BILAK v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Susan D. Wigenton on 8/9/13. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LISA JILL BILAK,

Civil Action No. 2:12-CV-05956
Plaintiff,
v.

Carolyn W. Colvin,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION

August 9, 2013

WIGENTON, District Judge.
Before this Court is Plaintiff Lisa Jill Bilak’s (“Plaintiff”) appeal of the final administrative
decision of the Commissioner of Social Security (“Commissioner”), with respect to Administrative
Law Judge Leonard Olarsch’s (“ALJ”) denial of Plaintiff’s claim for Disability Insurance Benefits
and Supplemental Security Income (“SSI”) pursuant to 42 U.S.C. § 405(g). This appeal is decided
without oral argument pursuant to Federal Rule of Civil Procedure 78. This Court has subject
matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(g). Venue is proper pursuant to 28
U.S.C. § 1391(b). For the reasons stated herein, this Court AFFIRMS the ALJ’s decision.
I.

FACTS AND PROCEDURAL HISTORY
a. Work History
Plaintiff is a 43-year-old woman with a Bachelor of Arts degree in Environmental Studies

from Ramapo College in New Jersey. (See R. at 17, 26, 27.) Plaintiff’s main job was working as a
quality assurance manager for a pharmaceutical company for nine years, i.e. 1999-2008. (See id. at

27.) Plaintiff’s responsibilities included, among other things, overseeing the quality assurance of
production and manufacturing. (See id.)
On August 23, 2008, Plaintiff was terminated from her employment at the pharmaceutical
company due to issues she had with management. (See id. at 30.) In November 2008, Plaintiff
began a new job with Actavis Pharmaceuticals in Elizabeth, NJ, where she worked as a quality
assurance manager. (See id. at 30, 31.) In December 2008, Plaintiff was terminated from her
employment with Activis. (See id. at 31.)
b. Medical History
From July 2004 to May 2009, Plaintiff made primary care visits with Thomas Kaylen, MD,
(“Dr. Kaylen”). (See id. at 160-168, 226, 284-294, 313-323.) On April 19, 2007, Dr. Kaylen
referred Plaintiff to David Lessing, MD, (“Dr. Lessing”), for right shoulder and right wrist pain.
(See id. at 154.) Upon examination, Dr. Lessing noted that Plaintiff had a “right wrist dorsal
ganglion cyst and right shoulder tendonitis with periscapular scarring” and ordered a Magnetic
Residence Imaging (MRI) of her right shoulder. (Id.) The MRI, which was conducted on April 27,
2007, indicated mild supraspinatus tendinosis. (See id. at 154-55.)
On May 15, 2007, Plaintiff followed up with Dr. Lessing after a May 5, 2007 MRI of her
lower back. 1 (See id. at 153.) Dr. Lessing’s clinical impression was that Plaintiff had a herniation
at L5-S1, “numbness on the lateral posterior leg in the [fourth] and [fifth] toes” and an
unremarkable straight leg raising. (Id.)
On June 26, 2007, Plaintiff visited Scott R. Shepard, MD, (“Dr. Shepard”) for a neurological
consultation. (See id. at 216.) Plaintiff complained to Dr. Shepard of lower back pain and left
lower extremity pain and numbness. (See id.) Dr. Shepard reviewed Plaintiff’s May 5, 2007 MRI,
1

Specifically, the MRI revealed Marked type II degenerative endplate changes at L5-S1, disc bulge/pseudo
superimposed on Grade I retrolisthesis at this level with mild overall canal narrowing and mild bilateral foraminal
narrowing, possible presence of a tiny superimposed midline protrusion posterior to the S1 vertebral body, and probable
partial lumbarization of the S1 vertebral body. (See id. at 157-58.)

