WOODS v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Judge Dennis M. Cavanaugh on 10/18/2013. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SlITRLA WOODS.

:

Plaintiff.

:

v,

:

Hon. Dennis M. Cavanaugh
OPINION
Civil Action No. 12-cvO6O88 (DMC) (JBC)

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY
Defendant,

DENNIS M. CAVANAUGH. U.S.D.J.:
This matter comes before the Court upon the appeal of Shirla Woods (“Plaintiff” or
“Claimant”) from the final decision of the Commissioner of Social Security (“Commissioner”),
denying Plaintiffs claims for a period of disability and disability insurance benefits under Title
Ii and/or Title XVI ot the Social Security Act (“Act”) upon a decision from Administrative Law
Judae Michal L. Lissek (the “AU”
matter

pursuant

to 42 U.S.C.

§

01’

“AI i Lissek”). This Court has

jurisdiction

over this

405(g) and l383(c)(3). Pursuant to FED. R. CIV. P. 78, no oral

argument was heard. After carefully reviewing the submissions of both parties. for the reasons
expressed herein, the final decision entered by the AU is affirnaed.
1.

BACKGROUND
A. Procedural History
On August 13, 2009, Plaintiff filed an application for a period

of

disability and disability

insurance benefits, alleging disability beginning on February 24, 2009. (Ti’. 107-108). The

claim was denied initially and again upon reconsideration. (Tr. 54). Plaintiff then filed
a timely
written request for a hearing before an Administrative Law Judge to review the application.
(Ti’.
66-67). Plainti IT appeared and testified at a hearing held on September 13. 2011 in ewark. ew
Jersey. (Tr. 28. 30). Plaintiff was denied eligibility for disability benefits under sections
2 1 6(i)
and 223(d) of the Social Security Act on November 9. 2011. by AU Lissek. (Tr. 22). On June
7. 2012, the Appeals Council denied Plaintiff’s Request for Review of the ALPs decision, (Tr.
49), leading to this appeal.
13.

Factual History
i.

Findings of the Administrative Law Judge

The relevant findings of the AU were as follows: (I) Plaintiff meets the insured status
requirements of the Social Security Act through December 31 2013: (2) Plaintiff has not
.

engaged in substantial gainful activity since the amended onset date of February 24. 2009: 3)
Plaintiff has the following severe combination of impairments of insulin dependent diabetes.
mellitus, fibroids. chronic back pain syndrome. fibromvalgia. and secondary depression: (4)
Plaintiff does not have ‘an impairment or combination of impairments that meets or medially
equals the severity of one of the listed impairments in 20 C.F.R. Part 404 Subpart P, Appendix.”
(Ti’. 16- 17).
In terms of future employment capacity, the AU further found that: (5) Plaintiff had the
residual functional capacity (“RFC”) to perform sedentary work as defined in 20 CFR
404.1567(a),’ but Plaintiff could never climb ladders, ropes, or scaffolds or crawl; she could

‘Sedentarv work’ encompasses ‘li fting no more than 1 0 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. “Although a
sedentary oh.. involves sitting. a certain amount of walking and standing is often necessary in
carrying out job duties.” 20 C.F.R. § 404. 1 567(a). Standing or walking should generally total no
2

occasionally stoop, kneel, crouch, or climb ramps or stairs; could not reach overhead with either
arm: could only perform work that involved simple instructions and could be learned in one
month or less: and could only perform low stress work, i.e. positions in which work was judged
at the end of the day instead of every 5 or 10 minutes. where there are not a lot ofvork related
decisions and where the routine does not change throughout the day: (6) Plaintiff’ is unable

to

perform any past relevant work as these jobs had requirements that exceeded Plaintiff’s RFC,
including her work as

a waitress, customer service representative,

fountain server, receptionist.

teller or clerk; (7) Plaintiffs job skills do not transfer to other occupations within the residual
functional capacity defined in 20 CFR

§

404.1568, and finally; (8) given Plaintiffs age,

education, work experience, and RFC, she could perform jobs that existed in signiticant numbers
in the national economy, and thus, making Plaintiff not disabled within the meaning ot the Social
Security Act, (Tr. 17-22).
ii.

