FLEISCHMAN v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Faith S. Hochberg on 2/28/2014. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Hon. Faith S. Hochberg, U.S.D.J.
Civil Case No. 12-4869 (FSH)
COMMISSIONER OF SOCIAL SECURITY,
February 28, 2014
This matter comes before the Court upon Plaintiff’s motion to review a final decision of the
Commissioner of the Social Security Administration pursuant to the Social Security Act, as
amended, 42 U.S.C. § 405(g). The motion has been decided upon the written submissions of the
parties pursuant to Federal Rule of Civil Procedure 78.
This dispute involves whether Plaintiff was disabled before her disability insurance coverage
expired on September 30, 2007. Plaintiff Noreen Fleischman asserts that she qualified for
Disability Insurance Benefits based on her diagnosis of Crohn’s disease and coronary artery
disease. (Compl. ¶¶ 4-5). The last date for which she met the insured status requirements of
sections 216(i) and 223(d) of the Social Security Act (hereinafter “date last insured”) was
September 30, 2007. As the Administrative Law Judge (ALJ) noted, regardless of whether
Plaintiff was disabled after the date last insured, “the claimant must establish disability on or
before that date in order to be entitled to a period of disability and disability insurance benefits.”
(Tr. 12). September 30, 2007, however, is also the date of alleged onset of claimant’s disability.
A. Vocational History
After receiving her high school diploma, Plaintiff worked from 1997 to 2001 as a safety
engineer at an electrical company, training workers on construction site safety and Occupational
Safety and Health Administration regulations. (Tr. 31-32, 217). She left the work force for
several years to raise two children, (Tr. 32, 39), and returned in 2007 as a high-school teacher’s
aide for the Rahway School District. She performed this job from September of 2007 until at
least the summer of 2008. (Tr. 25-26, 214). During this time, she assisted in the classroom and
marked up papers for the teacher. (Tr. 26). Depending on the schedule, she would work either the
full school day, from 8:30 A.M. to 2:30 P.M., or from 8:30 A.M. to 12 P.M. (Tr. 27.). At the
hearing, she reported generally missing one day of work every two weeks, (Tr. 28), but at times
missing as many as four days per week, (Tr. 34). The School District was aware of her medical
issues and accepted her reduced schedule. (Tr. 28-29). The District allowed her to take off for
medical reasons when necessary. (Tr. 34).
Plaintiff supplemented this income by working as a waitress at the Prudential Center, where
she served drinks in the Ledge seating area during various events. (Tr. 29-30). This job involved
both sitting and being on her feet, as well as carrying trays of drinks to customers’ tables. (Tr.
36). She continued at this job until September 2008. (Tr. 214-216). In total for 2008, Plaintiff
made $15,000, roughly sixty percent of which was attributable to her position as a teacher’s aide.
(Tr. 29, 35-36).
B. Medical History
1. Crohn’s Disease
Plaintiff was diagnosed with Crohn’s disease when she was fifteen years old. (Tr. 33). The
severity of her symptoms varied from day to day during the relevant time period. She described
these symptoms as stomach pains, fatigue, and the need to use the restroom frequently. (Tr. 34,
38). Plaintiff stated that she could walk no more than a block without becoming short of breath
and could stand for no more than ten minutes, but could sit comfortably. (Tr. 48). She also stated
that the pain and fatigue forced her to leave her job early on occasion or miss work altogether.
Depending on the day, she was able to drive a car, shop for groceries, cook dinner, and clean her
house. (Tr. 45).
The medical evidence regarding Crohn’s disease indicated that Plaintiff was in remission
during the relevant period. (Tr. 15, 57). Dr. Gerald Galst examined Plaintiff’s medical records,
including tests from her treating gastroenterologist. Between 2000 and 2008, he testified that she
maintained stable weight and that multiple tests, including colonoscopies and stomach and small
bowel biopsies, revealed “no activity of any substantial nature.” (Tr. 56). The first indication
that Plaintiff’s Crohn’s disease had recurred was after a CAT scan of her abdomen during an
assessment on September 25, 2008. (Tr. 57). Dr. Galst concluded that no objective medical
evidence was presented of active Crohn’s disease until almost one year after the date last insured.
