RODRIGUEZ v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Madeline C. Arleo on 2/3/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-6461
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
ARLEO, UNITED STATES DISTRICT JUDGE
Before this Court is Plaintiff Alejandro Rodriguez’s (“Plaintiff”) request for review,
pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g), of Administrative Law Judge Richard West’s (the
“ALJ”) decision denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”). For the
reasons set forth below, the Commissioner of Social Security’s (“Commissioner”) decision is
A. Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C. §
405(g). This Court must affirm the Commissioner’s decision if there exists substantial evidence
to support the decision. 42 U.S.C. § 405(g); Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014).
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) (quotation omitted). Stated
differently, substantial evidence consists of “more than a mere scintilla of evidence but may be
less than a preponderance.” Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003).
“[T]he substantial evidence standard is a deferential standard of review.” Jones v. Barnhart,
364 F.3d 501, 503 (3d Cir. 2004). Accordingly, the standard places a significant limit on the
district court’s scope of review. The reviewing court should not “weigh the evidence or substitute
its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.
1992). Therefore, even if this Court would have decided the matter differently, it is bound by the
Commissioner’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).
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. 1972).
B. Five-Step Sequential Analysis of Adult Disability
In order to determine whether an adult 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. § 404.1520(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.” 20 C.F.R. § 404.1520(a)(4)(ii). 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. § 404.1520(c).
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. 2007).
At the third step, the Commissioner must determine whether there is sufficient evidence
showing that the claimant suffers from a listed impairment. 20 C.F.R. § 404.1520(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, at step four, must ask whether the claimant has “residual functional
capacity” such that he is capable of performing past relevant work; if that question is answered in
the affirmative, the claim for benefits must be denied. Id. 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.’” 20 C.F.R. §§ 404.1520(a)(4)(iii)-(v); Jones, 364 F.3d at 503. 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).
A. Procedural History
This case arises out of Plaintiff’s August 23, 2011 application for disability insurance
benefits. Tr. 140. Although Plaintiff was approved for SSI benefits based on a hip injury he
sustained in 2011, Tr. 65, he currently seeks benefits for a disability allegedly beginning on January
15, 2008. Tr. 25, 140. Plaintiff’s date last insured (“DLI”) was December 31, 2009. Tr. 25, 140.
The Commissioner denied Plaintiff’s application initially on November 9, 2011, and upon
reconsideration on February 10, 2012. Tr. 57, 81. Thereafter, a hearing was held before ALJ
Richard West on March 5, 2013, at which Plaintiff appeared and testified. Tr. 32-53. On March
28, 2013, the ALJ issued an opinion, finding that Plaintiff was not disabled under the Act prior to
December 31, 2009, and thus, was not entitled to DIB. Tr. 25-31. Plaintiff’s subsequent request
for review to the Appeals Council was denied on May 20, 2014. Tr. 13-16. On December 29,
2015, Plaintiff filed the instant action. Dkt. No. 1.
B. Factual Background
Vocational Background and Daily Activities Relevant to Plaintiff’s
Plaintiff was a fifty-three year old man on his DLI of December 31, 2009. Tr. 140. He
alleges disability due to herniated discs at C5-6, osteoarthritis, synovitis, gastroesophageal reflux
disease (“GERD”), headaches, and asthma, beginning on January 15, 2008. Tr. 140, 171. Plaintiff
graduated from high school, and his past relevant work consists of various office manager and
sales positions. Tr. 30, 179-86. Plaintiff stopped working in 2004 because he was laid off. Tr.
38-39, 171. In October 2011, Plaintiff stated that although he had difficulty sitting, standing,
walking, and performing postural maneuvers due to neck and hip pain, he remained capable of
tending to such activities as personal grooming and hygiene, socializing with others, and traveling
independently. Tr. 187-91, 191-92, 194. Plaintiff also denied any limitations related to cognitive
functions such as memory, concentration, and comprehension of information.
