LOMONACO v. COMMISSIONER OF SOCIAL SECURITY

Filing 11

OPINION fld. Signed by Judge Susan D. Wigenton on 10/2/15. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KRISTEN A. LOMONACO,

Civil Action No. 14-07211 (SDW)(SCM)

Plaintiff,

OPINION

v.

October 2, 2015

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

WIGENTON, District Judge.
Before the Court is Plaintiff Kristen A. Lomonaco’s (“Plaintiff” or “Lomonaco”) appeal of
the final administrative decision of the Commissioner of Social Security (“Commissioner”) that
she is not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act (the
“Act”). This appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure
78. This Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper
under 28 U.S.C. § 1391(b). For the reasons set forth below, this Court AFFIRMS the
Commissioner’s decision.

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I.

PROCEDURAL AND FACTUAL HISTORY
A. Procedural History
On December 29, 2010, Plaintiff applied for Disability Insurance Benefits (“DIB”) (R.

140), alleging disability as of July 7, 2010, based on severe major depression. (R. 160.) Plaintiff’s
application was denied both initially and upon reconsideration. (R. 60–85.) Plaintiff’s subsequent
request for a hearing before an administrative law judge (“ALJ”) was granted, and a hearing was
held before ALJ Barbara Dunn (“ALJ Dunn”) on November 19, 2012. (R. 12–14.) Plaintiff, as
well as a vocational expert, appeared and testified at the hearing. (R. 12–24, 25–63.) On February
11, 2013, ALJ Dunn issued a decision finding Plaintiff was not disabled and denying her
application for disability benefits. (R. 12-24.) On September 15, 2014, the Appeals Council denied
Plaintiff’s request for review of ALJ Dunn’s February 11, 2013 decision, making it the
Commissioner’s final decision. (R. 1–5.) Plaintiff now seeks a reversal of the decision or, in the
alternative, a remand and order for a new hearing. (Compl. 3.)
B. Factual History
1. Personal and Employment History
Plaintiff was thirty-two years old at the time the instant appeal was filed in 2014. (Compl.
¶ 4.) She holds a high school diploma and has previously worked as a medical biller, coder and a
hospital registration admitting clerk. (Id.) Plaintiff alleges that she became disabled as of July 7,
2010, due to the following medical impairments: “[o]rthopedic, neurological and psychiatric
condition[s].” (Id. ¶¶ 5–6.)
2. Medical History
The record reflects that Plaintiff was examined by numerous medical doctors and
healthcare practitioners in relation to her disability claim. (R. 25–63.) In addition, Plaintiff
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testified about her health during a hearing before ALJ Dunn. (Id.) The following is a brief
summary of the medical evidence:
Plaintiff alleges that she has been unable to work due to physical and psychiatric ailments.
(R. 160.) Specifically, Plaintiff contends that she has symptoms related to orthopedic, severe
major depression and major depression disorder with psychotic features. (Id.)
Regarding her physical impairments, Plaintiff had a ruptured ovarian cyst on December 2,
2009 for which she received Percocet for pain, and from which she has since recovered. (R. 247.)
She also claims to suffer chronic leg pain associated with a knee surgery in 2002. (R. 285.)
Plaintiff experienced mental ailments prior to the alleged onset date of disability of July 7,
2010. (R. 275–332.) During visits on February 2, 2010 and February 26, 2010, Plaintiff’s family
doctor, Michael Beams, D.O (“Dr. Beams”) observed that Plaintiff suffered from a long history of
“Major Depression” that worsened over the previous year, and that Plaintiff was depressed and
could not concentrate or “deal with stress at all.” (R. 276.) Dr. Beams concluded that Plaintiff’s
depression and inability to concentrate or deal with stress limited her ability to do work related
activities. (R. 277.)
Plaintiff was admitted to Overlook Hospital on June 16, 2010 due to a drug overdose of
Xanax and Ultram. (R. 282.) The attending physician classified the overdose as a suicide attempt,
determining that it resulted from Plaintiff experiencing increasing depression, legal issues relating
to a suspended drivers’ license, and family problems. (Id.) Plaintiff admitted to the overdose the
day after hospital admittance, and was ultimately admitted to the psychiatric ward on June 23,
2010 for observation. (R. 296.) Plaintiff was diagnosed with “major depression, severe, without
psychosis.” (R. 282.)

