TREZECIAK v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 9/12/2016. (ld, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 15—6333 (KM)
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
KEVIN MCNULTY, U.S.D.J.:
Tina Trzeciak brings this action pursuant to 42 U.S.C.
§ 405(g) to review
a final decision of the Commissioner of Social Security (“Commissioner”)
denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental
Social Security Income (“SSI”) under Titles II and XVI of the Social Security Act,
§ 401—434. For the reasons set forth below, the decision of the
Administrative Law Judge (“AU”) is AFFIRMED.
Ms. Trzeciak seeks to reverse an AU’s finding that she was not disabled
from June 23, 2011, the alleged onset date, through February 25, 2014, the
date of the AU’s decision. (R. 9—26)
Ms. Trzeciak applied for DIB and SSI on September 19, 2011, claiming
disability due to difficulty ambulating and speaking, alcoholism, and
depression. (R. 89, 10 1)2 Her applications were denied initially on April 23,
This appears to be the correct spelling of Ms. Trzeciak’s name. The clerk is
directed to amend the caption accordingly.
Pages of the administrative record (ECF no. 7) are cited as “R.
2012 (R. 114—15), and upon reconsideration on January 8, 2013 (R. 194—95).
On February 25, 2014, following a hearing at which Ms. Trzeciak testified and
Sandra H. Morales-Rosa found
was represented by counsel (R. 38—88), AU
that Trzeciak was not under a “disability” as defined in the Social Security Act.
(R. 9—26). On July 2, 2015, the Appeals Council denied Trzeciak’s request for
review (R. 1—6), rendering the AU’s decision the final decision of the
Commissioner. Ms. Trzeciak now appeals that decision.
To qualify for Title II DIB benefits, a claimant must meet the insured
§ 423(c). To be eligible for SSI benefits, a
claimant must meet the income and resource limitations of 42 U.S.C. § 1382.
status requirements of 42 U.S.C.
To qualify under either statute, a claimant must show that she is unable to
engage in substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that
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), 1382c(a)(3)(A); see, e.g., Diaz v.
Comm’r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009).
Five-Step Process and this Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R.
§ 404.1520, 4 16.920.
This Court’s review necessarily incorporates a determination of whether the
properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 C.F.R.
404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or combination
of impairments, is “severe.” Id.
§ 404.1520(c), 416.920(c). If the claimant has a
severe impairment, move to step three.
Step 3: Determine whether the impairment meets or equals the criteria
of any impairment found in the Listing of Impairments. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, Pt. A. (Those Part A criteria are purposely set at a high level,
to identify clear cases of disability without further analysis.) If so, the claimant
is automatically eligible to receive benefits; if not, move to step four. Id.
404.1520(d), 4 16.920(d).
Step 4: Determine whether, despite any severe impairment, the claimant
retains the Residual Functional Capacity (“RFC”) to perform past relevant work.
§ 404.1520(e)—(f), 416.920(e)—(f). If not, move to step five.
Step 5: At this point, the burden shifts to the SSA to demonstrate that
the claimant, considering her age, education, work experience, and RFC, is
capable of performing jobs that exist in significant numbers in the national
economy. 20 C.F.R.
§ 404.1520(g), 4 16.920(g); see Poulos v. Comm’r of Soc.
Sec., 474 F.3d 88, 91—92 (3d Cir. 2007). If so, benefits will be denied; if not,
they will be awarded.
As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AU’s findings, as long as they are
supported by substantial evidence. Jones v. Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C.
§ 405(g)). Where facts are disputed, this Court will
“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
[I]n evaluating whether substantial evidence supports the AU’s
leniency should be shown in establishing the claimant’s
the Secretary’s responsibility to rebut it should
be strictly construed. Due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in this
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.
Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal citations and
quotations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.
§ 405(g)); Zimsak, 777 F.3d at 610—11 (“[W}e are
mindful that we must not substitute our own judgment for that of the fact
This Court may, under 42 U.S.C.
§ 405(g), affirm, modify, or reverse the
Secretary’s decision, or it may remand the matter to the Secretary for a
rehearing. PodecZwomy v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.
Comm’r of Soc. Sec., 235 F. App’x 853, 865—66 (3d Cir. 2007) (not precedential).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five step inquiry. See Podedwomy, 745 F.2d at 221—22. Remand is also proper
if the AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 119—20 (3d Cir. 2000). It is also proper to remand where
the AU’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Adomo v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
The AU’s Decision
AU Morales-Rosa properly followed the five-step process. Her
conclusions may be summarized as follows.
