RIVERA v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Esther Salas on 8/31/17. (sr, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARISEL HERNANDEZ RIVERA,
Plaintiff,

Civil Action No. 16-1610 (ES)

v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

SALAS, DISTRICT JUDGE
Before the Court is an appeal filed by Marisel Hernandez Rivera (“Plaintiff”) seeking
review of Administrative Law Judge Leonard Olarsch’s (“ALJ” or “ALJ Olarsch”) decision
denying Plaintiff’s application for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act”),
respectively. The Court decides this matter without oral argument pursuant to Federal Rule of
Civil Procedure 78(b). The Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3). For the reasons set forth below, the Court AFFIRMS the Commissioner’s
decision.
I.

BACKGROUND
On March 6, 2008, Plaintiff filed a Title II application for DIB and a Title XVI application

for SSI, due to scoliosis and “nerve damage in [her] back,” (D.E. No. 5, Administrative Record

1

(“Tr.”) at 75-78, 185-92, 221), alleging disability beginning December 31, 2004 (id. at 185, 188).1
The claims were initially denied on July 8, 2008 (id. at 79-81) and again upon reconsideration on
October 23, 2008 (id. at 89-94). Plaintiff subsequently filed a request on December 18, 2008, for
a hearing in front of an Administrative Law Judge. (Id. at 95-96). Plaintiff’s request was granted,
and she appeared and testified at a hearing before ALJ Michal L. Lissek (“ALJ Lissek”) on March
11, 2010 (id. at 117, 129), then again at a supplemental hearing before the same judge on August
25, 2010, in Newark, New Jersey (id. at 15, 28, 147, 159). A vocational expert also testified at the
supplemental hearing. (Id.).
On October 29, 2010, ALJ Lissek denied Plaintiff’s application, stating that she considered
treatment notes, objective studies, and opinion evidence to conclude that Plaintiff was not disabled
under sections 216(i), 223(d), and 1614(a)(3)(A) of the Act. (Id. at 15-22). On December 30,
2010, Plaintiff requested an Appeals Council review (id. at 8), which was denied on July 24, 2012
(id. at 1-5).
Subsequently, on October 27, 2015, Plaintiff appealed the Commissioner’s decision by
filing a Complaint with this Court before the Honorable Susan D. Wigenton, United States District
Judge for the District of New Jersey. See Rivera v. Comm’r of Soc. Sec., No. 12-6049, 2013 WL
4431345 (D.N.J. Aug. 14, 2013). Judge Wigenton reversed the Commissioner’s decision and
remanded the case for further proceedings. Id. at *1, *9. Judge Wigenton found that ALJ Lissek
had failed to provide sufficient analysis for her conclusions at steps three and five of the five-step
sequential analysis, pursuant to 20 C.F.R. § 416.920, for determining whether a plaintiff is
disabled. Id. at *6-8. Specifically, Judge Wigenton determined that at step three, ALJ Lissek’s

Plaintiff’s earnings record showed that Plaintiff acquired sufficient quarters of coverage to remain insured
through June 30, 2006; therefore, Plaintiff bears the burden of establishing disability on or before that date to be
entitled to a period of disability and disability insurance benefits. (Id. at 15-16, 792-93).
1

2

conclusion that “Plaintiff did not have impairments that matched or were equivalent to a listed
impairment” did not include “any analysis or comparison to any listed impairments,” but rather,
was “a single conclusory statement.” Id. at *5-6. Next, Judge Wigenton found that ALJ Lissek
failed to properly determine the Plaintiff’s residual functional capacity (“RFC”) between steps
three and four because ALJ Lissek did not explain whether she considered Plaintiff’s subjective
complaints. Id. at *6-7. Lastly, Judge Wigenton found that at step five, ALJ Lissek’s acceptance
of the vocational expert’s conclusion that “an individual with Plaintiff’s limitations could find
work as a final assembler, ampoule sealer, and as a table worker assuming that she could engage
in frequent handling or fingering,” was improper because ALJ Lissek failed to reconcile that
conclusion with contradictory earlier findings. Id. at *8. Judge Wigenton noted that, according to
the record, Plaintiff’s condition makes it difficult for her to stand and sit for extended periods or
engage in “frequent” handling; however, ALJ Lissek did not provide “clarity [or] analysis”
regarding her acceptance of the vocational expert’s seemingly inconsistent conclusion.

