GRANADOS v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION fld. Signed by Judge Jose L. Linares on 1/6/14. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NICOLE GRANADOS,
Civil Action No 13-781 (JLL)
Plaintiff,
v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, District Judge.
Before the Court is Nicole Granados (“Plaintiff’ or “Claimant”)’s appeal seeking review
of a final determination by Administrative Law Judge (“AU”) Richard West denying her
application for supplemental security income. The Court resolves this matter on the Parties’
briefs pursuant to Local Civil Rule 9.1(f). For the reasons below, the Court affirms the final
decision of the Commissioner of Social Security.
I.

BACKGROUND
A.

Plaintiffs Working History and Activities of Daily Living

Plaintiff was born on March 16, 1978, and has a high school education. (R. at 45)) She
has worked as a cashier at fast food restaurants and supermarkets and as a parking lot security
guard. (Id. at 46-48). All of these jobs required Plaintiff to stand throughout the workday. (Id.
at 49). Plaintiff’s annual earnings from these jobs never totaled more than $5000 from 1998
through 2010. (Id. at 120).

“R.” refers to the pages of the Administrative Record.

In June 2009, Plaintiff reported that she lives in an apartment with her family and cares
for her four children. (Id. at 136). She shops for her family once a month, cooks for them once a
week, washes dishes while seated in a chair, and helps her children get dressed and complete
their homework. (Id. at 1236, 138-39). Plaintiff can clean her apartment to a limited extent—
she sweeps while seated in a chair, but has her children lift things up to sweep beneath them. (Id.
at 138). Plaintiff also has her children mop for her. (Id.). While in her apartment, Plaintiff
watches television for four hours a day, reads, and colors. (Id. at 138-39). Plaintiff goes outside
daily and uses public transportation. (Id. at 138-39). She also socializes with others daily,
attends church weekly, and visits a community center monthly. (Id. at 140).
Plaintiff claims that her impairments make it difficult for her to get up from low toilets
and sleep. (Id. at 137). To help her sleep, Plaintiff takes sleeping pills. (Id. at 52). Plaintiff also
claims that her impairments prevent her from washing her back and braiding her hair. (Id. at
137). Due to her impairments, Plaintiff claimed in June 2009, that she could lift only fifteen
pounds, sit for less than one hour, walk two blocks, and climb four steps at a time. (Id. at 141).
Plaintiff also then claimed that she had difficulty bending and kneeling because of knee and leg
pains. (Id.). At the administrative hearing in May 2011, Plaintiff claimed that she could lift a
gallon of milk with only her left hand, stand and sit for only fifteen minutes, and slowly walk
about one and a half blocks. (Id. at 59-6 1).
B.

Plaintiffs Medical History

Plaintiff contends that she is disabled due to her (1) back problems, (2) degenerative joint
disease in her right knee, (3) carpal tunnel syndrome, (4) obesity, and (5) depression. Plaintiff
contends that if she forces herself to work she will overdo it and, as a result, paralyze herself.
(Id. at 129). A discussion of the evidence pertaining to each of Plaintiffs impairments follows.

2

1.

Plaintiff’s Back Problems

Plaintiff contends that she has pain in her neck, shoulders, arms, back, hips, legs, and
feet, (Id. at 50-53). To treat her pain, Plaintiff takes prescription pain medication—Percocet—
every four hours, which she claims is helpful, but makes her drowsy. (Id. at 58). In February
2004, an MRI performed on Plaintiff’s lumbar spine documented degenerative disc disease. (Id.
at 229). Specifically, the MRI revealed mild disc bulging and bilateral neural foraminal stenosis
at the L4-L5 and L5-Sl discs. (Id.). In February 2005, an MRI performed on Plaintiff’s cervical
spine revealed straightening of Plaintiff’s cervical spinal curvature consistent with muscle spasm.
(Jd. at 228).
When Plaintiff filed her application for benefits on April 1, 2009, the interviewer at the
social security office noted that Plaintiff had no difficulty standing, walking, or sitting. (Id. at
126-27). The interviewer also did not recognize any physical inabilities in Plaintiff. (Id. at 126).

On April 24, 2009, one of Plaintiff’s treating physicians, Dr. Farouk Al-Salihi, diagnosed
Plaintiff with herniated lumbosacral disc disease. (Id. at 230). In September 2009, however, an
X-ray administered by Dr. Edward Burak revealed “normal” lumbosacral and cervical spines,
maintained disc spaces, and no evidence of fracture or malalignment. (Id. at 237). Also in
September 2009, State Consultative Examiner Dr. Mariam Rubbani conducted a physical
examination of Plaintiff (Id. at 23 5-36). At that time, Plaintiff was able to transfer to and from
the exam table without assistance. (Id. at 235). Plaintiff told Dr. Rubbani that she had a history
of scoliosis and herniated discs in her neck and lower back. (Id.). Dr. Rubbani noted that
Plaintiff’s cervical spine ranging was limited more on the right than on the left. (Id.).
Additionally, Dr. Rubbani noted that Plaintiff’s lumbar spine ranging was limited and that she
had lumbar pain on palpitation. (Id.). Dr. Rubbani also noted that Plaintiff had elevated left

