MARKULIN v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Kevin McNulty on 10/15/15. (cm )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Stacie MARKULIN,

Civ. No. 2: 14-02612 (KM)

Plaintiff,
OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Stacie Markulin brings this action under 42 U.S.C.

§ 405(g) to review a

final decision of the Commissioner of Social Security (“Commissioner”) denying
her claim for Title II Disability Insurance Benefits (“DIB”). Markulin alleges that
she is unable to engage in substantial gainful activity because she suffers from
1
a liver and blood disorder. (R. 226, ECF No. 10)

For the reasons set forth below, the AU’s decision is AFFIRMED.

I.

BACKGROUND
Markulin seeks judicial review of an AU’s finding that she was not

disabled from August 1, 2007, through the date she was last insured, June 30,
2009. Markulin applied for DIB on January 6, 2010, for a period of disability
beginning August 1, 2007. (R. 222) Her claims were first denied on August 19,
2010, and again on reconsideration on November 6, 2010. (R. 161—64, 166—68)
On November 19, 2010, Markulin filed a request for a hearing. (R. 169—70) On
November 22, 2011, a hearing was held, at which Markulin appeared and was
“R.” refers to the pages of the administrative record filed by the Commission as
part of her answer. (ECF No. 10)

represented by counsel. (R. 23) A medical expert, Martin A. Fechner, also
appeared and testified at the hearing. (Id.) On October 26, 2012, Administrative
Law Judge (“AU”) Joel Friedman denied Markulin’s application for DIB. (R. 20—
31) On February 19, 2014, the Appeals Council affirmed AU

Friedman’s

decision. (R. 1—3) Markulin now appeals that decision.

II.

DISCUSSION
To qualify for Title II DIB benefits, a claimant must meet the insured

status requirements of 42 U.S.C.

§ 423(c). A claimant must show that she is

unable to engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or that has lasted (or can be expected to last) for a continuous period of
not less than twelve months. 42 U.S.C.

§ 423(d)(1)(A), §1382(a)(3)(A).

a. Five-Step Process and this Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R.

§ 404.1520, 4 16.920.

Review necessarily incorporates a determination of whether the AU properly
followed the five-step process prescribed by regulation. The steps may be briefly
summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.
404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.

§ 404.1520(c),

4 16.920(c). If the claimant has a severe impairment, move to step
three.
Step 3: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20
2

§

C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is
automatically eligible to receive benefits; if not, move to step four.
Id.

§ 404.1520(d), 4 16.920(d).

Step 4: Determine whether, despite any severe impairment, the claimant
retains the Residual Functional Capacity (“RFC”) to perform past relevant
work. Id.

§ 404.1520(e)—(f), 416.920(e)—(f). If not, move to step five.

Step 5: At this point, the burden shifts to the SSA to demonstrate
that the claimant, considering her age, education, work experience,
and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 C.F.R.

§ 404.1520(g),

416.920(g); see Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91—92
(3d Cir. 2007). If so, benefits will be denied; if not, they will be
awarded.
As to all legal issues, this Court conducts a plenary review. Schaudeck v.
Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to factual issues, this
Court will adhere to the AU’s findings, as long as they are supported by
substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d Cir. 2004)

§ 405(g)). Where facts are disputed, this Court will “determine

(citing 42 U.S.C.

whether the administrative record contains substantial evidence supporting the
findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607, 610 (3d
Cir. 2014) (internal quotation and citation omitted). Substantial evidence “is
more than a mere scintilla but may be somewhat less than a preponderance of
the evidence.” Id. (internal quotation and citation omitted).
[I]n evaluating whether substantial evidence supports the AU’s
leniency should be shown in establishing the
findings.
the Secretary’s responsibility to rebut
claimant’s disability, and
construed. Due regard for the beneficent
it should be strictly
purposes of the legislation requires that a more tolerant standard
be used in this administrative proceeding than is applicable in a
.

