RODGERS v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Madeline C. Arleo on 7/1/2015. (anr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 13-7767
July 1, 2015
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
ARLEO, UNITED STATES DISTRICT JUDGE.
Before this Court is Plaintiff Patricia Rodgers’ (“Plaintiff’) request for review, pursuant
to 42 U.S.C.
1383(c)(3), 405(g), of the Commissioner of Social Security Administration’s
(“Commissioner”) denial of Plaintiffs application for Supplemental Security Income Benefits
(“SSI”). Plaintiff argues that: (1) the Commissioner’s decision was not supported by substantial
evidence; and (2) the Commissioner erred in failing to submit a requested limitation to the
Vocational Expert (“yE”). For the reasons set forth in this Opinion, the Court finds that the
Commissioner’s decision is supported by substantial evidence, and therefore must be
I. STANDARD OF REVIEW AND APPLICABLE LAW
A. Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.
This Court must affirm the Commissioner’s decision if there exists substantial
evidence to support the decision. 42 U.S.C.
§ 405(g); Marlde v. Bamhart,
324 F.3d 182, 187 (3d
Cir. 2003). Substantial evidence, in turn, “means such relevant evidence as a reasonable mind
might accept as adequate.”
Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995).
differently, substantial evidence consists of “more than a mere scintilla of evidence but may be
less than a preponderance.” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004).
“[T]he substantial evidence standard is a deferential standard of review.”
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Accordingly, the standard places a significant limit
on the district court’s scope of review: it prohibits the reviewing court from “weigh[ing] the
evidence or substitut[ing] its conclusions for those of the fact-finder.” Williams v. Sullivan, 970
F.2d 1178, 1182 (3d Cir. 1992). Therefore, even if this Court would have decided the matter
differently, it is bound by the AU’s findings of fact so long as they are supported by substantial
evidence. Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012) (quoting Fargnoli v.
Massanari, 247 F.3d 34, 35 (3d Cir. 2001)).
In determining whether there is substantial evidence to support the Commissioner’s
decision, the Court must consider: “(1) the objective medical facts; (2) the diagnoses of expert
opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective
evidence of pain testified to by the claimant and corroborated by family and neighbors; and (4)
the claimant’s educational background, work history, and present age.” Blalock v. Richardson,
483 F.2d 773, 776 (4th Cir. 1973).
B. The Five-Step Disability Test
In order to determine whether a claimant is disabled, the Commissioner must apply a
five-step test. 20 C.F.R.
404.1520(a)(4). First, it must be determined whether the claimant is
currently engaging in “substantial gainful activity.” 20 C.F.R.
404.1 520(a)(4)(i). “Substantial
gainful activity” is defined as work activity, both physical and mental, that is typically performed
for either profit or pay. 20 C.F.R.
404.1572. If it is found that the claimant is engaged in
substantial gainful activity, then he or she is not disabled and the inquiry ends. Jones, 364 F.3d
at 503. If it is determined that the claimant is not engaged in substantial gainful activity, the
analysis moves on to the second step: whether the claimed impairment or combination of
impairments is “severe.”
The regulations provide that an
impairment or combination of impairments is severe only when it places a significant limit on
the claimant’s “physical or mental ability to do basic work activities.” 20 C.F.R.
If the claimed impairment or combination of impairments is not severe, the inquiry ends and
benefits must be denied. Id.; Ortega v. Comm’r of Soc. Sec., 232 F. App’x 194, 196 (3d Cir.
At the third step, the Commissioner must determine whether there is sufficient evidence
showing that the claimant suffers from a listed impairment or its equivalent.
404.1 520(a)(4)(iii). If so, a disability is conclusively established and the claimant is entitled to
benefits. Jones, 364 F.3d at 503. If not, the Commissioner must ask at step four whether the
claimant has residual functional capacity (“RFC”) such that he is capable of performing past
relevant work; if that question is answered in the affirmative, the claim for benefits must be
Finally, if the claimant is unable to engage in past relevant work, the Commissioner
must ask, at step five, “whether work exists in significant numbers in the national economy” that
the claimant is capable of performing in light of “his medical impairments, age, education, past
work experience, and ‘residual functional capacity.”
