KING v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Chief Judge Jose L. Linares on 7/25/17. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD D. KING, JR.,
Civil Action No. 2:16-cv-2916 (JUL)
Plaintiff,
OPINION

V.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
LINARES, Chief Judge.

This matter comes before the Court by way of Plaintiff Richard D. King, Jr. (hereinafter
“Plaintiff’)’s motion to alter or amend the Court’s previous judgment affirming Administrative
Law Judge (“AU”) Leonard Olarsch’s denial of Plaintiffs application for Disability insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the
“Act”) pursuant to federal Rule of Civil Procedure 59(e). The Court’s jurisdiction to review
Plaintiffs motion falls under 42 U.S.C.

§ 405(g). In accordance with Federal Rule of Civil

Procedure 78, the Court decides this matter without oral argument. After careful consideration
of the entire record, the Court denies Plaintiffs motion for the reasons discussed below.
I.

BACKGROUND1

A. Procedural History

On May 3, 2012, Plaintiff filed applications for DIB and SSI alleging an onset date of

“R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 5.
1

September 27, 2010. (R. at 102; Compi.

¶J 6). These claims were denied initially on September

11, 2012. (R. at 114). Upon reconsideration, Plaintiff was found to be disabled with an onset
date of January 21, 2013. (Id. at 134-48. 169-75).

On May 10, 2013, Plaintiff requested an

administrative hearing asserting that he has been disabled since September 27, 2010 rather than
January 21, 2013. (Id. at 185). An administrative hearing was held on May 28, 2014 before AU
Olarsch during which Plaintiff and vocational expert (“yE”) Ms. Tanya Edghill both provided
testimony. (Id. at 40). Thereafter, AU Olarsch issued a decision finding Plaintiff not disabled
from the alleged onset date, September 27, 2010, through the date of the administrative decision
on September 30, 2014. (Id. at 34). The Appeals Council affirmed AU Olarsch’s decision on
March 22, 2016. (Id. at 1-6).

Plaintiff filed an appeal with this Court on May 23, 2016

contesting the denial of $51 and DIB. After the motion was fully briefed, the Court issued an
Opinion affirming the final decision of the Commissioner on May 1, 2017. (ECF No. 11, 12).
Thereafter, on May 24, 2017, Plaintiff filed a motion to alter or amend the Court’s previous
judgment. (ECF No. 13, “Pl.’s Br.). On June 5, 2017, Defendant filed an opposition. (ECF No.
14, “Def.’s Opp’n”). Plaintiff then replied to Defendant’s opposition on June 6, 2017. (ECF No.
15, “Pl.’s Reply”).

B. Medical Evidence
On May 3, 2012, Plaintiff filed his initial claim for disability which alleged Plaintiff suffered
from the following illnesses, injuries or conditions: increased severe chronic pain, depression,

severe stress, lumbar and cervical limited mobility, uncontrollable high blood pressure, and a
heart condition. (R. at 102).
A progress note from Dr. Sornaya Abboud, M.D. (“Dr. Abboud”) on August 24, 2010
indicates that Plaintiff was diagnosed with anxiety and uncontrolled hypertension and Dr.

2

Abboud prescribed Plaintiff Benazepril and Aiprazolarn and increased his dosage of Norvasc. (R.
at 67$). On August 25, 2010, Plaintiff visited the emergency room due to a head injury and left
shoulder pain after he fell while walking his dog the night prior. (R. at 545).
performed at the emergency

room

The examination

indicated an abrasion to the right forehead and tenderness in

the left shoulder with pain on range of motion. (Id.). Plaintiff was diagnosed with an abrasion,
closed head injury and a shoulder sprain. (Id.). Plaintiff was prescribed an arm sling and given
Percocet. (Id.).
On September 27, 2010, Plaintiff was admitted to the hospital for evaluation and treatment of
subdural hematorna and subarachnoid hernatomaltrauma following the abovernentioned fall. (Id.
at 465). Plaintiff was discharged two days later. (Id.). On October, 5, 2010, Plaintiff again
visited the emergency room for headache and vision change, and the final diagnosis indicated
post-concussive syndrome and subdural hernatoma. (Id. at 527).
On October 13, 2010, Plaintiff visited the Hunterdon Orthopedic Institute during which
Plaintiff complained of headaches and subdural hernatorna. (Id. at 521).

