HERNANDEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 11

OPINION. Signed by Judge Susan D. Wigenton on 6/19/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JUANA A. HERNANDEZ,

Civil Action No. 2:16-cv-05210 (SDW)
Plaintiff,

v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

June 19, 2017

WIGENTON, District Judge.
Before this Court is Plaintiff Juana Altagracia Hernandez’s (“Plaintiff”) appeal of the
final administrative decision of the Commissioner of Social Security (“Commissioner”), with
respect to Administrative Law Judge Dennis O’Leary’s (“ALJ O’Leary”) denial of Plaintiff’s
claim for disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). This
appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. This
Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under 28
U.S.C. § 1391(b). For the reasons set forth below, this Court finds that ALJ O’Leary’s factual
findings are supported by substantial credible evidence and that his legal determinations are
correct. Therefore, the Commissioner’s decision will be AFFIRMED.
I.

PROCEDURAL AND FACTUAL HISTORY
A. Procedural History

On August 23, 2011, Plaintiff completed an application for DIB and alleged disability
since September 3, 2009 due to depression, anxiety, panic attacks, carpal tunnel syndrome,
allergies, gastritis, and back pain. (R. 309, 340.) The application was denied initially and on
reconsideration. (R. 135-139, 141-143.) ALJ O’Leary held a hearing on May 16, 2013 and
issued a decision on June 7, 2013 that denied Plaintiff’s application for DIB. (R. 70-81, 114-24.)
On June 11, 2014, the Appeals Council vacated the decision and remanded the case for another
hearing and de novo decision to obtain additional evidence, complete the administrative record,
and compare requirements of Plaintiff’s previous work with her assigned residual functional
capacity (“RFC”). (R. 129-134.) ALJ O’Leary held a hearing on November 20, 2014 in which
the Plaintiff and a vocational expert (“VE”), Dr. Pat Green (“Dr. Green”), testified. (R. 48-69.)
Plaintiff received a post-hearing physical consultative examination in December 2014, and ALJ
O’Leary held a final, supplemental hearing on April 1, 2015, which again included testimony
from Dr. Green. (R. 33-47, 580-83.) On June 23, 2015, ALJ O’Leary issued a decision that
Plaintiff was not disabled and denied Plaintiff’s application for DIB. (R. 11-26.) On June 24,
2016, the Appeals Council denied Plaintiff’s request for review, and ALJ O’Leary’s decision
became the Commissioner’s final decision. (R. 1-7.) Plaintiff now requests that this Court
reverse the Commissioner’s decision and remand the claim for reconsideration. (Pl. Br. at 1.)
B. Factual History
1. Personal and Employment History
Plaintiff was born on April 22, 1964 and was fifty one years old on the date of ALJ
O’Leary’s decision. (R. 311.) She completed high school in the Dominican Republic and is
unable to communicate in English. (R. 52.) Plaintiff previously worked as an office cleaner,
babysitter, food handler, hand packer, and assembly line worker. (R. 26, 364-71.)

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2. Physical Medical History
The record demonstrates that numerous practitioners examined, consulted, and treated
Plaintiff for physical medical issues associated with her disability claim. The following is a
summary of the evidence.
Over the course of several appointments between June and August 2010, Plaintiff
reported bilateral shoulder pain as well as numbness and tingling in both hands to her orthopedic
surgeon, Thomas Helbig, M.D. (“Dr. Helbig”). (R. 473-80.) Dr. Helbig diagnosed Plaintiff with
bilateral carpal tunnel syndrome, cervical and lumbar strain, bilateral shoulder strain, and
bilateral Achilles tendonitis, and he prescribed physical therapy. (R. 474-76.) Plaintiff
subsequently sought surgical treatment on Dr. Helbig’s recommendation. (R. 476.) Plaintiff
received a right carpal tunnel release surgery on October 4, 2010. (R. 477.) Plaintiff initially
responded well to the surgery and conducted activities without restriction or pain. (R. 476.) In
addition, Dr. Helbig noted that Plaintiff could increase her activity level. (Id.)
Peter Tang, M.D. (“Dr. Tang”) treated Plaintiff in June and August 2011. (R. 516-518.)
Dr. Tang noted possible carpal tunnel syndrome on the left hand and tendon inflammation, and
he prescribed physical therapy. (Id.) In September 2011, the neurology report confirmed a
clinical diagnosis of carpal tunnel syndrome that was mild on the right wrist and mild to
moderate on the left. (R. 517-518.)
Plaintiff went to Columbia Presbyterian in September 2011 for an evaluation that
revealed mild-to-moderate carpal tunnel on the left wrist and moderate carpal tunnel on the right.
(R. 519.) Dr. Tang recommended other treatment options, like injection and physical therapy,
but Plaintiff elected to receive another carpal tunnel release surgery on the left hand on October
7, 2011. (R. 514, 523-26.) Dr. Tang noted that Plaintiff had excellent postoperative finger

