant could prepare meals. He cleaned, started the
laundry and mowed the lawn. He shopped in stores. He
managed his financial matters. . . . The claimant spent
time with others. He had difficulty getting along with
others because his father attacked him so he had no
communication with his father. He had difficulty getting
along with authority figures. He had never been fired from
a job due to problems getting along with others. . . . The
claimant needed reminders to go places. He did not need
reminders to take his medication or to manage his personal
care needs. He had difficulty with memory and stress. He
alleged no difficulty with concentration, paying attention,
following instructions and changes in routine. (R. at 19,
20.)
The undersigned notes that the [] claimant and Ms.
7

This analysis also applies to Plaintiff’s argument that the ALJ
failed to perform a function-by-function analysis by not
accounting for Plaintiff’s need to elevate his leg.
16

Seewagen alleged difficulty with memory and stress
(Exhibits 3E and 4E). (R. at 21.)
Under Social Security regulations, Ms. Seewagen, as
the claimant's wife, is not an acceptable medical source
(20 CFR 404.1513(d)). After acknowledging the expansion in
treatment by medical sources that do not fall under the
acceptable medical source standard, the agency promulgated
SSR 06-03p to address situations when non-acceptable
sources provided ongoing care to claimants and subsequently
issued an opinion in support of a disability claim.
According to SSR 06-03p, to consider whether Ms.
Seewagen's opinion can be accepted and outweigh other
acceptable medical source opinions, the following factors
must be reviewed:
•
•
•
•
•

•

How long the source has known and how frequently the
source has seen the individual;
How consistent the opinion is with other evidence;
The degree to which the source presents relevant
evidence to support an opinion;
How well the source explains the opinion;
Whether the source has a specialty or area of
expertise related to the individual's impairment(s),
and
Any other factors that tend to support or refute the
opinion.

After reviewing the factors under SSR 06-03p, the
undersigned concludes that Ms. Seewagen's opinion should be
afforded little weight (Exhibit 4E). There is no
indication in the medical record that Ms. Seewagen has a
background in medicine or medical training. She is not in
a treatment relationship with the claimant. However, she
has known the claimant for many years. The undersigned
assigns some, but not greater, weight to her opinion for
the reasons noted in Finding 4 above when considering each
category. (R. at 37.)
Plaintiff argues that the ALJ erred because he discounted
her lay testimony as that of a non-expert and that such a
premise is circular because it would, in effect, negate the
mandate of SSR 06-03p to consider lay opinion from non17

acceptable sources under certain circumstances.

Plaintiff also

argues that it is incongruous for the ALJ to simultaneously
assign little weight to her opinion, but at the same time assign
some weight to her opinion, and in any event, neither position
is adequately explained.
In evaluating lay testimony, the ALJ must follow the
guidance set forth in SSR 06–03p by evaluating the relevant
factors, assessing the credibility of certain evidence, and
explaining why he found certain evidence to be not credible.
Zirnsak v. Colvin, 777 F.3d 607, 613 (3d Cir. 2014).

The ALJ

properly did so here.
The Court does not find the ALJ’s consideration of Ms.
Seewagen’s testimony to be incongruous or unexplained in the
context of SSR 06–03p.

The ALJ clearly assigned little weight

to Ms. Seewagen’s opinions regarding the nature of Plaintiff’s
physical and mental impairments because she did not have “a
background in medicine or medical training,” and she was “not in
a treatment relationship with the claimant.”

(R. at 37.)

This

analysis complies with SSR 06–03p.
First, this finding directly addresses a factor that SSR
06-03p requires the ALJ to consider – i.e., whether the
otherwise “non-acceptable source” lacked “a specialty or area of
expertise related to the individual’s impairment.”

Second, it

does not follow that discounting an opinion for the reasons
18

stated equates to a circular finding that the opinion is merely
from a non-acceptable medical source.