The record also

indicates Plaintiffs medications as Amlodipine Besylate, Atenolol, Benzapril, Keppra XR,
Tylenol, Vicodin, and Aleve. (Id. at 52 1-22). In said report, it is indicated that Plaintiff asserted
that he had fallen down stone steps on September 26, 2010 after consuming alcohol and that he
continues to have daily headaches and occasional visual disturbance with loss of depth
perception and peripheral vision. (Id.). The report further indicated Plaintiff as complaining of
worsening anxiety and depression, and attending a day program for behavior problems at
Hunterdon Medical Center. (Id.). Also, it was reported that Plaintiff asserted that he had stopped
drinking and admitted to having a dependence on alcohol. (Id.).
On November 4, 20103 Plaintiff was evaluated in the emergency room for altered mental

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status as a result of a benzodiazepine overdose. (Id. at 513). He had a history of a recent brain
injury with seizures and had been sober from alcohol for 40 days. (Id. at 515).
On April 8,2011, Dr. Abboud diagnosed Plaintiff with high cholesterol, shoulder tenderness,
anxiety and hypertension. (Id. at 680). The record from Api-il 8, 2011 demonstrates that Dr.
Abboud ordered x-rays. (Id. at 682).

Said x-rays of Plaintiffs left shoulder revealed that

Plaintiffs shoulder was not fractured nor dislocated and that there were some degenerative
changes of the glenohurneral joint space and sclerotic density in the proximal left hurneral
diaphysis, which may have represented a bone fracture; the soft tissues were normal. (Id. at 703).
On April 29, 2011, during a follow-up visit Plaintiff complained of pain in the left shoulder
when exercising and reported that he visited Robert Wood Johnson for an accident he suffered
from in September 2010. (Id. at 683). Pertaining to Plaintiffs April 29, 2011 follow-up visit, the
record indicates Plaintiff was to have an x-ray of the left shoulder and that his treatment plan
further included diet and exercise, fish oil for three months, Vitamin D and Alprazolam. (Id.).
Thereafter on May 15, 2011, Plaintiff visited Advanced Medicine of West Essex and complained
that he was depressed and had shoulder pain and trouble sleeping. (Id. at 685). On June 20,
2011, Plaintiff had a follow-up visit at Advanced Medicine of West Essex; during said visit, Dr.
Abboud diagnosed Plaintiff with left shoulder pain, elevated cholesterol, anxiety and
hypertension. (Id. at 680-81). Dr. Abboud prescribed Plaintiff Lipitor and Valium. (Id.).
On April 27, 2012, in a record from Advanced Medicine of West Essex, Plaintiff stated that
he suffered from stress, anxiety, worsening shoulder

pain

and insomnia. (Id. at 684).

Dr.

Abboud prescribed Plaintiff with Amlodipine, Benazepril, Atenolol, and Valium. (Id.). On June
11, 2012, Dr. Abboud diagnosed Plaintiff with controlled hypertension and high cholesterol and
indicated that Plaintiffs impairments include onset symptoms of depression and left shoulder

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and lower back pain. (Id. at 670).

The record also indicates that Plaintiff was prescribed

Amlodipine, Elavil, Benzapril, ASA and Cialis and that Plaintiff could lift and carry five pounds,
stand and/or walk up to two hours per day and sit less than six hours per day. (Id. at 672). At the
request of the Social Security Administration, Dr. Abboud completed an assessment of Plaintiff
on July 17, 2012. The assessment reveals that Plaintiff was diagnosed with hypertension
controlled, cholesterol, coronary artery disease, diabetes, osteoarthritis and anxiety. (Id. at 67071). His symptoms included depression and pain to the left shoulder and lower back. (Id. at
673). Dr. Abboud opined that Plaintiff could lift/carry 5 pounds occasionally, stand and/or walk
for up to 2 hours. and sit for less than 6 hours in a an 8 hour workday. (Id.).
An August 10, 2012 record from Dr. Abboud indicates Plaintiff experienced chest pain,
depression, pain in the neck and shoulder region and minor headaches and further that Dr.
Abboud diagnosed Plaintiff with insomnia, chest pain, anxiety and hypertension. (Id. at 722).
Further during said visit, Plaintiff was prescribed Paxil and Elavil. (Id.).
At the request of the Social Security Administration, Dr. Ronald G. Silikovitz, Ph.D.
evaluated Plaintiff on August 27, 2012. (Id. at 706-10). Dr. Silikovitz opined that Plaintiff was
unable to work because of chronic pain, depression, stress and limited range of motion in lumbar
and cervical spine. (Id. at 706).

