WILLIAMS v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

OPINION. Signed by Judge Claire C. Cecchi on 6/27/2013. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BRENDA WILLIAMS
Plaintiff,
Civil Action No. 12-319 (CCC)
V.

OPINION
COMMISSIONER OF SOCIAL
SECURITY
Defendant.

CECCHI, District Judge.
I.

INTRODUCTION
Brenda Williams (“Plaintiff’) appeals the final determination of the Commissioner of the

Social Security Administration (“Commissioner” or “Defendant”) denying Plaintiff disability
benefits under the Social Security Act. This Court has jurisdiction to hear this matter pursuant to

42 U.S.C.

§

405(g). Submissions made in support of and in opposition to the instant motion

have been considered by the Court.’

The Court decides this matter without oral argument

pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, the
decision of Administrative Law Judge Joel H. Friedman (the “AU”) is affirmed.
IL

PROCEDURAL HISTORY
A. Procedural Background

Court considers any arguments not presented by the parties to be waived. $çç Brenner v.
Local 514, United Bhd. Of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d CiTr. 1991) (“It is
well established that failure to raise an issue in the district court constitutes a waiver of the
argument.”).

Plaintiff initially applied for Supplemental Security Income Benefits (“SSIB”) from the
Social Security Administration (“SSA”) on August 2, 2005, alleging disability beginning on
April 1, 2005, (Tr. 32.) Plaintiffs claim was denied by the SSA initially on January 13, 2006
and again, upon request for reconsideration, on August 1, 2006. (Tr. 41, 47.) Plaintiff then filed
a request for a hearing before an AL

which was held on January 15, 2008. (Tr. 32.) In a

written opinion dated October 31, 2008, the AU determined that Plaintiff was not disabled
within the meaning of the Act and that Plaintiffs impairments did not prevent her from returning
to her past work. (Tr. 40.)
After the AU’s denial of Plaintiffs claim, the Appeals Council granted Plaintiffs
request for review, vacating the AU’s decision of October 31, 2008, and remanding the case for
further proceedings. (Tr. 77.) On remand from the Appeals Council, Plaintiff testified before
the AU on June 4, 2010. (Tr. 13.) In a decision dated November 16, 2010, the AU found that
Plaintiff became disabled as of January 1, 2010 but was not disabled prior to that date.

([ch)

Plaintiff sought Appeals Council review of the AU’s partially favorable decision, which was
denied, finding a lack of grounds for review.

(Pl.’s Br. 1.)

This action was thereafter

commenced.
B. Personal and Employment Background

Plaintiff is a fifty-eight year old single female with two grown sons, a boyfriend, and
siblings with whom she is in regular contact. (Tr. 18, 19.) Plaintiff has a GED and took business
classes at Middlesex County College. (Tr. 394.) Plaintiff has not worked in several years (Tr.
21) and has “a sporadic work history with extended periods of unemployment” (Tr. 337).
Plaintiffs most recent relevant work was as a cashier for Home Depot. (Tr. 457.)
C. Medical Background

1.

Medical Evidence Prior to January 1, 2010, the Date the AU Found Plaintiff
Disabled
On January 4, 2005, Plaintiff visited Plainfield Health Center (PHC) for a routine visit.
(Tr, 165.) PHC had been Plaintiff’s primary care provider prior to and through her application
for SST benefits. (Tr. 154-83, 220, 231-33.) According to the PHC examiner, Plaintiff had a past
medical history of hypertension, valvular heart disease, endocarditis, chronic obstructive
pulmonary disease, smoking and substance abuse managed with Methadone.

(Tr. 165.) On

examination, Plaintiff had dirty conjunctiva and a holosystolie heart murmur, but overall did not
reveal anything remarkable.

(Tr. 165.)

Plaintiff’s medications included Norvasc, Dyazide,

Albuterol inhaler, Vasotec, Naprosyn, and i\’letrogel. (Tr. 165.) Noting that diet and exercise
failed, the examiner prescribed Glyburide for Plaintiff’s diabetes mellitus and recommended
continued cardiology follow-up for Plaintiff’s valvular heart disease. (Tr. 165.)
On January 24, 2005, after complaining of chest pain occurring with minimal exertion,
Plaintiff was evaluated by cardiologist, Dr. Saleem Husain. (Tr. 216.) The physical examination
revealed a fourth heart sound. (Tr. 216.) Plaintiff’s lungs were clear to auscultation, and there
2
was no evidence of peripheral edema of the extremities. (Tr. 216.) A stress test the previous
year showed no evidence of ischemia. (Tr. 216.) Dr. Husain noted that Plaintiff continued to
smoke. (Tr. 216.) Noting ongoing symptoms of “exertionally related” chest pain symptoms
with multiple risk factors, Dr. Husain recommended a cardiac catheterization, (Tr. 216.) The
February 9, 2005 follow up on the catheterization showed normal coronary arteries, an aerial
arteriovenous fistula, and preserved left ventriclesystolic function.

(Tr, 213.)

Dr. Husain’s

functional assessment indicated that Plaintiff had no limitations of physical activities, including
no limitations in lifting, carrying, standing, walking, pushing or pulling, and no postural or
2

S4. or the fourth heart sound, is usually associated with cardiac disease. See Dorland’s illustrated
th
30
Medical Dictionary 750, 1643 ( ed. 2003).
3

manipulative limitations. (Tr. 214.)
On February 17, 2005, Plaintiff, complaining of painful foot corns, saw podiatrist Dr.
Ujjwal K. Datta. (Tr. 161, 162.) Dr. Datta diagnosed diabetes mellitus with no complications,
acquired keratomas, and onychomycosis. (Tr. 161.) Dr. Datta debrided Plaintiff’s keratomas
and educated Plaintiff about diabetes. (Tr. 161.)
On May 19, 2005, Plaintiff returned to PHC complaining of increased weakness. (Tr.
159.) The examiner listed diagnosis of hypertension, hepatitis C, and COPD. (Tr. 159.) The
examiner noted that the weakness was of questionable etiology, possibly secondary to
Methadone, and ordered laboratory tests. (Tr. 159; see Tr. 277-78.) On June 8, 2005, Plaintiff
returned to PHC to review test results, at which time the examiner ordered a hepatitis C workup.
(Tr. 157.) When Plaintiff returned to the PHC on August 2, 2005, the hepatitis C workup was
not present, but the examiner observed that her liver function tests were normal. (Tr. 155;
Tr. 271-73.)
On July 26, 2005, Plaintiff returned to PHC complaining of low back and right leg pain.
(Tr. 156.) It was noted that Plaintiff previously had similar complaints and that osteoporosis was
ruled out. (Tr. 156; see Tr, 279-82.) Plaintiff was prescribed Advil for her back pain and the
examiner ordered a magnetic resonance imaging (MRI) study of the lumbar spine. (Tr. 156.) On
August 23, 2005, Plaintiff returned to PHC for the results of the MRI test, which showed that the
Plaintiff had an L4-L5 disc bulge with stenosis.