At step one, the AU determined that Ms. Trzeciak had not engaged in
substantial gainful activity in the relevant period. (R. 14
¶J 1, 2)
At step two, the AU found that Ms. Trzeciak had the following severe
impairments: “degenerative disc disease of the cervical spine; history of
pancreatitis, secondary to alcohol abuse; alcohol-related neuropathy;
depressive disorder; anxiety disorder, not otherwise specified (NOS); and
alcohol dependence in partial remission (20 CFR 404.1520(c) and 416.920(c)).”
¶ 3) The
also found that Ms. Trzeciak suffered from non-severe
impairments, including “ataxia; lower extremity edema on the right;
hyponatremia and hypokalemia; and psychotic disorder, not otherwise
specified (NOS).” (R. 15)
At step three, the AU determined that Ms. Trzeciak’s impairment or
combinations of impairments did not meet or medically equal the severity of
one of the listed impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A. (R. 15
Step 4— RFC /Ability to Perform Past Work
At step four, the AU defined Ms. Trzeciak’s RFC as follows:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant is
able to lift, carry, push and pull 20 pounds occasionally and 10
pounds frequently. She can sit for six hours and she can stand
and/or walk for four hours in an eight-hour workday. The claimant
can frequently reach overheard and in any direction with both
upper extremities. She has no handling, fingering or feeling
limitations. The claimant can occasionally climb ramps and stairs
but she must never climb ladders, ropes or scaffolds. She can
balance, stoop, kneel, crouch, and crawl on an occasional basis.
The claimant must avoid all exposure to hazards (machinery,
heights, etc.) Mentally, the claimant is restricted to simple tasks.
She can stay on tasks at two-hour intervals. She is also limited to
frequent contact with the public, and has no limitations to have
contact with supervisors and co-workers.
The AU then found, contrary to the determination of the Disability
Determination Services (“DDS”), that Ms. Trzeciak was unable to perform past
relevant work as either a graphic designer or a cashier. (R. 24
6) Both of
those occupations are skilled or semi-skilled, respectively, and thus exceed the
mental demands of simple, unskilled work. (Id.)
At step five, the AU considered Ms. Trzeciak’s “age, education, work
experience, and residual functional capacity” and the Medical-Vocational
Guidelines, and determined that Trzeciak could perform jobs that exist in
significant numbers in the national economy. (R. 25
10) Relying on the
testimony of the vocational expert (“VE”), Hector A. Puig, Ph.D, the AU
identified a representative unskilled, light job that Trzeciak could perform:
inspector, missing parts (DOT # 727.687-062). According to the VE, such jobs
existed in numbers in the thousands regionally, and in the hundreds of
thousands nationally. (R. 25, 75)
Morales-Rosa concluded that Ms. Trzeciak was not
under a disability, as defined in the SSA, from June 23, 2011, through
February 15, 2014, the date of the AU’s decision. (R. 26
Analysis of Ms. Trzeciak’s Appeal
Ms. Trzeciak challenges the AU’s determination that she was not
disabled during the relevant period, arguing that the AU committed errors at
steps three, four, and five of the five-step analysis. Ms. Trzeciak requests that
this Court reverse the AUJ’s decision or remand the decision to the
Commissioner for a new hearing and decision. Addressing each of Trzeciak’s
arguments in turn, I find that the AUJ’s findings do not contain any errors of
law or procedure, and they are supported by substantial evidence.
The AU’s Step Three Analysis
At step three, Ms. Trzeciak argues, the AU
(a) failed to sufficiently
consider Trzeciak’s anxiety individually and in combination with other
impairments and (b) generally failed to consider the combined effect of all of her
impairments. Trzeciak argues that these alleged procedural errors prevent
meaningful judicial review of the AU’s step three analysis. I disagree.
The claimant bears the burden of proving that her impairments, whether
individually or collectively, equal or meet those listed in Appendix 1. However,
“if a claimant’s impairment does not match one listed in Appendix 1, the AU is
required to perform a comparison between the claimant’s impairment(s) and
those listed in Appendix 1.” Ton-es v. Comm’r of Soc. Sec., 279 F. App’x 149,
151—52 (3d Cir. 2008); see also 20 C.F.R. § 404.1526(b). The Third Circuit has
stated that step three requires the AU
to perform “an analysis of whether and
why [the claimant’s individual impairments], or those impairments combined,
are or are not equivalent in severity to one of the listed impairments.” Burnett,
220 F.3d at 119. The AU is “not require[d}. .to use particular language or
adhere to a particular format in conducting [her] analysis”; rather, there must
be “a sufficient development of the record and explanation of findings to permit
meaningful review.” Jones, 364 F.3d at 505.