.

.

.

.

3

typical suit in a court of record where the adversary system
prevails.
Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and
quotations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.

§ 405(g)); Zimsak, 777 F.3d at 610—11 (“[Wje are

mindful that we must not substitute our own judgment for that of the fact
finder.”).
This Court may, under 42 U.S.C.

§ 405(g), affirm, modify, or reverse the

Secretary’s decision, or it may remand the matter to the Secretary for a
rehearing. Podeclworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’rof Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007).
Outright reversal with an award of benefits is appropriate only when a
fully developed administrative record contains substantial evidence which, on
the whole, establishes that the claimant is disabled and entitled to benefits.
Podedworny, 745 F.2d at 22 1-222; Morales v. Apfel, 225 F.3d 310, 320 (3d Cir.
2000); see also Bantleon v. Comm’r of Soc. Sec., 2010 WL 2802266, at *13
(D.N.J. July 15, 2010). Remand is proper if the record is incomplete, or if there
is a lack of substantial evidence to support a definitive finding on one or more
steps of the five step inquiry. See Podedworny, 745 F.2d at 22 1—22. Remand is
also proper if the AU’s decision lacks adequate reasoning or support for its
conclusions, or if it contains illogical or contradictory findings. See Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 119—20 (3d Cir. 2000); Leech v. Barnhart,
111 F. App’x 652, 658 (3d Cir. 2004) (“We will not accept the AU’s conclusion
that Leech was not disabled during the relevant period, where his decision
contains significant contradictions and is therefore unreliable.”). It is also
proper to remand where the AU’s findings are not the product of a complete
review which “explicitly’ weigh[sJ all relevant, probative and available evidence”
in the record. Adomo v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994).

4

b. The AU’s decision
AU

Friedman concluded that from August 1, 2007, through June 30,

2009, Markulin was not disabled. (R. 23) AU

Friedman’s determinations may

be summarized as follows.
At step one, the AU determined that Markulin had not engaged in
substantial gainful activity since August 1, 2007, her alleged disability onset
date. (Id. 25)
At step two, the AU found that Markulin had the following severe
impairments: “liver disease, history of alcohol abuse in remission.” (Id.)
At step three, the AU determined that Markulin’s impairments, alone or
in combination, did not meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Pt. 404 Subpt. P, App. 1 (the “Listings”). (R. 25)
The AU then found that Markulin had the residual functional capacity
(“RFC”) to “perform the full range of sedentary work,” defined in 20 C.F.R. §
404.1567(a). (Id. 26)
At step four, the AU determined that, based on her RFC, Markulin was
unable to perform any past relevant work. (R. 30) The ALAJ found that
Markulin’s past relevant work included working as a cashier, sandwich maker
and sales person. Those jobs “were performed at the light exertional range and
are beyond the RFC reached in this decision.” (Id.) AU

Friedman also found

that Markulin was 46 years old on her alleged disability onset date, which put
her in the category of “younger individual age.” (Id.) The AU also found that
Markulin “had at least a high school education.” (Id.) Transferability of job
skills was “not material to the determination of disability” because Markulin
was not disabled under the Medical-Vocational Rules regardless of
transferability of job skills. (Id.)
At step five, the AU considered Markulin’s “age, education, work
experience, and residual functional capacity” and the Medical-Vocational
Guidlines, and determined that Markulin could perform jobs that exist in

5

significant numbers in the national economy. (Id.) As noted above, such a
finding at step five requires that benefits be denied.
c. Markulin’s appeal

In lieu of a formal brief, Markulin wrote a letter to this Court, asking for
reconsideration in light of the fact that medication she is on makes her “foggy
headed or sleepy” and “keeps [her] in the bathroom.” (Dkt. No. 13) Markulin’s
current prescription drug side-effects do not bear on whether she was disabled
during the period of August 1, 2007 through June 30, 2009 or undermine the
Commissioner’s decision. I will nevertheless construe her request for
reconsideration as a contention that the Commissioner’s decision is not
supported by substantial evidence, or is otherwise erroneous. I find, however,
that the AU’s findings do not contain any errors of law or procedure, and are
supported by substantial evidence.
d. Analysis

