SMITH v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Dennis M. Cavanaugh on 3/28/12. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LAWRENCE SMITH
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Hon. Dennis M. Cavanaugh
OPINION
Civil Action No.: 10-CV-5566 (DMC)

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon the appeal of Lawrence Smith (“Plaintiff”) from
the final decision of the Commissioner of Social Security (“Commissioner”), denying Plaintiff’s
claim for a period of disability and disability insurance benefits under Title II, and Plaintiff’s
application for supplemental security income under Title XVI of the Social Security Act (“Act”).
This Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). No oral
argument was heard pursuant to Rule 78 of the Federal Rules of Civil Procedure.
After reviewing the submission of both parties, for the following reasons, the final decision entered
by the Administrative Law Judge (“ALJ”) is affirmed.

1

I
A.

BACKGROUND

PROCEDURAL HISTORY

On April 10, 2007, Plaintiff filed a Title II application for a period of disability and
disability insuran.ce benefits, as well as supplemental security income. (Transcript of
Proceedings, Feb. 15, 2011 (“Tr.”) Tr. 10, 121-27; ECF No. 9). Both applications listed the
onset date of the disability as November 1, 2006. (Tr. 121, 125). The applications were initially
denied September 12, 2007 and denied again upon reconsideration on July 24, 2008. (Tr. 10).
On August 4, 2008, Plaintiff filed a timely written request for a hearing. (Tr. 10, 80-81). A
hearing was held in Newark, New Jersey on October 28, 2009 in front of Administrative Law
Judge Leonard Olarsch (“ALJ Olarsch”). (Tr. 10). ALJ Olarsch issued his decision on
November 12, 2009 denying Plaintiff’s claim. (Tr. 16). On January 8, 2010, Plaintiff filed a
request for review of the ALJ Olarsch’s decision. (Tr. 6). On August 24, 2010, the Appeals
Council denied the request for review of the ALJ Olarsch’s decision. (Tr. 1). On October 26,
2010, Plaintiff filed a complaint against the Commissioner of Social Security (hereinafter
“Commissioner”). (Compl.).
B.

FACTUAL HISTORY

1.

The Findings of the Administrative Law Judge

ALJ Olarsch made eleven findings regarding Plaintiff’s application for a period of
disability and disability insurance benefits: 1) Plaintiff meets the insured status requirements of
the Social Security Act through December 31, 2010; 2) Plaintiff has not engaged in substantial
gainful activity since November 1, 2006; 3) Plaintiff has the following severe impairments:
diabetes and cervical spondylosis; 4) Plaintiff does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
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Subpart P, Appendix 1 (20 C.F.R. 404 §§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925, and 416.926); 5) Plaintiff has residual functional capacity to perform the full range of
light work as defined in 20 C.F.R. §§ 404.1567(B) and 416.967(b); 6) Plaintiff is unable to
perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965); 7) Plaintiff was born on
March 14, 1964 and was 42 years old, which is defined as a younger individual age 18-49, on the
alleged disability onset date (20 C.F.R. §§ 404.1563 and 416.963); 8) Plaintiff has at least a high
school education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964); 9)
transferability of job skills is not material to the determination of disability because applying the
Medical-Vocational Rules directly supports a finding of “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix
2); 10) Plaintiff is capable of finding a job that he could perform based on his age, education,
work experience, and residual functional capacity (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969
and 416.969(a)); and 11) Plaintiff has not been under a disability, as defined in the Social
Security Act, from November 1, 2006 through November 12, 2009, the date of the decision. (Tr.
12-16).
2.

Plaintiff’s Medical History and Evidence

Plaintiff’s disability claims since November 1, 2006 have related to diabetes with mild
neuropathy, numbness, degenerative disc disease, cervical spondylosis, hypertension, gait,
dizziness, vision problems and shortness of breath. (Tr. 13-15). Plaintiff’s medical history is
summarized below.
i.

Medical Evidence Prior to the Alleged Onset Date

Plaintiff’s diabetes symptoms first arose in 1991. He experienced polyuria, polyphagia,
and polydipsia at that time. (Tr. 225). He was hospitalized with an elevated blood glucose level
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and was diagnosed with diabetes. Id. Plaintiff took oral medication to stabilize his diabetes up
until 1993 when he started taking insulin. Id. Plaintiff alleges that his diabetes was under control
until a couple of years ago when he was hospitalized on two occasions, once at Christ Hospital
and once at Greenville Hospital. Id.
ii.

