NUNEZ v. COMMISISONER OF SOCIAL SECURITY

Filing 13

OPINION. Signed by Judge Kevin McNulty on 8/12/15. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:14-4664 (KM)

Sandra J. NUNEZ,
Plaintiff,

OPINION
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Sandra J. Nunez brings this action pursuant to 42 U.S.C.
and 5 U.S.C.

§ 405(g)

§ 1383(c)(3) to review a final decision of the Commissioner

of Social Security (“Commissioner”) denying her claim for Title II
Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security
Income (“SSI”). Nunez alleges that she is unable to engage in substantial
gainful activity because she suffers from leg pain, back pain, depression,
and problems with concentration. (R.’ 241, ECF No. 6)
For the reasons set forth below, the AU’s decision is AFFIRMED.
I.

BACKGROUND
Nunez seeks DIB and SSI benefits for a period of disability

beginning December 31, 2010. (R. 19) Her claims were first denied on
August 5, 2011 and denied again on reconsideration on November 23,
2011. On December 2, 2011, Nunez filed a request for a hearing. On
October 11, 2012, a hearing was held, at which Nunez was represented
by counsel and testified with the aid of a Spanish interpreter. Following

“R.” refers to the pages of the administrative record filed by the
Commissioner as part of her answer. (ECF No. 6)

1

the hearing, the record was left open for four months so that Nunez
could submit additional evidence from Raritan Bay Mental Health. Nunez
did not do so. On February 20, 2013, Administrative Law Judge (“AU”)
Joel H. Friedman denied Nunez’s application for SSI and DIB benefits.
(Id. 19—28) On June 6, 2014, the Appeals Council denied Nunez’s request
for review, making the AU’s decision the final decision of the
Commissioner. Nunez 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). To be eligible for SSI

benefits, a claimant must meet the income and resource limitations of 42
U.S.C.

§ 1382. To qualify under either statute, 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), 1382c(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.

2

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 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, 9 1—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.
Schaucieck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the ALT’s findings, as long as they
are supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501,
503 (3d Cir. 2004) (citing 42 U.S.C.

§ 405(g)). Where facts are disputed,

this Court will “determine 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

3

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). That “is more than a mere scintilla but may be
somewhat less than a preponderance of the evidence.” Id. (internal
quotation and citation omitted).
[TIn evaluating whether substantial evidence supports the
AU’s findings.. leniency should be shown in establishing
the Secretary’s
the claimant’s disability, and
responsibility to rebut it should be strictly construed. Due
regard for the beneficent purposes of the legislation requires
that a more tolerant standard be used in this administrative
proceeding than is applicable in a 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). Nevertheless, the AU’s factual findings will not
be disregarded lightly. See Jones, 364 F.3d at 503 (citing 42 U.S.C.

§

405(g)); Zimsak, 777 F.3d at 610—11 (“[W]e 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, with or without a remand to the
Secretary for a rehearing. Podedwomy v. Harris, 745 F.2d 210, 221 (3d
Cir. 1984); Bordes v. Commissioner, 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 establishing 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
U.S. Dist. LEXIS 99537, at *35...39 (D.N.J. 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

4

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. Commissioner of SSA, 220 F.3d 112, 119—20 (3d Cir. 2000);
Leech v. Bamhart, 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[s] all relevant, probative and available evidence” in the record.
Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994).
b. The AU’s decision
AU Friedman concluded that Nunez was not disabled.
At step one, the AU

determined that Nunez had not engaged in

substantial gainful activity since December 31, 2010, her alleged
disability onset date. (R. 21)
At step two, the AU found that Nunez had the following severe
impairments: “myofascial pain syndrome with chronic back pain;
diabetes mellitus; obesity; and depression.” (Id.)
At step three, the AU determined that Nunez’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”). (Id. 22)
Then, the AU found that Nunez had the residual functional
capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) and
4 16.967(b) except that due to her depression, she is also
limited to simple routine jobs in a low contact setting (i.e.
that does not involve dealing with the general public, and

5

that only involves low contact with coworkers and
supervisors).
(Id. 23)