2

conducted a physical examination of Plaintiff, and noted that Plaintiff had normal range of motion
on flexion and extension and lateral bending of the cervical and lumbar spine, a negative straight leg
raising bilaterally, intact motor and sensory examinations, and that her gait and tandem gait were
within normal limits. (See id. at 217.)
On January 29, 2008, Plaintiff visited Dr. Eric D. Freeman (“Dr. Freeman”) complaining of
lower back and left hip pain. (See id. at 391.) Dr. Freeman noted that Plaintiff “ha[d] been treated
in the past for her low back pain [and that the pain radiated down her left lower extremity.]” (Id.)
Dr. Freeman’s clinical impression of Plaintiff was that she had “left lumbar radiculitis secondary to
lumbar disc herniation.” (Id.)
On April 2, 2008, Plaintiff returned to Dr. Freeman, reporting that she still had lower back
and left hip pain even after three steroid epidural injections. (See id. at 389.) Dr. Freeman ordered
another MRI in order to obtain an update from Plaintiff’s previous May 5, 2007 MRI. (See id. at
390.) This MRI was conducted on April 21, 2008. (See id. at 395.) The MRI demonstrated that
Plaintiff had “left lumbar radiculitis secondary to severe degenerative disc disease at L5-S1”. 2 (See
id. at 387, 395.)
On March 25, 2009, Plaintiff underwent a cervical spine MRI. On April 13, 2009, Plaintiff
visited Dr. Freeman again. (See id. at 372.) Dr. Freeman noted that the MRI demonstrated
multilevel cervical degenerative disc disease with disc herniation in foraminal narrowing and
stenosis. 3 (See id. at 373.) His clinical impression was that Plaintiff had right cervical radiculitis
and cervical degenerative disc disease with associated disc herniation. (See id.) He advised

2

Specifically, the MRI of Plaintiff’s lumbar spine showed the following at L5-S1: Mild Grade “I retrolisthesis of L5 on
S1,” “reactive endplate changes, posterolateral disc bulging extending into the entry zones,” and “neural foramina
bilaterally with moderate left and mild to moderate right-sided entry zone neural foraminal narrowing not significantly
changed” from Plaintiff’s previous May 4, 2007 MRI results. (R. at 395.)
3 Specifically, the MRI revealed disc bulging at C2-3, C3-4, and C6-7 and spondylosis at C4-5 and C5-6. (See id. at
208, 394.) “[A]t C4-5 there [was] central left paramedian disc osteophytes seen mildly compressing the spinal cord
contributing to mild central stenosis.” (Id. at 208.) There [was] also a showing of disc bulging at C6-7 and multilevel
foramina compromise. (See id.)

3

Plaintiff to continue taking Lyrica, made adjustments to her dosage of Norco, and decided to move
forward with a right C7-T1 epidural steroid injection. (See id.)
On May 11, 2009, Plaintiff revisited Dr. Freeman. (See id. at 370.) She indicated that she
had a new problem of extreme weakness, numbness and tingling in her left upper extremity, which
radiated into the first and second digits of her left hand and caused her to drop objects. (See id.) A
left upper extremity examination revealed 3+ weakness in the left wrist, but the remainder of the
exam was negative. (See id. at 371.) Dr. Freeman’s clinical impression was that Plaintiff had
extreme left upper extremity weakness. (See id.) As a result, he treated Plaintiff with Medrol
Dosepak. (See id.)
On June 1, 2009, Plaintiff visited Dr. Freeman and reported a 50% improvement regarding
her cervical spine. (See id. at 368.) Dr. Freeman noted that Plaintiff had less numbness and
improved strength in her left upper extremity. (See id.)
On June 20, 2009, Plaintiff reported a new onset of left-sided wrist weakness, but denied
any trauma. (See id. at 366.) Dr. Freeman observed left upper extremity wrist-drop and provided
Plaintiff with a prescription of prednisone Dosepak. (See id. at 367.) On July 3, 2009, Plaintiff
sought emergency room treatment at JFK Medical Center because she had “no control over [her]
left hand,” and had left arm numbness. (See id. 324-30.) Plaintiff’s examination was normal except
for left wrist drop. (See id.) On August 13, 2009, Dr. Freeman indicated that Plaintiff had a left
wrist drop, but could use her left arm. (See id. at 258.) Dr. Freeman also noted that Plaintiff could
walk at a reasonable pace. (See id. at 257.)
On October 21, 2009, in response to further complaints of pain in the cervical and lumbar
regions of her back, Dr. Freeman provided Plaintiff with a new prescription of Opana ER and
Skelaxin, decreased her dosage of Norco, and continued her on the same dosage of Lyrica. (See id.
at 361-62.) On November 18, 2009, Plaintiff followed up with Dr. Freeman. (See id. at 358.) Dr.
4

