PEREZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Noel L. Hillman on 1/11/2022. (tf, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EVELYN M. PEREZ,
Plaintiff,
v.

1:20-cv-08751-NLH
OPINION

COMMISSIONER OF SOCIAL
SECURITY, 1
Defendant.
APPEARANCES:
ALAN H. POLONSKY
POLONSKY AND POLONSKY
512 S WHITE HORSE PIKE
AUDUBON, NJ 08106
On behalf of Plaintiff
MELISSA KAY CURRY
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

On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner
of the Social Security Administration.
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Insurance Benefits (“DIB”) 2 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 her alleged onset date of disability,
January 12,2013.

For the reasons stated below, this Court will

affirm the decision.
I.

BACKGROUND AND PROCEDURAL HISTORY
On September 28, 2015, Plaintiff, Evelyn Perez, filed an

application for DIB, alleging that he became disabled on January
12, 2013.

Plaintiff claims that she can no longer work as a

casino utility porter because of her impairments of cervical and
lumbar spine disorder with radiculopathy, a history of carpal
tunnel syndrome, rheumatoid arthritis, anxiety, and an
adjustment disorder. 3
Plaintiff’s claim was denied initially and upon
reconsideration.

Plaintiff requested a hearing before an ALJ,

which was held on October 2, 2018.

On October 9, 2018, the ALJ

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

On the alleged onset date of January 12, 2013, Plaintiff was 41
years old, which is defined as “a younger individual” (age 1849). 20 C.F.R. § 404.1563.
3

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issued an unfavorable decision.

Plaintiff’s Request for Review

of Hearing Decision was denied by the Appeals Council on June
15, 2020, making the ALJ’s 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
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
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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 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:
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
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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 factfinder, 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
physical or mental impairment which can be expected to result in
death, or which has lasted or can be expected to last for a
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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 4 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.

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.”

The regulations were amended for various provisions effective
March 27, 2017. See 82 F.R. 5844. The parties do not indicate
that any of the amendments are applicable to the issues
presented by Plaintiff’s appeal.
4

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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.
Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C.

Analysis

At step one, the ALJ found that Plaintiff had not engaged
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in substantial gainful activity since the alleged onset of
disability.

At step two, the ALJ found that Plaintiff’s

impairments of cervical and lumbar spine disorders with
radiculopathy; a history of carpal tunnel syndrome; rheumatoid
arthritis; anxiety; and an adjustment disorder were severe.

At

step three, the ALJ determined that Plaintiff’s severe
impairments or her severe impairments in combination with her
other impairments did not equal the severity of one of the
listed impairments.
The ALJ next determined that Plaintiff had the residual
functional capacity (“RFC”) to perform work at the sedentary
level, 5 with certain exertional restrictions.

At steps four and

five, the ALJ determined that Plaintiff was not able to perform
her past relevant work, but Plaintiff’s RFC rendered her capable
of performing other jobs in the national economy, such as an
inserter/stuffer, order clerk, and final assembler.

The ALJ

therefore concluded that Plaintiff was not disabled.
Plaintiff argues that the ALJ erred in her decision because
in determining Plaintiffs RFC between steps three and four she
failed to consider Plaintiff’s testimony at her hearing about

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.”).
5

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the pain caused by her conditions. 6

Plaintiff further argues

that the ALJ erred at step five by determining that Plaintiff
could engaged in alternative work.

The Court does not find

error in the ALJ’s RFC determination at steps three and four and
the ALJ’s determination that Plaintiff could engage in
alternative work at step five.
With respect to the RFC determination, the ALJ determined:
After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) with the ability to: climb ramps and stairs, but
never ladders, roles, or scaffolds; occasionally balance,
stoop, kneel, crouch, and crawl; occasionally reach
overhead; frequently handle and finger; frequently push
and/or pull with the bilateral upper and right lower
extremities; tolerate occasional exposure to hazards such
as unprotected heights and dangerous moving machinery;
perform simple routine tasks; and tolerate occasional
public interaction.
(R. at 16.)
Plaintiff finds fault with the ALJ’s RFC determination,
arguing that “[i]t fails to take into account her testimony as
to the pain she experiences.”

Plaintiff finds fault with the

below statement:
After careful consideration of the evidence, I find that
the claimant’s medically determinable impairments could
reasonably be expected to cause some of the alleged
symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical
evidence and other evidence in the record for the reasons
The RFC reflects “what [the claimant] can still do despite [his
or her] limitations.” 20 C.F.R. §§  404.1545(a), 416.945(a).
6

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explained in this decision.
(R. at 17.)
Specifically, Plaintiff contends that this statement is not
followed by an analysis by the ALJ of why Plaintiff’s testimony
on her pain was not reliable and why the ALJ did not find that
evidence compelling.

The Court disagrees.

The ALJ specifically noted that she “found her hearing
testimony to be not forthcoming concerning her actual functional
abilities and activities.”

