DECLERCQ v. ASTRUE

Filing 13

OPINION. Signed by Judge Susan D. Wigenton on 08/10/2011. (nr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EDWARD DECLERCQ,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Civil Action No. 10-4999 (SDW)(MCA)

OPINION

August 10, 2011

WIGENTON, District Judge.
Before the Court is Plaintiff Edward Declercq‟s (“Plaintiff” or “Declercq”) appeal of the
final administrative decision of the Commissioner of Social Security (the “Commissioner” or
“Defendant”) that he is not disabled under 42 U.S.C. § 1614(a)(3)(A) of the Social Security Act
(the “Act”). This appeal is decided without oral argument pursuant to Local Civil Rule 9.1(b).
The Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under
28 U.S.C. § 1391(b). For the reasons set forth below, this Court affirms the Commissioner‟s
decision.
FACTUAL BACKGROUND
A.

Personal and Employment History
Declercq is thirty-six years old. (Ex. 1A at 1; Pl.‟s Br. 3.) After finishing high school,

Declercq completed two-years of college at the School of Continuing and Professional Studies at
New York University. (Tr. 8; Req. for Review of Hr‟g Decision/Order 2.) He also finished a
course at Passaic County Community College. (Tr. 8.)

From 1996 to 2001, Declercq worked at Yofi Textile. (Ex. 4E at 1, 8.) Between 2001 and
2002, Declercq worked at Temco, a cleaning service company, and at Airborne Express, a mail
carrier. (Ex. 4E at 1.) From 2002 to 2003, Declercq worked in a wine warehouse for American
B-D.

(Tr. 3.)

Declercq‟s most recent employment was with the Argentina Soccer Club

restaurant where he worked part-time as a cashier, kitchen cleaner, cook and waiter from May
2004 to June 2005. (Id.; Ex. 4E at 1, 6.)
C.

Medical History
On July 3, 2003, Plaintiff was involved in a motor vehicle accident. (ALJ Decision at 4;

Tr. 4-5.) Plaintiff maintains that he suffers from neck and back pain because of the accident.
(ALJ Decision at 6.) On July 30, 2003, Declercq was injured while lifting cases of wine for
American B-D. (Id. at 5.) Declercq filed a worker‟s compensation claim, which later settled in
2008. (Id.)
On August 12, 2003, results from an MRI revealed a disc bulge at L-5, a disc bulge at
C4/C5, and straightening of the normal lordosis, suggesting a muscle spasm. (Ex. 1F at 2.) The
MRI, however, did not reveal any stenosis, disc herniations or an abnormal spinal cord. (Id.) On
August 21, 2003, Declercq underwent another MRI of his lumbar spine, which revealed a
“[m]inimal right foraminal disc bulge at L4-5.” (Ex. 1F at 11.)
Dr. Peter Schmaus (“Dr. Schmaus”) examined Plaintiff on September 12, 2003, and
diagnosed Plaintiff with a myoligamentous injury of the cervical and lumbar spine. (Ex. 17F at
2.) However, Dr. Schmaus noted that Declercq had a functional cervical range of motion,
normal gait, “no atrophy or fasciculation of the lower extremities,” and no signs of stenosis or
herniated disks. (Id.; Ex. 19F. at 2.)

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On November 17, 2003, Dr. Todd Koppel (“Dr. Koppel”) examined Declercq and
concluded that he had a C4-5 cervical disk bulge, cervical thoracic myofascial pain, L4-5 lumbar
disk bulge, possible cervical radiculopathy, possible right lumbar radiculopathy, and possible
facet arthropathy. (Ex. 20F at 2.) Plaintiff visited Dr. Koppel about four times thereafter. (See
id. at 4-6.) In his final examination of Declercq on August 10, 2004, Dr. Koppel observed that
Plaintiff had a C4-5 cervical disk derangement, sacroiliac versus facet joint pain and possible
cervical radiculopathy. (Id. at 7.)
However, on April 15, 2004, Plaintiff was examined by an orthopedist, Dr. Armando
Martinez (“Dr. Martinez”), who articulated that Plaintiff did not require any further medical
treatment and that he was “capable of working in a less strenuous type of activity.” (Ex. 22F at
3.) Dr. Martinez further concluded that Plaintiff had a normal gait, no muscle spasms, and no
atrophy of the lower extremities. (Id.) Declercq revisited Dr. Martinez approximately a year
later on April 14, 2005, and Dr. Martinez stated that there was no “objective evidence of
radiculopathy” and that his “condition [was] consistent with soft tissue injuries to the
lumbosacral spine.” (Id. at 5.) As such, Dr. Martinez, once more, concluded that Plaintiff was
physically capable of working. (Id.)
Between July 18, 2003 and August 3, 2004, Plaintiff was treated at the Paterson
Chiropractic Center (Ex. 2F at 1, 13.) The diagnosis on his last recorded visit at the center
included a disc bulge at C4-5 and L4-5, “weakness and instability of cervical and lumbar spine,”
and restrictions of his cervical and lumbar spine areas due to continuing muscle spasm. (Id. at
12-13.)
Plaintiff was evaluated by Dr. Henry Birnbaum (“Birnbaum”) on April 5, 2005. (Ex. 5F
at 10.) Dr. Birnbaum noted that Declercq had a chronic lumbar strain, minor cervical and lumbar

