MCCULLERS v. COMMISSIONER OF SOCIAL SECURITY
OPINION fld. Signed by Judge Claire C. Cecchi on 12/10/15. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 2:14-cv06361 (CCC)
COMMISSIONER OF SOCIAL SECURITY,
CECCHI, District Judge.
Before the Court is Claimant Maurice McCullers’ appeal (“Claimant”) seeking review of
determination by the Commissioner of the
(“Commissioner”) denying his application for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under
223(d), and l614(a)(3)(A) of the Social
Security Act (“SSA”). For the reasons set forth below, this Court affirms the Commissioner’s
On July 13, 2009, Claimant applied for DIB and SSI alleging that he was disabled since
July 2, 2009 due to a lung impairment, depression, stomach surgery, and hepatitis C.
20, 135.)2 Both applications were denied initially on December 11,2009 and on reconsideration
on April 21, 2010.
at 54-59, 64-69.)
On May 4, 2011, a hearing was held before
“R” refers to the certified record of the administrative proceedings.
Further facts and an analysis of the Claimant’s medical history will be adduced below.
Administrative Law Judge (“AU”) Leonard Olarsch. No vocational expert (“yE”) was present to
testify. AU Olarsch issued a decision on June 7, 2011, finding that Claimant was capable of
performing light work that accommodated his nonexertional limitations. (Id. at 7-2 1, 22-49.)
After the Appeals Council (“AC”) declined Claimant’s request to review the AU’s decision
at 6), Claimant appealed to this Court. On October 23, 2013, Judge Katherine S. Hayden issued
an order remanding the case for a new hearing with VE testimony and so the AU could describe
each exertional and nonexertional limitation from severe impairments in the hypothetical questions
posed to the yE. (Id. 416-418.)
On remand, AU Olarsch held a supplemental hearing on April 30, 2014, where Claimant
and aVE testified. (Tr. 383-411.) On August 12, 2014, the AU concluded Claimant was not
§ 216(1), 223(d), and 1614(a)(3)(A) of the SSA. (Tr. 371.) On October 14, 2014,
Claimant timely filed this action. (ECF No. 1.)
Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C.
§ 405(g) and 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its]
own factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm’r Soc. Sec., 667 f.3d 356, 359 (3d Cir. 201 1); see also 42 U.S.C.
§ 405(g). Nevertheless,
the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and supported by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
1978) (citations omitted). Substantial evidence is more than a mere scintilla, and is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Chandler, 667
F.3d at 359 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the factual record is
adequately developed, substantial evidence “may be ‘something less than the weight of the
evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.”
Daniels v. Astrue, No. 4:08-1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). In other words, under this deferential
standard of review, the Court may not set aside the AU’s decision merely because it would have
come to a different conclusion. Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir.
2007) (citing Hartranfi v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
Pursuant to the SSA, in order to be eligible for benefits, a claimant must show that he is
disabled by demonstrating an inability to “engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C.
§ 423(d)(l)(A), 1382c(a)(3)(A). Taking into account the claimant’s age,
education, and work experience, disability will be evaluated by the claimant’s ability to engage in
her previous work or any other form of substantial gainful activity existing in the national
economy. 42 U.S.C.
§ 423(d)(2)(A), 1382c(a)(3)(B). A person is disabled for these purposes
only if his physical or mental impairments are “of such severity that he is not only unable to do his
previous work, but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy
Decisions regarding disability will be made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3), 1382(a)(3)(D).
Sequential Evaluation Process
The SSA follows a five-step, sequential evaluation to determine whether a claimant is
disabled within the meaning of the statute. 20 C.F.R.
§ 404.1520, 416.920. First, the AU must
determine whether the claimant is currently engaged in gainful activity. Sykes, 228 F.3d at 262.
Second, if he is not, the AU determines whether the claimant has an impairment that limits his
ability to work. j Third, if he has such an impairment, the AU considers the medical evidence
to determine whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listings”). If it is, this results in a presumption of disability.
If the impairment is not in the
Listings, the ALl must determine how much residual functional capacity (“RFC”) the applicant
retains in spite of his impairment. Iç at 263. Fourth, the AU must consider whether the claimant’s
RFC is enough to perform his past relevant work.
Fifth, if his RFC is not enough, the AU
must determine whether there is other work in the national economy the claimant can perform. Id.
The evaluation continues through each step unless it is determined at any point that the
claimant is or is not disabled. 20 C.F.R.
§ 404.1 520(a)(4), 41 6.920(a)(4). The claimant bears the
burden of proof at steps one, two, and four, upon which the burden shifts to the Commissioner at
step five. Sykes, 22$ f.3d at 263. Neither party bears the burden at step three. Id. at 263 n.2.