Medical Evidence from the Alleged Onset Date: November 1, 2006

Plaintiff lists the onset date on his application as November 1, 2006. (Tr. 121, 125).
Plaintiff’s medical records indicate that he was hospitalized on multiple occasions: July 15,
2007, September 11, 2007, and January 7, 2009.
The record includes outpatient registration forms dated July 19, 2007 (Tr. 179),
September 15, 2007 (Tr. 201), and January 8, 2009 (Tr. 248). Furthermore, copies of lab and
test results are included and dated July 15, 2007 (Tr. 194-199), September 11, 2007 (Tr. 213220), and January 7, 2009 (Tr. 246, 252-256, 264-278).
a. First Hospital Visit – July 15, 2007
Plaintiff sought treatment at Greenville Hospital on July 15, 2007 for left-side weakness,
as well as numbness and tingling in his left arm, that went away with movement of the left arm
and fingers. (Tr. 191).
The results from Plaintiff’s examination were largely normal. (Tr. 186, 188). He was
alert and oriented, with normal respiration and vision. (Tr. 185, 188). His blood pressure,
neurological, gastrointestinal, respiratory, cardiovascular, psychological and
musculoskeletal/skin diagnoses were all normal. Id. Magnetic resonance imaging (hereinafter
“MRI”) revealed degenerative spondylosis at C6-C7 and C7-T1. (Tr. 191). Plaintiff was
discharged on July 19, 2007 and was told that he could resume normal activities. (Tr. 179).

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Upon discharge, Plaintiff was prescribed the following medications: Naprosyn, Glucophage,
Insulin 70-30 and Diovan. (Tr. 180).
b. Second Hospital Visit – September 11, 2007
Plaintiff was readmitted to Greenville Hospital on September 11, 2007 with complaints
of numbness on both of his legs for the past “couple of days.” (Tr. 205). Plaintiff’s physical
examination revealed nothing remarkable according to the nurse’s assessment. (Tr. 206). The
doctors diagnosed Plaintiff as having uncontrollable diabetes as well as dehydration. (Tr. 203204). Plaintiff was discharged on September 15, 2007 and was told that he could resume normal
activities. (Tr. 201).
c. Consultative Examiner’s Report – Dr. Alexander Hoffman, M.D.
Dr. Alexander Hoffman, M.D., performed a physical examination of Plaintiff on May 19,
2008 and largely found no problems. (Tr. 225-229). During the examination, he found that
Plaintiff was alert and oriented as to time, place and person. (Tr. 226). He walked with normal
gait and did not use an assistive device. Id. His blood pressure was slightly high at 150 over 88.
Id. His lungs were clear to percussion and auscultation without wheezing, rales, or rhonchi. Id.
Dr. Hoffman did note that Plaintiff weighed 260 pounds. Id. Dr. Hoffman also found that
Plaintiff had the following characteristics: 1) full range of motion for both knees without
swelling or crepitus; 2) very good upper body grip strength; 3) normal biceps and triceps
strength and full range of motion at the wrist and elbow with full extension at the shoulders; 4)
ability to stand and support himself on one leg at a time; 5) ability to do deep knee bends; 6)
ability to flex at the waist to within eight inches of the floor; and 7) ability to walk on both heels
and toes. Id.