3

shoulder and scapular heights as compared to her right shoulder, and positive right-sided
trapezius muscle tenderness. (Id.). Dr. Rubbani further noted that Plaintiff’s tests for bilateral
straight leg raising, sensory loss, reflex loss, and muscle weakness were all negative, and that
Plaintiff deferred walking on her heels and toes. (Id. at 235-36). Dr. Rubbani diagnosed
Plaintiff with cervical myofascial pain, lumbar myofascial pain, and scoliosis. (Id. at 236).
In April 2010, one of Plaintiffs treating physicians, Dr. Felix Roque, noted that
Plaintiff’s straight leg raising test revealed 40 degree movement in both the supine and seating
position. (Id. at 267-69). According to Plaintiff, the most invasive treatment that she received
for her back impairments was steroid injections from Dr. Roque. (Id. at 56-57). Plaintiff claims
that she had Dr. Roque administer such injections in 2005, but that she no longer receives them
because her insurance does not cover the costs. (Id. at 56-58). Instead, as discussed above, she
takes pain medication. (Id. at 58). In an April 2011 medical report, Dr. Roque noted that
Plaintiffs pain medication provided her with relief and that she had stated that her pain was
stable. (Id. at 360-61).
In May 2011, Dr. Al-Salihi completed a RFC form in which he noted that Plaintiff has
lumbosacral disc disease. (Id. at 370-73). Notably, Dr. Al-Salihi did not describe Plaintiffs
lumbosacral disc disease as “herniated” at that time. (Id.).
2.

Plaintiffs Degenerative Joint Disease in Her Right Knee

In February 2005, an MRI performed on Plaintiffs right knee revealed that Plaintiffs
knee was “normal.” (Id. at 228). In September 2009, Dr. Rubbani noted that Plaintiffs gait was
tandem, heel-to-toe, and mildly antalgic. (Id. at 236). Dr. Rubbani also noted that Plaintiff had
difficulty walking on her heels and toes due to her knee pain and that she could squat only
halfway down. (Id. at 23 5-36). However, Dr. Rubbani noted that Plaintiff did not use a

4

handheld assistive device. (Id.). Dr. Rubbani diagnosed Plaintiff with degenerative joint disease
of the right knee with medial joint line tenderness with crepitus. (Id. at 236).
3.

Plaintiff’s Carpal Tunnel Syndrome

Plaintiff maintains that she has intermittent numbness, pain, and locking in both of her
hands. (Id. at 53). In June 2008, Dr. Roque clinically diagnosed carpal tunnel syndrome in
Plaintiffs right hand through a positive Tinel’s test. (Id. at 331). When Plaintiff filed her
application for benefits in April 2009, the interviewer at the social security office noted that
Plaintiff had no difficulty using her hands or writing. (Id. at 126-27). In fact, the interviewer
noted that he recognized no physical inabilities. (Id. at 126). In September 2009, Dr. Rubbani
noted that Plaintiff had a positive right-sided carpal compression test. (Id. at 235). At that time,
Dr. Rubbani also noted that Plaintiff could dress and undress without assistance, separate papers,
and button buttons. (Id.).
4.

Plaintiff’s Obesity

Plaintiff is obese. When Plaintiff filed her application for benefits in April 2009, she was
5’ 5” tall and weighed 220 pounds. (Id. at 128). At the time of the administrative hearing in
May 2011, Plaintiff was 5’ 5” tall and weighed 275 pounds. (Id. at 62). Plaintiff then contended
“the more weight I lose, the more pain I have.” (Id.). In April 2009, Dr. Al-Salihi noted that
Plaintiff had asthma and mild hypertension. (Id. at 230). In his May 2011 RFC form, Dr. Al
Salihi again noted that Plaintiff had asthma, but did not even mention that Plaintiff had
hypertension. (Id. at 370-73).
5.

Plaintiff’s Depression

In April 2009, Dr. Al-Salihi noted that Plaintiff suffered from depression, but did not
describe Plaintiff’s symptoms. (Id. at 230). When Plaintiff filed her application for benefits that

5

month, the interviewer at the social security office noted that Plaintiff had no apparent difficulty
concentrating, understanding, talking, or answering. (Id. at 126-27).
In September 2009, State Consultative Examiner Dr. Jennifer C. Figurelli conducted a
psychological evaluation of Plaintiff. (Id. at 231-33). Plaintiff told Dr. Figurelli her psychiatric
history. (Id. at 232). Plaintiff explained that she had never been hospitalized for a psychiatric
condition, but that she met with a psychiatrist monthly for almost ten years. (Id.). Plaintiff
apparently stopped seeing this psychiatrist shortly before meeting with Dr. Figurelli. (See Id.).
Plaintiff also told Dr. Figurelli that her primary care physician had prescribed her Xanax. (Id.).
Additionally, Plaintiff told Dr. Figurelli that she felt lonely and sad about every other day and
had diminished energy, difficulty falling asleep, and a poor appetite. (Id. at 233). Plaintiff also
said that she cried three to four times a week. (Id.). Dr. Figurelli noted that Plaintiff had a
normal orientation, appropriate mood, sad affect, and difficulty concentrating. (Id, at 232-33).
Dr. Figurelli also noted that Plaintiff could spell the word “world” both forward and backward,
recall three out of four words after five minutes, and perform double-digit calculations. (Id. at
233). However, according to Dr. Figurelli, Plaintiff was unable to do the serial sevens math
problem. (Id.). Dr. Figurelli diagnosed Plaintiff with depression and assigned Plaintiff a global
assessment functioning (“GAF”) rating of sixty. (Id. at 233).
2