(Tr. 57). Before the recurrence of her Crohn’s disease in 2008, Dr. Galst testified that Plaintiff
would have been able to do light level work and that her only limitation would be periodic
absences from work. (Tr. 57-58).
2. Coronary Artery Disease
Plaintiff was diagnosed with coronary artery disease in September 2008. She described
difficulty breathing on September 15, 2008, was admitted to JFK Medical Center in New Jersey,
and was diagnosed with dilated cardiomyopathy. (Tr. 59). Before 2008, during the relevant
period, the only heart-related symptoms she was able to identify were an occasional shortness of
breath and, at times, the feeling that her heart was beating fast. (Tr. 42).
Dr. Galst testified that Plaintiff’s condition was severe enough to meet the cardiac Social
Security Listing of Impairments as of 2008. Before that, however, he stated there were no
indications of coronary artery disease that would meet the cardiac Listing: “There is no medical
evidence that I have to suggest that she had a heart failure issue or problem prior to that and, in
fact, her treating gastroenterologist in a variety of exhibits, indicates that this problem seems to
have come on rather acutely at either the end of August 2008 or the beginning of September.”
(Tr. 54). When asked to estimate the earliest date, in relation to her diagnosis on September 25,
2008, at which Plaintiff met the cardiac Listing level, Dr. Galst responded, “the documented
evidence suggests that this was sometime around then and not substantially before then.” (Tr.
55). Based on the medical documentation, he concluded that the heart disease symptoms did not
meet the Listing requirements before the date last insured. (Tr. 56). Based on her symptoms, Dr.
Galst testified that Plaintiffs Residual Functional Capacity at the date last insured, September 30,
2007, was consistent with light level work. (Tr. 57-58).
C. Procedural History
On October 17, 2008, Plaintiff filed an application for disability insurance benefits, alleging
an inability to work since September 30, 2007. (Tr. 174-80). The application was denied by the
Regional Commissioner of Social Security on December 4, 2008 and denied on reconsideration
on April 16, 2009. (Tr. 66-72, 76-78). Plaintiff then requested an administrative hearing and
appeared before ALJ Leonard Olarsch on January 13, 2011. (Tr. 21-65.)
ALJ Olarsch reviewed the case de novo and issued a decision on February 7, 2011, denying
disability benefits. He found that Plaintiff suffered from a severe impairment during the relevant
period, but that her residual functional capacity (hereinafter “RFC”) during that period was
compatible with her past relevant work. (Tr. 14-15). The Appeals Council denied Plaintiff’s
request for review. (Tr. 1-5). Plaintiff filed this action in federal court on August 3, 2012
seeking review of the Commissioner’s final decision.
II. THE DISABILITY STANDARD
Under the Social Security Act, an individual is considered disabled if 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 a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
A physical or mental impairment is defined as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). An individual will be
found disabled “only if his physical or mental impairment or impairments are 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 . . . .” 42 U.S.C. § 423(d)(2)(A).
The Commissioner applies the following five-step sequential analysis to determine whether
an individual is disabled. 20 C.F.R. §§ 404.1520(a), 416.920. If at any step a decision can be
made as to whether an individual is disabled, the analysis is complete and does not proceed to the
remaining steps. Id.
Step One - Substantial Gainful Activity: The Commissioner must first determine whether the
claimant is presently employed, and whether that employment constitutes substantial gainful
activity. 20 C.F.R. § 416.972. Substantial activity is work “that involves doing significant
physical or mental activities.” 20 C.F.R. § 416.972(a). Gainful activity is any work “that you do
for pay or profit.” 20 C.F.R. § 416.972(b). If the Commissioner concludes that an individual is
substantially and gainfully employed then that person cannot be disabled, regardless of age,
education, or work experience. 20 C.F.R. § 416.920(b).