Id.

Accordingly, Judge Wigenton ordered that “ALJ Lissek provide additional details and analysis
regarding” the aforementioned deficiencies. Id. at *6.
On remand, a second ALJ—ALJ Olarsch—held an administrative hearing on September
4, 2014, at which Plaintiff’s counsel stated that Plaintiff waived her right to appear, and a
vocational expert testified. (Tr. at 795-805). On October 16, 2014, ALJ Olarsch issued a decision
finding Plaintiff not disabled.2 (Id. at 15-22). Plaintiff submitted exceptions to the ALJ’s decision
on November 18, 2014. (Id. at 769-70).
Then, on November 24, 2015, the Appeals Council notified Plaintiff that it would assume
jurisdiction over the case pursuant to 20 C.F.R. §§ 404.984(b)(3), 416.1484(b)(3). (Id. at 757).

2

ALJ Olarsch’s decision is discussed in detail infra Part III.

3

On January 19, 2016, the Appeals Council issued a “Partially Favorable Decision” (i) affirming
and adopting each of ALJ Olarsch’s findings; (ii) concluding that ALJ Olarsch’s decision complied
with the District Court’s remand order; and (iii) awarding Plaintiff SSI benefits beginning October
16, 2014. (Id. at 757-59). The Appeals Council awarded plaintiff SSI benefits because, as of
October 16, 2014, Plaintiff was less than one month away from her forty-fifth birthday, and thus
“less than one month away from entering a new age category under Medical-Vocational Rule
201.17.” (Id. at 758). As the Appeals Council explained, “[t]he applicable rule for a person of the
claimant’s age, education, work experience, and residual functional capacity would then be Rule
201.17, which directs a decision of disabled.” (Id.).3
Plaintiff then filed this action seeking review of ALJ Olarsch’s decision. (D.E. No. 1).
This Court received the administrative record on March 6, 2016. (D.E. No. 5). The parties briefed
the issues raised by Plaintiff’s appeal. (See D.E. No. 10, Brief in Support of Plaintiff filed on
September 9, 2016 (“Pl. Mov. Br.”); D.E. No. 11, Defendant’s Brief Pursuant to Local Civil Rule
9.1 filed on October 13, 2016 (“Def. Opp. Br.”)). The matter is now ripe for resolution.
II.

LEGAL STANDARD
A. Standard for Awarding Benefits
To be eligible for DIB under Title II and SSI under Title XVI of the Act, a claimant must

establish disability as defined by the Act. See 42 U.S.C. §§ 423 (Title II), 1382 (Title XVI). A
claimant seeking DIB must also satisfy the insured status requirements set forth in § 423(c).
Disability is defined as the 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

3

The Appeals Council also explained that the applicable regulations are not to be applied mechanically. (Id.).
So, “if a claimant is within a few days to a few months of reaching an older age category, and using the older age
category would result in a decision that [the claimant] is disabled,” the Appeals Council can award benefits
prematurely if doing so would be appropriate in light of the other factors in the case. (Id.).