Because the AU

found in Markulin’s favor at steps 1, 2 and 4, I will

focus the analysis on the step 3 medical equivalence analysis, the ALl’s RFC
evaluation, and step 5.
I. AU’s step three analysis

Markulin argues that the AU erred in finding that her severe
impairments, alone or in combination, did not meet or medically equal a Listing
set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. The claimant bears the
burden of proving that her impairments, whether individually or collectively,
equal or meet those listed in Appendix 1. However, “if a claimant’s impairment
does not match one listed in Appendix 1, the AU is required to perform a
comparison between the claimant’s impairment(s) and those listed in Appendix
1.” Tori-es v. Comm’r of Soc. Sec., 279 F. App’x 149, 15 1—52 (3d Cir. 2008); see
also 20 C.F.R. § 404.1526(b). The Third Circuit has stated that step three
requires the AU to perform “an analysis of whether and why [the claimant’s
individual impairments], or those impairments combined, are or are not
6

equivalent in severity to one of the listed impairments.” Burnett, 220 F.3d at
119. The AU is “not require[d]. .to use particular language or adhere to a
particular format in conducting [her] analysis”; rather, there must be “a
.

sufficient development of the record and explanation of findings to permit
meaningful review.” Jones, 364 F.3d at 505.
AU

Friedman considered Listing 5.05 relating to chronic liver disease.

As set forth in the AU’s decision, to meet or medically equal Listing 5.05, a
claimant must demonstrate one of seven specified criteria, none of which the
AU found to be satisfied. (R. 26) The seven criteria are as follows:

(a) Hemorrhaging from esophageal, gastric, or ectopic varices or from
portal hypertensive gastropathy, demonstrated by medically
acceptable imaging, resulting in hemodynamic instabilities as defined
by 5.00D5, and requiring hospitalization for transfusion of at least 2
units of blood;
(b) Ascites or hydrothorax not attributable to other causes, despite
continuing treatment, present on at least two evaluations at least 60
days apart within a six-month period, documented by (i) paracentesis
or thoracentesis or (ii) medically acceptable imaging or physical
examination and either a serum albumim level of 3.0 g/dL or less or
INR level of at least 1.5;
(c) Spontaneous bacterial peritonitis with peritoneal fluid containing an
absolute neutrophil count of at least 250 cells/mm3;
(d) Hepatorenal syndrome with serum creatinine elevation of at least 2
mg/dL, oliguria with 24-hour urine output less than 500 mL, or
sodium retention with urine sodium less than 10 mEq per liter;
(e) Hepatopulmonary syndrome with (i) arterial oxygenation or (ii)
documentation of intrapulmonary arteriovenous shunting by
contrast-enhanced echocardiography or macroaggregated albumin
lung perfusion scan;

7

(1) Hepatic encephalopathy and documentation of abnormal behavior,
cognitive dysfunction, changes in mental status or altered state of
consciousness present on at least two evaluations at least 60 days
apart within 6 months, and either (i) history of surgical portosystemic
shunt or (ii) asterixis or other fluctuating physical neurological
abnormalities, electroencephalogram demonstrating triphasic slow
wave activity, serum albumin of 3.0 g/dL or less, or INR of 1.5 or
greater; or
(g) End stage liver disease with SSA CLD scores of 22 or greater.
Having performed a review of the medical records and the testimony of
Dr. Fechner, AU