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motion in addition to intact motor strength and sensation to light touch in the radial, median, and
ulnar nerves. (R. 529.)
Plaintiff visited Rhambai C. Patel, M.D. (“Dr. Patel”) in November 2011 for a
consultative examination. (R. 481-86.) Despite slightly diminished grip in both hands, Plaintiff
had no swelling of the interphalangeal joints, no permanent deformity in the hands, and was able
to perform both fine and gross movements bilaterally. (R. 482.)
Rashel Potashnik, M.D. (“Dr. Potashnik”) treated the Plaintiff in May 2012 and reported
that Plaintiff was able to stand freely on her heels and tiptoes and could squat halfway. (R. 50203.) Plaintiff was able to make a fist, oppose fingers, extend her hands, and separate papers.
(Id.) Moreover, she tested negative for Phalen’s test bilaterally but had residual symptoms of
carpal tunnel syndrome. (R. 503.) Dr. Potashnik noted some decreased sensation at the third and
fourth fingers bilaterally. (Id.) Despite some calf and shin tenderness, Dr. Potashnik noted that
the lower extremities showed a normal range of motion. (Id.)
In April 2013, Dr. Tang conducted a follow-up appointment with Plaintiff in which
Plaintiff demonstrated no tenderness to palpation and had intact motor strength and sensation.
(R. 530.) Plaintiff successfully made a composite fist, and Dr. Tang directed her to follow up
only as needed. (Id.) In December 2014, during Plaintiff’s post hearing consultative
examination with Dr. Patel, Plaintiff demonstrated a slightly decreased grip strength but showed
no neurological deficits or swelling of the interphalangeal joints. (R. 580-81.)
In March 2015, after ordering an EMG, Inna Kleyman, M.D. (“Dr. Kleyman”) and Louis
Weimer, M.D. (“Dr. Weimer”) reported that Plaintiff had normal muscle bulk and strength,
intact sensation to light touch in both arms, negative Tinel’s and Phalen’s tests, and symmetric
reflexes. (R. 584-86.) Although the EMG revealed mild median neuropathy at the bilateral

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wrists, the physicians described notable improvement from prior tests in September 2011 and
attributed variations to residual abnormalities rather than continued compression. (Id.)
3. Psychological Medical History
The record demonstrates that multiple practitioners conducted psychological evaluations
of Plaintiff. The following is a summary of the evidence.
Plaintiff has been receiving antidepressant treatment since 2010. (R. 535.) In December
2011, Ernesto Perdomo, Ph.D. (“Dr. Perdomo”) evaluated Plaintiff and diagnosed her with
chronic pain and recurrent major depression, characterized as moderate with a global assessment
of functioning (“GAF”) score of seventy to sixty. (R. 490-93.) Plaintiff demonstrated
appropriate dress and grooming, normal gait, a focused thought process, coherent speech, fair
short-term memory, good long-term memory, and fair concentration. (R. 492.) Dr. Perdomo
noted that Plaintiff could follow instructions of a moderate complexity, such as a four-step
instruction. (R. 491.) He also noted that Plaintiff could tend to her own personal care needs and
hygiene but needed assistance at times because of her pain. (Id.) Plaintiff received a second
consultative examination with Dr. Perdomo in May 2012. (R. 497-500.) Plaintiff’s GAF score
fell to 50, which indicates significant symptoms affecting occupational functioning, including
loss of appetite and panic attacks. (Id.) Moreover, her psychosocial stress appeared to be severe.
(Id.) Nevertheless, Plaintiff’s concentration, short and long-term memory, and abstraction
abilities were fair. (Id.)
During an evaluation in July 2012 with Lucie Skidanow, L.C.S.W. (“Ms. Skidanow”),
Plaintiff reported poor sleep and had a depressed mood; however, she denied suicidal ideation,
homicidal ideation, and assaultive behaviors. (R. 562-579.) In addition, she demonstrated good
eye contact, normal speech, fair memory, and a normal thought process. (Id.) Ms. Skidanow