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Overall, Dr. Hoffman’s report found that Plaintiff coped with diabetes for the past
seventeen years. (Tr. 227). The doctor noted that Plaintiff had some complications of
neuropathy involving lower extremities, and several episodes of quite elevated glucose levels
that require hospitalization. Id. Lastly, Dr. Hoffman found that Plaintiff had hypertension that
was relatively well controlled and had no cardiac disease. Id.
d. Physical Residual Functional Capacity Assessment - Dr. Nancy Simpkins
The record also notes that on June 23, 2008, Dr. Nancy Simpkins, M.D., completed
Plaintiff’s Physical Residual Functional Capacity (hereinafter “RFC”) Assessment form (Tr.
232-239), in which Dr. Simpkins made a number of findings. First, she found that Plaintiff
could lift twenty pounds occasionally and ten pounds frequently; could stand and/or walk for at
least two hours in an eight-hour workday; could sit for a total of about six hours in an eight-hour
workday; and was not limited in push and/or pull strength. (Tr. 233). Second, in terms of
postural limitations, she found that Plaintiff occasionally could climb, balance, stoop, kneel,
crouch, and crawl. (Tr. 234). Lastly, Dr. Simpkins mentioned that Plaintiff should avoid
concentrated exposure to extreme cold and heat, wetness, humidity, noise, vibration, fumes,
odors, and hazards. (Tr. 236).
e. Anesthesiologist Report – Dr. Yuhlin Lin, M.D.
The record contains a report from Dr. Yuhlin Lin, M.D. who examined Plaintiff on
February 13, 2008, after he complained of pain and numbness in his right neck and arms for the
previous three months. (Tr. 241). Plaintiff had limited range of motion in his neck, with right
neck pain when extending, bending, rotating his neck, and tingling in the right arm and second
and third fingers. Id. Dr. Lin also noted that Plaintiff had full (5+) muscle power, normal (2+)
deep tendon reflexes (hereinafter “DTL”), and intact vibratory sensation bilaterally. Id. Upon
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examination, Dr. Lin diagnosed Plaintiff with cervical spondylosis, and right cervical facet pain
and radiculopathy. Id. Dr. Lin also suggested that Plaintiff undergo cervical epidural steroid
injections. (Tr. 242). By March 16, 2008, Plaintiff reported feeling better with residual
tingling/numbness on the right thumb, but that the neck and shoulder pain still remained. Id. An
MRI was done on September 12, 2008, and revealed that Plaintiff had cervical spondylosis and
disk herniation at C5-C6 and C6-C7, with right shoulder and acrominion joint and biceps
tendonitis and tendinosis. (Tr. 243).
Dr. Lin treated Plaintiff’s cervical spondylosis and disk herniation on October 22, 2008
with a cervical epidural steroid injection and epidurogram. (Tr. 243). After treatment, Dr. Lin
found no complications from the surgery and found that Plaintiff experienced an improvement
with his neck pain and had no motor or sensory deficit from the surgery. (Tr. 244).
f. Third Hospital Visit – January 7, 2009
Plaintiff was admitted to the hospital on January 7, 2009 after complaining of chest pain.
(Tr. 245-246). An angiography was done on Plaintiff and revealed that there was an eighty
percent concentric stenosis of the mid-left anterior descending coronary artery (hereinafter “midLAD”), but with normal left ventricular systolic function and overall ejection fraction estimated
at fifty-five percent. (Tr. 246). The Referring Physician, Dr. Mazhar El-Amir, M.D., also noted
that there was a normal aortic route size, and no aortic insufficiency or dissection. (Tr. 246). A
stent was successfully placed into Plaintiff’s left coronary artery. (Tr. 247). Plaintiff was
discharged on the following day and was told to continue taking Diovan, Lyrica, Aspirin, Plavix,
Crestor, Pepcid, and Insulin. (Tr. 247, 249). Plaintiff was also advised to resume normal
activities as tolerated. (Tr. 274).

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g. Disability Reports from Plaintiff, Field Office and Appeals Council
The record contains several disability reports. The first disability report comes from
Plaintiff. In this report, Plaintiff listed his illness, injuries, and conditions, and how they limit
his ability to work. (Tr. 137). He stated that his diabetes caused him to be unable to see while
working, and made his “legs and feet feel as though they’re giving out.” Id. Plaintiff claimed
that the onset date is November 1, 2006, and admitted to not working once the symptoms
interfered with his ability to work. Id. Plaintiff listed November 2005 as the last date of work.
(Tr. 138). In describing his employment, Plaintiff has worked in various industries ranging from
welding at a metal company to preparatory cooking at a hospital. Id. The longest job that
Plaintiff held was in construction, where he carried heavy tools and did basic construction work.
Id. He was also required to lift pipes, bricks, sand bags, and basic construction supplies. (Tr.
139). On this report, Plaintiff mentioned that he frequently lifted “50 pounds or more,” and that
the heaviest weight lifted was about “100 pounds or more.” Id.
The next disability report in the record is from the field office dated April 25, 2007. (Tr.
145). The interview was conducted in person, and at that time Plaintiff had some difficulty with
seeing but no difficulty in hearing, reading, breathing, understanding, coherency, concentrating,
talking, answering, sitting, standing, walking, using his hands or writing. (Tr. 144). The
interviewer described Plaintiff as being casually dressed but “seemed to be in pain, [and]
moaning throughout the interview.” Id.
The next disability report in the record is a disability report to the Appeals Council from
Plaintiff. This form is undated. Plaintiff noted three changes to his current physical condition:
Plaintiff stated that 1) as of July 2007, he was hospitalized twice after his initial filing and then
had severe nerve damage and dislocation of a disc in the spine; 2) as of June 10, 2007, he was
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experiencing constant leg and foot pain due to poor circulation in limbs caused by nerve damage
and numbness to the left side of his body; and 3) as of September 12, 2007, he developed
hypertension and must take daily medication for it. (Tr. 147).
The next report on the record is a function report from Plaintiff, dated April 4, 2008,
which recorded how his impairments limit his activities. Plaintiff made appointments to see the
doctor, picked up medications, and went to therapy and exercises. (Tr. 152). He prepared his
own meals on a daily basis and occasionally did household chores. (Tr. 154). Plaintiff did go
outside on a daily basis depending on the weather and walked or used public transportation as his
main means of travel. (Tr. 155). Plaintiff claimed that he no longer played sports like he used to;
instead, he read the mail and the Bible on a daily basis. (Tr. 156). Plaintiff attended Bible study
twice a week, and visited the church and doctors. Id. Plaintiff stated that he no longer
participated in many social events or saw his friends because his “patience ha[d] become short.”
Id.
The last disability report on record from Plaintiff is dated September 10, 2008. The
details from this report are fairly consistent with prior reports detailed above.
h. Plaintiff Lawrence Smith’s Testimony
Plaintiff, Lawrence Smith, testified at the ALJ hearing on October 28, 2009. (Tr. 22).
Plaintiff’s attorney, Abraham Alter, was present. Plaintiff testified that he was then forty-four
years old and has a twelfth grade education. (Tr. 32). Plaintiff’s attorney acknowledged that
Plaintiff has a long history of different jobs – at least fifteen jobs are listed on his disability
report. Id. Plaintiff explained that he received short jobs for each environmental problem that
may arise. Id. Other jobs that Plaintiff took up were working with a construction company, a