Plaintiffs Testimony

Plaintiff testified that she had a history of back and shoulder problems dating back to
2003. (Tr. 38). After Plaintiff was involved in a motor vehicle accident in February 2009. she
stopped working as a customer service representative because she suffered from severe hip and
back pain that was affecting her entire body. (Tr. 18, 36). Plaintiffs job as a customer service
representative was her most recent job. (Tr. 34-36). From February 2009 to Ju1 2009, Plaintiff
was under the care ot Robinson Rehabilitation and Weliness Center, in which she received
medical treatment, including chiropractic care, physical therapy, acupuncture, massages and
therapeutic heat. (Tr. 18, 36). Plaintiff also testified that she was temporarily seeing a mental

more than about 2 hours of an 8-hour workday, and sitting should generally total approximately
6 hours of an 8-hour work day. Social Security Ruling (“SSR”) 83-10.

health professional for depression, who prescribed her medication to assist her depression. Jr.
18, 40). Plaintiff claims that because her current medical insurance does not cover mental health
treatment, she is no longer seeing a mental health professional. (Tr. 18, 40-4 1). Nevertheless,
Plaintiff testified that she still has symptoms of depression. (Tr. 18, 4042).
With respect to Plaintiff’s pain, she testified that she could walk maybe one block and
then she had cramps in her lower back and hip pain radiating down her leg. (Fr. 18,46).
Further, Plaintiff had problems sitting due to her significant back and hip pain. Jr. 18, 47).
Specifically, Plaintiff claimed that she could sit for about 30 minutes before getting irritable and
then she had to get up and move around for 5-10 minutes. (Tr. 19,49). Plaintiff testified that the
magnitude of the pain would cause her to lie down during the day and affected her ability to
sleep throughout the night. (Tr. 18-19, 4748). Given Plaintiff’s pain was progressively
worsening and thereby needed outside assistance, Plaintiffs mother moved in with her in April
2010. (Tr. 18, 20, 43). Plaintiff’s mother assisted Plaintiff reach high cabinets, assisted Plaintiff
do her hair, and sometimes assisted Plaintiff get in and out of the bathtub. (Tr. 20,43). In
addition, Plaintiff testified that while food shopping, she always had her mother or a friend assist
her in carrying the grocery bags. (Tr. 18, 4546). Plaintiff also noted that she was able to care
for her daughter during this time based on her ability to drive her daughter, with the assistance of
her mother, to day care. (Tr. 20,4344). As a result Plaintiff was able to accomplish most daily
tasks, but needed assistance from her mother and Mend.
iii.

Medical Evidence

After Plaintiffs 2009 car accident, which increased her back and hip pain, she received
treatment from the Robinson Rehabilitation and Wellness Center from February to July 2009.
(Tr. 19). Although Plaintiff complained of severe left hip and lower back pain and spasms, the
4

results of her bilateral hip magnetic resonance imaging (“MRI”) scans were negative. (Tr. 1 9.
244). Further, the results of a lumbosacral MRI scan showed only minimal disc desiccation
(degeneration) at the [4—5 level but were otherwise normal with no evidence of herniation,
neural compromise or other abnormality. (Tr. 19. 244. 247).

On June 3. 2009, after physically examining Plaintiff. Dr. Erica David concludcd that
even though Plaintiff was diagnosed with chronic low back pain and spinal strain, Plaintiffs gait
was normal, with normal muscle tone in both upper and lower extremities, symmetric reflexes,
and intact sensation. (Tr. 19, 198. 222, 249). Although treating the lower back pain with
medication was discussed during Dr. David’s examination. Plaintiff refused medication at this
time, (Tr, 198, 222, 249). In both December 2009 and January 2010, state agency physician Dr.
Anthony Cirillo examined Plaintilis exeruonal limitations and opined that Plaintiff could lilI 20
pounds occasionally and 10 pounds frequently, could sit for 6 hours and stand and/or walk for up
to 4 hours in an 8-hour day, and could occasionally push and/or pull with her lower extremities.
(Tr. 267, 306). Dr. Cirillo also opined that Plaintiff had unlimited ability to push and/or pull
with her upper extremities, had no limitation in her ability to reach, handle, finger. and feel;
could not crawl or climb ladders, ropes or scaffolds; but could occasionally stoop, kneel, crouch.
and climb ramps or stairs: and could frequently balance. (Tr. 267. 269, 306). Dr. Cirillo further
reported that Plaintiff’ had no visual or environmental limitations. (Tr. 269, 306). State agency
physician, Dr. bros Shahinian, reviewed the record and affirmed Dr. Cirillo’s findings in March
2010. (Tr. 322).
Dr. Mariam Rubbani, who performed an orthopedic consultative examination in January
2010, reported Plaintiff had painful but full range of motion in her hips, shoulders, and cervical
spine. (Tr. 19, 288, 290-91). Despite noting that Plaintiffs lumber spine was lender, I)r.

