MARSELLA v. COMMISSIONER OF SOCIAL SECURITY
Filing
16
OPINION. Signed by Judge Jerome B. Simandle on 2/25/2019. (rss, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BERNADETTE MARSELLA,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.
Civil Action
No. 18-2294 (JBS)
COMMISSIONER OF SOCIAL
SECURITY,
OPINION
Defendant.
APPEARANCES:
Richard Lowell Frankel, Esq.
BROSS & FRANKEL, PA
725 Kenilworth Avenue
Cherry Hill, NJ 08002
Attorney for Plaintiff
Roxanne Andrews, Special Assistant U.S. Attorney
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 Spring Garden Street, 6th Floor
Philadelphia, PA 19123
Attorney for Defendant
SIMANDLE, District Judge:
I.
INTRODUCTION
This matter comes before the Court pursuant to 42 U.S.C §
405(g) for review of the final decision of the Commissioner of the
Social Security Administration (“SSA”) denying the application of
Plaintiff Bernadette Marsella (“Plaintiff”) for Social Security
Disability Insurance (“SSDI”) benefits under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. Plaintiff, who suffers from
degenerative
arthritis,
rib
dysfunction,
chronic
pain
due
to
scoliosis, and other conditions, was denied benefits for the period
of disability from November 1, 2010, the alleged onset date of
disability, to December 31, 2013, the date Plaintiff was last
insured. The Administrative Law Judge (“ALJ”) issued a written
decision on September 21, 2016.
In the pending appeal, Plaintiff contends that the ALJ’s
decision must be reversed and remanded on four grounds. To that
end,
Plaintiff
argues
that
the
ALJ
erred
by:
(1)
finding
Plaintiff’s mental health impairments “not severe” and failing to
include
any
limitations
related
to
those
impairments
in
the
formulation of Plaintiff’s Residual Function Capacity (“RFC”); (2)
failing to account for limitations related to Plaintiff’s cervical
spine impairments, fibromyalgia, costochondritis,1 and irritable
bowel syndrome in the RFC; (3) relying on a vocational expert’s
testimony
without
asking
the
vocational
expert
whether
an
individual with Plaintiff’s RFC could perform Plaintiff’s past
relevant work; and (4) failing to properly evaluate and weigh the
medical evidence of record, including the opinions of Plaintiff’s
treating physicians. For the reasons that follow, the Court will
affirm the ALJ’s decision.
“Costochondritis” is commonly understood as “inflammation of the
cartilaginous junction between a rib or ribs and sternum.”
Dorland’s Illustrated Medical Dictionary 423 (Elsevier Saunders
32nd ed. 2012).
1
2
II.
BACKGROUND
A.
Procedural History
Plaintiff protectively filed an application for SSDI benefits
on April 4, 2013, alleging a disability from November 1, 2010
through December 31, 2013, the date Plaintiff was last insured
(hereinafter, “the Date Last Insured”).2 (R. at 79, 162.) The SSA
denied Plaintiff’s claim on December 4, 2013. (Id.) Plaintiff’s
claim was again denied upon reconsideration on April 12, 2014. (R.
at 93.) A hearing was held before ALJ Michael S. Hertzig on August
19, 2016. (R. at 36-67.) ALJ Hertzig issued a thorough opinion on
September 21, 2016, denying benefits. (R. at 15-31.) On December
14, 2017, the Appeals Counsel denied Plaintiff’s request for
review. (R. at 1-5.) This appeal timely follows.
B.
Personal and Medical History
Plaintiff was 56 years old on the alleged disability onset
date and 61 years old at the time of her hearing before the ALJ.
(R. at 80.) She graduated from high school. (R. at 191.) Plaintiff
The SSDI benefits program “is similar to other insurance programs
in that, to qualify, a claimant must have coverage, i.e., be fully
insured, at the time of disability . . . [and] [t]he coverage
period for an individual extends to his date last insured, which
is the last day when he is eligible for [SSDI benefits].” Bulger
v. Berryhill, 2018 WL 4680267, at *4 (E.D. Pa. Sept. 28, 2018)
(citing 42 U.S.C. §§ 423(a),(c); 20 C.F.R. §§ 404.101(a),
404.131(a)). “Under 20 C.F.R. § 404.131, [a claimant] is required
to establish that he became disabled prior to the expiration of
his insured status.” Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir.
1990) (emphasis added).
2
3
worked as a court services officer at the Camden Hall of Justice
from 1973 until, after accepting an early retirement package that
had been offered to her, she retired on December 1, 2008.3 (R. at
190, 282, 286.) Plaintiff subsequently received a state pension.
(R. at 43.) According to Plaintiff, at the time of her early
retirement, she intended to take three years off from work and
then return to work on a part-time basis, but she was not able to
return to do so due to the onset of her alleged symptoms in November
2010. (R. at 439.)
1.
Physical Impairments Prior to Date Last Insured
Around November 2010, Plaintiff injured herself while taking
several golf lessons. (R. at 44.) According to Plaintiff:
[R]ight after, possibly the last lesson, I started to
experience, like, the upper quad from the top of my leg
to the top of my neck . . . . I was having pain and
discomfort. And I felt like my skeletal system just
wanted to rotate; wanted to twist me from the right to
left.
There appears to be some confusion in the Administrative Record
between Plaintiff’s last day of employment, which was in November
of 2008, and her alleged onset disability date, which began in
November of 2010. For example, during her hearing before the ALJ,
Plaintiff stated, “I last worked the last day of November of 2010”
(R. at 40), and told the ALJ that she retired “in 2010.” (R. at
43); see also (R. at 181) (in Work History Report, Plaintiff stated
that she worked as a court services officer from 1973 through
2010). But Plaintiff’s other statements to the SSA (R. at 190),
earnings statements (R. at 166-69), and medical records (R. at
282) demonstrate that she retired at the end November 2008, about
two years before her alleged onset disability date of November 1,
2010. Thus, the Court has determined that Plaintiff merely misspoke
when she testified that she retired in November 2010.
3
4
(R. at 44-45.) Thereafter, Plaintiff “resumed normal activity,”
like landscaping and playing golf until sometime between the spring
of 2011 and the beginning of 2012, when her pain “came back with
a vengeance.” (R. at 45-46.)