4

which has lasted or can be expected to last for a continuous period of not less than [twelve]
months.” Id. § 423(d)(1)(A). A claimant’s physical or mental impairment(s) must be “of such
severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age,
education, and work experience, engage in any other kind of substantial gainful work which exists
in the national economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Act has established a five-step sequential evaluation process to determine whether a
claimant is disabled. 20 C.F.R. § 404.1520(a)(4). If at any point in the sequence the Commissioner
finds that a claimant is or is not disabled, the appropriate determination is made and the inquiry
ends. Id. The burden rests on a claimant to prove steps one, two and four. See Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987).4 Because step three involves a conclusive presumption based on
the listings, neither party bears the burden of proof. Sykes v. Apfel, 228 F.3d 259, 263 n.2 (3d Cir.
2000). At step five, the burden shifts to the Commissioner. See Bowen, 482 U.S. at 146 n.5.
Step One. At step one, a claimant must demonstrate no engagement in any substantial
gainful activity (“SGA”). 20 C.F.R. § 404.1520(a)(4)(i). SGA is defined as significant physical
or mental activities that are usually done for pay or profit. Id. §§ 416.972(a), (b). If a claimant
engages in SGA, she is not disabled under the regulation, regardless of the severity of her
impairment or other factors such as age, education, and work experience. Id. § 404.1520(b). If a
claimant demonstrates no engagement in any SGA, the analysis proceeds to the second step.
Step Two. At step two, a claimant must demonstrate a “severe” medically determinable
impairment or the combination of impairments. Id. § 404.1520(a)(4)(ii). A “severe” impairment
significantly limits a claimant’s physical or mental ability to perform basic work activities. Id. §
404.1520(c). Slight abnormalities or minimal effects on a claimant’s ability to work do not satisfy

4

Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

5

this threshold. See Leonardo v. Comm’r of Soc. Sec., No. 10-1498, 2010 WL 4747173, at *4
(D.N.J. Nov. 16, 2010).
Step Three. At step three, an ALJ must assess the medical evidence and determine whether
a claimant’s impairment or combination of impairments meet or medically equal an impairment
listed in the Social Security Regulations’ “Listings of Impairments” (“Listing”) in 20 C.F.R. Part
404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(a)(4)(iii); Caruso v. Comm’r of Soc. Sec.,
99 F. App’x 376, 379 (3d Cir. 2004). Upon a finding that a claimant meets or medically equals a
Listing, that claimant is presumed to be disabled and is automatically entitled to benefits. 20
C.F.R. § 416.920(d); Knepp v. Apfel, 204 F.3d 78, 85 (3d Cir. 2000).
When evaluating medical evidence in step three, an ALJ must give controlling weight to,
and adopt the medical opinion of, a treating physician if it “is well-supported . . . and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). Not inconsistent does not mean that the opinion must “be supported directly by all
of the other evidence [i.e., it does not have to be consistent with all the other evidence] as long as
there is no other substantial evidence that contradicts or conflicts with the opinion.” Williams v.
Barnhart, 211 F. App’x 101, 103 (3d Cir. 2006). Even where a treating physician’s opinion is not
required to be given controlling weight, the opinion is not necessarily rejected and may still be
entitled to deference “depending upon the extent to which supporting explanations are provided.”
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999).
If there is conflicting medical evidence, “the ALJ may choose whom to credit but cannot
reject evidence for no reason or for the wrong reason.” Morales v. Apfel, 225 F.3d 310, 317 (3d
Cir. 2000). “In choosing to reject the treating physician’s assessment, an ALJ may not make
speculative inferences from medical reports and may reject a treating physician’s opinion outright

6

only on the basis of contradictory medical evidence and not due to his or her own credibility
judgments, speculation or lay opinion.” Id.
Step Four. If a claimant is not found to be disabled at step three, the analysis continues to
step four, in which an ALJ determines whether a claimant has the RFC to perform her past relevant
work. 20 C.F.R. § 416.920(a)(4)(iv). If a claimant lacks the RFC to perform her past relevant, the
analysis proceeds. See id. § 416.920.
Step Five. In the final step, the burden shifts to the Commissioner to show that there is a
significant amount of other work in the national economy that a claimant can perform based on
her RFC and vocational factors. Id. § 404.1520(a)(4)(v).
B. Standard of Review
The Court must affirm the Commissioner’s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health & Human Servs., 841
F.2d 57, 59 (3d Cir. 1988). “Substantial evidence does not mean a large or considerable amount
of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). Although substantial evidence requires “more than a mere
scintilla, it need not rise to the level of a preponderance.” McCrea v. Comm’r of Soc. Sec., 370
F.3d 357, 360 (3d Cir. 2004). While failure to meet the substantial evidence standard normally
warrants remand, such error is harmless where it “would have had no effect on the ALJ’s decision.”
Perkins v. Barnhart, 79 F. App’x 512, 515 (3d Cir. 2003).
The Court is bound by the ALJ’s findings that are supported by substantial evidence “even
if [it] would have decided the factual inquiry differently.” Hartranft, 181 F.3d at 360. Thus, this