(Tr. 154;

Tr. 275-76.)

The examiner

recommended medical management, physical therapy, and Naproxen, for Plaintiff’s back pain.
(Tr. 154.) It was also noted that Plaintiffs hypertension was well controlled. (Tr. 154.) On
August 2, 2005, the date she filed her SSI application, Plaintiff returned to PHC due to a
transient ischemic attack over the weekend, but was stable during the visit. (Tr. 155.)

4

On September 9, 2005, Plaintiff saw Dr. Husain with the only symptom being a shortness
of breath with exertion. (Tr. 211.) Although Dr. Husain initially saw Plaintiff on January 24,
2005, for complaints of chest pain, Plaintiff currently only had dyspnea on exertion, but no chest
pain and clear lungs. (Tr. 212.) Plaintiff’s diagnoses included shortness of breath, hypertension.
coronary artery disease, and noninsulin dependent diabetes mellitus.

(Tr. 211.) Dr. Husain

indicated that Plaintiff’s August 18, 2004 stress test was negative with mild pulmonary
hypertension and mild tricuspid regurgitation, but normal left ventricular function. (Tr. 213.)
On December 21, 2005, Plaintiff reported to PHC that she stopped taking her blood
pressure medication because of side effects, and the examiner observed that Plaintiff had blood
pressure elevated due to noncompliance. (Tr. 232.)
On December 28, 2005, at the request of the Commissioner, internist Dr. Justin Fernando
examined Plaintiff, who had complained of asthma, shortness of breath, heart valve disease, high
blood pressure, lower back pain radiating to the right leg, and headaches.

(Tr. 184.)

Dr.

Fernando diagnosed Plaintiff with hepatitis C by history, substance abuse, a history of
endocarditis, cardiac murmur, chronic lower back pain with subjective lumbar radiculopathy, and
hypertension.

(Tr. 188.)

Dr. Fernando noted that although she used her Albuterol inhaler

periodically, she had never required hospitalization or emergency room visits for any acute
respiratory problems. (Tr. 184.) Plaintiff’s complaints to Dr. Fernando included shortness of
breath due to exertion and back pain aggravated by prolonged standing, bending, and lifting.
(Tr. 184.) Her back pain was most acute upon rising from bed. (Tr. 184.) She also complained
of headaches reoccurring on a monthly basis that sometimes lasted for days, for which she was
using Advil and Naproxen. (Tr. 185,) The headaches were claimed to be associated with black
spots before her eyes, dizziness and nausea. (Tr. 185.) Plaintiff admitted to Dr. Fernando to

5

using intravenous heroin up to April 2004 and that she was currently on a Methadone program,
using about 18 mg of Methadone daily. (Tr. 184.) Plaintiff had been smoking up to four packs
of cigarettes a day, but at the time was down to five or six cigarettes per day. (Tr. 185.) Plaintiff
reported that she lived alone and that she cooked, cleaned, shopped, as well as showered and
dressed herself. (Tr. 185.)
A physical examination by Dr. Fernando showed that Plaintiff was able to squat to about
half of full, had a normal gait, could walk on heels and toes without difficulty, did not require
help changing or getting on or off the examination table and was able to rise from a chair without
difficulty.

(Tr. 186.)

Dr. Fernando noticed a heart murmur and that Plaintiff had some

tenderness to deep palpation in the right upper abdomen quadrant, and a small, freely reducible
umbilical hernia.

(Tr. 186-87.)

The physical examination findings were otherwise

unremarkable, indicating full extremity motor strength, no neurologic motor or sensory deficits,
full grip strength and intact hand and finger dexterity, and normal lungs. (Tr. 186-87.) Dr.
Fernando’s notes indicated that, “except for a partially performed squat and a poorly performed
leg raising test,” no objective limitations were evident from the examination. (Tr. 188.)
On January 9, 2006, at the request of the Commissioner, Dr. W. Wells, a State agency
review physician, upon review of the Plaintiff, concluded that she could stand and walk six hours

per day, and lift twenty-five pounds frequently and fifty pounds occasionally. (Tr. 324.)
From January 17 to February 14, 2006, Plaintiff received physical therapy at Muhlenberg
Regional Medical Center. (Tr. 221; ee Tr. 221-29.) Upon discharge, Plaintiff reported her pain
level was 0 out of 10, although she sometimes had tightness in her legs. (Tr. 221.) In a progress
report dated February 2, 2006, the physical therapist indicated that Plaintiff was able to perform
all activities of daily living independently. (Tr. 224.)

6

On March 7, 2006, Plaintiff returned to PHC complaining of mild back discomfort, which

had grown worse over the previous month.

(Tr. 220.)

On examination, Plaintiff had

paravertebral point tenderness and leg-raising to forty-five degrees.

(Tr. 220.)

The visit

otherwise showed no significant changes. (Tr. 220.)
On March 13, 2006, Plaintiff was evaluated by Dr. Mark Friedman for purposes of
determining medical eligibility to receive SSI benefits.

(Tr. 289-91; see Tr. 297, 424-25.)

Plaintiff complained of shortness of breath, anxiety, and depression. (Tr. 289.) Dr. Friedman’s
general physical examination showed nothing unremarkable, including lungs that were clear to
auscultation and percussion. (Tr. 289.) An examination of the lumbar spine showed vertebral

tenderness, paravertebral spasm, and a reduced range of motion. (Tr. 290.) Plaintiff also had a
reduced range of motion of the right knee, but otherwise normal muscle strength, sensation, and
reflexes.

(Tr. 290.) Dr. Friedman noted that Plaintiff had restricted lower back motion and

impairment in lifling and carrying, but that Plaintiff’s physical examination did not show

significant orthopedic difficulties. (Tr. 290-91.) There was evidence of cardiac vascular disease
and hypertension. (Tr. 291.)
On May 4, 2006, at the request of the Commissioner, Plaintiff was examined by
psychiatrist Dr. Aryeh Klahr.