Specifically, Plaintiff stated that he could pay attention for a couple hours; follow written and
spoken instructions very well; and handle stress and changes in routine. Tr. 192-93.
Relevant Medical Evidence
Plaintiff was involved in a motor vehicle accident on January 15, 2008. Tr. 211. Following
the accident, Plaintiff saw Andrew Carollo, M.D. (“Dr. Carollo”), for complaints of neck pain,
headaches, right knee pain, and left buttock pain. Tr. 211. An initial examination showed that
Plaintiff had bilateral tenderness and spasms to the nuchal and trapezius musculature; reduced
cervical range of motion; and nine out of ten pain in his left buttock with contusions. Tr. 211-12.
A cervical MRI revealed a left central disc herniation at C5-6 with flattening of the left ventral
portion of the cervical cord and foraminal narrowing on the left; uncovertebral hypertrophy at the
C3-C4 and C4-C5 level; and a 1mm posterior subluxation of C5 upon C6 without evidence of
canal stenosis. Tr. 215. Dr. Carollo referred Plaintiff for a course of physical therapy. Tr. 213.
Plaintiff subsequently attended physical therapy sessions three times a week until August
28, 2008. Tr. 216-50. Over the course of treatment, Plaintiff’s pain gradually decreased from a
“10 out of 10” to a “5 out of 10.” Tr. 216, 238, 249. During a final examination in August 2008,
Dr. Carollo found Plaintiff to have a negative Spurling’s test, normal muscle strength, normal
reflexes, and only slightly decreased cervical range of motion. Tr. 212. He did not include any
findings regarding Plaintiff’s right knee or left hip. Id. In December 2008, Dr. Carollo sent a letter
to Plaintiff’s attorney chronicling his treatment and opining that Plaintiff had a cervical injury that
was permanent and irreparable and would lead to degenerative changes in the future and increased
pain. Tr. 213. Dr. Carollo also noted that Plaintiff’s pain would fluctuate depending on activity
levels and change in weather, and that Plaintiff should avoid strenuous activities with regard to the
neck region. Tr. 213. The record does not contain any further treatment notes from Dr. Carollo.
On July 19, 2009, Plaintiff visited the emergency department at the University of Medicine
and Dentistry of New Jersey (“UMDNJ”) hospital for evaluation of abdominal pain. Tr. 264. He
denied any musculoskeletal symptoms during this visit. Id. The doctors started Plaintiff on
Prevacid and discharged him the same day in stable condition. Tr. 275. Thereafter, Plaintiff was
seen at the hospital outpatient medical clinic for a follow-up evaluation of his abdominal pain. Tr.
330. Plaintiff acknowledged that Prilosec, a similar drug used to treat GERD, improved his pain,
and he denied any musculoskeletal issues or myalgia. Id. His examining physician advised
Plaintiff to continue Prilosec for GERD. Tr. 331.
On October 15, 2009, Plaintiff saw Weizheng Wang, M.D. (“Dr. Wang”), a
gastroenterologist, for complaints of occasional epigastric pain. Tr. 320. He reported a history of
asthma, but stated that he had stopped taking pain medication. Id. He denied back pain, joint pain,
joint swelling, muscle cramps, muscle weakness, stiffness, and arthritis. Id. Plaintiff’s physical
examination showed a non-tender abdomen, lungs clear to auscultation, normal gait and station,
normal alignment and mobility of his head and neck, and no clubbing, cyanosis, petechiae, or
nodes on his digits and nails. Tr. 321. Dr. Wang advised Plaintiff to continue the medication
regimen prescribed for his GERD and referred him for an esophagogastroduodenoscopy (“EGD”)
and colonoscopy, which showed mild gastritis and a transverse colon polyp. Tr. 323. On his
follow-up visit with Dr. Wang, Plaintiff denied any pain or discomfort. Id.