(R. at 25).

This statement clearly

shows the ALJ’s consideration of Plaintiff’s hearing testimony.
The ALJ made this statement after a lengthy analysis of how the
objective medical testimony stacked up.

See Hur, 94 F. App’x at

133 (“There is no requirement that the ALJ discuss in its
opinion every tidbit of evidence included in the record[.]”)
The ALJ’s decision ultimately makes clear that the ALJ
considered Plaintiff’s testimony at the hearing in the context
of the rest of the evidence available in the record.

Therefore,

the Court declines to find that the ALJ’s RFC determination was
not supported by substantial evidence.
The Court also declines to find that the ALJ’s
determination that Plaintiff could engage in alternative work at
step five was not supported by substantial evidence.

Once it

has been determined that a claimant is not capable of performing
his past relevant work, the burden shifts to the ALJ to show
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that the claimant's RFC permits the claimant to perform other
jobs that exist in significant numbers in the national
economy. 20 C.F.R. § 404.1520(b)-(f).

In this case, the ALJ

determined that Plaintiff's RFC, after considering her mental
and physical impairments, still rendered her capable of
performing three jobs: (1) inserter/stuffer (DOT 7 code 731.685014), an unskilled sedentary occupation with 372,000 positions
nationally; (2) order clerk (DOT code 209.567-014), an unskilled
sedentary occupation with 209,000 positions nationally; and (3)
final assembler (DOT code 713.687-018), an unskilled sedentary
occupation with 219,000 positions nationally.
Plaintiff’s principal contention is that because the RFC is
not accurate, the determination of alternative work at step five
cannot be either.

Because the Court finds no error in the ALJ’s

RFC determination, that argument fails.

With respect to the

inserter/stuffer job, Plaintiff contends that the vocational
expert’s description of the job was not accurate as “it has
nothing at all to do with inserting advertising circulars. This
is a person that, again as per the DOT inserts filler into
stuffed toy shells using a machine or by hand.” (ECF 8 at 21).
The Court’s review of the record shows that the vocation expert
offered the example of inserting advertising circulars as an
“DOT” refers to the Dictionary of Occupational Titles, which is
published by the Department of Labor.
7

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example of the type of work as an inserter/stuffer and not as an
exhaustive description.

(R. at 88.)

Further, even if the

vocation expert’s description were wrong, Plaintiff does not
explain why she could not do the job and how that purported
error harmed her. See Rodriguez-Soto v. Comm'r of Soc. Sec.,
2019 WL 1349770, at *8 (D.N.J. Mar. 26, 2019) (declining to
remand a matter where the court found the error to be harmless).
Plaintiff contends that the Court erred in determining that
she could do work as an order clerk because the job involves a
lot of speaking and Plaintiff has difficulty communicating in
the English language.

(ECF 8 at 21).

The Court declines to

find that the ALJ’s determination that occupation as an order
clerk was appropriate work to be unsupported by substantial
evidence.

In particular, the ALJ found that “she was able to

speak, understand, and write in English and she participated in
the hearing in English.” (R. at 21-22.)

This finding runs

directly contrary to Plaintiff’s assertion that she could not
work in English and the Court sees no reason in the record to
disturb the ALJ’s determination on this point.
Next, Plaintiff contends that the finding that she could
find work as a final assembler is undercut by the fact that the
job contemplates a worker using their hands for up to two-thirds
of the day but does not explain what the worker would be doing
for the rest of the day.

(ECF 8 at 22).
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Plaintiff’s challenge

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is vague and conclusory here and Plaintiff does not offer
support for her contention that the job of final assembler might
not be appropriate given that there is time in the day where the
worker might be doing different tasks.

Where the ALJ had

questions about how the DOT’s guidance squared with the
vocational expert’s testimony, the ALJ was satisfied with the
vocational expert’s explanation that the conclusions were based
on their observations and understanding of these types of jobs.
(R. at 83-84.)

The Court will not independently speculate, as

Plaintiff asks the Court to do, as to how time is allotted among
different tasks while working where the record shows that the
ALJ made findings on alternative work each supported by
substantial evidence.
Finally, Plaintiff argues that her independent job search
shows many fewer jobs of the type identified by the ALJ than
what the ALJ found.

First, Plaintiff never raised this argument

before the ALJ and does not cite any support for why the Court
may consider it now.

Second, the ALJ specifically stated, “I

take judicial notice of the reliable job data from the relevant
publications and conclude that the jobs the vocational expert
has identified constitute a significant number of jobs in the
regional and national economy.” (R. at 23).

The Court may not

substitute its judgment here where the ALJ has made findings
supported by substantial evidence.
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III. Conclusion
For the reasons expressed above, the decision of the ALJ
was supported by substantial evidence and must be affirmed.
An accompanying Order will be issued.

Date: January 11, 2022
At Camden, New Jersey

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

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