Step Two - Severe Impairment: If the individual is not engaged in any substantial gainful
activity, she must then demonstrate that she suffers from a severe impairment or a combination
of impairments that is severe. 20 C.F.R. § 404.1520(a)(4)(ii). The impairment is severe if it
“significantly limits [the individual’s] physical or mental ability to do basic work activities.” 20
C.F.R. § 404.1520(c). “The step-two inquiry is a de minimis screening device to dispose of
groundless claims.” Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003).
Additionally, in order to meet the duration requirement, the impairment “must have lasted or
must be expected to last for a continuous” 12 month period, unless it “is expected to result in
death.” 20 C.F.R. § 404.1509. If the individual fails to demonstrate a severe impairment or fails
to meet the duration requirement, the disability claim will be dismissed. 20 C.F.R. §
Step Three - Listed Impairment: If the individual successfully demonstrates a severe
impairment, the Commissioner must then determine whether the impairment meets or equals an
impairment listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. 20 C.F.R. §
404.1520(a)(4)(iii). If the individual’s impairment or combination of impairments meet or equal
a listed impairment, then she will be found to be disabled without considering her age, education,
and work experience. 20 C.F.R. § 404.1520(d).
Step Four - Residual Functional Capacity: If the severe impairment does not meet or equal
one of the impairments listed in Appendix 1, then the Commissioner must consider whether,
despite the claimant’s impairment, the claimant still possesses the RFC to perform his past
relevant work. 20 C.F.R. § 416.920(e).
Past relevant work is defined as, “work that [the individual has] done within the past 15
years, that was substantial gainful activity, and lasted long enough for [her] to learn to do it.” 20
C.F.R. § 404.1560(b)(1). If the individual has the capacity to perform past work, she will be
found not disabled. If not, the Commissioner moves on to the fifth and final step. 20 C.F.R. §
Step Five - Other Work: Finally, if the individual is unable to perform past relevant work, the
Commissioner considers the individual’s RFC, age, education, and work experience to determine
whether she can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v). This work must exist in
significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(1). If the individual is
unable to adjust to other work, she will be found to be disabled. However, if the Commissioner
finds that claimant can adjust to other work, then she will be found not disabled.
This five step sequential analysis involves a shifting burden of persuasion. Wallace v. Sec’y
of Health and Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). The individual bears the
burden of persuasion for steps one through four. However, if the analysis reaches step five, the
burden shifts to the Commissioner to prove that the individual is able to perform other work in
the national economy. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
III. THE ALJ’S DECISION
To be entitled to disability insurance benefits, a claimant must be under a disability during
the time that she meets the insured status requirements for such benefits. See 42 U.S.C. §
423(a)(1)(A); 20 C.F.R. §§ 404.130, 404.315(a); see Kane v. Heckler, 776 F.2d 1130, 1131 n.1
(3d Cir. 1985). If a claimant cannot demonstrate the onset of disability before the date last
insured, the claimant is not entitled to benefits. De Nafo v. Finch, 436 F.2d 737, 739 (3d Cir.
The ALJ applied the five-step analysis in determining whether Plaintiff was disabled before
the date last insured. At Step One, the ALJ found that Plaintiff did not engage in substantial
gainful activity during the period from her alleged onset date through the date last insured. (Tr.
14). At Step Two, the ALJ determined that Plaintiff suffered from both Crohn’s disease and
coronary artery disease through the date last insured. (Tr. 14). However, at Step Three, the ALJ
found that Plaintiff did not suffer from an impairment or a combination of impairments that met
or equaled one listed in the Social Security Listing of Impairments found in Appendix 1 of 20
C.F.R. Part 404. (Tr. 14-15). At Step Four, the ALJ held that Plaintiff had the residual functional
capacity to perform the full range of light work, stating that, “[g]iven the lack of evidence
regarding the severity of the claimant’s Crohn’s disease and coronary artery disease prior to the
last insured date, the evidence does not support a residual functional capacity below ‘light.’”