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maintenance company, a management company, a cleaning company, a spot welding company,
and a health services company. (Tr. 32-34).
Plaintiff testified about his physical state. He stated that he feels pain on his neck, back,
ankles, feet and hands. (Tr. 24). He also experienced numbness and tingling in his hands,
swelling in his feet, erectile dysfunction, and difficulty with walking. (Tr. 24-26). Plaintiff also
testified to instances of elevated blood sugar levels and difficulty with controlling his diabetes.
(Tr. 39). During questioning, Plaintiff testified that he felt numbness on his right hand on a daily
basis and that this numbness affected his ability to do things like lift pitchers. (Tr. 44-45).
Plaintiff also claimed he cannot tilt his head in certain positions for a very long time. (Tr. 45).
Plaintiff’s attorney then asked Plaintiff about his activities and what he enjoys doing.
First, he answered that he lives alone and maintains a sedentary lifestyle such as lying down and
watching television. (Tr. 30). Second, he said that he used to bowl and fish with his nephew but
no longer does that now. Id. Third, Plaintiff mentioned that he does not consume alcohol or
drugs and is involved with church activities. (Tr. 36).
Plaintiff’s attorney then asked Plaintiff about his current treatment for his physical
problems. Plaintiff stated that he gets shots in his neck area to alleviate the pain. (Tr. 46, 49).
He also stated that these shots do help alleviate the pain for a couple of months. (Tr. 49).
Plaintiff also said that he is taking Oxycontin three times a day for pain management. Id.

II.

PLAINTIFF’S ARGUMENT

Plaintiff’s argument mainly consists of four points: 1) the ALJ omitted most of Plaintiff’s
severe impairments at Step Two of the test to determine whether an individual is disabled; 2) the
ALJ’s mistake in Step Two caused the ALJ to not combine and compare all of Plaintiff’s severe
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impairments with the Commissioner’s listings; 3) the ALJ’s Step Four analysis of the RFC lacks
medical foundation and is directly contradicted by the Commissioner’s own experts; and 4)
vocational expert testimony was necessary. Overall, Plaintiff argues that the ALJ’s decision was
not based on substantial evidence of the record and asks this Court to remand the decision and
order a new hearing.

III.

STANDARD OF REVIEW

A reviewing court will uphold the Commissioner’s factual decisions if they are supported
by “substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3) (2006); Skyes v. Apfel, 228 F.3d
259, 262 (3d Cir. 2000). Substantial evidence is “more than a mere scintilla . . . but may be less
than a preponderance.” Woody v. Sec’y of Health & Human Serv., 859 F.2d 1156, 1159 (3d Cir.
1988). It “does not mean a large or considerable amount of evidence, but rather such relevant
evidence which, considering the record as a whole, a reasonable person might accept as adequate
to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations omitted).
Not all evidence is considered “substantial.” For instance,
[a] single piece of evidence will not satisfy the substantiality test if the [Commissioner]
ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence
substantial if it is overwhelmed by other evidence - particularly certain types of evidence
(e.g. that offered by treating physicians) - or if it really constitutes not evidence but mere
conclusion.
Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (quoting Kent
v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). The ALJ must make specific findings of fact to
support his ultimate conclusions. Stewart v. Sec’y of Health, Educ. & Welfare of the U.S., 714
F.2d 287, 290 (3d Cir. 1983).