At step four, the AU determined that based on her RFC, Nunez is
unable to perform any past relevant work. (Id. 26) The AU noted that
Nunez was 44 years old on her alleged disability onset date, which puts
her in the category of “younger individual age 18—49.” (Id. 27) The AU
also found that Nunez is “not able to communicate in English, and is
illiterate in English.” (Id. 27) The AU noted that “transferability of job
skills is not an issue in this case because the claimant’s past relevant
work is unskilled.” (Id.)
At step five, the AU considered Nunez’s “age, education, work
experience, and residual functional capacity,” and determined that she
could perform jobs that exist in significant numbers in the national
economy. (Id.) As noted above, such a finding at step five requires that
benefits be denied.
c. Nunez’s appeal

Nunez argues that the Commissioner’s decision is not supported
by substantial evidence. Specifically, Nunez argues that the AU

(1) erred

in finding that Nunez does not meet the criteria for Listing 12.04
(affective disorders) at step three (P1. Br. 10—17, ECF No. 9); (2) did not
2
adequately consider Nunez’s obesity at the step three and four analysis
(id. 23—30); and (3) did not adequately explain his RFC findings (id. 20—

23, 30—38).
I find the AU’s findings to be supported by substantial evidence.
Nunez’s arguments to the contrary are not persuasive.

This brief and the Commissioner’s opposition were submitted pursuant
to L. Civ. R. 9.1.

2

6

d. Analysis
1. AU’s step three analysts of Nunez’s impairments
Nunez argues that the AU erred in finding that she did not meet
the criteria for Listing 12.04 (affective disorders) at step three. (P1. Br.
10—17) Specifically, Nunez argues that (a) the AU did not mention the
paragraph A criteria for Listing 12.04; (b) the AU

inadequately explained

his findings, especially in his paragraph B analysis; and (c) the AU

erred

in his paragraph C analysis.
At Step 3 of the sequential analysis, the AU evaluated Nunez’s
impairments to determine if they met or equaled an impairment in the
Listing of Impairments in Appendix 1. 20 CFR

§

404. 1520(a)(4)(iii).

Specifically, the AU discussed the criteria of Listing 12.04 (affective
disorders). 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.04.
The AU found that neither the paragraph B nor paragraph C
criteria were met for Listing 12.04. Therefore, he did not err by omitting
paragraph A in his analysis, as Listing 12.04 is only met “when the
requirements in both [paragraphs] A and B are satisfied, or when the
requirements in [paragraph] C are satisfied.” Id. (Moreover, it appears the
AU found that Nunez’s impairments met the paragraph A criteria based
on his analysis regarding paragraph B.)
The AU also properly supported his paragraph B analysis with
evidence in the record. To satisfy the paragraph B criteria, a claimant’s
disorder must have resulted in at least two of the following four
limitations:
1. Marked restriction of activities of daily living; or
2. Marked deficiencies in maintaining social functioning; or
3. Marked deficiencies in maintaining concentration,
persistence, or pace; or

7

4. Repeated episodes of decompensation, each of extended
duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.04B.
Contrary to Nunez’s argument, the AU explained and
substantiated each of his findings in the four functional areas. In fact,
the AU credited Nunez’s own testimony and function report, as well as
her daughter’s third party function report, for the first three functional
areas.
The AU found that Nunez has mild restriction in the activities of
daily living. (R. 22) In doing so, the AU noted that even on Nunez’s own
function report, Nunez admitted to being able to watch television,
shower, wash dishes, talk on the phone, cook for her children, and take
them to school. (Id. (citing R. 252)) Nunez stated that she goes outside for
her doctors’ appointments; attends church every Sunday; and shops for
groceries every two weeks. (Id. 254—55) The AU also cited the report of
Nunez’s daughter that she helps Nunez with cooking dinner, shopping,
and cleaning. (Id. 22) Nunez did say that it took her longer to do things
because of her pain. (Id.) Together, this evidence supports the AU’s
finding that Nunez has only mild restriction in daily living.
The AU determined that Nunez has moderate difficulties in social
functioning. (Id. 22) The AU cited to Nunez’s hearing testimony, in which
she stated that she “has difficulty interacting independently,
appropriately, effectively, and on a sustained basis with other
individuals.” (Id. 22) In her function report, Nunez indicated that she
does not go out often, but she does talk to others on a daily basis and
play card games with friends weekly. (Id. 22, 256) She also indicated that
she visits her family’s house once a month. (Id. 256) Finally, the ALl
noted that Nunez used to visit friends more often but rarely does that
now, and that Nunez’s daughter reported that her mother isolates