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noted that Social Security advised Plaintiff to see a psychologist for a possible disability record.
(R. 569.)
Plaintiff saw Jesus Pena-Mejia, M.D. (“Dr. Pena-Mejia”) for psychological symptoms in
August and September 2012. (R. 544-45, 548-49.) Plaintiff reported experiencing mild anxiety
and depression because of her inability to work. (R. 544.) In January and February 2014, Dr.
Pena-Mejia diagnosed Plaintiff with Dysthymic Disorder, a continuous form of depression, after
she reported decreased interest, mild attention problems, and stress. (R. 535-37.) Plaintiff
continued to receive psychological treatment every few months. Dr. Pena-Mejia noted good
sleep and appetite and a mildly anxious mood in March 2014, fair sleep and appetite in May
2014, and good sleep and appetite and some anxiety in July 2014. (R. 538-43.)
4. Function Reports
Plaintiff submitted a self-function report on September 4, 2011. (R. 356-63.) Plaintiff
stated that her activities included going grocery shopping twice a month but also reported a lack
of energy, trouble sleeping, and difficulty doing tasks without assistance. (Id.) Plaintiff’s
daughter submitted two function reports. (R. 348-55, 381-388.) In September 2011, she stated
that her mother would go grocery shopping about twice a month and that she could pay bills,
count change, handle a savings account, and use a checkbook or money orders. (R. 348-55.)
She also reported that her mother experienced difficulty cooking and memory deficits. (Id.) In
February 2012, Plaintiff’s daughter stated that her mother could “sometimes” do laundry, shop in
stores for clothes and food once a week for one to two hours, and count change but needed her
assistance in conducting some tasks. (R. 382-84.) She also described her mother’s interests as
reading, watching television, and sewing. (R. 385.)
5. State Agency Assessments

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State agency physician Dr. Jyothsna Shastry’s (“Dr. Shastry”) physical RFC assessment
on December 12, 2011 revealed that Plaintiff could lift twenty pounds occasionally and ten
pounds frequently. (R. 87-88.) Plaintiff could stand, walk, and sit with normal breaks for a total
of six hours in an eight-hour workday. (Id.) Plaintiff had an unlimited ability to push, pull,
balance, kneel, crouch, and crawl. (R. 87-88.) Plaintiff could occasionally climb ladders, ropes,
and scaffolds as well as bend at the waist and could frequently climb ramps and stairs. (Id.)
Plaintiff’s ability to reach in any direction, feel through skin receptors, and exercise fine
fingering manipulation was unlimited. (R. 88.) Plaintiff’s handling and gross manipulation were
limited in both hands but could be performed frequently. (R. 87-88.)
Michael Britton, Ph.D. (“Dr. Britton”) completed a mental RFC assessment of Plaintiff
on January 4, 2012. (R. 89-90.) Despite Plaintiff’s reported short attention span and intolerance
for change in routine, the assessment noted that Plaintiff had the mental ability to understand,
remember, and follow simple instructions as well as adapt to supervision and occasional change
in simple work routines. (Id.)
6. Hearing Testimony
During the hearing before ALJ O’Leary on November 20, 2014, Plaintiff reported hand
pain, hand numbness, and back pain. (R. 55-62.) Her testimony recounted her difficulty
ensuring her personal care, cooking without her daughter, reaching and handling small objects,
writing or using pencils and utensils, grasping objects, using clothing or garments that require
buttons or zippers, carrying a gallon of milk, standing for a long period of time, and walking
more than a city block without stopping for a break. (Id.)
During the hearing on November 20, 2014, the VE testified that a hypothetical individual
with frequent but not continual fine finger manipulation abilities and unlimited abilities in gross

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manipulation could perform the occupations of hand packer, housekeeper, office cleaner, and
assembly line worker. (R. 62-67.) A hypothetical individual who has only occasional fine finger
manipulations instead of frequent fine finger manipulations could not perform those occupations.
(Id.) In that circumstance, however, an individual could perform the unskilled garment sorter
occupation. (Id.) A hypothetical individual who has no effective fine fingering manipulation
would not be able to perform any significant unskilled occupation. (Id.)
During the supplemental hearing before ALJ O’Leary on April 1, 2015, Dr. Green
testified that the occupations of hand packer, final assembler, and garment sorter include breaks
between tasks so that employees are not constantly moving their hands. (R. 44-46.)
II.

