MURNANE v. COMMISSIONER OF SOCIAL SECURITY

Filing 20

OPINION. Signed by Judge Kevin McNulty on 2/10/17. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHRISTOPHER MURNANE,
Civ. No. 15—7704 (KM)
Plaintiff,
v.

OPINION

CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Christopher Murnane brings this action pursuant to 42 U.S.C.

§

1383(c)(3) and 405(g) to review a final decision of the Commissioner of Social
Security (“Commissioner”) denying his claim for supplemental social security
income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C.

§ 1381—

83(1). For the reasons set forth below, the decision of the Administrative Law
Judge (“AU”) is AFFIRMED.
I.

BACKGROUND
Murnane, now 23 years old, graduated from high school, where he

took a mix of special and general education classes. He has a seizure disorder
that he controls with medication. Murnane has been seasonally employed as a
concrete mixer and as a worker in a Toys “R” Us warehouse. He applied for SSI
benefits on March 20, 2012. His application was initially denied on June 21,
2012, and then on reconsideration on December 6, 2012. On May 30, 2014,
following a hearing at which Murnane testified and was represented by
counsel, AU Joel Friedman found that Murnane was not under a disability as
defined in the Social Security Act from any time from March 20, 2012 through
the date of the decision. On August 27, 2015, the Appeals Council denied his

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request for review, rendering the AU’s decision the final decision of the
Commissioner. Murnane now appeals that decision.
II.

DISCUSSION
To be eligible for SSI benefits, a claimant must meet the income and

resource limitations of 42 U.S.C.

§ 1382. He must also show that he 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. Id. at
A.

§ 1382c(a)(3)(A).

Standard of Review
This Court exercises a plenary review of all legal issues. Schaudeck v.

Comm’rof Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). This Court adheres to
the AU’s findings so long as they are supported by substantial evidence. Jones
v. Barnhart, 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 omitted).
[I]n evaluating whether substantial evidence supports
the AU’s findings
leniency should be shown in
establishing the claimant’s disability, and
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.
...

...

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Reefer v. Barnhart, 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
finder.”).
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. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984). Outright
reversal with an award of benefits is appropriate only when a fully developed
administrative record substantial evidence which, on the whole, establishes
that the claimant is disabled and entitled to benefits. Podedworny, 745 F.2d at
22 1-222; Morales u. Apfel, 225 F.3d 310, 320 (3d Cir. 2000); see also Bantleon
v. Comm’r of Soc. Sec., 2010 WL 2802266, at *13 (D.N.J. July 15, 2010).
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); Leech v. Barnhart, 111 F. App’x 652, 658
(3d Cir. 2004) (“We will not accept the AU’s conclusion that Leech was not
disabled during the relevant period, where his decision contains significant
contradictions and is therefore unreliable.”). 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. Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994).
B.

The Five Step Analysis
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.
3

§ 404.1520, 416.920.

Review necessarily incorporates a determination of whether the AU properly
followed the five—step process prescribed by regulations.
Step one: 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), 4 16.920(b). If not, move to step two.
Step two: 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 three: 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 four: Determine whether, despite any severe impairment, the

claimant retains the Residual Functional Capacity (“RFC”) to perform past
relevant work. Id.

§ 404.1520(e)—(f), 416.920(e)—(f). If not, move to step five.

Step five: 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, 9 1—92 (3d Cir. 2007). If so, benefits will be denied; if not,
they will be awarded.
C.

The AU’s Decision
The AU determined that Murnane was not under a disability, as

defined in the Social Security Act at any time since March 20, 2012, the date
on which he filed his application. The AU’s specific step-wise findings may be
summarized as follows.

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At step one, AU

Friedman found that Murnane had not engaged in

substantial gainful employment since March 2012, (R. 21)1
At step two, the AU

identified “seizure disorder” and “learning

disorder” as severe impairments. (Id.)
At step three, the AU determined that Murnane’s impairments did
not meet or medically equal the severity of the impairments listed in 20 C.F.R.
Pt. 404, Subpt. P, App. 1, Pt. A

§ 11.03 (epilepsy) or 12.05 (intellectual

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disorder). (R. 22-23)
Friedman determined that Murnane’s

Before moving to step four, AU

medically determinable impairments could reasonably be expected to cause his
alleged symptoms but that his statements concerning their intensity,
persistence, and limiting effects were not entirely credible in light of all the
evidence in the record. The AU determined Murnane’s residual functional
capacity (“RFC”) thus:

4. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: the claimant can perform simple routine
jobs involving one-to-two step instruction in a low
contact setting, requiring no contact with the general
public and occasional contact with supervisors and
coworkers. He must avoid all exposure to hazards such
as unprotected heights, dangerous machinery or
climbing ladders, ropes or scaffolds.
Given Murnane’s RFC limitations, the AU

concluded that he had no past

relevant work. (R. 24-28)
At step five, AU Friedman ruled that there are jobs—e.g., hand
packager, production assembler, and eyeglass polisher—that exist in

1

Pages in the administrative record (ECF no. 6) are cited as “R.