Jones, 364 F.3d at 503. If so, the claim for benefits must be denied. The claimant bears the
burden of establishing steps one through four, while the burden of proof shifts to the
Commissioner at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Under 42 U.S.C.
405(g) and Third Circuit precedent, this Court is permitted to “affirm,
modify, or reverse the [Commissioner’s] decision with or without a remand to the
[Commissioner] for a rehearing.” Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984);
Bordes v. Comm’r of Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir. 2007). While an outright
reversal with an order to award benefits is permissible in the presence of a fully developed record
containing substantial evidence that the claimant is disabled, the Court must order a remand
whenever the record is incomplete or lacks substantial evidence to justify a conclusive finding at
one or more of the five steps in the sequential analysis.
$ Podedworny, 745 F.2d at 22 1-22.
A. Procedural History
This case arises out of Plaintiff’s application for SSI filed on July 8, 2010, which was
denied initially on February 2, 2011, and on reconsideration on July 23, 2011. Tr. 20, 86-88, 99,
114, 120-22. Plaintiff then sought review before an administrative law judge, and a hearing
before the Honorable Barbara Dunn (the “AU”) occurred on June 27, 2012. Tr. 20. Following
the hearing, the AU issued a decision on July 27, 2012, in which she found that Plaintiff was not
disabled because jobs existed in significant numbers in the national economy that Plaintiff could
perform. Tr. 20-28. Plaintiff then sought review before the Appeals Council, a request that was
denied on October 25, 2013. Tr. 5-7. Having exhausted her administrative remedies, Plaintiff
then timely filed the instant action on December 21, 2013. Dkt. No. 1, Compl.
B. Factual Background
Plaintiff is a 43-year-old woman who alleged in her application for SSI that she had been
disabled since January 1, 2010.
Plaintiff claims that she suffers from depression,
bipolar disorder, cyclothymic disorder, chronic migraines, chronic depression, asthma, and
anxiety, the severity of which prevent her from performing her prior work as a cashier.
101-02, 191, 249.
Plaintiff also has a history of substance abuse, although it has been in
remission since 2003. See Tr. 255, 299, 385. Due to her anxiety, Plaintiff claims to leave her
house only to go to doctor’s appointments, although she attends services at her mosque,
sometimes four days per week, and talks to people there. Tr. 49-51, 205, 300. Instead of going
outside, Plaintiff does daily housework, such as cooking and taking care of her children, so long
as her migraines permit. See Tr. 49, 205, 214, 300. She also claims to have mood swings as a
result of her bipolar disorder.
$ Tr. 299. She says that some days her depression causes her to
feel sad, to the point of not leaving her bed. Tr. 53. Plaintiff further states that during her
migraines she is sensitive to excessive noise and light, and that she cannot read for more than
thirty minutes at a time because doing so will cause a migraine. Tr. 42, 52-53. In addition, she
suffers up to two asthma attacks per year, though her asthma has been controlled by the
medications Albuterol and Advair. Tr. 268, 279, 308. In order to treat her various conditions,
Plaintiff has been prescribed medications such as Butalbital for her migraines, Methadone for her
substance abuse, and Abilify, Elavil, Lexapro, and Zoloft for her depression and bipolar disorder.
Tr. 202, 227, 382-83, 426.
Based on the evidence, it appears that Plaintiff began seeking treatment for her asthma,
migraines, and allergies with Dr. Augustine Eleje on or around March 1, 2006. See Tr. 293.
Plaintiff then began treatment with Dr. Mary Cantey, as her primary physician for the same
disorders, from February 14, 2007, until about August 25, 2010. See Tr. 265, 288. As treatment
progressed, the complaints of migraines became less persistent, and at one point had stopped
completely, before resuming in late 2009. See Tr. 275, 277-85. On August 25, 2010, Dr. Cantey
recorded, however, that Plaintiff’s migraines had improved. Tr. 265. At the same visit, Dr.
Cantey also noted that Plaintiff had been seen by neurologists to examine her migraines.’ Tr.