(Tr. 292-96.)

In addition to her physical symptoms, Plaintiff

complained of depression, daily anxiety attacks, and memory problems. (Tr. 292.) Dr. Klahr
noted that Plaintiff spends most of her time sitting at home; she feels sad, cries and becomes

afraid and has gained twenty pounds. (Tr. 292-93.) She denied detox or rehabilitation, as well
as psychiatric hospitalizations or suicide attempts.

(Tr. 293.)

Plaintiff stated she had been

“using drugs off and on for the past ten years” and reported that she had previously relapsed on
using heroin, but had not used since April 2005. (Tr. 293.) Plaintiff also reported smoking five

7

to seven cigarettes daily and that she had hepatitis C. (Tr. 293.)
The results of Plaintiff’s mental examination were unremarkable, showing normal
speech, intact attention and concentration, average intelligence, and fair judgnient. (Tr. 294-95.)
Dr. Klahr diagnosed chronic severe opioid dependence, chronic severe nicotine dependence, and
depressive disorder not otherwise specified (NOS).

(Tr. 295.)

Dr. Klahr indicated that if

Plaintiff maintained abstinence, she could follow and understand simple instructions and perform
simple tasks in a structured environment with a sympathetic supervisor. (Tr. 295.) The doctor
indicated that Plaintiff “may have difficulty with more complex tasks in a competitive work
environment,” but that this should improve with treatment. (Tr. 295.)
On July 6, 2006, Plaintiff went to UCPC Behavioral Healthcare for complaints of panic
and anxiety attacks, which began the previous year. (Tr. 328.) Plaintiff reported that she was
being treated for hypertension, diabetes, asthma, and coronary heart disease. (Tr. 333.) She
reported that she was treated for anxiety by her primary care provider, and that her medications
included Clonazepam. (Tr. 329, 337.) Plaintiff denied substance abuse. (Tr. 329.) Plaintiff
stated that her recreational activities were sleeping and watching television. (Tr. 332.) Plaintiff
reported that she had not worked for several years, and that she has “had it with work.” (Tr.
331.)
Plaintiff’s mental examination indicated defective memory. fair insight, mildly impaired
judgment, and suicidal ideation without a plan. (Tr. 335.) The remainder of the examination
revealed nothing out of the ordinary. (Tr, 335.) The examining licensed professional counselor
diagnosed anxiety disorder, and a single episode of major depressive disorder. (Tr. 336.) It was
recommended that Plaintiff receive individual therapy, a psychiatric evaluation, and medications.
(Tr, 337,)

8

On July 31, 2006, at the request of the Commissioner, Dr. Thomas Harding, a State
agency psychologist, reviewed the evidence in Plaintiffs case and completed an assessment.
(Tr. 306-23.) Dr. Harding indicated that Plaintiff had mild restriction of activities of daily living,
moderate difficulties in maintaining social functioning and in maintaining concentration,
persistence, or pace.

(Tr. 320.)

He also indicated that there was insufficient evidence to

determine whether Plaintiff had repeated episodes of “deterioration of extended duration.” (Tr,
3
320.) Dr. Harding adopted the opinion of Dr. Klahr, the consultative examiner, that Plaintiff
could perform work-related activities with some limitations. (Tr. 308; see Tr. 295.)
On February 13, 2008, also at the request of the Commissioner, internist Dr. Rambhai C.
Patel performed a consultative examination on Plaintiff. (Tr. 344-46.) Plaintiffs complaints
included headaches and dizziness two to three times per month, daily chest pain, which lasted up
to twenty minutes at a time, and daily asthmatic attacks, the last of which had occurred four
months prior.

(Tr. 344.)

She also reported daily anxiety attacks, somewhat helped by

Clonazepam, and shortness of breath, for which she used a Proventil inhaler.

(Tr. 344.)

Additionally, Plaintiff complained of pain and numbness in the right elbow and the right hand,
which Plaintiff claimed was exacerbated by lifting more than five pounds. (Tr. 345.)
On physical examination, Plaintiff demonstrated some range of motion restrictions in the
shoulders, hips and knees, but the rest of the results were unremarkable, (Tr. 345.) The test

showed Plaintiff had a normal gait, normal breathing, no edema in the lower extremities, no
gross neurological deficits, and normal grip in both hands,

(Tr. 345.)

Dr. Patel diagnosed

hypertension. atypical chest pain, anxiety and depression syndrome, chronic asthma by history,
and possible arthritis in the right elbow and right hand.

(Tr. 346.)

Dr. Patel’s evaluation

The Commissioner’s regulations evaluate mental impairments with respect to four broad areas: 1)
activities of daily living; 2) social functioning; 3) concentration, persistence, or pace; and 4) episodes of
deterioration. 20 C,F.R. §416.920a.
9

indicated that Plaintiff could occasionally lift and carry up to ten pounds, and was able to sit,
stand, or walk eight hours in an eight-hour workday, but was limited to occasional use of the

right hand for reaching, handling, fingering, feeling and pushing or pulling. (Tr, 347-49.) Dr.
Patel further indicated that Plaintiff could occasionally climb stairs, ramps, ladders, or scaffolds,
and occasionally balance, stoop, kneel, crouch, and crawl. (Tr. 350.) Additionally, Plaintiff
could frequently use both feet to operate foot controls, could occasionally operate a motor
vehicle and be exposed to unprotected heights, moving mechanical parts, humidity, pulmonary
irritants, extreme cold or heat, and vibrations. (Tr. 349, 351.) She was limited to moderate or
office-like exposure to noise. (Tr. 351.)
2. Medical Evidence Subsequent to January 1, 2010, the Date the AU Found Plaintiff
Disabled

On June 22, 2010, Dr. Pate! performed another consultative examination.

Plaintiff

claimed disability due to lower back pain, for which she is taking an unknown medication;
asthma, for which she uses a Ventolin inhaler; diabetes mellitus, for which she is taking
metformin twice a day; hypertension, which causes dizziness and headaches; and sharp chest
pain precipitated by walking less than one block, lasting from five to ten minutes. (Tr. 3 56-57.)
Plaintiff has a history of hepatitis C and a history of heroin use.

