OPPENHEIM v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Robert B. Kugler on 7/23/2019. (dmr)

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

WENDY LYNNE OPPENHEIM,
HONORABLE ROBERT B. KUGLER
Plaintiff,
v.

Civil Action
No. 18-10217 (RBK)

COMMISIONER OF SOCIAL
SECURITY,
OPINION
Defendant.

APPEARANCES:
Alan H. Polonsky
POLONSKY AND POLONSKY
512 S White Horse Pike
Audubon, NJ 08106
Attorney for Plaintiff
Theresa Ann Casey
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
300 Spring Garden Street
Philadelphia, PA 19123
Attorney for Defendant
KUGLER, District Judge:
I. INTRODUCTION
In

this

(hereinafter

action,

Plaintiff

“Plaintiff”)

seeks

U.S.C. § 405(g)
Administration’s

of

the

Commissioner

(hereinafter

Wendy
review
of

the

“Defendant”)

Lynne
pursuant
Social
denial

Oppenheim
to

42

Security
of

her

application for disability benefits under Title II of the Social
Security Act.

Plaintiff claims she is disabled due to several conditions
including degenerative disc disease of the lumbar and cervical
spine, bilateral knee osteoarthritis, bilateral meniscal tears
and

fibromyalgia.

On

September

11,

2017,

Administrative

Law

Judge Michael Hertzig (hereinafter “ALJ Hertzig” or “the ALJ”)
issued

a

written

decision

denying

Plaintiff

Social

Security

benefits for the period beginning December 31, 2011 to December
31, 2016.
In

the

pending

appeal,

Plaintiff

argues

that

the

ALJ's

decision must be remanded on two grounds. First, she argues that
the

ALJ’s

conduct

during

the

hearing

reflected

bias

which

precluded her from having a fair and impartial evaluation of her
case. Second, Plaintiff argues that the ALJ’s decision at Step
Four of the Sequential Evaluation Process in finding that she
could return to her past work activity was not supported by
substantial evidence.
For

the

reasons

explained

below,

the

Court

finds

that

substantial evidence supports the ALJ's determinations and will
affirm the ALJ's decision.
II. BACKGROUND
A. Procedural History
Plaintiff Wendy Lynne Oppenheim filed an application for
social security disability benefits on June 16, 2014 alleging
disability beginning on December 31, 2011, at the age of 50. [R.

2

at

87,

178.]

Plaintiff’s

application

was

denied

on

initial

consideration on September 10, 2014 and upon reconsideration on
May 15, 2015. [Id. at 87.] After her claim was denied upon
reconsideration,

Plaintiff,

along

with

her

representative,

Samantha Xander, of the law firm Binder & Binder, appeared for a
hearing before ALJ Hertzig on July 31, 2017. [Id.] During the
hearing,

the

ALJ

received

testimony

from

Plaintiff

and

Vocational Expert Adina Levitan. [Id.] The ALJ denied benefits
in a September 11, 2017 opinion. [Id.] On April 6, 2018 the
Appeals Council denied Plaintiff’s request for review. [Id. at
1-6.] This appeal followed.
B. Factual Background and Relevant Medical Evidence
Plaintiff was born on April 26, 1961 and is currently 58
years old. [Id. at 212.] Plaintiff earned a Bachelor’s degree in
psychology

and

a

Master

of

Social

Work

degree

from

Rutgers

University – Camden. [Id. at 32-33.] From May 1994 to December
2011, she was employed as a mental health therapist. [Id. at
217.] She alleges that she has been disabled and unable to work
since December 31, 2011 due to pain and discomfort emanating
from migraines, knee and spine impairments, and fibromyalgia.
[Id. at 34, 215, 291.]
1. Primary Care Physician Reports
The record indicates that Plaintiff met with her primary
care physician, Vivienne Matalon, M.D. beginning in March 2012.

3

[Id.

at

352.]

unremarkable

Up

until

findings

April

2015,

concerning

Dr.