Friedman found that none of the criteria for Listing 5.05 were

met. There is sufficient evidence in the record to support this finding.
With respect to the paragraph A criteria, the medical record reflects that
Markulin had “suspect[ed] gastric and esophageal varices” on August 21, 2007
(R. 329), “Grade A” esophageal varices were found on March 10, 2008 (R. 473),
rectal varices were noted on October 14, 2010 (R. 350), and esophageal varices
without bleeding were present on January 20, 2011 (R. 370). However, the
record contains no evidence of hemorrhaging from these varices or from portal
hypertensive gastropathy, as required to satisfy paragraph A.
With respect to paragraph B criteria, the medical evidence indicates that
Markulin suffered from ascites on November 8, 2007. (R. 328 (“A large amount
of ascites is seen in the abdomen and pelvis.”); R. 381 (“ascites present” in
abdomen); R. 387 (“massive ascites”)) The records also indicate that Markulin
underwent paracentesis in November 2007. (R. 378) However, November 2007
is the only time the records reflect that Markulin had ascites, and thus the
criteria of two occurrences of ascites within a six month period is not met.
Indeed, the medical records from after November 2007 note “no ascites.” (R.
261 (July 6, 2009), 327 (February 17, 2010)) Furthermore, Markulin’s albumin
and INR levels do not meet the thresholds of Listing 5.05. The medical records
demonstrate that Markulin’s albumin levels were never below 4.1. On one
8

occasion in 2007, her tests showed an INR level of 1.8. However, there were no
other times where Markulin’s readings were above the 1.5 threshold.
As to paragraphs A and B, then, substantial medical evidence supports
the AU’s negative finding. As to paragraphs C through G, the medical records
do not contain any evidence at all. Thus, I find that AU

Friedman’s finding

that Markulin’s impairments did not meet or medically equal Listing 5.05 was
supported by substantial evidence.
With respect to Markulin’s complaints of dizziness, the medical records
reflect that in May 2008, she “nearly passed out” in Dr. Skrzypczak’s office and
was taken to the emergency room. She was given saline and her condition
improved. Medical records note that during her hospital stay she complained of
dizziness and weakness. (R. 469, 472) Markulin was also admitted to the
hospital on August 20, 2009, for “episodes of syncope” (temporary loss of
consciousness caused by a fall in blood pressure), likely caused by low levels of
potassium, but the records note that during her hospital stay, Markulin
experienced no further episodes of syncope, light-headedness or dizziness. (R.
461) At the hearing, Markulin testified that her water pills make her pass out
or get dizzy. (R. 119-20, 122) When pressed, she explained that she passed out
“every once in a while” but that she “get[s} dizzy all the time.” (R. 120, 136) As
of the date of the hearing, November 22, 2012, the last time Markulin had
passed out was in March of 2012. (R. 120) Markulin further testified that she
spends her day cleaning, doing yardwork, cooking, and doing jigsaw puzzles.
(R. 126) She explained that picking items off the floor is difficult for her as she
gets dizzy so she needs to stand up slowly. (R. 126) Markulin also stated that
she is “not allowed out by myself.. .[my husbandi’s afraid that I might pass out.”
(R. 127) In her Function Report dated March 7, 2010, Markulin noted “no
problems with personal care,” that she cooks an hour each day, cleans for over
an hour including vacuuming, dusting and doing laundry, and takes care of
her pets. (R. 235-36) On the other hand, she wrote that she has to “try not to
move around so much so I don’t get dizzy and fall” and that she has “to be
9

careful so I don’t get dizzy when I do anything.” (R. 234, 239) With respect to
dizziness, Dr. Fechner testified:
I just don’t see it in the chart. I’m sure there’s been episodes, but I don’t
see ER visits, hospitalization, anything where it’s been really severe, It is
true that Lasix and Aldactone are water pills and sometimes if one gets
up too quickly there can be problems with dizziness. That would be
reflected in the residual functional capacity, Your Honor. That’s it.
(R. 142)
The AU

properly considered and balanced all of the foregoing evidence.