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disc bulges, and that Declercq had intermittent complaints of paresethsia. (Id.) An MRI taken
on April 11, 2005 showed an annular tear with a left central disc extrusion, which “compresse[d]
on the thecal sac and mildly narrow[ed] the left neural foramina” at the T11-12 interspace. (Id.)
The results also suggested “a right foraminal disc protrusion with resultant stenosis and contact
but no[] impingement of the exiting nerve root” at L4-5, and a minor diffuse disc bulge at L5/S1.
(Id.) On July 26, 2005, Dr. Birnbaum advised that Declercq had a lumbar disc displacement, but
that his condition was non-surgical and with “[n]o red flags.” (Id. at 6.) Plaintiff also underwent
physical therapy beginning on April 13, 2005, with Michael Cormican (“Cormican”). (Ex. 5F at
57.)

Cormican opined that Declercq suffered from “postural related cervical/lumbar

radiculopathies.” (Id.)
On March 1, 2006, Dr. Arthur Tiger (“Dr. Tiger”), an orthopedist, evaluated Declercq‟s
lumbar and cervical spine. (Ex. 24F at 2.) Dr. Tiger concluded that Declercq had a full range of
motion of his cervical spine, but had pain on extreme motions. (Id.) It was Dr. Tiger‟s
impression that Declercq had the “residuals of a chronic cervical strain syndrome with chronic
myofascitis and a 4-5 bulging disc for which [he] would estimate a disability of 30% of partial
total” and the “residuals of a chronic lumboscaral strain syndrome with chronic myofascitis, a
protruding 4-5 disc with a left-sided L5 radiculopathy for which [he] would estimate a disability
of 35% of partial total.” (Id.)
Contrary to Dr. Tiger‟s determinations, on November 14, 2006, Dr. Sidney Bender (“Dr.
Bender”) concluded that Declercq‟s gait was normal and that his deep tendon reflexes were
active and symmetrical. (Ex. 26F at 1, 4.) Furthermore, he reported that Declercq was “able to
bend until his fingertips reach[ed] the lower calf level,” and was able to execute an eighty-five
degree straight leg raise. (Id. at 5.) Dr. Bender found that Declercq had “no muscle atrophy or

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focal weakness at any point in the upper or lower extremities,” and no signs of lumbar
radiculopathy. (Id. at 4-5.) In his neurological examination of Declercq, Dr. Bender commented
that Declercq was “suffering from a major depression,” but that there was “no objective evidence
of permanent neurologic or neuropsychiatric disability.” (Id. at 5.)
A June 11, 2007, Residual Functional Capacity (“RFC”) report noted that Declercq had
chronic cervical and lumbar radiculopathy with myofascitis. (Ex. 8F at 1.) The RFC report
indicated that Declercq can “be expected to tolerate” walking, standing, or sitting for only “less
than one hour” in an eight-hour day, and that he can “occasionally” lift a five to ten pound
weight. (Id.) The report also noted that Plaintiff was restricted in climbing stairs or ladders and
bending, and limited in “fine/gross manipulation,” (id.), and rated Declercq as having a
“[m]oderately severe impairment: an impairment, which seriously affects [the] ability to
function.” (Id. at 2.) Nonetheless, the report concluded that Plaintiff could perform “[s]edentary
work – [w]ork done primarily seated with only occasional standing or walking required, lifting a
maximum of 10 pounds, and lifting such articles as dockets, ledgers, and small tools.” (Id. at 4.)
On August 31, 2007, an examination by orthopedist, Dr. Alan Friedman (“Dr.
Friedman”), suggested some facet anthropathy, which could possibly explain the cause of
Declercq‟s back pain, but there was “no evidence of an active radiculopathy.” (Ex. 12F at 2.)
Declercq exhibited a “full range of motion in the cervical and lumbar spines as well as in the
upper and lower extremities bilaterally,” and Dr. Friedman noted that the “[p]hysical exam
reveal[ed] a gentleman in no acute distress.” (Id.)
Another MRI taken on June 26, 2009, showed “[n]o evidence of disc bulge, spinal
stenosis or neural foraminal stenosis.” (Ex. 30F at 1.) The MRI also revealed “a very mild

