WEIST v. COMMISSIONER OF SOCIAL SECURITY

Filing 9

OPINION. Signed by Judge Susan D. Wigenton on 7/10/2017. (JB, )

NOT FOR PUBLICATION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

ANDREW WEIST,

Civil Action No. 2:16-cv-05439-SDW
Plaintiff,

v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

July 10, 2017

WIGENTON, District Judge.
This matter comes before the Court on Plaintiff Andrew Weist’s (“Plaintiff”) appeal of the
final administrative decision of the Commissioner of Social Security (“Commissioner”), with
respect to Administrative Law Judge Donna A. Krappa’s (“ALJ Krappa”, “the ALJ”) 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 Krappa’s
factual findings are supported by substantial credible evidence and that her legal determinations
are correct. Therefore, the Commissioner’s decision is AFFIRMED.

I.

PROCEDURAL AND FACTUAL HISTORY
A. Procedural History
On July 9, 2012, 1 Plaintiff filed a Title II application for DIB, alleging disability beginning

January 25, 2012, based on depression, headaches, neck pain, and dizziness. (Tr. 170, 186.)
Plaintiff’s application was denied initially on December 28, 2012, and upon reconsideration on
August 1, 2013. (Tr. 1, 120.) Plaintiff’s subsequent request for a hearing before an administrative
law judge was granted and ALJ Krappa held a hearing on January 8, 2015. (Tr. 27, 126.) On
March 13, 2015, ALJ Krappa issued a decision finding Plaintiff to be not disabled under sections
216(i) and 223(d) of the Act, thereby denying his DIB claim. (Tr. 9-22.) On July 5, 2016, the
Appeals Council denied Plaintiff’s request for review of ALJ Krappa’s decision, making the ALJ’s
decision the final decision of the Commissioner. (Tr. 1-3.) On September 7, 2016, Plaintiff filed
an appeal with this Court, requesting that the Commissioner’s decision be reversed and that
Plaintiff be awarded Title II benefits under the Act. (See Compl. 2-3).
B. Factual History
1. Personal and Employment History
Plaintiff was born January 14, 1970. (Tr. 170.) He has an 11th grade education and worked
as a cemetery carpenter, cemetery maintenance worker, and an automobile body repair helper from
1995 to 2012. (Tr. 187.) He was 42 years old when he allegedly became disabled on January 25,
2012, due to injuries sustained in an automobile accident. (Tr. 32, 170.) In a function report that
he submitted with his application for benefits, he reported that his daily activities are limited to
pain management. These include taking pain pills with each meal, icing his neck and shoulder,
and showering. (Tr. 197.) In the report, Plaintiff claimed to be unable to walk for more than
1

This Court notes that there is a discrepancy in the record as to the date on which Plaintiff initially applied
for DIB. For purposes of this Opinion, this Court treats July 9, 2012 as the relevant date.

2

twenty feet without rest and that he was unable to take care of himself due to pain, dizziness, and
headaches. (Tr. 197-202.) Plaintiff also testified that, due to fear, he no longer drives. (Tr. 31.)
2. Medical History
a. Automobile Accidents
Plaintiff testified that on January 25, 2012, he was involved in a work related accident
when his truck was sideswiped. (Tr. 18, 32, 37.) He testified that, about a year later, he was
involved in another automobile accident in which his head hit a window after he was rear-ended.
He testified that he was involved in a third accident in 2013,2 in which he was again rear-ended.
(Tr. 39.) According to Plaintiff, he subsequently “did some treatment and then that was it.” (Tr.
39.)
b. Emergency Room Visits
Plaintiff visited the emergency room of Robert Wood Johnson University Hospital on June
20, April 11, and May 4 of 2012; as well as; on January 2, August 12, and September 12 of 2014
due to neck pain and headaches. He was treated with pain medications and discharged on each
occasion. (Tr. 18, 285-313, 411-24.)
c. Physical Health Treatment
Dr. David Adin, D.O. (“Dr. Adin”), treated Plaintiff from February 1, 2012, to June 21,
2012. (Tr. 314-23.) On February 1, Plaintiff presented complaining of neck pain, shoulder pain,
and headaches. (Tr. 315.) He denied ever having pain in his shoulder or neck in the past. (Tr.
315.) Upon examination, Dr. Adin observed limited mobility and a decreased range of motion in
the neck, as well as a limited range of motion in the left shoulder with positive giveaway weakness.
(Tr. 316.) There was no evidence of sensory deficits in the upper limbs. Dr. Adin diagnosed
2

ALJ Krappa’s opinion refers to the final accident as occurring in 2014, however, Plaintiff testified that it
occurred in 2013 (Tr. 18, 39.)