8

herself. (Id. 22 (citing R. 260—67)) This evidence is consistent with the
AU’s finding of moderate impairment in social functioning.
The AU

found that Nunez has moderate difficulties in

concentration, persistence, or pace. (Id. 23) The AU credited Nunez’s
testimony, which showed she “has some difficulty in sustaining focus,
attention and concentration sufficiently long enough to permit the timely
and appropriate completion of tasks commonly found in work settings.”
(Id. 23) In her function report, Nunez also wrote that her daughter calls
her three times each day to remind Nunez to take her pills and go to her
appointments. (Id. 23, 254) Nunez’s daughter confirmed this. (Id. 23
(citing R. 260—67)) This evidence is consistent with the AU’s
determination that Nunez experiences moderate difficulties in
concentration, persistence, or pace.
The AU

determined that Nunez has not experienced any episodes

of decompensation of extended duration. (Id. 23) Nunez does not offer
any evidence to suggest otherwise, and there is nothing in the record to
suggest Nunez suffered from any extended episodes of decompensation.
Because Nunez’s impairments did not cause at least two “marked”
3
limitations, or else one marked limitation and repeated episodes of
decompensation, the AU properly found that the paragraph B criteria
were not met. (Id.)
The AU

also properly found that Nunez’s impairments did not

meet the paragraph C criteria. To meet the paragraph C criteria for
Listing 12.04, a claimant must have a

A marked limitation is defmed as one that is “more than moderate but
less than extreme.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, §12.OOC. “A marked
limitation may arise when several activities or functions are impaired, or even
when only one is impaired, as long as the degree of limitation is such as to
interfere seriously with your ability to function independently, appropriately,
effectively, and on a sustained basis.” Id. (emphasis added)
3

9

[m]edically documented history of a chronic affective disorder
of at least 2 years’ duration that has caused more than a
minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended
duration; or
2. A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to function
outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.
20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.04C. Nunez does not cite any
evidence to suggest that her impairments meet the paragraph C criteria.
Nunez only repeats the AU’s analysis of evidence between 2011 and
2012, during which time Nunez “was not working, [and was] isolated at
home and dependent on her daughter and other family members to
perform chores and other necessary actions for her, actions which even
include calling the plaintiff three times a day to ensure that she took her
medication in a timely manner.” (P1. Br. 15) However, the AU considered
those limitations in his paragraph B analysis and did not find any
marked limitations as a result. Furthermore, there is no evidence in the
record of repeated episodes of decompensation, no indication that even a
minimal increase in mental demand or change in environment would
cause Nunez to decompensate, and no indication that Nunez cannot
function outside of a highly supportive living arrangement. Based on
this evidentiary record, the AUJ did not err in finding that Nunez’s
impairment did not meet the paragraph C criteria.
Finally, Nunez argues that the AUJ erred in not specifically
analyzing listings for obesity or diabetes. (P1. Br. 17—18) That is not so.
There is no listing for either condition as such, in isolation; rather the

10

listings cover complications of diabetes (e.g., Listings 2.00, 6.06, 11.14,
4
1.05), and provide that obesity is to be analyzed in combination with a
claimant’s other impairments (SSR

O2-lp,

2000 WL 628049 (S.S.A. Sept.

12, 2002)). Nunez does not suggest that the AU

should have analyzed

any of the specific listings for complications of diabetes; indeed, it
appears Nunez’s diabetes is currently under control. (R. 61—62) I discuss
the AU’s analysis of Nunez’s obesity in the next section.
ii. AU’s analysis of Nunez’s obesity at step three and
at the RFC determination
Nunez argues that the AU did not properly consider obesity in
steps three, four, and five of his analysis. (P1. Br. 23—30) I find that
substantial evidence supports the AU’s findings regarding obesity.
As of the date of her application (February 1, 2011), Nunez weighed
158 pounds. (R. 26, 241) Her height is five feet two inches. (Id.) This
means Nunez’s body mass index (BMI) was 28.9, so she would have been
considered overweight, rather than obese. (SSR 02-1P, 2002 WL
34686281 (S.S.A. Sept. 12, 2002) (“For adults, both men and women, the
Clinical Guidelines describe a BMI of 25—29.9 as ‘overweight’ and a BMI
of 30.0 or above as ‘obesity.”);
www. nhlbi nih. gov/ health/educational! losewt/ BMI / bmicalc .htm.
.