7

Court is limited in its review because it cannot “weigh the evidence or substitute its conclusions
for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Regarding the ALJ’s assessment of the record, the Third Circuit has stated, “[a]lthough the
ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which
he rejects and his reason(s) for discounting such evidence.” Burnett v. Comm’r of Soc. Sec., 220
F.3d 112, 121 (3d Cir. 2000). The Third Circuit has noted, however, that “Burnett does not require
the ALJ 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 v. Barnhart, 364 F.3d 501, 505 (3d
Cir. 2004).
III.

ALJ OLARSCH’S DECISION
At step one of the analysis, ALJ Olarsch determined that Plaintiff had not engaged in SGA

since December 31, 2004—the alleged onset date. (Tr. at 781).
At step two, the ALJ determined that Plaintiff suffered from multiple severe impairments:
osteoarthritis, osteopenia, scoliosis, spondylosis and depression. (Id.). These impairments were
found to cause significant limitation in the Plaintiff’s ability to perform basic work activities. (Id.).
At step three, ALJ Olarsch found that Plaintiff did not have an “impairment or combination
of impairments that m[et] or medically equal[ed] the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1.” (Id.). ALJ Olarsch stated that in reaching this
conclusion, he specifically considered Listing 1.00. (Id.). ALJ Olarsch also found that the severity
of Plaintiff’s mental impairment did not meet or medically equal the criteria of Listing 12.04. (Id.).
In making this finding, ALJ Olarsch stated that he considered whether Plaintiff satisfied
“paragraph B” criteria—whether Plaintiff experienced (i) marked restrictions of activities of daily

8

living; (ii) marked difficulties in maintaining social functioning; (iii) marked difficulties in
maintaining concentration, persistence, or pace; or (iv) repeated episodes of decompensation, each
of extended duration. (Id.). In activities of daily living, ALJ Olarsch found that Plaintiff had mild
restriction. (Id.). In social functioning, ALJ Olarsch found that Plaintiff had mild difficulties.
(Id.). With regard to concentration, persistence or pace, ALJ Olarsch found that Plaintiff had
moderate difficulties. (Id.). Lastly, the ALJ found that Plaintiff experienced no episodes of
decompensation which had been of extended duration. (Id. at 782). ALJ Olarsch also considered
whether the “paragraph C” criteria were satisfied, but concluded that the evidence failed to
establish the presence of “paragraph C” criteria. (Id.).
At step four, ALJ Olarsch determined that Plaintiff had the RFC to perform light work as
defined in 20 C.F.R. 404.1567(a) and 416.967(a), except for the following limitations: Plaintiff
could (i) stand and walk up to two hours and sit up to six hours; (ii) lift and carry up to ten pounds;
(iii) occasionally do all postural activities except climbing ladders and scaffolding; (iv) perform
work involving frequent fine fingering and gross handling; and (v) perform simple, routine,
repetitive unskilled tasks. (Id.). In making this finding, ALJ Olarsch considered “all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence.” (Id.). ALJ Olarsch also considered Plaintiff’s testimony at all hearings. (Id.
at 785). ALJ Olarsch concluded that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that Plaintiff’s statements concerning
the intensity, persistence, and limiting effects of these symptoms are not entirely credible. (Id. at
782-83).

9

At step five, ALJ Olarsch concluded that, based on Plaintiff’s age, education, work
experience, and RFC, there were jobs that existed in significant numbers in the national economy
that Plaintiff could perform, including compact assembler, preparer, and table worker. (Id. at 786).
Accordingly, ALJ Olarsch found that Plaintiff was not disabled as defined in the Act and
was therefore ineligible for disability benefits. (Id. at 787).
IV.