Matalon

Plaintiff’s

reported

musculoskeletal

system including a normal gait and normal range of motion in her
neck, spine, pelvis and extremities. [Id. at 339, 342, 355.] Dr.
Matalon reported that Plaintiff had knee, lower back and neck
pain in April 2015. [Id. at 327-238.]
2. Knee Pain and Abnormalities
According

to

records

from

South

Jersey

Radiology

Associates, Plaintiff was diagnosed with a medial meniscus tear
and degenerative joint disease in her left knee following an MRI
examination on February 11, 2013. [Id. at 259.] On May 24, 2013,
Plaintiff met with Paul Marchetto, M.D. at the Rothman Institute
(hereinafter “Rothman”) complaining of left knee pain. [Id. at
369.] Dr. Marchetto confirmed that Plaintiff had been diagnosed
with

a

medial

meniscus

tear

in

her

left

knee.

[Id.]

Dr.

Marchetto stated that Plaintiff failed to follow through with
physical

therapy

and

decrease

her

dog-walking.

[Id.]

Dr.

Marchetto reported a positive McMurray’s test result,1 treated
Plaintiff with lidocaine for pain management and advised her to
follow up with physical therapy. [Id.]
On March 14, 2015, Plaintiff was diagnosed with a medial
meniscus

tear,

arthritic

changes,

patellar

chondromalacia,

1

A McMurray’s test is an orthopedic examination used to identify
tears in the meniscus. A “positive” McMurray’s test indicates a
meniscal tear.
4

effusion and popliteal cyst in her right knee. [Id. at 254.]
Later, on July 7, 2014, Dr. Marchetto reported an antalgic gait,
joint tenderness, and positive McMurray’s test result. [Id. at
542.]

The

stress,

physical

patellar

examination

compression

also
and

yielded

patellar

positive

varus

inhibition

test

results. [Id. at 542.] He also reported abnormal muscle strength
and quad atrophy. [Id.] Dr. Marchetto diagnosed Plaintiff with
moderate

degenerative

advised

Plaintiff

nonoperative

joint

to

disease

consider

treatment

a

including

in

her

weight

right
loss

knee
plan

anti-inflammatories

and
and
and

viscosupplementation. [Id. at 543-544.]
Plaintiff began seeing Mitesh Patel, M.D. at Rothman on
August 8, 2014. [Id. at 539.] Dr. Patel diagnosed Plaintiff with
bilateral osteoarthritis and degenerative meniscal tearing. [Id.
at 540.] Dr. Patel reported trace effusion, mild retropatellar
crepitus, tenderness, bilateral pain during McMurray’s tests,
negative drawer signs2

and stability during valgus and varus

stress tests. [Id. at 540.] Plaintiff was instructed to continue
taking current pain medications and was authorized to receive
Orthovisc

viscosupplement

injections

to

treat

her

knee

pain.

[Id.]

2

Drawer tests (or signs) are orthopedic examinations used to
identify injuries in the cruciate ligaments of the knee.
5

On December 17, 2014, Dr. Patel reported that the Orthovisc
injections were ineffective in managing Plaintiff’s pain. [Id.
at

343.]

A

physical

examination

demonstrated

bilateral

tenderness, moderate retropatellar crepitus, limited range of
motion, stability to varus and valgus stress testing, negative
drawer signs and negative McMurray’s and Lachman tests.3 [Id.]
Dr. Patel administered cortisone injections in both knees. [Id.]
3. Back Pain and Spinal Abnormalities
An MRI of Plaintiff’s cervical spine on March 14, 2014
showed multilevel disc bulges and protrusions with uncovertebral
joint hypertrophy resulting in foraminal narrowing. [Id. at 255256.] Concurrently, imaging of Plaintiff’s lumbar spine showed
developmental narrowing of the lumbar canal exacerbated by Grade
I

anterolisthesis4

“L3”)

on

the

of

fourth

the

third

lumbar

lumbar

vertebra

vertebra

(hereinafter

(hereinafter

“L4”).