Summary of the AU’s Findings
At step one, the AU found that Claimant met the insured status requirements of the SSA
and has not engaged in substantial gainful work activity since the onset date of the alleged
disability. (R. at 362.) Although the Claimant engaged in some work in 2011, the AU determined
this work did not rise to the level of “substantial gainful activity.” (Id.)
At steps two and three, the AU found Claimant’s impairments were “severe,” but not
severe enough to meet, either individually or in combination, any of the impairments listed in
Appendix 1, Subpart P, Regulation No. 4. (j at 363-64.) The AU determined Claimant had the
following severe impairments: (1) lung impairment consisting of chronic obstructive pulmonary
disease (“COPD”) and pneumothorax, which significantly interferes with lifting, carrying,
pushing, and pulling; (2) residuals from stomach surgery, which significantly interfere with lifting,
carrying, pushing, and pulling; (3) substance abuse and a history of Hepatitis C causing liver
disease, which significantly interfere with lifting, carrying, pushing, and pulling and has
contributed to Claimant’s difficulty understanding, remembering, and carrying out instructions and
making work-related decisions;
and (4) depression,
which interferes with Claimant’s
understanding, remembering, and carrying out instructions, making work-related decisions, and
coping with change in the work setting.
() The ALl determined these impairments do not rise
to the level of meeting soft tissue injury of medical listing 1.0$, chronic pulmonary insufficiency
of medical listings 3.02A and 3.02B, gastrointestinal hemorrhaging ofmedical listing 5.02, chronic
liver disease of medical listing 5.05, and mental impairment of medical listings 12.04 and 12.09.
(Id. at 364.)
The AU concluded Claimant has the RFC to perform light work as defined in 20 C.F.R.
404.1567(b) and 416.967(b), with the additional limitation of “simple, routine, repetitive tasks
involving simple work-related decisions and few workplace changes.” (Id. at 365.) To make this
conclusion, the AU considered all symptoms and their consistency with the evidence.
Specifically, the ALl considered the medical evidence which demonstrated that, while
Claimant could not reasonably be expected to lift or carry in excess of twenty pounds occasionally
or in excess of ten pounds frequently, greater limitations are not warranted by either the lung
impairment or the stomach pain. (Id. at 3 67-68.) The AU noted that a pulmonary function test in
March 2014 was within normal limits, Claimant has not heeded his physicians’ numerous warnings
to stop smoking, and Claimant is able to maintain many activities, such as walking thirty minutes
to his hearing in May 2011. (Id.) The AU further considered the opinion evidence of Claimant’s
primary care physicians and noted that disability is defined differently for some programs that are
not covered by the SSA.
Therefore, the AU determined, the Claimant’s physicians’
statements that they would certify disability in other instances is not dispositive in this context and
those statements are not consistent with the totality of the other objective and subjective evidence
in the record. (Id. at 367.)
Additionally, the AU considered Claimant’s subjective complaints of depression, head
problems, and limited memory, which demonstrated that, while Claimant could not be expected to
engage in anything but simple, routine, repetitive tasks involving simple work-related decisions
and few workplace changes, greater limitations on mental work-related activities are not supported
by the record as a whole.
Q at 3 68-69.) The AU noted that Claimant has not received mental
health treatment (except for a drug and alcohol abuse program two years ago), has not been
prescribed psychotropic medication, and manages his drinking simply by attending church most
( at 369.)
At step four, the AU found that because Claimant is only capable ofperforming light work,
Claimant is unable to perform his past work as a laborer because “[t]hat job involves medium or
heavy exertion.” (Id. at 370.)
finally, at step five, the AU considered Claimant’s age, education, work experience, and
RfC and concluded Claimant has the ability to work in jobs that exist in significant numbers in
the national economy.
() The AU emphasized that Claimant was only 44 years old on the
alleged disability onset date, which is defined as a younger individual, and Claimant is able to
communicate in English. (j) To determine the effect of Claimant’s nonexertional limitations on
his ability to work, the AU asked the VE whether jobs exist in the national economy for an
individual with the Claimant’s age, education, work experience, and RFC. (Id. at 371.) The VE
testified Claimant would be able to perform the requirements of representative occupations such
as photocopy machine operator, small part assembler, and sealing/cancelling machine operator.
(Id.) The AU determined the VE’s testimony was consistent with the information contained in
the Dictionary of Occupational Titles and found that “claimant is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy.” (Id.) Thus,
the AU concluded that Claimant is not disabled under
§ 2 16(i), 223(d), and 1614(a)(3)(A) of the
Claimant makes the following arguments in support of his contention that the ALl’s
decision should be reversed: (1) The AU did not comply with Judge Hayden’s remand order; and
(2) The AU’s RFC determination was not supported by substantial evidence. (Br. at 10-11.) The
Court will address each argument in turn.