DISCUSSION
On appeal, Plaintiff asserts that “substantial evidence exists in the administrative record to

support a finding of disability.” (Pl. Mov. Br. at 1). Plaintiff also asserts that ALJ Olarsch’s
decision is not based on substantial evidence. (Id. at 10). Plaintiff appeals ALJ Olarsch’s
determinations at step three, between steps three and four, and step five. (Id. at 9-28). Specifically,
Plaintiff contends that (i) ALJ Olarsch’s step-three analysis was inadequate (id. at 25); (ii) ALJ
Olarsch failed to provide evidence for rejecting Plaintiff’s subjective complaints (id.); and (iii)
ALJ Olarsch failed to provide evidence to support the RFC for six hours of sitting and frequent
fine fingering and gross handling (id. at 29).
Plaintiff asks the Court to reverse ALJ Olarsch’s decision and order the payment of
benefits.

(Id. at 10).

Alternatively, Plaintiff asks the Court to remand this case to the

Commissioner for a new hearing and a new decision. (Id.). As set forth below, the Court
AFFIRMS the Commissioner’s decision and DENIES Plaintiff’s appeal.
A. ALJ Olarsch’s Determination that Plaintiff’s Impairments Do Not Meet the
Severity of Listed Impairments Is Supported by Substantial Evidence
Plaintiff argues that the ALJ’s step-three analysis is insufficient because he mentions only
a general listing—Listing 1.00—in his discussion of Plaintiff’s physical impairments. (Pl. Mov.
Br. at 25). Further, Plaintiff claims that ALJ Olarsch’s conclusion consisted of “nebulous and nonevidentiary conclusory statements” (id. at 11) that “merely repeat[ed]” the “18 word version” of
10

ALJ Lissek’s analysis previously rejected by Judge Wigenton (id. at 25; see Rivera, 2013 WL
4431345, at *6).5
Defendant counters that ALJ Olarsch explicitly considered Listings 1.00 and 12.04. (Def.
Opp. Br. at 9). Defendant argues that ALJ Olarsch’s identification of the relevant Listings and
thorough review of the medical evidence passes judicial muster. (Id. at 10). Defendant also argues
that Plaintiff did not specify which listings ALJ Olarsch should have compared with her
impairments and therefore waived her argument that the ALJ’s step-three analysis was insufficient.
(Id. at 10). Finally, Defendant argues that Plaintiff did not support, with medical evidence, her
claim that she met or equaled the specific requirements of any listing. (Id. at 11).
At step three, an ALJ must “compare the claimant’s medical evidence to a list of
impairments presumed severe enough to negate any gainful work.” Caruso v. Comm’r of Soc.
Sec., 99 F. App’x 376, 379 (3d Cir. 2004). An ALJ must explain their reasoning for why the
medical evidence does or does not meet the requirements of a Listing. Burnett, 220 F.3d at 11920. An ALJ is not required to use particular language or adhere to a particular format as long as
an ALJ’s decision, read as a whole, illustrates sufficient development of the record and explanation
of findings to permit meaningful review. Jones, 364 F.3d at 505. An ALJ’s failure to discuss
specific listings is not a reversible error if that ALJ analyzed all the probative evidence and
explained their decision sufficiently to permit meaningful judicial review. Lopez v. Comm’r of
Soc. Sec., 270 F. App’x 119, 122 (3d Cir. 2008); see Lopez v. Comm’r of Soc. Sec., 2012 WL
3262827, at *10 (D.N.J. 2012) (holding that ALJ’s reference to listing section as a whole is
sufficient). An ALJ’s decision is judicially reviewable if that decision clearly analyzes and

Plaintiff notes that Judge Wigenton’s opinion identified three errors to be addressed on remand. The first
two (relating to ALJ Lissek’s RFC determination) are addressed infra Part IV, Section C. For the third error (regarding
ALJ Lissek’s step-three analysis), Plaintiff claims that “the frank and unmistakable findings of [Judge Wigenton] were
ignored with impunity by [ALJ Olarsch].” (Pl. Mov. Br. at 22).
5