2

The GAF Scale ranges from zero to one-hundred. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. text rev. 2000) (hereinafter DSM-IV-TR). An individual’s “GAF rating is
within a particular decile if either the symptom severity or the level of functioning falls within the range.” Id. at 32.
“[ljn situations where the individual’s symptom severity and level of functioning are discordant, the final GAF
rating always reflects the worse of the two.” Id. at 33. “In most instances, ratings on the GAF Scale should be for
the current period (i.e., the level of functioning at the time of the evaluation) because ratings of current functioning
will generally reflect the need for treatment or care.” Id. A GAF rating of fifty-one to sixty indicates that an
individual has “[mjoderate symptoms,” e.g., “flat affect and circumstantial speech, [on occasional panic attacks,” or
“moderate difficulty in social, occupational, or school functioning
Id. at 34.

6

At the administrative hearing in May 2011, Plaintiff claimed that she suffered from
anxiety attacks and that her depression had gotten worse with time. (Id. at 6 1-62). Plaintiff also
stated that when she wakes up she beats herself up in her head. (Id. at 61).
C.

Procedural History

On April 1, 2009, Plaintiff filed an application for supplemental security income with the
Social Security Administration. (Id. at 114-16). The Administration denied Plaintiff’s
application and subsequent request for reconsideration. (Id. at 68-72, 75-78). In response,
Plaintiff filed a request for a hearing before an AU with the Office of Disability Adjudication
and Review. (Id. at 79-80).
Said hearing occurred before AU West on May 3, 2011, in Newark, New Jersey. (Id. at
27). A vocational expert did not attend the hearing. (Id. at 64). After reviewing the facts of
Plaintiffs case, on June 7, 2011, AU West issued a decision finding that Plaintiff was not
disabled from April 1, 2009, through the date of decision. (Id. at 12-23).
3
Plaintiff sought Appeals Council review. (Id. at 7-8). The Appeals Council denied
Plaintiff’s request on December 4, 2012, rendering the AU’s decision the final decision of the
Commissioner. (Id. at 1). As a result, Plaintiff appealed to this Court on February 7, 2013.
(Compl. 1-3, ECF No. 1). This Court has jurisdiction to review this matter pursuant to 42 U.s.c.

§ 405(g).
II.

LEGAL STANDARD

A.

The Five-Step Process for Evaluating Whether a Claimant Has a Disability

Under the Social Security Act, the Social Security Administration is authorized to pay
supplemental security income to “disabled” persons. 42 U.S.C.

§ 1382(a). A person is

Supplemental security income benefits are not payable for any month prior to the month after the application for
such benefits is filed. 20 C.F.R. § 416.335.

7

“disabled” if “he is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C.

§ 1 382c(a)(3)(A). A person is unable to engage in substantial gainful

activity when his physical or mental impairments are “of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the national economy.
U.S.C.

.

.

.“

42

§ 1382c(a)(3)(B).
Regulations promulgated under the Social Security Act establish a five-step process for

determining whether a claimant is disabled. 20 C.F.R.

§ 4l6.920(a)(1). At step one, the AU

assesses whether the claimant is currently performing substantial gainful activity. 20 C.F.R.

§

41 6.920(a)(4)(i). If so, the claimant is not disabled and, thus, the process ends. Id. If not, the
AU proceeds to step two and determines whether the claimant has a “severe” physical or mental
impairment or combination of impairments. 20 C.F.R.

§ 416.920(a)(4)(ii). Absent such

impairment, the claimant is not disabled. Id. Conversely, if the claimant has such impairment,
the AU proceeds to step three. Id. At step three, the AU evaluates whether the claimant’s
severe impairment either meets or equals a listed impairment. 20 C.F.R.

§ 416.920(a)(4)(iii). If

so, the claimant is disabled. Id. Otherwise, the AU moves on to step four, which involves three
sub-steps:
(1) the AU must make specific findings of fact as to the claimant’s residual
functional capacity [(“RFC”)]; (2) the AU must make findings of the physical
and mental demands of the claimant’s past relevant work; and (3) the AU must
compare the [RFC] to the past relevant work to determine whether claimant has
the level of capability needed to perform the past relevant work.

8

Burnett v. Comm ‘r ofSoc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted).

The claimant is not disabled if his RFC allows him to perform his past relevant work. 20 C.F.R.

§ 4l6.920(a)(4)(iv). However, if the claimant’s RFC prevents him from doing so, the AU
proceeds to the fifth and final step of the process. Id.
The claimant bears the burden of proof for steps one through four. Poulos v. Comm ‘r of
Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir.

2004). “At step five, the burden of proof shifts to the Social Security Administration to show
that the claimant is capable of performing other jobs existing in significant numbers in the
national economy, considering the claimant’s age, education, work experience, and [RFC].” Id.
(citing Ramirez, 372 F.3d at 551).
B.

The Standard of Review: “Substantial Evidence”
4

This Court must affirm an AU’s decision if it is supported by substantial evidence. See
42 U.S.C.

§

405(g), l383(c)(3). Substantial evidence is “more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting tJonsol. Edison C’o. v. NLRB, 305 U.S.