For the most part, Ms. Trzeciak’s step three argument fails to identir the
particular listing(s) that should have been considered and fails to discuss the
medical evidence supporting the claim of equivalence. Ms. Trzeciak identifies
E.g., Pl.’s Br. 25 (“There is no comparison between plaintiffs anxiety disorder
and paragraph 12.06, the listing specified by the Commissioner for the comparison of
anxiety disorders. There is no combination between the 12.04 depressive aspects of
plaintiffs mental iliness with the 12.06 anxiety aspects.”); Pl.’s Br. 25-26 (“T[he]
difficulty in walking was not combined with plaintiffs three level disc disease in the
only one listed impairment to which she believes her impairments are equal in
Ms. Trzeciak’s Anxiety Disorder and Listing 12.06
identified “anxiety disorder” as a severe impairment at step two.
Ms. Trzeciak argues that the AU
erred by failing to consider whether her
anxiety, alone or in combination with other severe impairments, met or was
medically equivalent to Listing 12.06 for anxiety-related disorders.
Although AU Morales-Rosa does not explicitly mention anxiety at step
three, an AU
is not required to repetitively analyze each symptom at each step;
the requirement is that the decision be subject to “meaningful review” by a
reviewing court. See Wilkinson v. Colvin, 2014 WL 1316056, at *8 (D.N.J. Apr.
1, 2014 (finding no error in step three where AU failed to mention dizziness
and other symptoms) (citing Jones, 364 F.2d at 505). I am satisfied from the
decision as a whole that the AU
had in mind the evidence as to anxiety and
considered it adequately.
At step three, AU
Morales-Rosa thoroughly considered Listing 12.04
(affective disorders), which shares many of the same criteria as Listing 12.06,
and I conclude that her consideration of Ms. Trzeciak’s symptoms in the
context of 12.04 and her other findings were adequate to determine that
Trzeciak also could not have met the 12.06 criteria. As set forth in the AU’s
Trzeciak contends that the AU erred in finding that she did not meet listing
11.14 for peripheral neuropathies. In doing so, Trzeciak misstates the AU’s fmding,
claiming that “plaintiff is found not to meet this listing because she does not suffer
disorganization of motor function in two extremities disturbing gait and station. But
she clearly does and the medical expert said so.” (Pl.’s Br. 25) In doing so, Trzeciak
ignores crucial details. First, the medical expert on whom Trzeciak relies testified that
Trzeciak’s physical impairments, including neuropathy and ataxia, did not meet or
equal any listing, including 11.14 which the expert explicitly considered and rejected.
(R. 47) Second, in order to meet 11.14, the disorganization of motor function must be
“significant and persistent” and in “two extremities.” 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 11.14. The AU found that these criteria were not met. (R. 16), and this finding is
supported by substantial evidence, as described below.
Ms. Trzeciak’s applications for DIB and SSI do not list anxiety as a basis for
her disability claim. (R. 89, 101)
decision, to meet or medically equal Listing 12.04, a claimant must meet
either: (1) the requirements of Paragraph A and the requirements of Paragraph
B; or (2) the requirements of Paragraph C. See 20 C.F.R. Pt. 404, Subpt. P,
As to the first alternative, the AU
bypassed Paragraph A and focused on
Paragraph B (both are required). Paragraph B requires that the claimant’s
impairment include at least two of the following four conditions:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of
20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.04. “‘Marked’ as a standard for
measuring the degree of limitation..
than extreme.” Id.
means more than moderate but less
§ 12.00. The AU found that Ms. Trzeciak had only mild
restrictions in activities of daily living and social functioning. (R. 16) The AU
further found that Trzeciak had only moderate difficulties in concentration,
persistence and pace, and noted no instances of decompensation of extended
duration. (Id. 17)
As to the second alternative, Listing 12.04 Paragraph C requires any of
three symptoms: 1) repeated episodes of decompensation; 2) a residual disease
process resulting in such marginal adjustment that even a minimal increase in
mental demands or change in environment would cause the individual to
decompensate; or 3) a history of one or more years’ inability to function outside
of a highly supportive living arrangement, with an indication of continued need
for such an arrangement. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.04. The AU
noted that none of those conditions were present, including “no evidence on the
record of a.