Plaintiff started treating with Dr. Julian Maressa, D.O. on
July 28, 2011. (R. at 294-95.) Dr. Maressa initially treated
Plaintiff for atopic dermatitis (eczema) and called in dicyclomine
prescriptions for her. (R. at 294-97.) Plaintiff subsequently
underwent testing on October 7, 2011. (R. at 297-301.) On May 21,
2012, Plaintiff returned to Dr. Maressa for stomach issues and
acid reflux. (R. at 301-02.)
On May 31, 2012, Plaintiff first complained to Dr. Maressa of
shoulder, arm, and rib pain on her right side, which she reported
to have been experiencing for four to five weeks. (R. at 302.) Dr.
Maressa diagnosed Plaintiff with right flank pain, osteoarthritis,
female stress incontinence, and irritable bowel syndrome, and
advised her to follow up in two months. (R. at 302-04.) Because
Plaintiff had been experiencing bloating and soreness, Dr. Maressa
also ordered her to undergo laboratory testing and a CT scan of
her abdomen and pelvis, which revealed normal findings. (R. at
305-07.)
Plaintiff followed up with Dr. Maressa and his partner, Dr.
David T. Gigliotti, D.O., on several occasions in June and July
2012, complaining of abdominal pain, gas, and/or bloating, in
5
addition to pain in her right rib, arm, and shoulder. (R. at 30719.) These examinations again revealed normal findings (R. at 313),
and Dr. Maressa recommended exercise and prescribed baclofen. (R.
at 316.)
On August 9, 2012, Plaintiff visited with Dr. Maressa for
complaints of muscle cramps, back pain, stiffness, and arthritis.
(R. at 321.) Dr Maressa observed that Plaintiff had a decreased
range of motion at this time and recommended that she continue her
current medications (baclofen and nexium) at the prescribed dose
and frequency and follow up again in one month. (R. at 321-22.)
Around this time, Dr. Maressa also referred Plaintiff to physical
therapy
and
chiropractic
care.
(R.
at
322-28.)
According
to
Plaintiff, this physical therapy “was a total waste of time” and,
after three months, she stopped attending. (R. at 46-47.) She also
testified that the first chiropractor Dr. Maressa referred her to,
Bill Nicoletta, was not able to help. (R. at 48.)
In mid-December of 2012, Dr. Maressa reported that, although
physical therapy and chiropractic care had not provided relief,
non-steroid anti-inflammatory drugs (“NSAIDS”) and muscle relaxers
had improved Plaintiff’s back pain and numbness and weakness in
her neck and entire back. (R. at 329-30.) Dr. Maressa also ordered
laboratory tests to rule out autoimmune disorders, recommended
continued exercise, and continued baclofen and naproxen. (R. at
330.)
Shortly
thereafter,
Dr.
6
Gigliotti
added
Ultracet
to
Plaintiff’s medication regimen for her complaints about pain. (R.
at 338.) Dr. Gigliotti noted that Plaintiff reported ongoing “all
over body pain-nerve issues” of two-year duration that was likely
musculoskeletal in nature and he administrated a trigger point
injection for muscle spasms. (R. at 339.)
In January 2013, Plaintiff began chiropractic treatment with
Dr.
Stanley
Pitlin,
D.C.
(R.
at
241.)
Dr.
Pitlin
diagnosed
Plaintiff with idiopathic scoliosis of the thoracic disc, thoracic
myofascial pain syndrome, and cervicalgia. (R. at 242.) Plaintiff
treated with Dr. Pitlin twice every week through May 2013. (R. at
243-67.)
Plaintiff met with Dr. Gigliotti and Dr. Maressa several times
between January and May of 2013. (R. at 343-82.) On January 9,
2013,
Dr.
Gigliotti
noted
Plaintiff’s
definite
right-sided
hypertonicity and myofascial drag and added calcium-magnesium to
her medication regimen. (R. at 343-44.) On a later visit, Plaintiff
reported slight improvement due to chiropractic care, but also
reported ride-side complaints and sensations all over her body.
(R. at 346.) On March 5, 2013, Dr. Gigliotti prescribed Plaintiff
Cymbalta for fibromyalgia, notwithstanding that the condition was
described as “improved.” (R. at 356-57.) Later that month, Dr.
Gigliotti reported that Plaintiff’s myofascial pain syndrome was
improved even though Plaintiff had not started taking Cymbalta
because
she
did
not
want
to
take
7
that
medicine
until
the
fibromyalgia diagnosis was confirmed. (R. at 360-61.) On April 16,
2013, Plaintiff reported “pain all over body,” burning, stiffness,
and loss of strength one day after a chiropractic visit. (R. at
368.) Dr. Maressa prescribed Tramadol after examination revealed
joint tenderness, decreased range of motion, “arthritic changes,”
and “right shoulder girdle symptoms.” (R. at 369.) Plaintiff again
exhibited “arthritic changes” and decreased range of motion on two
visits in May 2013, and Dr. Maressa recommended acupuncture and
more physical therapy at this time. (R. at 374-79.)
On May 20, 2013, Dr. Daniel J. Ragone, Jr., M.D., P.A.,
examined
Plaintiff
and
noted
Plaintiff’s
right
shoulder
pain
radiating into her ribs, as well as burning and tingling sensations
in her right arm. (R. at 459.) Dr. Ragone also noted scattered
trigger points and taut muscle bands and somatic dysfunction (ERS)
at right greater than left C5-C7, T4-T8, and L3-L5. (R. at 460.)
Based on his findings, Dr. Ragone recommended a TENS unit, trigger
point
injections,
and
acupuncture,
and
prescribed
Plaintiff
Neurontin for her neuropathic pain. (R. at 461.)
On May 30, 2013, Plaintiff started treating at Cross Keys
Physical Therapy, where she continued to treat until November 2015.
(R. at 676-712.) On July 23, 2013, Dr. David B. Anselmo, PT of
Cross Keys Physical Therapy, informed Dr. Maressa that Plaintiff
still had pain and stiffness but could move better. (R. at 680.)
In October 2013, Plaintiff told her physical therapist that she
8
had 5% less pain and limitations in her daily activities (R. at
686) and, by December 2013, Plaintiff reported that she had 75%
less pain and limitations since beginning therapy. (R. at 689.)