197, 229 (1938)). To determine whether an AU’s decision is supported by substantial evidence,
this Court must review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
1984). However, this Court may not “weigh the evidence or substitute its conclusions for those
of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted).
Consequently, this Court may not set an AU’s decision aside, “even if [it] would have decided
the factual inquiry differently.” Hartranfi v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations
omitted).
Because the regulations governing supplemental security income—20 C.F.R. 41 6.920—are identical to those
§
covering disability insurance benefits—20 C.F.R. § 404.1520—this Court will consider case law developed under
both regimes. Rutherford i’. Barnhart, 399 F.3d 546, 551 n. 1 (3d Cir. 2005) (citation omitted).

9

III.

DISCUSSION
At step one, the AU found that Plaintiff “ha[dj not engaged in substantial gainful activity

since April 1, 2009, the application date.

..

.“

(R. at 14). At step two, the AU found that

Plaintiff’s degenerative disc disease, scoliosis, degenerative joint disease, obesity, carpal tunnel
syndrome, and depression were severe impairments. (Id.). At step three, the AU found that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments. (Id. at 15.). At step four, the AU determined that
Plaintiff had the following RFC:
[Plaintiff] has the [RFC] to perform sedentary work, as defined in
20 CFR 416.967(a) except she cannot do any ladder/rope/scaffold
climbing or any crouching; cannot do more than occasional
ramp/stair climbing, balancing on narrow, slippery or erratically
moving surfaces, stooping, kneeling or crawling; must avoid
concentrated exposure to temperature extremes, wetness, humidity,
dust, etc., and hazards such as unprotected heights or dangerous
moving machinery, can only do frequent (as opposed to constant)
fingering with her right hand; and can only understand, remember,
and carry out simple instructions.
(Id. at 17). As Plaintiff was unable to perform her past relevant work as a cashier, the AU

continued on to step five. (Id. at 22). At step five, the AU found that there were jobs existing in
significant numbers in the national economy that Plaintiff could perform. (Id.). Thus, the AU
concluded that Plaintiff was not disabled. (Id. at 23). Plaintiff contends that the AU erred at
steps three, four, and five. The Court addresses each of Plaintiff’s contentions in turn.
A.

Whether the AU Properly Found That Plaintiff Did Not Have an Impairment or
Combination of Impairments That Met or Medically Equaled a Listed Impairment

Plaintiff contends that the AU’s analysis at step three is not based on substantial
evidence for two reasons. First, Plaintiff argues that the AU failed to properly consider
Plaintiff’s obesity in combination with her degenerative joint disease in her right knee and spinal

10

impairments. (P1. Br. 19-25, ECF No. 8). Second, Plaintiff more generally argues that the AU
failed to consider all of Plaintiffs impairments in combination with one another. (Id. at 16-19).
The Court will now assess each of Plaintiffs arguments.
1.

Whether the AU Properly Considered Plaintiff’s Obesity in Combination
With Her Knee and Spinal Impairments

Plaintiff argues that the AU failed at step three to properly consider Plaintiffs obesity in
combination with her degenerative joint disease in her right knee and spinal impairments. (Id, at
24). Said failure, according to Plaintiff, violates the Third Circuit’s holding in Burnett and
Social Security Rulings OO-3p and 02-1 p.

Burnett provides that at step three an AU “must

provide a sufficient framework of reasoning for a court to conduct ‘meaningful judicial review’
of the AU’s decision.” Foulos, 474 F.3d at 93 (quoting Burnett, 220 F.3d at 119). In providing
such a framework, there is no formal requirement that the AU “use particular language or adhere
to a particular format in conducting his analysis.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.
2004). Rather, the Third Circuit noted in Poulos that an AU satisfies Burnett if she issues her
“step three finding only after reviewing all of the objective medical evidence, including evidence
of [claimant’s] obesity, and explicitly state[s] which Listings [she]

.

.

.

consider[ed].” 474 F.3d

at 93.
As required by Polous, the AU here reviewed the objective medical evidence pertaining
to Claimant’s obesity before issuing her step three finding. At step two, the AU found that
Plaintiffs obesity constituted a severe impairment even though Plaintiff did not initially allege

Social Security Ruling 02-ip superseded Social Security Ruling OO-3p. Social Security Ruling 02-ip provides that
an AU may find at step three that:
[A] listing is met if there is an impairment that, in combination with obesity,
meets the requirements of a listing. For example, obesity may increase the
severity of coexisting or related impairments to the extent that the combination
of impairments meets the requirements of a listing. This is especially true of
musculoskeletal, respiratory, and cardiovascular impairments.

ii

that she was disabled due, in part, to her obesity. (R. at 14, 129). In support of this finding, the
AU noted that Plaintiff was 5’ 5” tall and weighed approximately 275 pounds. (Id. at 14). The
AU also noted at step two that the combination of Plaintiffs obesity and other impainnents
“significantly interfere[d] with [Plaintiff’s] abilities to lift, carry, walk and stand.” (Id. at 15).
At step three, as required by Poulos, the AU explicitly declared which listings he considered.
(Id.). The AU also stated at step three that “[t]here is no listing specifically for obesity. Its
effects are considered under other body system(s) affected.

.

.