2

Murnane does not challenge the AU’s step three seizure fmding here.
5

“

significant numbers in the national economy that Murnane can perform.
(R. 28-29)
D.

Analysis

On appeal, Murnane contends that the AW’s decision lacks
substantial evidence. Specifically, Murnane argues that: (1) the AU

should

have found that he had an intellectual disability at step two; (2) the AU should
have found that his intellectual disability met the requirements of Listing
12.05(D) at step three; and (3) the AU failed to consider and credit all of the
his subjective complaints. Based on a combination of errors (1)-(3), Murnane
also argues that the AU’s RFC finding is flawed.
1.

Intellectual Disability at Step Two

Murnane first argues that the AU failed to consider whether he has
an intellectual disability at step two. I disagree.
Following a thorough review of the record as a whole, AU Friedman
concluded that Murnane’s mental impairment was a learning disability rather
than a cognitive disability. (R. 21-22) That finding, for reasons stated more fully
below, is supported by substantial evidence. McCrea v. Comm’r of Soc. Sec., 370
F.3d 357, 360-6 1 (3d Cir. 2004) (noting that step two findings will be upheld if
based on substantial evidence). While it is true that most of AU’s analysis on
this point occurred downstream in the step-wise analysis, I will not require the
AU to mechanically repeat the same facts and evidence under each topic

heading of the opinion where, as here, the AU has provided “sufficient
development of the record and explanation of findings to permit meaningful
review.” Jones, 364 F.2d at 505.
In any event, any step 2 error is harmless because the AU did assess
Murnane’s mental impairment, however characterized, under the appropriate
intellectual disability listing at step three.

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2.

Intellectual Disability under Listing 12.05D

Murnane next contends that AU

Friedman should have found that

his mental impairment met the requirements of Listing 12.05D. Under this
listing, a claimant must provide valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following limitations: marked
restrictions of activities of daily living; marked difficulties in maintaining social
functioning; marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes each of an extended duration. In over two pages of
considered analysis, the AU

summarized the evidence of Murnane’s mental

impairment and properly concluded that it did not rise to the level of severity
required by Listing 12.05(D).
As an initial matter, AU Friedman noted that Murnane may not have
a valid full scale IQ score below 70. It is true, the AU

conceded, that Murnane

scored a 61 on a 2011 IQ test. But the psychologist who conducted that exam
reported that the score did “not present a complete picture of [Murnane’sj
cognitive ability.” (R. 22, 341-42) That score of 61 in 2011, the AU also noted,
is wedged between a 75, recorded in 2006, and a 71, recorded in October 2013.
(R. 22, 340, 398-99) At any rate, the psychologists who administered the 2011
and 2013 tests both agreed that the results were consistent with someone who
is learning rather than cognitively disabled. (R. 22, 34 1-42, 398) More
generally, AU

Friedman acknowledged that Murnane’s somewhat disparate

scores suggests that his intellectual functioning is most likely borderline to
mildly deficient. (R. 22, 28)
AU

Friedman assumed for purpose of argument that Murnane had a

valid full scale IQ score below 70 and proceeded to consider whether his mental
impairment presented marked limitations in daily living, social functioning,
concentration, persistence or pace, or repeated episodes of decompensation of
extended duration. (R. 22-23) In those areas, the AU found, Murnane’s mental

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impairment resulted only mild or moderate restrictions in daily living activities,
social functioning, or concentration, persistence, or pace.
3
The AU

supported that determination with specific findings based on

the evidence in the record as a whole. Murnane’s daily living activities, the ALl
ruled, included dressing, bathing, brushing his hair, shaving, feeding himself,
and using the toilet. With a microwave, Murnane can prepare and cook meals.
He cleans his bedroom and bathroom, although he needs reminders. He has a
driver’s license and can leave his home and shop (though he does so
infrequently). His mother stated that he had difficulty managing money, but
she also noted that “he has gotten better through the years.” (R. 22-23, 172-74,
399)
Concerning Murnane’s social functioning, the AU noted that teachers
described him in school records as “quiet,” “cooperative,” “polite,” “pleasant,”
and “well-behaved.” The consultative examiner, the AU noted, found that
Murnane has adequate communication skills. Although Murnane’s mother
reported that he had an easier time socializing with his younger cousins and
spends most his day alone on the computer, she also stated that Murnane uses
a web cam to talk others. School records also indicate that Murnane “made
many new friends” after moving to a New Jersey public school from
Pennsylvania. (R. 23, 268, 283-84, 340-45, 351- 52, 397-99)
Although Murnane has a documented learning disability that affects
his ability to concentrate and complete tasks, AU Friedman noted that his
school records indicate that he was “organized,” “work[ed] independently,”
“g[a]ve good effort” and “complete[d] assignments.” In his initial application, his
mother reported that he is able to recite facts and details about football, his
favorite sport. Furthermore, the AU noted, Murnane was able to learn how to
mix concrete and operate the machinery required to complete that task—a job
The AU ruled that there was no evidence of any episode of decompensation, let
alone one of extended duration. (R. 23)