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paracentral disc bulge along the right L4-L5 disc space,” and a “very mild right-sided neural
foraminal stenosis.” (Id.)
In addition to cervical and lumbar disorder, Plaintiff suffers from depression.

On

November 11, 2004, Declercq was diagnosed with dysthymic disorder and received a Global
Assessment of Functioning (“GAF”) score of 54. (Ex. 29F at 6.) Subsequent examinations
between January 26, 2006 and August 9, 2006, suggested that Declercq had a moderate form of
major depressive disorder. (Id. at 19-27.)
On October 24, 2006, Dr. Kai-Ping Wang (“Dr. Wang”) diagnosed Declercq with major
depressive disorder and a GAF score of 35-45 at his initial psychiatric evaluation. (Ex. 9F at 39.)
Dr. Wang observed that Declercq “[d]enied suicidality/homicidality,” had “[n]o perceptual
disturbances,” but had “[p]oor impulse control, poor insight, poor reliability, and poor
judgment.” (Id.) Although Plaintiff‟s responses to treatment were inconsistent, Dr. Wang noted
gradual improvements in Plaintiff‟s condition. For instance, on February 26, 2007, Declercq
reported that he was “going out a bit more” and “visiting friends.” (Id. at 22-23.) Moreover, Dr.
Wang‟s mental status notes indicate his level of impairment steadily improved from the period of
November 16, 2006 through July 24, 2007. (Id. at 4-35.) To elaborate, Dr. Wang indicated on
November 16, 2006, that Plaintiff had moderate levels of depression, anxiety, irritability,
distractibility and a slight to moderate impairment in decision making.

(Id. at 35.)

In

comparison, a July 24, 2007 report suggests that Plaintiff had slight depression or anxiety, but
otherwise had no other signs of mental impairment. (Id. at 2.)
On August 21, 2007, Plaintiff underwent another psychiatric evaluation with Dr.
Solomon Mishkin (“Dr. Mishkin”). (Ex. 11F at 1.) While Dr. Mishkin observed “some mild
irritability, dysphoria and dejection,” he noted that Plaintiff drove to the interview, denied having

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suicidal thoughts, had clear speech, and “good” response time and comprehension. (Id. at 1, 2.)
Dr. Mishkin diagnosed Declercq with major depressive disorder that is moderate to chronic in
severity, without psychotic features. (Id. at 3.) Dr. Mishkin concluded that Declercq has “a fair
ability to understand, carry out and remember instructions, and a limited ability to respond
appropriately to supervision, coworkers and mild work pressures in a work setting. Adaptability
and stress tolerance are limited.” (Id.)
On October 30, 2007, Dr. Rakeesh Bansil (“Dr. Bansil”) determined that Plaintiff
suffered from an adjustment disorder with depressed mood. (Ex. 13F at 1, 4.) Nevertheless, he
concluded that Declerq‟s impairment was not severe. (Id. at 1.) Additionally, Dr. Bansil found
that Plaintiff‟s limitations were mild in the following areas: restriction of activities of daily
living, difficulties in maintaining social functioning, difficulties in maintaining concentration,
persistence or pace. (Id. at 11.) Declercq maintains that his psychological symptoms affect his
sleep cycle, “memory, concentration, ability to follow instructions,” and ability to socialize. (Tr.
9-10, 13.) Although he takes medications for his sleep and anxiety, he alleges that they do not
control his symptoms. (ALJ Decision at 4; Tr. 14-15.)
STANDARD OF REVIEW
In social security appeals, this Court has plenary review of the legal issues decided by the
Commissioner. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Yet, this Court‟s review of the
ALJ‟s factual findings is limited to determining whether there is substantial evidence to support
those conclusions. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence
“does not mean a large or considerable amount of evidence, but rather such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552, 565 (1988) (internal quotation marks omitted). Substantial evidence is “less than a

