O'BRIEN v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Jose L. Linares on 7/1/15. (gh, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT O’BRIEN,
Civil Action No. 14-6889 (JLL)
Plaintiff,
v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, District Judge.
This matter comes before the Court upon the appeal of Robert O’Brien (“Plaintiff”) from
the final determination by Administrative Law Judge (“ALJ”) Elias Feuer upholding the final
decision of the Commissioner denying Plaintiff’s application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”).
The Court has jurisdiction over this matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), and
resolves this matter on the parties’ briefs pursuant to Local Civil Rule 9.1(f). After reviewing the
submissions of both parties, and for the following reasons, the final decision of the
Commissioner is affirmed.
I.

BACKGROUND
A.

Procedural History

On May 19, 2011, Plaintiff filed an application for Disability Insurance Benefits under
Title II of the Social Security Act and an application for supplemental security income under
Title XVI of the Social Security Act. (R. at 193-99.) Both applications were denied on October
14, 2011. (R. at 102-07.) Plaintiff’s request for reconsideration was denied on February 9, 2012.
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(R. at 110-15.) Subsequently, a request for hearing was filed on April 5, 2012. (R. at 119-20.) A
hearing was held before ALJ Elias Feuer on March 7, 2013. (R. at 17-47.) On March 27, 2013,
ALJ Feuer issued a decision finding that Plaintiff was not disabled. (R. at 48-60.) On May 31,
2013, Plaintiff requested an extension of time to submit a brief in support of an appeal of the
ALJ’s decision. (R. at 14-16.) On June 12, 2013, Plaintiff’s request for more time was granted.
(R. at 7-8.) On October 3, 2014, the Appeals Council denied Plaintiff’s request for review,
thereby affirming the decision of the ALJ as the final decision of the Commissioner. (R. at 1-3.)
Plaintiff then commenced the instant action pursuant to 42 U.S.C. §§ 405(g) and/or 1383(c).
B.

Factual History
1. Plaintiff’s Testimony

At the time of his hearing, Plaintiff was fifty-six years old. (R. at 24.) He maintained
employment in various livery positions such as a cab driver, a forklift driver, a store laborer, and
a warehouse worker until 2009. (R. at 19-23.) His position as a material handler required
operating a forklift and manually lifting merchandise weighing up to 50 pounds. (R. at 20-21.)
Within the last 15 years Plaintiff had a job driving a dry-cleaning delivery van and was required
to lift up to 40 pounds at a time. (R. at 40-41.) Plaintiff stopped working during the years 2003
and 2004 to tend to his girlfriend at the time. (R. at 21.) Subsequently, he worked in a warehouse
operating a forklift and lifting merchandise weighing up to a maximum of 20 pounds. (R. at 22.)
Plaintiff was then employed as a taxi driver until October 2010. (R. at 22-23.) He stopped
working because he became homeless due to his alcoholism and moved in with his brother. (R. at
23.) Plaintiff did not collect unemployment or apply for New Jersey Workers’ Compensation at
that time. (R. at 25.)
Plaintiff testified that he looked for employment in warehouse work and fast-food

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restaurants after he stopped working as a taxi driver, but was refused employment without
reason. (R. at 25-26.) Plaintiff testified that he followed up with a few places and that if he was
offered an opportunity to work, he would have accepted. (R. at 27-28.) He stated that he stopped
looking for work in 2011 because of constant rejection. He alleges that it was around this time
that his family encouraged him to file the application for Disability Benefits. (R. at 29.)
Plaintiff indicates that he has difficulty walking due to susceptibility of falling. (R. at 30.)
He stated that he is currently taking Pristiq and Lamictal to treat his depression, and
Hydrochlorothiazide, Metoprolol, Enalapril, and Amaldopine to treat his high blood pressure. (R.
at 30-31.) Plaintiff alleges that Dr. Moore noted a connection between his organic brain
syndrome and his many years of alcohol abuse as well as the possibility that the syndrome may
be the result of mini-strokes (R. at 32-33.) Plaintiff alleges that his ability to work is impaired
because he can no longer walk without losing balance or stand for longer than half-an-hour
without extreme discomfort. (R. at 34-35.) He also alleges that he experiences a “little
dizziness” when moving his head while he is sitting or when walking. (R. at 37.)
2. Medical Evidence
A CT scan of the brain dated March 21, 2011 indicates a lacunar infarct in the pons and a
large lacunar infarct in the right basal ganglion, a tiny lacunar infarct in the left basal ganglion
and a second one in the genu of the left internal capsule, as well as small lacunar infarcts in both
centrum semiovales. There was no evidence of skull fracture, acute mastoiditis or sinusitis, nor
any evidence of intracerebral or subdural hematomas or subarachnoid hemorrhage. (R. at 279.)
The CT scan results of March 29, 2012 reveal an old infarct in the caudate nucleus, with no
evidence of acute intracranial hemorrhage or midline shift. (R. at 359-60.) An
electroencephalogram test conducted on April 11, 2012, indicated an abnormality consistent with