On
October
23,
2013,
Plaintiff
underwent
a
consultative
orthopedic examination with Dr. Paul DiLorenzo, M.D. (R. at 28690.) Dr. DiLorenzo reported that Plaintiff had normal gait, no
difficulty
walking,
squatting,
or
rising
from
squatting;
no
trigger points or sensory or motor loss in any lower extremity;
normal strength and full range of motion; osteoarthritic changes
in the shoulders; and decreased cervical range of motion and
minimal tenderness, but no trigger points. (R. at 286-87.) He
concluded that Plaintiff had age-related degenerative arthritis in
her cervical, lumbar, and thoracic spine with no evidence of
radiculopathy, trigger points, or other findings consistent with
fibromyalgia, and opined that Plaintiff’s overall examination was
consistent
with
only
“arthritic
changes,”
including
in
the
shoulders. (R. at 287-88.)
On December 12, 2013, Plaintiff visited with Dr. Maressa and
reported she “was feeling better, over did it, [and is] now a
little worse.” (R. at 410.) Examination revealed bilateral leg
edema, but Plaintiff had a normal gait and was advised to continue
her
medications
(baclofen,
Aleve,
calcium-magnesium,
and
naproxen), do home exercises, and follow up in four weeks. (R. at
9
412.) This was Plaintiff’s last treatment note from before the
Date Last Insured.
2.
Mental Impairments Prior to Date Last Insured
Plaintiff first treated for anxiety and depression with Dr.
Steven Reed, Ph.D. on April 18, 2013. (R. at 276.) Plaintiff met
with Dr. Reed again on May 31, 2013 (id.), and on June 12, 2013,
Dr.
Reed
completed
a
Social
Security
Disability
Psychiatric
Report. (R. at 275-81.) In the Psychiatric Report, Dr. Reed noted
that Plaintiff had never sought psychiatric services of any kind
before presenting to him in April 2013 and he diagnosed Plaintiff
with adjustment disorder with mixed anxiety and depressed mood.
(R. at 276.) Dr. Reed reported that, “[w]hile there appear to be
no limitations on [Plaintiff’s] mental capacity for work-related
activities, it is my understanding that this is irrelevant in this
[Plaintiff’s] case. Her primary concern is her physical condition”
(R.
at
279)
and
“[t]here
appear
to
be
no
limitations
psychiatrically on [Plaintiff’s] ability to carry out activities
of daily living. As noted on previous pages, however, her primary
concern is her physical condition.” (R. at 280) (emphasis in
original). In other words, Dr. Reed concluded that Plaintiff had
no mental limitations that would impede work.
At the request of the State of New Jersey Department of Labor
and Workforce Development Division of Disability Determination
Services (“DDS”), Dr. Lewis A. Lazarus, Ph.D., examined Plaintiff
10
on October 18, 2013. (R. at 282-85.) Plaintiff reported to Dr.
Lazarus that she had been seeing Dr. Reed twice per month for the
past seven months, on referral from her primary care because of
depression and anxiety. (R. at 282.) According to Dr. Lazarus,
Plaintiff “noted prominent depressive symptoms including feeling
dysphoric and sad most days with occasional crying spells, having
diminished self-esteem, feelings of hopelessness and some feelings
of worthlessness,” but she denied any recurrent thoughts of death
or
suicide.
(R.
at
283.)
Dr.
Lazarus
observed
that,
upon
examination, Plaintiff was fully alert and oriented, and she
reported being independent in all activities of daily living,
including preparing meals and cleaning, with occasional help from
family and friends. (Id.) Dr. Lazarus concluded that “[Plaintiff]
indicated she voluntarily retired because of a situation at work
but was not necessarily having difficulties in her job” and
ultimately recommended that she continue individual supportive
counseling as was reportedly being provided. (R. at 284.)
3.
Dr. Reed’s 2014 and 2016 Letters
In a letter dated March 9, 2014, Dr. Reed provided an update
to the SSA, wherein he stated that “[l]ittle has changed since
May, 2013” except that “[h]er depressive symptoms have worsened,
to some degree.” (R. at 422.) For these reasons, Dr. Reed changed
his
diagnosis
of
adjustment
disorder
with
mixed
anxious
and
depressive symptoms to a diagnosis of depressive disorder, not
11
otherwise specified. (Id.) Dr. Reed further noted that Plaintiff
“remains fully functional, psychiatrically and cognitively” and
“[w]hile
she
depressing,
adaptative
finds
there
her
have
functioning.”
current
been
circumstances
no
(Id.)
significant
Dr.
Reed
did
distressing
declines
not
and
in
her
provide
any
treatment notes. (Id.)
On August 17, 2016, Dr. Reed prepared another letter on
Plaintiff’s behalf. (R. at 492.) Dr. Reed indicated that, since
March 9, 2014, Plaintiff had continued to visit with him about
once every three weeks and her diagnosis remained unchanged. (Id.)
According to Dr. Reed, “[w]hile the severity of the symptoms has
fluctuated
from
session
to
session,
Ms.
Marsella
remains
clinically depressed and anxious.” (Id.) Dr. Reed further noted
that, “[a]s was the case in 2013 and 2014, her anxious and
depressive [symptoms] are painful emotionally and further erode
her quality of life on a daily basis.” (Id.) Again, Dr. Reed did
not provide any treatment notes.
4.
Dr. Maressa’s June 2014 Medical Source Statement
On June 26, 2014, Dr. Maressa completed a Medical Source
Statement on Plaintiff’s behalf. (R. at 425-35.) Dr. Maressa
diagnosed Plaintiff with somatic dysfunction of the right thoracic
spine, right shoulder pain, cervical pain, and scoliosis, and
indicated that Plaintiff had substantial physical limitations. (R.
at 425.) Dr. Maressa opined that Plaintiff could only walk one to
12
three city blocks without rest or severe pain, could sit for less
than two hours in an eight-hour workday, could stand/walk for up
to one hour in an eight-hour workday, and could frequently lift
and carry less than ten pounds occasionally, but never lift and
carry any weight above ten pounds. (R. at 428.) According to Dr.