(R. 27) Although AU Friedman does not mention dizziness specifically at step
three, an AU is not required to repetitively analyze each symptom at each step;
the requirement is that the decision be subject to “meaningful review” by a
reviewing court. See Wilkinson v. Colvin, 2014 WL 1316056, at *8 (D.N.J. Apr.
1, 2014 (finding no error in step three where AU failed to mention dizziness
and other symptoms) (citing Jones, 364 F.2d at 505). I am satisfied from the
decision as a whole that the AU had in mind the evidence as to dizziness and
considered it adequately.
In sum, assessing the record as a whole, I find that AU

Friedman, at

step three, properly considered Markulin’s impairments alone and in
combination to determine if her impairments met or medically equaled the
Listings.
ii. AU’s RFC evaluation
RFC is an assessment of the most a claimant can do despite her
impairments. See 20 C.F.R. §404.1545. To determine a claimant’s RFC, an AU
must engage in a two-step process: first, consider all of a claimant’s symptoms
which can reasonably be accepted as consistent with the objective medical
evidence, and second, determine how those symptoms affect the claimant’s
ability to work. 20 C.F.R. §404.1529. Here, AU Friedman determined that
Markulin had the residual functional capacity to “perform the full range of
10

sedentary work as defined in 20 C.F.R. 404.1567(a).” (R. 26) I find that the AU
sufficiently analyzed the evidence in the record and explained his RFC findings,
which are supported by substantial evidence.
In determining the claimant’s RFC, the AU considered Markulin’s
testimony, the testimony of Dr. Fechner, the reports of Drs. Skrzypczak and
Duhl, and the medical record as a whole. (R. 26-30)
AU

Friedman found that Markulin was told in August of 2007 that her

liver was “bad” and that she thereafter stopped drinking. (R. 27) AU Friedman
also found that Markulin engaged in “limited daily activities,” at least in part
because of her dizzy spells. (R. 27) Markulin testified that she would “love to go
to work” but is told not to by her doctor because when she takes her
prescriptions, she “pass[es] out.” (R. 119-20) Yet Markulin also testified that
the last time she passed out was seven months before the hearing, a point the
AU emphasized in his decision. (R. 27, 120) Furthermore, although she

complained at the hearing of being dizzy “all the time” (R. 120) and noted on
her function sheet that she has to sit most of the day to avoid getting dizzy and
passing out (R. 234), Markulin spends hours a day cooking, cleaning, doing
yardwork and taking care of herself, her home and her pets. (R. 126, 235-36)
While she does complain of getting dizzy when she moves or gets up too fast,
such episodes do not seem to last very long and, as Dr. Fechner noted, can be
avoided by moving more slowly and carefully. (R. 136, 152) As to physical
activities, Markulin testified that she has no physical limitations preventing her
from sitting, that she can stand for thirty minutes before her feet start to
bother her, and that she has no limitations on how far or long she can walk
provided she is not too tired. (1?. 127-29)
AU Friedman relied on Dr. Fechner’s testimony that Markulin’s liver was
stable, her cirrhosis was mild, and that the record was devoid of treatments for
dizziness. (R. 27) Dr. Fechner testified that the liver was the “only thing

...

of

any import” in Markulin’s medical records. (R. 140) Although Markulin suffers
from a cirrhotic liver, Dr. Fechner stated that cirrhosis “can stay stable for
11

long, long periods of time” when the patient stops drinking, which Markulin
has done. (R. 140-4 1) Dr. Fechner also made note of Markulin’s albumin,
bilirubin, enzyme and INR levels, stating that, as of May 2009, her albumin
and bilirubin levels were normal, her enzyme levels were very good, and that
while her INR reading was “a little bit elevated” at 1.4, that reading was an
improvement upon her INR of 1.8 in 2007. (R. 141)
With regard to the complaint of dizziness, Dr. Fechner testified that
Markulin “could do a full range of sedentary activity at this point” but that
because of her occasional dizziness, she should not be “up on scaffolding or
ladders, exposed areas” and that she should not be “near heavy, dangerous
machinery.” (R. 143) When asked about postural limitations, Dr. Fechner said
that as to stooping and bending, Markulin had no limitations (although he later
clarified that those activities should be undertaken “carefully and
occasionally”), and that crouching should be only occasional. (R. 143, 152)
AU Friedman also took note of the reports of Dr. Skrzypczak, who had