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a possible structural lesion in the right temporal area of the brain. (R. at 362.)
On June 21, 2012, an MRI of the Plaintiff’s right hip showed no evidence of acute bone
marrow edema, bone bruise, destructive change or fracture and revealed normal alignment. The
impression was mild-to-moderate right hip osteoarthrosis. (R. at 453.)
Beginning in February 2011, Plaintiff visited the Paterson Community Health Center. On
the Residual Functional Capacity Questionnaire dated August 11, 2011, Dr. Moore noted
Plaintiff’s memory loss, short attention span, inability to concentrate, and compromised gait. She
indicated that Plaintiff’s experience of pain frequently interferes with attention and concentration
needed to perform simple work tasks. (R. at 282-85.) On October 3, 2011, November 22, 2011,
and January 3, 2012, by way of checkmarks suggesting normalcy or the absence of crosses
representing lack of abnormality, Dr. Moore indicated that she did not observe any abnormalities
in Plaintiff’s neurological deficits or gait. (R. at 363, 365, 367.)
Plaintiff indicated to Dr. Miskin that he enrolled in Options Counseling Center in March
2011 and attended the program five days a week. (R. at 323.) In Dr. Miskin’s September 6, 2011
report, he noted that there was no overt evidence of a thought disorder. Plaintiff had the ability to
recall what he ate for breakfast that morning, as well as what he had for dinner the night prior.
Dr. Miskin opined that Plaintiff is able to follow and understand simple instructions, perform
many simple tasks independently, and that he is able to maintain attention and concentration. (R.
at 324.)
Throughout various sessions of treatment with Dr. Hooper of Paterson Community
Health Center, Inc., Dr. Hooper described Plaintiff as calm, cheerful, oriented, responsive, and
cooperative. While on a few occasions Plaintiff’s mood was angry or sad, his thought content
was consistently normal and he appeared fully oriented for every visit. (R. at 457-68.) Using the

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Current Mental Status form’s terms to describe Plaintiff’s current mental status, Dr. Hooper
indicated that Plaintiff’s attention, concentration, and speech flow were normal, his thought
organization logical, and thought content appropriate to the circumstances. She did not note any
abnormalities in Plaintiff’s posture or gait. (R. at 470.)
Plaintiff also sought treatment from Dr. Dicovskiy in 2012 in connection with his
depression. (R. at 369-72.) He testified that he used to feel sad and weepy on a daily basis but the
medicine that Dr. Dicovskiy prescribed him to treat his depression has alleviated these
symptoms. (R. at 38-39.)
3. Vocational Expert Testimony
The ALJ asked vocational expert Jackie Wilson to consider whether a hypothetical
individual “with the claimant’s age, education, and experience, limited to only occasionally
climbing ramps, stairs, ladders, or scaffolds, and occasional balance, and to avoid unprotected
heights and moving mechanical parts” could perform Plaintiff’s past relevant work. Ms. Wilson
testified that the occupation of a taxi driver would still be appropriate and the individual would
be able to perform such duties. (R. at 42.) Plaintiff’s representative asked Ms. Wilson whether
this hypothetical individual could perform Plaintiff’s prior work “if every time the individual,
while either sitting or standing, would be off task if they had to move their head from side-toside due to dizziness…33% of the time.” The 33% figure was a rough estimate of the amount of
time that the individual would be off task. Ms. Wilson responded that such limitation would
preclude work. (R. at 43-44.)
The ALJ then asked Ms. Wilson to consider whether the hypothetical individual further
limited “to standing or walking for four hours a day and sitting four hours a day” would be able
to perform Plaintiff’s past work. Ms. Wilson testified that the occupation of a taxi driver would