Dr. Cantey also treated Plaintiff’s depression, which she noted had been controlled by
Amytriptyline. Tr. 275, 279, 283. Lastly, Dr. Cantey had treated Plaintiff’s asthma, which was
controlled by both Advair and Albuterol. Tr. 268, 279.
Dr. Stuart Belenker, Plaintiff’s psychiatrist, and Dr. Frank Baffige, Plaintiff’s therapist,
conducted a joint initial examination of Plaintiff on June 1, 2010, at the UMDNJ. Tr. 384.
Plaintiff complained primarily of stress and depression, and though she had a one-time suicidal
ideation in 2006, she had not had another since then or on any other occasion. See Tr. 384-85.
Her interpersonal problems were recorded, as well as possible psychological and cognitive
issues. See Tr. 386-87. The examination did, however, indicate that Plaintiff “has friends” and
“can be social.” Tr. 386. It was also recorded that she was “fully oriented,” had “average”
intelligence, and “good” remote memory. Tr. 389. Ultimately, Plaintiff was determined to have
a global assessment of functioning (“OAF”) score of 51, indicating “Moderate Symptoms or
Difficulty in Functioning.” Tr. 390. Dr. Belenker continued to monitor Plaintiff once a month,
Dr. David A. Marks, a neurologist at the University of Medicine and Dentistry of New
Jersey (“UMDNJ”) examined Plaintiff’s migraines. Tr. 327. Dr. Marks performed an
examination on Plaintiff on August 16, 2011, and opined that the headaches may be stress
related. Id. Results from a CT scan indicated them to be “tension headaches,” and Dr. Marks
advised exercising more as a means to reduce severity. j4,
Dr. Belenker used the DSM-IV multi-axial scale for his diagnosis. Axis I deals with
clinical disorders (such as bipolar disorder); Axis II deals with personality disorders; Axis III
deals with general medical conditions; Axis IV deals with psychosocial and environmental
occasionally indicating minimal improvement and progression towards her goals. See, e.g., Tr.
409. It had been consistently recorded that Plaintiff could sleep for at least five hours per night
on most nights, and that her anxiety was decreasing. See, e.g., Tr. 391. In March of 2011, Dr.
Baffige had indicated that Plaintiff had been missing therapy due to problems with her son. See
Tr. 414. A report dated September 9, 2011, however, indicates that Plaintiff had attended a
therapy session on that date.
$ Tr. 446.
On November 17, 2010, Dr. Marc Friedman performed a mental examination on Plaintiff
at the request of the New Jersey Division of Disability Services, as part of the SSI application
process. See Tr. 299-301. Dr. Friedman found that Plaintiff had been diagnosed with bipolar
disorder, but had stopped the treatment. Tr. 299. He also indicated that a prescribed medication,
Butalbital, relieved her tension headaches after one half hour. Id. Dr. Friedman indicated that
Plaintiff spoke clearly, had good eye contact, had no hallucinations or delusions, and had no
reporting of suicidal ideation or intent. Tr. 300. Overall, her intelligence was estimated to be in
the low-average range, with her memory being mildly impaired, though she had adequate
She was able to perform routine housework during the day, attended her
mosque service twice a week, and talked to relatives on the phone. Id. His final diagnosis was
bipolar disorder, and a GAF score of 55. Tr. 301. His conclusion and recommendations were
that the claimant was capable of managing funds without assistance, and the prognosis was fair
with continued treatment, which he expected to last at least one year.
On January 18, 2011, Dr. Rambhai C. Patel, also performed an examination on Plaintiff,
at the request of the New Jersey Division of Disability Services.
See Tr. 305-12.
problems; and Axis V deals with the person’s GAF. The Court notes that DSM-IV was
supplanted by DSM-5 on May 18, 2013, and DSM-5 no longer uses the multi-axial system. At
the time of Dr. Belenker’s examination, however, the multi-axial diagnostic system was widely
accepted as the best tool for assessing mental disorders.
claimed that, although medication helped, her headaches occurred around six times per week,
and could last anywhere from thirty minutes to an hour. Tr. 308. Plaintiff also claimed she
suffered from bipolar disorder, aided by medication, with “episodes” up to four times per week.