There are many types of

medical professionals who might not qualify under SSA
regulations as an acceptable medical source who otherwise
provide treatment and have some degree of specialized training
or experience in the broad field of medical care and treatment.
See, e.g., Hevner v. Commissioner Social Security, 675 F. App’x
182, 185 (3d Cir. 2017) (citing SSR 06-03p) (explaining that
“[a]lthough Tardivo is a physician’s assistant and not a medical
doctor, her opinion and treatment notes may “provide insight
into the severity of the impairment[ ] and how it affects the
individual's ability to function,” and thus are still entitled
to some weight as an “other source”).

All the regulation

requires is that a lay opinion from someone with that background
be given greater weight than someone who lacks such training or
experience.

The opposite is also true.

A lay opinion from

someone without such training or experience may be less
persuasive.

See, e.g., Kimble v. Commissioner of Social

Security, 2017 WL 4268035, at *11–12 (D.N.J.

2017) (rejecting

the plaintiff’s argument that the ALJ erred by not affording
greater weight to his wife’s statements, which the plaintiff had
argued were not merely lay opinions since they were supported by
the medical record, because the medical evidence did not
actually corroborate the statements of the plaintiff’s wife, who
19

had no medical background).

Here, the ALJ properly considered

the lack of such training and experience in his overall
assessment of Ms. Seewagen’s testimony.
The ALJ also properly addressed two other factors – how
long the source has known and how frequently the source has seen
the individual as well as how consistent the opinion is with
other evidence – in providing some weight to Ms. Seewagen’s
testimony.

As quoted above, the ALJ recited Ms. Seewagen’s

observations on the third-party function report, and credited
some of Ms. Seewagen’s observations as consistent with the
record evidence, which actually supported Plaintiff’s residual
functional capacity.
This Court must defer to the ALJ’s assessment of Ms.
Seewagen’s reports about her husband, especially where they
corroborate the ALJ’s disability determination.

Zirnsak, 777

F.3d at 613 (citing Diaz v. Commissioner of Social Sec., 577
F.3d 500, 506 (3d Cir. 2009) (“In determining whether there is
substantial evidence to support an administrative law judge's
decision, we owe deference to his evaluation of the evidence,
assessment of the credibility of witnesses, and reconciliation
of conflicting expert opinions.”).

That the ALJ afforded “some”

weight to certain SSR 06-03p factors and “little weight” to
certain testimony after considering other factors in the
regulation is not error; it is evidence of a careful application
20

of the regulation to the evidence.
3.

Whether the ALJ erred in failing to perform a complete
function-by-function analysis

Finally, Plaintiff argues that the ALJ failed to perform a
function-by-function analysis in determining Plaintiff’s RFC
because he did not account for Plaintiff’s limitations in
sitting, standing, walking, lifting, carrying, and the need to
elevate his leg.

This argument is without merit.

“The RFC assessment considers only functional limitations
and restrictions that result from an individual's medically
determinable impairment or combination of impairments, including
the impact of any related symptoms.”

SSR 96-8P.

The ALJ found

Plaintiff’s RFC to be the following:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) except that he can engage in workrelated activities with occasional pushing and pulling with
the left lower extremity, uses a cane with the non-dominant
hand for ambulation and balancing, occasional climbing,
balancing, stooping, kneeling, crouching and crawling,
avoid concentrated exposure to hazards such as unprotected
heights and moving machinery, further limited to unskilled
work involving simple one to two step tasks with occasional
changes in the work setting, no quota or production based
work but rather goal oriented work, and occasional
interaction with co-workers, supervisors and members of the
public.
(R. at 23.)
Sedentary work “involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket

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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.”

20 C.F.R. §

404.1567.
As set forth above, the ALJ thoroughly detailed the
evidence relating to Plaintiff’s mental and physical
impairments, along with Plaintiff’s testimony and the testimony
of his wife.

The ALJ then explained which evidence he credited

and discredited, and why.

Based on that extensive analysis, he

formulated Plaintiff’s RFC, which addressed the functional
limitations he found to be supported by the record.

The ALJ

therefore did not err in this regard.
III. Conclusion
For the foregoing reasons, the ALJ’s determination that
Plaintiff was not totally disabled as of March 27, 2011 is
supported by substantial evidence.

The decision of the ALJ is

therefore affirmed.
An accompanying Order will be issued.

Date: April 10, 2019
At Camden, New Jersey

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

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