current history of one or more years’ inability to function
outside a highly supportive living arrangement.” (R. 17)
The AU’s conclusions as to Listing 12.04 were supported by substantial
evidence. With respect to the Paragraph B criteria, Trzeciak does not
experience marked restriction in activities of daily living or in social
functioning. Trzeciak reported that she is able to “clean, do the laundry, wash
the dishes, and prepare simple meals three times a week” on her own. (R. 16,
42 1-24) She takes care of her 80-year-old mother (R. 16, 602), and she pays
the bills, handles a savings account, and uses a computer for playing games
and general researching. (R. 18, 70, 424-26) She attends church at a mass in
her building (R. 16, 68-69), goes out alone, uses public transportation, and is
able to drive. (R. 424, 450) She shops in stores for groceries, clothes, and
computer supplies, and visits the library (R. 18, 421) Additionally, she stated
that she “[gets] along well with others, including neighbors, friends, and
family.” (R. 18, 70) All of this constitutes substantial evidence in support of the
AU’s conclusion that Trzeciak’s activities of daily living and social functioning
are not so impaired as to meet the Paragraph B criteria.
There is also substantial evidence to support the finding that Trzeciak’s
concentration, persistence, and pace are impaired, but only moderately so.
Trzeciak “has some deficits maintaining concentration.” (R. 19) Nonetheless,
Trzeciak reports that she can maintain attention, finishes what she starts, and
is able to follow both oral and written instructions, although she may need to
write down lengthy oral instructions. (R. 452) Ms. Trzeciak’s self-assessment on
this point is consistent with the report her mother, Anne Trzeciak, completed.
(R. 460) Ms. Trzeciak can cite five digits in reverse, spell a five letter word
backwards without errors, and recall two out of three words after five minutes.
(R. 582) She is able to do serial sevens at some times (R. 607, 611) but not at
others (R 582, 587) According to medical expert testimony, Trzeciak could stay
on task at two-hour intervals. (R. 58-59)
also found that Trzeciak did not experience repeated episodes of
decompensation of extended duration (R. 17, 23)
Episodes of decompensation may be inferred from medical records
showing significant alteration in medication; or documentation of
the need for a more structured psychological support system (e.g.,
hospitalizations, placement in a halfway house, or a highly
structured and directing household); or other relevant information
in the record about the existence, severity, and duration of the
20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.00. An episode of decompensation
must last “for at least 2 weeks” to be considered “of extended duration.” Id. The
AU rejected the opinion of Jane Shapiro, Ph.D.—a non-examining psychologist
consulted by DDS—that Trzeciak had one or two episodes of decompensation.
The AU’s rejection of Dr. Shapiro’s determination is supported by substantial
evidence. Trzeciak was hospitalized principally for mental conditions three
times in 2011
2012 (R. 23):
twice in 2011 for depression (R. 23) and once in
2012 for psychosis (R. 596). Only Ms. Trzeciak’s 16-day hospitalization during
July 2011 lasted more than two weeks. (R. 559-573) The AU also could and
did rely in part on the opinions of Dr. Ramon Fortuño, a psychiatrist and
impartial medical expert, and Dr. Cheryl Sanford, a state psychological
consultant, who both stated that Trzeciak experienced no episodes of
decompensation. (R. 54, 95, 107)
Even had Ms. Trzeciak experienced two episodes of extended duration, in
the absence of “three episodes within 1 year
each lasting for at least two
weeks” it is left to the AU’s judgment “to determine if the duration and
functional effects of the episodes are of equal severity and may be used to
substitute for the listed finding in a determination of equivalence.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1,
§ 12.00. The AUJ’s determination that Trzeciak met
Although “altered mental status” was a reason for Ms. Trzeciak’s admission to
Phoenixvile Hospital in June 2011, her principal diagnoses at the time were severe
hyponatremia, severe hypokalemia, and chronic alcoholism. In addition, she was
discharged after only five days. (R. 494)
neither the Paragraph B nor the Paragraph C criteria of 12.04 was therefore
supported by substantial evidence.
Do these Listing 12.04 findings read onto Listing 12.06? I believe they
do. To meet or medically equal Listing 12.06 for anxiety related disorders, a
claimant must meet either: (1) the requirements of Paragraph A and the
requirements of Paragraph B; or (2) the requirements of Paragraph A and the
requirements of Paragraph C—just as under Listing 12.04. See 20 C.F.R. Pt.
404, Subpt. P, App. 1,
§ 12.06. Here, as before, I bypass Paragraph A and focus
on Paragraphs B and C.
The four Listing 12.06 Paragraph B requirements are identical to those
under Listing 12.04, discussed above. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 12.06. Thus the AU’s 12.04 findings preclude Trzeciak from meeting the
Listing 12.06 requirements for Paragraph B.