In

addition, imaging showed moderate narrowing of the canal at L3L4 and mild narrowing at additional levels. Imaging also showed
focal disc protrusions with foraminal disc protrusions and facet
arthropathy

resulting

in

foraminal

narrowing

abutting

the

3

A Lachman test is an orthopedic examination used to identify
injuries to the anterior cruciate ligament in the knee. A
“negative” Lachman test indicates that there is no injury to the
anterior cruciate ligament.
4

Anterolisthesis is a spinal condition in which the upper
vertebral body slips forward onto the vertebra below. Grade I is
the mildest form of anterolisthesis. 
6

exiting right L3 nerve root with encroachment upon additional
exiting nerve roots.
An

April

6,

2015

x-ray

of

Plaintiff’s

cervical

spine

indicated normal alignment with reversal of lordosis and mild
discogenic changes and facet joint degeneration. Lumbar x-rays
demonstrated a slight increase in Grade I anterolisthesis of L3
on L4 and mild lower lumbar discogenic changes.
4. Consultative Examination
Juan

Carlos

Cornejo,

M.D.

performed

a

consultative

neurological examination on Plaintiff on March 31, 2015. [Id. at
291.] He diagnosed Plaintiff with chronic neck and lower back
pain, mild cervical and lumbar degenerative disc disease as per
x-rays and chronic migraine history. [Id. at 295.]
noted

that

Plaintiff

complained

of

daily

Dr. Cornejo
migraines,

fibromyalgia, neck and back pain, numbness and tingling in her
extremities,

and

difficulty

moving.

[Id.

at

291-292.]

Dr.

Cornejo reported that Plaintiff walked with a normal gait, was
comfortable sitting during the evaluation and was able to get on
and off the examining table without assistance or difficulty.
[Id. at 293-294.] Plaintiff had full range of motion in her
upper and lower extremities but limited range of motion in her
cervical and lumbar spine. [Id. at 293.] Dr. Cornejo reported
that Plaintiff was awake and alert during the evaluation and
displayed no mental abnormalities. [Id. at 295.]

7

Dr.

Cornejo

concluded

that

despite

medical

treatment,

Plaintiff still had continuing subjective symptoms. [Id.] Based
on

these

symptoms,

difficulty

with

Furthermore,

Dr.

Dr.

Cornejo

prolonged
Cornejo

opined

walking
stated

that
and

that

she

would

standing.

Plaintiff

have
[Id.]

may

have

difficulty turning and bending her neck and lower back. [Id. at
295.]
5. Emergency Room Visit – May 15, 2015
On May 15, 2015, Plaintiff sought emergency room treatment
for numbness in her arm and leg. [Id. at 376.] Emergency room
physicians

diagnosed

her

with

paresthesia

following

an

unremarkable CT scan showing no acute intracranial abnormality.
[Id. at 376-378.]
6. Review with State Physician
Mary McClaron, M.D. filed a report concerning Plaintiff on
May

14,

2015.

degenerative

[Id.

disc

at

77-83.]

disease

and

Dr.

McClaron

degenerative

confirmed

joint

mild

disease

in

Plaintiff’s cervical and lumbar spine. [Id. at 78.] She also
noted that Plaintiff had a normal gait and that she could carry
twenty pounds occasionally and ten pounds frequently. [Id.] Dr.
McClaron stated that Plaintiff could sit for six hours in an
eight hour workday and stand/walk for six hours in an eight hour
workday. [Id.]

8

7. ALJ Hearing before Michael Hertzig
Plaintiff and her attorney representative, Samantha Xander,
of the law firm Binder & Binder, appeared before ALJ Hertzig on
July

31,

2017.

[Id.

at

24.]

The

ALJ

noted

that

some

of

Plaintiff’s records from Rothman were not submitted until three
days

before

the

hearing.

[Id.

at

26.]

The

ALJ

expressed

frustration and asked Ms. Xander why the records were delayed.
[Id. at 27-28.] This conversation lasted for quite some time and
the ALJ asked both Ms. Xander and Plaintiff for an explanation.
[Id. at 26-29, 37-40.]
At

the

hearing,

Plaintiff

testified

that

she

stopped

working in 2011 but continued to receive $240 a year from her
brother’s partner. [Id. at 34-35.] Plaintiff then articulated
her various medical ailments to the ALJ: pain in her knees,
lower back and neck, as well as symptoms related to fibromyalgia
and migraines. [Id. at 47-52.] Plaintiff testified that she has
difficulty walking long distances, cooking and shopping. [Id. at
50-58.]
Vocational Expert Adina Levitan also testified at the July
31,

2017

hearing.