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preponderance of the evidence, but „more than a mere scintilla‟; it is „such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.‟” Bailey v. Comm‟r of Soc.
Sec., 354 Fed. Appx. 613, 616 (3d Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). More importantly, “[t]his standard is not met if the Commissioner „ignores, or fails to
resolve a conflict created by countervailing evidence.‟” Bailey, 354 Fed. Appx. at 616 (quoting
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). If the factual record is adequately
developed, substantial evidence “may be „something less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency‟s finding from being supported by substantial evidence.‟” Daniels v.
Astrue, 2009 U.S. Dist. LEXIS 32110, at *7 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. Fed.
Mar. Comm‟n, 383 U.S. 607, 620 (1966)). “The ALJ‟s decision may not be set aside merely
because we would have reached a different decision.” Cruz v. Comm‟r of Soc. Sec., 244 Fed.
Appx. 475, 479 (3d Cir. 2007) (citing Hartranft, 181 F.3d at 360). The court is required to give
substantial weight and deference to the ALJ‟s findings. Scott v. Astrue, 297 Fed. Appx. 126, 128
(3d Cir. 2008). However, “where there is conflicting evidence, the ALJ must explain which
evidence he accepts and which he rejects, and the reasons for that determination.” Cruz, 244
Fed. Appx. at 479 (citing Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)).
DISCUSSION
An individual will be considered disabled under the Act if he is unable to “engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment” lasting continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A). The
physical or mental impairment must be severe enough to render the individual “not only unable
to do his previous work but [unable] considering his age, education, and work experience, [to]

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engage in any other kind of substantial gainful work which exists in the national economy.” §
423(d)(2)(A) (internal quotation marks omitted). Subjective complaints of pain alone, cannot
establish disability. § 423(d)(5)(A). Instead, a claimant must show that the “medical signs and
findings” related to her ailment have been “established by medically accepted clinical or
laboratory diagnostic techniques, which show the existence of a medical impairment that results
from anatomical, physiological, or psychological abnormalities which could reasonably be
expected to produce the pain or other symptoms alleged.”

Id.

The Social Security

Administration (the “SSA”) utilizes a five-step sequential analysis to determine disability. Cruz,
244 Fed. Appx. at 480

(citing 20 C.F.R. § 404.1520 (a)(4)(i)-(v) (2011)). “A negative

conclusion at steps one, two, four or five precludes a finding of disability.” Cruz, 244 Fed.
Appx. at 480. However, “[a]n affirmative answer at steps one, two or four leads to the next step.
An affirmative answer at steps three or five results in a finding of disability.” Id. (quoting §
404.1520 (a)(4)(i)-(v)) (internal quotation marks omitted). The United States Supreme Court
describes the evaluation process as follows:
The first two steps involve threshold determinations that the
claimant is not presently working and has an impairment which is
of the required duration and which significantly limits his ability to
work. In the third step, the medical evidence of the claimant‟s
impairment is compared to a list of impairments presumed severe
enough to preclude any gainful work. If the claimant's impairment
matches or is “equal” to one of the listed impairments, he qualifies
for benefits without further inquiry. If the claimant cannot qualify
under the listings, the analysis proceeds to the fourth and fifth
steps. At these steps, the inquiry is whether the claimant can do his
own past work or any other work that exists in the national
economy, in view of his age, education, and work experience. If
the claimant cannot do his past work or other work, he qualifies for
benefits.
Sullivan v. Zebley, 493 U.S. 521, 525-26 (1990); see also 20 C.F.R. § 404.1520(a)(4)(i)-(v). The
burden of persuasion lies with the claimant in the first four steps. Malloy v. Comm‟r of Soc.
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Sec., 306 Fed. Appx. 761, 763 (3d Cir. 2009). Once the claimant is able to show that the
impairment prevents him from performing his past work the burden shifts to the Commissioner
to demonstrate “that the claimant still retains a residual functional capacity to perform some
alternative, substantial, gainful activity present in the national economy.” Id. (citing Kangas v.
Bowen, 823 F.2d 775, 777 (3d Cir. 1987)).
In the instant matter, the ALJ found that Plaintiff met the first step of the five-step
evaluation process since Plaintiff has not engaged in substantial gainful activity since May 25,
2005. (ALJ Decision at 5.) However, in step two, the ALJ concluded that Plaintiff “does not
have an impairment or combination of impairments that has significantly limited (or is expected
to significantly limit) [] [his] ability to perform basic work-related activities.” (Id.); see also 20
C.F.R. 404.1520(c).