LEGAL STANDARD
A. Standard of Review
In Social Security appeals, this Court has plenary review of the legal issues decided by
the Commissioner. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Yet, this Court’s review of
the ALJ’s factual findings is limited to determining whether there is substantial evidence to
support those conclusions. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
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.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal citation and quotations
omitted). Thus, substantial evidence is “less than a preponderance of the evidence, but ‘more
than a mere scintilla.’” Bailey v. Comm’r of Soc. Sec., 354 F. App’x. 613, 616 (3d Cir. 2009)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Importantly, “[t]his standard is not
met if the Commissioner ‘ignores, or fails to resolve, a conflict created by countervailing
evidence.’” Bailey, 354 F. App’x. at 616 (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.

8

1983)). However, if the factual record is adequately developed, “the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Daniels v. Astrue, No. 4:08-cv-1676, 2009 WL
1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,
620 (1966) (internal quotation marks omitted)). “The ALJ’s decision may not be set aside
merely because [a reviewing court] would have reached a different decision.” Cruz v. Comm’r
of Soc. Sec., 244 F. App’x. 475, 479 (3d Cir. 2007) (citing Hartranft, 181 F.3d at 360). This
Court is required to give substantial weight and deference to the ALJ’s findings. See Scott v.
Astrue, 297 F. App’x. 126, 128 (3d Cir. 2008). Nonetheless, “where there is conflicting
evidence, the ALJ must explain which evidence he accepts and which he rejects, and the reasons
for that determination.” Cruz, 244 F. App’x. at 479 (citing Hargenrader v. Califano, 575 F.2d
434, 437 (3d Cir. 1978)).
In considering an appeal from a denial of benefits, remand is appropriate “where relevant,
probative and available evidence was not explicitly weighed in arriving at a decision on the
plaintiff’s claim for disability benefits.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.
1979) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976) (internal
quotation marks omitted). Indeed, a decision to “award benefits should be made only when the
administrative record of the case has been fully developed and when substantial evidence on the
record as a whole indicates that the claimant is disabled and entitled to benefits.” Podedworny v.
Harris, 745 F.2d 210, 221–22 (3d Cir. 1984) (citations omitted).
B. The Five-Step Disability Test
A claimant’s eligibility for social security benefits is governed by 42 U.S.C. § 1382. An
individual will be considered disabled under the Act if the claimant is unable “to engage in any

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substantial gainful activity by reason of any medically determinable physical or mental
impairment” lasting continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A). The
impairment must be severe enough to render the individual “not only unable to do his previous
work but [unable], considering his age, education, and work experience, [to] engage in any kind
of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A
claimant must show that the “medical signs and findings” related to his or her ailment have been
“established by medically acceptable clinical or laboratory diagnostic techniques, which show
the existence of a medical impairment that results from anatomical, physiological, or
psychological abnormalities which could reasonably be expected to produce the pain or other
symptoms alleged . . . . ” 42 U.S.C. § 423(d)(5)(A).
To make a disability determination, the ALJ follows a five-step sequential analysis. 20
C.F.R. §§ 404.1520(a), 416.920(a); see also Cruz, 244 F. App’x at 480. If the ALJ determines at
any step that the claimant is or is not disabled, the ALJ does not proceed to the next step. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Step one requires the ALJ to determine whether the claimant is engaging in substantial
gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as
work that “[i]nvolves doing significant and productive physical or mental duties . . . for pay or
profit.” 20 C.F.R. §§ 404.1510, 416.910. If the claimant engages in SGA, the claimant is not
disabled for purposes of receiving social security benefits regardless of the severity of the
claimant’s impairments. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the individual
is not engaging in SGA, the ALJ proceeds to step two.
Under step two, the ALJ determines whether the claimant suffers from a severe
impairment or combination of impairments that meets the duration requirement found in Sections