(Tr. 357.)

On physical

examination, Plaintiff had a “questionable slightly diminished” sensation of lower extremities.
(Tr. 358.) Dr. Patel’s functional assessment limited Plaintiff to sitting for one hour and standing
or walking for thirty minutes in an eight-hour day. (Tr. 368.)
On July 22, 2010, psychologist Dr. Emesto L. Perdomo, at the request of the

Commissioner, performed a psychological evaluation. (Tr. 3 72-79.) Plaintiff complained of
panic attacks, feelings of sadness, lack of interest, lack of motivation, tiredness, and lack of
energy. (Tr. 373.) The results of the intellectual assessment were normal. (Tr. 373.) The test

10

showed scores in the upper level of the borderline range of intellectual functioning, but Dr.
Perdomo noted that Plaintiff’s “true ability may be a little more toward the low average range.”
(Tr. 373-74.) Dr. Perdomo’s assessment indicated that Plaintiff had no limitations in ability to
understand, carry out, or make judgments on simple instructions and decisions, with mild
limitations for complex instructions and decisions. (Tr. 377.) Plaintiff had moderate limitations
for interacting appropriately with the public, supervisors, and co-workers, but no significant
mental deficiency. (Tr. 378.) However, Dr. Perdomo noted that Plaintiffs history of panic
attacks, depression, and various medical problems may interfere with her ability to function in a
job. (Tr. 378.)
III.

DISCUSSION
A. Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.

§

405(g). It is not “empowered to weigh the evidence or substitute its conclusions for those of the
fact-finder” but must give deference to the administrative findings. Williams v. Sullivan, 970
F.2d 1178, 1182 (3d Cir. 1992); see also 42 U.S.C. §405(g).

Nevertheless, the Court must

“scrutinize the record as a whole to determine whether the conclusions reached are rational” and
supported by substantial evidence.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)

(citations omitted). Substantial evidence is “more than a mere scintilla” and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,” Richardson v.
Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted). 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

11

substantial evidence.” Daniels v. Astrue, No. 4:08-1676, 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)).
This Court may not set aside the AU’s decision merely because it would have come to a
different conclusion. Cruz v. Comm’r of Soc. Sec., 244 Fed. Appx. 475, 479 (3d Cir. 2007)
(citing Hartranfl v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).

However, “where there is

conflicting evidence, the AU 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)). Where the AU has rejected competent medical
evidence, the AU must adequately explain his reasons and provide the rationale behind his
decision. See Brewster v. Heckler, 786 F.2d 581, 585 (3d Cir. 1986). Given the totality of the
evidence, including objective medical facts, diagnoses and medical opinions, and subjective
evidence of pain, the reviewing court must determine whether the AU’s decision is adequately
supported. $çç Curtain v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981). Generally, medical
opinions consistent with other evidence are given more weight whereas opinions inconsistent
with the evidence or with themselves are subject to additional scrutiny against the entire record.
20 C.F.R. §416.927.

Overall, the substantial evidence standard is a deferential standard of

review, which requires deference to inferences drawn by the AU from the facts, if they are

supported by substantial evidence, Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429,
431 (3d Cir. 1999).
B. Determining Disability
Pursuant to the Social Security Act, to receive SSIB, a claimant must show that he is

disabled by demonstrating that he is unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to

12

result in death or which has lasted or can be expected to last for a continuous period of not less
than twelve months.” 42 U.S.C.

§

1382c(a)(3)(A). Taking into account the claimant’s age,

education, and work experience, disability will be evaluated by the claimant’s ability to engage
in his previous tork or any other form of substantial gainful activity existing in the national
economy. 42 U.S.C.

§ 1382c(aX3)(B).

Thus, the claimant’s physical or mental impairments

must be “of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy

.

.

.

.“

Id.

Impairments that affect the

claimant’s “ability to meet the strength demands of jobs” with respect to “sitting, standing,
walking, lifting, carrying, pushing, and pulling” are considered exertional limitations. 20 C.F.R.

§

416.969a(a)-(b); Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). All other impairments are

considered nonexertional.

20 C.F.R.

§

416.969a(a), (c); Sykes, 228 F.3d at 263.

Decisions

regarding disability will be made individually and will be based on evidence adduced at a
hearing. Sykes, 228 F.3d at 262 (citing Heckler v. Campbell, 461 U.S. 458, 467, 103 S. Ct.
1952, 76, L.Ed.2d 66 (1983)). Congress has established the type of evidence necessary to prove
the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3),
1 382c(a)(3)(C).
The SSA follows a five-step sequential evaluation to determine whether a claimant is
disabled.

20 C.F.R.

§

404.1520, 416.920.

The evaluation will continue through each step

unless it can be determined at any point that the claimant is or is not disabled, 20 C.F.R.

§

404.1520(a)(4), 4l6.920(a)(4). The claimant bears the burden of proof at steps one. two, and

13

ioner at step five. Sykes, 228 F.3d at 263.
four, upon which the burden shifis to the Commiss
at 263, n.2.

Neither party bears the burden at step three.

and the claimant must demonstrate
At step one, the claimant’s work activity is assessed,
activity.
that he is not engaging in substantial gainful
416.920(a)(4)(i).

20 C.F.R.

§

404.1 520(a)(4)(i),

activity if he is doing
An individual is engaging in substantial gainful

20 C.F.R.
significant physical or mental activities for pay or profit.

§ 404.1572, 416.972.

If the

will be found not disabled and the analysis
claimant is engaged in substantial gainful activity, he
, age, education, or work experience. 20
will stop, regardless of claimant’s medical condition
C.F.R.

§ 404.1520(b),

416.920(b).

If the claimant is not engaging in substantial gainful

activity, the analysis proceeds to the second step.
medically determinable “severe”
At step two, the claimant must show he has a
“severe.” 20 C.F.R.
impairment or a combination of impairments that is

§

404.1 520(a)(4)(ii).

individual’s physical or mental ability to
An impairment is severe when it significantly limits an
perform basic work activities. 20 C.F.R.

§

404.1520(c), 416.920(c).

It is not severe when

mal effect on an individual’s ability to
medical evidence shows only a slight abnormality or mini
*4 (D.N.J.
2010 WL 4747173, at
See Leonardo v. Comm’r of Soc. Sec., No. 101498,
work.
2010).

ble severe impairment, he is not
If the claimant does not have a medically determina

disabled. 20 C.F.R.