(Tr. 16). The ALJ compared the physical and mental demands of claimant’s prior relevant work
as a teacher’s aide with Plaintiff’s RFC and determined that she was both able to perform the job
as she actually did and how it is generally performed. (Tr. 16). Because Plaintiff was able to
perform past relevant work, the ALJ determined that she was not disabled on or prior to
September 30, 2007. (Tr. 16).
IV. STANDARD OF REVIEW
This Court must review the final decision of the Commissioner to determine whether the
administrative record contains substantial evidence to support his decision. 42 U.S.C. § 405(g);
See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Substantial evidence is defined as
“more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). If there is substantial evidence supporting the
Commissioner’s finding, this Court must uphold the decision even if it might have reasonably
made a different finding based on the record. Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir.
1986). “The ALJ’s responsibility is to analyze all the evidence and to provide adequate
explanations when disregarding portions of it.” Snee v. Sec’y of Health and Human Servs., 660
F. Supp. 736, 739 (D.N.J. 1987) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981);
Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); Gober v. Matthews, 574 F.2d 772,
776 (3d Cir. 1978)).
V. REVIEW OF THE COMMISSIONER’S DECISION
Plaintiff contends that the ALJ’s findings lack substantial evidence because: (A) the ALJ
allegedly departed from the medical expert’s testimony; (B) the ALJ purportedly did not assess
whether Plaintiff’s medical impairments in combination met the requirements of a Listing under
Step Three; and (C) that the ALJ’s residual functional capacity determination is not supported by
A. Medical Expert Testimony
Plaintiff contends that the medical expert’s testimony was so evidently incorrect that the ALJ
took the “unprecedented step of ignoring [the expert’s testimony] in the decision.” (Pl.’s Br. 9).
She notes that, under Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 549 (3d Cir. 2003), the ALJ
should receive expert testimony where, as here, the alleged onset date is an essential dispute.1
Thus, Plaintiff argues the ALJ’s decision is without substantial evidence because the ALJ
purportedly disregarded Dr. Galst’s testimony – “omitting every word of the testimony and any
trace of the experts [sic] existence.” This is a misreading of the decision. The ALJ referenced Dr.
Galst’s testimony, (Tr. 12), noted in his RFC assessment that he “has also considered opinion
evidence” about the extent of Plaintiff’s symptoms, (Tr. 15), and directly incorporated the
expert’s opinions on every issue relevant to the challenged findings at Steps Three and Four.
At Step Three, regarding whether Plaintiff’s Crohn’s disease met a Social Security Listing
Impairment, Dr. Galst testified, that “it sounds as if her disease was in remission.” (Tr. 57).
To be clear, there is no dispute that the ALJ in fact received the testimony of a medical expert
in accordance with Social Security Ruling 83-20. Dr. Galst graduated from Albert Einstein
College of Medicine in 1960 and has been practicing medicine, specifically cardiology, since
1967. He is board certified in internal medicine and cardiovascular disease. (Tr. 52). Currently,
he is an associate professor of medicine at the Albert Einstein College of Medicine. (Tr. 11920).
Correspondingly, in the ALJ’s opinion he stated: “it should be noted that the claimant’s Crohn’s
disease had been in remission prior to the last insured date.” (Tr. 15). As to whether Plaintiff’s
heart disease met the cardiac Listing, Dr. Galst explicitly testified that Plaintiff’s symptoms
suggest that the first indication of heart failure was “sometime around [her September 2008
diagnosis] and not substantially before then,” and not before the date last insured. (Tr. 55-56).
Here, too, the ALJ adopted the expert’s opinion, stating that the “first indication of congestive
heart failure . . . [was] in September 2008.” (Tr. 16). When Dr. Galst was asked whether
Plaintiff’s coronary artery disease, in combination with her Crohn’s disease, “meet or equal any
of the listings under the Social Security law” as of the date last insured, (Tr. 52-53), the medical
expert responded that Plaintiff did not meet or equal any Listing until “the beginning or during
September 2008.” (Tr. 54). Incorporating the expert’s opinion, the ALJ wrote: “[t]hrough the
date last insured, the claimant did not have an impairment or combination of impairments that
met or medically equaled one of the listed impairments.” (Tr. 14).