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404.1509 and 416.909. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or a
combination of impairments is not severe when medical and other evidence establishes only a
slight abnormality or combination of abnormalities that would have a minimal effect on an
individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921; Social Security Rule (“SSR”) 8528, 96-3p, 96-4p. An impairment or a combination of impairments is severe when it
significantly limits the claimant’s “physical or mental ability to do basic work activities.” 20
C.F.R. §§ 404.1520(c), 416.920(c). If a severe impairment or combination of impairments is not
found, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the
ALJ finds a severe impairment or combination of impairments, the ALJ then proceeds to step
three.
Under step three, the ALJ determines whether the claimant’s impairment or combination
of impairments is equal to, or exceeds, one of those included in the Listing of Impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If
an impairment or combination of impairments meets the statutory criteria of a listed impairment
as well as the duration requirement, the claimant is disabled and entitled to benefits. 20 C.F.R.
§§ 404.1520(d), 416.920(d). If, however, the claimant’s impairment or combination of
impairments does not meet the severity of the listed impairment, or if the duration is insufficient,
the ALJ proceeds to the next step.
Before undergoing the analysis in step four, the ALJ must determine the claimant’s RFC.
20 C.F.R. §§ 404.1520(a), 404.1520(e), 416.920(a), 416.920(e). An individual’s RFC is the
individual’s ability to do physical and mental work activities on a sustained basis despite
limitations from his or her impairments. 20 C.F.R. §§ 404.1545, 416.945. The ALJ considers all
impairments in this analysis, not just those deemed to be severe. 20 C.F.R. §§ 404.1545(a)(2),

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416.945(a)(2); SSR 96-8p. After determining a claimant’s RFC, step four then requires the ALJ
to determine whether the claimant has the RFC to perform the requirements of his or her past
relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the claimant is able to perform
his or her past relevant work, he or she will not be found disabled under the Act. 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). If the claimant is unable to
resume his or her past work, the disability evaluation proceeds to the fifth and final step.
At step five, the ALJ must determine whether the claimant is able to do any other work,
considering his or her RFC, age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). Unlike in the first four steps of the analysis where the
claimant bears the burden of persuasion, at step five the Social Security Administration (“SSA”)
is “responsible for providing evidence that demonstrates that other work exists in significant
numbers in the national economy that [the claimant] can do, given [the claimant’s RFC] and
vocational factors.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). If the claimant is unable to do
any other SGA, he or she is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
III.

DISCUSSION
On June 23, 2015, ALJ O’Leary applied the five-step disability test and determined that
Plaintiff was not disabled between the onset date and the date last insured. (R. 11-26.) ALJ

O’Leary’s findings are supported by substantial evidence. There is no basis for remand or
reversal because Plaintiff’s complaints are not supported by the objective medical evidence on
the record.
At step one of the five-step test, ALJ O’Leary determined that Plaintiff did not engage in
substantial gainful activity during the period from her alleged onset date through the date last
insured. (R. 19); see 20 CFR 404.1571 et seq. At step two, ALJ O’Leary found that Plaintiff’s

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bilateral carpal tunnel syndrome and depression are severe impairments because they have
significantly limited Plaintiff’s mental and physical abilities to do one or more basic work
functions for a continuous period of more than twelve months. (R. 19-20); see 20 CFR
404.1520(c). This finding is supported by substantial medical evidence in the record. In
addition, ALJ O’Leary determined that Plaintiff’s back pain and allergies were not severe, and he
supported his findings by referring to Plaintiff’s negative MRI test results and an absence of
work related physical limitations from Plaintiff’s allergy symptoms. (R. 20, 502.)
At step three, ALJ O’Leary found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404. 1520(d), 404.1525, and
404.1526). (R. 20.) Medical listing 1.02 requires an inability to perform fine and gross
movements effectively and the involvement of one major peripheral joint in each upper
extremity, as defined in 101.00B2c. (Id.) ALJ O’Leary properly considered objective medical
evidence in making his determination, including evidence that Plaintiff could perform fine and
gross movements in both hands, make a fist, oppose fingers, extend her hands, and separate
papers. (R. 20, 482, 503.)
ALJ O’Leary found that Plaintiff’s mental impairment did not meet Paragraph B criteria
of listing 12.02, which requires that the mental impairment result in at least two of the following
with extended duration: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; and marked difficulties in maintaining concentration, persistence,
or pace, or repeated episodes of decompensation. (R. 20.) A marked limitation consists of more
than a moderate limitation but less than an extreme restriction. (Id.) ALJ O’Leary properly
considered Plaintiff’s mild restriction in activities of daily living, mild social functioning