§

claimant has a
404.1520(a)(4)(ii) & (c), 416.920(a)(4)(ii) & (c). If the

severe impairment, the analysis proceeds to the third step.
the medical evidence, whether the
At step three, the AU must determine, based on
listed impairment found in the Social
claimant’s impairment matches or is equivalent to a
in 20 C,F,R,
Security Regulations’ “Listing of Impairments” found
iii),
1. 20 C.F.R. §S 404.1 520(a)(4)(iii), 4l6.920(a)(4)(

14

§

404. Subpart P, Appendix

If the impairments are the same or

equivalent to those listed, the claimant is per se disabled. 20 C.F.R. §‘ 404.1520(d), 416.920(d);

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112. 119 (3d Cir. 2000). At this point, the AU must
set forth the reasons for his findings. Burnett, 220 F.3d at 119. The Third Circuit requires the
AU to identify the relevant listings and explain his reasoning using the evidence. Id. Simple
conclusory remarks will not suffice and will leave the ALl’s decision “beyond meaningful
judicial review.”
When the claimant does not suffer from a listed impairment or an equivalent, the analysis
proceeds to step four. At step four, the AU must determine whether the claimant’s residual
functioning capacity (“RFC”) enables him to perform his past relevant work.

§ § 404.1 520(a)(4)(ix),

20 C.F.R.

41 6.920(a)(4)(iv). This step involves three sub-steps: (1) the ALl must

make specific findings of fact as to the claimant’s RFC; (2) the AU must make findings as to the
physical and mental demands of the claimant’s past relevant work; and (3) the ALl must
compare the RFC to the past relevant work to determine whether the claimant has the capability
to perform the past relevant work. Burnett, 220 F.3d at 120. The SSA often classifies RFC and
past work by physical exertion requirements from “sedentary” to “very heavy work.” See id.; 20
C.F.Tr.

§§

404.1567, 404.967. If the claimant can perform his past work, the AU will find that

he is not disabled. 20 C,F,R.

§

404.1520(f), 416.920(f).

If the claimant lacks the RFC to

perform any work he has done in the past, the analysis proceeds to the fifth and final step.
At step five, the Commissioner must show that, based on the claimant’s RFC and other

vocational factors, there is a significant amount of other work in the national economy that the
claimant can perform. 20 C.F.R.

§

404.1520(a)(4)(v), 416.920(a)(4)(v). During this final step,

the burden lies with the government. See Rutherford v. Barnhart. 399 F.3d 546, 551 (3d Cir.
2005); $ykes, 228 F,3d at 263. If the Commissioner cannot show there are a significant number

15

of other jobs for the claimant in the national economy, then the claimant is disabled. 20 C.F.R,

§ § 404,1 520(a)(4)(ix), 41 6.920(a)(4)(iv).
IV.

DISCUSSION
A. Summary of the AU’s Findings
After reviewing all of the evidence in the record, the AU determined that Plaintiff was

disabled as of January 1, 2010. (Tr. 25-26.> The AU arrived at his decision by following the
required five-step sequential analysis.
At step one, the AU found that Plaintiff had not engaged in substantial gainful activity
since April 1, 2005, the alleged onset date of her disability. (Tr. 16.) At step two, the AU
concluded that Plaintiff had the following severe impairments: degenerative disc disease,
depression, anxiety, borderline intellectual functioning, asthma, diabetes, hypertension, and a
history of substance abuse. (jçj) Although Plaintiff had been diagnosed with Hepatitis C and
claimed to have frequent headaches, the AU found that the evidence did not support a finding
that either of these ailments resulted in limitations on Plaintiff’s ability to do basic work
activities. (j at 16.) Therefore, the AU found that they are not severe impairments. (Id. at
16.)
The AU then proceeded to step three, where he compared the Plaintiff’s impairments to
the listing in section 1.04 for Vusculoske1etal Impairments. The AU found that Plaintiff did not
have an impairment, or a combination of impairments, that meet or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR.
416.925 and

§ 416.926).

§

416920(d),

§

(Tr. 16.)

Considering the evidence in the record, the AU found that prior to January 1. 2010,
Plaintiff had the residual functioning capacity (“RFC”) to perform light work, as defined in 20

16

C.F,R.

§

416.967(b), with the exception that “she had to avoid concentrated exposure to dust,

smoke, fumes and other respiratory irritants, as well as temperature extremes due to asthma.”

(Tr. 19) At step four, considering the testimony of a vocational expert, the AU concluded that
prior to January 1, 2010, Plaintiffs RFC would not preclude her from performing past relevant
work as a cashier.

(Tr. 25.)

The AU therefore determined that prior to January 1, 2010,

Plaintiff was not disabled within the meaning of the Act.

(Tr. 25-26.)

However, the AU

concluded that beginning on January 1, 2010, Plaintiffs RFC for less than sedentary work
precluded her from performing her past relevant work or other work existing in significant
numbers in the national economy. (Tr. 25-26.)
B. Analysis

The AU’s decision provides that Plaintiff was not disabled prior to January 1, 2010.
Plaintiffs challenge to the AU’s decision is incorrect for several reasons. Plaintiff first argues
that the AU’s decision fails to acknowledge that her hepatitis C and headaches are severe
impairments.

(Pl.’s Br. 11.)

Next, Plaintiff asserts that the AU

failed to consider her

impairments in combination to determine whether she medically equaled a listed impairment.
(P1. ‘s Br, 11.) Plaintiff also argues that the AU was erroneous in his RFC assessment as well as
in his finding that Plaintiff could perform past relevant work. (Pl.’s Br. 11.) Defendant opposes
all of Plaintiffs arguments and additionally asserts that Plaintiffs brief fails to conform to Local
Civil Rule 9,1, The Court will first address Defendant’s argument regarding Plaintiffs brief.
1.

The Scope of the court ‘s Review is Limited to the Parties’ Brief and the
ALl’s Final Decision.

