RINI v. COMMISSIONER OF SOCIAL SECURITY

Filing 22

OPINION. Signed by Judge Susan D. Wigenton on 3/24/14. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOHNNA RINI

Civil Action No. 2:12-CV-06362 (SDW)
Plaintiff,

v.

OPINION

COMMISSIONER OF SOCIAL SECURITY
Defendant.

March 24, 2014

Wigenton, District Judge.
Before the Court is Plaintiff Johnna Rini’s (“Rini” or “Plaintiff”) appeal on the final
administrative decision of the Commissioner of Social Security (“Commissioner”), with respect
to Administrative Law Judge Leonard Olarsch’s (“ALJ Olarsch”) denial of Plaintiff’s claim for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II
and XVI, respectively, of the Social Security Act (the “Act”). Plaintiff, pursuant to 42 U.S.C. §
405(g), seeks review of a determination of the Commissioner, which denied Plaintiff’s
applications for DIB and SSI under the Act.
This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). Venue is proper under 28 U.S.C. § 1391(b).
This appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure
78.

1

For the reasons set forth herein, this Court REMANDS the ALJ’s Decision dated April
13, 2011 (“ALJ’s Decision”).
BACKGROUND AND PROCEDURAL HISTORY
a. Education and Work History
Plaintiff was born on August 1, 1961. (R. at 13, 205.) She has a high school education
and has worked previously as a customer service representative, secretary, waitress and cashier
at several different businesses. (R. at 13, 221.) Plaintiff maintained two jobs in customer service,
the longest with Gussco Manufacturing Co. from March 1999 to January 2003. (R. at 215.)
Plaintiff’s Disability Report Form SSA-3368 provides that the position with Gussco
Manufacturing Co. required her to “answer phones, take folder orders, troubleshoot for
customers and assist[] the manager.” (R. at 215.) The performance of her duties required her to
walk for approximately one hour, stand one hour, sit six hours per day, and “write, type or
handle small objects” for six hours per day. (R. at 215-16.) The heaviest weight and most
frequently lifted weight was less than 10 lbs. (R. at 216.)
In one work history, Rini indicated that she “answer[ed the] phone,” completed
“computer work,” “retrieve[d] stock,” “inventory,” and lifted and carried “box[es] of folders
from the back room to desk almost every day.” (R. at 222.) However, on the Form SSA-3369
Rini noted that she had to walk for approximately two hours, stand one hour, and was able to sit
only four hours daily. (R. at 222.) She also described that she had to stoop for approximately
one hour per day and “write, type or handle small objects” for only two hours per day. Lastly,
she stated that although the most frequently lifted weight was less than 10 lbs. per day, the
heaviest weight she lifted was around 20 lbs. (R. at 222.)

2

Plaintiff last worked in February 2006. (R. at 58-59.) Rini identifies July 19, 2006 as the
alleged onset date of her disability due to frequent asthma attacks, and being pregnant at the
time, pregnancy-induced heart failure. (R. at 60-63.)
b. Medical History and Treatment
On July 1, 2008, Rini filed an application for DIB. (R. at 21.) On July 19, 2008, Rini
also filed an application for SSI benefits (Id.). In both the DIB and SSI applications, Plaintiff
alleged her disability began on or around July 19, 2006. (Id.) Rini alleged that she suffers from
congestive heart failure, chronic obstructive pulmonary disease (“COPD”), asthma, and a leaking
heart valve. (R. at 23, 214.)
On October 28, 2010, Plaintiff testified about her pulmonary and cardiovascular
problems. Regarding her pulmonary issues, she claimed, among other things, that she sometimes
had to sleep sitting up, always had to carry multiple inhalers with her, had trouble walking more
than the length of half-a-block before having to sit down for approximately ten minutes, and that
she experienced constant shortness of breath on exertion.

(R. at. 60-63.)