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difficulties, and moderate concentration difficulties. (R. 20.) ALJ O’Leary properly found that
“[s]ome mild to moderate concentration deficits are reasonable due to her depression although
she was noted to be cognitively intact upon examination.” (Id.) Despite Plaintiff’s more severe
depressive symptoms in May 2012, subsequent examinations in 2012 and 2014 revealed mild to
moderate symptoms and less trouble sleeping or eating. (R. 499, 538-44.) Therefore, there is
substantial evidence in the record supporting ALJ O’Leary’s determination that Plaintiff’s
impairments failed to meet requirements of the listed impairments.
Before undergoing the analysis in step four, ALJ O’Leary made Plaintiff’s RFC
determination and properly concluded that Plaintiff can perform a full range of work but is
limited to frequent rather than continual fine manipulation bilaterally as well as simple and
repetitive jobs. (R. 21.) In support of his finding, ALJ O’Leary referred extensively to medical
records from Dr. Helbig, Dr. Tang, Dr. Patel, Dr. Kleyman, Dr. Weimer, Dr. Potashnik, Dr.
Perdomo, Ms. Skidanow, and Dr. Pena-Mejia. (R. 22-25.) ALJ O’Leary properly considered all
of Plaintiff’s symptoms and medical complaints to the extent that they were consistent with
objective medical evidence.
ALJ O’Leary afforded the state physical RFC assessment by Dr. Shastry partial weight
and concurred only with fine manipulation limitations rather than exertional limitations for
carrying and lifting. (R. 25.) There is substantial evidence in the record to support ALJ
O’Leary’s determination. ALJ O’Leary highlighted that Plaintiff’s EMG from March 2015
showed noticeable improvement in her carpal tunnel syndrome from earlier tests, postoperative
examinations revealed intact sensation and strength, and Plaintiff demonstrated the ability to
make a fist as well as fine and gross movements with both hands. (Id.) In addition, Plaintiff and
her daughter reported that Plaintiff did laundry occasionally and shopped for food and clothes.

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(R. 383-84.) Plaintiff attended her testimony wearing a zippered sweatshirt and carrying a large
handbag despite testifying that she could not lift anything or wear clothes with zippers. (R. 22,
55-62.) ALJ O’Leary properly found that Plaintiff’s testimony about the intensity, persistence,
and limiting effects of her symptoms was inconsistent with objective medical evidence. (R. 26.)
ALJ O’Leary afforded the state agency mental assessment by Dr. Britton considerable
weight and found it to be consistent with the record. (R. 25.) He determined that Plaintiff had
the RFC to work in simple and repetitive jobs to account for her mild to moderate depression and
difficulty sustaining concentration, persistence, and pace. (Id.) There is substantial evidence in
the record to support ALJ O’Leary’s RFC determination, including improvement in Plaintiff’s
sleep and appetite in late 2012 and 2014 as well as Plaintiff’s mild to moderate depressive
symptoms. (R. 25, 538-43.)
At step four, after making his RFC determination, ALJ O’Leary properly found that
Plaintiff could perform her past relevant work as a hand packer, office cleaner, and assembly line
worker at the unskilled level with frequent but not continual fine fingering limitations. (R. 26.)
ALJ O’Leary accurately derived his determination from the VE’s exact testimony on November
20, 2014. (R. 26, 62-67.) Therefore, there is substantial evidence in the record to support ALJ
O’Leary’s finding, and neither the testimony from the supplemental hearing in April 2015 nor
the post-hearing evidence contradict the VE’s testimony from the first hearing. ALJ O’Leary did
not move on to step five of the analysis because Plaintiff is not disabled under the Act if she is
able to perform her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f).
On appeal, Plaintiff seeks reversal of the Commissioner’s decision and asserts that ALJ
O’Leary did not satisfy the Appeals Council’s orders to compare requirements of past work with