The Commissioner argues that Plaintiff’s brief fails to adhere to Local Civil Rule 9.1.
(Def.’s Br. 17.) Specifically, the Commissioner contends that Plaintiffs brief does not have any
discernible structure, does not clearly identify each of her arguments, and erroneously requests

17

that the Court review the AU’s previous decision dated October 31, 2008 in addition to the final
decision dated November 16, 2010, which is the subject of judicial review in this case. (Def.’s
Br. 18.) Further, the Commissioner argues that Plaintiff improperly attempts to incorporate by
reference the arguments she put forth to the Appeals Council as well as those arguments

contained in her statement of contentions, filed pursuant to Local Civil Rule 9.1(d). (Def. ‘s Br.
18; see Pl.’s Br. 8-17.)
Under Local Civil Rule 9.1, “Plaintiff’s brief shall contain.
reference to the administrative record” and “an argument

.

.

.

.

.

a statement of facts with

divided into sections separately

treating each issue and must set forth Plaintiff’s arguments with respect to the issues presented
and the reasons therefore

.

.

.

.“

L. Civ. R. 9.l(e)(5). Furthermore, the Court’s review is limited

to determining whether the AU’s final decision is supported by substantial evidence. Hatton v.
Comm’r of Soc. Sec., 131 F. App’x 877, 878 (3d Cir. 2005) (citing 42 U.S.C.

§

405(g)). Here,

Plaintiff improperly requests that the Court review arguments that are not stated within her brief.
(See Pl,’s Br. 9-10, 13, 16.) While the Court has reviewed the entire record in coming to its
decision, the Court will herein focus its review on the arguments presented in the parties’ briefs
and will determine only whether the AU’s final decision is supported by substantial evidence.
2.

The AIJ Properly Determined That Plaintiff’s Headaches and Hepatitis C
Were Not Severe Impairments.

The AU

determined that Plaintiff’s degenerative disc disease, depression, anxiety,

borderline intellectual functioning, asthma. diabetes, hypertension, and history of substance
abuse were severe impairments. (Tr, 16.) Plaintiff alleges that the AU failed to designate her
hepatitis C and headaches as severe impairments at step two. (PL’s Br, 11.) As discussed, the
claimant bears the burden of proof at step two. Sykes, 228 F.3d at 263. Step two is considered a
“threshold step” in which the AU determines whether the claimant has a medically severe

18

impairment or combination of impairments. Bowen v. Yuckert, 482 U.S. 137, 140-41, 107 5. Ct.

2287, 96 L. Ed. 119 (1987); Social Security Ruling (SSR) 86-8, 1986 SSR LEXIS 15, at *6.7.
An impairment is severe when it significantly limits an individual’s physical or mental ability to
perform basic work activities. 20 C.F.R.

§

404.1520(c), 416.920(c).

It is not severe when

medical evidence shows only a slight abnormality or minimal effect on an individual’s ability to
work. See Leonardo v. Comm’r of Soc. Sec., No. 10-1498, 2010 WL 4747173, at *4 (D.NJ.
2010).
Other than stating that she was diagnosed with hepatitis C and that she suffers from
headaches, Plaintiff provided no evidence or explanation as to how these conditions had more
than a minimal effect on her ability to work.

($ Pl.’s Br.

11.) Plaintiff claims that her hepatitis

C is “a potentially fatal virus that has damaged her liver as shown by liver function studies,” but
does not cite to any medical evidence in the record to support a finding that it is a severe
impairment. (Pl.’s Br. 11.) In fact, the only evidence related to Plaintiff’s hepatitis C, as noted
by the AU, was a record from August 2, 2005, that stated that Plaintiff’s liver function tests
were normal, (Tr. 16, 155, 27 1-73.) Furthermore, in 2006, Plaintiff herself reported that she
believed her “enzymes [were] normal.” (Tr. 293.)
One laboratory test does in fact indicate that Plaintiff has elevated liver enzymes.
However, this test was submitted only to the Appeals Council, afler the AU rendered his
decision, and cannot be used to argue that the AU’s decision was not supported by substantial
evidence. (Tr. 380, 382.) See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 360 (3d Cir.
2011) (“[R]emand based on new evidence is only appropriate where the claimant shows good
cause why that evidence was not procured or presented before the AU’s decision.”). Even if the
Court considered the laboratory test submitted by Plaintiff, it is not enough to conclude that the

19

AU’s decision was not supported by substantial evidence. Plaintiff testified that she does not
take any medication for hepatitis C, nor does she receive any treatment for the condition itself or
for any apparent related conditions. (Tr. 16.) Accordingly. the AU had no evidentiary basis to
conclude that this alleged impairment was severe.
Similarly, the AU properly rejected Plaintiff’s headaches as a severe impairment from
his analysis at step two. While Plaintiff complained of headaches in a few of her consultative
examinations (Tr. 184-85, 344), the record does not indicate that there was any treatment for this
condition or that it limited her work activities.

As such, Plaintiff did not provide sufficient

evidence that her headaches had more than a minimal effect on her ability to work and the AU
was therefore correct in rejecting it as a severe impairment. The Court affirms the AU’s finding
at step two.
3.

The AU Properly
Impairments.

Considered the

Combined Effects

of Plaintiff’s

At step three, the AU found that Plaintiffs impairments did not meet or medically equal
a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16-18.) Plaintiff asserts
that the AU

failed to consider her impairments in combination to determine whether she

medically equaled a listed impairment. (Pl.’s Br. 11.)
The AU

concluded that Plaintiff “has not had an impairment or combination of

impairments that meets or medically equals one of the listed impairments.” (Tr, 16.) In his
analysis, the AU

compared Plaintiffs impairments to the listings for viusculoske1etal

Impairments (1.04): Asthma (3.03B. 3.02A); Diabetes (9.08); Hypertension (4.03); and Nental
Disorders (12.04, 12,06, 12.09) and determined that they did not meet the required criteria for
any of those listings.

(Tr. 16-18.) The AU conducted a thorough analysis of each listing,

detailing how the Plaintiffs medical records related to each of her impairments. (Id.) Despite

20

Plaintiff’s contention that the AU “never even claims to consider all of those impairments in
concert,” the AU does in fact state that the combination of Plaintiff’s impairments does not meet
or medically equal any of the listed impairments. (Tr, 16, 17.) “Indeed, where the AU has
indicated that impairments have been considered in combination, there is no reason not to
believe that the AU did so.” Gainey v. Astrue, No. 10-1912, 2011 WL 1560865, at *12 (D.N.J.
Apr. 25, 2011) (quoting Morrison v, Comm’r of Soc. Sec., 268 F. App’x 186, 189 (3d Cir.
2008)). Moreover, Plaintiff has not pointed to any evidence in the record which suggests that her
impairments rise to the level of severity equivalent to that of a listed impairment. Therefore, the
Court finds that the AU properly considered the combined effects of Plaintiff’s impairments
when determining if they medically equal a listed impairment. The AU’s findings at step three
are affirmed.
4.