Dr. Silikovitz diagnosed Plaintiff with major depression,

recurrent, moderate generalized anxiety disorder, cocaine abuse and alcohol abuse in remission.
(Id. at 710).
October 5, 2012, Plaintiff revealed that he had feelings of depression and left shoulder pain,
and further indicated that he was experiencing insomnia. (Id. at 720). Plaintiff asserted that the
Elavil was not effective. (Id.). On November 20, 2012, Dr. Abboud examined Plaintiff during a
follow-up visit for a head injury. (Id. at 720).

Dr. Abboud diagnosed Plaintiff with a head

laceration, hypertension, facial laceration, pre-diabetes, and alcohol intoxication. (Id.).

On

November 29, 2012, Plaintiff asserted he experienced shoulder pain. (Id. at 718).
On May 9, 2013, Dr. Abboud’s diagnosis revealed chronic shoulder and neck pain, post
cervical fusion and lumbar fusion, history of multiple falls with subdural hematoma, CAD and 2
stents, major depression, dizziness and post cardiac catheterization on April 16, 2013. (Id. at
766).
After reviewing Plaintiffs file, Dr. Joseph Presto, M.D., a non-examining state agency
medical consultant, provided an assessment on February 16, 2013 that indicated Plaintiff was
able to stand or walk no more than four hours and sit about six hours in an eight hour workday.
(Id. at 126). Dr. Presto’s assessment further demonstrated that Plaintiff could lift 20 pounds
occasionally and 10 pounds frequently and that Plaintiff could not climb ladders, ropes or
scaffolds and only occasionally stoop. (Id. at 127).
C. Plaintiff’s Testimony

During the administrative hearing, Plaintiff testified that he was 51-years-old, that he has a
bachelors degree in English communications and a master’s degree in management science. (Id.
at 42-43). Also, at the time of the administrative hearing, Plaintiff testified to being divorced, to
having three children and to living with his parents. (Id. at 59). Plaintiff set forth that he has his
own area of the house that could qualify as a small apartment. (Id.).
Plaintiff asserted that due to a slip-and-fall accident while exiting a swimming pooi, the onset
date of his disability is September 27, 2010 as he suffered from a severe concussion and a
subdural hematoma as a result of the accident. (Id. at 43).

Plaintiff testified that due to the

incident he was hospitalized for about a week and was forced to leave his job. (Id. at 44).
Plaintiff stated that between 2001 and 2005 he had four spinal fusions and suffered from a

6

heart attack and that due to the heart attack stents were inserted into him. (Id. at 45). Plaintiff
further stated that he subsequently suffered from one or two more heart attacks and that his heart
issues interfere with his daily functioning as he must take blood pressure medication,
Amlodipine, BenezePro, and Metoprolol. (Id.).
Plaintiff also testified that he has frequent panic attacks and therefore must take Valium. (Id.
at 46). As to the panic attacks, Plaintiff asserted that the attacks occur when he is driving or
when he is laying in bed. (Id. at 47). Plaintiff testified that he began seeing a psychologist a few
weeks prior to the administrative hearing in order to treat his panic attacks and that regarding any
psychotropic medications, his primary care physician, Dr. Abboud prescribes him Valium for
anxiety and Amitriptyline for depression. (Id. at 50).
Plaintiffs testimony further provided that he experiences issues driving a motor vehicle since
his neck movement is limited because he is unable to move it from side-to-side. (Id. at 48).
Plaintiff stated that he does not have special mirrors in his automobile to assist in his limitation.
(Id.). Also regarding Plaintiffs driving abilities, he testified that chronic pain in his lower back,
due to previous surgeries, hinders his ability to operate a motor vehicle because driving
exacerbates the pain. (Id. at 48-49).

In response to the AU’s inquiry regarding stooping,

Plaintiff set forth that he has issues bending at the waist but also affirmed that the range of
motion in his back is “pretty good” depending on the activity. (Id. at 49).
Plaintiff testified that a year prior to the administrative hearing, he had visited the emergency
room as a result of another slip-and-fall accident which occurred outside of his parent’s house.
(Id. at 54). Plaintiff testified that during said visit surgical staples were inserted into the back of
his skull; however. Plaintiff indicated that he was unsure as to whether or not he had fractured
his skull. (Id.).