Plaintiff did not seek any further treatment prior to his DLI. In February 2010, two months
after his DLI, Plaintiff sought emergency room treatment for folliculitis (inflammation of hair
follicles), but again denied any musculoskeletal pain. Tr. 300-305. A physical examination
indicated full range of motion throughout. Id. Plaintiff also sought emergency room treatment in
June 2011 for sinusitis, and a physical examination showed normal neck range of motion. Tr. 312.
In January 2011, Plaintiff suffered a fall that injured his left hip, but he did not seek any
treatment immediately following the accident. Tr. 333. On July 8, 2011, Plaintiff saw Fatima
Samad, M.D. (“Dr. Samad”) for his left hip pain. Id. Dr. Samad found Plaintiff to have mild hip
tenderness posteriorly, but a normal range of motion. Tr. 334. Dr. Samad also referred Plaintiff
for an x-ray, which showed severe joint space narrowing and osteophytic lipping compatible with
degenerative joint disease. Tr. 342. One month later, a left hip MRI revealed severe osteoarthritis
and synovitis. Tr. 326. Upon orthopedic evaluation in September 2011, Plaintiff reported a fiveyear history of hip pain that had significantly worsened after his fall in January 2011. Tr. 326. On
examination, Plaintiff had normal strength and range of motion through his upper extremities and
right leg, but tenderness on deep palpation behind the femoral head and very poor internal/external
rotation of his left hip. Tr. 328. Plaintiff was referred for an orthopedic consultation. Id.
On November 9, 2011, state agency physician Kopel Burk, M.D., performed an analysis
of Plaintiff’s disability application. Tr. 54, 349. Dr. Burk found that Plaintiff’s left hip condition
met the requirements of Listing 1.02A following his fall in January 2011, but there was insufficient
evidence that Plaintiff had severe impairment prior to the DLI. Tr. 349. In particular, Dr. Burk
noted that while Plaintiff had made allegations of cervical issues dating back to 2008, in his recent
exams he had not mentioned the cervical problem. Id. Dr. Burk reached this conclusion by
evaluating emergency room records, treatment notes from UMDNJ, physical therapy notes,
Plaintiff’s subjective complaints, and his daily activities. Id. On February 8, 2012, state agency
physician Rizwan Mohammad, M.D., reviewed Plaintiff’s medical records and affirmed Dr.
Burk’s opinion. Tr. 353.
C. The ALJ’s Decision
The ALJ utilized the five-step test for evaluating disability claims under the Act. 20 C.F.R.
§ 404.1520. At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity
between the alleged onset date of January 15, 2008 and his DLI of December 31, 2009. Tr. 27.
At step two, the ALJ concluded that Plaintiff had a severe impairment of degenerative disc disease
of the cervical spine. Tr. 27-28. At step three, however, the ALJ found that through the DLI,
Plaintiff’s impairments did not fall within any of the listed impairments set forth in the regulations.
Tr. 28. At step four, the ALJ determined that Plaintiff retained the residual functional capacity
(“RFC”) to perform “sedentary work” as defined in 20 C.F.R. § 404.1567(a), except that he must
avoid concentrated exposure to extreme cold and extreme heat. Tr. 28-30. Next, the ALJ
concluded that Plaintiff was capable of performing his past relevant work as an office manager,
which was skilled and performed at a sedentary exertional level. Tr. 30-31. The ALJ, therefore,
determined that Plaintiff was not disabled within the meaning of the Act. Tr. 31.
Plaintiff argues that the ALJ’s decision was not supported by substantial evidence because
he: (1) failed to properly evaluate Plaintiff’s own testimony; (2) failed to consider the opinions of
medical experts; (3) ignored Plaintiff’s diagnoses of asthma, headaches, GERD, and insomnia; and
(4) failed to obtain the testimony of a vocational expert. The Court disagrees.
