LOUBRIEL v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION fld. Signed by Judge Jose L. Linares on 2/17/16. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHARLENE LOUBRIEL,
Civil Action No. 15-1855 (JLL)

Plaintiff,

v.

OPINION

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SEC IJRITY,
Defendant.
LINARES, District Judge.
This matter comes before the Court upon the appeal of Sharlene Loubriel (“Plaintiff’) from
the final decision of the Commissioner upholding the final determination by Administrative Law
Judge (“AU”) Dma Loewy denying Plaintiffs application for Supplemental Security Income
(“SSI”) under the Social Security Act (the “Act”). The Court resolves this matter on the parties’
briefs pursuant to Local Civil Rule 9.1(1). The Court has reviewed the parties’ submissions, and
for the following reasons, the final decision of the Commissioner is affirmed.
I.

1
BACKGROUND
Plaintiff was born on May 28, 1970. (R. at 160.)

She completed school up to the tenth

grade and did not get her GED. (See id. at 415.) Plaintiff previously worked at the Washington
Heights Pediatric Group (“Pediatrics Group”) as a medical secretary.

(See id. at 416-417.)

Plaintiff stopped working at the Pediatrics Group in 2003 or 2004 because she had surgery for
gallbladder stones. (See Id. at 420.) Plaintiff asserts that this surgery precluded her from working

“R.” refers to the Administrative Record, which uses continuous pagination and can be found at
ECFNo. 6.
1

afterwards because “that’s when [shej started getting sick with everything else.” (Id. at 421.) She
further asserts that, after this period, her symptoms worsened, and she claimed that at the time of
the hearing she was suffering from neuropathy, sleep apnea, and hepatitis C. (Id.)
Plaintiff filed an application for SSI in 2007, alleging disability as of July 31, 2005. (See
id. at 160-63.) Her application was initially denied, and denied again on reconsideration. (See Id.
at 9 1-99.) A hearing was held on June 29, 2009 before AU Dennis O’Leary. (See id. at 58-78.)
On July 10, 2009, AU O’Leary issued a decision finding that Plaintiff was not disabled. (See id.
at 79-87.) On May 21, 2010, the Appeals Council remanded the case for further proceedings
because Plaintiff had not been informed of her right to representation during the June 29, 2009
hearing. (See id. at 88-90.)
Another hearing was held before AU O’Leary; Plaintiff was represented at the hearing.
(See id. at 26.) On October 10, 2010, AU O’Leary again found Plaintiff to not be disabled. (See
id. at 12-25.) Plaintiff appealed AU O’Leary’s October 2010 decision. (See id. at 6-11.) The
Appeals Council denied review, at which point Plaintiff appealed to this Court. (See id. at 45658, 463-67.) On May 17, 2013, pursuant to a consent order, this Court ordered the reversal of AU
O’Leary’s decision and remanded this matter back to the Commissioner for further proceedings.
(See id. at 456-57.)
As a result of the remand, another hearing on the matter was held on December 10, 2013
before a new AU, AU Loewy. (See id. at 410-42.) Plaintiff testified at the December 2013
hearing and was represented by counsel. (See id.) The hearing was continued in order for Plaintiff
to obtain further medical records from her primary care physician as well as undergo consultative
examinations by an ophthalmologist and an internist. (See id. at 440.) After submission of these
items, another hearing was held on July 17, 2014 where testimony from Vocational Expert (“yE”)

2

Esperanza Distefano was taken. (See id. at 3 77-442.) Plaintiff was present at the hearing and was
represented by counsel. (See id.)

At the end of the July 2014 hearing, AU Loewy closed the

record, (See id. at 408.) AU Loewy subsequently denied Plaintiff an opportunity to submit
additional rebuttal testimony, but did reopen the Record for an additional fifteen days. (See id. at
376.) Plaintiff submitted no additional evidence, and, on December 1, 2014, AU Loewy issued a
decision again finding Plaintiff not to be disabled. (See id. at 3 52-74.) Plaintiffs appeal of AU
Loewy’s decision is presently before this Court.
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 means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion,” and “[i]t is less than a preponderance of the evidence but
more than a mere scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Additionally,
under the Act, disability must be established by objective medical evidence. To this end, “[a]n
individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of
disability as defined in this section.” 42 U.S.C. § 423(d)(5)(A). Instead, a finding that one is
disabled requires:
[Miedical 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).

.

Factors to consider in determining how to weigh evidence

from medical sources include (1) the examining relationship; (2) the treatment relationship,

3

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).

The “substantial evidence standard is a deferential standard of review.” Jones, 364 F.3d at
503.