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Nonetheless, the “substantial evidence standard is a deferential standard of review.”
Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). As such, it does not matter if this Court
“acting de novo might have reached a different conclusion” than what the Commissioner found.
Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas,
Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). “The district court…is [not] empowered to
weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d
Cir. 1984)).

IV.

APPLICABLE LAW

A. THE FIVE-STEP PROCESS FOR DETERMINING WHETHER PLAINTIFF IS DISABLED
A claimant’s eligibility for benefits is governed by 42 U.S.C. § 1382. A claimant is
considered disabled under the Social Security Act if he or she is unable 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 continuous period of not less than [twelve] months.” 42 U.S.C. § 423(d)(1)(A) (2006). A
claimant bears the burden of establishing their disability. Id. § 423(d)(5)(A) (2006). The Social
Security Administration has established a five-step process for determining whether an
individual is disabled. 20 C.F.R. §§ 404.1520(a) and 416.920(a) (2012).
Step One requires the ALJ to consider if the claimant is performing any work activity. If
they are, they must assess if it is considered substantial, gainful activity. 20 C.F.R. § 404.1520(i)
(2012). Substantial work activity is work that involves doing significant physical or mental
activities. 20 C.F.R. §§ 404.1572(a) and 416.972(a) (2012). Gainful work activity is work
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normally done for profit, whether or not a profit is realized. 20 C.F.R. § 404.1572(b) (2012). If
it is found that the claimant is performing substantial, gainful activity, then the ALJ proceeds to
Step Two. 20 C.F.R. §§ 404.1520(i) and 404.1520(b) (2012).
Step Two requires the ALJ to determine if the claimant has a medical impairment that is
severe or a combination of impairments that are severe. In order to qualify as severe, an
impairment or combination of impairments must significantly limit an individual’s ability to
perform basic work activities. 20 C.F.R. §§ 404.1520(c) and 416.920(c) (2012). If an individual
is not determined to have a severe impairment or severe combination of impairments, the
individual is not considered disabled. If the individual is determined to have a severe impairment
or a severe combination of impairments, then the ALJ will proceed to Step Three.
Step Three requires the ALJ to evaluate the claimant’s impairment and determine if it is
equal to, or exceeds, one of those specified in the Listing of Impairments in Appendix 1 of the
Regulations (hereinafter “Listings”). 20 C.F.R. §§ 404.1520(d) and 416.920 (2003). If the
claimant’s impairments are found to be equal to or greater than one of the Listings, then the
claimant’s RFC must be determined. Id. RFC is an individual’s ability to do physical and
mental work activities despite limitations from his impairment. Your RFC, 20 C.F.R. §§
404.1545(a)(1) and 416.945(a)(1) (2003). A claimant’s RFC is determined by considering all
relevant evidence in the record. Id. Once the claimant’s RFC is determined, the reviewing
officer progresses to Step Four.
Step Four evaluates the RFC determination and the claimant’s past relevant work.
Evaluation of Disability, 20 C.F.R. § 404.1520(iv) (2003). The impairment must be found to
prevent one from doing past relevant work. Id. If it is determined that the claimant is not
prevented from doing their past relevant work, then the claimant is not disabled. If it is
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determined that the claimant is prevented from doing their past relevant work, then the analysis
proceeds to Step Five.
At Step Five, finally, it must be determined if the claimant can perform any other work in
the national economy that is consistent with his or her medical impairments, age, education, past
work experience, and RFC. Id.; See Evaluation of Disability 20 C.F.R. § 416.920(g) (2003). If
the claimant is found able to perform other work, he or she will not be found disabled. Id. The
claimant, generally, continues to have the burden of proving disability at this final step. A
limited burden is shifted to the Social Security Administration, however, to provide evidence
that demonstrates the availability of other work in significant numbers in the national economy
for the claimant to perform, given his or her specific RFC. Evidence, 20 C.F.R. § 404.1512(g)
(2003).
This Court is charged with reviewing the ALJ’s decision on this application to determine
if the Commissioner and the ALJ’s decision are supported by substantial evidence. Grant v.
Shalala, 989 F.2d 1332 (3d Cir. 1993). This Court cannot consider any information beyond what
is in the record before us, and what was in the record before the ALJ that considered the
application.

V.