Rubbani ‘S report indicated that Plaintiff had full strength in her lumber spine. which allowed
Plaintiff to walk at a reasonable pace, as well as change and transfer to and from the examination
table independently. (Id.) Dr. Rubbani’s report also demonstrated Plaintiff had full grip and
pinch strength bilaterally, and could separate papers and fasten buttons. (Tr. 290). While Dr.
Champak Gandhi was Plaintiffs only treating physician during this relevant time, he treated
Plaintiff for insulin dependent diabetes mellitus and fibroid tumors. (Tr. 19, 326-27). According
to Dr. Gandhi’s medical report on August 29, 2011, Plaintiffs pain was not chronic because she
had pain and fatigue only “off and on,” and because Plaintiff was capable of standing and
walking continuously in a work setting. (Tr. 327, 329). Dr. Gandhi also reported that Plaintiff
could lift and carry up to 10 pounds occasionally, and that she had no significant limitations in
performing repetitive reaching. handling. lingering, and lifting. (Tr. 20. 329).
There is conflicting evidence with respect to Plaintiff’s libromvalgia diagnosis. Dr.
Rubbani. the consultative examiner, diagnosed Plaintiff with libromyalgia. l)r. Fadairo Akiabi.
a chiropractor at Robinson Wellness Center. found fibromyalgia as a “symptom.” hut not as a
frrrnai diagnosis. (Tr. 20203).2 After conducting a laboratory test in September 2009. Dr.
Gandhi found an indication of fibrornyalgia based on Plaintiffs elevated sedimentation rate but
did not diagnose Plaintiff as suffering from fibrornyalgia. (Tr. 20, 242, 326-27), Finally. Dr.
David, a medical doctor, did not diagnose Plaintiff with libromyalgia or even treat her lbr ibis
condition, (Tr. 198).

2

Because a chiropractor is not considered an ‘acceptable medical source” who can
establish that a claimant has a medically determinable impairment, the Court does not consider
Dr. Afolabi’s diagnosis. See Hartranft v.
181 F,3d 358, 361 (3d Cir, 1999) (citing 20
C.F.R. § 416.9 13) (Finding “a chiropractor’s opinion is not ‘an acceptable medical source’
entitled to controlling weight.”).
6

In regards to Plaintiffs mental condition, as an initial matter. Plainti Ii did not
mental health professional during most of the relevant period.

see a

e Tr. 1 8). In May 2009. Dr.

Afolabi assessed that Plaintiff was mentally alert and cognizant other surroundings. (Tr. 203).
The following month, Dr. David reported that Plaintiff was a well-developed, well-nourished
female in no acute distress. (Tr. 198). Even Plaintiff herself admitted that she had no difficulty
getting along with others, including authority figures. and did not state any

signilicant limitations

in her activities of daily living as a result of her asserted mental impairment. (‘See 1 25-32).

:\t Li

psychological consultative examination in December 2009. Dr. Marc Friedman reported that
Plaintiff not only had no signs of psychosis, hut also had adequate memory and average
intelligence in light of the fact that Plaintiff spoke clearly using complete sentences, had no
difficulty with abstraction, had adequate eye contract, and made spontaneous comments. (Tr.
274). With respect to Plaintilis

cognitive

abilities. Dr. Freidman noted that Plaintiff was aware

of the date and location, able to recall the current and previous two presidents. able to perform
serial sevens correctly until 86, able to calculate six times $.25. and able to correctly repeat four
digits forward and three digits in reverse. Id. Similarly, in January 2010, l)r, Henry Ruhenstein,
a consultative examiner, reported that Plaintiff was alert, oriented, answered questions in a
reasonable manner and was dressed appropriately for the examination. (Tr. 282).
Moreover, state agency physician Dr. Thomas Yared, who reviewed Plaintiffs records in
January 2010, found Plaintiff’s physical and mental limitations to be no more than mild to
moderate. (See Tr. 292-3 05). In support of his conclusion, Dr. Yared considered Dr. Friedman’s
evaluation, and noted that his findings of Plaintiffs allegedly severe mental condition were
“generally benign” and that Plaintiff demonstrated “good” cognitive functioning, adequate
memory, and full range of allect. (Tr. 305). Dr. Yared further emphasized Plainti us own
7

statements in her functioning report, which noted that her functioning was predominately limited
by her physical condition. (Tr. 305,

Tr. 125-32). In sum, Dr. Yared found that there was no

support in the record illustrating Plaintiff suffered from any persistent or marked limitations, (Fr.
303—05). In May 2010, Dr. Ilerman Huber reviewed the entire record and concluded that l)r.
Yared’s RFC assessment should be affirmed. (Tr. 324).
Ii. STANDARD OF REVIEW
A reviewing court will uphold the Commissioner’s factual decisions if they are supported
by “substantial evidence.” 42 U.S.C.