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still be appropriate. The ALJ posed a further limitation to the hypothetical individual to “six
hours sitting and two hours standing.” Ms. Wilson stated that such an individual could still
perform the duties of Plaintiff’s past occupation as a taxi driver. (R. at 42-43.) When asked by
the ALJ if the hypothetical individual with the limitation of six hours sitting and two hours
standing would be able to perform other jobs in the general and national economy, Ms. Wilson
testified in the affirmative. She stated that such an individual would be able to work as a final
assembler, an ampoule sealer, as well as at sedentary jobs. (R. at 44-45.)
II.

STANDARD OF REVIEW
A reviewing court will uphold the Commissioner’s factual decisions if they are supported

by “substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Sykes v. Apfel, 228 F.3d 259, 262
(3d Cir. 2000). Substantial evidence is “more than a mere scintilla but may be less than a
preponderance.” Woody v. Sec’y of Health & Human Servs., 859 F.2d 1156, 1159 (3d Cir.
1988). It “does not mean a large or considerable amount of evidence, but rather such relevant
evidence as a reasonable person might accept as adequate to support a conclusion.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (citation omitted). Not all evidence is considered
substantial. For instance,
[a] single piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict created
by countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence – particularly certain types of
evidence (e.g. that offered by treating physicians) – or if it really
constitutes not evidence but mere conclusion.
Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (quoting Kent
v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).) The ALJ must make specific findings of fact to
support his ultimate conclusions. Stewart v. Sec’y of Health, Educ. & Welfare, 714 F.2d 287,
290 (3d Cir. 1983).
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The “substantial evidence standard is a deferential standard of review.” Jones v. Barnhart,
364 F.3d 501, 503 (3d Cir. 2004). It does not matter if this Court “acting de novo might have
reached a different conclusion” than the Commissioner. Monsour Med. Ctr. V. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986) (citing Hunter Douglas, Inc. v. Nat’l Labor Relations Bd., 804 F.2d
808, 812 (3d Cir. 1986).) “The district court . . . is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182
(3d Cir. 1992) (citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984).) A Court must
nevertheless “review the evidence in its totality.” Schonewolf v. Callahan, 972 F. Supp. 277, 284
(D.N.J. 1997) (citing Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984).) In doing so, the Court
“must ‘take into account whatever in the record fairly detracts from its weight.’” Id. (citing
Willibanks v. Sec’y of Health & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988).)
A court must further assess whether the ALJ, when confronted with conflicting evidence,
“adequately explain[ed] in the record his reasons for rejecting or discrediting competent
evidence.” Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler,
786 F.2d 581 (3d Cir. 1986).) If the ALJ fails to properly indicate why evidence was discredited
or rejected, the Court is not permitted to determine whether the evidence was discredited or
simply ignored. See Burnett v. Comm’r of Soc. Sec, 220 F.3d 112, 121 (3d Cir. 2000) (citing
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).)
III.

APPLICABLE LAW
A.