11

evaluates the relevant medical evidence as it relates to the listing requirements. Scuderi v. Comm’r
of Soc. Sec., 302 F. App’x 88, 90 (3d Cir. 2008); see also Domkos v. Colvin, No. 15-2660, 2016
WL 1732380, at *4 (noting that an analysis of medical records in step four is sufficient for step
three). An ALJ is not required to make reference to every relevant treatment note in their
evaluation of medical evidence. Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). A broad
conclusion followed by a searching review of the medical evidence is sufficient to permit judicial
review. Klangwald v. Comm’r of Soc. Sec., 269 F. App’x 202, 204 (3d Cir. 2008).
The Court finds that ALJ Olarsch considered sufficient evidence in concluding that
Plaintiff’s impairments, physical or mental, did not meet or medically equal any listed
impairments. ALJ Olarsch’s reliance on a general listing of physical impairments—Listing 1.00—
is sufficient for meaningful judicial review. See Lopez, 2012 WL 3262827, at *10. First, ALJ
Olarsch is not required in a step-three analysis to specify any listing. Lopez, 270 F. App’x at 122.
Second, Listing 1.00 is a general category of musculoskeletal system disorders. (20 C.F.R. pt.
404, subpt. P, app. 1 §§ 1.02, 1.04). Because Plaintiff’s claims of osteoarthritis, osteopenia,
scoliosis and spondylosis (wear and tear of spinal discs) (Tr. at 781) are all musculoskeletal system
disorders, ALJ Olarsch considering Listing 1.00 was relevant and allows for meaningful judicial
review. See Jones, 364 F.3d at 505.
ALJ Olarsch’s analysis of medical evidence in his step-four determination provides
sufficient support for his step-three conclusion that Plaintiff’s impairments failed to meet or equal
any listings. See Domkos v. Colvin, 2016 WL 1732380, at *4. ALJ Olarsch noted that Plaintiff’s
May 12, 2010 x-ray of her foot and ankle showed no fracture, dislocation, or joint effusion. (Tr.
at 785). ALJ Olarsch also mentioned clinical notes from June 1, 2010, which stated that Plaintiff
had deformation and tenderness on the DIP joints of both hands, but that there was no evidence of

12

clubbing, cyanosis, or edema. (Id.). Finally, ALJ Olarsch indicated that Plaintiff received
rheumatoid-factor testing and that her results were within normal limits. (Id.). ALJ Olarsch
concluded that, although Plaintiff was diagnosed with arthritis, she had no functional limitations
or restrictions with her hands because, at a consultative examination, she was able to fully extend
her hands, make fists, oppose her fingers, separate papers, and lift a pin off a table. (Id.). Similarly,
ALJ Olarsch acknowledged that Plaintiff’s osteopenia, but noted that Plaintiff had normal fullrange of motion of all joints and no focal deficits. (Id.). Hence, because ALJ Olarsch specifically
considered Listing 1.00 and analyzed relevant medical evidence to assess Plaintiff’s claims, ALJ
Olarsch’s conclusion included sufficient explanation of his findings to permit meaningful review.
See Jones, 364 F.3d at 505.
Regarding Plaintiff’s claims of mental impairment, ALJ Olarsch concluded that the
severity of Plaintiff’s mental impairment “d[id] not meet or medically equal the criteria of [L]isting
12.04.” (Tr. at 781). ALJ Olarsch supported this conclusion by outlining the criteria of Listing
12.04 Paragraph B criteria, and concluded that Plaintiff had mild restrictions in activities of daily
living, mild difficulties in social functioning, moderate difficulties with regard to concentration,
persistence or pace, and that the record did not indicate that Plaintiff had experienced any periods
of decompensation, which have been of extended duration. (Id. at 781-82). ALJ Olarsch indicated
that in order to satisfy the Paragraph B criteria, Plaintiff’s mental impairments must cause at least
two “marked” limitations or one “marked” limitation and “repeated” episodes of decompensation.
(Id. at 782). Because ALJ Olarsch indicated which specific listing he compared against Plaintiff’s
limitations and stated the severity of Plaintiff’s mental limitations, ALJ Olarsch’s conclusion
provided a sufficient explanation of his analysis to permit judicial review. See Jones, 364 F.3d at
505.

13

Moreover, the Court notes that Plaintiff has not specified which Listing ALJ Olarsch
should have applied, nor has she pointed to any medical evidence ignored by ALJ Olarsch that
would show that her impairments medically equaled one of the listings. See Cosby v. Comm'r of
Soc. Sec., 231 F. App’x 140, 146 (3d Cir. 2007). Consequently, Plaintiff has failed to meet her
burden of showing that ALJ Olarsch’s alleged error is harmful. See Shinseki v. Sanders, 556 U.S.
396, 409 (2009).