Plaintiff claims that the ALJ erred by: (1) failing to find that his

impairments are severe, either singly or in combination; and (2) failing to make a proper
credibility finding regarding his testimony. (Pl.‟s Br. 4, 16.)
1. ALJ’s Step Two Analysis
“At step two of the analysis, [the] [p]laintiff bears the burden of introducing sufficient
evidence to establish a severe impairment or combination of impairments.”

Witkowski v.

Astrue, 2010 U.S. Dist. LEXIS 54570, at *20 (D.N.J. June 3, 2010) (citing Bowen v. Yuckert,
482 U.S. 137, 146-47 (1987)). This step is “„a de minimis screening device to dispose of
groundless claims.‟” Herrera v. Comm‟r of Soc. Sec., 2010 U.S. Dist. LEXIS 82056, at *10
(D.N.J. August 12, 2010) (quoting Beasich v. Comm‟r of Soc. Sec., 66 Fed. Appx. 419, 428 (3d
Cir. 2003)).

At step two, a plaintiff must establish: “(1) the existence of a medically

determinable physical or mental impairment, and (2) that such impairment is „severe‟ within the
meaning of the Regulations.” Cruz, 2009 U.S. Dist. LEXIS 69461, at *16 (citing 20 C.F.R. §§

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416.920a, 416.924, 416.929(b); 42 U.S.C. § 423(d)(5)). For an impairment or combination of
impairments to be found “not severe,” the evidence must establish that “a slight abnormality or
combination of slight abnormalities [] have no more than a minimal effect on an individual‟s
ability to work.” Newell v. Comm‟r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (citation
omitted) (internal quotation marks omitted). “Basic work activities are „abilities and aptitudes
necessary to do most jobs, including . . . walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying or handling.‟” Id. (quoting 20 C.F.R. §§ 404.1520(c), 404.1521(a)).
Here, the ALJ properly articulated the relevant regulation criteria and provided a
sufficient basis to support his conclusions that Declercq‟s impairments, either singly or in
combination, are not severe. As described previously, the step-two analysis includes two substeps. In the first sub-step, the ALJ determined that Declercq suffered from cervical and lumbar
disorder and depression. (ALJ Decision at 5.) However, in the second sub-step, the ALJ found
that Plaintiff “does not have an impairment or combination of impairments that significantly
limits his ability to perform basic work activities.” (Id. at 6.)
The ALJ‟s determination at the second sub-step regarding Plaintiff‟s cervical and lumbar
disorder is supported by substantial evidence. Declercq‟s alleged cervical and lumbar disorder is
related to a July 3, 2003 motor vehicle accident. (Id. at 4.) The ALJ indicated that subsequent
MRI evidence following the accident did not “show significant findings, such as disc herniations
and nerve root compromise.” (Id.) Dr. Schmaus reviewed Plaintiff‟s MRI and “found no
significant stenosis or herniations,” (id. at 7), and an EMG study conducted on September 23,
2003, was negative. (Id.; Ex. 19F at 2.) On April 15, 2004, Dr. Martinez articulated that
Plaintiff was “capable of working in a less strenuous type of activity.” (Ex. 22F at 3.) Dr.
Martinez rendered a similar conclusion approximately one year later, stating that there was no