Maressa,
during
an
eight-hour
workday,
Plaintiff
would
be
frequently limited in looking down and turning her head right or
left, and occasionally limited in looking up or holding her head
in a static position. (R. at 432.) Dr. Maressa further opined that
the side effects of Plaintiff’s medications, including muscle
relaxants and NSAIDs, would significantly affect her ability to
perform work duties, and that Plaintiff’s pain would be severe
enough to interfere with the concentration and attention required
to perform simple work tasks for 25% or more of a typical work
day. (R. at 426.) Dr. Maressa stated that Plaintiff’s limitations
existed at least since April 2012. (R. at 434.)
5.
Dr. Knod’s August 2015 Examination
On August 24, 2015, about 20 months after her last insured
date, Plaintiff underwent a Comprehensive Independent Medical
Examination
with
George
A.
Knod,
D.O.
(R.
at
436-452.)
In
preparation for this examination, Dr. Knod performed a thorough
review of Plaintiff’s medical records, including imaging studies,
treatment notes, and consultative examination reports. (R. at 43738.) Dr. Knod noted that Plaintiff stated her pain was aggravated
13
by standing in position for up to a half hour, any bending, walking
farther than one block, lifting greater than six pounds, and
squatting, and further noted that her physical therapy merely
“calms it.” (R. at 438.) On examination, Dr. Knod found balance
deficits that prevented Plaintiff from heel-to-toe walking or
squatting and positive Tinel’s sign at the carpal tunnel of the
right wrist, degenerative changes in the bilaterally PIP joints,
and diminished grip strength. (R. at 442-43.)
Dr. Knod’s impression was that Plaintiff had: chronic neck
pain due to cervical degenerative disc disease with possible
advances
cervical
spondylosis;
chronic
mid-back
pain
due
to
dextroscoliosis and degenerative disc disease of the thoracic
spine; chronic low-back pain with radiographic lumbar degenerative
disc disease; restricted range of motion in the right shoulder
with
suggestion
of
impingement
and
osteoarthritic
changes;
myofascial pain syndrome with diffuse muscle spasm and trigger
points on examination; degenerative arthritis in the bilateral
hands; and a mental health history consistent with adjustment
disorder with anxiety and depression. (R. at 443.) He opined that
this “multitude of problems,” taken individually or separately,
would
limit
Plaintiff’s
ability
to
work
in
a
competitive
environment on a regular, full-time basis. (R. at 444.)
14
C.
State Agency Consultants
Dr.
Isabella
M.
Rampello,
M.D.,
a
State
agency
medical
consultant, reviewed Plaintiff’s medical records and assessed her
physical residual functional capacity. (R. at 68-78.) Dr. Rampello
opined that Plaintiff could occasionally lift and/or carry 20
pounds, frequently carry 10 pounds, stand and/or walk (with normal
breaks) for six hours in an eight-hour workday, could sit (with
normal breaks) for six hours in an eight-hour workday, could
occasionally climb ramps or stairs, balance, stoop, kneel, crouch,
and crawl, could never climb ladders, ropes, or scaffolds, and was
limited in reaching overhead. (R. at 75-76.) Dr. Seung Park, M.D.,
another State agency medical consultant, reviewed Plaintiff’s
medical records and concurred with Dr. Rampello’s opinion as to
Plaintiff’s physical residual functional capacity. (R. at 88-89.)
D.
Plaintiff’s Statements and Activities
In an Adult Function Report dated May 21, 2013, Plaintiff
indicated that she cannot stay in any position for more than
fifteen or twenty minutes before experiencing discomfort and pain,
including muscle spasms. (R. at 197.) She also noted that pain and
depression affected her sleep, and that she could only sleep on
and off for an hour at a time. (R. at 198.) According to Plaintiff,
she used a TENS unit for her back pain. (R. at 203.) She stated
that she had difficulty with lifting, squatting, walking, sitting,
15
stair-climbing, using her right arm and hand, bending, standing,
reaching, kneeling, and concentration. (R. at 201-02.)
During a hearing held by the ALJ on August 19, 2016, Plaintiff
testified that she had experienced pain, starting in her groin
area and working its way up into her right shoulder and neck, since
somewhere between the spring of 2011 and the beginning of 2012.
(R. at 46.) Plaintiff testified that her treating physician, Dr.
Maressa, referred her to physical therapy in the spring/summer of
2012, but that it did not provide any relief (R. at 46-47), and
further testified that, at the time of the hearing, she continued
to attend maintenance physical therapy to the extent that her
medical insurance allowed. (R. at 51.)
Regarding her daily activities prior to December 31, 2013,
Plaintiff explained that she was limited in her walking and sitting
and stated that her pain could only be calmed by lying down and
medicating. (R. at 52-53.) According to Plaintiff, she was able to
do household chores like vacuuming, laundry, and dishes with help
from her friend, and that she went to the gym to do yoga stretches
on weeks she did not have physical therapy. (R. at 56.) Plaintiff
also
testified
to
mental
impairments,
including
depression,
anxiety, and memory and concentration problems, and stated that
the more she needed to take medication for her pain, the worse
those problems got. (R. at 56-57.)
16
E.
Vocational Expert Testimony
During Plaintiff’s hearing in front of the ALJ, the ALJ also
heard testimony from Janes Earhart, a vocational expert. (R. at
61-66.) Based on Plaintiff’s testimony, the vocational expert
described Plaintiff’s past work as a court clerk (DOT 243.362010), which is classified as a sedentary and skilled position at
the SVP-6 level. (R. at 66.) The ALJ did not ask the vocational
expert any hypothetical questions, including whether a person with
Plaintiff’s RFC could perform work as a court clerk, which the
Court addresses in Section IV.B.3, infra.
F.
ALJ Decision
In a written decision dated September 21, 2016, the ALJ found
that Plaintiff was not disabled within the meaning of the Social
Security
Act
at
any
time
between
the
alleged
onset
date
of
disability and the Date Last Insured because, consistent with
Plaintiff’s age, education, work experience, and RFC, she was
capable of performing her past work as a court clerk. (R. at 31.)
At the first stage of the five-step sequential evaluation
process, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since November 1, 2010 through her
date last insured of December 31, 2013. (R. at 18.)