Accordingly, because the Court gives significant deference to the

Commissioner’s determinations, the Court finds that ALJ Olarsch’s determination that Plaintiff
failed to meet or equal any Listing is supported by substantial evidence.
B. ALJ Olarsch Properly Considered Plaintiff’s Subjective Complaints
Plaintiff generally argues that ALJ Olarsch failed to support his rejection of Plaintiff’s
subjective complaints of pain. (See Pl. Mov. Br. at 25). Plaintiff claims that she suffers from
chronic back pain and myofascial pain syndrome due to a collection of orthopedic impairments.
(Id. at 28). Specifically, Plaintiff argues that she cannot work because she has arthritis in her
shoulders and hands, and cannot sit for a prolonged period because of pain in her hips. (Id. at 1314). Plaintiff notes that Judge Wigenton questioned ALJ Lissek’s conclusion that Plaintiff could
sit for up to six hours per day and perform frequent fingering because ALJ Lissek “improperly
dismissed [Plaintiff’s subjective] complaints which seemed to be supported by . . . medical
findings.” (Id. at 14).6 Plaintiff argues that ALJ Olarsch’s decision is a “virtual duplicate recitation
of the same evidence in the same order,” which “offers no reason for finding that [P]laintiff’s
‘symptoms’ are not entirely credible.”

(Id. at 17).

Defendant counters that ALJ Olarsch

appropriately considered Plaintiff’s testimony. (Def. Opp. Br. at 16). And Defendant maintains

“[B]ased on ALJ Lissek’s decision, it is unclear whether she appropriately considered Plaintiff’s testimony.
Accordingly, ALJ Lissek must properly consider Plaintiff’s subjective complaints even if ultimately finding them to
be not credible. As such, on remand, it is necessary for the ALJ to provide further analysis at step four that would
permit a meaningful review by this Court.” Rivera, 2013 WL 4431345, at *7.
6

14

that ALJ Olarsch’s statement that he considered Plaintiff’s subjective complaints, as well as ALJ
Olarsch’s discussion of the evidence pertaining to Plaintiff’s impairment, were sufficient. (Id. at
17).
A claimant’s subjective complaints must be given serious consideration but must also be
supported by medical evidence. Johnson v. Comm’r of Soc. Sec., 398 F. App’x 727, 735 (3d Cir.
2010). An ALJ may reject a claimant’s subjective complaints when the ALJ “specif[ies] his
reasons for rejecting the[] claims and support[s] his conclusion with medical evidence in the
record.” Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990). An ALJ has discretion to evaluate
a claimant’s credibility and render an independent judgment in light of the medical findings and
other evidence regarding the true extent of the alleged symptoms. Malloy v. Comm’r of Soc. Sec.,
306 F. App’x. 761, 765 (3d Cir. 2009).
The Court finds that ALJ Olarsch properly considered Plaintiff’s subjective complaints of
chronic back pain and myofascial pain syndrome, and that ALJ Olarsch’s determination is
supported by substantial evidence. ALJ Olarsch concluded that Plaintiff’s complaints concerning
the “intensity, persistence and limiting effects of these symptoms [were] not entirely credible.”
(Tr. at 783). In reaching this conclusion, ALJ Olarsch stated that he considered all the claimant’s
allegations in her testimony at all hearings. (Id. at 785). ALJ Olarsch also noted Plaintiff’s
subjective complaints of back pain to physicians. (Id. at 783). The ALJ had the discretion to
render an independent judgment in light of the medical evidence as long as he specified his reasons
for rejecting Plaintiff’s subjective complaints and supported his conclusion with medical evidence
in the record. See Matullo, 926 F.2d at 245. As further explained below, ALJ Olarsch specified
his reasons for rejecting Plaintiff’s subjective complaints that she was unable to sit for up to six