11

“objective evidence of radiculopathy” and that Plaintiff was physically capable of working. (Id.
at 5.) On July 26, 2005, Dr. Birnbaum advised that Declercq had a lumbar disc displacement,
but that his condition was non-surgical and with “[n]o red flags.” (Ex. 4F at 6.) The ALJ also
examined the physical therapy reports between April 13, 2005 and September 12, 2005, which
revealed that Plaintiff was active and lifting heavy objects during this period. (ALJ Decision at
7.) Furthermore, according to the RFC report, Plaintiff can perform “[w]ork done primarily
seated with only occasional standing or walking required, lifting a maximum of 10 pounds, and
lifting such articles as dockets, ledgers, and small tools.” (Ex. 8F at 4.)
Moreover, the ALJ cited to Dr. Friedman‟s conclusions based on a physical examination
conducted on August 31, 2007. Dr. Friedman concluded that the “[p]hysical exam reveal[ed] a
gentleman in no acute distress,” and although Plaintiff had some facet anthropathy, there was “no
evidence of an active radiculopathy.” (ALJ Decision at 7; Ex. 12 F at 2.) The ALJ described Dr.
Friedman‟s findings as consistent with reports taken between May 8, 2007 and July 10, 2007, at
St. Joseph‟s Regional Medical Center, which indicated that Plaintiff had “full or nearly full
strength in the upper and lower extremities, with intact sensation, except for the bilateral ulnar
nerve distribution.” (ALJ Decision at 7.)
Additionally, the ALJ considered and addressed conflicting probative evidence in the
record. For example, on March 1, 2006, Dr. Tiger opined that Plaintiff had the “residuals of a
chronic cervical strain syndrome with chronic myofascitis and a 4-5 bulging disc for which [he]
would estimate a disability of 30% of partial total” and the “residuals of a chronic lumboscaral
strain syndrome with chronic myofascitis, a protruding 4-5 disc with a left-sided L5
radiculopathy for which [he] would estimate a disability of 35% of partial total.” (Ex. 24F at 2.)
However, the ALJ determined that Dr. Tiger‟s findings were at odds with reports from Dr.

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Friedman and from St. Joseph‟s Regional Medical Center. (ALJ Decision at 8.) Hence, the ALJ
concluded that Dr. Tiger‟s opinion deserves lesser weight. Id.; see Cotter, 642 F.2d at 705 (“We
are also cognizant that when the medical testimony or conclusions are conflicting, the ALJ is not
only entitled but required to choose between them.”). Similarly, the ALJ assessed the RFC
report, which indicated that Declercq had chronic cervical and lumbar radiculopathy with
myofascitis and can “be expected to tolerate” walking, standing, or sitting for only “less than one
hour” in an eight-hour day, and that he could “occasionally” lift a five to ten pound weight.
(ALJ Decision at 8; Ex. 8F at 1.) The ALJ concluded that this portion of the RFC report
conflicted with Dr. Friedman and Dr. Bender‟s reports and with MRI evidence that showed no
severe orthopedic problems “such as disc herniation, stenosis, and nerve root compromise.” (ALJ
Decision at 8.)
The ALJ also determined that Plaintiff did not meet the C.F.R. severity threshold at step
two for his mental impairment. (Id. at 9.) Under 20 C.F.R. § 404.1520a(b), the ALJ must first
assess a plaintiff‟s “„pertinent symptoms, signs, and laboratory findings‟ to determine whether a
mental impairment exists.” Rodriguez, 2010 U.S. Dist. LEXIS 71196, at *10 (quoting 20 C.F.R.
§ 404.1520a(b)(1)). If a medically determinable impairment exists, the ALJ must assess “the
severity of [the] [c]laimant‟s impairments as to four broad functional areas including 1) daily
living, 2) social functioning, 3) concentration, persistence or pace, and 4) deterioration in worklike settings.”

Rodriguez, 2010 U.S. Dist. LEXIS 71196, at *10-11 (citing 20 C.F.R. §

404.1520a(b)(3)).
In the present case, the ALJ concluded that Declercq‟s determinable mental impairment
is non-severe since it “causes 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