The Five-Step Process for Evaluating Whether a Claimant Has a Disability

A claimant’s eligibility for benefits is governed by 42 U.S.C. § 1382. Pursuant to the Act,
a claimant is eligible for benefits if he meets the income and resource limitations of 42 U.S.C. §§
1382a and 1382b and demonstrates that he is disabled based on an “inability to engage in any

7

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. §1382c(a)(3)(A). A
person is disabled only if his physical or mental impairment(s) 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 work which exists in the national economy.” 42 U.S.C. §
1382c(a)(3)(B).
To determine whether the claimant is disabled, the Commissioner performs a five-step
sequential evaluation. 20 C.F.R. § 416.920. The claimant bears the burden of establishing the
first two requirements. The claimant must establish that he (1) has not engaged in “substantial
gainful activity” and (2) is afflicted with “a severe medically determinable physical or mental
impairment.” 20 C.F.R. §404.1520(a)-(c). If a claimant fails to demonstrate either of these two
requirements, DIBs are denied and the inquiry ends. Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). If the claimant successfully proves the first two requirements, the inquiry proceeds to
step three which requires the claimant to demonstrate that his impairment meets or medically
equals one of the impairments listed in 20 C.F.R. Part 404 Appendix 1. If the claimant
demonstrates that his impairment meets or equals one of the listed impairments, he is presumed
to be disabled and therefore, automatically entitled to DIBs. Id. If he cannot make the required
demonstration, further examination is required.
The fourth step of the analysis asks whether the claimant’s residual functional capacity
(“RFC”) permits him to resume his previous employment. 20 C.F.R. §416.920(e). If a claimant is
able to return to his previous employment, he is not disabled within the meaning of the Act and
is not entitled to DIBs. Id. If the claimant is unable to return to his previous employment, the

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analysis proceeds to step five. At this step, the burden shifts to the Commissioner to demonstrate
that the claimant can perform a job that exists in the national economy based on the claimant’s
RFC, age, education, and past work experience. 20 C.F.R. § 416.920(g). If the Commissioner
cannot satisfy this burden, the claimant is entitled to DIBs. Yuckert, 482 U.S. at 146 n.5.
B.

The Requirement of Objective Evidence

Under the Act, disability must be established by objective medical evidence. “An
individual shall not be considered to be under a disability unless he furnishes such medical and
other evidence of the existence thereof as the [Commissioner] may require.” 42 U.S.C. §
423(d)(5)(A). Notably, “[a]n individual’s statement as to pain or other symptoms shall not alone
be conclusive evidence of disability as defined in this section.” Id. Specifically, a finding that
one is disabled requires:
[M]edical signs and findings, established by medically acceptable
clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence required to
be furnished under this paragraph . . . would lead to a conclusion
that the individual is under a disability.
Id.; see 42 U.S.C. § 1382c(a)(3)(A). Credibility is a significant factor. When examining the
record: “The adjudicator must evaluate the intensity, persistence, and limiting effects of the
[claimant’s] symptoms to determine the extent to which the symptoms limit the individual’s
ability to do basic work-related activities.” SSR 96-7p, 1996 WL 374186 (July 2, 1996). To do
this, the adjudicator must determine the credibility of the individual’s statements based on
consideration of the entire case record. Id. The requirement for a finding of credibility is found in
20 C.F.R. § 416.929(c)(4). A claimant’s symptoms, then, may be discredited “unless medical

9

signs or laboratory findings show that a medically determinable impairment(s) is present.” 20
C.F.R. § 416.929(b). See also Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
The list of “acceptable medical sources to establish whether [a claimant] has a medically
determinable impairment” includes licensed physicians, but does not include nurses. 20 C.F.R. §
404.1513(a). Though the ALJ “may also use evidence from other sources to show the severity of
[a claimant’s] impairments,” this evidence is “entitled to consideration as additional evidence”
and does not need to be given the same weight as evidence from acceptable medical sources. 20
C.F.R § 404.1513(d)(1). Hatton v. Comm’r of Soc. Sec., 131 Fed. Appx. 877, 878 (3d Cir.
2005). Factors to consider in determining how to weigh evidence from medical sources include
(1) the examining relationship, (2) the treatment relationship, including the length, frequency,
nature, and extent of the treatment, (3) the supportability of the opinion, (4) its consistency with
the record as a whole, and (5) the specialization of the individual giving the opinion. 20 C.F.R. §
404.1527(c).
IV.

