PARISI v. COMMISSIONER OF SOCIAL SECURITY et al
OPINION. Signed by Judge Noel L. Hillman on 9/19/2022. (alb, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
COMMISSIONER OF SOCIAL
PAUL HOWARD YOUNG
YOUNG, MARR, MALLIS & DEANE, LLC
3554 HULMEVILLE RD.
BENSALEM, PA 19020
On behalf of Plaintiff
MELISSA KAY CURRY
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
PHILADELPHIA, PA 19123
On behalf of the Commissioner
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
42 U.S.C. § 423, et seq.
It is also before the Court
under § 1614(a)(3)(A) of the Social Security Act, as amended 42
U.S.C. § 1382c(a)(3)(A), regarding Plaintiff’s application for
supplemental security income (“SSI”) 3 under Title XVI of the
Social Security Act. 42 U.S.C. § 1381 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 1, 1994.
For the reasons stated below, this
Court will affirm that decision.
BACKGROUND AND PROCEDURAL HISTORY
On March 20, 2019, Plaintiff protectively filed an
application for SSI, alleging that she became disabled on
January 1, 1994.
(R. at 12).
Thereafter, on April 11, 2019,
Plaintiff protectively 4 filed an application for DIB, alleging
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
Supplemental Security Income is a program under the Social
Security Act that provides supplemental security income to
individuals who have attained age 65, or are blind or disabled.
42 U.S.C. § 1381 et seq.
A protective filing date marks the time when a disability
applicant made a written statement of his or her intent to file
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the same onset date as in her SSI application. (Id.)
claims that she cannot work because of her impairments of
Charcot-Marie Tooth disease, bilateral carpal tunnel syndrome
and bilateral hearing loss. 5
(ECF 11 at 4).
Plaintiff’s claim was denied initially and upon
(R. at 12).
Plaintiff requested a hearing
before an ALJ, which was held on November 4, 2020.
November 16, 2020, the ALJ issued an unfavorable decision.
Plaintiff’s Request for Review of Hearing Decision was
denied by the Appeals Council on April 23, 2021, making the
ALJ’s decision final.
(Id. at 1).
Plaintiff brings this civil
action for review of the Commissioner’s decision.
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. 6
Ventura v. Shalala,
for benefits. That date may be earlier than the date of the
formal application and may provide additional benefits to the
claimant. See SSA Handbook 1507; SSR 72-8.
On the alleged onset date, Plaintiff was 25 years old, which is
defined as a “younger person” (age 49 and under). 20 C.F.R. §
The standard for determining whether a claimant is disabled is
the same for both DIB and SSI. See Rutherford v. Barnhart, 399
F.3d 546, 551 n.1 (3d Cir. 2005) (citation omitted). DIB
regulations are found at 20 C.F.R. §§ 404.1500-404.1599, and the
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55 F.3d 900, 901 (3d Cir. 1995).
A reviewing court must uphold
the Commissioner’s factual decisions where they are supported by
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
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
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.
parallel SSI regulations are found at 20 C.F.R. §§ 416.900416.999, which correspond to the last two digits of the DIB
cites (e.g., 20 C.F.R. § 404.1545 corresponds with 20 C.F.R. §
416.945). The Court will provide citations only to the DIB
regulations. See Carmon v. Barnhart, 81 F. App'x 410, 411 n.1
(3d Cir. 2003) (explaining that because “[t]he law and
regulations governing the determination of disability are the
same for both disability insurance benefits and [supplemental
security income],” “[w]e provide citations only to the
regulations respecting disability insurance benefits”).
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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)).
Circuit has held that an “ALJ must review all pertinent medical
evidence and explain his conciliations and rejections.”
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
Unless the [Commissioner] has analyzed all
evidence and has sufficiently explained the
weight he has given to obviously probative
exhibits, to say that his decision is
supported by substantial evidence approaches
an abdication of the court’s duty to
scrutinize the record as a whole to
determine whether the conclusions reached
Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978).
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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).
Standard for DIB and SSI
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
continuous period of not less than 12 months.