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area.” (ALJ Decision at 9) (citations omitted) (internal quotation marks omitted). Declercq was
diagnosed with dysthymic disorder and received a Global Assessment of Functioning (“GAF”)
score of 54 on November 11, 2004. (Ex. 29F at 6.) On October 24, 2006, Dr. Wang diagnosed
Declercq with major depressive disorder with a GAF score of 35-45 at his initial psychiatric
evaluation. (Ex. 9F at 39.)
Plaintiff contends, in part, that the ALJ erred in finding his mental impairment to be nonsevere despite his GAF ratings. (Pl.‟s Br. 7-8.) However, the ALJ need not accord controlling
evidentiary weight to Plaintiff‟s GAF ratings when there is substantial evidence in the record
supporting the non-severity of Plaintiff‟s mental health, nor do GAF ratings necessarily resolve
whether Plaintiff should be considered disabled. See Russo v. Astrue, 2011 U.S. App. LEXIS
7098, at *17-18 (3d Cir. Apr. 6, 2011) (explaining that other evidence in the record can
undermine the weight of a claimant‟s GAF score); see also Gilroy v. Astrue, 351 Fed. Appx.
714, 715 (3d Cir. 2009) (“A GAF score does not have a direct correlation to the severity
requirements of the Social Security mental disorder listings . . . .”); Chanbunmy v. Astrue, 560 F.
Supp. 2d 371, 383 (E.D. Pa. 2008) (“[N]either Social Security regulations nor case law require
an ALJ to determine the extent of an individual‟s mental impairment based solely on a GAF
score.”).
Further, “[a]n ALJ may reject a treating physician‟s opinion . . . [or] may afford a treating
physician‟s opinion more or less weight depending upon the extent to which supporting
explanations are provided.” Plummer, 186 F.3d at 429. Here, the ALJ cited to Dr. Wang‟s
mental status notes, which indicated that Plaintiff‟s level of impairment steadily improved from
the period of November 16, 2006 to July 24, 2007. (Ex. 9F at 4-35.) For instance, on July 24,
2007, Dr. Wang‟s report noted that Declercq had slight depression or anxiety. (Id. at 2.) And

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although Dr. Mishkin diagnosed Declercq with major depressive disorder that is moderate to
chronic in severity, he concluded that Declercq has “a fair ability to understand, carry out and
remember instructions, and a limited ability to respond appropriately to supervision, coworkers
and mild work pressures in a work setting.” (Ex. 11F at 3.) Moreover, the ALJ concurred with
Dr. Bansil‟s finding that Plaintiff‟s limitations were mild in the following areas: restriction of
activities of daily living, difficulties in maintaining social functioning, difficulties in maintaining
concentration, persistence or pace.

(ALJ Decision at 9; Ex. 13F at 11.)

The ALJ also

determined that Plaintiff had no episodes of decompensation. (ALJ Decision at 9.) Hence, the
ALJ properly considered all four categories of functioning in determining that Plaintiff had no
severe mental impairment. As such, this Court concludes there was substantial and sufficient
evidence to justify the ALJ‟s decision that Plaintiff‟s physical and mental impairments were not
severe within the statutory meaning of 20 C.F.R. § 404.1520(a)(4)(ii).
2. ALJ’s Credibility Findings on Plaintiff’s Subjective Complaints
Plaintiff contends that the ALJ erred in concluding that his subjective complaints were
not credible. Specifically, Declercq posits that the ALJ did not provide sufficiently specific
reasons for discounting Plaintiff‟s credibility, but “merely offered his summary of the medical
records.” (Pl.‟s Br. at 18.)
The ALJ must “consider . . . all symptoms, including pain, and the extent to which []
[such] symptoms can reasonably be accepted as consistent with objective medical evidence.” 20
C.F.R. § 404.1529(a).

“While a claimant‟s subjective complaints must be given serious

consideration, they must also be supported by medical evidence.” Johnson v. Comm‟r of Soc.
Sec., 398 Fed. Appx. 727, 735 (3d. Cir. 2010) (citing Smith v. Califano, 637 F.2d 968, 972 (3d.
Cir. 1981); Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992)). The ALJ may not