3

Plaintiff with cervical derangement, left shoulder impingement syndrome, cervicogenic
headaches, and a possible underlying traumatic brain injury. (Tr. 315-16.) On March 29, 2012, at
the direction of Dr. Adin, Plaintiff underwent MRIs of his left shoulder and cervical spine. The
MRI of the left shoulder revealed infraspinatus and supraspinatus peritendinitis, moderate
hypertrophic degenerative joint disease of the acromioclavicular joint, and deficiency and
irregularity of the anterior superior labrum. (Tr. 275.) The MRI of the cervical spine revealed a
broad-based disc bulge at the C4-C5 level and central disc herniation at the C5-C6 level. (Tr. 274.)
His treatment consisted of oral analgesics, physical therapy, a hard cervical collar, a Lidoderm
patch, and a series of cervical epidural injections. (Tr. 314-23.)
Dr. Allen S. Glushakow, M.D. (“Dr. Glushakow”), conducted a consultative examination
of Plaintiff on November 26, 2012. (Tr. 331.) He recorded that Plaintiff presented with complaints
of his arms falling asleep, neck pain, and headaches. (Tr. 332.) An examination revealed mild
restriction of range of motion in the neck but full range of motion in the bilateral upper and lower
extremities. (Tr. 332.) The examination also showed a negative Phalen and Tinel’s test, no atrophy
or soft tissue swelling, and no evidence of neurological deficits. Plaintiff was also able to take his
shoes off in a sitting position without difficulty. (Tr. 332.) Dr. Glushakow diagnosed Plaintiff
with “[i]nfraspinatus and supraspinatus peritendinitis of the left shoulder with moderate
hypertrophy and degenerative joint disease of the right AC joint[,] C5-C6 central disc herniation
with no clinical evidence of cervical radiculitis based on positive MRI findings[, and a] subjective
history of headaches.” (Tr. 332.)
Plaintiff first visited Dr. Edward G. Novik, M.D. (“Dr. Novik”), on April 18, 2013, for
treatment related to Plaintiff’s automobile accident alleged to have occurred on April 12, 2013.
(Tr. 398.)

Plaintiff told Dr. Novik that his pain was 9/10, constant, and limited his everyday

4

activities. (Tr. 398.) Dr. Novik examined Plaintiff and determined that he had an antalgic gait, a
limited range of motion in the neck, diminished deep tendon reflex, decreased motor strength in
the upper left extremity, and a decreased range of motion in the lumbar spine. (Tr. 18.)
Subsequent progress notes from Dr. Novik indicated that Plaintiff’s conditions improved
with conservative therapy that consisted of oral analgesics, a series of epidural injections, a
bilateral facet joint injection, and a home exercise program. (Tr. 18, 371-403.) Notably, on an
October 3, 2013 visit, Plaintiff reported a 60% improvement in his pain after his second epidural
steroid injection. (Tr. 28, 385.) During Plaintiff’s last visit with Dr. Novik on January 30, 2014,
an examination showed a decreased range of motion in all planes of the cervical spine accompanied
by muscle spasm, tenderness, pain, and a normal motor and sensory examination of the upper
extremities. However, there was no evidence of any abnormalities in Plaintiff’s gait, lumbar spine,
or bilateral lower extremities. (Tr. 18, 373.)
d. Mental Health Treatment
Plaintiff was treated by Dr. Alexander Ivanov, M.D. (“Dr. Ivanov”) from September 13,
2012 through December 13, 2012. (Tr. 336-43) Dr. Ivanov diagnosed Plaintiff with posttraumatic stress disorder, major depressive disorder, and an environmental driving phobia. (Tr.
18, 338.) Dr. Ivanov also opined that Plaintiff was “100% psychiatrically disabled.” (Tr. 342.)
Dr. Ivanov treated Plaintiff through medication and psychotherapy. (Tr. 18, 336-62.)
Dr. Steven Barnett, Ph.D (“Dr. Barnett”), treated Plaintiff in September of 2012. (Tr. 32430.) On October 11, 2012, Dr. Barnett completed a psychiatric report in which he diagnosed
Plaintiff with a major depressive disorder, DSM-IV 296.23, severe without psychotic features.
(Tr. 324.) He noted that Plaintiff’s mood was depressed and agitated, his speech was tangential,
and his concentration and memory were below average. Plaintiff reported suicidal ideation but

5

denied intent due to his children. Dr. Barnett also noted that Plaintiff was able to articulate feelings
and provide history, had no limitations in social interaction, had average judgment and intellect,
and was fully oriented. (Tr. 325-28.)
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. 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.

6

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
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

7

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 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”) 85-28, 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
the ALJ does not find severe impairment or combination of impairments, the claimant is not

8

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. §§ 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 residual
functional capacity (“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), 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

9

of persuasion, the burden shifts to the ALJ at step five to determine whether the claimant is capable
of performing an alternative SGA present in the national economy. 20 C.F.R. §§ 404.1520(g)(1)
(citing 404.1560(c)), 416.920(g)(1) (citing 416.960(c)); Kangas v. Bowen, 823 F.2d 775, 777 (3d
Cir. 1987).