The AU is required to “set forth the reasons for his decision” and not merely make

conclusory unexplained findings.
2000).

Burnett v. Comm ‘r of Soc. See, 220 F.3d 112, 119 (3d Cir.

But, if the AU’s decision is adequately explained and supported, the 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). 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)). The Third Circuit has made clear however
that “Burnett does not require the AU to use particular language or adhere to a particular format
in conducting his analysis. Rather, the function of Burnett is to ensure that there is sufficient
development of the record and explanation of findings to permit meaningful review.” Jones, 364
F.3d at 505.
III.

THE FIVE STEP PROCESS
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.

§

13 82(a)( 1 )(A)-(B) and demonstrates that he is disabled based on 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)(1)(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

4

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.

§ 423(d)(2)(A).

The Third Circuit has summarized “the five step sequential evaluation for determining
whether a claimant is under a disability, as set forth in 20 C.F.R.

§ 404.1520” as follows:

In step one, the Commissioner must determine whether the claimant is currently
engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a). If a claimant is
found to be engaged in substantial activity, the disability claim will be denied.
Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether the claimant is suffering
from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant fails to show
that her impairments are “severe”, she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the claimant
s
t
impairment to a list of impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four and five.
Step four requires the ALl to consider whether the claimant retains the residual
functional capacity [(“RFC”)] to perform her past relevant work. 20 C.F.R.
§
404.1520(d). The claimant bears the burden of demonstrating an inability to return
to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994).
If the claimant is unable to resume her former occupation, the evaluation moves to
the final step. At this stage, the burden of production shifts to the Commissioner,
who must demonstrate the claimant is capable of performing other available work
in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The ALl must show
there are other jobs existing in significant numbers in the national economy which
the claimant can perform, consistent with her medical impairments, age, education,
past work experience, and residual functional capacity. The AU must analyze the
cumulative effect of all the claimant’s impairments in determining whether she is
capable of performing work and is not disabled.
Jones, 364 F.3d at 118-19 (formatting and emphasis added). “The claimant bears the burden of
proof for steps one, two, and four of this test. The Commissioner bears the burden of proof for the
last step.” Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000) (citing Bowen v. Yuckert, 482 U.S.
137, 146 n. 5 (1987)). Neither party bears the burden of proof at step three. Id. at 263 n.2.

5

IV.

DISCUSSION
A. Summary of AU Loewy’s Decision

On December 1, 2014, AU Loewy issued a decision finding that Plaintiff was not disabled
under section 1613(a)(3)(A) of the Social Security Act. (R. at 368.) In reaching this decision, at
step one, AU Loewy found that Plaintiff had not engaged in substantial gainful activity since
January 22, 2007. (Id. at 355.)
At step two, AU

Loewy found that Plaintiff suffered from the following severe

impairments: “asthma, back disorder, cataracts and maculopathy, obesity, carpal tunnel syndrome
and diabetes.” (Id.) AU Loewy, however, did not find the following alleged impairments to be
severe: tachycardia, fibromyalgia/arthritis, sleep apnealrestless leg syndrome, hepatitis C, right
shoulder bursitis, headaches, fibroids/fatty liver, or depression. (See id. 355-358.)

As discussed

in more detail below, AU Loewy engaged in a detailed analysis in finding these impairments not
to be severe. (See R. at 355-359.)
At step three, AU Loewy did not find that Plaintiff’s impairments meet or medically equal
in severity any of the clinical criteria for the Listed Impairments. (Id. at 3 59-60.)

AU Loewy

then determined that Plaintiff had the RFC to perform “sedentary work.” (Id. at 360.) AU Loewy
found that this RFC was limited as follows:
[Plaintiff] can only occasionally push and pull on the right side. The claimant is
limited to only occasional foot control, occasional climbing of ramps and stairs,
and never climbing ladders, ropes or scaffolds. She can occasionally balance or
stoop but never kneel, crouch or crawl. The claimant is further limited to frequent
right gross manipulation and frequent right fine manipulation. She should avoid
concentrated exposure to vibration, and avoid concentrated exposure to irritants.
She should avoid all exposure to unprotected heights, avoid even moderate
exposure to hazardous machinery, she cannot drive a motor vehicle and she is
limited to occupations not requiring her to read small print.

6

(Id, at 361.) In reaching this determination, AU Loewy engaged in a detailed discussion of
Plaintiffs impairments compared to her medical records and medical opinions. (See Id. at 36167.)
At step four, AU Loewy determined that Plaintiff was unable to perform her past work as
a medical secretary. (Id. at 367) At step five, based on testimony from a vocational expert, AU
Loewy however determined that there were a significant number ofjobs in the national economy
wherein Plaintiff could work despite her limitations. (Id. at 367-68.)