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the assigned RFC, consider work-related social limitations from Plaintiff’s mental impairment,
evaluate Plaintiff’s diminished grip in November 2011 and decreased finger sensation in May
2012, and articulate a specific evidentiary calculus for the RFC determination. (Pl. Br. at 14-15,
24-25.) This Court considers each argument in turn.
In regard to Plaintiff’s argument that ALJ O’Leary did not properly compare
requirements of past work with the assigned RFC, ALJ O’Leary made it evident that he credited
the VE’s testimony concerning the physical and mental demands of Plaintiff’s previous work.
(R. 26, Pl. Br. at 14.) The VE testified that a general office cleaner is unskilled with a light to
medium exertional level, a hand packager is unskilled with a light exertional level, and a final
assembler is unskilled with a light exertional level. (R. 35-46.) The VE testified during the
April 2015 hearing that the occupations of hand packer and final assembler include breaks in
between tasks so that employees are not constantly moving their hands. (R. 44-46.) The VE
testimony was properly used to compare demands of Plaintiff’s previous occupations to her RFC.
With respect to Plaintiff’s argument that ALJ O’Leary did not properly consider workrelated social limitations from Plaintiff’s mental impairment, ALJ O’Leary determined that
Plaintiff only had the RFC to perform simple and repetitive jobs to account for her depression
and afforded the state agency mental assessment by Dr. Britton substantial weight in his analysis.
(R. 21-25, Pl. Br. at 15.) ALJ O’Leary’s determination that Plaintiff could perform past relevant
work as a hand packer, office cleaner, and assembly line worker accounted for Plaintiff’s mental
RFC limitation and inability to follow more complex instructions. (R. 21-25.)
With respect to Plaintiff’s argument that ALJ O’Leary did not properly consider a
November 2011 consultative examination with Dr. Patel that showed diminished grip and a May
2012 consultative examination with Dr. Potashnik that showed decreased finger sensation, ALJ

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O’Leary referred extensively to the two examinations and considered the entire record of
objective medical evidence to make his determination. (R. 21-26, Pl. Br. at 14.) Although
Plaintiff demonstrated a diminished grip in November 2011, ALJ O’Leary also examined
evidence from the same examination that reported Plaintiff’s ability to perform both fine and
gross movements bilaterally. (R. 22-23, 482.) Although Plaintiff demonstrated decreased finger
sensation in May 2012, ALJ O’Leary properly weighed evidence of Plaintiff’s ability to make a
fist, oppose her fingers, extend her hands, and separate papers. (R. 23, 503.) Therefore, ALJ
O’Leary properly considered records from Dr. Patel and Dr. Potashnik and weighed the medical
evidence to make his determination.
With respect to Plaintiff’s argument that ALJ O’Leary did not articulate a specific
evidentiary calculus for his RFC determination, ALJ O’Leary examined the entire record of the
objective medical evidence and explained which records he afforded greater weight in reaching
his RFC decision. (R. 21-26, Pl. Br. at 24-25.) ALJ O’Leary followed a proper two-step process
for the RFC determination. (R. 21.) He first determined whether there were medically
determinable impairments. (Id.) He then evaluated the intensity, persistence, or functionally
limiting effects of the symptoms. (Id.) In addition, where Plaintiff’s statements were not
supported by objective medical evidence, ALJ O’Leary properly evaluated the credibility of the
statements based on the entire record of evidence. (Id.) There is substantial evidence in the
record supporting ALJ O’Leary’s evidentiary RFC calculus, including: Plaintiff’s improved
EMG from March 2015; Plaintiff’s ability to perform fine and gross movements bilaterally;
Plaintiff’s ability to do laundry occasionally and shop; and Plaintiff’s mild to moderate
depressive symptoms. (R. 383-84, 482, 538-43, 584-86.)
IV.

CONCLUSION

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This Court finds that ALJ O’Leary’s factual findings were supported by substantial
credible evidence in the record. Therefore, the Commissioner’s determination is AFFIRMED.
An appropriate order follows.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Orig: Clerk
cc:
Parties

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