At Step Four, in assessing Plaintiff’s Residual Functional Capacity, the expert testified that
Plaintiff “certainly could have been able to do light level work.” (Tr. 58). Similarly, the ALJ
wrote that “the evidence does not support a residual functional capacity below ‘light.’” (Tr. 16).
Even though the ALJ did not include quotations of Dr. Galst’s testimony in the written decision,
the ALJ evidently considered and incorporated his opinions. The record demonstrates that
Plaintiff’s contention – that “the ALJ doesn’t mention any of [the expert’s] testimony, doesn’t
rely on it, and thus either rejected it as incredible or forgot  the purpose of the expert’s
testimony . . . as if no expert testimony existed,” (Pl.’s Br. 14-15) – is without factual basis. The
testimony of Dr. Galst in the record supports the ALJ’s decision that Plaintiff was not under
disability on or before the date last insured.
Plaintiff next argues that the expert’s testimony contradicts the ALJ’s findings at Step Two,
where the ALJ determined that Plaintiff suffered from “severe impairments.” Specifically,
Plaintiff asserts that the expert’s testimony that there was no medical evidence of active Crohn’s
disease or heart disease that met a Listed Impairment on or before the date last insured indicates
that the ALJ disregarded the expert’s testimony in finding Plaintiff had severe impairments.
First, Plaintiff’s argument is irrelevant because she has not challenged the ALJ’s finding at Step
Two. Rather she challenged the ALJ’s findings at Step Three and Four, where the ALJ
undoubtedly agreed with and adopted the findings of the medical expert. Thus, there was
substantial evidence for the ALJ’s findings on the challenged steps. Regardless, Dr. Galst was
asked to testify regarding whether Plaintiff’s impairments, alone or in combination, met or
exceeded any Social Security Listing Impairment under Step Three, not whether her symptoms
were “severe” according to the standard set forth in Step Two. (Tr. 52-53). The standards are
different: one standard is a “de minimis screening device,” Newell, 347 F.3d at 546, whereas the
other is a medical determination “whether the impairment is on a list of impairments presumed
severe enough by the SSA to render one disabled,” Ramirez v. Barnhart, 372 F.3d 546, 550 (3d
Cir. 2004). The expert did not find, as Plaintiff argued, “that there was no evidence that Plaintiff
was the slightest bit sick before expiration of insured status.” (Pl.’s Br. 9). Instead, he identified
some symptoms, such as diarrhea, that occurred during the relevant period, and stated “that the
only really [sic] limitation was periodically missing work time.” (Tr. 57). He concluded that
these symptoms would still allow Plaintiff to do “light level work.” (Id.). This finding is
consistent with the ALJ’s conclusion that Plaintiff’s impairment at the date last insured passed
the “de minimis screening” level of Step Two, but did not meet or exceed a Listing Impairment
at Step Three.
Plaintiff also asserts that the medical expert was biased against her based on a relationship
with the ALJ, who “personally chose the doctor owing to their association.” (Pl.’s Br. 9). There
is no basis in the record for this allegation. Nor has Plaintiff identified any evidence of illicit
bias. Richardson v. Perales, 402 U.S. 389, 403-04 (1971) (“That the reports were adverse to
[Plaintiff’s] claim is not in itself bias or an indication of nonprobative character”); Valenti v.
Comm’r of Soc. Sec., 373 F. App’x 255, 258 (3d Cir. 2010) (rejecting a challenge based on an
ALJ’s purported bias because claimant had “not identified any evidence from the record in this
case indicating any bias or misconduct on the part of the ALJ.”).