§ 405(g),

l383(c)(3) Sykes v. Apfek 228 F.3d 259. 262

(3d Cii’. 2000). Substantial evidence is “more than a mere scintilla

.

.

.

but may be less than a

prcpondeianue’ Woody v Secy of Hcalth & Human Servs 859 f 2d 1156 1159 (3d Cii
1988). It “does not mean a large or considerable amount of evidence, but rather such relevant
evidence which, considering the record as a whole, a reasonable person might accept as adequate
to support a conclusion.” Pierce v. Underwood, 487 U.S. 552. 565 (1988) (citation omitted).
Not all evidence is considered “substantial.” For instance:
A single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or Fails to resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it is overwhelmed by other evidence
particularly certain types of evidence (e.g. that offered by treating physicians) or
if it really constitutes not evidence but mere conclusion.
—

—

Wallace

Su’y of Health & human Scivs 722 F 2d 1150 1153 (3d Cii 1983) (quoting gt
,

v. Schweiker. 710 F.2d 110, 114 (3d Cir. 1983)). The AU must make specific findings of fact to
support his ultimate conclusions. Stewart v. See’ y of Health. Educ. & Welfare. 714 F.2d 287.
290 (3d Cir, 1983).
The “substantial evidence standard is a deferential standard of review.” Jones v.
Barnhart. 364 F.3d 501, 503 (3d Cir. 2004). As such, it does not matter if this Court “acting dc
8

novo might have reached a different conclusion” than the Commissioner. Monsour Med. Ctr, v.

1-leckler, 806 F.2d 1185. 1 190-91 (3d Cir. 1986) (quoting Hunter Douglas. Inc. v, NLRB, 8(14
F.2d 808. 812 (3d Cir. 1986)). “The district court.

.

.

is [not] empowered to weigh the evidence

or substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d ii 78,
1182 (3d Cir. 1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984)). A Court must
nevertheless “review the evidence in its totality.” Schonewolfv. Callahan. 972 F.Supp. 277. 284
(D N 1 1997) (citing Daiing v Heckler, 727 F 2d 64 70 (3d Cu 1984) In doing so thc Couit
“must •take into account whatever in the record fairly detracts from its weight.’” Id. (quoting
Willibanks v. Sec’v of Health & Human Servs.. 847 F.2d 30L 303 (6th Cir. 1988)).
To properly review the findings of the AU, the court needs access to the AU’s
reasoning. Accordingly.
Unless the [Commissioner] has analyzed all evidence and has sufficiently
explained the weight he has given to obviously probative exhibits, to say that his
decision is supported by substantial evidence approaches an abdication of the
court’s duty to scrutinize the record as a whole to determine whether the
conclusions reached are rational.
Goher v. Matthews, 574 F.2d 772, 776 (3d Cir. 1 978) (quoting Arnold v. Sec’v of Health. Educ.
&Welfare. 567 F.2d 258, 259 (4th Cir. 1977)). A court must further assess whether the AU.
when confronted with conflicting evidence, “adequately explain[ed] in the record his reasons br
rejecting or discrediting competent evidence.” Ogden v. Bowen. 677 F.Supp. 273. 278 (M.D.
Pa. 1987) (citing Brewsterv. Heckler, 786 F.2d 581 (3d Cir, 1986)). ifthe AU fails to properly
indicate why evidence was rejected, the court is not permitted to determine whether the evidence
was discredited or simply ignored. See Burnett v. Comm’r of Soc. Sec.. 220 F.3d 112. 121 (3d
Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).

9

III. APPLICABLE LAW
a. The Five-step Process
A claimants eligibility for benefits is governed by 42 U.S.C.

§

1 382. A claimant is

considered disabled under the Social Security Act if he or she is unable

to

“engage in 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 he expected to last for a
pcnod ol not less than

[txchc1

months

42 U S C

continuous

423(d)( l)(A) A claimant beais thL

burden of establishing his or her disability, 42 U.S.C.

§ 423(dX5).

To make a disability determination, the Commissioner follows a five-step process
pursuant to 20 C.F.R.

§

4 16.920(a). Under the first step, the Commissioner must determine

whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R.