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Plaintiff received a psychiatric evaluation on June 30, 2010 by Rozana R. Alam, M.D.
(“Dr. Alam”) at the Overlook Hospital Behavioral Health Program. (R. 362–64.) Dr. Alam’s
diagnostic impression was that Plaintiff had a “[m]ajor depressive disorder, severe without
psychotic features and history of pain in right knee and hip status post right knee surgery
arthroscopically.” (R. 363.) Dr. Alam recommended weekly therapy, an increase in Zoloft
medication, and weekly follow-ups. (R. 363–64.)
Beginning on July 7, 2010, the date of the alleged onset of disability, Plaintiff received
weekly therapy. (R. 338–425.) Progress notes from July 7, 2010 show that Plaintiff struggled with
daily activities over the previous two weeks. (R. 367.) On July 21, 2010, Plaintiff reported
improved sleeping, and reduction of suicidal thoughts accompanied by anxiety. Plaintiff also
stated that she intended to conduct an online job search. (R. 377.)
Plaintiff underwent outpatient therapy with Helen Kessler-David, LCSW (“Ms. KesslerDavid”) from September 2010 through December 2010. (R. 396–409.) An overview of Ms.
Kessler-David’s notes shows that Plaintiff’s mood was euthymic, she was goal directed, her
activity level was good, her sleep was mostly continuous and improved, while occasionally
disruptive, and her pain ranged from moderate to intense. (Id.) Additionally, Ms. Kessler-David’s
reports show that Plaintiff began exercising, felt increased positivity, had a “good” relationship
with her partner and mother, and was “feeling much more positive about life and moving forward.”
(R. 416.) Ms. Kessler-David stated in her psychiatric report for Plaintiff’s disability claim that
Plaintiff experienced depression affecting her attention, anxiety affecting her adaptation to new
environments, and pain potentially limiting Plaintiff’s ability to do work related activities. (R.
347.) Dr. Alam completed the same psychiatric report as Ms. Kessler-David on March 8, 2011,
and reported the same findings. (R. 341.)

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Plaintiff’s psychiatrist’s treatment notes from the same time period indicate that Plaintiff’s
condition was stable, she was not suicidal, and did not experience side effects from her medication.
(Id.)
On April 19, 2011, Vasudev N. Makhija, M.D. (“Dr. Makhija”) conducted an independent
psychological evaluation of Plaintiff in accordance with Plaintiff’s disability claim. (R. 329.) Dr.
Makhija stated a diagnostic impression of a generalized anxiety disorder, major depressive
disorder, single episode, severe, chronic, without psychotic features, a cognitive disorder
potentially related to medication side effects, and a right knee injury. (R. 331.)
Thereafter, on May 24, 2011, Dr. Alam sent a letter to the disability determination
committee stating that Plaintiff is “psychiatrically stable and is fully able to return to work.” (R.
421.) The final mental status examinations by Ms. Kessler-David and Plaintiff’s psychiatrist show
that her mental status remained unchanged, that she was stable but anxious. (R. 422–25.)
3. Hearing Testimony
At the hearing held before ALJ Dunn on November 19, 2012, Plaintiff testified about her
previous employment and training, mental conditions, therapy, and medical treatments, all of
which have been previously stated. (R. 25–56.) Plaintiff also testified that because of her knee
surgery she experiences difficulty lifting and standing – potentially affecting her ability to
complete job requirements. (R. 52–53.) Plaintiff stated that she is unable to lift more than 50
pounds, and usually must sit after standing for an hour. (Id.)
Vocational Expert Rocco Meola (“Meola”) also testified at the administrative hearing to
determine whether there exists work in the national economy someone such as Plaintiff could
perform. (R. 56–58.) Meola opined that that there existed several representative jobs, such as a
microfilm mounter, an inspector/packer, and a produce weigher, in the national and local
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economies that a person with limitations similar to Plaintiff’s could perform. (R. 57.) Meola also
testified that someone absent three times a month could not perform in the competitive labor
market, (R. 58) and that only one absence per month would likely be acceptable in the positions
Plaintiff could perform. (R. 58–59.)
II.