Additionally, Plaintiff argues that the expert is incorrect because, given the severity of her
condition in 2008, Plaintiff’s condition must have existed during the relevant period, one year
before diagnosis. But “[e]vidence of an impairment which reached disabling severity after the
date last insured, or which was exacerbated after this date, cannot be the basis for the
determination of entitlement to a period of disability and disability insurance benefits.” Manzo v.
Sullivan, 784 F. Supp. 1152, 1156-57 (D.N.J. 1991) (citing De Nafo v. Finch, 436 F.2d 737, 739
(3d Cir. 1971)). Instead the existence of a disability before the date last insured must be
“established by adequate medical evidence . . . [not] by means of conclusory, self-serving
testimony that she was disabled at the crucial time.” Manzo, 784 F. Supp. at 1157. As required
by SSR 83-20, “it may be possible, based on the medical evidence to reasonably infer that the
onset of a disabling impairment(s) occurred some time prior to the date of the first recorded
medical examination. . . . This judgment, however, must have a legitimate medical basis.” Thus,
Plaintiff cannot meet her burden by merely asserting that her condition, “like virtually all heart
disease, [is] a slowly progressive disease,” (Pl.’s Br. 14). Plaintiff submitted no medical evidence
to show that her condition upon diagnosis in 2008, which met the cardiac Listing, necessarily
implied that the disease developed over the course of years, and thus met the cardiac Listing in
September 2007. Nor did Plaintiff point to any evidence that Dr. Galst’s testimony was
inconsistent with the Plaintiff’s medical records. Instead, the testimony in the record directly
contradicts Plaintiff’s position that the disease was slowly progressive. When Plaintiff crossexamined the expert on the onset of the disease at the hearing, Dr. Galst responded that the
disease could have, and likely did, develop rapidly, not over time: “her treating
gastroenterologist in a variety of exhibits, indicates that this [coronary heart disease] seems to
have come on rather acutely at either the end of August 2008 or the beginning of September.”
(Tr. 54). He explained that, “[s]ince [the heart condition] is idiopathic, nobody can really say. It
may be the result of a recent viral infection.” (Tr. 60).
Similarly, regarding her Crohn’s disease, Dr. Galst testified that it was in remission between
2000 and 2008. He reviewed “innumerable studies” including “multiple endoscopy studies, both
from the point of view of colonoscopy as well as studies of her gastrointestinal tract. Her
stomach and small bowel biopsies were obtained. And none of these indicated any active
Crohn’s disease . . . .” (Tr. 56-57). During that time, the treating gastroenterologist did not
attribute any symptoms to Crohn’s disease, but instead cited irritable bowel syndrome. (Id.) The
first indication that Plaintiff’s Crohn’s disease had recurred was after a CAT scan during an
assessment on September 25, 2008, (Tr. 57), where Dr. Marc Wolfman stated his impression as
“probable exacerbation of Crohn’s disease.” (Tr. 469, 471-72). Plaintiff has not presented any
evidence in support of her burden to contradict Dr. Galst’s conclusion or show that Plaintiff
suffered from active Crohn’s disease or coronary artery disease that would meet or exceed the
Listing on the date last insured. Instead, Dr. Galst’s opinion was consistent with the objective
evidence and constitutes substantial evidence for the ALJ’s decision.
B. Explanation of Listing
Plaintiff asserts that ALJ did not explain his findings or compare them to a listed impairment.
Plaintiff notes that Burnett requires the ALJ to explain his finding and address contradictory
medical evidence. Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000). An ALJ
errs where he “fail[s] to consider and explain his reasons for discounting all of the pertinent
evidence before him.” Id. Burnett is satisfied where there is “sufficient explanation to provide
meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004).
While Plaintiff asserts that the ALJ’s opinion is insufficient because it does not “explain
which evidence contradicts his finding and which evidence supports his finding and why one set
of medical data is found more persuasive than the other,” (Pl. Br., 19), Plaintiff has not
identified a single piece of contradictory “pertinent evidence” that the ALJ purportedly
discounted. Instead, the Court’s review of the record demonstrates that, as Dr. Galst testified, no
medical evidence existed that Plaintiff met the cardiac Listing prior to September 2008. (Tr. 54).