The AU’s RFC Assessment is Supported by Substantial Evidence.

Prior to considering step four, the AU must determine the claimant’s residual functional
capacity (“RFC”). See 20 C.F.R.

§

416.920(e); Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.

1987). Plaintiff has the burden of presenting evidence that she did not have the RFC to perform
any substantial gainful activity. See 42 U.S.C.

§

423(d)(5)(A), 1382c(a)(3)(H)(i); 20 C.F.R.

§

416.9 12(c). Here, the AU found that prior to January 1, 2010, the Plaintiff had the RFC to
perform light work except that she had to avoid concentrated exposure to dust, smoke, fumes,
and other respiratory irritants, as well as temperature extremes due to asthma. (Tr. 19.) Further,
the AU determined that due to her mental impairments, she was limited to simple, unskilled,
routine jobs. (Tr, 19.)
Plaintiff asserts that the AU erred in his assessment of Plaintiff’s RFC. (Pl.’s Br. 8-17.)
In particular, Plaintiff makes the following arguments: (1) that the AU failed to consider her

21

pulmonary restrictions and the issues with her right hand; (23 that the AU failed to consider that
her back and leg pain limit her ability to stand for long hours; (3) that the AU erred in finding
that Plaintiff can perform simple routine/repetitive tasks; (4) that Plaintiffs mental impairment
existed earlier than the AU concluded; and (5) that the AU failed to describe her RFC “in terms

of specific work limitations and/or capabilities on a ‘function by function basis.” (Pl.’s Br, 16.)
The Court finds that the AU adequately considered Plaintiffs asthma and pulmonary
restrictions in his assessment of Plaintiffs RFC. In his analysis, the AU specifically noted that
Plaintiff was prescribed various asthma medications, (Tr. 20), but that there were no emergency
room visits for her condition and her lungs were clear and without wheezing, rales, or rhonchi,
(Id.). The AU also observed that Plaintiff continued to smoke cigarettes despite being instructed
to cut down by Dr. Walsh.

(j4J

Further, the record shows that at a consultative exam in 2004,

Dr. Sha found that Plaintiffs lungs were clear, and again counseled Plaintiff to quit smoking, but
she said she was “not ready to quit yet.” (Id.) On December 28, 2005, Dr. Fernando found that
Plaintiffs pulmonary function studies were normal and that her chest x-ray showed no active
lung disease.
In August 2004, Plaintiffs treating cardiologist Dr. Husain found that she had shortness
of breath upon exertion. (Tr. 20-21.) Plaintiff undenvent a stress test at that time, the results of
which were normal.

(Id.)

Dr. Husain reported that Plaintiff experienced chest pain upon

minimal exertion, but that she continued to smoke cigarettes. (Id.) In February 2005, Plaintiff

had a cardiac catheterization that revealed normal coronary arteries, atrial fistula, and preserved
left ventricular systolic function. () Dr. Husain found that Plaintiff had no limitations in her
ability to work. (Id. at 21.) In January 2006, Plaintiff underwent a stress test which showed no

chest pains or EKG changes that would suggest myocardial ischemia. (Tr. 21.) Considering the

22

medical record, the AU properly concluded that due to Plaintiff’s asthma, she had to avoid
concentrated exposure to dust, smoke, fumes and other respiratory irritants, as well as
temperature extremes, Therefore, the Court affirms the AU’s decision on this point.
The Court also finds that the AU gave sufficient consideration to Plaintiffs complaint
that she had pain in her right elbow and right hand. (Tr. 22-23.) The AU noted that Dr. Patel
examined Plaintiff on February 13, 2008, and despite Plaintiffs complaints, found that there was
no evidence of swelling in her hands or interphalangeal joints. (çj) Her grip strength was
normal. (Id.) The range of motion in both her left and right shoulders was approximately the
same. (Id.) During Dr. Patel’s examination, Plaintiff did not complain of back pain and prior to
that time, it appears from the record that she did not complain of pain in her right arm. (Tr. 23.)
Similarly, with regard to Plaintiffs back and leg pain, the AU noted that in 2005,
Plaintiff had an MRI of her lumbar spine that showed L4-U5 disc bulges and she was referred for
physical therapy and prescribed Naproxen for pain. (Tr. 21-22.) A physical examination by Dr.
Fernando indicated that she had full motor strength of both the upper and lower extremities, had
a normal gait and station, and did not need an assistive device. (Tr. 22.) Plaintiff has never been
hospitalized for these complaints and she testified that she only uses Advil for her back pain and
headaches. (Tr. 22.) The AU adequately considered Plaintiffs complaints regarding the issues
she has with her right arm as well as her back and leg pain. Therefore, the AU’s decision not to
include limitations associated with these ailments is supported by substantial evidence.
Plaintiff also argues that the AU erred in finding that Plaintiff can perform simple
routine and repetitive tasks. (Pl.’s Br. 13.) Plaintiff claims that the “[Tjhird Circuit has long ago
eliminated this utilitarian formula by which everyone can work,” but does not offer any case law
to support this proposition. (Pl.’s Br. 13.) The subject regulations identify “understanding,

23

carrying out, and remembering simple instructions” as an example of basic work activity. 20
C.F,R.

§

416.92 1. Moreover, “[cjourts have consistently held that the limitation, ‘simple tasks,’

is the equivalent of the ability to perform ‘simple duties’ within the definition of unskilled
work.” Dahlhaus v. Astrue, No. 11-4811, 2012 WL 3283532, at *13 (D.N,J. Aug. 10, 2012).

The medical and other opinions in the record support a finding that Plaintiff could
perform light work in simple, unskilled, routine jobs without concentrated exposure to
respiratory irritants and temperature extremes. (Tr. 19, 23.) Dr. Klahr and Dr. Perdomo both
found that Plaintiff could understand and carry out simple tasks or instructions. (Tr. 295, 377.)
Only Dr. Patel opined that Plaintiff had slightly greater restrictions than the requirements of light
work.

(Tr. 347-52.) The AU considered Dr. Patel’s opinion, but relied on the other, more

consistent opinions in the record. (Tr. 19, 23.)