(Id.). Consistent with this

.“

statement, the AU adequately explained why Plaintiffs degenerative joint disease in her right
knee and spinal impairments did meet the most similar listings—i .02, 1 .04A, and 1 .04C. The
Court now discusses the AU’s findings pertaining to each of these listings.
With regard to listing 1.02, that listing is met when a claimant has:
Major dysfunction of a joint(s)
[c]haracterized by gross
anatomical deformity. and chronic joint pain and stiffuess with
signs of limitation of motion or other abnormal motion of the
affected joint(s), and findings on appropriate medically acceptable
imaging ofjoint space narrowing, bony destruction, or ankylosis of
the affected joint(s). [w]ith. [i]nvolvement of one major
peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting
in inability to ambulate effectively.
.

.

.

.

.

.

.

.

.

.

20 C.F.R. Pt. 404, Subpt. P, App’x 1. Here, the AU provided adequate relevant evidence in
support of his conclusion that Plaintiffs degenerative joint disease in her right knee did not meet
listing 1.02. Specifically, the AU noted that motion in Plaintiffs right knee was “normal” and
that Plaintiff was “not unable to ambulate effectively.” (R. at 15).
With regard to listing 1 .04A, that listing is met when a claimant has:
Disorders of the spine.
resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord.. [wjith..
[e]vidence of nerve root compression characterized by nuero
anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
.

.

,

.

12

weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine).
20 C.F.R. Pt. 404, Subpt. P, App’x 1. Here, the AU provided adequate relevant evidence in
support of his conclusion that Plaintiffs spinal impairments—degenerative disc disease and
scoliosis—did not meet listing 1 .04A. Specifically, the AU noted that Plaintiff had virtually no
neurological deficits in a distribution characteristic of nerve root compression in the cervical or
thoracic spine. (R. at 15). The AU also noted that Plaintiff did not have a positive straight-leg
raising test in the seated position. (Id.).
With regard to listing 1 .04C, that listing is met when a claimant has:
Disorders of the spine.
resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. [w]ith.
[l]umbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and weakness,
and resulting in inability to ambulate effectively.
.

.

,

.

.

.

20 C.F.R. Pt. 404, Subpt. P, App’x 1. Here, the AU provided adequate relevant evidence in
support of his conclusion that Plaintiffs spinal impairments did not meet listing 1 .04C.
Specifically, the AU noted that the stenosis in Plaintiffs lumbar spine was at the neural
foramina, and not at the spinal canal. (R. at 15). The AU also noted that “the clinical
examinations [did] not reveal persistent non-radicular weakness” and that Plaintiff was not
unable to ambulate effectively. (Id.).
Notably, Plaintiff has failed to undermine the above explanations proffered by the AU
since she has failed to point to any evidence in the record demonstrating that the combination of
her obesity with one or more of her other impairments meets a listing. Instead, Plaintiffjust
explains why she would have met former listing 9.09 on obesity, which does not help her
argument. See Poulos, 474 F.3d at 93 (finding Plaintiffs attempt to invoke former listing 9.09
13

inapposite). Because Plaintiff has failed to explain how the combination of he obesity with her
other impairments meets a listing, the Court finds Plaintiff’s contention that the AU ‘s step three
analysis is not based on substantial evidence unpersuasive. See id. at 92-93 (noting that “[t]he
claimant bears the ultimate burden of establishing steps one through four” and later noting “that
Appellant [did] not argue that the AU should have applied a different Listing, nor [did] he point
to specific evidence ignored by the AU that would indicate that Appellant’s impairments are
equivalent to one of the Listings the AU identified.”); Williams v. Barnhart, 87 F. App’x 240,
243 (3d Cir. 2004) (“[Plaintiff] argues that the AU should have given greater consideration to

the ‘interrelationship’ among her impairments, but she does not explain how this consideration
would have differed from the one provided, and we do not understand how it should have.”); see
also Ne/Tv. Astrue, 875 F. Supp. 2d 411,423 (D. Del. 2013) (“[Plaintiff] fails to point to any

evidence in the record in support of the finding that obesity worsened her symptoms. The Court
cannot remand the AU’s decision based on the failure to confront evidence that does not exist.
The simple fact that [plaintiff] became obese in 2008 does not automatically justify the
conclusion that it significantly worsened her symptoms.”). Lastly, the Court notes that the AU
further demonstrated that he was mindful of the need to consider Plaintiff’s obesity since he
stated that Plaintiff’s “excess body weight,” along with her other impairments, caused him to
give “limited weight” to some of the Disability Determination Services medical consultant’s
opinions at step four. (R. at 21).
Even if the Court found that the AU’s consideration of Plaintiff’s obesity at step three
did not fulfill Burnett, such an error would not warrant remand because it would be harmless. In
Rivera v. Commissioner of Social Security, the Third Circuit refused to remand an AU’s step

three finding, despite the fact that it was conclusory, because there was “abundant evidence

14

supporting the position taken by the AU, and comparatively little contradictory evidence.” 164
F. App’x 260, 263 (3d Cir. 2006). The same can be said here.
2.

Whether the AU Properly Considered All of Plaintiff’s Impairments in
Combination With One Another

Plaintiff generally argues that the AU erred at step three because he did not properly
consider whether Plaintiff’s impairments, in combination, met or medically equaled a listed
impairment. (P1. Br. 16-19). Defendant counters that the AU did in fact consider the
combination of Plaintiff’s severe impairments since “the AU decision’s step-three analysis
explicitly states that Plaintiff’s impairments in combination did not medically equal any listed
impairment.

.

.

.“

(Def Br. 7, ECF No. 13).