Freeman noted that the medications he prescribed Plaintiff during her previous visit enabled her to
perform her physical and social functions. (See id.)
On December 16, 2009, Plaintiff returned to Dr. Freeman complaining of left-sided neck
and lower back pain. (See id. at 355.) Dr. Freeman examined Plaintiff’s cervical and lumbar
regions and noticed lumbar radiculitis secondary to lumbar degenerative disc disease at L5-S1,
cervical degenerative disc disease, cervical and lumbar myofascial pain. (See id. at 356.) Dr.
Freeman also noticed improvement of left upper extremity wrist-drop. (See id.) Furthermore, Dr.
Freeman observed a positive slump and straight leg raise for Plaintiff’s back and buttock, and leg
pain on the left side. (Id.) Dr. Freeman took Plaintiff off of Opana, started her on Embeda, and
continued her on Norco, Lyrica, and Skelaxin. (See id. at 357.)
On January 15, 2010, Plaintiff complained to Dr. Freeman of an intermittent dull aching
neck and lower back pain, which she rated as 5 out of 10 on a pain scale; however, Dr. Freeman
indicated that Plaintiff’s back condition remained unchanged. (See id. at 352, 353.) Subsequently,
on March 17, 2010, Dr. Freeman conducted a follow-up examination of Plaintiff and indicated that
her wrist drop had completely resolved itself. (See id. at 350.)
On May 20, 2010, in response to Plaintiff’s additional complaints of pain in the cervical and
lumbar regions of her back, Dr. Freeman increased Plaintiff’s dose of Embeda and advised her to
continue with Norco, Lyrica, and Skelaxin. (See id. at 354.)
On March 18, 2010, State agency consultant Dr. McLarnon completed a Residual
Functional Capacity (“RFC”) assessment of Plaintiff. (See id. at 298-305.) Dr. McLarnon assessed
that Plaintiff could lift and carry ten pounds frequently, stand and walk three to four hours in an
eight-hour workday, sit about six hours in an eight-hour workday, and had no limitations in pushing
and pulling. (See id. at 299.) Dr. McLarnon also reported that Plaintiff could perform all postural
functions occasionally, could reach overhead occasionally, and reach in all other directions
5

frequently. (See id. at 300, 301.) Dr. McLarnon noted that Plaintiff’s left wrist weakness was
expected to improve. (See id. at 301.) Also, he found that Plaintiff had no communicative
limitations but some environmental limitations such as avoiding concentrated exposure to extreme
cold, extreme heat, and wetness and moderate exposure to vibration and hazards (i.e., machinery,
heights, etc.). (See id. at 302.) Dr. McLarnon reported that his assessment of Plaintiff’s RFC was
based on a December 2009 orthopedic examination provided by Dr. Freeman. (See id. at 305.)
On August 18, 2010, Plaintiff underwent a steroid epidural injection at S1. (See id.) On
September 3, 2010, Plaintiff reported to Dr. Freeman that she was at 70% improvement and wished
to move forward with another epidural steroid injection. (See id. at 336.) Dr. Freeman noted that
Plaintiff’s lumbar range of motion had improved, that Plaintiff was able to heel, toe, and tandem
walk without an assistive device, that Plaintiff had negative straight leg raise and slump tests, and
that Plaintiff had improvement with extension, rotation, and flexion. (See id. at 336-37.)
On October 8, 2010, Plaintiff reported to Dr. Freeman that she was still 70% improved
but stated that the second epidural steroid injection conducted on September 15, 2010, did not result
in significant improvement. (See id. at 331.) Dr. Freeman noted that Plaintiff had normal flexion,
extension, side-bending and rotation with minimal tenderness in the lumbar paraspinal muscles
bilaterally, and that straight leg raise and slump tests were negative. (See id. at 332.)
On October 20, 2010, Dr. Kaylen completed an RFC assessment of Plaintiff. (See id. at
308-12.) On the RFC assessment form, Dr. Kaylen indicated that Plaintiff had seen him monthly.
(See id. at 308.) Additionally, Dr. Kaylen diagnosed Plaintiff with degenerative joint disease and
cervical and lumbar radiculopathy and indicated that she had chronic neck and back pain with
decreasing sensation and motor strength in the left hand.