[Id.

at

60.]

Ms.

Levitan

characterized

Plaintiff’s past relevant work as a therapist and confirmed that
a person of Plaintiff’s age and educational background could
perform light or sedentary work. [Id. at 61-62.]

9

8. ALJ Decision
ALJ

Hertzig

issued

a

written

decision

on

September

11,

2017, ultimately finding that Plaintiff was not disabled within
the meaning of the Social Security Act, as he made the following
findings:
1. Plaintiff last met the insured status requirement of the
Social Security Act on December 31, 2016.
2. Plaintiff did not engage in substantial gainful activity
since December 31, 2011, the alleged onset date (20 C.F.R.
§ 404.1571, et seq.)
3. Plaintiff

has

the

following

severe

impairments:

mild

lumbar/cervical degenerative disc disease; bilateral knee
osteoarthritis; left knee meniscal tear; and fibromyalgia
(20 C.F.R. § 404.1520(c)).
4. Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of
one

of

the

listed

impairments

in

20

C.F.R.

Part

404,

Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525
and 404.1526).
5. Plaintiff has the residual functional capacity to perform
light work as defined in 20 C.F.R. § 404.1567(b), with the
following

additional

limitations:

Plaintiff

can

occasionally balance, stoop, kneel, crawl, crouch and climb
ramps, stairs, ladders, ropes and scaffolds.

10

6. Plaintiff was capable of performing past relevant work as a
therapist (DOT 045.107-050). This work did not require the
performance

of

work

related

activities

precluded

by

the

claimant’s residual functional capacity.
7. Plaintiff was not under a disability, as defined in the
Social Security Act.
[Id. at 89-93.] In reference to whether Plaintiff’s impairments
meet the severity of those listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (Finding 4), the ALJ stated that Plaintiff’s spine
disorders were not severe enough to meet the requirements of
Listing 1.04. [Id. at 90.] Further, in reference to whether
Plaintiff’s knee impairments reached the severity level of a
listed Major Joint Dysfunction, 1.02, the ALJ noted that “the
record

failed

to

illustrate

extreme

walking

limitations

or

extreme loss in upper extremity function.” [Id.] The ALJ also
evaluated Plaintiff’s fibromyalgia by considering the “nature
and severity of the claimant’s symptoms under the guidelines set
forth in SSR 12-2p.” [Id.]
In

determining

Plaintiff’s

residual

functional

capacity

(Finding 5), 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.” [Id.]
The

ALJ

regarding

considered
her

Plaintiff’s

symptoms

and

testimony

determined

11

that

at
the

the

hearing

“intensity,

persistence, and limiting effects of these symptoms were not
entirely consistent” with the medical evidence in the record.
[Id.

at

91.]

In

determining

that

Plaintiff

had

the

RFC

to

perform light work, the ALJ noted that “[p]hysical examinations
were generally unremarkable; diagnostic tests revealed mostly
mild-to-moderate findings; medication decreased the claimant’s
pain;

and

[the

claimant]

engaged

in

relatively

normal

daily

activities.” [Id. at 93.]
Regarding Plaintiff's past relevant work (Finding 6), the
ALJ adopted the VE's testimony that Plaintiff would be able to
return to her past relevant work as a therapist (DOT 045.107050) with the limitations listed in Finding 5. [Id.]
III. STANDARD OF REVIEW
This Court reviews the Commissioner’s decision pursuant to
42 U.S.C. § 405(g). The Court’s review is deferential to the
Commissioner’s
Commissioner’s
“substantial

decision,
factual
evidence.”

and

the

findings
42

Court

where

U.S.C.

they
§

must

uphold

the

are

supported

by

Fargnoli

v.