The AU’s Compliance With Judge Hayden’s Remand Order
Claimant argues the AU did not comply with Judge Hayden’s remand order because the
AC’s remand order did not convey Judge Hayden’s instructions. (Br. at 11.) Judge Hayden’s
remand order required the AU to (1) have a VE testify at the hearing to clarify the effect of
Claimant’s nonexertional limitations on his occupational base; and (2) to describe and enumerate
each exertional and nonexertional restriction affecting Claimant at step 2 and make such
enumeration part of every hypothetical question posed to the yE. (R. at 41$.) The Court finds
that the AU complied with Judge Hayden’s remand order.
First, the AC’s remand order references Judge Hayden’s decision and provides the AU
instructions in accordance with Judge Hayden’s order. (Tr. at 42 1-22 (“Upon remand, the [ALJJ
will: Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on
the claimant’s occupational base
The hypothetical questions should reflect the specific
capacity/limitations established by the record as a whole. The [AU] will ask the vocational expert
to identify examples of appropriate jobs and to state the incidence of such jobs in the national
economy.... Further, before relying on the [VE] evidence the AU will identify and resolve any
conflicts between the occupational evidence provided by the [VE] and information in the
Dictionary of Occupational Titles (DOT) and its companion publication, the Selected
Characteristics of Occupations.
Second, the ALl complied with the AC’s instructions. As ordered by Judge Hayden, a VE
testified at the supplemental hearing. The AU explicitly asked the VE if there were jobs existing
in the national economy for a “hypothetical individual with Claimant’s education, training, and
work experience, limited to the full range of light work, limited to simple, routine, repetitive tasks
involving simple, work-related decisions and few workplace changes.” (R. at 396.) The VE
testified that there were, and enumerated multiple examples. (Id. at 3 96-97.) Thus, the VE testified
at the supplemental hearing as to the effect of Claimant’s nonexertional limitations (limited to
simple, routine, repetitive tasks involving simple, work-related decisions and few workplace
changes) on his occupational base (limited to the full range of light work). In addition, at step 2,
described and enumerated each exertional and nonexertional restriction affecting
Claimant. (R. at 3 63-64.) Moreover, as described above, these limitations were made part of every
hypothetical question posed to the VE.
( at 396.) Thus, the AU’s decision complied with Judge
Hayden’s remand order.
The AU’s RFC Determination
Claimant also argues that the AU’s RFC determination was not supported by substantial
Specifically, Claimant asserts that while the ALl found Claimant is capable of
performing light work, which “requires the ability to walk and stand six hours per day, to lift and
carry 10 pounds all day and 20 pounds 1/3 of the day, approximately 2.5 hours every day,” the
AU did not explain why Claimant “can sustain this level of exertion while suffering from Hepatitis
C, bleeding ulcer and COPD with consistent findings of decreased breath sounds in both lungs has
repeated pneumothorax (collapsed lung) and a “moderate” restriction in pulmonary function test.”
(Br. at 18.)
This Court finds that the AU’s RFC determination was supported by substantial evidence.
With respect to Claimant’s physical limitations, the AU considered the generally routine nature
of Claimant’s treatment for COPD with inhalers, the absence of more than moderate restriction on
routine pulmonary function tests, and Claimant’s failure to heed the numerous warnings to stop
smoking and found that Claimant was capable of performing light work. (R. at 367.) further, the
AU noted that physical examinations after Claimant’s abdominal surgery on July 2, 2009 did not
reveal tenderness of the abdominal wall hernia, and have not revealed enlargement, tenderness, or
nodularity of his liver. (R. at 368.) The AU noted that the hepatitis that was diagnosed in
November and December of 2011 based upon liver function tests was unaccompanied by any sign
or symptom of liver impairment, and that Claimant did not undergo any treatment for hepatitis
after July of 2009, his alleged onset date. (R. at 368.) The AU considered that although Claimant
complained of a few bouts of epigastric/abdominal pain after July of 2009, these bouts had not
persisted enough to rest in a finding of disability. (R. at 368.) Claimant responded to Omeprazole,
consistently denied ongoing symptoms of gastritis, esophagitis, reflux or ulcers, and had shown no
physical sign of any of these conditions at his medical visits. (R. at 368, 482, 534, 546.) Thus,
the AU’s determination that Claimant was limited to a RFC for light work is supported by
For the foregoing reasons, the Court will affirm the AU’s decision. An appropriate order
accompanies this Opinion.
CLfRE C. CECCHI, U.S.D.J.
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