7

Plaintiff asserted that, prior to his first or second surgeries, he had issues with substance
abuse. (Id. at 54).

Plaintiff testified that he was seeing pain management doctors that were

prescribing him medications that were not alleviating his symptoms and that he therefore
combined the medications with alcohol on a regular basis. (Id. at 54-55). Although Plaintiff
asserted that he “[didn’t] know if [he] would call it addiction”, he stated that he was overmedicating himself. (Id. at 55). Plaintiff further testified that, after his second surgery and also
recognizing the damage it was causing, Plaintiff stopped this habit in or around January 2002.
(Id. at 55-56). Plaintiff asserted that his last relapse with alcohol occurred in 2002. (Id. at 58).
Plaintiff testified that a bad day with respect to his physical and mental conditions involve a
panic attack during which he walks in circles in his

room

“wondering what [the] hell [he’s] going

to do.” (Id. at 6$). Plaintiff also testified that if he has to drive longer than fifteen or twenty
minutes it affects him and that if he needs to exert himself physically, “that can also be a
problem.” (Id. at 69).

Plaintiff stated that during a bad day, which occur a few times per week,

he will try to get the “kinks out” by “stretching or lying on the floor to try and make [his] back
relax.” (Id. at 69-70). Plaintiff testified that he could stand for fifteen, twenty minutes and lift
“maybe 15 pounds.” (Id. at 72).
D. AU Olarsch’s Decision
Based upon the evidence. AU Olarsch issued a decision on September 30, 2014 that found
Plaintiff not disabled within the meaning of the Act from the alleged onset date through the date of
the administrative decision. (Id. at 2$). At step one, AU Olarsch opined that Plaintiff had not
engaged in substantial gainful activity since September 27, 2010, Plaintiff’s alleged onset date. (Id.).
At step two, AU

Olarsch found that Plaintiffs severe impairments included spine disorders,

affective disorders, anxiety disorders. (Id. at 28). At step three, the AU found that Plaintiff did not

8

have an impairment or combination of impairments that meets or medically eqctals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

§ 404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (Id. at 28-29). Specifically, the AU opined
that the medical evidence did not establish the requisite evidence of nerve root compression, spinal
arachnoiditis or lumbar spinal stenosis under listing 1.04.
Before proceeding to Step 4, the AU determined that Plaintiff had the RFC to perform light
work as defined in 20 CFR

§ 404.1567(b) and 416.967(b) except can stand and walk four hours,

perform frequent postural maneuvers, occasional bending, no climbing of ladders, ropes or scaffolds,
frequent rotating of neck and raising right ann above shoulder, limited to simple routine, repetitive,
tasks, off task 10 percent of the workday. (Id. at 30). Based on Plaintiffs RFC, the AJ1 found that
Plaintiff is unable to perform any past relevant work at step four. (Id. at 32). Lastly, at step five, AU
Olarsch detennined that there are jobs that exist in siiificant numbers in the national economy that
Plaintiff can perform which included telemarketer, labeler, office cashier, and ampoule filler. (Id. at
33). In conclusion, the AU determined that Plaintiff had not been disabled as defined by the Act
from the alleged date of onset, September 27, 2010 through the date of the administrative decision.
II.

STANDARD OF REVIEW
A. Standard for a Motion to Alter or Amend a Judgment

“A proper motion to alter or amend judgment must rely on one of three major grounds: (1) an
intervening change in controlling law; (2) the availability of new evidence [not available
previously]; or (3) the need to correct clear error [of law] or prevent manifest injustice.” N. River
his.

Co. v. CIGNA Reinsurance Co., 52 F. 3d 1194 (3d Cir. 1995)(internal citations and

quotations omitted)). “Reconsideration motions, however. may not be used to relitigate older
matters, nor to raise arguments or present evidence that could have been raised prior to the entry

9

of judgment.” P. Schoenfeld Asset ligmt. LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352
(D.N.J. 2001).
B. Substantial Evidence Standard
A District Court must affirm an AU’s decision if it is supported by substantial evidence. 42
U.S.C.

§ 405(g),

13$3(c)(3); Sykes v. ApJèl, 22$ F.3d 259, 262 (3d Cir. 2000). “Substantial

evidence means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion,” and “[i]t is less than a preponderance of the evidence but more than a mere
scintilla.” Jones

i’.

Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).

The “substantial evidence

standard is a deferential standard of review.” Id. The AU is required to “set forth the reasons
for his decision” and not merely make conclusory unexplained findings. Bttrnett

i’.