For these reasons, AU

Loewy concluded that Plaintiff was not disabled as defined in the Act. (Id.)
With respect to Plaintiffs request for another hearing in which to submit rebuttal
vocational expert testimony, AU Loewy explained that such testimony was not necessary because:
1) Plaintiffs counsel had not objected to the VE serving as an expert; 2) the AU had not based
her opinion on the portions of the VE testimony with which Plaintiff objected; 3) the ALl had
reopened the Record for an additional period of time after the request, and Plaintiff did not submit
any additional substantive correspondence or evidence related to the VE issue; and 4) the VE
expert relied, as she was permitted to do, on vocational sources as well as “her significant
professional experience and knowledge of how jobs are performed.” (Id. at 353, 361 n.l.)
B. Analysis
Prior to addressing the heart of Plaintiffs arguments, the Court first notes that Plaintiffs
brief does not comply with Local Rule 9.1(e). Plaintiffs brief does not contain a meaningful
“statement of the issues presented for review,” it does not contain a statement of facts (separate
from a statement of the case describing the course of the proceeding), and it does not contain an
argument section that is “divided into sections separately treating each issue.”
9. l(e)(5)(A)-(D).

L. Civ. R.

This requires the Court to sift through Plaintiff’s stream of conscious,

7

hyperbolic, and unnecessarily caustic arguments to determine the bases for the appeal. Although
2
Plaintiff’s only argument heading is that “[tjhe Commissioner did not bear its burden of proof at
step five” (see id. at 27), it appears that Plaintiff actually is challenging the AU’s findings at Step
two (see id. at 19-20), her RFC finding (see id. at 22-27), as well as her analysis and process at
step five (see id. at 27-3 8). More troubling, Plaintiff fails to comply with the Rules in that the vast
majority of facts are stated without “reference to the administrative record” as required. L. Civ.
R. 9.l(e)(5)(C).
The Record in this case is 787 pages long. The brief contains only twenty-two (22)
citations to the Record related to the present decision on appeal. Of these twenty-two citations,
only eight citations are to medical records—five to one consultant report, and the other three to
three pages of medical records. Most of Plaintiffs arguments attacking the AU’s findings are
made without any citation to the Record evidence. In short, Plaintiffs counsel appears to believe
3
that an appellant’s burden on appeal is simply to rhetorically complain about inadequacies without
actually having to make specific organized arguments, supported by legal analysis (beyond
boilerplate recitation of standards and rules) and record citations, punting that job instead to the
Court. Although the Court must consider the entire record, it is not this Court’s job “to undertake
an open-ended review of the entirety of the administrative record to determine (i) whether it might

2

See, e.g., Pl.’s Br. at 35-36 (“Plaintiff wished to set the record straight and contradict this frankly
ignorant, surreal or blatantly invented nonsense by calling another of the Commissioner’s expert
to rebut it.”). Plaintiff’s counsel has previously been reprimanded by the Third Circuit for such
unnecessary language and attacks. See, e.g., Ortega v. Comm ‘r of Soc. Sec., 232 F. App’x 194,
198 n. 1 (3d Cir. 2007) (“We express our displeasure with the overheated rhetoric and ad hominem
attacks on the AU that Abraham S. Alter, Esq., has seen fit to inject into Appellant’s brief.”).
See, e.g., id. at 20 (Sarcastically referring to an AU finding and stating that “[djiagnoses of
arthritis by numerous medical sources are not severe because plaintiff ‘is in her early 40s”
(emphasis added) without a single citation to the Record to support this statement and without
citation to the AUJ’s paragraph-long explanation for her finding, see R. at 356.).
8

contain evidence that arguably is inconsistent with the Commissioner’s decision, and (ii) jf so,
whether the Commissioner sufficiently accounted for this evidence.” Hollon ex rd. Hollon v.
Comm ‘r o/Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006); see also Garrett v. Comm ‘r of Soc. See,
274 F. App’x 159, 162-63 (3d Cir. 2008) (“[T]here is substantial evidence in the record to support
the AU’s conclusion that Garrett’s impairments do not meet or equal the criteria in Listing 1.04.
First and foremost, Garrett provides us with no citations to any record evidence demonstrating that
her impairments are of Listing-level severity... [T]here is no evidence in the record of nerve root
.