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
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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).
The Commissioner has promulgated regulations for
determining disability that require application of a five-step
See 20 C.F.R. § 404.1520.
process is summarized as follows:
If the claimant currently is engaged in substantial
gainful employment, she will be found “not disabled.”
If the claimant does not suffer from a “severe
impairment,” she will be found “not disabled.”
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.”
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.”
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
20 C.F.R. § 404.1520(b)-(f).
Entitlement to benefits is
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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.
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).
At step one, the ALJ found that Plaintiff had not engaged
in substantial gainful activity since January 1, 1994,
Plaintiff’s alleged onset date, and that she had sufficient
insurance coverage through September 30, 1997.
(R. at 14).
step two, the ALJ found that Plaintiff’s impairments of CharcotMarie-Tooth disease, bilateral carpal tunnel syndrome, and
bilateral hearing loss were severe.
She also found that
Defendant had the non-severe impairments of an anxiety disorder,
hypertension, vertigo, restless leg syndrome and osteoarthritis.
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At step three, the ALJ determined that Plaintiff’s
impairments individually or in combination with one another 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 light level, 7
with certain restrictions.
(Id. at 17).
At steps four and
five, the ALJ determined that Plaintiff did not have any past
relevant work, but that based on her RFC, she would be able to
perform light occupations such as office helper, messenger, or
photocopy machine operator.
(Id. at 24).
Plaintiff raises four areas of concern: (1) whether the ALJ
erred by not according proper weight to the opinion of
Plaintiff’s neurologist, Dr. Nangia, (ECF 11 at 6); (2) whether
the ALJ posed a faulty hypothetical to the vocational expert
(the “VE”), (id. at 7); (3) whether the ALJ erred by failing to
consider and apply Medical Vocational Guideline 201.14 under the
Sedentary Grid Guidelines, (id. at 8); and (4) whether the ALJ
erred by failing to afford due weight to Plaintiff’s testimony,
(id. at 9).
The Court rejects Plaintiff’s first assignment of error.
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.”).
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Plaintiff argues that the ALJ’s determination that Dr. Nangia’s
medical opinion was not consistent with the medical evidence in
the record was error.
(Id. at 7).
Plaintiff pins her argument
on the fact that the record contains results for 2019
electromyography and nerve conduct studies for Plaintiff that
showed moderate to severe neuropathy consistent with the
diagnoses of Plaintiff’s severe medical impairments and that
those tests were consistent with Dr. Nangia’s opinion that
Plaintiff had limited functionality.
However, Plaintiff’s argument does not address the fact
that Dr. Nangia and Plaintiff’s primary care physician found
that Plaintiff had normal strength and muscle tone upon physical
examination in 2019.
(R. at 20).
Plaintiff’s argument also
ignores the fact that Dr. Nangia’s medical notes revealed that
Plaintiff was not taking the prescribed medication and wearing
the prescribed wrist brace that were meant to assist with her
McTaggart v. Comm'r of Soc. Sec., No. CV 19-8893
(SRC), 2020 WL 2079285, at *4 (D.N.J. Apr. 30, 2020) (“[I]f the
frequency or extent of the treatment sought by an individual is
not comparable with the degree of the individual's subjective
complaints, or if the individual fails to follow prescribed
treatment that might improve symptoms, we may find the alleged
intensity and persistence of an individual's symptoms are
inconsistent with the overall evidence of record.”) (quoting SSR
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The ALJ also explicitly considered that Plaintiff did not
take her prescribed medication because of a fear of weight gain
which suggested that Plaintiff’s symptoms were not as bad as she
(R. at 21 (“The claimant’s rationale for not taking
this medication further supports the conclusion that her
reported symptoms are not as intense or functionally limiting as
The Court may not substitute its reasoning for
the ALJ’s when their findings are supported by substantial
evidence and the Court sees no reason to disturb the weight that
the ALJ placed on Dr. Nangia’s medical opinion.
F.2d at 1182.