15

hours and frequently perform fine manipulation and supported that conclusion with medical
evidence. Hence, ALJ Olarsch properly considered Plaintiff’s subjective complaints.
C. ALJ Olarsch’s Conclusion That Plaintiff Could Sit for Up to Six Hours and
Frequently Perform Fine Manipulation Is Supported by Substantial Evidence
Plaintiff argues that ALJ Olarsch’s finding that Plaintiff had an RFC for six hours of sitting
and six hours of frequent fingering was without substantial evidence. (Pl. Mov. Br. at 29).
Defendant responds that ALJ Olarsch appropriately found that there was no evidence that Plaintiff
was limited to less than six hours of sitting and that ALJ Olarsch’s discussion of Plaintiff’s hand
arthritis was legally sufficient. (Def. Opp. Br. at 15-16). As more fully set forth below, the Court
finds that ALJ Olarsch’s conclusion that Plaintiff could sit for up to six hours and frequently
perform fine manipulation is supported by substantial evidence.
i.

Plaintiff Could Sit for Up to Six Hours

Plaintiff argues that ALJ Olarsch did not provide any explanation for his conclusion that
Plaintiff could sit for up to six hours. (Pl. Mov. Br. at 33). Plaintiff’s statement is erroneous
because ALJ Olarsch provided a paragraph at the end of his decision articulating both his
conclusion and the evidence used to support his conclusion. (Tr. at 785). ALJ Olarsch addressed
Plaintiff’s subjective claim that she was unable to sit for any extended period of time, but
concluded that there is no medical evidence in the record to support Plaintiff’s claim. (Id.).
Moreover, ALJ Olarsch acknowledged Plaintiff’s diagnoses of osteopenia, but pointed to medical
evidence indicating that Plaintiff’s condition does not limit her ability to sit for less than six hours.
(Id.). ALJ Olarsch supported that conclusion by referencing medical evidence that Plaintiff had
normal full range of motion of all joints, that Plaintiff’s muscle strength was 5/5 in both lower
extremities, that Plaintiff’s neurological examinations were normal, and that Plaintiff had no focal

16

deficits. (Id. at 783-85).

Hence, ALJ Olarsch’s conclusion that Plaintiff could sit for up to six

hours is supported by substantial evidence.7
ii.

Plaintiff Could Frequently Perform Fine Manipulation

Plaintiff similarly argues that ALJ Olarsch did not provide any explanation for his
conclusion that Plaintiff could frequently perform fine manipulation. (Pl. Mov. Br. at 33).
Plaintiff’s statement is similarly erroneous because ALJ Olarsch provided a paragraph at the end
of his decision articulating his conclusion and supporting evidence. (Tr. at 785). ALJ Olarsch
acknowledged that Plaintiff was diagnosed with arthritis in her hands. (Id.). Yet, ALJ Olarsch
pointed to medical evidence that Plaintiff was able to (i) fully extend her hands, make fists, and
oppose her fingers; (ii) separate papers and lift a pin off a table and put the pin back down; and
(iii) ascend and descend an examination table independently and remove and put on her shoes
independently. (Id.). ALJ Olarsch also considered medical evidence that Plaintiff’s muscle
strength and tone in her extremities were normal. (Id.). Finally, ALJ Olarsch noted that Plaintiff
had testified before ALJ Lissek that she had worked in 2007 cooking and cleaning three times a
week, and that this testimony supported a conclusion that Plaintiff was able to “perform fine
fingering and gross handling without limitation.” (Id.). Therefore, ALJ Olarsch’s conclusion that
Plaintiff could frequently perform fine manipulation is supported by substantial evidence.
V.

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the Commissioner’s decision and DENIES

Plaintiff’s appeal. An appropriate Order accompanies this Opinion.
s/ Esther Salas
Esther Salas, U.S.D.J.
Plaintiff claims that an ALJ must not “simply recite the evidence and then announce a finding. There must
be interplay between the two.” (Pl. Mov. Br. at 30). Here, ALJ Olarsch first provided a survey of the medical
evidence. (Tr. at 782-85). ALJ Olarsch then stated his conclusion, acknowledged evidence that Plaintiff had
osteopenia and then provided evidence that supported his conclusion. (Id. at 785).
7

17