A. Consideration of Plaintiff’s Subjective Testimony
First, Plaintiff argues that in calculating his RFC, the ALJ failed to properly credit his
testimony regarding the limitations caused by his left central disc herniation at the C5-C6 level
and osteoarthritis, as well as additional limitations created by chronic pain.1 Specifically, Plaintiff
contends that the ALJ ignored his testimony that he has trouble standing for more than an hour,
cannot walk more than three blocks, and cannot lift more than ten pounds. Pl.’s Br. at 9. The
Although an ALJ must give serious consideration to a claimant’s complaints, such
Plaintiff also argues that the ALJ failed to credit Plaintiff’s testimony regarding asthma,
headaches, and insomnia. Pl.’s Br. at 7. However, Plaintiff does not appear to have testified at
any length regarding these issues at the hearing, and thus they will be addressed in a separate
section. See infra Part III.C.
testimony is assessed “in relation to the objective medical evidence and other evidence.” 20 C.F.R.
§ 404.1529(c)(4); see also Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (“Allegations of
pain and other subjective symptoms must be supported by objective medical evidence.”). If an
ALJ chooses to reject certain evidence, such as the claimant’s testimony, he or she must state in
the decision “which evidence he has rejected and which he is relying on as the basis for his
finding.” Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir. 1999). The ALJ
specifically noted these requirements in his decision. See Tr. 29.
Here, the ALJ properly assessed Plaintiff’s subjective claims of orthopedic limitations and
pain, and considered them in light of the objective medical evidence. As an initial matter, the ALJ
did in fact credit much of Plaintiff’s testimony, concluding that “the claimant’s medically
determinable impairment could reasonably be expected to cause the alleged symptoms.” Tr. 29.
The ALJ merely found that his “statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible.” Tr. 29. The ALJ based this conclusion on
the “objective medical findings,” which “reveal[ed] some limitations, but not to the extent alleged
by the claimant.” Id. Specifically, the ALJ found that Plaintiff’s claims of severe limitations from
January 15, 2008 to December 31, 2009 2 were contradicted by: (1) a reduction in claimant’s
reported pain level from a 10 out of 10 to a 5 out of 10 after a course of physical therapy from
January through August 2008; (2) an August 2008 examination by Dr. Carollo that revealed only
slight limitation in range of motion of the cervical spine and right rotation, while all other domains
Because Plaintiff’s alleged onset date is January 15, 2008 and his date last insured is December
31, 2009, he must demonstrate that he was disabled within the meaning of the Act between those
dates. See Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990) (“Under 20 C.F.R. § 404.131,
appellant is required to establish that he became disabled prior to the expiration of his insured
status.”); Ortega v. Comm’r of Soc. Sec., 232 F. App’x 194, 197 (3d Cir. 2007) (holding that the
district court did not err by failing to credit plaintiff’s alleged obesity impairment because “the
record shows that his obesity did not develop until well after his insured status expired”).
were normal; (3) a final December 2008 examination by Dr. Carollo that noted that the claimant
had full muscle strength, negative Spurling’s test, and only slight limitation of range of motion;
and (4) the fact that Plaintiff submitted no medical records indicating further treatment for
musculoskeletal symptoms from December 2008 to his date last insured. Tr. 28-29. The ALJ also
placed great weight on Dr. Carollo’s opinion, which stated that Plaintiff’s pain would vary
depending on activity levels and changes in weather and that he should avoid strenuous activities,
but stopped short of concluding that Plaintiff was permanently disabled. Tr. 30; see also Tr. 213.
And finally, the ALJ placed great weight on the opinions of the state agency physicians, who found
that Plaintiff’s left hip condition met the requirements of Listing 1.02A following his fall in
January 2011, but that Plaintiff had not established any disability prior to the DLI. Tr. 349, 353.3
Given the ALJ’s consideration of Plaintiff’s subjective complaints in light of the objective
medical evidence, the Court cannot conclude that the ALJ erred in determining that Plaintiff can
perform sedentary work. See Holley v. Comm’r of Soc. Sec., 590 F. App’x 167, 169 (3d Cir.