As to her

cardiovascular symptoms, she stated that she suffered from chest pains resulting in shortness of
breath and that her medications induced fatigue and affected her memory. (Id.) Regarding her
ability to work due to these issues, Plaintiff testified that she thought insomnia would interfere
with her ability to perform during the day and that, due to her trouble breathing, she did not think
she could do a sedentary job full-time. (Id.)
The record reflects that Plaintiff was able to care for her child, did light cleaning daily
(including laundry) without the need of assistance, washed dishes, and prepared meals for
approximately 30 minutes daily. (R. at 229, 231, 250.) Plaintiff spent approximately two hours
each week shopping for clothes and food, and went outside three to four days per week. (R. at

3

231-32.) Plaintiff continued to smoke daily, which at times amounted to two packs per day. (R.
at 67, 335, 391.)
On February 4, 2006, approximately five months before Plaintiff’s alleged onset date,
Plaintiff was transported by emergency services to Hollywood Memorial Regional Hospital
(“HMRH”) with symptoms of an asthma attack and shortness of breath. She was treated with
Albuterol 2.5 milligrams (mg) mixed with Atrovent 0.5 mg. (R. at 281-82.) On February 15,
2006, emergency services were called again and Plaintiff was given breathing treatments before
being transported to HMRH. (R. at 286-89.) The record reflects that Plaintiff did not have a
nebulizer at the time of these pulmonary events. (R. at 297.)
On August 17, 2006, Plaintiff was admitted to HMRH with symptoms that presented as
asthma exacerbation and hyperglycemia. (R. at 299-302.) The record indicates that Plaintiff had
“[run] out of her inhalation medication” at time of admission. (R. at 301.) On September 8,
2006, Plaintiff was admitted to HMRH and diagnosed with dyspnea and asthma, treated with
Albuterol and Atrovent nebulizer treatments, and given prescriptions for Coreg, Lasix, Albuterol,
Singulair, Altace and Klorcan. (R. at 303-07.) On September 9, 2006, Plaintiff presented at
HMRH with complaints of shortness of breath, which she suffered for around one hour. (R. at
311-12.)
On September 20, 2006, Plaintiff was admitted at North Shore Medical Center in Miami,
Florida with shortness of breath.

(R. at 314)

She was diagnosed with exacerbation of

obstructive chronic bronchitis and prescribed: Coreg, Lasix, Albuterol nebulizer, Giprofloxacin
500mg daily, Medrol Dosepak as directed, and Albuterol MDI with two puffs four times daily.
(R. at 313-29.)

4

Starting September 22, 2008, Plaintiff attended monthly visits with her treating physician,
Dr. Francis Molinari (“Dr. Molinari”). On September 30, 2008 and October 21, 2008, Dr.
Leonard Savino (“Dr. Savino”) also examined Plaintiff and diagnosed her with “supposed
cardiomyopathy,” “possible improved [chronic heart failure],” and “hypertension;” but Dr.
Savino specifically noted that there was “no evidence of any residual cardiomyopathy” and that
Plaintiff had “relatively stable possible hypertensive disease.” (R. at 395-96.) On January 20,
2009, an echocardiogram read by Dr. James Quinn showed moderate global left ventricular
dysfunction with an ejection fraction of 44%. (R. at 399.) Further, Plaintiff’s chest x-ray was
normal and the echocardiogram indicated that Plaintiff’s aortic, mitral, tricuspid, and pulmonic
valves opened normally. (R. at 360, 371, 383.)
On February 24, 2009, Dr. Rambhai Patel (“Dr. Patel”), at request of the Commissioner,
examined Plaintiff who complained of hypertension, spots in her eyes, dizziness three to four
times per week, and chest pain. (R. at 334-36.) Plaintiff’s blood pressure was within normal
limits, she was not in acute distress, and she had a regular sinus rhythm. (R. at 335.) An
examination of the lungs presented diminished breath sounds, and Dr. Patel diagnosed Plaintiff
with “chronic asthma,” “hypertension,” “atypical chest pain by history,” and the “possibility of
hypertension cardiovascular disease [could not] be ruled out.” (R. at 334-36.)
On May 28, 2009, Plaintiff visited Dr. Molinari and complained of dizzy spells and stated
she awoke on the floor after a bout of unconsciousness. (R. at 423.) She complained of swelling
of her hands as well as chest and heart palpitations. (Id.) Dr. Molinari examined her and found
that Rini’s lungs were clear, breath sounds were normal, and she had a regular heart rate. (Id.)
Dr. Molinari completed two Medical Report forms at the request of the State Division of
Disability Services dated January 23, 2009 and June 2, 2009. Dr. Molinari’s January 23, 2009