Id. Dr. Patel also noted Plaintiff’s asthma, which could cause up to two attacks per year, was
controlled by medication. Id. Dr. Patel ultimately diagnosed Plaintiff with bipolar disorder, and
noted a history of chronic headaches and chronic asthma. Tr. 310.
On appeal before the Appeals Council, Plaintiff also included two pieces of evidence that
were generated after the AU’s decision. See Tr. 5, 448-460. First, on an examination report
recorded on September 2, 2012, Dr. Belenker indicated that Plaintiff had suffered from
depression, bipolar disorder, and anxiety. Tr. 458. He also indicated that these disorders would
last at least one year, that Plaintiff was unfit to work, and that Plaintiff is a likely candidate for
SSI. Tr. 459. Second, Plaintiff included medical documents indicating a positive test for Herpes
Simplex 1 & 2, which had been recorded on July 27, 2012. Tr. 453. The Appeals Council
considered the evidence, but nonetheless denied the appeal.
C. The AU’s Decision
In her July 27, 2012, decision, the AU first noted that Plaintiff was not engaging in
substantial and gainful activity since the application date of July 8, 2010, and that Plaintiff
suffered from the following severe impairments: (1) migraine headaches; and (2) bipolar
disorder. Tr. 22. The AU determined, however, that Plaintiffs history of substance abuse was
not material to the severity determination because the records indicated that the claimant was in
remission. Id. Having found that Plaintiff satisfied steps one and two of the analysis, the AU
moved on to step three, in which she found that Plaintiffs impairments or a combination thereof
did not meet or equal a listed impairment.
In reaching the step three determination, the AU first considered Plaintiffs history of
substance abuse under Listing 12.09 (substance addiction disorders) of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1 (“Appendix 1”).
The AU determined that it did
not “meet or medically equal the criteria of that listing.”
Next, the AU
determined that the mental impairments, “considered singly, and in
combination, do not meet or medically equal the listing of 12.04, 3 [(affective disorders;
schizophrenic, paranoid, and other psychotic disorders)].” Id. The AU determined that Plaintiff
did not have bipolar syndrome with the “full symptomatic picture of both manic and depressive
syndromes, and currently characterized by either or both symptoms.” Id. In determining this,
the AU measured the mental impairments against the “paragraph B” criteria of Listing 12.00
Adult) in Appendix 1, which are: marked restriction of activities of daily
living; marked difficulties in maintaining social fimctioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation. Tr. 23. “Marked”
is characterized as “more than moderate but less than extreme.” Id. The AU determined that
restrictions of daily living were mild, restrictions of social functioning were moderate,
restrictions on concentration, persistence, or pace were moderate, and there were no repeated
episodes of decompensation. Id. As a result, Plaintiff did not meet the required, “two ‘marked’
limitations, or one ‘marked’ limitation and ‘repeated’ episodes of decompensation.”
Next, the AU did a “paragraph C” assessment of Listing 12.00 in Appendix 1 for the
claimed mental impairments.
Rh The AU first determined that Plaintiff did not have a
“medically documented history of a[n]
other mental impairment or affective disorder of at
least two years’ duration causing more than a minimal limitation of ability to do basic work
with repeated episodes of decompensation, each of extended duration.” Id.
Next, the AU
determined that Plaintiff did not have a “residual disease process” that would result in
decompensation with a “minimal increase in mental demands or change in the environment.” jçj
Lastly, the AU determined that the evidence did not establish current history of one or more
years’ inability to function outside of a supportive living arrangement. jçj Having determined
that Plaintiff did not satisfy any step three listing requirements, the AU proceeded to step four.
At step four, the AU first determined Plaintiff’s RFC. Tr. 23-24. The AU determined
that Plaintiff had an RFC which permitted simple, routine tasks on a sustained basis, and a full
range of work at all exertional levels, but with the following nonexertional limitations: (1) she
can be exposed to dust, fumes, or gases no more than occasionally; (2) she cannot climb ladders,
ropes, or scaffolds; (3) no more than occasional public contact; and (4) she cannot be exposed to
bright lighting, or to greater than moderate noise level. Id.