(See id.) Dr. Kaylen indicated that

Plaintiff had constant discomfort in her neck and lower back, which got worse with increasing
activity and that Plaintiff had weakness in her left fingers and left leg. (See id.) Dr. Kaylen also
6

indicated that Plaintiff was taking medicine that made her incoherent and that Plaintiff’s
impairments lasted or were expected to last at least twelve months. (See id.) Dr. Kaylen indicated
that depression and anxiety were emotional/psychological factors contributing to the severity of
Plaintiff’s symptoms, functional limitations, and physical condition. (See id. at 309.)

Dr. Kaylen

opined that Plaintiff was also constantly experiencing pain and other symptoms severe enough to
interfere with the attention and concentration needed to perform even simple work tasks. (See id.)
Dr. Kaylen indicated that Plaintiff was incapable of tolerating “low stress” jobs because she could
not sit or stand for more than 15 minutes total and that Plaintiff could sit, stand, and walk for less
than two hours in an eight-hour work day. (See id. at 310.) Dr. Kaylen further indicated that
Plaintiff must walk every ten minutes for a period of ten minutes during an eight-hour work day,
that she needs a job that permits shifting positions at will from sitting, standing or walking. (See id.)
Plaintiff would also need to take unscheduled breaks every half hour to an hour for forty-five
minutes to an hour during an eight-hour working day. (See id.) Dr. Kaylen also indicated that
Plaintiff must use a cane or assistive device while engaging in occasional walking and that she can
never carry more than ten pounds. (See id.) Additionally, Dr. Kaylen concluded that Plaintiff could
rarely look down (sustained flexion of neck), turn her head right or left, twist, stoop (bend), or
crouch/squat. (See id. at 311.) He found that Plaintiff could occasionally look up and climb stairs,
and that Plaintiff could never climb ladders. (See id.) Moreover, Dr. Kaylen indicated that Plaintiff
had significant limitations with reaching, handling and/or fingering in her left upper extremity. (See
id. at 311.) He further concluded that Plaintiff’s impairments were likely to produce “good days”
and “bad days,” and that on average she was likely to be absent more than four days per month from
work due to her impairments and treatment. (See id.) Lastly, Dr. Kaylen indicated that Plaintiff had
further limitations that would affect her ability to work at a regular job on a sustained basis, e.g.,

7

Plaintiff had severe allergic rhinitis and should avoid wetness, humidity, dust, fumes and gases.
(See id. at 312.)
On November 24, 2010, Dr. Freeman ordered an MRI of Plaintiff’s cervical spine. (See
id. at 392.) The MRI revealed degenerative disc disease at the C4-5, C5-6, and C6-7 levels, a
significant decrease in the previous herniation to the left of midline at C4-5, with persisting
foraminal narrowing particularly on the right side, and unchanged mild spinal stenosis. (See id.) The
MRI also showed a probable small herniation at the entrance of the neural foramen on the left, a
probable small herniation on the right at C6-7 level with findings consistent with progression of
degenerative disc disease at this level, and reversal of the curvature. (See id. at 392, 393.)
c. Procedural History
On April 30, 2009 4, Plaintiff filed an application for SSI benefits alleging that she had been
unable to work since August 23, 2008, due to cervical and lumbar disc herniations and bulges
causing spinal cord compression. (See id. at 119.) On December 14, 2009, the Commissioner
denied Plaintiff’s application.

(See id. at 53-54, 278.)

Subsequently, Plaintiff filed for

reconsideration of her denial with the Commissioner. 5 On March 20, 2010, the Commissioner
denied Plaintiff’s application for SSI benefits again. (Id. at 58.). On April 1, 2010, Plaintiff
appealed the Commissioner’s decision to the Office of Administrative Law. (See id. at 61.)
On December 9, 2010, the ALJ conducted a hearing regarding Plaintiff’s appeal. (See id. at
10.) On January 11, 2011, the ALJ denied Plaintiff’s appeal and issued his decision. (See id. at 18.)
On March 5, 2011, Plaintiff sought review of the ALJ’s decision from the Social Security Appeals
Counsel (“Appeals Counsel”). (See id. at 6, 151.) On August 6, 2012, the Appeals Counsel denied

The ALJ’s decision indicates that Plaintiff filed for SSI benefits on April 27, 2009; however, the record reflects that
Plaintiff actually filed for SSI benefits on April 30, 2009. (See R. at 95.)
5 The record does not indicate the exact date that Plaintiff filed her request for reconsideration of her denial.
4

8

Plaintiff’s request for review. (See id. at 1-4.) On September 23, 2012, Plaintiff filed an appeal
with this Court challenging the ALJ’s decision. (See Compl.)
II.