However, as the AU noted, Nunez weighed 169 pounds at a later
examination in July 2011. (R. 26) Although Nunez has not been
consistently obese during her alleged period of disability, the AU
nonetheless considered Nunez’s alleged obesity in his analysis.
At step two, the AU found that obesity was one of Nunez’s severe
impairments. (Id. 21) At step three, the AU considered obesity in
conjunction with Nunez’s other impairments in determining that her

Currently, Nunez’s diabetes is “under control” as a result of her 100pound weight loss following bariatric surgery, and she no longer needs to take
medication for it. (R. 61—62)
11

obesity, combined with her other impairments, did not meet or medically
equal the severity of one of the listed impairments. (Id. 22) Nunez does
not point to any evidence to dispute this finding. In determining Nunez’s
RFC, the AU

specifically noted that her obesity had been taken into

account. (Id. 26 (noting that Nunez was obese and noting her exact
height and weight).) The AU also limited Nunez to “light work as defined
in 20 C.F.R. 404.1567(b) and 416.967(b).” (Id. 23) Nunez does not
explain why her obesity should have resulted in a different RFC; she just
states that the AU failed to consider it, a contention that is refuted by a
reading of the AU’s decision. Indeed, the AU’s RFC determination is
supported by substantial evidence, as discussed in the following section.
iii. AU’s determination of Nunez’s RFC

Nunez argues that the AU did not adequately explain his RFC
determination. (P1. Br. 20—23, 30—38) Specifically, Nunez contends that
(1) the AU did not consider the numerous records that document her
impairments (id. 20—23); (2) the AU did not fully consider Nunez’s
subjective complaints (id. 34—37); and (3) the AU improperly weighed the
medical opinion of Dr. Swan (id. 19—20, 37). I find that the AU
sufficiently analyzed the evidence in the record and explained his RFC
findings, which are supported by substantial evidence.
1. AU’s consideration of records documenting
Nunez’s impairments
Nunez contends that the AU did not consider the numerous
records that document her impairments. (P1. Br. 20—23) In particular,
Nunez questions the AUJ’s analysis of her psychiatric records.
However, the AUJ clearly evaluated the evidence in the record,
including psychiatric evidence, in arriving at his RFC determination.
Specifically, the AU considered the following evidence:

12

(1) Nunez’s own disability application (citing R. 240—48), in which
she alleged disability because of neck pain, back pain,
depression, and problems concentrating;
5
(2) Reports from state agency (DDS) medical consultants
indicating that Nunez was able to do light work; Nunez had little
longitudinal history; there was no evidence she suffered from
any psychological illness other than depression; and Dr. Doshi
noted that Nunez developed major depression since losing her
job, so with treatment, her depression should improve (citing R.
81—92, 94—105, 107—17, 119—29);
(3) Nunez’s function report, in which she indicated that she could
not lift much due to her shoulder and back pain; she could not
walk more than two blocks or stand long; she could not
concentrate sometimes; she felt anxious at times; and she
forgets things and needs to make lists (citing R. 252—59);
(4) Nunez’s daughter’s third party function report, in which she
indicated that she helped Nunez with daily tasks and confirmed
the issues Nunez discussed in her own function report (citing R.
260—67);
(5) Nunez’s testimony, including her statements that she cannot
drive on the highway because of her nerves; that she could not
work because “[w]hen I last worked they denied my
unemployment benefits, and that makes me feel very depressed,
and then I was seeing my therapist and then she said that it
was best if I applied to disability because I wasn’t able to keep
working” (R. 39—40); that she takes Xanax; that she takes
Flexeril and Advil or Ibuprofen for her pain; and that she cannot
stand for more than two hours and must move around a lot
(citing R. 33—79);
(6) Treatment records from Dr. Doshi from 2009 to 2011, in which
Dr. Doshi noted that Nunez complained of neck pain, but had a
negative image of her cervical spine; that heaving lifting
aggravated her pain; that she had a history of obesity and
diabetes; that Nunez complained of back pain in July of 2010;
that her pain was due to her obesity and history of heavy lifting
at her job; that her pain did not radiate into her lower
extremities; that he advised her to take Flexeril and Naprosyn
for her pain; and that her diabetes was under control and her
blood sugar was within normal limits because of her diet (in
2011) (citingR. 318—79);