ANALYSIS

Plaintiff asks this Court to reverse the ALJ’s decision and remand for a new hearing
based on four arguments raised by his attorney previously and hereinafter discussed. See supra
Part II. The Commissioner contends that the ALJ’s decision should be affirmed because the ALJ
adhered to the Social Security Administration regulations, applied the proper legal standards,
and properly supported his decision with ample medical evidence from the record.
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A. ALJ’s Omission of Most of Plaintiff’s Severe Impairments at Step Two
Plaintiff first argues that “most of Plaintiff’s severe impairments [were] omitted” at Step
Two. (Pl.’s Br. 9). Specifically, he claims that the ALJ failed to consider the following as severe
impairments: his weight (260 pounds), myocardial ischemia, immediate coronary syndrome,
coronary atherosclerosis of his coronary vessels, twin disc herniations at C5-C6 and C6-C7,
limited range of motion in the neck, right neck pain on rotation, and pain in the right arm and
hand in the second and third fingers in addition to cervical radiculopathy. (Pl’s Br. 15-16).
Plaintiff’s main argument here is that because Plaintiff is obese with a body mass index that
exceeds forty, the ALJ should have considered his impairments in combination with obesity in
order to determine whether the combination meets the requirements of a Listing. (Pl’s Br. 1821).
Step Two inquiry is a “de minimis screening device to dispose of groundless claims . . . .
If the evidence presented by the claimant presents more than a slight abnormality, the Step Two
requirement of severe is met, and the sequential evaluation process should continue.” Newell v.
Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). Courts have found that even if the ALJ
identifies only one severe impairment, any failure on the ALJ's part to identify other conditions
as being severe does not compromise the integrity of the analysis. See Salles v. Comm’r of Soc.
Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007); Ross v. Astrue, No. 08-5282 (SDW), 2010 WL
777398 at *13 (D.N.J. Mar. 8, 2010); Rivera v. Comm’r of Soc. Sec., 164 F. App’x 260, 262 n.2
(3d Cir 2006). The ALJ’s decision as a whole must have “sufficient development of the record
and explanation of findings . . . .” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).
In this case, the ALJ found substantial evidence to prove that Step Two of the test was
satisfied and properly proceeded to Step Three. The ALJ found that Plaintiff had the severe
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impairments of diabetes and cervical spondylosis. (Tr. 12). Each of these findings was based on
a thorough examination of the record. (Tr. 12-13). The ALJ found that Plaintiff had diabetes
after reviewing evidence regarding his hospital visits on July 2007 and September 2007 as well
as a doctor’s visit on May 2008. Id. Additionally, the ALJ found that Plaintiff had cervical
spondylosis at C5-C6 and C6-C7 after receiving evidence about an MRI performed on
September 2008. (Tr. 13).
Moreover, there is no indication that the ALJ failed to consider some of Plaintiff’s
impairments. First, Plaintiff alleges that the ALJ failed to take into account Plaintiff’s various
heart conditions when rendering its decision to deny Plaintiff’s disability claim. (Pl’s Br. 15).
The ALJ did, however, consider Plaintiff’s heart problems before finding that Plaintiff had
diabetes and cervical spondylosis as shown by his mentioning that Plaintiff had successfully
underwent cardiac catherization and was released with advice to resume normal activities. (Tr.
13). Second, Plaintiff claims that the disc herniations were not considered as severe
impairments. (Pl’s Br. 15). This assertion is incorrect because the ALJ considered the presence
of disc herniation at C5-C6 and C6-C7 when he looked at evidence about the cervical
spondylosis. (Tr. 13).
Even if the ALJ failed to consider some ailments as severe impairments, this claim is
irrelevant because step two is a low-threshold test. Some ailments that were not looked into, as
Plaintiff suggested, include Plaintiff’s weight/BMI, sleep apnea, right shoulder and acromion
joint tendonitis, biceps tendonitis, pain and limited range of motion of the right neck and two
fingers of the right hand and cervical radiculopathy. This Court finds that there is substantial
evidence to show that the ALJ properly applied Step Two to find two severe impairments and
proceeded to Step Three of the test. See Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d
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Cir. 2003) (“If the evidence presented by the claimant presents more than a slight abnormality,
the [Step Two] requirement of severe is met, and the sequential evaluation process should
continue.”).