compression, spinal arachnoiditis, or lumbar spinal stenosis, as required under Listing 1.04.
Garrett points us to no such evidence in the record.”) (internal citations omitted); Alamo v. Comm ‘r
of Soc. Sec., No. 13-3847, 2014 WL 4354033, at *5 (D.N.J. Sept. 3, 2014) (“Although Plaintiff
assigns error to AU Dunn’s conclusion, she has offered no citation to the record nor presented any
further evidence before this Court that negates Dr. Savidas’ report.”). However, because the Court
does not wish to punish the claimant in this case simply because her attorney has failed to comply
with the rules or engage in meaningful analysis, the Court has nevertheless addressed Plaintiff’s
arguments to the extent that it can do so based on the AU’s decision and citations provided by the
4
Government.
The Court also notes that its analysis is directed only to AU Loewy’s December 1, 2014
decision which is presently on appeal. This case has a long procedural history, spanning many
years and three AU decisions by two different ALJs. (R. at 12-25, 79-87, 349-74.) In addition to
taking issue with AU Loewy’ s decision, Plaintiff makes various arguments regarding errors that
occurred prior to the case being assigned to her.

(See Pl.’s Br. at 11-17.) The Court has not

Plaintiff’s counsel, Mr. Alter, is specifically placed on notice that such briefs will not be accepted
in the future, and any re-briefing time for a brief that originally failed to comply with the Rules
will not be credited when considering reasonable fees for successful appeals.
‘

9

considered those arguments as the prior errors are the reason why AU Loewy was directed to
accept additional evidence and undertake a new analysis.

Additionally, the Court has not

compared the prior AU decisions to AU Loewy’s present decision. On the one hand, Plaintiff
argues that the prior AU findings were “completely random.” (Id. at 13.) On the other hand,
Plaintiff argues that certain aspects of these purportedly unsupported prior findings that are not
contained in AU Loewy’s decision support a finding of error now, or, at a minimum require an
explanation by AU Loewy.

(See, e.g., Id. at 19 (“Plaintiff’s migraine headaches, found to be

severe twice before, are no longer severe. .. .“).) The Court disagrees. AU Loewy was required
to review the Record, proceed through the five-step sequential evaluation, and make a
determination that was supported by substantial evidence. She was not additionally required to
evaluate and compare the prior AU decisions to her findings.
1. Severity of Impairments at Step Two
As noted above, at step two, AU Loewy found that Plaintiff suffered from several severe
impairments. She also found other of Plaintiff’s impairments either not to be severe or not to be
supported by the medical evidence. For each of the ailments which AU Loewy found to be nonsevere, she provided a detailed explanation for her finding with citation to the medical records and
testimony. (See R. at 3 55-59.) For example, while AU Loewy noted Plaintiff’s past tachycardia
diagnosis, she also noted that “her recent consultative examination on March 23, 2014.. . showed
the claimant had a normal chest exam.” (See id. at 355-56.) Additionally, even when AU Loewy
found an impairment to be non-severe, she noted that any resulting limitations—to the extent they
existed at all—were nonetheless accounted for in her RFC assessment. For example, with respect
to Plaintiff’s hernia, AU Uoewy found:
While the claimant’s small ventral hernia is found to be non-severe, the residual
functional [capacity] would account for this condition, as the claimant was limited
to sedentary exertional level work with additional postural limitations.
10

(Id. at 356.)

Plaintiff disputes AU Loewy’s non-severe findings, arguing that the “step two roster of
severe impairments is incomplete.” (Pl.’s Br. at 27.) Without any real analysis (or Record
citation), Plaintiff argues that the following impairments should have been found to be severe:
hepatitis C, migraine headaches, right shoulder bursitis, cervical disc disease, peripheral
neuropathy, lumbar disc and myelopathy, sleep apnea, hypertension, tachycardia, fibromyalgia,
arthritis. (See id. at 19-20.)
With regard to cervical disc disease, Plaintiff—without citation to medical records—claims
that she “has a herniated disk in her neck at C4-5 proven on an August 20, 2008 MRI.” (Id. at 26.)
She further states that “[t]he AU records that reality.

.

.

but neither finds plaintiff to suffer a severe

neck impairment or affords any RFC restriction on account thereof.” (Id.) Plaintiff fails to address
subsequent medical tests or the AU’s discussions of such tests. In fact, AU Loewy noted that
“[a] follow-up MRI of August 20, 2009, showed improved findings. The claimant[’s] small central
disc herniation at C4-5

.

.