3

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he might have retained had it not been seasonal employment. (R. 23-24, 48,
23, 280-84, 352, 397-99)
In sum, in a balanced ruling, the AU

found that Murnane’s moderate

concentration limitation and mild social function and daily living limitations
were real, but did not meet the severity required under Listing 12.05(D). I find
that the AU

gave due consideration to all of the evidence, made findings, and

gave reasons for them. His determinations are supported by substantial
evidence

.

3.

Inadequate Consider of Subjective Complaints

Murnane also argues that the AU improperly discounted his (and
some of his mother’s) complaints about his mental impairments. He also
suggests that AU

Friedman evaluated these complaints based on an

assessment of his character and credibility instead of a review of the objective
medical evidence in the record. Here, too, I disagree; AU

Friedman did, as

required, weigh all of the evidence regarding Murnane’s various symptoms and
resulting limitations.

Murnane’s backup argument is that remand is required in light of a recent
change to Listing 12.05, which became effective on January 17, 2017. New Listing
12.05 is not retroactive; it applies to “new applications filed on or after the effective
date” and “the prior rules will continue to apply until the effective date of [the new]
rules.” 81 F.R. 66138, 66139. Murnane filed his claim in March 2012, and the final
decision of the Commissioner was issued in August 2015. The Commissioner therefore
did not err in applying the then-current 2015 Listing, rather than the 2017 version,
even assuming the new listing was then available.

4

At any rate, it is not at all clear that the new Listing 12.05 would have produced
a different result. It relaxed the IQ score requirements slightly, but the AU here
assumed that Murnane met that requirement. More pertinently, it specifically cites
memory-related limitations on the ability to understand, remember, or apply
information. Surely such memory-related matters fell under the more general rubric of
the old listing, but the new version explicitly elevates them to specific criteria of
“extreme” or “marked” limitations of mental functioning. Nevertheless, I think that the
AUJ here gave due consideration to such memory-related impairments. See Section
D.4, infra.

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A claimant’s subjective complaints merit careful consideration, but
the AU

is not required to accept them uncritically. Chandler v. Comm’r of Soc.

Sec., 667 F.3d 356, 363 (3d Cir. 2011) (citing 20 C.F.R.
AU

§ 416.929). Rather, the

is required to assess whether and to what degree such complaints are

credible. Such credibility determinations are reserved for the AU:
[Wihile an AU must consider a claimant’s subjective
complaints, an AU has discretion to evaluate the credibility
of a claimant and arrive at an independent judgment in light
of medical findings and other evidence regarding the true
extent of the pain alleged by the claimant. Subjective
complaints cannot alone establish disability.
Gantt v. Comm’r Soc. Sec., 205 F. App’x 65, 67 (3d Cir. 2006) (internal
quotations and citations omitted). See also 20 C.F.R.

§ 404.1529(c); Malloy v.

Comm’r of Soc. Sec., 306 F. App’x 761, 765 (3d Cir. 2009) (citing Van Horn v.
Schweiker, 717 F. 2d 871, 873 (3d Cir. 1983)); Davis v. Com’r of Soc. Sec., 240
F. App’x 957, 960 (3d Cir. 2007).
The AU may reject subjective complaints, for example, if they are not
credible in light of the other evidence of record. Schaudeck v. Comm’r of Soc.
Sec., 181 F.3d 429, 433 (3d Cir. 1999). The AU is called upon to evaluate the
intensity, persistence, and limiting effects of a claimant’s symptoms to
determine the extent to which they limit her ability to perform basic work
activities. See 20 C.F.R.
evidence

.

.

.

§ 404.1529(c)(2). As to that issue, “[o]bjective medical

is a useful indicator.” Id. The AU may also examine factors that

precipitate or aggravate the symptoms, medications and treatments, and daily
living activities. 20 C.F.R.

§ 1529(c)(3).