§

416.920çh).

“Substantial gainful activity” is work that involves significant and productive physical or mental
duties, and is done (or intended) for pa or profit. 20 C.F.R.

§

416.972. If the claimant

establishes that she is not currently engaged in such activity, the Commissioner then determines
whether, under step two, the claimant suffers from a severe impairment or combination of
impairments. 20 C .F.R.

§

41 6.920(a)(4)(ii).

The severe impairment or combination of impairments must “signiticantlv limit[] [a
claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R.

§

416.920(c). The

impairment or combination of impairments “must have lasted or must be expected to last for a
continuous period of at least 1 2 months.” 20 C.F.R.

§ 416.909.

If the Commissioner finds a

severe impairment or combination of impairments, he then proceeds to step three, where he must.
determine whether the claimant’s impairment(s) is equal to or exceeds one of those included in
the Listing of Impairments in Appendix I of the regulations (“Listings”). 20 C.F.R.
10

§

416.920(a)(4)(iii). Upon such a finding, the claimant is presumed to be disabled and is
automatically entitled to benefits. 20 C.F.R.

§ 416.920(d). If, however, the claimant does not

meet this burden, the Commissioner moves to the final two steps.
Step four requires the Commissioner to determine whether the claimant’s RFC
sufficiently allows her to resume her previous work. 20 C.F.R.

§ 416.920(a)(4)(iv). If the

claimant can return to her previous work, then she is not disabled and therefore cannot obtain
benefits. 20 C.F.R.

§ 416.920(e). If, however, the Commissioner determines that the claimant is

unable to return to her prior work, the analysis proceeds to step five. At step five, the burden
shifts to the Commissioner, who must find that the Claimant can perform other work consistent
with her medical impairments, age, education, past work experience and RFC. 20 C.F.R.

§

416.920(g). Should the Commissioner fail to meet this burden, the claimant is entitled to social
security benefits. 20 C.F.R. § 4l6.920(a)(4)(v).
b. The Requirement Of Objective Evidence
Under the Act, disability must be established by objective medical evidcnce. “An
individual shall not be considered to be under a disability unless he furnishes such medical and
other evidence of the existence thereof as the Secretary may require.” 42 U.S.C.

§ 423(d)(5)(A).

Notably, “[a]n individual’s statement as to pain or other symptoms shall not alone be conclusive
evidence of disability as defined in this section.” j. Specifically, a finding that one is disabled
requires:
[M]edical signs and findings, established by medically acceptable 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 and which, when considered with all evidence required to be
furnished under this paragraph. would lead to a conclusion that the individual
is under a disability.
.

.

11

14.

Credibility is a significant factor. When examining the record “the adjudicator must evaluate

the intensity, persistence and limiting effects of the [claimant’sj symptoms to determine the
extent to which the symptoms limit the individuals ability to do basic work activities.” SSR 96
7p. 1996 SSR LEXIS 4. 1996 WL 374186 (July 2. 1996). To do this. the adjudicator must
determine the credibility of the individual’s statements based on consideration of the entire case
record, Id. The requirement for a finding of credibility is found in 20 C.F.R.

§

416.929(c)(4). A

claimant’s sYmptoms, then, may be discredited “unless medical signs or laboratory findings
show that a medically determinable impairment(s) is present.” 20 C.F.R.

§

4 16.929(b): ge

Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
IV. DISCUSSION
a. The AU Correctly Identified Plaintiffs Severe Impairments
Plaintiffs first argument is that AU Lissek erroneously found “Plaintifts depression to
be secondary’ to her other severe impairments” in light of the fact that the credible evidence
showed that Plaintiff suffered “major depressive disorder.” (P1. Br. 15). Plaintiff claims that not
only did AU Lissek fail to articulate any evidentiary basis for characterizing Plaintifis
depression as “secondary,” but also that the AU’s evidentiarv analysis was biased to the extent it
accorded more weight to the state agency review physician’s examination rather than Plaintifis
treating physician. (Id. at 9, 15-16). The AU’s second finding stated that Plaintiff suffered the
following severe impairments: ‘insulin dependent diabetes, mellitus. fibroids. chronic back
syndrome. tibromyalgia and secondary depression.” (Tr. 16). The record stated:
[Plaintiff] has complained of depression and she testified that she was under
treatment for a brief period with a mental professional. However, there is no
record evidence of such. She underwent a psychological consultative examination
with Dr. Friedman who reported no signs of psychosis. Mood and affect were full.
12