At this point in the analysis, 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
A. The ALJ’s Decision
Under step one, the ALJ determined that Plaintiff has not engaged in substantial gainful

activity since January 25, 2012, the alleged disability onset date. (Tr. 14); see 20 C.F.R. §
404.1571 et seq. Under step two, the ALJ considered the entire medical record in determining that
Plaintiff has the following severe impairments: disorder of the back (cervical and lumbar);
headaches; internal derangement of the right shoulder; and depression. (Tr. 14); see 20 C.F.R. §
404.120(c). These findings are supported by substantial evidence in the record. Furthermore, once
the ALJ determined which of Plaintiff’s impairments qualified as severe, she considered, under
step three, whether Plaintiff’s severe impairments equal or exceed those in the Listing of
Impairments in the Act. See C.F.R. § 416.920(a)(4)(iii).
Under step three, ALJ Krappa determined that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 14); see 20 C.F.R. §§ 404.1520(d),
404.1525 and 404.1526. Specifically, it was found that the requirements of listing 1.04 have not

10

been met because the evidence fails to demonstrate the existence of a herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, or
vertebral fracture, along with the requirements of subsection A, B, or C of the listing. (Tr. 15.)
The subsection A requirement is evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated
muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, a positive straight-leg raising test (sitting and supine). The
subsection B requirement is spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for changes in position or posture more than
once every 2 hours.

The subsection C requirement is lumbar spinal stenosis resulting in

pseudoclaudication, established by findings on appropriate medically acceptable imaging,
manifested by chronic nonradicular pain and weakness, and resulting in inability to ambulate
effectively, as defined in 1.00B2b. 20 C.F.R. Part 404, Subpart P, Appendix 1.
ALJ Krappa also found that Plaintiff’s right shoulder impairment does not meet the
requirements of listing 1.02 because there is no evidence of a gross anatomical deformity and
chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the
affected joint(s), and findings on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint, along with subsections A or B of
the listing. (Tr. 15.) The subsection A requirement is involvement of one major peripheral weightbearing joint, resulting in inability to ambulate effectively, as defined in 1.00B2b. The subsection
B requirement is involvement of one major peripheral joint in each upper extremity, resulting in
inability to perform fine and gross movements effectively, as defined in 1.00B2c. 20 C.F.R. Part

11

404, Subpart P, Appendix 1.
Finally, ALJ Krappa found that the requirements of listing 12.04 were not met because
neither the subsection B nor the subsection C requirements were met. In order to satisfy the
requirements of listing 12.04, either the requirements of both subsections A and B must be
satisfied, or the requirements of subsection C must be satisfied. 20 C.F.R. Part 404, Subpart P,
Appendix 1. To satisfy the subsection B criteria, Plaintiff’s mental impairments must result in at
least two of the following: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation, each of extended duration. The ALJ found that
Plaintiff’s mental impairments do not cause at least two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation, each of an extended duration. (Tr. 15.) To
satisfy the subsection C criteria, Plaintiff’s depression must result in (1) “repeated episodes of
decompensation, each of an extended duration”; (2) “[a] residual disease process that has resulted
in such marginal adjustment that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to decompensate; or (3) [c]urrent history
of 1 or more years' inability to function outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.”

20 C.F.R. § 404, subpt. P, app. 1., §

12.04(C). The ALJ found that the evidence failed to establish any of these criteria. (Tr. 16.)
Before proceeding to step four, the ALJ determined that Plaintiff’s residual functional
capacity allows him to perform the exertional demands of light work as defined in 20 C.F.R. §
404.1567(b). Specifically, the ALJ found that Plaintiff is able to “lift/carry 20 lbs. occasionally
and 10 lbs. frequently; stand/walk for 6 hours in an eight hour work day; sit for 6 hours in an eight
hour work day (if given the opportunity at the 45 min. – 1 hr. mark to stand and stretch for 3-5