Comm ‘r of

Soc. See, 220 f.3d 112, 119 (3d Cir. 2000). But, if the AU’s decision is adequately explained
and supported, the Court is not “empowered to weigh the evidence or substitute its conclusions
for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 117$, 1182 (3d Cir. 1992). It does
not matter if this Court “acting de

novo

might have reached a different conclusion” than the

Commissioner. Monsoitr Med. Ctr. v. Heck/er, $06 F.2d 1185, 1190-91 (3d Cir. 1986)). Finally,
the Third Circuit has made clear that “Bttrnett does not require the AU to use particular

language or adhere to a particular format in conducting his [or her] analysis. Rather, the function
of Burnett is to ensure that there is sufficient development of the record and explanation of
findings to penuit meaningful review.” Jones, 364 F.3d at 505.
III.

DISCUSSION

Plaintiff seeks an amendment of the Court’s judgment affirming AU

Olarsch’s

determination that Plaintiff is not disabled within the meaning of the Act and alleges that the
Court overlooked facts in the procedural history and medical evidence that led to a decision that

10

is clear error, manifestly unjust and that requires reversal or remand for reconsideration of
Plaintiffs disability. (Pl.’s Br. 2). In opposition, Defendant contends that the AU acted entirely
within his discretion in considering whether Plaintiff was disabled from, September 27, 2010, the
date Plaintiff alleged as his onset date. (Def.’s Opp’n 1). The Court agrees with Defendant and
for the reasons discussed below, the Court finds that Plaintiff fails to meet the standard for a Rule
59(e) motion to warrant an amendment of the Court’s previous judgment. Plaintiff sets forth

three arguments in support of his motion. The Court will address each argument in turn below.
First, Plaintiff argues that the Court overlooked that upon reconsideration Plaintiff was found
to be disabled as of January 21, 2013. (Pl.’s Br. 1).

Plaintiff contends that the AU erred in his

determination since Plaintiff was oniy appealing the onset date of disability and requested a
hearing to appeal the portion of the determination of which he •‘as found not disabled between
September 27, 2010 to January 20, 2013. (Id. 2). Challenging Plaintiffs argument, Defendant
sets forth that AU Olarsch acted within his discretion in considering whether Plaintiff was
disabled from his alleged onset of September 27, 2010 rather than as of a state agency partial
disability allowance date. (Def.’s Opp’n 1).
Plaintiffs argument holds little weight and does not warrant an amendment to the Court’s
previous judgment. In Plaintiffs request for a hearing by an Administrative Law Judge, Plaintiff
set forth that he “disagree[d] with the determination made on [his] claim for SSI Disability/Title
II Benefits because [he did] not agree with the onset date of [January 2013]” and that “[he has]
been disabled since September 2010.” (R. at 185).

In the May 21, 2013 Request for Hearing

Acknowledgment Letter (“Hearing Acknowledgment Letter”), Plaintiff was notified that the AU
may consider other issues that were decided in Plaintiffs favor in the event Plaintiff appealed.
(Id. at 189-92).

Plaintiff was further notified that “the AU will review those parts of the

11

decision which you believe are wrong. The AU will look at any new facts you have and correct
any mistakes. The AU may also review those parts which you believe are correct and may make
them unfavorable or less favorable to you.” (Id. at 19$).

Since Plaintiff was notified that if an

AU reviews his claim, the AU’s decision may be less favorable, the Court finds that Plaintiffs
argument fails.
With regards to the factual error cited by Plaintiff, the administrative decision erroneously
stated that upon reconsideration Plaintiffs claim was denied, however, upon reconsideration
Plaintiff was found to be disabled beginning January 21, 2013.

This misstatement does not

impact the outcome of the decision as the five-step sequential evaluation process requires the
AU to determine whether or not the claimant is considered disabled from the alleged onset date.
Plaintiffs request for an administrative hearing alleges an earlier onset date from that found on
the reconsideration level. It is within the AU’s discretion to determine whether the Plaintiff has
met his burden of proof at steps one, two and four of the sequential evaluation process and to
further determine whether the Commissioner has met its burden at the final step.2 SIyes, 22$
F.3d at 263. In light of the foregoing, the Court finds Plaintiffs first contention without merit
and agrees with Defendant.
Secondly, Plaintiff alleges that AU Olarsch erred in his assertion that he afforded “great
weight” to the opinions of non-examining state agency medical consultants yet he did not adopt
said opinions in rendering his decision. (P1.’s Br. 2). Plaintiff further argues that the AU did not
commit a harmless error when he purported to give “great weight” to all the opinions from the
consultant because the VE at Plaintiffs administrative hearing never offered testimony as to
whether or not an individual with such limitations could work.