5

report noted that Plaintiff had shortness of breath on exertion, a history of congestive heart
failure, and an ejection fraction of 44% with ventricular dysfunction. (R. at 330-33.) In the June
2, 2009 report, Dr. Molinari diagnosed her with asthma, hyper-cholesterolemia, and
hypertension. (R. at 362-67.) He reported that from the his first examination up and to the time
of writing the report, physical findings of Plaintiff included bilateral wheezing, shortness of
breath with minimal exertion, daily chest wall pressure (usually lasting for 20 minutes, radiating
to her tongue and to the side of her face), bilateral grate III/IV symptoms radiating from the
sternum, chronic heart failure induced by her pregnancy in 2006, and continued symptoms of
palpitations, occasional chest tightness, and increased fatigue. (Id.)
On June 5, 2009, Dr. Fadi N. Chaaban examined Plaintiff and diagnosed her with a
history of postpartum cardiomyopathy, hypertension, and COPD with wheezing. (R. at 401-02.)
On September 3, 2009, Plaintiff reported to Dr. Molinari that she was suffering from
fatigue and somnolence. (R. at 425-26.) On October 2, 2009, upon complaints of shortness of
breath, Dr. Young I. Jo diagnosed Plaintiff’s condition as COPD with an asthmatic component,
but noted her chest was clear and her heart was regular. (R. at 391.) An October 16, 2009
echocardiogram was also normal. (R. at 398.) A subsequent echocardiogram taken almost one
year later on September 3, 2010, showed borderline left ventricular systolic function, normal left
atrial pressure, an ejection fraction of 45-50%, and no valve dysfunction. (R. at 406.) A
September 18, 2010 stress test was normal, with an ejection fraction of 64%. (R. at 394.)
Further, on the same day, a Negative Perfusion Imaging and ECG test were performed for the
evaluation of ischemia, resulting in a negative stress ECG with no evidence of ischemia. (R. at
400, 403.)

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On November 1, 2010, Dr. Molinari noted that Plaintiff complained of back pain, and
assessed lower lumbar sacral spine pain and paraspinal muscle strain. (R. at 442, 446.) On
November 2, 2010, Dr. Bart De Gregorio evaluated Plaintiff and stated that while her ejection
fraction was borderline, it did not evidence impaired functioning. (R. at 380.)
It should be noted that, although Plaintiff describes in great detail the many times she
presented to Dr. Molinari with various symptoms demonstrating her disability or side-effects
from prescriptions, Dr. Molinari stated after examinations from June 2009 to November 2010
that Plaintiff’s lungs were clear, breath sounds were normal, and she had a regular heart rate on
eight different occasions over a one and a half year period of time. (See R. at 424, 427-28, 431,
433, 435, 439, 443.) Specifically, on August 23, 2010, Dr. Molinari noted that “to present there
are no tech reports, cardiology reports, or pulmonary reports to substantiate Plaintiff’s
disability.” (R. at 438.)
b. Medical Assessment of Ability to Work
On March 4, 2009, Dr. Mohammed Rizwan (“Dr. Rizwan”), a non-examining state
medical consultant, assessed Plaintiff. (See Physical Residual Functional Capacity Assessment
form, R. 350.) He stated that Plaintiff had the ability to perform a range of light sedentary work,
and limited her ability against occasionally climbing ramps, stairs, ladders, ropes and scaffolds.
(R. at 350-57.)
In Dr. Molinari’s June 2, 2009 report, Dr. Molinari limited Plaintiff’s ability to lift and
carry to a maximum of 10 pounds. (R. at 362-67.) He also estimated that Plaintiff could stand
and/or walk for less than two hours per day, and sit for up to six hours per day. (Id.) On a
prescription blank dated October 26, 2009, Dr. Molinari summarily stated that Plaintiff was
unable to work from July 19, 2006. (R. at 369.) On November 22, 2011, Dr. Molinari assessed

7

Plaintiff’s disability over the previous year. (See State of New Jersey Welfare form, R. 445.) He
diagnosed her with intrinsic asthma, COPD, and hyperlipidemia, and found that she could not lift
over 20 pounds, and limited her from climbing, stooping and lifting. (R. at 445-46.)