As for Paragraph C, unlike 12.04, Listing 12.06 simply requires that the
claimant’s anxiety-related disorder “[r]esult in complete inability to function
independently outside the area of one’s home.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1., § 12.06. The AU’s findings—based on Trzeciak’s own testimony—that
she can attend church at a mass in her building (R. 16), go out alone, use
public transportation, drive, shop in stores for groceries, clothes, and computer
supplies, and visit the library (R. 18), preclude any finding that Trzeciak is
completely unable to function independently outside the area of her home.
Those conclusions are further supported by the AU’s discussion of Ms.
Trzeciak’s anxiety at step four of the analysis. The AU clearly considered the
severity of Trzeciak’s anxiety and found it to fall below the threshold that would
be required to find disability at step three. As the AU observed (R. 20-21), the
progress notes of Trzeciak’s primary care physician indicate that he prescribed
her medication for her anxiety (R. 620-25). There is no evidence of
psychotherapy in the record (R. 21), corroborating the conclusion that the
anxiety impairment was relatively non-severe. The AU found that Trzeciak’s
“depressive disorder and anxiety cause more than minimal limitations in [her]
ability to perform work activity”—i.e., severe for step two purposes. (R. 23)
However, to meet a listing at step three, limitations that are merely “more than
minimal” are not sufficient. After thoroughly considering and weighing the
evidence in the record, the AU found that Trzeciak has only mild restrictions
of activities in daily living, mild restrictions maintaining social functioning,
moderate difficulties maintaining concentration, persistence, or pace, and no
episodes of decompensation of extended duration.
Therefore, substantial evidence supports the AU’s finding that Trzeciak’s
impairments, alone or in combination, are not equivalent to Listing 12.06.
The Combination of Ms. Trzeciak’s Impairments
Ms. Trzeciak further argues that the AU did not properly consider
whether any combination of her impairments was equivalent in severity to one
of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Pl.’s
Br. 22-26) In particular, Trzeciak argues that the AU failed to consider
whether her difficulty in walking combined with her degenerative disc disease
of the cervical spine matched the severity of a listed impairment. (Id. 25-26) I
stated that “the claimant does not have an impairment or
combination of impairments that meets or medically equals the severity of one
of the listed impairments.” (R. 15) 1 see no reason to doubt that she considered
the combination of impairments. In fact, the AU holistically evaluated the
intensity, persistence, and limiting effects of Ms. Trzeciak’s impairments and
concluded that Trzeciak’s activities of daily living and social functioning
demonstrate that her physical and mental conditions are not disabling. (R. 18)
The AU noted that Trzeciak’s “fairly extensive activities of daily living,”
partially listed above, are “not expected in an individual claiming inability to
work as a result of both physical and mental conditions.” (R. 18) Thus,
assessing the record as a whole, I am satisfied that the AU properly considered
Ms. Trzeciak’s impairments alone and in combination, including the
combination of Trzeciak’s difficulty walking and degenerative disc disease, and
found that no combination matched the severity of a listed impairment.
The AU’s RFC Evaluation
Residual functional capacity is an assessment of the most a claimant
can do despite her impairments. See 20 C.F.R. §404.1545. To determine a
claimant’s RFC, an AU must engage in a two-step process: first, consider all of
a claimant’s symptoms which can reasonably be accepted as consistent with
the objective medical evidence, and second, determine how those symptoms
affect the claimant’s ability to work. 20 C.F.R. §404.1529. Here, AU
Rosa determined that Trzeciak had the residual functional capacity to “perform
light work” with additional limitations. (R. 17) Ms. Trzeciak argues that the AU
erred in finding that Trzeciak could stand and/or walk for four hours in an
I find that the AU
sufficiently analyzed the evidence in the record and
explained her RFC findings—including her finding as to Trzeciak’s ability to
stand and/or walk—which are supported by substantial evidence. In
determining the claimant’s RFC, the AU considered Trzeciak’s testimony,
third-party function reports completed by Trzeciak’s mother, the testimony of
Drs. Javier Anya and Ramon Fortuño, Trzeciak’s hospital records, the reports
of Drs. George Long, Betty Vekhnis, Ernesto Perdomo, Vasudev Makhija,
Cheryl Sanford, Jane Shapiro, Isabella Rampella, and Deogracias Bustos, and
the medical record as a whole. (R. 17-24) The AU analyzed the evidence from
each of these sources and explained the weight she gave to each source,
commensurate with its supportability and consistency with the record as a
whole. (R. 18, 20-24)
First, I will summarize the evidence related to Ms. Trzeciak’s ability to
stand and walk during the workday. Then, I will address Trzeciak’s specific
arguments that the AU erred.