15

discredit a claimant‟s subjective complaints based on his/her “own medical judgment; it must be
discredited by contradictory medical evidence.” Cruz, 244 Fed. Appx. at 481 (quoting Kent, 710
F.2d at 115). “[T]he ALJ must also consider and weigh all of the [medical and] non-medical
evidence before him.” Burnett v. Comm‟r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir.
2000). If there are inconsistencies in the evidence, the ALJ must mention and analyze the
contradictory evidence that tends to discredit the claimant. Id. The ALJ must not only express
which evidence he relies on to support his decision, he “must [also] give some indication of the
evidence which he rejects and his reason(s) for discounting such evidence.” Id. at 121 (citing
Plummer, 186 F.3d at 429). Furthermore, Social Security Ruling (“SSR”) 96-7p provides:
The reasons for the credibility finding must be grounded in the
evidence and articulated in the determination or decision. It is not
sufficient to make a conclusory statement that “the individual’s
allegations have been considered,” or that “the allegations are not
credible.” It is also not enough for the adjudicator to simply recite
the factors that are described in the regulations for the evaluation
of symptoms.
(emphasis added).
However, “[t]he ALJ‟s assessment of credibility is an essential function of the Judge,”
and “[t]he ALJ‟s conclusions on a [p]laintiff‟s lack of credibility are within the ALJ‟s unique
province.” Sullivan v. Astrue, 2010 U.S. Dist. LEXIS 71211, at *20 (D.N.J. July 15, 2010); see
also Gainey v. Astrue, 2011 U.S. Dist. LEXIS 44369, at *39-40 (D.N.J. Apr. 25, 2011) (“The
ALJ has the authority to make credibility determinations of a plaintiff‟s testimony,
[e]specifically with regard to pain and other subjective complaints.”) (citing Malloy, 306 Fed.
Appx. at 765).
In the instant matter, the ALJ determined that Plaintiff‟s “statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to the extent they

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are inconsistent with the finding that the [Plaintiff] has no severe impairment or combination of
impairments.” (ALJ Decision at 6.) Contrary to Plaintiff‟s assertion, the ALJ does provide
sufficiently specific reasons for his credibility finding. With respect to Plaintiff‟s cervical and
lumbar disorder, the ALJ noted that Plaintiff was active during his treatment. (Id. at 7.)
To be sure, the ALJ also discredited Plaintiff‟s complaints by raising contradictory
medical evidence. The ALJ cited to multiple findings in the record that suggest that Plaintiff‟s
physical injury is non-severe. For instance, the ALJ referred to Dr. Friedman and Dr. Bender‟s
reports, which indicated that Plaintiff had a normal gait and no active radiculopathy, and to Dr.
Schachtel‟s finding that Plaintiff‟s orthopedic impairments were non-severe following a review
of Dr. Friedman‟s report. (Id.) Furthermore, the ALJ provided sufficient reasons explaining
why the severity of Declercq‟s orthopedic impairments cited in his RFC report and Dr. Tiger‟s
examination should be discounted.

The ALJ indicated that Plaintiff‟s RFC report was

“inconsistent with the MRI evidence, which [did] not document significant orthopedic problems”
and that Dr. Tiger‟s opinion deserved lesser weight in light of Dr. Friedman‟s report and records
from St. Joseph‟s Regional Medical Center. (Id. at 8.)
Likewise, the ALJ‟s credibility finding regarding Declercq‟s mental impairment was
conducted in conformity to the Act and was supported by relevant evidence in the record. The
ALJ explained that while Plaintiff had a medically determinable mental impairment, it 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.” (Id. at 9) (citing 20
C.F.R. § 404.1520a(d)(1).

Plaintiff also testified at his hearing that he had “depressive

symptoms, such as low energy,” and that he was receiving psychiatric treatment at St. Joseph‟s.

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(ALJ Decision at 9.) Although the ALJ left the record open for Plaintiff to submit additional
evidence relating to his psychiatric treatment at the time, none was received. (Id.)
The ALJ offers a sufficiently thorough analysis of Plaintiff‟s depression in reaching his
conclusion.

In particular, the ALJ noted Plaintiff‟s GAF scores and medical evidence

demonstrating that Plaintiff has chronic to moderate major depressive disorder. (Id. at 8-9.)
Nevertheless, the ALJ also raised other evidence revealing that Plaintiff had “mostly slight or no
symptoms” with no “sustained psychological problem” and that Plaintiff‟s limitations were mild
in the following areas: restriction of activities of daily living, difficulties in maintaining social
functioning, difficulties in maintaining concentration, persistence or pace.

(Id. at 9.)

Accordingly, the ALJ made a valid credibility determination based on substantial evidence as to
the degree of Plaintiff‟s subjective complaints.
CONCLUSION
For the foregoing reasons, the ALJ‟s decision is AFFIRMED.
SO ORDERED.

s/ Susan D. Wigenton
Susan D. Wigenton, U.S.D.J.

CC:

Madeline Cox Arleo, U.S.M.J.

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