The Court also rejects Plaintiff’s contention that the ALJ
posed a faulty hypothetical to the VE.
Plaintiff contends that
the ALJ’s hypothetical including “frequent handling and
fingering bilaterally,” was faulty because it overstated her
ability to use her hands. (ECF 11 at 7-8).
An ALJ is only
required to pose a hypothetical that accurately reflects a
Harris v. Astrue, 886 F. Supp. 2d 416, 426 (D.
Del. 2012) (“The ALJ was not required to accept the VE's
testimony that Harris’ subjective complaints, if fully credible,
would preclude employment because, as discussed, those
complaints were not supported by the evidence as a
whole.”); Bartmas v. Colvin, No. CV 15-854, 2016 WL 3197973, at
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*4 (W.D. Pa. June 9, 2016) (“An ALJ is only required to accept
the VE's responses to hypothetical questions that accurately
reflect a claimant's impairments.”); Davis v. Astrue, No. 4:11CV-3092-MGL-TER, 2012 WL 7176827, at *7 (D.S.C. Dec. 17,
2012), report and recommendation adopted, No. 4:11-CV-03092-DCN,
2013 WL 644261 (D.S.C. Feb. 21, 2013) (“[T]he hypothetical posed
to the VE need only reflect those impairments supported by the
Plaintiff’s argument here presumes that the ALJ’s
RFC analysis was incorrect in order to contend that the ALJ
posed a hypothetical that did not accurately reflect to
limitations to the VE.
However, Plaintiff does not proffer a
reason why the RFC determination that Plaintiff could work at
the light level was not correct.
The Court will not accept
Plaintiff’s invitation to disturb the ALJ’s hypotheticals and,
by proxy, the RFC conclusion where the determination otherwise
is supported by substantial evidence.
Fargnoli, 247 F.3d at 38.
Plaintiff’s argument that the ALJ should have considered
the Medical Vocational Guideline 201.14 under the Sedentary Grid
Guidelines is similarly a disguised attack on the ALJ’s RFC
determination that Plaintiff could perform work at the light
Guideline 201.14 only applies to claimants limited to
See Henry v. Barnhart, 127 F. App'x 605, 606–07
(3d Cir. 2005) (discussing Guideline 201.14 in the context of a
claimant with an RFC at the sedentary level); McGraw v. Comm'r
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of Soc. Sec., No. CIV. 13-4774 NLH, 2014 WL 4828149, at *4
(D.N.J. Sept. 29, 2014), aff'd sub nom. McGraw v. Comm'r Soc.
Sec., 609 F. App'x 113 (3d Cir. 2015) (implicitly acknowledging
in the context of a claimant with an RFC at the medium level
that Guideline 201.14 only applied to sedentary work).
this Court’s review of the ALJ’s extensive and comprehensive RFC
analysis which referenced the medical evidence in the record and
explained her conclusions reveals no basis to second guess the
determination that Plaintiff had an RFC at the light level.
Fargnoli, 247 F.3d at 38.
The Court finds no error on this
Finally, Plaintiff presents an argument that the ALJ failed
to accord due weight to her testimony.
(ECF 11 at 9).
Plaintiff only raised this argument in a section heading and not
in a substantive argument section.
Passing references to
arguments are not enough to bring them before this Court.
Laborers' Int'l Union of N. Am., AFL-CIO v. Foster Wheeler
Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is
waived unless a party raises it in its opening brief, and for
those purposes a passing reference to an issue will not suffice
to bring that issue before this court.”) (internal alterations
and quotation marks omitted); New Jersey Dep't of Env't Prot. v.
E.I. du Pont de Nemours & Co., No. CV 19-14758, 2022 WL 3703204,
at *3 (D.N.J. Aug. 26, 2022) (same).
In any case, on the face
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of the ALJ’s opinion, there is an entire paragraph dedicated to
a discussion of Plaintiff’s testimony, followed by pages of
analysis that weave that testimony into an analysis of other
medical evidence in the record.
(R. at 17-22).
not present an argument warranting remand on that basis.
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: September 19, 2022
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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