Evidence of Ms. Trzeciak’s Ability to Stand/Walk
On July 2, 2011, Ms. Trzeciak was admitted to Pottstown Memorial
Medical Center. A physical examination was within normal limits, though her
gait was unsteady and her speech slurred. (R. 560) On July 7, 2011, she had a
consultation for her gait problems but she was unable to cooperate for portions
of the exam. (R. 561, 564) On July 15, 2011, she had a consultation for speech
and ambulation difficulty. She reported difficulty walking, but the examining
doctor was unable to determine how long the problem had lasted. (R. 566) She
seemed to be almost frozen at times, required her walker while standing, took
small steps without any increased wideness of the base, and took multiple
steps to make a turn. (1?. 567) The examining physician noted her gait disorder
with some apparent bradykinesia and identified it as most likely to be atypical
parkinsonism, but he was uncertain whether the condition was related to
previous drug exposure. (R. 567-68) On July 19, 2011, Trzeciak was admitted
to Phoenixville Hospital due to problems with alcohol-related neuropathy and
depression. During an exam the next day, she was found to have good strength
in her limbs and could ambulate well without assistance. (R. 501) She had
some right foot swelling, but no deep vein thrombosis (R. 501), and her
musculoskeletal exam was normal (R. 510).
Ms. Trzeciak was treated by Dr. George Long for anxiety and depression
on November 7, 2011, August 24, 2012, and November 21, 2012. (R. 622-624)
On each of those three occasions, Dr. Long noted that the examination revealed
no joint pain or swelling, no muscle aches or weakness, normal range of
motion, a normal neurological exam, and normal tone with no atrophy or
hyperatrophy. (IcL) He also noted on all three dates that Trzeciak had no gait
After applying for disability benefits, DDS referred Ms. Trzeciak to Dr.
Betty Vekhnis for a March 7, 2012 neurological examination. Dr. Vekhnis
noted that Trzeciak walked into the office without an assistive device. (R. 582)
She was unable to walk tandem, could not stand on heels and toes, but was
stable in Romberg. Her motor examination showed normal tone and strength,
no focal weakness in both upper and lower extremities. Dr. Vekhnis described
Trzeciak’s ataxia as mild and with no dysmetria. (R. 582, 584)
On March 16, 2012, Dr. Isabella Rampello, a state agency medical
expert, reviewed Ms. Trzeciak’s file and opined that she could stand and/or
walk for four hours and sit for six hours in an eight-hour day. (R. 109) On
October 15, 2012, state agency physician Dr. Deogracias Bustos, agreed with
Dr. Rampello’s assessment. (R. 124)
Ms. Trzeciak completed function reports on October 18, 2011 and
August 3, 2012. She self-reported that she does housework for one or two
hours a day (423, 449). In 2011, she reported going outside daily (R. 423), but
only once or twice a week in 2012 (R. 449). She travels by walking, riding in a
car, or using public transportation. (R. 424, 450) She goes to the library, post
office, and other stores. (R. 421) In 2012, she reported grocery shopping once a
week for two hours. (R. 450) As a result of her conditions she reported that she
can no longer “ride a bike, walk fast, run, [or] ski.” (R. 422) In addition, she
reported that while cooking she cannot stand too long and has to sit (R. 423)
and that while using the computer she cannot sit too long and has to “get up
and walk around.” (R. 425) She reported that she cannot do physical activities
and that her condition affects both walking and sitting. (R. 425-26, 448)
Nevertheless, she also reported that she could walk for one hour before needing
to stop and rest, and she is able to resume walking after resting for only five to
fifteen minutes. (R. 425, 452) In 2011, she reported a fear of falling or losing
her balance, and she used a cane in open spaces so that she would not fall. (R.
427) However, in 2012, she did not report using any walking aid. (R. 453)
Ms. Trzeciak’s mother, Ann Trzeciak, completed third-party function
reports on October 18, 2011 and on August 6, 2012. She also reported that
Trzeciak cannot stand, sit, or walk for too long (R. 407, 410) According to her,
Trzeciak is able to shop “until she gets tired of walking” and “must sit down.”
(R. 408) She also reported that Trzeciak could walk for one hour before needing
to stop and rest for at least fifteen minutes before resuming to walk in 2011,
but only needing a five-minute rest in 2012 (R. 410, 460), and that she used a
cane in wide open spaces in 2011 but not in 2012 (R. 411, 461). In 2012, she
reported that Trzeciak goes outside three times a week (R. 458), contrary to
Trzeciak’s self-reported one to two times a week (R. 449).