B. Plaintiff’s Complaints and their Relationship to the Listings
Plaintiff argues that the ALJ failed to combine and compare all of Plaintiff’s severe
impairments with the Commissioner’s Listings. (Pl’s Br. 21-23). He states that the ALJ only
considered Plaintiff’s diabetes symptoms with Listing 9.08, but did not consider his herniated
discs and cervical spondylosis with Paragraph 1.04A of the Listings. (Pl’s Br. 23).
Listing 9.08 specifically addresses diabetes mellitus and requires that the diabetes
mellitus be accompanied by either “neuropathy demonstrated by significant and persistent
disorganization of motor function in two extremities resulting in sustained disturbance of gross
and dexterous movements, or gait, and station,” or “acidosis occurring at least on the average of
once every two months documented by appropriate blood chemical tests.” 20 C.F.R. Pt. 404,
Subpt. P, app. 1 (2010).
In this case, the ALJ found that Plaintiff failed to show that he satisfied the requirements
of Listing 9.08. The ALJ found no evidence of neuropathy demonstrated by significant and
persistent disorganization of motor function in two extremities, acidosis, or visual impairment.
(Tr. 13). The record supports the ALJ’s findings. First, there is no indication that Plaintiff has
significant and persistent disorganization of motor function in two extremities. Two doctors, Dr.
Hoffman and Dr. Lin, reported that Plaintiff had normal gait, was moving without an assistive
device, had muscle power, had full range of motion for both knees, was able to flex at the waist
and could walk on both heels and toes. (Tr. 226, 241-242). In addition, Dr. Hoffman’s and Dr.
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Simpkin’s reports do not indicate that Plaintiff had any visual impairments. (See Tr. 225-227,
241-242). As a result, this Court finds substantial evidence to support the ALJ’s finding that
Listing 9.08’s requirements were not satisfied.
Even though the ALJ did not consider Listing 1.04(A) in his decision, this is not relevant
because “a claimant bears the burden of producing evidence that [his] impairment is equivalent
to a listed impairment” at Step Three. See Ballardo v. Barnhart, 68 F. App’x 337, 338 (3d Cir.
2008). Listing 1.04(A) specifically addresses disorders of the spine that result in the
compromise of a nerve root or the spinal cord. 20 C.F.R. Pt. 404, Subpt. P, app. 1 (2010). Here,
Plaintiff must show “nerve root compression characterized by neuro-anatomic distribution of
pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the
lower back, positive straight-leg raising test (sitting and supine).” Id.
The record does not support a finding for Listing 1.04(A) even if Plaintiff presented this
argument. First, there are no indications of atrophy associated with muscle weakness in Dr.
Hoffman or Dr. Lin’s report. Rather, both reports found that Plaintiff had good muscle strength.
(Tr. 226, 241). Second, there are no indications of sensory or reflexes loss associated with
atrophy and muscle weakness. Dr. Lin’s post-operative report for Plaintiff’s back treatment
injections indicate that “at the time of the patient’s discharge, there was no new motor or sensory
deficit” and that his neck pain was improving from the treatment. (Tr. 244).
In conclusion, this Court holds that the ALJ’s application of Step Three was appropriate
and supported by substantial evidence from the record.
C.

RFC Determination

Plaintiff argues that the ALJ improperly evaluated his exertional and non-exertional
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RFC. First, Plaintiff alleges that an inconsistency exists between the ALJ’s finding that the
Plaintiff can perform “full range of light work” while the Commissioner seemed to think
otherwise. (Pl’s Br. 27, 29). He claims that the ALJ’s exertional and non-exertional RFC
determinations were not explained and are not consistent with the evidence of record or with the
Commissioner’s own review of physician’s assessment of Plaintiff’s capabilities. (Pl’s Br. 28).
Second, Plaintiff highlights another alleged inconsistency - that the ALJ improperly found no
non-exertional impairments or limitations when evidence from the record suggests otherwise.
(Pl’s Br. 29) (mentioning that Plaintiff had some non-exertional impairments such as only being
able to “occasionally” climb, balance, stoop, crouch, or crawl and is incapable of working
around extreme cold, extreme heat, wetness or humidity).
Before designating Plaintiff’s RFC, the ALJ has to follow a two-step test. First, the ALJ
must determine whether there is an underlying medically determinable physical or mental
impairment. See 20 C.F.R. § 404.1529(d)(1) (2012); SSR 96-7p. Second, once the medical or
physical impairment can be shown, the ALJ must evaluate the intensity, persistence, and limiting
effects of the claimant’s symptoms to determine the extent to which they limit the claimant’s
ability to do basic work activities. See SSR 96-7p. Such determination “requires the adjudicator
to make a finding about the credibility of the individual's statements about the symptom(s) and
its functional effects.” Id. The credibility of the statements is determined by considering the
entire case record. Id.
In this case, the ALJ determined that Plaintiff is capable of a “full range of light work.”
(Tr. 13). Full or wide range of light work requires the ALJ to conclude that one has the ability
to“lift[] no more than 20 pounds at a time with frequent lifting or carrying of objects weighing