pain

(Tr. 16-17. 274). The evidence showed that Plaintiff did not see a mental health profl’ssional
during most of the relevant period. In addition. Plaintiff’s psychological examinations by her
own treating physicians and the state agency review physicians showed no more than mild to
moderate limitations, For instance, even Plaintiffs treating physician, Dr. Gandhi. did not
include depression as a diagnosis. and specifically opined that emotional factors did not
contribute to Plaintiffs lunctional limitations, which is consistent with his opinion that
Plaintiffs symptoms would never interfere with her attention and concentration, (Tr, 326, 33 132). Moreover, Dr. Yared, a state agency review physician, considered Dr. Friedman’s
evaluation and found there was no support in the record that Plaintiffs depression significantly
limited her mental RFC. (Tr. 303-05).
Thus, based on a reasonable reading of the medical record, the AU’s finding of
“secondary depression” rather than “major depressive disorder” at step two of the sequential
evaluation process did not constitute an error by AU Lissek. More importantly. AU hisseR’s
decision did consider ‘depression” as a severe impairment based on the limited range of work
that AU Lisse.k found Plaintiff was capable of performing. Accordingly, based on the
substantial evidence standard of review and viewing the record in totality, the AU properly
listed Plaintiff’s severe impairments.
b. The AU Properly Found Plaintiffs Depression Did Not Meet or Equal one
listed in 20 CFR § 404.1520(d), specifically 12.03 Affective Disorders

Second, Plaintiff argues that AU Lissek erred when holding that Plaintiffs depression
did not meet or medically equal one listed in 20 CFR

§ 404.1520(d). specifically

12.04 Affective

Disorders under 20 CFR PT. 404, Subpt. P, App. 1. (P1. Br. 15-16). In determining the severity
of Plaintiff’s mental impairment, Plaintiff must satisfy either the “paragraph B” or the
1.)

“paragraph C” criteria to establish that her mental impairment meets the criteria under 1 204. In
order to satisfy the “paragraph B” criteria, the mental impairment must result in at least tw o ol
the following: (I) marked restriction ofactivities ofdaily living, (2) marked ditliculties in
maintaining social functioning, (3) marked difficulties in maintaining concentration. persistence.

or pace. or (4) repeated episodes ofdecornpensating. each ofextended duration. A ‘marked”
limitation encompasses an impairment that is more than moderate but less than extreme.
C.F.R.

§

20

404. Under the “paragraph C” criteria, the burden is on Plaintiff to provide:

\ledicallv documented history of a chronic affective disorder of at least 2 years duration
that has caused more than a minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or psychosocial support. and one
of the fbllowing: (I ) repeated episodes of decompensation. each of extended duration: or
(2) [aJ residual disease process that has resulted in such marginal adjustment that even a
minimal increase in mental demands or change in the environment would be predicted to
cause the individual to decompensate; or (3) [c]urrent history of 1 or more years inability
to function outside a highly supportive living arrangement, with an indication of
continued need for such an arrangement
12.04 Affective Disorders under 20 CFR PT. 404, Subpt. P, App. 1. The administrative decision
stated:
In activities of daily living, [Plaintiffj has mild restriction. She lives with her
mother and young daughter and her only limitations regarding daily activities are
associated with pain. She cares for her daughter: she handles her own personal
care; she does occasional house chores; and she handles bills, money, etc.... In
social functioning. [Plaintiff] has mild difficulties, [Plaintiff] is not under any
mental health treatment. She reported that she has no problem getting along with
others and that she gets along with authority figures very well,. .With regard to
concentration, persistence or pace. [Plaintiff] has moderated difficulties... .As for
episodes of decompensation. the claimant has experienced no episodes of
decompensation, which have been of extended duration.. ,Because [Plaintiff’s]
mental impairment does not cause at least two “marked” limitations or one
“marked limitation and “repeated” episodes of decompensation, each of extended
duration, the ‘paragraph B criteria are not satisfied.
.

(Tr. 1 7).

14

These findings are supported by substantial evidence in the administrative record. First.
the AU noted that according to Plaintiffs own testimony, she met with a mental health
professional for only a brief period since February 2009. (Tr. 17-18). Second, the AU properly
accorded significant weight to the assessments provided by both Dr. Friedman and Dr. Yared.
See 20 C.F.R.