LEGAL STANDARD
In social security appeals, the District Court has plenary review of the legal issues decided

by the Commissioner. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Yet, this Court’s review of
the Commissioner’s factual findings is limited to determining whether there is substantial evidence
to support those conclusions. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial
evidence “does not mean a large or considerable amount of evidence, but rather such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v.
Underwood, 487 U.S. 552, 564-65 (1988) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 217 (1938)). Substantial evidence is “less than a preponderance of the evidence, but ‘more
than a mere scintilla.’” Bailey v. Comm’r of Soc. Sec., 354 F. App’x. 613, 616 (3d Cir. 2009)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Importantly, “[t]his standard is not met
if the Commissioner ‘ignores, or fails to resolve, a conflict created by countervailing evidence.’”
Bailey, 354 F. App’x. at 616 (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
However, if the record is adequately developed, “the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). In
essence, “the Commissioner’s decision may not be set aside merely because [a reviewing court]
would have reached a different decision.” Cruz v. Comm’r of Soc. Sec., 244 F. App’x. 475, 479 (3d
Cir. 2007) (citing Hartranft, 181 F.3d at 360).
In considering an appeal from a denial of benefits, remand is appropriate “where relevant,
probative and available evidence was not explicitly weighed in arriving at a decision on the
plaintiff’s claim for disability benefits.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979)
9

(quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D.Pa. 1976)). However, a decision to
“award benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984).
III.

DISCUSSION
a. The SSDI Test
An individual will be considered disabled under the Social Security Act (the “Act”) if he or

she is unable to “engage in any substantial gainful activity (“SGA”) by reason of any medically
determinable physical or mental impairment” lasting continuously for at least twelve months. 42
U.S.C. § 423(d)(1)(A). The physical or mental impairment must be severe enough to render the
individual “not only unable to do his previous work but [unable], considering his age, education,
and work experience, [to] engage in any kind of substantial gainful work which exists in the
national economy . . . .” 42 U.S.C. § 423(d)(2)(A). A claimant must show that the “medical signs
and findings” related to her ailment have been “established by medically accepted clinical or
laboratory diagnostic techniques, which show the existence of a medical impairment that results
from anatomical, physiological, or psychological abnormalities which could reasonably be expected
to produce the pain or other symptoms alleged . . . .” Id.
In order to establish a prima facie case of disability under the Act, a plaintiff bears the
burden of demonstrating: (1) that she was unable to engage in SGA by reason of physical or mental
impairment that could have been expected to last for a continuous period of at least twelve months,
and (2) that the existence of such impairment was demonstrated by evidence supported by
medically acceptable clinical and laboratory techniques. See 42 U.S.C. § 1382c (a)(3).
In determining disability, the Social Security Administration (SSA) utilizes a five-step
sequential analysis. See 20 C.F.R. § 416.920; see also Cruz, 244 F. App’x. at 479. A determination
10