LEGAL STANDARD
A. Standard of Review
In Social Security appeals, this Court has plenary review of the legal issues decided by the

Commissioner. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Yet, this Court’s review of the
ALJ’s factual findings is limited to determining whether there is substantial evidence to support
those conclusions. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence
“does not mean a large or considerable amount of evidence, but rather such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552, 565 (1988) (internal citation and quotations omitted).
Substantial evidence is “less than a preponderance of the evidence, but ‘more than a mere
scintilla’; it is ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Bailey v. Comm’r of Soc. Sec., 354 F. App’x. 613, 616 (3d Cir. 2009) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Importantly, “[t]his standard is not met if the
Commissioner ‘ignores, or fails to resolve, a conflict created by countervailing evidence.’” Bailey,
354 F. App’x. at 616 (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). However, if
the factual record is adequately developed, “‘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-cv-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)).

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“The ALJ’s decision may not be set aside merely because [a reviewing court] would have reached
a different decision.” Cruz v. Comm’r of Soc. Sec., 244 F. App’x. 475, 479 (3d Cir. 2007) (citing
Hartranft, 181 F.3d at 360). This Court is required to give substantial weight and deference to the
ALJ’s findings. See Scott v. Astrue, 297 F. App’x. 126, 128 (3d Cir. 2008). Nonetheless, “where
there is conflicting evidence, the ALJ must explain which evidence he accepts and which he
rejects, and the reasons for that determination.” Cruz, 244 F. App’x. at 479 (citing Hargenrader
v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)).
In considering an appeal from a denial of benefits, remand is appropriate “‘where relevant,
probative and available evidence was not explicitly weighed in arriving at a decision on the
plaintiff’s claim for disability benefits.’” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.
1979) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976)). Indeed, a
decision to “award benefits should be made only when the administrative record of the case has
been fully developed and when substantial evidence on the record as a whole indicates that the
claimant is disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 221–22 (3d
Cir. 1984) (citations omitted).
B. The Five–Step Disability Test
A claimant’s eligibility for social security benefits is governed by 42 U.S.C. § 1382. An
individual will be considered disabled under the Act if the claimant is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment” lasting continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A). The
impairment must be severe enough to render the individual “not only unable to do his previous
work but [unable], considering his age, education, and work experience, [to] engage in any kind
of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A

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claimant must show that the “medical signs and findings” related to his or her ailment have been
“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
. . . . ” 42 U.S.C. § 423(d)(5)(A).
To make a disability determination, the ALJ follows a five-step sequential analysis. 20
C.F.R. §§ 404.1520(a), 416.920(a); see also Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 480
(3d. Cir. 2007). If the ALJ determines at any step that the claimant is or is not disabled, the ALJ
does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Step one requires the ALJ to determine whether the claimant is engaging in substantial
gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as
work that “[i]nvolves doing significant and productive physical or mental duties . . . for pay or
profit.” 20 C.F.R. §§ 404.1510, 416.910. If the claimant engages in SGA, the claimant is not
disabled for purposes of receiving social security benefits regardless of the severity of the
claimant’s impairments. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the individual is
not engaging in SGA, the ALJ proceeds to step two.
Under step two, the ALJ determines whether the claimant suffers from a severe impairment
or combination of impairments that meets the duration requirement found in Sections 404.1509
and 416.909. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or a combination
of impairments is not severe when medical and other evidence establishes only a slight abnormality
or combination of abnormalities that would have a minimal effect on an individual’s ability to
work. 20 C.F.R. §§ 404.1521, 416.921; SSR 85-28, 96-3p, 96-4p. An impairment or a combination
of impairments is severe when it significantly limits the claimant’s “physical or mental ability to