(Id. 3).

The Court finds

Plaintiffs allegations unpersuasive as the VE provided testimony as to the jobs Plaintiff is able
2

Neither party bears the burden of proof at the third step. Skves, 228 F. 3d at 263 n. 3.
12

to perform notwithstanding his limitations. During the administrative hearing, the yE provided
testimony that Plaintiff would be able to fulfill occupations as a telemarketer (R. at 77), labeler
(id. at $0), office/cashier (id.), and ampoule filler (Id.). In regards to Plaintiffs contention that
an earlier vocational report completed for the Administration found that the limitations described
by the state agency source as precluding Plaintiff from performing any work since the time he
turned 50 years old, this argument fails.
A claimant “is entitled by statute to an evidentiary hearing and to a de novo review by an
Administrative Law Judge.” Heckler v. Day, 467 U.S. 104, 107 (19$4)(citing 42 U.S.C.

§ 405

(b); 20 CFR §sS 404.929-404.961 (19$3))3• Accordingly, AU Olarsch was not required to adopt
or to adhere to the earlier vocational report completed for the Administration as argued by
Plaintiff because an AU, in rendering his determination, engages in a de novo review of the
record and is not bound by the determinations made at the initial and reconsideration levels.
Therefore, AU Olarsch was within his discretion to base his findings on the VE’s testimony
from the May 2$, 2014 administrative hearing.
Plaintiff alleges that the AU overlooked medical evidence underpinning the reconsideration
decision for the Social Security Administration that found Plaintiff disabled since January 21,
2013. (Pl.’s Br. 2). Plaintiff further contends that although the AU asserted that he gave “great
weight” to the state agency medical consultant, Dr. Joseph Presto, M.D., AU Olarsch did not
adopt these opinions nor did he give reason for selectively crediting the opinions from the state
agency medical consultant despite purporting to adopt the state agency opinions. This allegation

“The AU decides the case de novo, meaning that he or she is not bound by the determinations made at the initial
and reconsideration levels. The AU reviews any new medical and other evidence that was not available to prior
adjudicators. The AU will also consider a claimant’s testimony and the testimony of medical and vocational experts
called for the hearing.” Statement of Michael J. Astrue, Commissioner, Social Security Administration before the
Committee on Ways and Means and Subcommittee on Social Sectirity, June 27, 2012
(https://www.ssa.gov/]egislation/testirnonyo627l2.htrnl).

13

is untrue because AU Olarsch did not assert to having adopted these opinions, rather he stated
that he gave the opinions great weight. (R. at 32). The Code of Federal Regulations sets forth
that “[glenerally, the more consistent a medical opinion is with the record as a whole, the more
weight we will give to that medical opinion.” 20 C.F.R.
20 C.F.R.

§

§

404.1527(c)(4)4.

In accordance with

404.1527(c)(4), AU Olarsch’s opinion included in his analysis the state agency

medical consultants’ opinions and further explained why in light of the medical evidence in the
record or Plaintiffs own description of his activities of daily life, Dr. Abboud’s opinion was
inconsistent. (SeeR. at 31).
Furthermore, Plaintiffs assertion that the medical evidence from Dr. Joseph Presto, M.D.,
that supported a finding of disability upon reconsideration from January 21, 2013 was
overlooked is without merit. The administrative decision sets forth:
As for the opinion evidence, the state agency medical consultants opined the
claimant capable of a narrow range of light work with standing and walking
limited to no more than four hours (Exhibit 5A-6A). This opinion is not
inconsistent with the medical evidence in the record or the claimant’s own
description of his daily living. As such it is accorded great weight. Dr. Abboud’s
opinions at Exhibits $F and 18F are accorded less weight due to the [] reasons
[discussed herein].”
(R. at 32). Dr. Abboud opined that Plaintiff is able to lift and carry a maximum of five pounds,
stand and/or walk for up to two hours per day, sit for less than six hours per day and is limited in
his ability to push and/or pull. (Id. at 63).