2014) (noting that the ALJ’s credibility determinations are entitled to deference).
B. Consideration of the Opinions of Medical Experts
Plaintiff also argues that the ALJ substituted his own opinion for that of the medical
experts. The Court disagrees.
Plaintiff has pointed to four different medical opinions that are arguably probative of
Although not explicitly discussed by the ALJ, there appears to be additional evidence
contradicting Plaintiff’s claim of total disability between January 15, 2008 and December 31,
2009. For example, on July 19, 2009, Plaintiff visited the emergency room at the University of
Medicine and Dentistry of New Jersey (“UMDNJ”) for an unrelated issue, and denied any
musculoskeletal symptoms. Tr. 264. In addition, on October 15, 2009, Plaintiff stated at a
gastroenterology visit with Dr. Wang that he “[d]enies back pain, joint pain, joint swelling, muscle
cramps, muscle weakness, stiffness, [and] arthritis.” Tr. 320. And finally, on an unrelated
emergency room visit on February 24, 2010, Plaintiff reported no musculoskeletal pain and was
found to have a steady gait and full range of motion. Tr. 300.
Plaintiff’s disability during the relevant period: (1) Dr. Carollo’s 2008 analyses and diagnoses; (2)
a November 2011 review of the record by state agency physician Kopel Burk, M.D.; (3) a February
2012 review of the record by state agency physician Rizwan Mohammad, M.D.; and (4) a July
2011 examination and diagnosis by Fatima Samad, M.D. Each will be discussed in turn.
Plaintiff has not identified any aspect of the ALJ’s decision that differs from Dr. Carollo’s
opinion. Plaintiff merely points to Dr. Carollo’s finding that the damage to his C5-C6 discs is
permanent and that he will continue to have this symptomatology complex for the remainder of
his lifetime of variable degree, which Plaintiff believes proves that he could not perform sedentary
work. Reply Br. at 1-2. However, “the ALJ’s disability inquiry does not end upon the diagnosis
of” a disease or impairment. Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990). Rather, “the
ALJ must go on to evaluate whether the claimant’s [impairment] was so severe that it prevented
the claimant from engaging in substantial gainful employment.” Id. (quotation omitted). The ALJ
specifically laid out and discussed Dr. Carollo’s findings, and accepted his assessment of
Plaintiff’s cervical injury. See Tr. 29-30. He then considered how Dr. Carollo’s diagnoses
impacted Plaintiff’s exertional ability, and found his opinion to be “consistent with a determination
that the claimant remained capable of working at the sedentary exertional level, as the doctor
merely indicated the claimant should avoid strenuous activity.” Tr. 30. This was the proper
analysis, and does not warrant remand.
Plaintiff also fails to demonstrate that the ALJ substituted his own opinion for that of the
state agency physicians, Dr. Burk and Dr. Mohammad. As both physicians concluded that Plaintiff
did not have a disability under the Act prior to the DLI, it is difficult to understand why Plaintiff
attempts to rely on their opinions. See Tr. 349, 353. In any event, the ALJ specifically discussed
the physicians’ findings, gave them “great weight,” and concluded based on their opinions that the
claimant was “capable of significant work-related activities.” Tr. 30. The ALJ’s conclusions were
fully consistent with those of Dr. Burk and Dr. Mohammad.
Finally, the ALJ properly addressed the medical evidence pertaining to Plaintiff’s
complaints of hip pain and osteoarthritis, including Dr. Samad’s report. Although Plaintiff initially
complained of hip and left buttocks pain after his automobile accident in 2008, see Tr. 211, Dr.
Carollo’s final examination in December 2008 did not mention any hip issues, see Tr. 212.