405(g);

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); Hagans v. Comm’r of Soc. Sec., 694 F.3d

12

287, 292 (3d Cir. 2012) (using the same language as Richardson).
Therefore,

if

substantial
findings,

the

ALJ’s

evidence,
whether

the

or

findings

of

reviewing

not

it

fact

court

would

are
is

supported

bound

have

by

those

the

made

by

same

determination. Fargnoli, 247 F.3d at 38. The Court may not weigh
the evidence or substitute its own conclusions for those of the
ALJ. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir.
2011).
IV. DISCUSSION
A. Alleged Bias
Plaintiff argues that the ALJ’s conduct during the hearing
reflected

bias

impartial

evaluation

asserts

that

representative’s

which

ALJ

precluded
of

her

Hertzig

firm,

Binder

her

case.

from

was

[Pl.

having
Br.

at

&

prejudiced
Binder,

when

a

fair

and

11-15.]

She

against
he

her

expressed

confusion and frustration regarding duplicate records and the
late

submission

of

evidence

from

Rothman.

[Id.]

Moreover,

Plaintiff argues that the ALJ “demonstrated overt hostility” to
her representative. [Id. at 15.] In Plaintiff’s view, “where the
record shows that an [ALJ] has an issue with the claimant’s
representative, it will have to have an impact on how he views
the evidence.” [Id.]
Those claiming disability benefits have a right to a full
and fair hearing. Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir.

13

1995)  (citing Richardson, 402 U.S. at 400–01). “Essential to a
fair hearing is the right to an unbiased judge. The due process
requirement

of

an

impartial

decisionmaker

is

applied

more

strictly in administrative proceedings than in court proceedings
because
available

of

the

in

absence

judicial

of

procedural

proceedings.”

safeguards

Id.

(citing

normally
Hummel

v.

Heckler, 736 F.2d 91, 93 (3d Cir. 1984)).
An individual is denied a full and fair hearing “where a
claimant is deprived of the opportunity to present evidence to
an ALJ in support of his or her claim, or where the ALJ exhibits
bias or animus against the claimant.” Bordes v. Comm'r of Soc.
Sec., 235 F.App'x 853, 857–58 (3d Cir. 2007) (citing Ventura, 55
F.3d at 902–03). However, bias is not proven by terseness or
indications of annoyance. See Fraser v. Astrue, 373 F.App’x.
222, 225 (3d Cir. 2010) (finding that even assuming that “the
ALJ was rather brusque, there is no indication that there was
any

conflict

judgment.”).

of

interest

Moreover,

or

the

inability

Supreme

to

Court

render
has

a

fair

held

that

“expressions of impatience, dissatisfaction, annoyance, and even
anger” do not establish judicial bias or partiality. Liteky v.
United States, 510 U.S. 540, 555–56 (1994).
The
hearing

Court
with

has

carefully

special

reviewed

attention

paid

the

transcript

toward

the

of

the

discussion

between the ALJ and Plaintiff’s representative. [R. at 22-63.]

14

Although it is difficult to assess the ALJ’s demeanor and tone
from

the

record,

frustrated

with

the

transcript

Plaintiff’s

suggests

representative

that
and

the
the

ALJ

was

manner

in

which evidence was submitted. [Id. at 26-29.] Notwithstanding
the ALJ’s frustration with the representative, nothing in the
record or Plaintiff’s brief suggests that Plaintiff was deprived
of the opportunity to present evidence in support of her claim.
Furthermore, the record does not suggest that the ALJ exhibited
bias or animus against Plaintiff.
For example, the ALJ allowed Plaintiff to fully discuss her
alleged conditions, the medical records and her work history.
Moreover,

despite

his

frustration

with

Plaintiff’s

representative, the ALJ admitted the records from Rothman and
considered them throughout his decision. [Id. at 29, 90-92.] By
admitting and referring to these additional medical records, the
ALJ displayed his commitment toward fully developing the factual
record. See Siravo v. Comm'r of Soc. Sec., 2017 WL 1246347, at
*7

(D.N.J.

despite

Apr.