In an undated Disability Report, Trzeciak reported to SSA that she has
been able to walk without an assistive device since June 2012. (R. 469)
Finally, at the hearing before the AU on February 3, 2014, Ms. Trzeciak
testified that she prepares meals, does laundry, washes dishes, changes the
sheets, washes the floors, and does other household chores. She also uses
public transportation and goes grocery shopping. (R. 66-69) Dr. Anya, an
internist and impartial medical expert, testified that Trzeciak had a gait
disorder—mild ataxia—but that her muscle strength was normal. (R. 46) He
opined that Trzeciak could sit for six hours and stand and! or walk for two
hours in an eight-hour workday. (R. 49)
The AU properly considered and balance all of the foregoing evidence.
Trzeciak’s Arguments for AU Error in Evaluating
Her Ability to Stand/Walk
Ms. Trzeciak now argues that the AU
erred in rejecting Dr. Anya’s
opinion that Trzeciak was limited to two hours of standing and/or walking.
(Pl.’s Br. 12) Trzeciak asserts that there is no medical evidence in the record to
contradict Dr. Anya’s assessment, that the AU’s finding of specifically four
hours was arbitrary (Id. 29), and that the AU offered only “laymen’s
speculation” based on unfounded inferences from Trzeciak’s daily activities to
support the rejection of Dr. Anya’s opinion. (Id. 12-13) Thus, Trzeciak argues,
the portion of the RFC finding that Trzeciak can walk and/or stand for four
hours in a workday is not supported by substantial evidence. (Id. 12-15)
gave only partial weight to the Dr. Anya’s opinion and concluded
that Trzeciak is able to stand and! or walk for four hours. (R. 20) The AU’s
finding is supported by substantial evidence. Trzeciak’s assertion that there is
no medical evidence in the record to contradict Dr. Anya’s assessment itself
ignores much of the medical evidence. For example, Dr. Long was Trzeciak’s
primary care physician and his examination notes from 2011-2012 indicate
that his examinations revealed no gait disturbance. As the opinion of a treating
physician, this was entitled to some weight. (R. 622-624) Further, Dr. Vekhnis
described Trzeciak’s ataxia as mild and with no dysmetria. (R. 582) Trzeciak’s
assertion that the AU
appears to have arbitrarily selected four hours ignores
one evident source of that figure: the independent findings of state agency
physicians Drs. Rampello and Bustos that she could stand and/or walk for
four hours. (R. 109, 124) The AU’s assignment of great weight to their findings
was proper. (R. 23-24) ALJs properly consider the opinions of state agency
medical consultants as expert opinion evidence of nonexamining physicians,
and must address such opinions in their decisions. SSR 96-Sp; see also 20
§ 404.1527(1) and 416.927(1).
The AU’s consideration of Trzeciak’s daily activities as evidence that she
could stand and/or walk for more than two hours in a workday was also
proper. Although an AU
“may reject a treating physicians opinion outright
only on the basis of contradictory medical evidence,” Morales u. Apfel, 225 F.3d
310, 317 (3d Cir.2000), Dr. Anya is not one of Ms. Trzeciak’s treating
physicians and therefore his opinion is not entitled to “great deference.” Id. Ms.
Trzeciak’s daily activities are extensive, and it was reasonable for the AU
infer that she is able to stand and/or walk for four hours.
In sum, the record as a whole supports the AU’s conclusion as to
Trzeciak’s RFC and adequately explains how AU Morales-Rosa made her
determination. The RFC is thus supported by substantial evidence.
The AU’s Step Five Analysis
At step five, the Commissioner bears the burden of showing that the
claimant can perform work which exists in the national economy, in light of her
age, education, work experience and RFC. 20 C.F.R.
Morales-Rosa determined that Trzeciak, given her age, education, work
experience and RFC, was able to perform unskilled light work with additional
limitations. (R. 25) The
therefore posed hypotheticals to the VE to
determine whether there exist in the national economy in significant numbers
unskilled, light jobs that a person with Ms. Trzeciak’s age, education, work
experience, and residual functional capacity could perform. (R. 25-26, 72-78)
The VE responded to a hypothetical that included not more than four hours of
standing and/or walking by suggesting a representative unskilled, light job
that Trzeciak could perform: inspector, missing parts (DOT # 727.687-062),
such jobs numbering in the thousands regionally, and in the hundreds of
thousands nationally. (R. 25, 75) The VE further testified that the inspector,
missing parts, job is bench work and that in such a job a person is mostly
sitting but can stand up at will. (R. 78-79) The VE explained that the job was
classified as light work due to its lifting and carrying requirements. (R. 79) The
accepted the VE’s testimony and found that Trzeciak was not disabled.