Plaintiff also did not report any disabling effects due to a hip ailment during any of his other
hospital visits or examinations prior to the DLI of December 31, 2009. The only other evidence
addressing Plaintiff’s hip impairment significantly postdates his DLI, and is dated after he
sustained a traumatic fall in January 2011. See Tr. 333 (wherein Dr. Samad noted that Plaintiff
“had a fall in Jan 2011, after which he developed this left hip pain which is progressively
worsening”). Based on this lack of evidence, the ALJ agreed with the state agency physicians that
there was no record evidence establishing that Plaintiff’s hip impairment rendered him disabled
under the Act prior to the DLI. Tr. 30. This conclusion was not contrary to Dr. Samad’s
evaluation, and was consistent with the ALJ’s prior determination that the medical evidence
demonstrated that “claimant’s statements concerning the intensity, persistence and limiting effects
of [his] symptoms are not entirely credible.” Tr. 29. Accordingly, the ALJ did not substitute his
own opinion for that of any medical expert in the record, and his conclusions were supported by
C. Consideration of Plaintiff’s Asthma, Headaches, GERD, and Insomnia
Plaintiff argues that remand is required because the ALJ failed to consider Plaintiff’s
asthma, headaches, GERD, and insomnia. The Court disagrees.
Plaintiff’s complaints of asthma, headaches, GERD, and insomnia were present in his
medical records, listed in his application for benefits, noted by a state agency physician, and
mentioned by the SSA in its Notice of Disapproved Claim. See Tr. 57, 81, 171, 176, 271, 277,
281, 312-13, 349. Nevertheless, none of these impairments were mentioned by the ALJ.
The first issue is whether the ALJ erred by failing to consider Plaintiff’s additional
impairments at step two. Defendant argues that, if anything, the ALJ’s failure to discuss Plaintiff’s
additional impairments at step two was harmless error because the ALJ nonetheless found that
Plaintiff’s cervical spine degenerative disc disease constituted a “severe” impairment, and thus
allowed his claim to proceed past that step. Opp’n at 12 n.6. The Court agrees that any failure to
mention Plaintiff’s additional medical issues at step two was harmless error, if any. See, e.g.,
Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (“Because the ALJ found
in Salles’s favor at Step Two, even if he had erroneously concluded that some of her other
impairments were non-severe, any error was harmless.”); Wells v. Acting Comm’r of Soc. Sec.,
No. 15-6048, 2016 WL 6824369, at *4 (D.N.J. Nov. 18, 2016) (same).
The Court must also consider whether the ALJ’s failure to consider Plaintiff’s asthma,
headaches, GERD, and insomnia in the RFC analysis mandates remand. As noted by the ALJ,
when making an RFC determination, an ALJ must consider limitations imposed by all of the
claimant’s alleged impairments, even those that are not “severe.” Tr. 26 (citing 20 C.F.R. §
404.1545(a)(2); SSR 96-8p). Here, the ALJ stated that he had “considered all symptoms and the
extent to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” Tr. 28. As the ALJ is not required to discuss every single
piece of evidence in the record, see Hur v. Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004), and the
ALJ considered and discussed a significant amount of medical evidence in his opinion, “there is
no indication that, despite not expressly mentioning [Plaintiff’s] other medical problems, the ALJ
did not take them into account.” Bales v. Colvin, 576 F. App’x 792, 799 (10th Cir. 2014) (holding
that despite the ALJ’s failure to take numerous alleged impairments into account, remand was not
warranted because the ALJ had recited the identical language as the ALJ used here, and appeared
to have considered all of the medical evidence).
In addition, the ALJ is deemed to have considered Plaintiff’s complaints of asthma,
headaches, and GERD because the state agency physicians were aware of these impairments, see
Tr. 349, 353, and the ALJ reviewed and adopted their conclusions, see Tr. 30. As the Third Circuit
has held, when an ALJ evaluates and adopts the conclusions of physicians who are aware of the
claimant’s medical issues, such action “constitutes a satisfactory if indirect consideration of that
condition.” Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005); see also Sassone v. Comm’r
of Soc. Sec., 165 F. App’x 954, 958 (3d Cir. 2006) (“[B]ecause Sassone’s physicians were aware
of his weight problem, . . . the ALJ’s discussion and adoption of their medical conclusions
constitutes, at a minimum, an ‘indirect consideration’ and rejection of Sassone’s weight condition
in his disability analysis.”) (quotation omitted).