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do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If a severe impairment or
combination of impairments is not found, the claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the ALJ finds a severe impairment or combination of
impairments, the ALJ then proceeds to step three.
Under step three, the ALJ determines whether the claimant’s impairment or combination
of impairments is equal to, or exceeds, one of those included in the Listing of Impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If an
impairment or combination of impairments meets the statutory criteria of a listed impairment as
well as the duration requirement, the claimant is disabled and entitled to benefits. 20 C.F.R. §§
404.1520(d), 416.920(d). If, however, the claimant’s impairment or combination of impairments
does not meet the severity of the listed impairment, or if the duration is insufficient, the ALJ
proceeds to the next step.
Before undergoing the analysis in step four, the ALJ must determine the claimant’s residual
functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(a), 404.1520(e), 416.920(a), 416.920(e). An
individual’s RFC is the individual’s ability to do physical and mental work activities on a sustained
basis despite limitations from his or her impairments. 20 C.F.R. §§ 404.1545, 416.945. The ALJ
considers all impairments in this analysis, not just those deemed to be severe. 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2); SSR 96-8p. After determining a claimant’s RFC, step four then
requires the ALJ to determine whether the claimant has the RFC to perform the requirements of
his or her past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the claimant is able
to perform his or her past relevant work, he or she will not be found disabled under the Act. 20
C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). If the claimant is unable
to resume his or her past work, the disability evaluation proceeds to the fifth and final step.

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At step five, the ALJ must determine whether the claimant is able to do any other work,
considering his or her RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). Unlike in the first four steps of the analysis where the claimant bears the burden
of persuasion, the burden shifts to the ALJ at step five to determine whether the claimant is capable
of performing an alternative SGA present in the national economy. 20 C.F.R. §§ 404.1520(g)(1)
(citing 404.1560(c)), 416.920(g)(1) (citing 416.960(c)); Kangas v. Bowen, 823 F.2d 775, 777 (3d
Cir. 1987). At this point in the analysis, the SSA is “responsible for providing evidence that
demonstrates that other work exists in significant numbers in the national economy that [the
claimant] can do, given [the claimant’s RFC] and vocational factors.” 20 C.F.R. §§ 404.1560(c)(2),
416.960(c)(2). If the claimant is unable to do any other SGA, he or she is disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v).
III.

DISCUSSION
At step one of the disability analysis, ALJ Dunn properly found that Plaintiff had not

engaged in SGA since July 7, 2010, the alleged onset date of Plaintiff’s disability. (R. 17.)
At step two, ALJ Dunn properly found that Plaintiff suffered from the following severe
impairments: “status post a right knee injury with residual pain; a generalized anxiety disorder; a
major depressive disorder; and a cognitive disorder.” (Id.) In making this finding, ALJ Dunn
considered Plaintiff’s testimony and the medical opinions and diagnoses of Plaintiff’s treating
physicians. (Id.) ALJ Dunn found that these severe impairments “significantly limit [Plaintiff’s]
mental and physical abilities to do one or more basic work activities. In addition, [Plaintiff’s]
impairments have lasted at a ‘severe’ level for a continuous period of more than 12 months.” (Id.)
ALJ Dunn’s findings of severe impairment are supported by substantial evidence in the record.

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At step three, ALJ Dunn properly determined that Plaintiff’s impairments did not equal or
exceed the impairments included in the Listing of Impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). First, ALJ Dunn properly found that
the evidence in this case does not support a finding that the claimant has the degree of difficulty
in ambulating as defined in 1.00B2b. (R. 17–18.) This listing “requires the involvement of one
major peripheral weight-bearing joint resulting in inability to ambulate effectively.” (R. 18.)
Despite the chronic leg pain claimed by Plaintiff, the record presents medical evidence that
Plaintiff’s leg had good muscle bulk, good strength, and its sensory capabilities were intact. (R.
285.)
Second, ALJ Dunn properly found that Plaintiff’s mental impairments did not meet or
exceed the severity requirements set forth in listings 12.02, 12.04, and 12.06 of the Listing
Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 17–18.) ALJ Dunn properly found
that the Paragraph B requirements were not satisfied. (Id.) First, ALJ Dunn found that Plaintiff
had only moderate restrictions in her daily living activities. (R. 18.) ALJ Dunn cited to the
testimony of both Plaintiff and medical professionals to conclude that Plaintiff had some
difficulties engaging in daily activities, but that she is able to care for herself, make simple meals,
and walk her dog. (Id.) Plaintiff also reported that she has a mix of good and bad days. (Id.)
Second, ALJ Dunn found that Plaintiff only had moderate difficulties in social functioning. (Id.)
ALJ Dunn cited the evidence in the record and Plaintiff’s testimony that she goes out to eat, talks
on the phone and computer, but doesn’t socialize as much as in the past. (Id.) Third, ALJ Dunn
found that Plaintiff had only moderate difficulties with regard to concentration, persistence or pace.
(Id.) Again, ALJ Dunn cited much of the above-listed evidence as well as Plaintiff’s testimony,
and correctly determined that Plaintiff only has some difficulty in sustaining focus, attention and