He

indicated on a State of New Jersey Welfare form, that in his opinion, Plaintiff could not work
and is a likely candidate for SSI benefits. (R. at 445-46.)
d. The ALJ’s Decision
On July 21, 2008, Rini filed a Title II “application for a period of disability and disability
insurance benefits.” (R. at 21.) On July 24, 2008, Rini also filed a Title XVI “application for
supplemental security income.” (Id.) Plaintiff’s applications were initially denied and then
denied again on July 17, 2009 upon reconsideration. (Id.)

On August 14, 2009, Plaintiff

requested a hearing before an administrative law judge. (Id.) Two hearings were held: the first
on October 28, 2010 and a supplemental hearing was held on April 14, 2011. (R. at 21, 31-51,
52-87.)
On April 25, 2011, ALJ Olarsch issued the ALJ Decision, which stated that “based on the
application for a period of disability and disability insurance benefits… the claimant is not
disabled under sections 216(i) and 223(d) of the Social Security Act.” (R. at 26.) Further, ALJ
Olarsch concluded that “based on the application for supplemental security income… the
claimant is not disabled under section 1614(a)(3)(A) of the Social Security Act.” (Id.) After
consideration of Plaintiff’s age, education, work experience, and residual functional capacity
(“RFC”), ALJ Olarsch held that since “claimant reports that her work as a customer service
representative required no more than a sedentary residual functional capacity, both as the
claimant actually performed this work, and as this work is generally performed in the national
economy... [c]onsequently, in comparing the claimant’s [RFC] with the physical and mental

8

demands of this work, the undersigned finds that the claimant is able to perform it as actually and
generally performed.” (R. at 21.)
On May 4, 2011, Plaintiff submitted a request for Appeals Council review, which was
denied on August 13, 2012. (R. at 16-17, 1-5.) On October 10, 2012, Plaintiff filed the instant
matter before this Court. (Compl.) Plaintiff now “asserts that the Commissioner’s decision is
not based on substantial evidence as required by 42 U.S.C. § 405(g).” (Pl.’s Br. at 1.)
Additionally, Plaintiff also “contends that the Commissioner erred as a matter of law in denying
her claim for Social Security and Supplemental Income disability benefits ….” (Pl.’s Br. at 1.)
LEGAL STANDARD
This Court exercises plenary review of all legal issues on an appeal of a decision by the
Commissioner of Social Security. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). This Court’s
review of the ALJ’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, 565 (1988) (internal quotations omitted).
Substantial evidence is “less than a preponderance of the evidence, but ‘more than a mere
scintilla’; it is ‘such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’” 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 factual record is adequately developed, “‘the possibility of drawing two

9

inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Daniels v. Astrue, No. 4:08-cv-1676, 2009 WL
1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966)). “The ALJ’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). This Court is required to give deference to the
ALJ’s findings if supported by substantial evidence. Scott v. Astrue, 297 F. App’x. 126, 128 (3d
Cir. 2008). Nonetheless, “where there is conflicting evidence, the ALJ must explain which
evidence he accepts and which he rejects, and the reasons for that determination.” Cruz, 244 F.
App’x. at 479 (citing Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)).
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) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976)). Indeed, 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).
DISCUSSION
For purposes of SSI benefits, a person is considered disabled if she can demonstrate an
inability “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. §

10

423(d)(1)(A). A medically determinable physical or mental impairment “is 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).
A claimant will be found disabled “only if [her] physical or mental impairment or
impairments are of such severity that [s]he is not only unable to do [her] previous work but
cannot, considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether such work
exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for
[her], or whether [s]he would be hired if [s]he applied for work.” 42 U.S.C. § 423(d)(2)(A).
Substantial gainful activity is work that involves significant physical or mental activities and is
done for pay or profit. See 20 C.F.R. § 416.972(a)-(b) (2012). “‘[W]ork which exists in the
national economy’ means work which exists in significant numbers either in the region where
such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A).
A five-step sequential analysis is used to determine whether a claimant is disabled as
defined under the Act. 20 C.F.R. § 404.1520(a)(1). If a claimant is found to be disabled or not
disabled at any of the five steps, the analysis does not proceed to the remaining steps. 20 C.F.R.
§ 404.1520(a)(4). In the first step, the ALJ considers the claimant’s work activity, if any. 20
C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in substantial gainful activity, she is not
disabled. Id. At the second step, the ALJ considers the medical severity of the claimant’s
impairment or combination of impairments that is expected to result in death, or has lasted or is
expected to last for a continuous period of at least 12 months. 20 C.F.R. § 404.1529(a)(4)(ii). If
the claimant’s impairment does not, then she is not disabled. Id. At the third step, the ALJ
considers the medical severity of the claimant’s impairment or combination thereof. 20 C.F.R. §