Moreover, even if the ALJ erred by failing to consider all of Plaintiff’s alleged medical
impairments, Plaintiff has not demonstrated that any of these issues, either individually or
collectively, inhibited his functioning in a manner that would have changed the ALJ’s RFC
assessment. The plaintiff maintains the burden at steps one through four, and must present
evidence establishing that each alleged ailment either individually or collectively limited his ability
to perform work. Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010). Therefore, if
a claimant fails to present evidence demonstrating “how [he] might have prevailed at step [four] if
the ALJ’s analysis had been more thorough,” remand is inappropriate. Holloman v. Comm’r Soc.
Sec., 639 F. App’x 810, 814 (3d Cir. 2016) (emphasis in original). Here, Plaintiff merely states
that he “has an inhaler [and takes other medications] for his asthma, wheezing and headaches,”
that his “pain interrupts his sleep,” and that these impairments “further limit [his] ability to perform
substantial gainful activity on a sustained basis.” Pl.’s Br. at 3, 9. These are precisely the types
of “generalized response[s]” that the Third Circuit has found insufficient to mandate remand. See
Rutherford, 399 F.3d at 553 (holding that “an assertion that [claimant’s] weight makes it more
difficult for her to stand, walk and manipulate her hands and fingers” was not enough to
demonstrate that the ALJ’s consideration of the claimant’s obesity would have “affect[ed] the fivestep analysis”); Brown v. Colvin, No. 15-0992, 2016 WL 6652360, at *2 (M.D. Pa. Nov. 10, 2016)
(same); see also Bales, 576 F. App’x at 799 (holding that any error was harmless because the
claimant failed to show that any of her additional conditions actually affected her functioning).4
Accordingly, any error by the ALJ was harmless, and remand is not warranted.
D. Failure to Obtain Testimony of a Vocational Expert
Finally, Plaintiff alleges that the ALJ erred by failing to obtain the testimony of a vocational
expert. The Court disagrees.
The ALJ determined at step four that Plaintiff was capable of performing past relevant
work, and thus the sequential analysis ceased before advancing to step five. “At step four of the
sequential evaluation process, the decision to use a vocational expert is at the discretion of the
ALJ.” Lopez v. Comm’r of Soc. Sec., 270 F. App’x 119, 123 (3d Cir. 2008); see also Breslin v.
Comm’r of the Soc. Sec. Admin., No. 13-1190, 2014 WL 936441, at *14 (D.N.J. Mar. 10, 2014)
(“When the ALJ finds that the claimant is able to perform past relevant work, none of these sources
It also bears noting that the medical records indicate that Plaintiff’s additional alleged
impairments were not disabling. See, e.g., Tr. 249 (wherein Plaintiff stated in August 2008 that
his headaches were only occurring “once a week”); 331 (wherein Plaintiff stated in August 2009
that his GERD symptoms “improved with Prilosec”).
require an ALJ to consult a vocational expert at step four, regardless of the nature of the claimant’s
impairments.”); Torres v. Comm’r of Soc. Sec., No. 10-4623, 2011 WL 6306593, at *6 (D.N.J.
Dec. 14, 2011) (same). As Plaintiff did not dispute that his past relevant work as an office manager
was a sedentary job performed at the skilled level and the ALJ was able to identify an equivalent
job in the Dictionary of Occupational Titles, see Tr. 30, it was within his discretion to decline to
use a vocational expert at step four. See 20 C.F.R. § 404.1560(b)(2).
Because the Court finds that the ALJ’s decision is supported by substantial evidence, the
Commissioner’s disability determination is AFFIRMED. An appropriate order will follow.
/s Madeline Cox Arleo__________
Hon. Madeline Cox Arleo
United States District Judge
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