opined that Markulin could only stand for 15 minutes, but not during a
workday, could not lift 5 pounds and had a very limited RFC as a result of a
number of conditions. (R. 28-9) Dr. Fechner testified that he disagreed with Dr.
Skrzypczak’s reports because Markulin’s cirrhosis was stable, her ascites had
occurred only once (in 2007), and the medical record contained no support for
Dr. Skryzpczak’s other diagnoses. (R. 28) AU Friedman was persuaded by Dr.
Fechner’s analysis. He afforded Dr, Skrzypczak’s report little weight because
the reports were dated in 2011, well after the last date insured, the diagnoses
were contradicted by the other medical evidence, and Dr. Skrzypczak’s
recommended RFC was not supported by the evidence. (R. 29)
Finally, AU Friedman considered Dr. Duhl’s report, but noted that the
report was devoid of complaints or treatments for dizziness and that it
indicated that the examinations were normal. (R. 29)

12

In sum, the record as a whole supports the AU’s conclusion as to
Markulin’s RFC and adequately explains how AU Friedman made his
determination. The RFC is thus supported by substantial evidence.
iii. AU’s step five analysis
AU

Friedman determined that Markulin, given her age, education, work

experience and RFC, was able to perform all or substantially all of the
exertional demands at a sedentary exertional level, and that Medical-Vocational
Rule 201.21 therefore directed a finding that Markulin was not disabled. (R. 30)
At step five, the Commissioner bears the burden on showing that the
claimant can perform work which exists in the national economy, in light of her
age, education, work experience and RFC. 20 C.F.R.

§ 404.1520(a)(4)(v). The

analysis may depend on whether the claimant has only exertional limitations,
or has non-exertional limitations. Exertional limitations are impairment-caused
limitations that affect a claimant’s ability to meet the strength demands of a
job: sitting, standing, walking, lifting, carrying, pushing, and pulling. See 20
C.F.R.

§ 404.1569a; SSR 96-9p, 1996 WL 374185 (Jul. 2, 1996). Non

exertional limitations are impairment-caused limitations that affect a
claimant’s ability to meet the other demands of a job, including mental
capabilities; vision and hearing; postural functions such as climbing,
balancing, stooping, kneeling, crouching, crawling, reaching, handling,
fingering and feeling; and environmental restrictions. See 20 C.F.R.

§

404. 1569(a)(c)(1)(i-vi); SSR 96-9p.
Where a claimant has only exertional limitations, the Commissioner may
utilize the Medical-Vocational Rules to determine whether such work exists.
The Medical-Vocational Rules set forth tables with various combinations of age,
education, work experience and RFC, and direct a finding of disabled or not
disabled for each combination. See 20 C.F.R. Part 404, Subpt. P, App’x 2.
“When the four factors in a claimant’s case correspond exactly with the four
factors set forth in the grids, the AU

must reach the results the grids reach.”

13

Sykes v. Apfel, 288 F.3d 259, 263 (3d Cir. 2000). However, this applies only to
exertional limitations; where the claimant has significant non-exertional
limitations, the grids provide only a framework, and the AU must consider
additional evidence to determine whether there are jobs in the national
economy that someone with the claimant’s combination of impairments could
perform. Id. at 270.
Where a claimant has non-exertional impairments, an AU