In determining Plaintiff’s RFC, the AU first looked to Plaintiff’s testimony regarding her
subjective feelings of pain from her migraines, as well as her uneasy feeling of being around
people, her claimed mood swings, and her asthma. See ii The AU, however, also weighed the
statements from Plaintiff against the objective evidence in the record.
Tr. 25. The AU
considered the evidence from Dr. Marks and Dr. Nelson 0. Aluya, who were the diagnosing
neurologists of Plaintiff’s tension headaches, as well as evidence from Dr. Belenker, who treated
The AU found the pain from the headaches to be legitimate, as shown
by the inclusion of the proposed noise and light limitations in the RFC determination.
The AU then also considered evidence from Dr. Cantey, who indicated that Plaintiff’s
asthma was under control with medication. Tr. 25. The AU considered evidence from Dr.
Patel, who examined Plaintiff’s headaches, asthma, and bipolar disorder. Id. The AU further
noted that Plaintiff’s history of substance abuse had been in remission since 2003. Id. Lastly,
the AU considered the findings of Dr. Friedman, Dr. Cantey, and Dr. Belenker regarding
Plaintiff’s depression, bipolar disorder, and mental capacity. $çç j4,. The AU noted that Dr.
Belenker was the only doctor who had explicitly indicated that Plaintiff was unfit to work;
however, in indicating so, he had gone against the evidence in the record, and against his own
findings. Tr. 26. Thus, the AU gave the opinion of Dr. Belenker “little weight.” Id.
The AU gave “great weight” to Dr. Friedman’s November 17, 2010, report, as well as
the Disability Determination Explanation Reports (“DDS Reports”), regarding Plaintiff’s mental
Dr. Friedman indicated that Plaintiff was alert, and able to provide a
Dr. Friedman also noted that Plaintiff had good eye contact, no
hallucinations or delusional thinking, and no suicidal thoughts. Id. The AU also acknowledged
that Dr. Friedman diagnosed Plaintiff with bipolar disorder, a GAF of 55, was competent to
manage funds without assistance, and had a fair prognosis. Id.
After determining Plaintiff’s RFC, the AU consulted with a VE to determine if Plaintiff
could perform past relevant work.
After determining that Plaintiff could not perform past
relevant work, the AU had to determine if Plaintiff could perform other jobs that existed in
significant numbers in the national economy. Tr. 27. The VE provided the AU with three of
such jobs, using Plaintiff’s RFC, age, education, and work experience. See id. Relying upon the
testimony of the yE, in conjunction with the Dictionary of Occupational Titles, the AU
concluded that a significant number of other jobs existed.
determined that Plaintiff was not disabled. Tr. 28.
Accordingly, the AU
A. The AU’s RFC Determination
Plaintiff argues that the Commissioner did not properly evaluate the medical evidence
and, in failing to do so, did not give proper weight to the complaints of the headaches, asthma,
and mental impairments suffered. The issue, however, to be determined by this Court is not
whether it agrees with the AU’s ultimate determination, but rather if there is substantial
evidence to support the decision rendered. See Hagans, 694 F.3d at 292.
1. Commissioner’s Evaluation of Medical Evidence
In rendering her decision, the AU points to the same examinations and testimony that
Plaintiff has used as a basis for her own arguments. Plaintiff, however, argues that the AU did
not provide reasoning for rejecting certain evidence, and that the AU failed to expressly state
which pieces of evidence she was primarily relying upon.
$ Plummer v. Apfal, 186 F.3d 422,
429 (3d Cir. 1999) (citing Stewart v. Sec’y of H.E.W., 714 F.2d 287, 290 (3d Cir. 1983)). The
In reaching her decision, an AU must consider all pertinent evidence and explain her
reasons for discounting contradictory evidence. Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,
121-22 (3d Cir. 2000).
The opinion of a treating physician, such as Dr. Belenker, is due
controlling weight, so long as it is not inconsistent with the substantial evidence of the record,
and is well-supported by medically acceptable techniques. 20 C.F.R.