Next, at step two, the ALJ determined that Plaintiff had the
following “severe” impairments: degenerative disc disease of the
lumbar and cervical spine. (Id.) The ALJ found Plaintiff’s alleged
17
irritable bowel syndrome, costochondritis, and fibromyalgia to be
“non-severe” because “the bases of these conditions is not clear
from
the
record”
and,
“[t]o
the
extent
that
these
could
be
considered impairments, the record is insufficient to determine
severity, particularly prior to the date last insured.” (R. at
18.) The ALJ also found that Plaintiff’s medically-determinable
mental impairments of depression and anxiety were “non-severe” (R.
at 19), as discussed in Section IV.B.1, infra.
At step three, the ALJ concluded that none of Plaintiff’s
impairments or combination of impairments met or medically equaled
the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1, including those set forth in Listings
1.02 and 1.04. (R. at 19-21.)
Between steps three and four, the ALJ determined that through
the Date Last Insured, Plaintiff possessed the RFC to perform
“light work as defined in 20 C.F.R. § 404.1567(b), to include the
full
range
of
sedentary
work,
except
that
she
could
only
occasionally perform all postural activities.” (R. at 21.) In
determining Plaintiff’s RFC, the ALJ considered “all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent
with
the
objective
medical
evidence
and
other
evidence.” (R. at 21.) Although the ALJ found that Plaintiff’s
impairments “could reasonably be expected to cause the alleged
symptoms,” she concluded that Plaintiff’s statements “concerning
18
the intensity, persistence and limiting effects of these symptoms
are not entirely credible
for the reasons explained in this
decision.” (R. at 23.) In doing so, the ALJ analyzed the medical
evidence in the record (including records dating from the alleged
onset date through the Date Last Insured, as well as records dating
on or after the date last insured) with respect to each of
Plaintiff’s impairments. (R. at 21-29.)
In crafting the RFC, the ALJ also considered the opinions of
various treating physicians and State agency medical consultants.
(R. at 30-31.) The ALJ assigned “little weight” to Dr. Maressa’s
June 2014 opinion that Plaintiff was severely limited and had been
since November of 2010 because “[Dr. Maressa’s] own treatment notes
indicate that [Plaintiff] had varying complaints and that she was
helped by [physical therapy]” and because “Dr. Maressa is not a
mental health specialist, and in any event, his chart notes do not
list any mental health complaints until after the date last
insured.” (R. at 30) Moreover, “[w]ith the exception of hand/reach
limitations, which are not supported by the record,” the ALJ gave
“great
weight”
to
the
opinions
of
the
DDS
and
State
agency
consultants “who had access to much of the evidence available for
the period from the alleged onset date to the date last insured.”
(R. at 31.) The ALJ did not explicitly assign any weight to Dr.
Knod’s August 2015 examination, as discussed in Section IV.B.4,
infra.
19
Based
on
Plaintiff’s
RFC
and
the
vocational
expert’s
testimony from the September 2016 hearing, the ALJ found, at step
four, that Plaintiff was able to perform her past relevant work as
a
court
clerk.
(R.
at
31.)
Accordingly,
the
ALJ
found
that
Plaintiff was not under a disability, as defined in the Social
Security Act, from March November 1, 2010 through December 31,
2013. (Id.)
III. STANDARD OF REVIEW
This Court reviews the Commissioner's decision pursuant to 42
U.S.C.
§
405(g).
Commissioner’s
Commissioner’s
The
Court’s
decision,
factual
review
and
the
findings
is
deferential
Court
where
they
to
must
uphold
are
supported
the
the
by
“substantial evidence.” 42 U.S.C. § 405(g); see also Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Cunningham v. Comm’r of
Soc. Sec., 507 F. App’x 111, 114 (3d Cir. 2012). Substantial
evidence is defined as “more than a mere scintilla,” meaning “such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 400
(1971); see also Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292
(3d Cir. 2012) (using the same language as Richardson). Therefore,
if
the
ALJ’s
findings
of
fact
are
supported
by
substantial
evidence, those findings bind the reviewing court, whether or not
it would have made the same determination. Fargnoli, 247 F.3d at
38. The Court may not weigh the evidence or substitute its own
20
conclusions for those of the ALJ. Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 359 (3d Cir. 2011). Remand is not required where it
would not affect the outcome of the case. Rutherford v. Barnhart,
399 F.3d 546, 553 (3d Cir. 2005).
IV.
DISCUSSION
A.
Legal Standard for Determination of Disability
In
order
disability
to
establish
insurance
a
benefits,
disability
a
claimant
for
the
must
purpose
demonstrate
of
a
“medically determinable basis for an impairment that prevents him
from engaging in any ‘substantial gainful activity’ for a statutory
twelve-month period.” Plummer v. Apfel, 186 F.3d 422, 426 (3d Cir.
1999); 42 U.S.C. § 423(d)(1). A claimant lacks the ability to
engage in any substantial activity “only if his physical or mental
impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.”
Plummer, 186 F.3d at 427–428; 42 U.S.C. § 423(d)(2)(A).
The Commissioner reviews claims of disability in accordance
with the sequential five-step process set forth in 20 C.F.R. §
404.1520. In step one, the Commissioner determines whether the
claimant currently engages in “substantial gainful activity.” 20
C.F.R.
§
1520(b).
Present
engagement
in
substantial
activity
precludes an award of disability benefits. See Bowen v. Yuckert,
21
482
U.S.
137,
140
(1987).
In
step
two,
the
claimant
must
demonstrate that the claimant suffers from a “severe impairment.”
20
C.F.R.
§
1520(c).
Impairments
lacking
sufficient
severity
render the claimant ineligible for disability benefits.
See
Plummer, 186 F.3d at 428. Step three requires the Commissioner to
compare medical evidence of the claimant’s impairment(s) to the
list of impairments presumptively severe enough to preclude any
gainful activity. 20 C.F.R. § 1520(d). If a claimant does not
suffer from a listed impairment or its equivalent, the analysis
proceeds to steps four and five. Plummer, 186 F.3d at 428. Between
steps three and four, the ALJ determines the claimant’s RFC. 20
C.F.R. § 404.1545. Step four requires the ALJ to consider whether,
based on his or her RFC, the claimant retains the ability to
perform past relevant work. 20 C.F.R. § 1520(e). If the claimant’s
impairments render the claimant unable to return to the claimant’s
prior occupation, at step five the ALJ will consider whether the
claimant possesses the capability to perform other work existing
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and work
experience. 20 C.F.R. §§ 1520(g), 404.1560(c).