5

The ALl assigned great weight to these opinions. (R. 26)
13

(7) Records of a consultative examination with Dr. Weber in July of
2011, in which Nunez reported a two year history of back pain,
said she could only sit or stand for an hour, and said that
physical therapy offered only temporary relief; and in which Dr.
Weber noted that Nunez was able to ambulate independently
and at a reasonable pace; that Nunez was able to carry out
activities of daily living independently; that Nunez was not in
any acute distress; that Nunez had tenderness in her lumbar
spine but no muscle spasms or atrophy; that Nunez’s muscle
strength was 5/5 in her extremities and her cervical spine
range of motion was normal; and that Nunez suffered from
chronic lower back pain, chronic sprain/strain, and myofascial
pain syndrome (citing R. 380—83);
(8) Psychological records from Dr. Doshi, in which Dr. Doshi wrote
that Nunez suffered from depression (diagnosed in July of
2010), and that she was seeing Dr. Vagramele and had been
prescribed medication (citing R. 318—79);
(9) Records from a psychological examination by Dr. Baharlias in
July of 2011, in which Nunez reported depression and difficulty
concentrating, said she was taking citalopram, and said she
was seeing a psychiatrist and therapist; and in which Dr.
Baharlias noted that Nunez was depressed and anxious, but
exhibited appropriate behavior; that her main problems
concerned her finances and inability to sleep; that she had a
normal gait and posture; and that her GAP was 55—60 (citing
6
R. 387—89); and
(10) A report by Dr. Swan, in which Dr. Swan opined that Nunez
could lift and carry twenty pounds, and that she is limited to
standing and walking for two hours and sitting for less than six
hours per day (citing R. 296—317).
7

A GAF (Global Assessment Functioning) score is a scale used by the
American Psychiatric Association to evaluate mental disorders. See Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (4th ed.
2000) (DSM-IV).
6

A GAF score in the range of 51—60 indicates “[m]oderate symptoms (e.g.,
flat and circumstantial speech, occasional panic attacks) OR moderate difficulty
in social occupational, or social functioning (e.g., few friends, conflicts with co
workers).”
www. omh .ny. gov/ omhweb/ childservice / mrt/ global_assessment_functioning.pd
f.
The AU agreed with Dr. Swan’s first assessment that Nunez can lift and
carry twenty pounds, but gave no weight to the remainder of Dr. Swan’s opinion
7

14

(R. 23—26)
The AU considered the records substantiating Nunez’s physical
and psychological ailments and incorporated the records (with the
exception of portions of Dr. Swan’s opinion) in his RFC assessment.
Accordingly, the AU found that Nunez has the RFC to
perform light work as defined in 20 CFR 404.1567(b) and
4 16.967(b) except that due to her depression, she is also
limited to simple routine jobs in a low contact setting (i.e.
that does not involve dealing with the general public, and
that only involves low contact with coworkers and
supervisors).
(Id. 23) Clearly, the AU accepted most of the evidence of Nunez’s

impairments, including her psychiatric history of depression, and gave
his reasons for discounting a portion of the evidence. Thus, his RFC
determination is supported by substantial evidence.
2. AU’s consideration of Nunez’s subjective
complaints
Nunez argues that the AU did not sufficiently consider her
subjective complaints. I find that the AU adequately explained his
assessment of Nunez’s subjective complaints, and even accepted her
testimony and function report claims in large part.
Social Security Regulation 96-7P provides:
In determining the credibility of the individual’s statements,
the adjudicator must consider the entire case record,
including the objective medical evidence, the individual’s
own statements about symptoms, statements and other
information provided by treating or examining physicians or
psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant
evidence in the case record. An individual’s statements about
the intensity and persistence of pain or other symptoms or
about the effect the symptoms have on his or her ability to
because Dr. Swan did not support his opinion with any objective findings and
did not explain his reasoning. (R. 26)
15