186 F.3d at 429 (quotation omitted).
§ 416.927(d)(2); Plummer,
Nevertheless, “a treating physician’s opinion may be
rejected on the basis of contradictory medical evidence, or may be accorded less weight
depending upon the extent to which a supporting explanation is provided for the opinion.”
Cunningham v. Comm’r of Soc. Sec., 507 F. App’x 111, 118 (3d Cir. 2012) (citing Plummer,
186 F.3d at 429 (quotation omitted)).
The AU expressly stated that she gave “great weight” to the findings made by Dr.
Friedman, the examining physician, and the DDS Reports, while giving “little weight” to the
findings made by Dr. Belenker. Tr. 26. The AU stated that Dr. Belenker’s findings indicated
that Plaintiff had no suicidal thoughts, average intelligence, was fully oriented, and had intact
See Tr. 26, 384-90. Dr. Belenker also found that Plaintiff did not have any
violent behavior, signs of mania, or hospitalization due to her mental illness.
Belenker’s report also indicates that Plaintiff “can be social” and “has friends.” Tr. 386. The
AU compared these findings to the findings of Dr. Friedman, and the record as a whole, and
reasonably decided that Dr. Belenker’s opinion that Plaintiff was “unfit to work” was not
corroborated by either the objective medical evidence or his own treating notes. $ç Tr. 26.
Thus, the Court finds that the AU’s reasoning for rejecting Dr. Belenker’s opinion was
adequately stated, and the AU’s decision to afford it little weight is supported by substantial
Plaintiff also contends that the “paragraph B” and “paragraph C” mental impairment
determinations made by the AU were unsupported by the evidence. She takes exception to the
AU’s finding in the “paragraph C” determination that the “minimal” standard of the limitation to
doing basic work had not been met. The evidence in the record, however, gives no indication of
“repeated episodes of decompensation” which is a necessary element of fulfilling “paragraph C.”
See Tr. 23, 83, 95, 106. In addition, the evidence throughout the record largely indicates that
Plaintiff is able to perform basic housework, as indicated through her own admission that she
cooks, cleans, and takes care of her children. See Tr. 205, 300. Therefore, the AU was correct
in determining that there was not more than a “minimal limitation in performing basic work, with
repeated episodes of decompensation.” Tr. 23. Regarding the “paragraph B” determination, the
noted that she gave “great weight” to the DDS Reports, which indicated that the
impairments did not satisfy “two marked or one marked with repeated episodes of
Tr. 26, 82-83, 95, 106.
Thus, the AU’s determinations at
paragraphs “B” and “C” for the mental impairments are supported by substantial evidence. Tr.
82-83, 95, 106.
2. Commissioner’s Credibility Assessment of Subjective Statements
Plaintiff argues that the Commissioner needed to make specific findings of fact in
determining that Plaintiffs subjective statements were not credible, and did not amount to a
disability. See Hargenrader v. Califano, 575 F.2d 434, 436 (3d Cir. 1978). Plaintiff, however,
bears the burden of proof in providing objective medical evidence in support of the extent to
which her subjectively declared impairments would reasonably be expected to limit her. $ç 42
423 (d)(5)(A); see also 20 C.F.R.
416.929(b); accord Hartranft v. Apfel, 181 F.3d
358, 362 (3d Cir. 1999) (holding that the objective medical evidence did not corroborate the
subjective impairments claimed).
Ultimately, the AU
has the discretion to evaluate the
credibility of Plaintiff, and to render an independent judgment in light of the objective medical
evidence provided. LaCorte v. Bowen, 678 F. Supp. 80, 83 (D.N.J. 1988) (quoting Brown v.
Schweiker, 562 F. Supp. 284, 287 (E.D. Pa. 1983)).
Nonetheless, “[wihere a claimant’s
testimony as to pain is reasonably supported by medical evidence, the AU may not discount
claimant’s pain without contrary medical evidence.” Chrupcala v. Heckler, 829 F.2d 1269, 1276
n.10 (3d Cir. 1997). In this case, the AU properly indicated that the objective medical evidence
produced by Plaintiff did not support a finding of a disability.