4,

indications

2017)
of

(rejecting

frustration

and

argument

alleging

annoyance

because

bias
ALJ

allowed factual record to develop and allowed Plaintiff to speak
at length). Therefore, based on the record and relevant case
law, the Court finds no evidence that the ALJ was biased against
Plaintiff.

15

B. Past Relevant Work
Plaintiff contends that the ALJ erred in concluding that
Plaintiff could return to her past relevant work. [Pl. Br. at
16.]

Specifically,

Plaintiff

argues

that

her

position

as

a

therapist does not qualify as past relevant work because she did
not

earn

enough

to

deem

it

substantial

gainful

activity

(hereinafter “SGA”). [Id.] Plaintiff argues that “special rules
apply for someone who is self-employed” and that the record does
not support the ALJ’s conclusions. [Id. at 16-17.]
For the following reasons, the Court does not agree. Under
the relevant Social Security regulations, past “work experience
applies when it was done within the last 15 years, lasted long
enough for [the claimant] to learn to do it, and was substantial
gainful

activity.”

20

C.F.R.

§

404.1565(a).5

Work

may

be

substantial gainful activity “even if it is done on a part-time
basis.” 20 C.F.R. § 404.1572(a). Plaintiff reported that she
earned $915.33 per month as a therapist in 2002. This monthly

5

In Title II cases in which the “claimant's disability insured
status was last met prior to adjudication, the work performed
for the 15-year period preceding the date the title II
disability insured status requirement was last met would
generally be considered relevant.” SSR 82-62, 1982 WL 31386 at
*2. Here, the 15-year period began on December 31, 2001.

16

income

exceeds

the

SGA

level

for

2002

($780

per

month).6

Plaintiff seems to imply that one year of income exceeding the
SGA

threshold

is

insufficient.

[Pl.

Br.

at

16.]

However,

a

reading of the regulation does not indicate that one must exceed
the SGA level for a certain number of years before their work
qualifies as past relevant work. 20 C.F.R. § 404.1565(a); see
also Rodriguez-Soto v. Comm'r of Soc. Sec., 2019 WL 1349770, at
*5

(D.N.J.

Mar.

26,

2019)

(finding

that

plaintiff’s

job

qualifies as past relevant work even though his earnings only
exceeded the SGA level for 2007 through 2008).
Moreover, Plaintiff’s disability report indicates that she
worked as a mental health therapist until December 2011 and made
$11,000

per

year.

representative

[R.

conceded

at

217.]

that

In

addition,

Plaintiff’s

past

Plaintiff’s
work

as

a

therapist was past relevant work. [Id. at 29.] Thus, Plaintiff’s
job as a therapist qualifies as past relevant work.
Plaintiff’s argument that the ALJ should have applied the
analysis set forth in 20 C.F.R. § 404.1575 for self-employed
individuals

is

neither

fully

articulated

nor

supported

by

evidence in the record. [Pl. Br. at 16.] Plaintiff concedes that
“from the record, we simply cannot determine whether or not

6

These figures were cited in Defendant’s brief with citation to
the record and relevant regulations. [Def. Br. at 11.] Plaintiff
concedes that her earnings were above the SGA level in 2002.
[Pl. Br. at 16.]
17

[Plaintiff's work as a therapist] constituted substantial
gainful work activity." [Pl. Br. at 16-17.] However, Plaintiff
bears the burden of demonstrating that her impairments prevent
her from performing her past work. See Bowen v. Yuckert, 482
U.S. 137, 146-47 n.5 (1987) (delineating the burdens of proof at
each step of the disability determination); Plummer v. Apfel,
186 F.3d 422, 428 (3d Cir. 1999) ("The claimant bears the burden
of demonstrating an inability to return to her past relevant
work"). Plaintiff failed to meet her burden in proving that her
past work as a therapist should not be considered past relevant
work. Consequently, this failure automatically results in the
denial of benefits. Newell v. Comm'r of Soc. Sec., 347 F.3d 541,
545 (3d Cir. 2003).
V. CONCLUSION

For the reasons set forth above, the AL's decision will be
affirmed. An accompanying Order will be entered.

ate

ROBERT B. KUGLER
U.S. District Judge

18