An AU fulfills his obligation to consider a claimant’s impairments in combination with
one another if the AU explicitly indicates that he has done so and there is “no reason not to
believe him.” Morrison ex rel. Morrison v. Comm ‘r ofSoc. Sec., 268 F. App’x 186, 189 (3d Cir.
2008). Here, the AU explicitly indicated at the beginning of his step three discussion that
Plaintiff “does not have an impairment or combination of impairments that meets or medically
equals any of the listed impairments.

.

.

.“

(R. at 15). The AU also indicated at step three that

“a comparison of the claimant’s impairments with the most similar listings—l.04A, l.04C, 1.02,
11.4 and 12.04—fails to reveal any impairment or combination of impairments that has been of
level severity for the required duration.” (Id.). Given the AU ‘s thorough discussion of the
record throughout his opinion, detailed explanation of why each of Plaintiff’s impairments did
not meet a listing, and statement concerning the combined effect of Plaintiff’s impairments at
step two, the Court finds no reason to disbelieve the AU’s indications that he considered the
6

6

At step two, the AU stated that “[t)he combination of the degenerative disc disease, scoliosis, degenerative joint
disease, obesity and carpal tunnel syndrome significantly interferes with the claimant’s abilities to lift, carry, walk

15

combined effect of Plaintiffs impairments. See Jones, 364 F.3d at 505 (finding AU’s step three
determination adequate because AU’s decision, “read as a whole,” illustrated that AU
considered the appropriate factors); see also Gainey v. Astrue, No. 10-1912, 2011 WL 15660865,
*

12 (D.N.J. Apr. 25, 2011) (citation omitted) (holding that “AU’s detailed analysis of the

individual impairments and conclusion that Plaintiff did not have ‘an impairment or combination
of impairments’ that met or equaled a listing is sufficient.”). In any event, Plaintiff has not
“point[ed] to any medical evidence ignored by the AU that would show that his impairments
medically equaled one of the listings.” See Cosby v. Comm ‘r ofSoc. Sec., 231 F. App’x 140,
146 (3d Cir. 2007) (finding this shortcoming significant). Accordingly, the Court finds that the
AU’s step three findings are based on substantial evidence.
B,

Whether the AU’s RFC Assessment is Based on Substantial Evidence
7

RFC is defined as the most that a claimant can still do despite the limitations caused by
her impairments. 20 C.F.R.

§ 4l6.945(a)(1). Here, the AU determined that Plaintiff had the

following RFC:
[Tjhe claimant has the [RFC] to perform sedentary work, as defined
in 20 CFR 4 16.967(a) except she cannot do any
ladder/rope/scaffold climbing or any crouching; cannot do more
than occasional ramp/stair climbing, balancing on narrow, slippery
or erratically moving surfaces, stooping, kneeling or crawling; must
avoid concentrated exposure to temperature extremes, wetness,
humidity, dust, etc., and hazards such as unprotected heights or
dangerous moving machinery, can only do frequent (as opposed to
constant) fingering with her right hand; and can only understand,
remember, and carry out simple instructions.

and stand.” (R. at 15). This statement evinces the AU’s consideration of the combined effect of Plaintiff’s
impairments.
To the extent that Plaintiff speculates that the AU’s RFC assessment at step four was designed to avoid the need
for testimony from a vocational expert at step five, the Court will not entertain Plaintiffs speculation as to the AU’s
motive. The task before this Court on appeal is to review whether the AU’s decision is based on substantial
evidence.

16

(R. at 17). Plaintiff contends that the AU’s RFC assessment is not based on substantial evidence
because the AU did not adequately explain five of his findings. (See P1. Br. 25-29).
First, Plaintiff asserts that the AU’s finding at step four that Plaintiff can sit for six hours
in an eight-hour workday is not based on substantial evidence. (P1. Br. 27). The Court
8

disagrees. The AL.J found Plaintiff’s allegation that she could sit for about only fifteen minutes
incredible. (R. at 18). In doing so, the AU discredited Dr. Al-Salihi’s statement that Plaintiff
had herniated lumbosacral disc disease, noting that the imaging studies in the record did not
confirm herniation and that an MRI showed that Plaintiff’s disc bulges and neural foraminal
stenosis were just mild. (Id.). The AU provided further support for his finding by mentioning
the relief that Plaintiff received from her pain medications, the generally conservative treatment
Plaintiff received for her pain, and the social security office representative’s observation that
Plaintiff had no apparent difficulty sitting. Ud. at 18-19). To the extent that Plaintiff asserts that
her obesity somehow prevented her for sitting for six hours, she has not pointed to any evidence
in support of this assertion. Thus, the Court finds this conclusory assertion unpersuasive. See
Poulos, 474 F.3d at 92 (citation omitted) (“The claimant bears the ultimate burden of
establishing steps one through four.”). At bottom, the AU provided more than a mere scintilla
of relevant evidence in support of his finding that Plaintiff could sit for six hours in an eight-hour
workday. See, e.g., Garret v. Comm ‘r ofSoc. Sec., 274 F. App’x 159, 163-64 (3d Cir. 2008)
(finding that AU’s RFC was based on substantial evidence where AU provided comprehensive
discussion of relevant medical evidence).

Implicit in the AU’s finding that Plaintiff could perform sedentary work is the finding that Plaintiff could sit for
six hours in an eight-hour workday. S.S.R. 96-9p.