.

was diminished in size when compared to the prior study. There was

no associated cord flattening by the disc herniation. There was also [a] minimal annular bulge at
C5-6. that was stable and no new disc herniation or cord compression was observed.” (R. at 364

(citing the treatment records of Dr. Nagesh B. Krish, MD, at 678).)
With respect to peripheral neuropathy, Plaintiff—with a few of the only citations to the
medical records—states that “[am EMG performed on January 20, 2012 revealed ‘sensorimotor
axonal and demyelinating peripheral neuropathy predominately affecting both lower extremities
and bilateral L5-S1 radiculopathies.” (Pl.’s Br. at 26 (citing R. at 663-64).) Plaintiff further states
that “[c]linical correlation that same day indicated muscle weakness, atrophy of the distal muscle
groups, reflex loss at both ankles and impaired sensation to pinprick and vibration in both legs.”

11

Id.

Some of this information is related in the decision but plaintiff is never found to suffer

peripheral neuropathy as a severe impairment.” (Id. at 26-27.) Plaintiff argues that the AU’ s
decision “doesn’t acknowledge the peripheral neuropathy and doesn’t afford a single RFC
restriction because of it.” (Id. at 27.)
Again, Plaintiff ignores AU’s Loewy’s analysis and the subsequent medical records on
which she relied.

AU Loewy acknowledged the January 20, 2012 test but also noted that “[aJ

follow-up MRI of the lumbar spine on February 16, 2012, showed normal findings.” (R. at 364
(citing Dr. Krish’s treatment records, see id. at 659).) She also noted that “[o]n August 30, 2012,
the claimant was seen for treatment for her neuropathy and muscle pain complaints,” and that
“[t]he only treatment so far was medication with adequate relief.” (Id.) AU Loewy also quoted
Dr. Kirsh’s notes that Plaintiff “states that despite her illness, she is able to perform activities of
daily living and is able to work,” and that she “is not frustrated, anxious or depressed about it.”
(Id. (citing id. at 656).) AU Loewy continued her analysis by discussing additional subsequent
examination notes and results, none of which are addressed by Plaintiff. (See id. at 364-65.)
Additionally, contrary to Plaintiff’s assertion, AU Loewy did factor Plaintiff’s complaints into the
RFC even where the complaints (or extent of them) was not supported by the medical evidence.
(See, e.g., Id. at 367 (“To further account for her pain complaints, evidence of right carpal tunnel
syndrome and her recent complaint of right shoulder pain, the [RFCj includes limitations for only
occasional push and pull on the right side.”).)
This pattern of Plaintiff cherry-picking an isolated test or statement (usually without
citation to the Record) while ignoring subsequent or contradictory reports plays out with each of
the impairments she argues should have been found to be severe. For some of the ailments,
Plaintiff simply questions the AU’s ruling without providing any basis for the challenge. (See,

12

e.g., Pl.’s Br. at 20 (stating simply and sarcastically: “Plaintiff’s lumbar disc and myelopathy is
not severe.”).)
A diagnosis alone does not support that an impairment is severe. See Salles v. Comm ‘r of
Soc. Sec., 229 F. App’x 140, 145 (3d Cir. 2007) (“In addition to the diagnoses, Salles was required
to present evidence that these limitations significantly limited her ability to do basic work activities
or impaired her capacity to cope with the mental demands of working.”) (emphasis in original)
(citing 20 C.F.R.

§ 404.1520(c), 404.1521(a); Ramirez v. Barnhart, 372 F.3d 546, 551 (3d Cir.

2004)). Instead, “{u]nder the applicable regulations, an impairment is severe only if it significantly
limits the claimant’s physical or mental ability to do ‘basic work activities.” Id. at 144 (citing 20
C.F.R.

§ 404.1521). It is Plaintiffs burden to establish that an impairment is severe at step two.

Plaintiff has not met this burden with respect to the impairments that AU Loewy found to be nonsevere, AU Loewy’s decision was based on a thorough review of the Record, after which she
found many, but not all of Plaintiff’s ailments to be severe.
5
2. RFC Finding
Plaintiff attacks AU Loewy’s RFC finding on essentially three grounds: that the RFC
ignored certain severe impairments, that AU Loewy failed to adequately explain or justify how
she arrived at the RFC determination (which Plaintiff argues is contradicted by the medical
evidence), and that AU Loewy improperly discounted opinion evidence. (See Pl.’s Br. at 22-27,
33-3 5.)

Even if AU Loewy erred with respect to one of the impairments that she found to be non-severe,
such error would be harmless as she found other impairments to be severe, engaged in the full five
step evaluation, and accounted for related possible limitations in her RFC finding. See Salle, 229
F. App’x at 145 n.2 (“Because the AU 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.”) (citing Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).

13

First, Plaintiff argues that “undoubtedly demonstrated and uncontradicted severe
impairments were ignored at step two leading to an RFC which does not reflect all of plaintiff’s
demonstrated restrictions and doesn’t explain the absence of demonstrated restrictions.” (Id. at
33-34.)