The AU’s credibility determination “must contain specific reasons for
the finding reasons for the weight given to the individual’s symptoms” and “be
consistent with and supported by the evidence.” SSR 16-3; see also 20 C.F.R.

§ 404.1529(b), 416.929(b). What is required overall is that the AU give the
claimant’s testimony “serious consideration,” state her reasons for discounting
it, and make “specific findings.” Rowan v. Barnhart, 67 F. App’x 725, 729 (3d

10

Cir. 2003). Where that has been done, a reviewing court will defer to the AU’s
credibility determinations.
The ALl here discharged that obligation. His decision, supported by
substantial evidence in the record, represents a classic weighing of the
evidence to which this Court must defer. Murnane is correct that his mother
stated that he “cannot really do anything by himself, at all.” (R.59) It is also
true that there is evidence that he has difficulty paying bills, following a simple
recipe, and learning new tasks. (R. 48-50, 60-6 1, 171-177, 398-99) On the
other hand, Murnane was able to work as a concrete mixer for six months and,
though it may have taken some time, he learned the skills necessary to operate
the machines on that job. (R. 49-50) In addition to the concrete mixing job, the
AU noted, Murnane has also worked labeling and placing packages on a

conveyor belt for a retailer, who, at the time of the consultative examination in
December 2013, was considering hiring him full-time. (R. 398) There is no
evidence of deterioration in Murnane’s condition since he held those jobs. And,
as noted above, ALl Friedman considered that Murnane’s school records
indicated that he was a quiet, industrious student capable of independent
work. (R. 340-45, 351- 52, 397-99) Weighing all of this evidence, the AU
concluded, as he was entitled to do, that Murnane’s mental impairment is
palpable but not disabling. What the AU

did not do, as Murnane argues, is

disregard his complaints based on an assessment of his character or
personality. The AU

instead properly assessed the credibility of Murnane’s

complaints based on a searching review of the record as whole. I therefore find
5
no error here.

Murnane alternatively seems to suggest the reversal and remand are
appropriate because SSR 16-3, which eliminated the term “credibility” from the
agency’s sub-regulatory policy, was issued after the ALT made his decision. 2016 SSR
Lexis 4 (effective March 28, 2016). Even if this new policy guidance applied here, it
would not change the outcome of this case. Under the new guidance, ALJs are still
called on to (1) determine whether the individual has a medically determinable
impairment that could reasonably expected to produce the individual’s alleged
symptoms and (2) evaluate the intensity and persistence of an individual’s symptoms,

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4.

Residual Functional Capacity

Murnane’s argument that the AU’s RFC determination failed to
account for all of his limitations is dependent on contentions that I have
already rejected. I therefore need only make only the following point here.
The AU concluded that Murnane’s mental disorder limited him to
simple, routine jobs involving one- to two-step instructions in a low contact
setting, requiring no contact with the public and occasional contact with
supervisors and co-workers. In addition to the evidence detailed above, these
6
RFC limitations are supported by the opinions of the state agency psychologist,
Dr. Joseph Bencivenne, Ph.D., and the consultative examiner, Dr. Marc
Friedman, Ph.D., who both concluded that Murnane can understand,
remember, and follow simple instructions and carry out simple tasks. (R. 87,
406-407) By no means, then, did the AU fail to account for Murnane’s memory
and concentration difficulties; indeed, AU

Friedman limited him to

employment in low-contact settings because work involving contact “with the
general public could evolve into more complex and less routine situations.”
(R. 28) In sum, the AU’s residual functional capacity determination took into
account what Murnane says it ignored. It is therefore supported by substantial
evidence.

all based on the evidence in record as a whole—exactly the responsibility with which
they were charged under the agency’s previous guidance. Herrold v. Colvin, Civ. No.
14-1142, 2016 U.S. Dist. LEXIS 55722, at *2830 (N.D. III. April 27, 2016) (“[A]
comparison [between SSR 16-3 and the old guidance, SSR 96-7] reveals substantial
consistency, both in the two-step process to be followed and in the factors to be
considered in determining the intensity and persistence of a party’s symptoms.
Stated differently, ‘the agency has had only one position, although it has expressed
that position in different words.”) (quoting First. Nat. Bank of Chicago. V. Standard
Bank and Trust, 172 F.3d 472, 479 (7th Cir. 1999) (internal citations omitted).
6
Because of Murnane’s seizure disorder, the AU also ruled out jobs involving
unprotected heights, dangerous machinery, or climbing ladders, ropes, or scaffolds.
That finding is not challenged on appeal.
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III.

CONCLUSION
For the reasons stated above, the AU’s decision is AFFIRMED.

Dated: February 10, 2017

/2

KEVIN MCNULTY
United States District Judge

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