§ 404.1527(t):

See also SSR 96-6 (“state agency medical and psychological

consultants are highly qualified physicians and psychologists who are experts in the evaluation
of the medical issues in disability claims under the Act.), The state agency review physicians
found Plaintilis mental limitations were moderately limited at best. (Sçe Tr. 273-75. 303-05).
Specifically, Dr. Friedman found Plaintiff had adequate memory and average intelligence for the
following reasons: (1) Plaintiff was able to speak clearly using complete sentences (2) she had
no difficulty with abstractions; (3) she was able to maintain adequate eve contact; (4) she was
aware of the date and location; (5) she was able to recall the current and previous two Presidents:
(6) she was able to perform serial sevens correctly until 86: (7) she was able to calculate six
times $,25; and (8) repeat 4 digits and 3 digits in reverse. (Tr. 274). After considering Dr.
Friedman’s evaluation and Plaintiffs own statements that her functioning was predominantly
limited by her physical condition, Dr. Yared concluded that Plaintitis mental limitations were
no more than mild to moderate. (Tr. 292-305).
In addition, in light of the fact that Plaintiff contends that her depression has significantly
affected her mental RFC. Plaintiff conceded she had no problem getting along with others and
that she gets along with authority figures very well. (Tr. 1 7. 1 3 1). Moreover, even Dr. Gandhi.
her own treating physician, reported no diagnosis of depression, and specifically noted that
emotional factors did not contribute to Plaintiffs functional limitations. (Tr. 20, 326, 33 1).
Given the thct that Plainti IT has the burden of persuasion in satisfying step three ui the secueniial
15

evaluation process, the Court finds it significant that PlaintilT fai led to identify any particular
depression-related symptom or limitation that was not considered by the AU’s assessment of her
mental RFC limitations. Accordingly, based on the AU’s consideration of PlaintifFs allegations
of depression as well as the objective medical findings, the AU properly found Plaintiff’s
depression is not sufficiently severe to satisfy one of’ the impairments listed in 20 CFR PT. 404.
Subpt. P, App. 1.
c. The AU properly found Plaintiffs Physical Impairments I)id Not Prohibit
Plaintiff from Performing Sedentary Work
Third, Plaintiff asserts that AU Lissek erred when holding that she was capable of
performing sedentary work. (P1. Br. 13.). Specifically. Plaintiff argues that the AU erred
because AU Lissek does not provide any explanation as to how her chronic back pain and her
other severe

impairments

would restrict her

from

performing

sedentary work:

Plaintiff’ can perform sedentary work as defined in the regulations (sit 0 hours,
stand 2 hours, lift up to 1 0 lbs.). Okay why? How can Plainti fT. previously found
to suffer “severe’ chronic back pain syndrome. sit corn tortabi for 6 hours a day
while maintaining a competitive pace and concentrating on her labors. Where in
the decision is this explained’? Next, we are told that Plaintiff can never climb
ladders, ropes or scaffolds. What sedentary job requires the climbing of ladders,
ropes or scaffolds? Next, we are told Plaintiff can never crawl but she can kneel
and crouch 2¼ hours a day (occasionally). How in the world is this possible and
does the AU explain the differences? How can an individual with chronic back
pain which limits her to sedentary work perform 2 ¼ hours of kneeling, or
crouching? And if she can, why can’t she crawl?

(P1. Br. 1 3—14). After reviewing the record. AU Lissek found “[Plaintiffj has the RiC to
perform sedentary work as defined in 20 C.F.R.

§

404.1567(a) except she can never climb

ladders, ropes or scaffolds or crawl; she can occasionally climb ramps or stairs. stoop. kneel, or
crouch; and she cannot reach overhead with either arm. (Tr. 17-18). After considering
Plaintiffs medical history regarding her severe back pain, ALT Lissek found the ohective
16

medical evidence was inconsistent with the Plaintiff’s allegations that she
suffered from severe
back pain. (Tr. 19). AU Lissek noted that even though Plaintiff was involved in a motor
vehicle accident in February 2009, the MRl scans and x-rays of Plaintiffs lumbosacral,
thoracic
and cervical spine show at most minimal damage that was far from debilitating. (Tr. 1 8- 1 9. 244.
247). Additionally, AU Lissek analyzed Plaintiffs physical examination findings, which further
suggested the severity of Plaintiffs back pain was minimal. (See. Tr. 19, 198, 249. 267, 269,
288. 290-91, 306). Specifically, the ALT noted that the opinions of the state agency review

physicians were consistent with the opinions of the other physicians to the extent they agreed
that Plaintiff remained capable of at least some work activity. (Yr. 2 1). Based on the record as a
whole, the Court finds there is substantial evidence to support that AU