As discussed above, the AU did not ignore “uncontradicted” severe impairments.

Additionally, even where she found impairments to be non-severe, she explained how the RFC
finding accounted for any resulting limitations—if any such limitations even existed. (See R. at
356-67.) Thus, the Court finds this argument to be unsupported.
Second, Plaintiff argues that “there is no explanation afforded in justification of the RFC
or how the ALl arrived at it.” (Id. at 34-35.) Plaintiff appears to be arguing that, because AU
Loewy did not express her opinions by saying, for example, that Plaintiff “can only push and pull
on the right side” and then provide immediately thereafter the AU’s explanation for the limitation,
the AU’s decision is not adequately explained. The Court disagrees.
6

The Third Circuit has

made clear that they “do not require an AU to adhere to any set format for explaining his analysis
so long as there is ‘sufficient development of the record and explanation of findings to permit
meaningful judicial review.” Garrett v. Comm ‘r ofSoc. Sec, 274 F. App’x 159, 162-63 (3d Cir.
2008) (quoting Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.2004)). While AU Loewy did not
present her RFC finding in the manner suggested by Plaintiff, she provided detailed findings and
explanation related to Plaintiff’s limitations both in the step two impairment analysis as well as in
the RFC section. As the Court concluded in Garrett, AU Loewy’s analysis “was more than

6

To the extent that Plaintiff’s arguments can be construed to be arguing that AU Loewy did not
adequately compare Plaintiff’s limitations to the listing (see Pl.’s br. at 17, 27), such a bare
argument—without support or analysis—is not enough. Milano v. Comm ‘r of Soc. Sec., 152 F.
App’x 166, 169 (3d Cir. 2005) (“Milano has not attempted to show that her impairments meet or
equal any specific Listing, and merely concludes that she has ‘severe medical conditions’ that
‘might’ do so. That is simply not enough.”) (internal citation omitted).
14

sufficient to permit [the Court] to meaningfully review [the] decision.” Id. at 162.
The AU
explained how the limitations assigned account for Plaintiffs various impairments and why
she
believes that her RFC finding is supported by the medical records as a whole. (See R. at 356-66.)
To the extent Plaintiff cites to the Records at all or even simply references purported findings,
she
is cherry picking certain records without addressing or explaining contradictory evidence.
The third, and more substantive of Plaintiffs RFC challenges is the fact that AU Loewy
rejected the opinion of Plaintiffs treating physicians as well as other consultants and evaluators.
(See R. at 365-67.) AU Loewy did reject at least some portion of every opinion in the Record.
(See id.) Her rejection of certain findings from the various opinions however was even-handed—
she rejected certain aspects of opinions that were both in favor of and contrary to Plaintiffs
positions. (See id.) For example, AU Loewy gave “minimal weight” to a 2013 opinion of an
ophthalmologist who opined that Plaintiff “had no restrictions in the workplace” even though it
was based on what AU Loewy described as a thorough exam and was consistent with activities
reported by Plaintiff. (See id. at 365.) Instead, in order to account for a 2007 conflicting opinion
finding vision limitations and “to account for the claimant’s complaints of vision problems,” AU
Loewy added to the RFC “limitations to avoid hazards and unprotected heights.” (Id.)
What the AU

‘S

opinion evidence analysis demonstrates is that in the lengthy medical

history spanning six plus years, there exists contradictions, changed conditions, and in some
instances, opinions without explanation or support in the medical records. Rather than simply
adopt one opinion or another, for each opinion AU Loewy explained the weight she assigned to
it, what she accepted or did not accept, and the basis for her decision. While Plaintiff calls the
AU’s approach “fantasy” as she did not follow a particular opinion or opinions in full and rejected
some portion of all (or most) of them (see Pl.’s Br. at 26), the Court finds that AU Loewy’s

15

approach was not only acceptable, but showed a thorough review of Plaintiff’s medical history and
an effort to weigh evidence that was not always consistent.
“The AU—not treating or examining physicians or State agency consultants—must make
the ultimate disability and RFC determinations.” Chandler i’. Comm ‘r ofSoc. Sec., 667 F.3d 356,
361 (3d Cir. 2011) (citing 20 C.F.R.

§ 404.1527(e)(l), 404.1546(c)). Thus, while an AU must

consider the opinions offered, particularly those of treating physicians, “[tlhe law is clear.

.

.

that

the opinion of a treating physician does not bind the AU on the issue of functional capacity” where
it is not well supported or there is contradictory evidence. Id. (alteration in original) (quoting
Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d Cir. 2011)); 20 C.F.R.