The AU made note of all of Plaintiff’s various impairments alleged, and expressly
addressed them using medical evidence from the record. For example, the AU noted findings
made by Dr. Marks in diagnosing the headaches as “tension headaches” following a CT exam.
Tr. 24. The AU also noted the treatment provided by Dr. Cantey, and addressed Plaintiff’s
asthma, saying that it had been controlled with her medication. Tr. 25. Additionally, the AU
acknowledged Dr. Belenker’ s suggestion of Plaintiff being unfit to work, though dismissed it due
to its contradiction of the record as a whole, and his own individual findings. Tr. 26. Plaintiff
also argues that she suffers from suicidal thoughts; however, they were a self-admitted one-time
occurrence in 2006.
Sç Tr. 300, 3 84-85. The AU also expressly relied upon the findings of Dr.
Friedman and the DDS Reports, which had supported the inclusion of some of Plaintiff’s
proposed limitations in Plaintiff’s RFC, but did not warrant complete deference to all of
Plaintiff’s complaints. $ç Tr. 26-27. Ultimately, the Court finds that the AU made the proper,
specific, findings of fact regarding the credibility of Plaintiff’s subjective statements, in light of
the objective evidence.
Additionally, the Court finds that the pieces of evidence introduced subsequent to the
AU’s decision do not warrant remand. Regarding Dr. Belenker’s report, the AU explicitly
stated that she afforded his opinion “little weight,” and the remarks in his report that Plaintiff
should qualify for SSI, without more, are unimpressive to the Court. Tr. 26, 458-59. Regarding
the contraction of Herpes, Plaintiff failed to identify any limiting effects caused by its
Furthermore, the Appeals Council had notice of both pieces of
evidence and was not swayed by them, as shown by their denial of the request for appeal. $ç
Tr. 5, 448.
Based on the extent to which the AU examined each individual impairment, and how she
supported her decision by citing to many of the various doctors’ examinations and findings, the
Court is satisfied that the AU provided “a clear and satisfactory explication of the basis on
which [her RFC determination] rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
3. Proposed Break Limitation
Finally, Plaintiff argues that the AU erred in failing to include a requested limitation in
determining Plaintiff’s RFC, specifically that Plaintiff must be afforded an extra one to two
hours of break per day for her headaches. Tr. 76. While Plaintiff is correct that the questions
posed to the VE must “accurately portray the claimant’s physical and mental limitations,”
Schonewolfv. Callahan, 972 F. Supp. 277, 289 (D.N.J. 1997), the AU does not have to take into
account every limitation alleged by the claimant. See Rutherford v. Barnhart, 399 F.3d 546, 554
(3d Cir. 2005) (citing Podedworny, 745 F.2d at 218). Rather, the AU must convey only the
claimant’s credibly established limitations.
In failing to ultimately impose the proposed limitation, that Plaintiff must be provided
one to two hours of added break, the AU decided that the evidence in the record did not support
such a limitation. The AU noted that she afforded “great weight” to Dr. Friedman’s report,
which found that the headaches would start to be relieved after thirty minutes with medication.
Tr. 26. Furthermore, in Dr. Patel’s report, the headaches were claimed to last “thirty minutes to
an hour.” Tr. 308. The AU reasonably determined that these findings did not give credibility to
the requested limitation.
Because the AU did not err in excluding the requested limitation, and the VE testified
that there are enough jobs in the national and regional economies for a person with Plaintiff’s
RFC, the AU properly concluded that the Commissioner met its burden at step five. See Craigie
v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987) (finding 200 total regional jobs to be “clear indication”
that significant work in the national economy existed); see also Ahmad v. Comm’r of Soc. Sec.,
531 F. App’x 275, 278 (3d Cir. 2013) (citing Craigie with approval and holding that 569 jobs
Because the Court finds that the AU’s decision is supported by substantial evidence, the
Commissioner’s disability determination is AFFIRMED. An appropriate order will follow.
Is Madeline Cox Arleo
HON. MADELINE COX ARLEO
UNITED STATES DISTRICT JUDGE
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