DISCUSSION
Plaintiff argues that the ALJ erred at step two by improperly finding that his medical

conditions were not severe and by failing to properly weigh Dr. Moore’s opinion. (Pl. Br. at 12,
20.) He asserts that he has severe impairments including difficulty walking, standing, and
concentrating. O’Brien contends that such impairments are substantiated by the abnormal MRI
and CT brain scan results. (Pl. Br. at 15.) He argues that the ALJ should not have considered
medical notes which referred to the Plaintiff’s status as stable. (Pl. Br. at 16.) He also challenges
the ALJ’s finding that Plaintiff’s medical conditions do not significantly limit his ability to
perform daily activities. (Pl. Br. at 18.) Finally, Plaintiff argues that Dr. Moore’s opinion was
improperly rejected and that her opinion was not inconsistent with the medical record. (Pl. Br. at

10

20-21.)
A. Substantial evidence supports the ALJ’s finding that Plaintiff’s high blood pressure was not
severe.
Plaintiff states that the ALJ erred in finding that his impairments were not severe. (Pl. Br. at 12.)
However, he does not make any arguments suggesting that his high blood pressure was severe.
An impairment is severe if it significantly limits a claimant’s ability to perform basic work
activities. 20 C.F.R. § 404.1521(a). Basic work activities are “the abilities and aptitudes
necessary for performing most jobs,” including physical functions, capacities for seeing, hearing,
speaking, and following instructions, use of judgment, interacting appropriately with co-workers,
and dealing with change. 20 C.F.R. § 404.1521(b). The ALJ found that Plaintiff’s symptoms of
hypertension were due to his noncompliance with his medication and once he began taking his
prescribed medication, his blood pressure readings were normal. (R. at 55.) Plaintiff testified that
he is now compliant with prescribed medications. Plaintiff did not state that he is currently
experiencing any residual effects of this condition. (R. at 32.) Based on his testimony and its
medical support, the ALJ determined that because he no longer experiences symptoms of high
blood pressure and because “there is no evidence of end damage or any other residuals secondary
to uncontrolled blood pressure,” Plaintiff did not establish that his high blood pressure was
severe. (R. at 55-56.) The Court finds that the ALJ’s determination that Plaintiff’s high blood
pressure was not a severe impairment during the relevant time period is based on substantial
evidence in the record.
B. There is substantial evidence supporting the ALJ’s finding that Plaintiff’s organic brain
syndrome was not severe enough to significantly limit his ability to perform basic work-related
activities.
Plaintiff argues that the ALJ erred in finding that his organic brain syndrome was not severe. (R.
at 16.) However, there is no indication in Plaintiff’s medical records that his dizziness or
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difficulty with concentration affected his ability to perform any work activities. While the CT
scan of Plaintiff’s brain indicates several lacunar infarcts, Dr. Moore’s medical reports do not
address any physical or psychological limitations as a result of this. (R. at 56, 279, 363-67.)
Plaintiff argues that the ALJ improperly relied on Dr. Moore’s note indicating that Plaintiff’s
organic brain syndrome was stable. (Pl. Br. at 16.) However, the medical record clearly showed
that Plaintiff’s condition was benign. (Def. Br. at 8.) Furthermore, Plaintiff’s testimony directly
contradicts the supposition that his organic brain syndrome severely impairs his ability to work.
(Def. Br. at 9-10.) Despite his complaints of imbalance and vulnerability to falling, Plaintiff quit
his job because he became homeless due to his alcohol dependence, not as a result of any
difficulty with performing his job duties. (R. at 23.) Subsequently, he sought out employment as
a taxi driver, as a forklift operator, and at fast food restaurants. He followed up with a few of the
places to inquire into whether there were any available positions. O’Brien testified that if he had
been offered a job, he would have taken it. He stated that he felt he was able to perform the
duties of the jobs he applied to. (R. at 25-28.) Plaintiff further stated that he stopped looking for
work because he was discouraged after not having received any job offers, not because he was
physically or psychologically unable to work. (R. at 29.) He also testified that if he could have
his driver’s license reinstated, and if he was offered the opportunity to work as a taxi driver, he
“would like to give it a try.” (R. at 36.) Plaintiff has the burden of proving a severe impairment,
and he failed to do so. The Court finds that the ALJ’s determination that Plaintiff’s organic brain
syndrome was not a severe impairment is based on substantial evidence in the record.
C.