§ 404.1527(c)(2); see also

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (“An AU may reject a treating physician’s
opinion outright only on the basis of contradictory medical evidence, but may afford a treating
physician’s opinion more or less weight depending upon the extent to which supporting
explanations are provided.”). Thus, the question is not whether the AU has pointed to a particular
medical opinion for each of her facts, but whether substantial evidence exists in the medical record
as a whole to support her findings. See Chandler, 667 F.3d at 36 1-62.
The Court has reviewed the record and AU Loewy’s findings supporting her RFC
assessment.

Plaintiff’s unsupported and conclusory attacks on the AU’s findings are

unpersuasive. The Court agrees with the AU that there exist many contradictory and unsupported
positions in the Record. As a result, the AU focused on the actual medical tests and treatment
records as compared to Plaintiff’s self-reporting over the years (which included statements in 2012
and 2013 to treating physicians that she was able to work, see R. at 640, 656) as well as her
testimony at the December 2013 hearing. The Court finds that substantial evidence exists for AU
Loewy’s RFC determination.

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3. Vocational Expert Testimony
Plaintiff argues that AU Loewy’s decision was inadequately supported at step five. (See
Pl.’s Br. at 19, 27-3 8.) More specifically, Plaintiff asserts that she “was not allowed to call a
scientific witness whose credentials were approved and certified by the Commissioner to rebut the
very testimony utilized to deny plaintiff her benefits.” (Id. at 19.) Plaintiff characterizes this denial
of additional testimony as “Due process violation #2.” (Id. (the first one being her original hearing
without counsel, which was remedied by additional proceedings, see id. at 12).)
A “witness whose credentials were approved and certified by the Commissioner” did
testify at the hearing. Ms. Distefano, who testified at the July 2014 hearing, is “an impartial
vocational expert” who “has substantial experience in the field of vocational placement,” and who
“has been approved as a vocational expert under Social Security Administration regulations for
over 20 years.” (R. at 352-53.) Plaintiff’s attorney did not object to Ms. Distefano “serving as
vocational expert in this matter.” (Id. at 381.) He also had ample opportunity to challenge her
testimony by examination at the July 2014 hearing. (See id. at 408 (Plaintiff’s attorney stating that
he had no further questions for the yE).) At the end of the hearing, AU Loewy noted that the
Record was closed. (See Id.) Subsequent to the hearing, AU Loewy denied Plaintiff’s request to
submit addition testimony but reopened the Record for an additional fifteen days. (See id. at 376.)
Despite this opportunity to supply additional written rebuttal materials or argument, Plaintiff did
not submit additional evidence. (See id. at 353.) Instead, Plaintiff’s counsel wrote a bombastic,
non-substantive letter to AU Loewy. (See Id. at 375 (“Aside from the unfortunate grammatical
errors, confusion of tenses and intentional withholding of the legal basis for this arbitrary ruling,
your correspondence bespeaks a disregard for basic evidentiary principles.

.

.

.

To make matters

worse, Your Honor ‘generously’ offered to leave the record open for 15 day [sic]. Open for
what?”).) Plaintiff’s counsel has not cited to a case supporting her position that Plaintiff has an
17

“absolute right to call a different vocational expert” for rebuttal testimony, particularly when
Plaintiff was afforded an opportunity to submit written rebuttal materials, and chose not to do so.
When no additional evidence was received from Plaintiff, AU Loewy closed the record
and rendered her decision. (Id. at 353.) AU Loewy found Ms. Distefano to be amply qualified
and “to be a credible witness.” (Id.) As a result, she relied on Ms. Distefano’s opinion that ample

jobs existed in the national economy for a person with Plaintiff’s RFC and limitations.
Aside from Plaintiff’s general procedural argument, she also argues that the VE’s
testimony was “incredible, unscientific conjecture which deviated from DOT standards as well as
the Commissioner’s own regulations, rulings and program operations,” and thus, it was “bad
vocational science” that cannot form an adequate basis to support the AU’s decision. (See id. at
18-19, 21.) Plaintiff’s specific challenges to the yE’ s testimony relate to hypotheticals on which
the VE testified. The Third Circuit has previously noted:
[Ojbjections to the adequacy of hypothetical questions posed to a vocational expert
often boil down to attacks on the RFC assessment itself. That is, a claimant can
frame a challenge to an AU’s reliance on vocational expert testimony at step 5 in
one of two ways: (1) that the testimony cannot be relied upon because the AU
failed to convey limitations to the vocational expert that were properly identified in
the RFC assessment, or (2) that the testimony cannot be relied upon because the
AU failed to recognize credibly established limitations during the RFC assessment
and so did not convey those limitations to the vocational expert.
Rutherford, 399 F.3d at 554 n.8. Plaintiff’s arguments, however, take a different approach.