B.
Analysis
Plaintiff argues
that the ALJ erred by:
(1) 1) finding
Plaintiff’s mental health impairments “not severe” and failing to
include
any
limitations
related
22
to
those
impairments
in
the
formulation
of
Plaintiff’s
RFC;
(2)
failing
to
account
for
limitations related to Plaintiff’s cervical spine impairments,
fibromyalgia, costochondritis, and irritable bowel syndrome in the
RFC; (3) relying on a vocational expert’s testimony without asking
the vocational expert whether an individual with Plaintiff’s RFC
could perform Plaintiff’s past relevant work; and (4) failing to
properly
evaluate
and
weigh
the
medical
evidence
of
record,
including the opinions of Plaintiff’s treating physicians. The
Court addresses each argument in turn.
1.
Substantial evidence supports the ALJ’s treatment
of Plaintiff’s mental impairments
Plaintiff first avers that the ALJ erred in his treatment of
Plaintiff’s mental impairments by finding them “non-severe” at
step two, and also by failing to include any limitations related
to those impairments in formulating Plaintiff’s RFC between steps
three and four. (Pl.’s Br. at 14-17.) Specifically, Plaintiff
argues that the ALJ improperly disregarded the opinions of Dr.
Reed and Dr. Lazarus regarding Plaintiff’s alleged depression and
anxiety. (Id. at 15-16.) To the contrary, the Court finds that
substantial evidence supports the ALJ’s treatment of Plaintiff’s
mental impairments.
At step two of the sequential elevation process, the ALJ must
“determine
determinable
whether
an
physical
individual
or mental
23
has
a
severe
impairment or
medically
combination
of
impairments that has lasted or can be expected to last for a
continuous period of at least 12 months or end in death.” SSR 963p. For an adult, “[a] severe impairment is one that affects an
individual’s ability to perform basic work-related activities.”
Id. “Since it is apparent that the ALJ cannot reject evidence for
no reason or for the wrong reason, 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, 706-07
(3d Cir. 1981) (internal citation omitted).
Even
if
the
ALJ
properly
determines
that
a
claimant’s
impairments are non-severe, however, a finding of non-severity
does not eliminate those impairments from consideration of his or
her overall ability to perform past work. Indeed, between steps
three and four, the ALJ is required to assess all of the claimant’s
impairments - even ones that are not “severe” - in combination,
when
making
the
404.1545(a)(2) (“We
RFC
will
determination. See 20
consider
all
of
C.F.R.
your
§
medically
determinable impairments of which we are aware, including your
medically
determinable
explained
in §§
impairments
that
404.1520(c), 404.1521,
are
not
‘severe,’
and 404.1523,
when
as
we
assess your residual functional capacity.”). SSR 96–8p is clear
about what the ALJ must consider:
24
In
assessing
RFC,
the
adjudicator must consider
limitations and restrictions imposed by all of an
individual’s impairments, even those that are not
“severe.” While a “not severe” impairment(s) standing
alone may not significantly limit an individual’s
ability to do basic work activities, it may—when
considered with limitations or restrictions due to other
impairments—be critical to the outcome of a claim. For
example, in combination with limitations imposed by an
individual’s other impairments, the limitations due to
such a “not severe” impairment may prevent an individual
from performing past relevant work or may narrow the
range of other work that the individual may still be
able to do.
SSR 96–8p (emphasis added); see also Soboleski v. Comm’r of Soc.
Sec., 2015 WL 6175904, at *2 (D.N.J. Oct. 20, 2015) (explaining
that a finding of non-severity “does not obviate the need for a
separate analysis of how Plaintiff’s impairment affects her RFC”).
The
ALJ
must
therefore
consider
all
relevant
evidence
when
determining an individual’s RFC. See, e.g., Fargnoli v. Massanari,
247 F.3d 34, 41 (3d Cir. 2001).
Here, the ALJ determined that Plaintiff’s depression and
anxiety during the period between her alleged onset date and Date
Last Insured were “non-severe.” (R. at 17-19.) After considering
the
relevant
medical
records,
the
ALJ
found
“[t]here
is
no
treatment of any kind of record until July of 2011,” “[i]n terms
of depression, the treatment record to the date last insured
includes only the report from Dr. Reed in June of 2013, with no
accompanying treatment notes,” and “[i]n any event, Dr. Reed
clearly indicated that [Plaintiff] had no functional limitations
25
resulting from a mental impairment.” (R. at 18-19.) The ALJ further
noted that Dr. Lazarus also found in October of 2013 “no clear
limitations resulting from any mental impairment, and he diagnosed
only adjustment disorder.” (R. at 19.) The ALJ considered Dr.
Reed’s March 2014 and August 2016 letters indicating that Plaintiff
had more significant mental issues, but gave these notes no weight
and found the letters did not relate back to the period preceding
the Date Last Insured because “there are no accompanying treatment
notes and [Plaintiff] did not at that time take any medication for
any mental condition.” (Id.) The ALJ also concurred with the
findings
of
the
State
agency
consultants
that
there
was
insufficient evidence of any severe mental impairment prior to the
Date Last Insured. (Id.) Finally, the ALJ considered the four broad
functional
areas
set
out
in
the
disability
regulations
for
evaluating mental disorders and in section 12.00C of the Listing
of Impairments known as the “paragraph B” criteria and found that
“[b]ecause [Plaintiff’s] medically determinable mental impairment
caused no more than ‘mild’ limitation in any of the first three
functional areas and ‘no’ episodes of decompensation which have
been of extended duration in the fourth area,” here depression and
anxiety were “non-severe.” (Id.)
The record indicates that Plaintiff did not seek treatment
for any mental health issues until April 2013, when she met with
Dr. Reed for the first time. (R. at 276.) Dr. Reed subsequently
26
reported
in
June
2013
that,
“[w]hile
there
appear
to
be
no
limitations on [Plaintiff’s] mental capacity for work-related
activities, it is my understanding that this is irrelevant in this
[Plaintiff’s] case. Her primary concern is her physical condition”
(R. at 279);
see also (R. at 280)
(“There appear to be no
limitations psychiatrically on [Plaintiff’s] ability to carry out
activities of daily living. As noted on previous pages, however,
her primary concern is her physical condition.”) (emphasis in
original). A few months later, Dr. Lazarus examined Plaintiff,
reported
that
she
was
fully
alert,
oriented,
and
remained
independent in all activities of daily living, and concluded that:
The recommendations at this time are for individual
supportive counseling to continue as is currently
reportedly being provided. [Plaintiff] indicated she
voluntarily retired because of a situation at work but
was not necessarily having difficulties in her job.