of non-disability at steps one, two, four, or five in the five-step analysis ends the inquiry. See 20
C.F.R. § 416.920. A determination of disability at steps three and five results in a finding of
disability. See id. Contrarily, if an affirmative answer is determined at steps one, two, or four the
SSA proceeds to the next step in the analysis. See id.
At step one, the Commissioner must determine whether the claimant is engaging in SGA.
See 20 C.F.R. 416.920(b). SGA is defined as work activity that is both substantial and gainful.
“Substantial work activity” is work activity that involves doing significant physical or mental
activities. See 20 C.F.R. 416.972(a). “Gainful work activity” is work that is usually done for profit,
whether or not profit is realized. See 20 C.F.R. 416. 72(b). If an individual engages in SGA, he is
not disabled regardless of the severity of his physical or mental impairments. See id. If the
individual is not engaging in SGA, the Commissioner proceeds to the next step. See id.
At step two, the Commissioner must determine whether the claimant has a medically
determinable severe impairment or a severe combination of impairments. See 20 C.F.R. 416.920(c).
An impairment or combination of impairments is “severe” within the meaning of the regulations if
it significantly limits an individual’s ability to perform basic work activities. See 20 C.F.R.
416.921. An impairment or combination of impairments is not severe when medical and other
evidence establish only a slight abnormality or combination of abnormalities that would have a
minimal effect on an individual’s ability to work. See id; see also Bowen v. Yuckert, 482. U.S. 137,
149-51 (1987). If the claimant does not have a severe impairment or severe combination of
impairments, he is not disabled. See 20 C.F.R. 416. 972(c). If the claimant has a severe impairment
or severe combination of impairments, the analysis proceeds to the third step. See id.
At step three, the Commissioner must determine whether the claimant’s impairment or
combination of impairments meets the criteria of an impairment listed in 20 C.F.R. Part 404,
Subpart P Appendix 1. See 20 C.F.R. 416.920(d), 416.925, 416.926. If the claimant’s impairment
11

or combination of impairments meets all the criteria of a listing and the duration requirement, the
claimant is disabled. See 20 C.F.R. 416.920(d), 20 C.F.R. 404.1525(c)(3); see also Sullivan v.
Zebley, 493 U.S. 521, 530 (1990). If the claimant does not, the analysis proceeds to the next step.
See 20 C.F.R. 416.920(d).
After step three, but before considering step four, the Commissioner must first 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). An individual’s RFC is his ability to do physical and mental work
activities on a sustained basis despite limitations from his impairments. See 20 C.F.R. 404.1545. In
making this determination, the Commissioner must consider all of the claimant’s impairments,
including impairments that are not severe. See 20 C.F.R. 416.920(e), 416.945. As trier of fact, the
Commissioner has discretion to weigh all the evidence, and resolve material conflicts. See 20 C.F.R.
404.1527. Thus, a RFC must include a resolution of any inconsistent views in the evidence. See
SSR 96-8. This requires the Commissioner to explain why a particular opinion was not adopted,
when his assessment conflicts with an opinion from a medical source. See id.
At step four, the Commissioner must determine whether the claimant has the RFC to
perform the requirements of his past relevant work. See 20 C.F.R. 416.920(f). “Past relevant work”
means work performed within the fifteen years prior to the date that disability must be established.
Id. If the claimant has the RFC to perform his past relevant work, the claimant is not disabled. See
id. If the claimant is unable to do any past relevant work or does not have any past relevant work,
the analysis proceeds to the fifth step. See id.
At step five, the Commissioner must determine whether the claimant is able to do any other
work considering his RFC, age, education, and work experience. See 20 C.F.R. § 416.920(g). The
claimant bears the burden of persuasion in the first four steps. See Malloy v. Comm’r of Soc. Sec.,
306 F. App’x. 761, 763 (3d Cir. 2009). If the claimant establishes that his impairment prevents him
12

from performing any of his past work, the burden shifts to the Commissioner at step five to
determine whether the claimant is capable of performing alternative, substantial gainful activity
present in the national economy. See 20 C.F.R. § 416.920(g); Kangas v. Bowen, 823 F.2d 775, 777
b. ALJ’s Findings

(3d Cir. 1987).

At step one, the ALJ found that Plaintiff had not been engaged in SGA since August, 23,
2008, the alleged onset date. (See R. at 12.) At step two, the ALJ found that Plaintiff had “the
following severe impairment: degenerative disc disease of the cervical and lumbar spine.” (Id.) At
step three, the ALJ found that Plaintiff did “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, Subpart P,
Appendix 1.” (Id.) At step four, the ALJ determined Plaintiff to have “the RFC to perform the full
range of sedentary work as defined in 20 C.F.R. 404.1567(a)” of the Act and found that Plaintiff
was “unable to perform past relevant work.” (R. at 12, 16.) Finally, at step five, the ALJ
considered Plaintiff’s age, education, work experience, and RFC and found that Plaintiff was able to
perform work in sedentary jobs that existed in significant numbers in the national economy. (R. at
17.)
On appeal, Plaintiff only takes exception to steps two, three, and four of the ALJ’s decision.
c. Analysis
i.