work may not be disregarded solely because they are not
substantiated by objective medical evidence.
The AU’s credibility determination “must contain specific reasons
for the finding on credibility, supported by the evidence in the case
record.” SSR 96-7P; see also 20 C.F.R. § 404.1529(b), 4 16.929(b).
The AU complied with these instructions. Significantly, the AU
credited Nunez’s subjective complaints (in her testimony and her
function report) in his step three analysis of the four functional areas of
daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation. (R. 22—23) In fact, the AU relied exclusively
on Nunez’s testimony, her function report, and her daughter’s thirdparty function report in making his determinations. (Id.)
In his RFC determination, the AU

similarly credited most of

Nunez’s function report and testimony. (Id. 24—26) The AU

specifically

noted that the objective medical evidence (cited and explained in the
previous section) does not support Nunez’s claim of complete disability.
Even Nunez’s own testimony and function report confirmed that she is
able to carry out the activities of daily living independently and she takes
only Flexeril and ibuprofen, relatively mild medications, for her pain. (Id.
26, 42—46, 252—59) Medical reports also indicated her depression would
improve with therapy. (Id. 26, 87) Thus, substantial evidence supports
the AU’s evaluation of Nunez’s subjective complaints.
3. AU’s weighing of Dr. Swan’s medical opinion
Finally, Nunez challenges the AU’s assignment of no weight to
portions of Dr. Swan’s opinion. (P1. Br. 19—20, 37) I find that substantial
evidence supports the AU’s evaluation of Dr. Swan’s opinion.
An AUJ is free to credit one medical opinion over another, provided
that the AU considers all of the evidence and gives reasons for
discounting the evidence he or she rejects. See Diaz v. Commissioner of
Soc. Sec., 577 F.3d 500, 505-06 (3d Cir. 2009); Plummer v. Apfel, 186
16

F.3d 422, 429 (3d Cir. 1999) (“An AU.

.

.

may afford a treating

physician’s opinion more or less weight depending upon the extent to
which supporting explanations are provided.”); Adomo v. Shalala, 40
F.3d 43, 48 (3d Cir. 1994) (citations omitted) (An AU may “properly
accept some parts of the medical evidence and reject other parts, but she
must consider all the evidence and give some reason for discounting the
evidence she rejects.”).
As Social Security Ruling 96-5p states,
[T]reating source opinions on issues that are reserved to the
Commissioner are never entitled to controlling weight or
special significance. Giving controlling weight to such
opinions would, in effect, confer upon the treating source the
authority to make the determination or decision about
whether an individual is under a disability, and thus would
be an abdication of the Commissioner’s statutory
responsibility to determine whether an individual is disabled.
The AU

credited Dr. Swan’s opinion that Nunez could lift and

carry twenty pounds. (R. 26)
The AU did not credit the remainder of Dr. Swan’s opinion,
particularly Dr. Swan’s opinion that Nunez was limited to standing and
walking for two hours and sitting for less than six hours. (Id.) The AU
explained that Dr. Swan did not offer an explanation for his opinion or
support his opinion with objective medical evidence. (Id.) Indeed, Dr.
Swan’s opinion as to Nunez’s ability to stand, walk, and sit is limited to
his checking off boxes on a form. Those check marks are not
accompanied by any explanation or relevant medical findings. (Id. 296—
8
317) Thus, the AU gave an adequate explanation for his rejection of part
of Dr. Swan’s opinion.

It appears that Dr. Swan is Nunez’s cardiologist, so the records attached
to the form are cardiology records. There is no accompanying explanation as to
why these records are relevant to Dr. Swan’s assessment of Nunez’s ability to
stand, walk, and sit, or how these records substantiate Dr. Swan’s assessment.
8

17

III.

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

appropriate order accompanies this Opinion.
Dated: August 12, 2015

KEVIN MCNULTY
United States District Judge

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