Plaintiff challenges the VE’s testimony related to limitations that were presented to the VE, but
which did not form the basis of the AU decision. In other words, in this case unlike many where
there are step five challenges, the AU posed hypotheticals to the VE based on greater limitations
than she ultimately found to be supported by the Record. (See R. at 361 & n.1.) Plaintiff’s
challenges are to aspects of the hypotheticals relating to limitations which AU Loewy did not find
to exist and on which she did not base her decision. For this reason, AU Loewy found Plaintiff’s

18

VE complaints to be moot. (See id. at 353.) The AU also noted that, even if not moot, Plaintiff’s
arguments lacked merit as they misstated the applicable regulations and overlooked that the yE’s
testimony was based on her “significant professional experience and knowledge of how jobs are
performed” in addition to other occupational sources. (Id.)
For example, Plaintiff argues that the “VE’s testimony conflicted with both the DOT
description and the Social Security Administration’s understanding of the manipulative
requirements of sedentary work.” (Pl.s’ Br. at 18.) In support of this argument, Plaintiff states:
Most unskilled sedentary jobs require good use of the hands and fingers for
repetitive hand-finger actions. Any significant manipulative limitation of an
individuals’ ability to handle and work with small objects with both hands will
result in the significant erosion of the unskilled sedentary occupational base.
Id. (quoting POMS DI 25015.020; SSR 96-9p; SSR 83-10; 2OCFR 404 Subpart P App.2, R.201.00
(h)). Plaintiff then argues that, contrary to this guidance, “the VE testified that an individual
limited to sedentary work with only occasional fine and gross manipulation abilities in the
dominant hand would nevertheless be capable and an inability to reach overhead would
nevertheless remain fully capable of sedentary work activity as an order filler, an information clerk
and a telephone solicitor even if they had no computer skills and could not see ordinary computer
font.” (Id. (emphasis added).)
First, AU Loewy did not find Plaintiff’s RFC to include a limitation of “only occasional
fine and gross manipulation in the dominant hand” or “an inability to reach overhead.” (R. at 361.)
The AU instead found that Plaintiff was “limited to frequent right gross manipulation and frequent
right fine manipulation,” with no limitation for reaching overhead. (See id. at 361 & n.1.) The
AU plainly noted:
The undersigned posed a hypothetical including a limitation of occasional overhead
reach, for which the vocational expert found jobs; however, the RFC found
appropriate by the undersigned does not include this limitation.

19

Further, the undersigned posed hypotheticals to the vocational expert, which
included the limitations of occasional right gross manipulation, and occasional right
fine manipulation, for which the vocational expert found jobs. The undersigned
finds that the RFC includes the less severe limitations of frequent right gross
manipulation and frequent right fine manipulation, which were not posed to the
vocational expert. However, the undersigned finds that since these are less severe
limitations than those posed to the vocational expert, [then] it would be appropriate
for the jobs cited in Finding 5 in this decision.
(Id. at 361 n.l.)
Second, even had she found such limitations, the source cited by Plaintiff does not state
that no sedentary jobs exist given such limitations. Instead, it states that there will be significant
erosion of the occupational base. Here there was vocational expert testimony that found certain
job to exist in sufficient numbers in the national economy given the limitations posed. Even had
there been a conflict between DOT sources and the VE’s testimony with respect to one identified
job (which Plaintiff has not shown), such an isolated error does not automatically require reversal.
See Jones, 364 F.3d at 506 n.6 (“[T]his Court has not adopt[edj a general rule that an unexplained
conflict between a VE’s testimony and the DOT necessarily requires reversal.”) (internal
quotations omitted).
Third, Plaintiff has not demonstrated (or even argued) that the VE’s testimony was
erroneous based on the limitations actually found to be applicable by the ALT and the jobs
identified by the yE. In other words, Plaintiff makes arguments based on testimony related to the
limitations not found to exist, but does not make an argument that the vocational expert’s
testimony, or the AU’s step five decision was unsupported based on the actual RFC found to be
applicable.
For the reasons stated above, the Court finds Plaintiff’s step five arguments unpersuasive,
and finds the AU’s analysis at step-five to be sufficiently supported.

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V.

CONCLUSION
For the foregoing reasons, the Court affirms AU Loewy’s decision. An appropriate order

follows this Opinion.
DATED: February 17, 2016
Is! Jose L. Linares
JOSE L. LINARES
U.S. DISTRICT JUDGE

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