17

Second, Plaintiff asserts that the AU’s finding at step four that Plaintiff could stand or
walk for two hours in an eight-hour workday is not based on substantial evidence. (P1. Br. 279
28). Plaintiffs assertion is inapposite. The AU supported his finding by discussing the relief
that Plaintiff received from her pain medication and the conservative treatment Plaintiff received
for her pain. (R. at 18-19). The AU also discussed the social security office representative’s
observation that Plaintiff had no apparent difficulty standing and Plaintiffs broad spectrum of
routine activities. (Id.). Moreover, the AU indirectly refuted Plaintiff’s assertion that her
degenerative joint disease in her right knee and obesity prevented her from standing or walking
for two hours in an eight-hour workday. He did so by noting that Plaintiff was “ambulatory,
without any hand-held assistive device and at most mildly antalgic gait,” and that an MRI of
Plaintiff’s right knee from February 2005 was “normal.” (Id. at 18). It is of no consequence that
another finding was possible based on this evidence. Hartranft, 181 F.3d at 360 (citations
omitted) (noting that Court may not set aside AU’ s decision “even if [it] would have decided the
factual inquiry differently.”). Therefore, the Court finds that the AU ‘s finding that Plaintiff
could stand or walk for two hours in an eight-hour workday is based on substantial evidence.
Third, Plaintiff asserts that the AU’s RFC is not based on substantial evidence because
no restrictions are specifically attributable to Plaintiffs obesity. (P1. Br. 10). To the contrary,
the AU’s RFC limited Plaintiff to sedentary work and the AU explicitly noted that Plaintiffs
“excess body weight,” along with her other impairments, caused the AU to give “limited
weight” to some of the Disability Determination Services medical consultant’s opinions. (R. at
17, 21). The AU further evinced his consideration of Plaintiffs obesity at step four by

Implicit in the AD’s fmding that Plaintiff could perform sedentary work is the finding that Plaintiff could stand for
two hours in an eight-hour workday. S.S.R. 96-9p.

18

discussing Plaintiff’s asthma and hypertension. (Id. at 19). Accordingly, Plaintiffs assertion
that the AU’s RFC’s failed to account for her obesity lacks merit.
Fourth, Plaintiff asserts that the AU’s RFC finding that Plaintiff “can only understand,
remember and carry out simple instructions” is not based on substantial evidence because it
disregards the AU ‘s step three finding that Plaintiff has “moderate limitations” in concentration,
persistence, and pace. (P1. Br. 5-7). Plaintiffs assertion is invalid. The Third Circuit has held
that an AU’s assessment that a claimant is limited to “simple, routine tasks,” an assessment that
is analogous to that at issue here, adequately accounts for moderate limitations in concentration,
persistence, and pace. See McDonald v. Astrue, 293 F. App’x 941, 946 (3d Cir. 2008) (AU
accounted for moderate limitations in concentration, persistence, and pace in hypothetical
question to vocational expert by restricting claimant to simple, routine tasks); see alo Menks v.
Astrue, 262 F. App’x 410, 412 (3d Cir. 2008) (same).
Finally, Plaintiff apparently asserts that the AU’s RFC assessment is not based on
substantial evidence because he did not find that Plaintiffs carpal tunnel syndrome limited her
ability to perform gross manipulation (handling) with her right hand. (See P1. Br. 11-12, 28-29).
The Court rejects Plaintiffs assertion. Of note, Plaintiff did not list carpal tunnel syndrome as a
condition that limited her ability to work in her application for benefits. (R. at 129). Plaintiff
has also not pointed to any evidence in the record that demonstrates that her carpal tunnel
syndrome necessarily impacted her ability to perform gross manipulation. See Burns v.
Barn hart. 3 12 F .3 d 113, 129 (3d Cir. 2002) (citation omitted) (rejecting plaintiffs argument that
pain was disabling where plaintiff referred to “only his testimony” because “[i]mportantly,
[plaintiffj does not point to any relevant medical opinion that supports his allegations that his
pain and exertional limitations are more severe than the AU found them to be.”). The medical

19

evidence in the record, instead, provides support for the AU’s implicit finding that Plaintiff’s
carpal tunnel syndrome did not impact her ability to perform gross manipulation. As noted by
Defendant, Dr. Al-Salihi’s May 17, 2011 assessment of Plaintiff’s ability to perform work
related physical functions states that Plaintiff’s impairments did not affect her ability to perform
handling. (R. at 372). While the AU did not explicitly mention this particular statement made
by Dr. Al-Salihi, he did acknowledge and discuss Dr. Al-Salihi May 17, 2011 assessment at step
four. Specifically, the AU noted that Dr. Al-Salihi’s assessment was “consistent in certain
respects” with the RFC finding. (Id. at 20). Additionally, the AU noted at step four that the
social security office representative that helped Plaintiff complete her application observed that
Plaintiff had no apparent difficulty using her hands. (Id. at 18).
C.

Whether the AU’s Step Five Finding is Based on Substantial Evidence

Plaintiff contends that the AU improperly denied benefits at step five by relying solely
on the framework of the grid rulings. (P1. Br. 3, 30-36). Because the AU found that Plaintiff
had three severe impairments that were nonexertional in nature—clepression, obesity, and carpal
tunnel syndrome—Plaintiff argues that the AU was required to take testimony from a vocational
expert. (Id.). Defendant counters that vocational expert testimony was not required in this case
because the AU properly “used SSR 85-16 and SSR 96-9p as guidance in finding that Plaintiff’s
capacity for the full range of unskilled, sedentary work was not significantly compromised by
her non-exertional restrictions.