Similarly, all medical evidence suggested her Crohn’s disease was in remission, and did not meet
a Listed Impairment until at least August of 2008. (Tr. 57-58). This fully supported the ALJ’s
conclusion that “[a]lthough the severity of her coronary artery disease meets a Medical Listing as
of September 15, 2008, this was after the last insured date of September , 2007. . . [and] that
the claimant’s Crohn’s disease had been in remission prior to the last insured date.” (Tr. 15)
Regarding Plaintiff’s claim that the ALJ failed to sufficiently assess whether a combination
of Plaintiff’s ailments met a listing, this is not supported by the record. During the hearing, the
ALJ identified the Listing “402, part A and part B”, (Tr. 54), and asked the expert whether “the
record support[s] the fact that she might have equaled a listing if the symptoms -- if she had
cardiac symptoms and you considered that together with her Crohn’s disease. Might that
situation have . . . equaled the listing on the [date last insured]?” (Tr. 56). Dr. Galst testified that
from 2000 to 2008 the medical records indicate that Plaintiff’s Crohn’s disease was not active
and that she did not have a heart failure problem during the relevant period, such that neither
impairment, nor the combination, met or equaled a Social Security Act Listing Impairment prior
to the date last insured. (Tr. 56-58). This testimony provided substantial evidence for the ALJ’s
decision. Plaintiff has not identified any other Listing that the ALJ purportedly failed to compare
to her impairments.
C. RFC Determination
Plaintiff alleges that ALJ erred in his Step Four evaluation and purportedly did not compare
Plaintiff’s residual functional capacity with the proper description of the physical and mental
demands of past relevant work as a teacher’s aide. (Pl.’s Br. 24).
The record, however, indicates that the ALJ adequately considered the demands of Plaintiff’s
prior relevant work. At the hearing Plaintiff testified that her job as a teacher’s aide required
sitting in the classroom, marking up papers for the teacher, and assisting the teacher. (Tr. 26).
Similarly, in Plaintiff’s work history report she indicated that she spent three hour each day
standing and sitting and one hour stooping. Also, she indicated that the job required no lifting or
carrying. (Tr. 215). This testimony is consistent with the United States Department of Labor’s
Dictionary of Occupational Titles, cited by the ALJ, which describes the position of teacher’s
aide as correlating with light work. (Tr. 16, citing DOT Code No. 249.367-074, 099.327-010). A
job will be considered light work when the weight lifted is very little, but involves a good
amount of walking or standing, or it involves mostly sitting with some pushing or pulling of
arms or legs. 20 C.F.R. § 404.1567(b). In considering whether Plaintiff was capable of light
work, Dr. Galst testified that, with her symptoms, “she certainly could have been able to do light
level work.” (Tr. 58). Moreover, she was employed as both a teacher’s aide and server at the
Prudential Center through the date last insured and until at least May of 2008. (Tr. 26, 29). That
year she made $15,000 in wages. (Tr. 29). The fact that Plaintiff worked for almost a year
beyond the date last insured – after her condition worsened – provides substantial evidence for
the ALJ’s finding that she was capable of performing her past relevant work in September 2007.
Relying on this evidence, the ALJ concluded that, “[g]iven the lack of evidence regarding the
severity of the claimant’s Crohn’s disease and coronary artery disease prior to the last insured
date, the evidence does not support a residual functional capacity below ‘light.’” (Tr. 16). There
is substantial evidence to support the ALJ’s finding that “claimant was capable of performing her
past relevant work prior to her last insured date.” (Tr. 16).
For the reasons set forth above, and after a careful review of the record in its entirety, the
Court finds that there is substantial evidence to support the Commissioner’s final decision that
Plaintiff was not disabled on, or prior to, September 30, 2007. Accordingly, the Commissioner’s
determination is affirmed. An appropriate Order follows.
/s/ Faith S. Hochberg
Hon. Faith S. Hochberg, U.S.D.J.
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