‘5

finding that Plaintiffs

physical limitations showed that she is capable of performing sedentary work.
With respect to Plaintiffs other severe impairments. AU Lissek noted that it was
consultative examiner Dr. Rubbani who provided the fihromvalgia diagnosis. and not Plaintiff’s
treating physicians, which included Dr. Gandhi and Dr. David. (Tr. 1 9). Tn fact, neither Dr.
Gandhi nor Dr. David treated Plaintiff for fibromyalgia. The C’ourt further notes that because it
was Plaintiffs burden to show functional limitations as well as a diagnosis. the “Commissioner
was entitled to rely not only on what the record says, but also on what it does not say.” See Lane

v. Comrnr of Soc. Sec., 100 Fed. Appx. 90, 95-96 (3d Cir. 2004) (Absent evidence that a
claimant has any work-related functional limitations, the claimant cannot establish disability
under the Social Security Act... [because the burden is on] [t]he claimant [to] show not just
diagnosis. but functional limitations preventing peiforrnaice of substantial gainful activity.”).
Because Plaintiff failed to identify any medical evidence or assert any self-reported complaints
that showed additional functional limitations, Plaintiff has not met her burden.
17

in addition, Plaintiff contends that the AU erred when incorporating additional
limitations into Plaintiffs RFC to perform sedentary work because the AU failed to provide any
justilication as to how these limitations would realistically affect her ability to perform sedentary
work. As an initial matter, these limitations are included in the RFC determination because :\l
Lissek was mindful of Plaintiffs painful symptoms and thereb wanted to limit the range of
work that she was capable of performing. In addition, the AU’s finding that ‘she cannot reach
overhead with either arm” is consistent with Plaintiffs testimony that she had difficulty reaching
overhead and reaching cabinets in her home. (Tr. 18, 43. 50, 125). Moreover, although Plaintiff
disputes the unrealistic nature of the AU’s finding that Plaintiff was limited to “low stress
work, there is supportmg case law cited by the Commissioner that found no error in similar
definitions of “low stress” work. See e.g., Hicks v. Commr of Soc. Sec., No. 09-2191. 2010
3
U.S. Dist. LEXIS 59990. at * 15 (D.N.J. June 16, 2010) (Affirming AU decision in which low
stress work encompassed “only an occasional change in the work setting during the work day
and only an occasional change in decisionmaking”); Battiato-Musson v. Cornmr of Soc. Sec.,
No. 08-3531. 2009 U.S. Dist. LEXIS 63228. at *37 (D.N.J. July 23, 2009) (Affirming AU
decision in which the court defined low stress work as “only occasional

contact

with supervisors.

co—workers, and the public, and which allowed three breaks during the workday.). Given that
AU Lissek’s RFC determination reflected a reasonable assessment of the record of Plaintiff’s
physical and mental limitations, the Court finds Plaintiffs limitations were supported by
substantial evidence.

The Court notes that Plaintiff did not file a response brief challenging the
Commissioner’s cited case law. which were consistent with the “low stress” definition applied by
AU Lissek.
18

d. The AlA Properly Relied Upon Vocational Expert Testimony
Lastly, Plaintiff argues that “the hypothetical questions to the VIE [borel little if any
resemblance to the medical evidence.” (P1. Br. 10). In Rutherford v. Barnhart, 399 F,3d 546, 554
(3d Cir. 2005), the Third Circuit ruled that an ALJ must accurately convey to the VE all of a
c1aimants credibly established limitations.” (emphasis added). The record showed that based on
the hypothetical questions posed to VIE, the VIE concluded that:
[Plaintiffi would be able to perform the requirements of representative occupations such
as: (1) addresser...of which there are 4—such jobs locally and 10,0000 such jobs
nationally; (2) patcher. which there arc 200 such jobs locally and 11 .00() such jobs
nationally; (3) final assembler. ,which there are 800 such jobs locally and 1 8,000 such
jobs nationally.
.

.

.

(Tr, 22; see also Tr, i72). In this case, the AU’s hypothetical questions were proper because
they adequately considered Plaintiffs physical and mental limitations. Accordingly, there is
substantial evidence that could lead a reasonable person to conclude that Plaintiff is capable of
making a successful adjustment to other work that exists in significant numbers in the national
economy,
V. CONCLUSION
For the reasons stated above, the final decision entered by AU Lissek is affirmed. An
appropriate order will accompany this opinion.

Date:
Original:
cc:

October 0i3
Clerks Office
Hon. James B. Clark. U.S.M.J.
All Counsel of Record
File

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