11

404.1520(a)(4)(iii). If the claimant has an impairment that meets or equals one of the listings in
the Code of Federal Regulations and meets the duration requirement, the claimant will be found
disabled. Id. If the claimant is not found to be disabled, the ALJ moves to the fourth step, in
which the ALJ considers the claimant’s RFC and past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant is deemed fit to perform his or her past relevant work, the
claimant is not disabled. Id. Otherwise, the ALJ moves on to the fifth step. At this final step, the
burden shifts to the Commissioner to demonstrate, using the claimant’s RFC, age, education, and
work experience that the claimant can perform other work activities that exist in significant
numbers in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If she is incapable, a finding
of disability will be entered. Id. However, if the claimant can perform other work, she will be
found not disabled. Id.
a. Step One
At step one, if the ALJ determines that plaintiff is engaged in “substantial gainful
activity,” disability benefits are denied. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing
20 C.F.R. §§ 404.1520(b), 416.920(b)).
In the instant matter, ALJ Olarsch found that Plaintiff “has not engaged in substantial
gainful activity since July 19, 2006, the alleged onset date.” (R. at 23.) Therefore, the ALJ
proceeded to the second step.
b. Step Two
At step two, the ALJ examines whether the claimant has a medically determinable
impairment or combination of impairments that are “severe.” 20 C.F.R. § 416.929. The ALJ also
considers all symptoms to the extent “they can reasonably be accepted as consistent with the
medical evidence, and other evidence.” Id.

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In the instant matter, ALJ Olarsch found that Plaintiff “has the following severe
impairments: congestive heart failure, chronic obstructive pulmonary disease and asthma.” (R. at
23.) As a result, he proceeded to step three of the sequential analysis.
c. Step Three
At step three, “the ALJ must compare the claimant’s medical evidence to a list of
impairments presumed severe enough to negate any gainful work.” Caruso v. Comm’r of Soc.
Sec., 99 F. Appx. 376, 279 (3d Cir. 2004). If plaintiff’s impairments “meet or equal” a listing,
plaintiff is considered disabled and will be awarded benefits. Knepp v. Apfel, 204 F.3d 78, 85
(3d Cir. 2000).
Here, ALJ Olarsch analyzed Plaintiff’s impairments under the criteria of listings 3.02,
3.02A, 4.02, 4.03, and 4.04. (R. at 23-24.) Under section 3.00 of the Listing of Impairments
titled “Respiratory System,” an evaluation of “[r]espiratory disorders along with any associated
impairment(s) must be established by medical evidence. Evidence must be provided in sufficient
detail to permit an independent reviewer to evaluate the severity of the impairment.” 20 C.F.R.
Pt. 4, Subpt. P, App. 1 § 3.00.
ALJ Olarsch considered both Plaintiff’s asthma and COPD symptoms. (R. at 23-24.)
Chronic asthma is evaluated under the same metrics as COPD. See 20 C.F.R. Pt. 4, Subpt. P,
App. 1 § 3.03. For asthma attacks, which are episodic as opposed to chronic, they must occur
“in spite of prescribed treatment and requiring physician intervention, occurring at least once
every 2 months or at least six times a year.” 20 C.F.R. Pt. 4, Subpt. P, App. 1 §§ 3.00(C),
3.03(B).