Step Two

Plaintiff argues that the ALJ misinterpreted the record and failed to consider her
impairments of insomnia, depression, anxiety, asthma, and gastrointestinal complaints. (See Pl.’s
Br. 21-22.) The Commissioner, however, correctly points out that Plaintiff did not include any of
these impairments as a basis for disability on her application for SSI benefits. (See Def.’s Br. 17.)
Furthermore, the Commissioner argues that Plaintiff has provided no explanation demonstrating
13

that any of the aforementioned impairments were medically determinable, severe, and met the
durational requirement,” pursuant to 20 C.F.R. § 404.1509. (Id.) Indeed, Plaintiff’s testimony
before the ALJ as to her insomnia and depression was very minimal and her testimony as to her
anxiety, asthma, and gastrointestinal complaints was nonexistent. 6 (See R. at 32-46.) Where a
claimant does not provide sufficient evidence to show that particular impairments have more than a
minimal effect on her ability to work, the ALJ can properly omit such impairments from the step
two analysis. See Ibanibo v. Comm’r of Soc. Sec., Civ. No. 11-3822 (CCC), 2012 WL 294578, at
*6 (D.N.J. July 18, 2012). Therefore, since there is minimal evidence as to Plaintiff’s insomnia,
depression, anxiety, asthma, and gastrointestinal complaints, this Court finds that the ALJ did not
err in omitting these impairments from his step two analysis.
ii.

Step Three

Plaintiff makes two arguments regarding the ALJ’s step three finding. First, Plaintiff
contends that the ALJ, in his step three analysis, improperly considered medical evidence including
Plaintiff’s MRI results and objective clinical findings. (See Pl.’s Br. 19.) Second, Plaintiff
contends that the ALJ did not develop the record properly by including findings that [Plaintiff’s]
impairments do[] not meet or equal [] any impairments described in the Listing of Impairments.”
(See Pl.’s Br. 20. (citing S.S.R. 82-56))
At step three, the ALJ found that “[t]he medical evidence does not establish the requisite
evidence of nerve root compression, spinal arachnoiditis or lumbar spinal stenosis under listing
1.04,” and that “the specified criteria required of the listing were not demonstrated by the available
medical evidence.” 7 The ALJ’s finding was proper. The medical evidence in the record

6

Furthermore, Dr. Kaylen indicated that apart from her cervical radiculopathy, Plaintiff had no other conditions that
limited her ability to perform work-related activities. (Id. (citing R. at 282.))
7 In order to meet listing 1.04 under subsection A, a plaintiff is required to demonstrate as follows:

14

demonstrates that Plaintiff does not have “1) the required neuro-anatomic distribution of pain, 2)
limitation of motion in the spine, 3) motor loss accompanied by sensory or reflex loss, and/or 4)
positive straight leg raising as required to meet the other criteria of listing 1.04.A. (See R at 12.)
Therefore, Plaintiffs argument fails and the ALJ’s step three findings are supported by substantial
evidence in the record.
iii.

RFC Assessment & Step Four

Regarding the ALJ’s RFC determination, Plaintiff argues that “the ALJ failed to give proper
credence to [her] complaints . . . concerning her chronic and severe pain, with radiculopathy to both
upper and lower extremities, numbness, weakness and limitations of motion and function.” (Pl.’s
Br. 14.) Plaintiff argues that her testimony regarding her inability to work is entitled to great weight
as it is supported by and is consistent with the evidence in the record. (See id. at 15.) This Court
finds Plaintiff’s arguments unpersuasive.
“[A] Plaintiff bears the burden of demonstrating that her subjective complaints [are]
substantiated by medical evidence.” 42 U.S.C.A. § 401 et seq; see also Alexander v. Comm’r of
Soc. Sec., 85 F.3d 611 (3d Cir. 1996); Pearson v. Barnhart, 380 F. Supp. 2d 496 (D.N.J. 2005).
Here, the ALJ determined that Plaintiff had “the RFC to perform the full range of sedentary work as
defined in 20 C.F.R. 404.1567(a)” of the Act and at step four found that Plaintiff was “unable to
perform past relevant work.” (R. at 12, 16.) In his RFC assessment, the ALJ noted Plaintiff’s daily
living activities, e.g., driving to the grocery store to shop, driving around town, doing crafts and
painting and selling them at street fairs as an indicator that Plaintiff’s subjective complaints of pain

1.04 Disorders of the Spine (e.g., herniated nucleus pulposus, spinal arachnoidits, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of
a nerve root (including the cauda equina) or the spinal cord. With:
A. 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).