Ms. Trzeciak argues that the AU
erred at step five in multiple ways.
First, she asserts that the AU’s finding that Trzeciak is unable to stand and/or
walk for six hours in the workday precludes a finding that she is capable of
“light work” as defined by the Commissioner’s regulations or the Dictionary of
Occupational Titles (“DOT”). (Pl.’s Br. 13, 15-17). According to her, any job title
that the DOT classifies as light work requires that a person be able to stand
and/or walk for six hours. This argument is meritless. Under the
Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the
ability to do substantially all of these activities.
§ 404.1567(b), 4 16.967(b) (emphasis added). The regulations clearly
include some jobs that “involve sitting most of the time” within the category of
light work. The same is true for the DOT’s definition, which notes that
Even though the weight lifted may be only a negligible amount, a
job should be rated Light Work: (1) when it requires walking or
standing to a significant degree; or (2) when it requires sitting most
of the time but entails pushing and/or pulling of arm or leg
controls; and/or (3) when the job requires working at a production
rate pace entailing the constant pushing and/or pulling of
materials even though the weight of those materials is negligible.
“Appendix C: Components of the Definition Trailer,” in Dictionary of
Occupational Titles, U.S. Dept of Labor, Office of Administrative Law Judges
http://www.oalj .dol.gov/ PUBLIC/ DOT/ REFERENCES/ DOTAPPC.HTM
(emphasis added). Alternatives two and three clearly allow some jobs to be
classified as “light work” without a requirement of walking or standing to a
Ms. Trzeciak next argues that the ALT improperly relied on the VE’s
testimony that the inspector, missing parts, job allows the worker to sit for
most of the time. Trzeciak asserts that: 1) the VE’s testimony conflicts with the
DOT because a job classified as light work requires six hours of standing
and/or walking, and the AU failed to resolve the conflict in violation of SSR
O0-4p; 2) the VE offered no basis for his determination that the inspector,
missing parts, job is “bench work”; and 3) the VE offered no basis for his
determination that the job is classified as light work because of the lifting
required rather than the need to stand and/or walk for six hours. (Pl.’s Br. 1522, 29-3 1) 1 disagree.
First, there is no conflict, or even apparent conflict, between the VE’s
testimony and the DOT. SSR O0-4p provides that:
Occupational evidence provided by a VE or VS generally should be
consistent with the occupational information supplied by the DOT.
When there is an apparent unresolved conflict between VE or VS
evidence and the DOT, the adjudicator must elicit a reasonable
explanation for the conflict before relying on the VE or VS evidence
to support a determination or decision about whether the claimant
is disabled. At the hearings level, as part of the adjudicator’s duty
to fully develop the record, the adjudicator will inquire, on the
record, as to whether or not there is such consistency.
2000 WL 1898704 at *2. The DOT’s definition of light work encompasses jobs
without a requirement of six hours standing and/or walking, as discussed
above. The VE merely supplemented the DOT’s job description with more
specific information based on his own experience and expertise and the
National Labor Statistics. (R. 81, 84-85) Simply put, the DOT classified the job
as light work, and the VE’s supplemental information explains why it was so
classified. Further, the VE testified that his testimony was consistent with the
DOT. (R. 76) Therefore, the AU’s determination that the VE’s testimony is
consistent with the DOT is supported by substantial evidence.
Second, the VE’s determination that the job of inspector, missing parts,
is bench work is substantially supported by that job’s inclusion in the chapter
of the DOT entitled “Benchwork Occupations.” Finally, it was proper for the
AU to rely upon the VE’s experience in determining that a bench work
occupation such as inspector, missing parts, allows for alternating positions for
sitting and standing. (R. 25) See SSR 83-12 (“In cases of unusual limitation of
ability to sit or stand, a [vocational specialisti should be consulted to clarify the
implications for the occupational base.”).
Additionally, Trzeciak offered no objection to the VE’s qualifications at the
hearing. (R. 42).
For the foregoing reasons, the AU’s conclusion of non-disability at step
five was well supported by the testimony of the VE and other evidence.
For the reasons expressed above, Ms. Trzeciak’s claims of error fail to
show that the AU’s decision was not supported by substantial evidence. Under
the applicable standard of review, that is sufficient to require that I uphold the
AU’s denial of Trzeciak’s claims for DIB and SSI, which is therefore
AFFIRMED. An appropriate order accompanies this Opinion.
Dated: September 12, 2016
United States District Judge
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