ALJ Olarsch, utilizing the grids provided in the regulations, determined that the

Plaintiff’s asthma did “not rise to the level of meeting the [COPD] criteria of 3.02A, with the
attendant FEV values, or meet[] the frequency and severity of asthma attacks with the requisite

13

physician intervention or in-patient hospitalization during a consecutive 12-month period.” (R.
at 24.) Regarding Plaintiff’s COPD, ALJ Olarsch held that Plaintiff’s “chronic pulmonary
insufficiency did not correspond to the appropriate FEV, DLCO, PO2, PCO2 or FVC values of
listing 3.02.” (Id.)
ALJ Olarsch also held that Plaintiff’s “heart disease does not satisfy the requirements of
4.03, 4.02 [Chronic Heart Failure] or 4.04 [Ischemic Heart Disease] given that there is no
supporting evidence regarding the required severity of ischemic heart disease, coronary artery
disease or chronic heart failure.” (Id.) As a result, ALJ Olarsch found that Plaintiff “does not
have an impairment or combination of impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1” to warrant a finding of disability
(R. at 23.)
When a plaintiff’s impairment(s) do not meet or equal the listed impairments, the ALJ
must assess the claimant’s “[RFC] based on all the relevant medical and other evidence in [the
plaintiff’s] record . . . .” 20 C.F.R. § 416.920(e). In assessing the plaintiff’s RFC, the ALJ
considers the plaintiff’s “ability to meet the physical, mental, sensory, and other requirements of
work . . . .” 20 C.F.R. § 404.1545(a)(4). The RFC assessment is then used at the fourth step of
the sequential evaluation process to determine if the claimant can perform his or her past relevant
work and at the fifth step “to determine if [the claimant] can adjust to other work.” 20 C.F.R. §
416.920(e).
1. Medical Evidence
Great weight should be accorded to a treating physician’s reports, “especially ‘when their
opinions reflect expert judgment based on a continuing observation of the patient’s condition
over a prolonged period of time.’” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting

14

Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)). However, “[a]n ALJ may reject a
treating physician’s opinion . . . on the basis of contradictory medical evidence” so long as he
provides reasons for his decision. Id. (citing Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir.
1985)).
In the instant matter, ALJ Olarsch found that “the claimant has the [RFC] to perform the
full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b).” (R. at 24.) Light
work is defined as:
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone can do
light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for long periods of time.

20 C.F.R. 404.1567(b); 416.967(b). In reaching this conclusion, ALJ Olarsch stated that he
considered “all symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence,” including opinion evidence.
(R. at 24.)
ALJ Olarsch followed a two-step process where he determined and/or evaluated “whether
there is an underlying medically determinable physical or mental impairment(s) . . . that could
reasonably be expected to produce the claimant’s pain or other symptoms” and “the intensity,
persistence, and limiting effects of the claimant’s symptoms to determine the extent to which
they limit the claimant’s functioning.” (R. at 24.)

If the statements about the “intensity,

persistence, or functionally limiting effects of pain or other symptoms are not substantiated by

15

objective medical evidence, the [ALJ] must make a finding on the credibility of the statements
based on a consideration of the entire case record. (R. at 24); see 42 U.S.C. § 423(d)(5)(A); 20
C.F.R. § 404.1529(b).
ALJ Olarsch held that Plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms….”

(R. at 24.)

He noted that multiple

echocardiograms and a myocardial perfusion imaging report presented that Plaintiff suffered
from a “mild impairment,” including an “ejection fraction of 64%.” (R. at 25.) Further, ALJ
Olarsch noted that diagnostic findings demonstrated mild pulmonary limitations. (Id.)
2. Plaintiff’s Credibility
“Allegations of pain and other subjective symptoms must be supported by objective
medical evidence.” Hartranft, 181 F.3d at 362 (citing 20 C.F.R. § 404.1529).

Section

404.1529(a) provides that “statements about your pain or other symptoms will not alone establish
that you are disabled.” 20 C.F.R. § 404.1529(a). The ALJ must weigh the medical evidence to
determine whether the claimant’s alleged limitations “can reasonably be accepted as consistent
with the medical . . . evidence.” Id.; see also Hartranft, 181 F.3d at 362 (“[T]his obviously
requires the ALJ to determine the extent to which a claimant is accurately stating the degree of
pain or the extent to which he or she is disabled by it.”).
In addition to the objective medical evidence, the ALJ considers other factors in assessing
the individual’s subjective symptoms, such as: the claimant’s daily activities, the type of
medication taken to treat the symptoms and its effectiveness, other treatment a claimant has
received for relief of symptoms, and other factors concerning limitations and restrictions due to
the alleged symptoms. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii). A claimant’s complaints of pain
should be given “great weight” only when supported by objective medical evidence, but may be