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were inconsistent with her statements that she could not perform sedentary work. (See R. at 16, 2526, 39-41.) The ALJ’s credibility determination is supported by objective medical evidence
showing that Plaintiff’s physical examination findings consistently showed normal sensation,
reflexes, and motor functioning. (See id. at 211, 327, 331-32, 337, 347, 350, 355-56, 359, 362, 368,
371-72, 375, 387, 389, 391.) Furthermore, the ALJ’s credibility findings and resultant RFC
assessment are supported by the medical evidence produced by Dr. Freeman and the RFC
assessment of Dr. McLarnon, which concluded that Plaintiff’s impairment did not render her
incapable of performing any type of work.

Accordingly, this Court finds that the ALJ properly

evaluated Plaintiff’s subjective medical complaints given the evidence in the record.
Plaintiff also argues that, in assessing her RFC, the ALJ gave too much weight to Dr.
McLarnon’s medical opinion and improperly rejected the opinions of her treating physicians, Dr.
Freeman and Dr. Kaylen. (See Pl.’s Br. 22.) This Court disagrees; the ALJ did not reject the
opinion of Dr. Freeman and Dr. Kaylen. In fact, the ALJ used their opinions in his analysis.
Dr. Freeman repeatedly observed that Plaintiff’s medical conditions enabled her to perform
her physical and social functions. (See R. at 331, 336, 349, 358, 370, 375, 379-80, 382, 386.)
Additionally, Dr. Freeman’s pain management notes indicate that Plaintiff improved with treatment
and that Plaintiff ruled her intermittent pain as moderate. (See id. at 16.) Dr. Kaylen completed an
assessment form, where, among other things, he stated that Plaintiff had no conditions other than
cervical radiculopathy that limited her ability to perform work-related activities. (See id. at 281-82.)
To the extent that Plaintiff takes issue with the ALJ’s decision to not consider Dr. Kaylen’s
RFC assessment, the ALJ properly noted that “treating physician opinion[s] [are] given controlling
weight only if [they] are well supported and not inconsistent with other substantial evidence.” (Id.
at 16; See also 20 C.F.R. §§ 404.1529, 416.929) The ALJ properly considered Dr. Kaylen’s second
RFC assessment and found it was “not supported by objective clinical findings and [was]
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inconsistent with other substantial evidence” in the record. 8 (Id. at 16.) Thus, this Court finds that
the ALJ, in making his RFC assessment, did not improperly reject Dr. Kaylen’s medical opinion.
Contrary to Plaintiff’s indication, the ALJ did not reject Dr. Freeman’s opinion, but instead relied
on it in reaching a decision. 9 Accordingly, Plaintiff’s arguments regarding the RFC determination
and step four are also unavailing. 10
IV.

CONCLUSION
For the foregoing reasons, this Court AFFIRMS the ALJ’s decision.

s/Susan D. Wigenton, U.S.D.J.
Orig: Clerk
Cc:
Parties

8

Furthermore, the ALJ explained that Dr. Kaylen’s opinion that Plaintiff needed a cane to ambulate was an
inconsistency with the record because there is no medical evidence that Plaintiff had any abnormality in her gait. (R. at
16, 211, 305, 310, 346, 349, 353, 355, 361.)
9 Plaintiff further argues that the ALJ’s reliance on Dr. McLarnon’s opinion is improper because the opinion is not
dated. (Pl.’s Br. 17.) This argument, however, is factually false as the Dr. McLarnon completed a case analysis on
September 4, 2009, and subsequently completed a Physical RFC Assessment on March 18, 2010. (R. at 269, 298-305.)
10 Moreover, Plaintiff argues that the ALJ erred at step five in that he failed to obtain a medical vocational expert for
Plaintiffs non-exertional limitations, e.g., insomnia, depression, and anxiety. However, given this Court’s conclusion
that the ALJ properly found these impairments not to be severe, Plaintiff’s argument is moot.

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