There is substantial evidence supporting the ALJ’s evaluation of Dr. Moore’s opinion.
First, O’Brien argues that the ALJ rejected Dr. Moore’s opinions without articulating

“good reasons” in the decision. 20 C.F.R. § 416.927(c)(2). The Court finds that ALJ did not

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improperly reject Dr. Moore’s opinion. He adequately explained in his decision his reasons for
granting no weight to her opinion, indicating that he did so because her opinions are inconsistent
with the findings of Dr. Miskin and Dr. Dicovskiy, with Plaintiff’s fully functional activities of
living, and with his observations of Plaintiff at the hearing. (R. at 57.)
Plaintiff also argues that the ALJ neglected to weigh the medical opinions in three of Dr.
Moore’s four reports and thus engaged in “sit and squirm” jurisprudence. (Pl. Br. at 20-25.) The
Court finds that the ALJ appropriately evaluated the medical record, Plaintiff’s own testimony,
and his observations of Plaintiff in the hearing. The ALJ’s consideration of Plaintiff’s behavior
during the 45 minute hearing as one of many factors does not amount to “sit and squirm”
jurisprudence. Therefore, the Court finds that although the ALJ explicitly weighed only one of
Dr. Moore’s four reports, Dr. Moore’s opinion was inconsistent with the rest of the record and
there is substantial evidence in the record to support the ALJ’s decision to give little weight to
her opinion.
1. Dr. Miskin’s and Dr. Dicovskiy’s opinions were appropriately given more weight than
Dr. Moore’s opinion because they were consistent with the record as a whole.
Dr. Miskin and Dr. Dicovskiy’s opinions are consistent with Plaintiff’s medical records.
The ALJ found that Dr. Miskin’s opinion was based on his evaluation of Plaintiff rather than
Plaintiff’s subjective complaints. (R. at 57.) In his September 2011 report, Dr. Miskin noted that
Plaintiff was able to maintain concentration and exhibited no overt evidence of a thought
disorder. (R. at 324.) Although Dr. Dicovskiy’s reports are for the most part illegible, they are
consistent with Dr. Miskin’s findings as well as with the March 2011 CT Brain Scan which
showed no evidence of any cognitive limitations. (R. at 369-72, 279.) Dr. Miskin’s report
indicates that Plaintiff “has no history of psychiatric hospitalization.” (R. at 323.) He notes that
Plaintiff is capable of going to the Options rehabilitation program five days a week and getting
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takeout food or preparing microwaveable food. Dr. Miskin also indicates that Plaintiff exhibited
satisfactory levels of concentration and attention. (R. at 323-24.) Consistent with Dr. Miskin’s
opinion, Dr. Dicovskiy’s report makes no mention of any psychiatric history which posed any
limitations. (R. at 370.)
Contrary to the opinions of Dr. Miskin and Dr. Dicovskiy, Dr. Moore indicates that
Plaintiff’s experience of pain frequently interferes with attention and concentration needed to
perform simple work tasks. (R. at 283.) Further, Dr. Moore’s report is inconsistent with the CT
scan which did not show any cognitive limitations or decreased brain functioning resulting from
the multiple lunar infarcts. (R. at 57, 279.) “The degree to which [a medical source] provides
supporting explanations for their opinions” affects the weight the ALJ will give to a medical
source’s opinion. 20 C.F.R. § 404.1527(c)(3). Dr. Moore based her opinion on Plaintiff’s
subjective complaints. (R. at 282-85.) The ALJ found that, although Plaintiff has been diagnosed
with organic brain syndrome, his “statements concerning the intensity, persistence, and limiting
effects of [his] symptoms are not entirely credible.” (R. at 55.) Without objective medical
evidence, complaints alone are insufficient to establish a severe impairment. 20 C.F.R. §
404.1508. Accordingly, the Court finds that there was substantial evidence in the record to
support the ALJ’s finding that Dr. Moore did not provide any supporting explanation for her
opinion.
Dr. Moore’s report is also in stark contrast from Plaintiff’s testimony about his
functional activities of daily living and the ALJ’s observations of Plaintiff at the 45 minute
hearing. Dr. Moore noted that Plaintiff’s pain was severe enough to frequently interfere with
attention and concentration needed to perform simple work tasks. (R. at 283.) However, on the
Function Report, Plaintiff reported that his daily activities included attending the Options