16

disregarded if contrary medical evidence exists. Mason v. Shalala, 994 F.2d 1058, 1067-68 (3d
Cir. 1993) (citations omitted).
Here, ALJ Olarsch found that although Plaintiff’s “impairments could reasonably be
expected to cause the alleged symptoms,” he concluded that Plaintiff’s “statements concerning
the intensity, persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the [RFC] assessment.” (R. at 24.) ALJ Olarsch gave weight to the
testimony of Dr. Gerald Galst (“Dr. Galst”), an impartial medical expert, and found him credible
and agreed that Plaintiff’s “cardiac and pulmonary impairments do not meet [or] equal any
listing, allow for a light [RFC].” (R. at 24-25.) ALJ Olarsch specifically found it significant and
credible when Dr. Galst testified that Plaintiff’s cardiac function “has improved to the point
where it is essentially normal.” (R. at 25.)
ALJ Olarsch held that indications of mild impairments were “unremarkable,” and noted
that a November 2012 letter from a physician found that the ejection fraction is not felt and did
not impair his functioning and that Plaintiff is “not disabled from a cardiovascular perspective.”
(R. at 25.) Further, ALJ Olarsch reviewed Dr. Molinari’s June 2, 2009 medical report and noted
that although it recommended a “sedentary” RFC, he found it “inconsistent” given her
symptoms, and specifically, given the medical findings that Plaintiff suffered from “moderate
global ventricle dysfunction, normal chest x-ray findings, and essentially subjective complaints
of palpitations, shortness of breath and fatigue.” (Id.) Moreover, ALJ Olarsch recognized that
Dr. Molinari’s November 2010 examination indicated a light RFC limitation, which was
consistent with the rest of the medical evidence. (Id.)
To support his finding for an RFC to perform “light work” ALJ Olarsch relied on reports
demonstrating mildly impaired (or essentially improved to normal) cardiac functionality, a “clear

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chest and mild pulmonary limitations” with normal chest x-ray results, and “no
neuromusculoskeletal or neurological complaints or functional limitations. (Id.) He also noted
that Plaintiff continues to smoke regardless of her COPD. (Id.) Lastly, ALJ Olarsch noted the
Plaintiff’s reported activities of daily living. (Id.) ALJ Olarsch pointed out that Plaintiff reports
that she maintains daily living consistent with a light work RFC, including “caring for her twoyear-old son, cleaning, washing dishes, preparing meals, and shopping.” (R. at 26.)
Plaintiff argues that ALJ Olarsch failed to explore and consider the side effects of her
medication as he was required to do. See Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433
(3rd Cir. 1999). The record indicates several complaints of chest pain, fatigue, dizziness and
palpitations, among others; and ALJ Olarsch should have considered these side effects. (See R.
at 420, 421, 424, 426.)
d. Step Four
If the ALJ is unable to make a determination at the first three steps of the sequential
analysis, at step four the ALJ must determine whether the plaintiff has the RFC to perform her
past relevant work experience. 20 C.F.R. § 404.1520(f). If the ALJ finds that plaintiff can still
do the kind of work plaintiff previously engaged in, plaintiff is not disabled. Id.
Here, ALJ Olarsch determined that Plaintiff is “capable of performing past relevant work
as a customer service representative... [and t]his work does not require the performance of workrelated activities precluded by claimant’s [RFC].” (R. at 26.) ALJ Olarsch determined that her
work as a customer service representative “required no more than a sedentary [RFC,]” and this is
congruent with how Plaintiff “actually performed this work, and as this work is generally
performed in the national economy.” (R. at 26.)

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However, ALJ Olarsch did not fully address Plaintiff’s limitations in the ALJ’s Decision
and their impact on Plaintiff’s past relevant work. He should clarify which material in the record
was relied upon to support his finding for an RFC to perform “light work”, and specify how he
reached the conclusion that Plaintiff is able to perform past relevant work as a customer service
representative.

ALJ Olarsch stated he did not find the treating physician’s findings well-

rationalized or supported by the record, but he should also clarify what materials and opinions he
relied on for his reasoning in determining Plaintiff’s ability to perform past relevant work, and if
necessary, include a vocational expert.
CONCLUSION
For the foregoing reasons, this Court REMANDS the ALJ’s Decision for further
clarification.

s/ Susan D. Wigenton, U.S.D.J.

cc: Parties

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