is permitted

to rely on Social Security Rulings (“SSR”) as the additional evidence required
under Sykes v. Apfel; such SSRs may be a permissible substitute for the
testimony of a vocational expert. See Allen v. Bamhart, 417 F.3d 396, 406 (3d
Cir. 2005) (“While, surely, the Agency can use its rules as a substitute for
individualized determination, nonetheless, there must be a “fit” between the
facts of a given case, namely, the specific non-exertional impairments, and the
way in which the Rule dictates that such non-exertional limitations impact the
base.”). Reliance on an SSR is appropriate where “it is crystal-clear that the
SSR is probative as to the way in which the non-exertional limitations impact
the ability to work, and thus, the occupational base.”’ Burrows v. Comm’r of
Soc. Sec., 2014 WL 2919469, at *4 (D.N.J. June 27, 2014) (quoting Allen, 417
F.3d at 406). Under such circumstances, an AU

need not resort to a vocational

expert and may instead rely upon an SSR, so long as the “AU’s own reference
to the SSR ruling discuss[es] specifically the limitations presented by the
medical record.” Allen, 417 F.3d at 407; see also Lamanna v. Comm’r of Soc.
Sec., 116 F. App’x 354, 357 (3d Cir. 2004) (requiring AU to set forth the
portions of the SSR(s) relied upon in order to permit meaningful review).
Here, the AU found that Markulin was forty-six years old on the last
date insured, which made her a “younger individual,” and that she had at least
a high school education. (R. 30) Given these vocational factors, and the RFC
finding that Markulin could perform “the full range of sedentary work,”
Medical-Vocational Rule 201.21, as AU Friedman notes, directs a finding of
“not disabled” regardless of transferability of job skills. (Id.; see also 20 C.F.R.
14

Part 404, Subpt. P, App’x 1) Although the RFC finding of AU Friedman does
not contain non-exertional limitations, at step five the AU’s analysis
nevertheless addressed certain non-exertional limitations set forth by Dr.
Fechner’s testimony (discussed above). The AU determined that those non
exertional limitations did not significantly erode the occupation base for
sedentary work, relying on a number of Social Security Rulings. The SSRs on
Friedman relied relate specifically to the non-exertional limitations
cited by Dr. Fechner and conclude, as the AU noted, that the sedentary

which AU

occupational base is not eroded.
For instance, SSR 96-9p states that “[p]ostural limitations or restrictions
related to such activities as climbing ladders, ropes, or scaffolds, balancing,
kneeling, crouching, or crawling would not usually erode the occupational base
for a full range of unskilled sedentary work significantly because those
*7•
activities are not usually required in sedentary work.” 1996 WL 374185 at
SSR 85-15, also relied on by AU Friedman, notes that “if a person can stoop
occasionally (from very little up to one-third of the time) in order to lift objects,
the sedentary and light occupational base is virtually intact.” SSR 85-15, 1985
WL 56857, at *7 (Jan. 1, 1985). Crawling and kneeling, according to the SSR,
is rare in even arduous work so a limitation in crawling or kneeling “would be
of little significant in the broad world of work,” including sedentary work. Id.
Similarly, SSR 83-14 explains that “[r]elatively few jobs in the national
economy require ascending or descending ladders and scaffolding.” SSR 83-14,
1983 WL 31254, at *2 (Jan. 1, 1983). Crouching is not necessary in sedentary
work and stooping is required only occasionally, and thus a person with
limitations in those areas can still “perform substantially all of the exertional
requirements of most sedentary” jobs. Id.
Thus, AU Friedman appropriately used the Medical-Vocational
Guidelines as a framework and relied upon specific portions of SSRs that
clearly relate to the ways in which the non-exertional limitations experienced
by Markulin affect the occupational base for sedentary work. AU Friedman’s
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finding that there are significant numbers of jobs in the national economy that
Markulin could perform is thus supported by substantial evidence.

III.

CONCLUSION
For the foregoing reasons, the AU’s decision is AFFIRMED. An

appropriate order accompanies this Opinion.
Dated: October 15, 2015

KEVIN MCNULTY
United States District Judge

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