14

rehabilitation program five days a week and preparing his breakfast, and he noted that he had no
problem with personal care. (R. at 239-46.) Dr. Miskin reported that O’Brien conveyed to him
that he is able to live by himself in an apartment, order take out, and prepare food. Plaintiff’s
chief complaints to Dr. Miskin were only of alcohol dependence and abuse. (R. at 323.) Plaintiff
also testified that he actively applied for employment in 2011 and he would have taken a job if
he was offered one. (R. at 25-28.) Despite Dr. Moore’s opinion that Plaintiff had difficulty
concentration and attention, Plaintiff was concentrated and answered of the ALJ’s questions in a
clear and concise manner. (R. at 283, 57.)
This Court cannot substitute its conclusions for those of the fact-finder. It is within the
ALJ’s discretion to weigh the medical evidence. The Court concludes that due to these
inconsistencies, in addition to the factors under 20 C.F.R. § 404.1527(c), it was appropriate for
the ALJ to give no weight to Dr. Moore’s August 22, 2011 report; substantial evidence supports
his decision to give consistent, supportable opinions more weight and an inconsistent opinion
less weight.
2. Since the ALJ found Dr. Moore’s opinion inconsistent with the rest of the record, it
was not necessary for the ALJ to explicitly weigh Dr. Moore’s April 15, 2011, November 22,
2011, and February 2012 reports.
Plaintiff argues that because the ALJ did not explicitly set forth the weight given to three
of Dr. Moore’s four reports, the ALJ’s determination that Plaintiff is not disabled is erroneous.
(Pl. Br. at 21-22.) However, in the ALJ’s finding that Dr. Moore’s “assessment is unsupported,”
he cited to Dr. Moore’s April 15, 2011 and November 22, 2011 reports (R. at 57, 299-300, 30102.) Whether it was improper for the ALJ to decide not to explicitly weigh Dr. Moore’s other
three reports is not dispositive. The ALJ gave no weight to Dr. Moore’s August 22, 2011 report
because it was based on Plaintiff’s subjective complaints and is inconsistent with the rest of the
record. Dr. Moore’s other three reports are similar to her August 22, 2011 report. The ALJ’s
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finding that Plaintiff was not severely impaired was based on the medical opinions of Drs.
Miskin and Dicovskiy and Plaintiff’s own statements regarding his functional activities, and
merely reinforced by the ALJ’s observation of Plaintiff in the hearing. The ALJ did not engage
in “sit and squirm” jurisprudence as Plaintiff argues. (Pl. Br. at 25.) The Court holds that had the
ALJ explicitly referred to Dr. Moore’s other three reports, the result would have been the same.
Accordingly, the Court finds there was substantial evidence in the record to support the ALJ’s
conclusion that it was not necessary to explicitly weigh all four of Dr. Moore’s reports, as Dr.
Moore’s opinion is inconsistent with the record.
D. Because none of Plaintiff’s impairments were severe, the ALJ correctly did not proceed to
step three of the disability analysis.
The ALJ only proceeds to step three if the claimant has a severe medically-determinable
impairment or combination of impairments. Because there was substantial evidence to support
the ALJ’s determination that none of Plaintiff’s impairments constituted a severe medicallydeterminable impairment, the Court finds the ALJ properly did not proceed to step three.
Accordingly, this Court finds that the ALJ’s determination that Plaintiff is not disabled is
supported by substantial evidence in the record. As such, the final decision of the Commissioner
is affirmed.
V.

CONCLUSION
For the foregoing reasons, the decisions of the Commissioner and the ALJ are affirmed.

An appropriate order follows this Opinion.

DATED: July 1, 2015.
s/ Jose L. Linares_____________
JOSE L. LINARES
U.S. DISTRICT JUDGE
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