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concentration sufficiently long enough to permit the timely and appropriate completion of tasks
commonly found in work settings. (Id.) Lastly, ALJ Dunn properly found that the record evidence
only provides that Plaintiff experienced one to two episodes of decompensation, each of extended
duration, insufficient to satisfy Paragraph B. (Id.) ALJ Dunn also found that the evidence failed
to establish the presence of the Paragraph C criteria. (R. 19.)
For the above reasons, ALJ Dunn properly found that Plaintiff’s impairments did not equal
or exceed the impairments in the Listing of Impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.
Before undergoing the analysis in step four, ALJ Dunn determined Plaintiff’s RFC. (R. 19–
23.) ALJ Dunn properly found that Plaintiff has the RFC to perform light work as defined in 20
C.F.R. 404.1567(b). After extensive review of the record, ALJ Dunn found, specifically, that:
[Plaintiff] has the capacity to perform light work except that [Plaintiff] must
have the ability to sit for two minutes after each one hour of standing. She
cannot climb ladders, ropes or scaffolds and she can only frequently climb
ramps and stairs. She can frequently balance, stoop, kneel, crouch, and/or
crawl. She is also limited to one to two step instructions and only occasional
contact with the public and co-workers.
(R. 19.) In making this determination, ALJ Dunn considered both objective medical evidence and
other evidence, based on the requirements of 20 C.F.R. 404.1529 and 404.1527 and Social Security
Rulings (“SSRs”) 96-4p, 96-7p, 96-2p, 96-5p, 96-6p and 06-3p. (Id.) In support of her finding,
ALJ Dunn cited extensively to the testimony of Plaintiff, to a third-party function report completed
by Plaintiff’s mother, and to the treatment and evaluative records of Dr. Makhija, Dr. Beams, and
Dr. Alam, as well as the records from Overlook Hospital. (R. 19–23.) In light of the substantial
evidence reviewed by ALJ Dunn, this Court finds that ALJ Dunn properly determined Plaintiff’s
RFC.

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At step four, ALJ Dunn properly found that Plaintiff cannot perform her past relevant work
under 20 C.F.R. 404.1565. (R. 23.) ALJ Dunn cited to the vocational expert’s testimony that
Plaintiff cannot perform the work of an eye technician, biller and coder, or hospital registration
admitting clerk. (Id.) ALJ Dunn noted that Plaintiff’s past relevant work was all semi-skilled and
therefore exceeds her established mental and residual functional capacity. (Id.)
Lastly, at step five, ALJ Dunn properly found that Plaintiff can perform work that exists in
significant numbers in the national and local economies. (R. 23.) ALJ Dunn considered Plaintiff’s
age, education, work experience and RFC, as well as the vocational expert’s testimony. (R. 23–
24.) The vocational expert determined that Plaintiff was capable of satisfying the requirements of
the representative occupations of a microfilm mounter, inspector/packer, and a produce weigher,
which exist in the aggregate of thousands of jobs locally. (Id.) Because Plaintiff is capable of
performing work that exists in significant numbers in the national and local economies, Plaintiff
is not disabled under sections 216(i) and 223(d) of the Social Security Act. (R. 24.)

CONCLUSION
Because this Court finds that ALJ Miller’s decision is supported by substantial evidence
in the record, the Commissioner’s determination is AFFIRMED.

s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Orig: Clerk
cc:
Magistrate Judge Steven C. Mannion
Parties

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