Diaz v. Comm’r of Soc. Sec., 577 F.3d 500,

505-06 (3d. Cir. 2009) (“In evaluating medical reports, the AU is free to choose the medical
opinion of one doctor over that of another.”) Therefore, the AU’s finding that Plaintiff could
perform “simple tasks” prior to January 1, 2010, is supported by substantial evidence.
Plaintiff further claims that her mental impairment existed earlier than the AU concluded
(Pl.’s Br. 17) and that she was found to suffer “moderate limitations” in concentration,
persistence and pace and therefore, cannot ring items at a checkout line (Pl.’s Br. 13-14.). The
AU

adequately considered Plaintiffs mental impairments, noting that according to an

examination in 2006, she complained of depression, anxiety, and memory problems, but that she
does not see a psychiatrist and has never been hospitalized for these problems. (Tr. 21.) Further.
the examiner found that while Plaintiff was depressed and had possible panic disorder and
agoraphobia, her attention and concentration were in tact, as was her memory, and her speech
was clear. (Tr. 21.) He remarked that her difficulties with complex tasks should improve with

24

continued treatment. (Tr. 21.) Moreover, as noted by the AU, Dr. Harding made an
additional,
separate RFC analysis in which he found that Plaintiff was in fact able to follow, unders
tand, and

carry out simple instructions and perform simple tasks. (Tr. 22.) Therefore, the AU’s
findings
regarding Plaintiff’s mental impairments were supported by substantial eviden
ce and are
accordingly affirmed,
4
Finally. Plaintiff asserts that the RFC “must be described in terms of specific
work
limitations and/or capabilities on a ‘function by function basis.” (Pl.’s Br. 16.)
Plaintiff argues
that the AU did not conduct a “task by task” analysis or a pain evaluation. (Pl.’s
Br. 16.) The
Court finds that this argument has no merit. The AU supported his findings, consid
ered each of
Plaintiff’s impairments and complaints, and provided a thorough and detailed
analysis of the
record. (see Tr. 19-24.) The AU considered each of Plaintiff’s impairments in
the context of
her prior employment and sufficiently explained his findings. (jç) Further, the
Court notes that
the AU is only required to sufficiently develop the record in order to provide a meanin
gful
review and is not required “to use particular language or adhere to a particu
lar format in
conducting his analysis.”

Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).

Here, as

discussed, the AU developed the record and supported his findings regarding Plainti
ff’s RFC.
As such, the Court finds that the AU’s RFC determination is supported by substa
ntial evidence
and is therefore affirmed.
5,

The AL! Correctly Determined That Plaintff’ Was Able to Peijörm Past
Relevant Work.

The Plaintiff is accurate in asserting that the State agency consultative psychologist
Dr. Harding assessed
that Plaintiff had mild restriction of activities of daily living and moderate difficulties
in maintaining social
functioning and in maintaining concentration, persistence or pace. (Tr. 320.) However,
these specific findings were
in relation to Dr. Harding’s assessment of claimant’s disorders with respect to the listed
impairments in sections
12.04 and 12.09, pursuant to step three of the sequential analysis, not part of his RFC
assessment. (Tr. 306-08.)

25

Plaintiff argues that the AU incorrectly concluded that she was able to perform past
relevant work. Plaintiff claims that she is incapable of performing her past job as a “cashie
r for
the Home Depot.” (Pl.’s Br. 11.)

In particular, Plaintiff contends that based on the AU’s

finding that the Plaintiff could return to a cashier position, not specifically to a cashier positio
n at
the Home Depot, the AU should have moved on to step five of the analysis. (Pl.’s Br. 11,
12.)
Plaintiff claims that she could not stand for an eight hour shift and that the impairment
she
suffers in her right arm would preclude her from being a cashier. (Pl.’s Br. 11-12.)
At step four, Plaintiff is required to show that she is unable to perform her past relevan
t
work both as she has performed it in her specific job and as it is generally perform in
ed
the
national economy. See 42 U.S.C.
82-61, 1982 WL 31387.

§

1382c(a)(3)(B); 20 C.F.R.

§

416.920(f), 416.960(b); SSR

“Under sections 404.1520(e) and 416.920(e) of the regulations, a

claimant will be found to be ‘not disabled’ when it is determined that he or she retains the
RFC
to perform: (I) [t]he actual functional demands and job duties of a particular past relevant
job; or
(2) [tjhe functional demands and job duties of the occupation as generally required by emplo
yees
throughout the national economy.” 5SR 82-6 1, 1982 WU 31387, at *2. “[I]f the claima
nt cannot
perform the excessive function demands and/or job duties actually required in the former
job but
can perform the functional demands and job duties as generally required by employ
ers
throughout the economy, the claimant should be found to be ‘not disabled,” SSR 82-61,
1982
WL 3137, at *2,
At the June 4, 2010 hearing before the AU. a vocational expert testified that based on a
hypothetical that incorporated all the limitations considered in the AU’ s RFC assessm
ent, the
Plaintiff could perform work as a cashier. Tr. 457-58. Because the hypothetical incorporated
all
of the limitations in Plaintiffs RFC, which as previously discussed is supported by substan
tial

26

evidence, the AU

properly relied on the vocational expert’s testimony that Plaintiff could

perform her past relevant work as a cashier as it is generally performed in the
national economy.
See Diaz v. Comm’r of Soc. Sec., 440 F. App’x 70. 72-73 (3d Cir. 2011).

Therefore, the

Plaintiff failed to meet her burden of showing that she could not perform the
job duties for a
cashier, as they are required throughout the national economy.

While the AU

inquired of the vocational expert regarding additional limitations

including infrequent use of Plaintiff’s right arm and hand, and the potential
sit/stand options for
cashiers, these limitations were ultimately not incorporated into the AU’s RFC
assessment. (See
Tr. 459.) Because the AU’s final RFC determination is supported by substa
ntial evidence and
the AU relied on the vocational expert’s testimony regarding Plaintiff’s ability
to perform work
as a cashier as it is generally performed in the national economy, the AU ‘s decisio
n is affirmed.
V.

CONCLUSION
For the foregoing reasons, the AU’s decision that Plaintiff was not disabled
within the

meaning of the Social Security Act prior to January 1, 2010, is hereby affirme
d. An appropriate
Order accompanies this Opinion.

Dated: June 27,2013
1

/

‘2’

“

HON. CLAIRE C. CECCHI
United States District Judge

27