.

.

.“

(Def. Br. 15-16).

Exertional limitations refer to those that affect a claimant’s “ability to meet the strength
demands ofjobs.
C.F.R.

.

.

for sitting, standing, walking, lifting, carrying, pushing, and pulling.” 20

§ 404.1 569a(a). Nonexertional limitations refer to any other limitations, including a

claimant’s postural limitations (her ability to stoop, climb, balance, kneel, crouch, and crawl) and

20

her environmental limitations (her need to avoid concentrated exposure to hazards such as
machinery and heights). Id.; S.S.R. 96-9p. In Sykes v. Apfel, the Third Circuit held:
/JJn the absence ofa rulemaking establishing the fact of an
undiminished occupational base, the Commissioner cannot
determine that a claimant’s nonexertional impairments do not
significantly erode his occupational base under the medical
vocational guidelines without either taking additional vocational
evidence establishing as much or providing notice to the claimant
of his intention to make official notice of this fact.
228 F.3d 259, 261 (3d Cir. 2000) (emphasis added). The Third Circuit has clarified that “if the
[Commissioner] wishes to rely on a [Social Security Ruling] as a replacement for a vocational
expert, it must be crystal-clear that the SSR is probative as to the way in which the nonexertional
limitations impact the ability to work, and thus, the occupational base.” Poulos, 474 F,3d 88, 94
(3d Cir. 2007) (emphasis added).
Here, the social security rulings cited by the AU clarify that Plaintiff’s nonexertional
impairments did not significantly erode her sedentary occupational base. To begin with, S.S.R.
85-15 clarifies that Plaintiff’s need to avoid concentrated exposure to dust did not significantly
erode her sedentary occupational base. S.S.R. 85-15 (“Where a person has a medical restriction
to avoid excessive amounts of.
minimal.

..

.“).

.

.

dust.. the impact on the broad world of work would be
.

S.S.R. 85-15 also clarifies that Plaintiff’s ability to do only occasional ramp or

stair climbing did not significantly erode her sedentary occupational base. S.S.R. 85-15 (“Where
a person has some limitation in climbing and balancing and it is the only limitation, it would not
ordinarily have a significant impact on the broad range of work.”).
S.S.R. 96 clarifies that Plaintiff’s inability to do any crouching or ladder, rope, or
p
9
scaffold climbing did not significantly erode her sedentary occupational base. S.S.R.
96-Qp
(“[R]estrictions related to.

.

.

climbing ladders, ropes, or scaffolds.

21

.

.

[or] crouching.

.

.

would

not usually erode the occupational base for a full range of unskilled sedentary work.”). S.S.R.
96-9p also clarifies that Plaintiffs ability to do only occasional kneeling or crawling did not
significantly erode her sedentary occupational base. S.S.R. 96-9p (“[Rjestrictions related to...
kneeling.

.

.

or crawling would not usually erode the occupational base for a fill range of

sedentary work.”). Furthermore, S.S.R. 96-9p clarifies that Plaintiffs ability to do only
occasional balancing on narrow, slippery, or erratically moving surfaces did not significantly
erode her sedentary occupational base. S.S.R. 96-9p (“If an individual is limited in balancing
only on narrow, slippery, or erratically moving surfaces, this would not, by itself, result in a
significant erosion of the unskilled sedentary occupational base.”). Additionally, S.S.R. 96-9p
clarifies that Plaintiff’s ability to do only frequent (as opposed to constant) fingering did not
significantly erode her sedentary occupational base. S.S.R. 96-9p (noting that “[m]ost unskilled
sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions,” but
not stating that perfect use is required). According to S.S.R. 96-9p, Plaintiffs need to avoid
concentrated exposure to temperature extremes, wetness, humidity, or hazards such as
unprotected heights or dangerous moving machinery did not significantly erode her sedentary
occupational base. S.S.R. 96-9p (“[F]ew occupations in the unskilled sedentary occupational
base require work in environments with extreme cold, extreme heat,.. humidity.
.

.

.

,

or

unusual hazards.”). Moreover, S.S.R. 96-9p clarifies that Plaintiffs ability to understand,
remember, and carry out simple instructions did not significantly erode her sedentary
occupational base. S.S.R. 96-9p (noting that the ability to understand, remember, and carry out
simple instructions is generally required by competitive, remunerative, unskilled work). Lastly,
S.S.R. 96-9p clarifies that Plaintiffs ability to do only occasional stooping did not significantly
erode her sedentary occupational base. S.S.R. 96-9p (“[R]estriction to occasional stooping

22

_______________________

should, but itself, only minimally erode the unskilled occupational base of sedentary work); see
also Breslin v. Cornrn’r of Soc. Sec., 509 F. App’x 149, 155 (3d Cir. 2013) (citing S.S.R. 96-9p

for proposition that sedentary occupational base is not eroded by ability to stoop occasionally).
IV.

CONCLUSION
The Court has reviewed the entire record and, for the reasons discussed above, finds that

the AU’s determination that Plaintiff was not disabled was supported by substantial evidence.
Accordingly, the AU’s decision is affirmed. An appropriate order accompanies this opinion.

DATED:January,2014
JOSE L. LINARES
JJ.S. DISTRICT JUDGE

23