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up to 10 pounds,” that the work “requires a good deal of walking or standing”, and when the
work involves sitting, most of the time is spent with “some pushing and pulling of arm or leg
control.” 20 C.F.R. § 404.1567(b)(2012). “If someone can do light work, [the ALJ] determine[s]
that he or she can also do sedentary work, unless there are additional limiting factors such as loss
of fine dexterity or inability to sit for long periods of time.” Id.
With regards to the first alleged inconsistency, this Court holds that ALJ Olarsch’s
determination that Plaintiff is capable of full range of light work was supported by substantial
evidence from the record. The ALJ’s finding that Plaintiff could perform “full range of light
work” is consistent with the conclusions provided in the doctor’s reports. First, Dr. Simpkins, a
state agency physician, found that Plaintiff can frequently lift and/or carry (including upward
pulling) items weighing ten pounds or less. (Tr. 233). Dr. Simpkins also concluded that Plaintiff
can occasionally lift and/or carry up to twenty pounds worth of weight. Id. Plaintiff has
consistently testified to being able to lift between fifteen and twenty-five pounds of weight
without pain. See Tr. 28, 157. Similarly, Dr. Powell and Dr. Lin have found that Plaintiff has
very good muscle strength, which is consistent with Dr. Simpkins’ findings. (Tr. 226, 241-242).
Second, Dr. Simpkins found that Plaintiff is able to sit for a total of six hours in an eight-hour
workday, and has unlimited push/pull strength. (Tr. 233). All of these facts indicate that the ALJ
was correct in finding that Plaintiff can perform a full range of light work.
Furthermore, even though there may be a contradiction regarding Plaintiff’s ability to
stand and walk and whether it fits into the Commissioner’s definition of light work (Pl’s Br. 29),
this contradiction is irrelevant. Performing “light work” does not always entail a good deal of
standing and walking. “Light work” can mean performing a job that requires “sitting most of the
time with some pushing and pulling of arm or leg controls.” 20 C.F.R § 404.1567 (2012). As
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indicated by Dr. Simpkin’s report, Plaintiff is able to perform light work based on the statutory
definition. (Tr. 233) (stating that Plaintiff can sit for about six hours in an eight-hour workday
and has unlimited push and pull abilities).
With regards to the second alleged inconsistency, the ALJ accurately decided to not
consider Plaintiff’s non-exertional limitations such as being able to “climb, balance, stoop,
kneel, crouch or crawl” occasionally, or his need to avoid excessive noise, dust, and other
environmental conditions. For light work and sedentary jobs, “a person would not need to
crouch and would need to stoop only occasionally (from very little up to one-third of the time,
depending on the particular job).” SSR 83-14 (emphasis added). Furthermore, an “inability to
ascend or descend scaffolding, poles, and ropes” and “an inability to crawl on hands and knees”
are examples of “nonexertional limitations or restrictions which have very little or no effect on
the unskilled light occupational base.” Id. (emphasis added). Environmental conditions similarly
do not significantly affect the potential unskilled light occupational base. Id.
The ALJ’s detailed discussion about Plaintiff’s medical record demonstrates substantial
evidence to support his RFC conclusion. The ALJ did not commit an error as a matter of law,
and he did not fail to perform his duty in determining Plaintiff’s RFC capabilities.

D.

VOCATIONAL TESTIMONY

Lastly, Plaintiff argues that vocational testimony was required because he suffers from
“non-exertional impairments, namely postural, environmental, obesity/sleep apnea related,
sensory (neuropathy of the extremities) and . . . tiredness and fatigue from uncontrolled diabetes
mellitus and dizziness and tiredness due to [using] Oxycontin to control his pain.” (Pl’s Br. 39).
Courts have found that vocational expert testimony is not always required. The ALJ can
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rely on evidence other than vocational expert testimony to establish that a claimant's nonexertional limitation does not diminish RFC. Skyes v. Apfel, 228 F.3d 259, 274 (3d Cir. 2000).
Furthermore, the ALJ can rely on the Guidelines without hearing testimony from a vocational
expert “as long as the claimant does not have both exertional and non-exertional limitations.”
Bailey v. Comm’r of Soc. Sec., 354 F. App’x 613, 619 (3d Cir. 2009).
In this case, the ALJ properly decided not to consider vocational expert testimony. The
ALJ determined that based upon substantial evidence, Plaintiff did not have exertional and nonexertional limitations to warrant a finding of being “disabled.” (Tr. 15). The ALJ considered
Plaintiff’s age, education, and work experience in this finding. Id. Because the ALJ did not find
exertional or non-exertional limitations, the ALJ did not have to bring in vocational expert
testimony. (SSR 85-15).
VI.

CONCLUSION

For the reasons stated above, the final decision entered by ALJ Olarsch is affirmed.

S/ Dennis M. Cavanaugh
Dennis M. Cavanaugh, U.S.D.J.
Date:
Original:
Cc:

March 28 , 2012
Clerk’s Office
All Counsel of Record

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