(R. at 284.) Notably, like Dr. Reed, Dr Lazarus did not assess any
functional
limitations
as
a
result
of
Plaintiff’s
mental
impairments. (R. at 282-84.) And, as noted by the ALJ, none of Dr.
Reed’s treating notes are in the record. (R. at 18.) The ALJ fully
accounted for Dr. Reed’s and Dr. Lazarus’s opinions (R. at 18-19)
and substantial evidence supports the ALJ’s ultimate determination
that Plaintiff’s depression and anxiety prior to the Date Last
Insured were “non-severe.”
The ALJ also discussed evidence that post-dated the relevant
period (i.e., after the Date Last Insured), namely two letters
27
prepared by Dr. Reed on March 9, 2014 (R. at 422) and August 16,
2016 (R. at 492), which indicated that Plaintiff’s depressive
symptoms had worsened to some degree. The Court finds that the ALJ
reasonably concluded that “[b]ecause there are no accompanying
treatment notes and [Plaintiff] did not at that time take any
medication for any mental condition, the undersigned does not find
that these two later opinions relate back to the period preceding
the date last insured, and they are given no weight in regard to
that
period.”
(R.
at
19.)
In
any
event,
“[e]vidence
of
an
impairment which reached disabling severity after the date last
insured or which was exacerbated after this date, cannot be the
basis
for
the
determination
of
entitlement
to
a
period
of
disability and disability insurance benefits, even though the
impairment itself may have existed before [a] plaintiff’s insured
status expired.” Manzo v. Sullivan, 784 F. Supp. 1152, 1156 (D.N.J.
1991) (citing Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989);
see also DeNafo v. Finch, 436 F.2d 737, 739 (3d Cir. 1971).
Accordingly, and for the reasons described above, the Court
finds that substantial evidence supports the ALJ’s determination
that, prior to the Date Last Insured, Plaintiff’s depression and
anxiety were “non-severe” and, in any event, the ALJ properly
analyzed these impairments in formulating Plaintiff’s RFC.
28
2.
Substantial evidence supports the ALJ’s other RFC
determinations
Plaintiff next argues that the ALJ erred by failing to account
for limitations related to Plaintiff’s cervical spine impairments,
fibromyalgia, costochondritis, and irritable bowel syndrome in the
RFC. (Pl.’s Br. at 17-20.) The Court disagrees and finds that
substantial
evidence
supports
the
ALJ’s
determination
that,
notwithstanding these conditions, Plaintiff could perform a range
of light and sedentary work.
Between steps three and four, the ALJ is required to assess
all of the claimant’s impairments - even ones that are not “severe”
- in combination, when making the RFC determination. See 20 C.F.R.
§
404.1545(a)(2)
(“We
will
consider
all
of
your
medically
determinable impairments of which we are aware, including your
medically
determinable
impairments
that
are
not
‘severe,’
as
explained in §§ 404.1520(c), 404.1521, and 404.1523, when we assess
your residual functional capacity.”). Again, as previously noted,
the ALJ must apply SSR 96–8p, as quoted above.
Here, the ALJ considered all of Plaintiff’s “severe” (R. at
21-29) and “non-severe” impairments (R. at 17-19), before finding
that she possessed the RFC to perform “light work . . . to include
the full range of sedentary work, except that she could only
occasionally perform all postural activities.” (R. at 21.) As the
29
ALJ explained with respect to Plaintiff’s alleged fibromyalgia,
costochondritis, and irritable bowel syndrome:
Although [Plaintiff’s] primary care records mention
diagnoses of irritable bowel syndrome, costochondritis,
and fibromyalgia, the basis of these conditions is not
clear from the record. To the extent these could be
considered impairments, the record is insufficient to
determine severity, particularly prior to the date last
insured.
(R. at 18.) The ALJ also fully accounted for Plaintiff’s cervical
spine impairments by finding those impairments to be “severe” at
step two (R. at 17), considering and weighing the relevant medical
evidence (R. at 21-31), and then limiting Plaintiff to light and
sedentary work through the Date Last Insured. (R. at 21.) The Court
finds that the ALJ fully considered all of Plaintiff’s “severe”
and
“non-severe”
impairments,
including
her
cervical
spine
impairments, fibromyalgia, costochondritis, and irritable bowel
syndrome, and reasonably determined that Plaintiff could perform
sedentary
work
with
the
limitations
set
forth
in
the
RFC.
Accordingly, substantial evidence supports the ALJ’s treatment of
Plaintiff’s impairments in the formulation of her RFC.
3.
The ALJ did not err at step four
Third, Plaintiff contends that the ALJ erred by relying on a
vocational expert’s testimony at step four without asking the
vocational expert whether an individual with Plaintiff’s RFC could
perform Plaintiff’s past relevant work. (Pl.’s Br. 20-21.) The
Court finds that the ALJ did not err by relying on the vocational
30
expert’s
description
of
Plaintiff’s
past
work
only
and
then
independently determining that Plaintiff could perform her past
work.
During Plaintiff’s hearing before the ALJ, the vocational
expert described Plaintiff’s past work as a court clerk (DOT
243.362-010), which is classified as a sedentary and skilled
position at the SVP-6 level. (R. at 66.) The ALJ chose not to ask
the vocational expert any hypothetical questions, as is often but
not always done in these hearings, including whether a person with
Plaintiff’s RFC could perform work as a court clerk. (R. at 6166.) Having formulated Plaintiff’s RFC as described above, the ALJ
ultimately determined at step four that, consistent with her RFC,
Plaintiff could perform past work as a court clerk and stated:
In comparing [Plaintiff’s] residual functional capacity
with the physical and mental demands of this work, the
undersigned finds that [Plaintiff] was able to perform
it as actually and generally performed. The vocational
expert’s testimony is being relied upon in accordance
with SSRP 00-4P.
(R. at 31.)