Dr. Abboud’s second opinion referred to by the AU

sets forth that Plaintiff is able to occasionally lift and carry up to five pounds and Plaintiff does
not have a significant limitation in doing repetitive reaching, handling, fingering or lifting. (Id. at
769-70).

furthermore, “the AU—not treating or examining physicians or State agency

The Court recognizes that the regulation is current through the July 17, 2017 issue of the federal Register as
pursuant to 82 FR. 8346, a “Regulatory Freeze Pending Review” has been imposed and therefore certain regulations
will be delayed pending further review. However, because this motion was filed prior to July 17, 2017, the Court
will rely on the regulations as promulgated in the Code of Federal Regulations.
‘

14

consultants—must make the ultimate disability and RFC detenninations.” Chandler v. Comm ‘r
of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)

(citing

20 C.F.R.

§ 404.1527(e)(l), 404.1546(c)).

Regulations, 20 C.F.R. §404.1527(f) and 416.927(f), require the AU to consider, not adopt,
medical opinions contained within the record together with the rest of the relevant evidence of
record. Here, the AU explained, as required by Third Circuit precedent5 and the regulations, the
reasons why specific medical evidence was discredited based on the record as a whole.
Thirdly, Plaintiff sets forth a general proposition that the affirmation of the AU’s decision
results in manifest injustice and a clear error because the Court’s opinion affirming the AU’s
findings does not discuss medical evidence, procedural history, or the AU’s purported selective
adoption of the evidence. (P1. ‘s Br. 3). And, further, Plaintiff argues that if the Court recognized
the AU’s purported error then the Court would have found that the AU’s decision was not
supported by substantial evidence. (Id.).
Furthermore, this issue is not one that was presented to but not considered by the Court,
Plaintiffs initial appeal argued two points: first, that the AU

failed to properly weigh the

medical evidence and failed to properly determine Plaintiffs RFC and secondly, the AU failed
to properly evaluate Plaintiffs credibility. (See ECF No. 9). Although Plaintiff argues that the
Court must reverse or remand its previous decision in order to prevent manifest injustice, the
motion amounts to a mere disagreement with the Court’s previous decision.

Plaintiff has not

shown a need to prevent manifest injustice. “A moving party must show that dispositive factual
matters or controlling decisions of law were overlooked by the Court in reaching its prior

“A court must assess whether the AU, when confronted with conflicting evidence, ‘adequately explain[ed] in the
record his reasons for rejecting or discrediting competent evidence.” Ogden u. Bowen, 611 F. Supp. 273, 278 (M.D.
Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). If the AU fails to properly indicate why
evidence was discredited or rejected, the Court cannot detennine whether the evidence was discredited or simply
ignored. See Burnett v. Comm’r ofSoc. See, 220 F.3d 112, 121 (3d Cir. 2000).

15

decision.” Natalizzo v. Astrue, No. 12-02490 2013 U.S. Dist. LEXIS 64710 (D.N.J May 6,
2012)(quoting Ray v. Mertine, No. 06-3040 2007 U.S. Dist. LEXIS 22225 (D.N.J. March 26,
2007)). Here, the fact that the AU set forth that upon reconsideration Plaintiff was found to be
not disabled is not dispositive to this matter because as discussed above, the AU reviews the
record dc

novo

and was within his discretion to issue a less favorable decision than was found at

the reconsideration level. The AU also took into account the medical opinions that contributed
to rendering the Plaintiff disabled at the reconsideration level. Therefore, the Plaintiffs argument
amounts to a disagreement with the Court’s opinion affirming the AU’s decision. “[M]ere
disagreement with the district court’s decision is inappropriate on a’ Rule 59(e) motion.” Id.
And further, “[b]ecause reconsideration of a judgment after its entry is an extraordinary remedy,
requests pursuant to these rules are to be granted sparingly, and only when dispositive factual
matters or controlling decisions of law were brought to the court’s attention but not considered.”
P. Schoenfeld Asset Mgmt., 161 F. Supp. 2d at 353 (internal citations and quotations omitted).
Plaintiff in the present case has failed to present any evidence to establish that the affirmation of
AU Olarsch’s decision is manifestly unjust. Accordingly, based on the foregoing, Plaintiffs
motion for reconsideration is denied.

16

IV.

CONCLUSION

As discussed above, the Court denies Plaintiffs motion. Accordingly, the Court’s previous
decision affirming AU Olarsch’s determination is affirmed. An appropriate Order accompanies
this Opinion.

DATED: July

12 017

C

17

F JUDGE, U.S. DISTRICT COURT