It is clear from the record that the ALJ relied on the
vocational expert’s description of Plaintiff’s past work only and
then the ALJ independently determined that Plaintiff could perform
her
past
work.
This
is
permitted
by
the
Social
Security
regulations, which state, in relevant part, that an ALJ may, but
is not required to, rely upon a vocational expert for various
31
purposes at step four. See 20 C.F.R. § 404.1560(b)(2) (“We may use
the services of vocational experts . . . to obtain evidence we
need to help us determine whether you can do your past relevant
work, given your residual functional capacity. . . . In addition,
a vocational expert or specialist may offer expert opinion in
response to a hypothetical question about whether a person with
the physical and mental limitations imposed by the claimant’s
medical impairment(s) can meet the demands of the claimant’s
previous
work.
.
.
.”)
(emphasis
added);
see
also
Banks
v.
Massanari, 258 F.3d 820, 827 (8th Cir. 2001) (“[V]ocational expert
is not required at step four where the claimant retains the burden
of proving she cannot perform her prior work.”); Breslin v. Comm’r
of Soc. Sec., 2014 WL 936441, at *14 (D.N.J. Mar. 10, 2014) (“When
the ALJ finds the claimant is able to perform past relevant work,
[no] source[] require[s] an ALJ to consult a vocational expert at
step
four,
regardless
of
the
nature
of
the
claimant’s
impairments.”). Thus, the ALJ did not err at step four.
4.
The ALJ assigned appropriate weight to the medical
opinions of record
Finally, Plaintiff argues that the ALJ erred in selectively
rejecting the opinions of certain medical sources when crafting
Plaintiff’s RFC. (Pl.’s Br. at 21-25.) Specifically, Plaintiff
argues that the ALJ improperly weighted the 2014 Medical Source
Statement of Dr. Maressa and failed to assign any weight at all to
32
the August 2015 examination of Dr. Knod. (Id.) For the reasons
described
below,
the
Court
finds
that
substantial
evidence
supports the ALJ’s treatment of these medical opinions.
“[T]he ALJ — not treating or examining physicians or State
agency consultants — must make the ultimate disability and RFC
determinations.” Chandler, 667 F.3d at 361; see also 20 C.F.R §§
404.1527(e)(1). The ALJ is entitled to weigh all the evidence in
making his or her finding. Brown v. Astrue, 649 F.3d 193, 196 (3d
Cir. 2011). It is established that, “[a]lthough treating and
examining physician opinions often deserve more weight . . . [t]he
law is clear . . . that the opinion of a treating physician does
not bind the ALJ on the issue of functional capacity.” Chandler,
667 F.3d at 361 (citing Brown, 649 F.3d at 197 n.2). Where
inconsistency in evidence exists, the ALJ retains significant
discretion in deciding whom to credit. Plummer, 186 F.3d at 429.
However, the ALJ “cannot reject evidence for no reason or for the
wrong reason.” Id. (quoting Mason v. Shalala, 994 F.2d 1058, 1066
(3d Cir. 1993)); see also Cotter, 642 F.2d at 704-05.
The ALJ assigned “little weight” to Dr. Maressa’s June 2014
Medical Source Statement that Plaintiff had been severely limited
since her alleged onset date. (R. at 30.) In the Medical Source
Statement, which was completed several months after Plaintiff’s
Date Last Insured, Dr. Maressa opined, among other things, that
Plaintiff could only walk one to three city blocks without rest or
33
severe pain, could sit for less than two hours in an eight-hour
workday, could stand/walk for up to one hour in an eight-hour
workday, and that Plaintiff’s impairments would cause her to be
off task at least 25% of the workday. (R. at 426, 428.)
The ALJ fully explained his reasons for discounting Dr.
Maressa’s June 2014 opinions (R. at 30), and substantial evidence
supports his decision to do so. For example, Dr. Maressa’s treating
notes between July 2011 and May 2012 revealed normal findings (R.
at 294-95, 302, 312), and contemporaneous records (including Dr.
Maressa’s own treatment notes) indicate that Plaintiff’s pain and
symptoms related to her arm, shoulder, back, and hip had been
successfully treated with physical therapy. (R. at 387). Perhaps
most importantly, Plaintiff stopped working in November 2008 due
to her early retirement, not any of the impairments which she
allegedly
first
experienced
two
years
later.
Notwithstanding
Plaintiff’s 2015 claim that she intended to return to work in 2011
(R. at 439), there is scarce record evidence that Plaintiff ever
actually attempted to return to the workforce on a full-time basis
prior to the Date Last Insured. For these reasons, substantial
evidence supports the ALJ’s decision to discount Dr. Maressa’s
June 2014 Medical Source Statement.
With respect to Dr. Knod, the ALJ discussed his August 2015
examination of Plaintiff but did not explicitly assign any weight
to his findings or opinions. (R. at 27-28.) In the August 2015
34
examination, Dr. Knod noted that Plaintiff stated her pain was
aggravated by standing in position for up to a half hour, any
bending, walking farther than one block, lifting greater than six
pounds, and squatting, and further noted that her physical therapy
merely “calms it.” (R. at 438.) Ultimately, Dr. Knod opined that
Plaintiff’s
“multitude
of
problems,”
taken
individually
or
separately, would limit her ability to work in a competitive
environment on a regular, full-time basis. (R. at 444.)
The Court agrees with Plaintiff that “[t]he ALJ devotes
significant space in the decision analyzing the [August 2015
examination] of Dr. Knod, but then fails to assign it any weight.”
(Pl.’s Br. at 23.) But the Court finds that the ALJ’s assignment
of no weight to Dr. Knod’s report is well-reasoned upon the record;
Dr. Knod’s findings in the one-time examination completed 20 months
after the Date Last Insured are not relevant to the disability
determination concerning November 2010 through December 31, 2013,
where contemporaneous records prior to December 31, 2013 do not
support any severe impairment. See DeNafo, 436 F.2d at 739; Manzo,
784 F. Supp. at 1156. Accordingly, the Court will not remand on
this basis. See Rutherford, 399 F.3d at 553 (remand not required
“because it would not affect the outcome of the case”).
35
V.
CONCLUSION
For
the
foregoing
reasons,
the
ALJ’s
well-reasoned
and
thorough decision will be affirmed. An accompanying order will be
entered.
2/25/2019
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
36
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