12

minutes); and perform unlimited pushing and pulling within the weight restriction given.” (Tr.
16.) She also determined that Plaintiff is able to perform jobs that require frequent use of ladders,
ropes, or scaffolds; that require frequent use of ramps or stairs; and that require unlimited
balancing, stooping, kneeling, and crouching, but only frequent crawling. (Tr. 16.) Finally, she
found that Plaintiff can perform jobs that are simple and repetitive, and that require only occasional
contact with supervisors, but no contact with the general public. (Tr. 16.) In making these
findings, the ALJ considered all of Plaintiff’s symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective medical evidence and other evidence
based on the requirements of 20 C.F.R. § 404.1529 and SSRs 96-4p and 96-7p. She also
considered opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and
SSRs 96-2p, 96-5p, 96-6p, and 06-3p. (Tr. 16.)
Under step four, ALJ Krappa determined that Plaintiff is unable to perform any past
relevant work under 20 C.F.R. § 404.1520(f). In reaching this conclusion, the ALJ considered the
testimony of the vocational expert, Jackie Wilson, M.S., which referenced the residual functional
capacity. Because the ALJ determined that Plaintiff cannot perform his past relevant work, her
analysis proceeded to step five to determine whether work exists in the national economy that
Plaintiff could perform. See 20 C.F.R. § 404.1520(g)
At step five, ALJ Krappa found that Plaintiff can perform work that exists in significant
numbers in the national economy. In coming to this conclusion, the ALJ considered Plaintiff’s
residual functional capacity, age, education, and work experience in conjunction with the MedicalVocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. (Tr. 21.) The vocational expert
took into consideration the ALJ’s hypothetical that included Plaintiff’s impediments that hinder
his ability to perform the full range of light work. In doing so, the vocational expert determined

13

that a person with Plaintiff’s impediments would nonetheless be able to perform the job
requirements of unskilled jobs in the light exertional range such as inspector/hand packager,
photocopying machine operator, and sealing and canceling machine operator. (Tr. 55.) Because
a significant number of these jobs exist in the national economy and Plaintiff has the capability to
make a successful adjustment, ALJ Krappa found him to be “not disabled.” (Tr. 22.)
B. The ALJ’s Factual Findings are Supported by Substantial Credible Evidence
and Her Legal Conclusions are Correct
Plaintiff contends that substantial evidence in the administrative record establishes that he
is entitled to DIB and requests that this Court reverse and order the payment of benefits or, in the
alternative, reverse and remand this matter for further proceedings. (Pl.’s Br. at 9.) Plaintiff seeks
reversal based on two arguments. First, Plaintiff argues that the ALJ’s step three listings evaluation
is “beyond judicial review.” (Pl.’s Br. at 15.) Second, Plaintiff contends that the RFC is not based
on substantial evidence and the resulting hypothetical presented to the vocational expert is
inaccurate. (See Pl.’s Br. at 24.) This Court considers both arguments in turn.
1. The ALJ Properly Analyzed Each Step Three Listing and Properly
Considered the Combination of Ailments
As discussed supra, the ALJ properly considered Plaintiff’s impairments under listings
1.02, 1.04, and 12.04, and she correctly found that he did not meet all of the required criteria.
According to Plaintiff, ALJ Krappa did not sufficiently articulate her reasons for finding that
Plaintiff lacked an impairment or combination of impairments that met or medically equaled a
listed impairment. (Pl.’s Br. at 10-12, 15-23). However, to be found presumptively disabled, a
claimant must show that all of the criteria for a listing have been met.

See 20 C.F.R. §

404.1525(c)(3). Here, the ALJ properly considered Plaintiff’s impairments under Listings 1.02,

14

1.04, and 12.04 and correctly found that he did not meet all of the required criteria.
In analyzing the evidence before her, ALJ Krappa found that Plaintiff’s medically
determinable impairments could reasonably be expected to cause his alleged symptoms, but that
his statements concerning the intensity, persistence, and limiting effects of these symptoms are not
entirely credible. (Tr. 19.) Plaintiff alleged disability partially due to injuries that he sustained in
various automobile accidents. (Tr. 30.) However, his treating sources were of the opinion that
conservative therapy was adequate to treat his C5-6 disc herniation and that he was not a candidate
for surgical intervention.

(Tr. 19.)

Additionally, Dr. Novik’s notes report that Plaintiff’s

symptoms from both his January 2012 and April 2013 accidents improved with another course of
conservative therapy. (Tr. 19.) Similarly, the ALJ found that Plaintiff’s testimony that he could
only stand ½ hour, sit ½ hour, walk ½ hour, and lift ½ gallon of milk was inconsistent with the
findings of Dr. Glushakow’s November 2012 examination that noted that Plaintiff was able to
walk with a normal unassisted gait and station, that he had full range of motion in the bilateral
upper and lower extremities, and that he was able to take his shoes off in a sitting position with no
difficulty. (Tr. 19.) Furthermore, Dr. Novik’s January 2014 examination noted no abnormalities
or functional limitations related to Plaintiff’s lumbar spine or bilateral lower extremities after his
automobile accidents in 2012 and 2013. (Tr. 19.)
Concerning Plaintiff’s alleged psychiatric disabilities, the ALJ found that the credible
evidence did not support a finding of disability. She properly gave little weight to Dr. Ivanov’s
opinion that Plaintiff is “100% psychiatrically disabled.” Dr. Ivanov only treated Plaintiff for three
months.

In addition, there is no record of any recurrent emergency room or inpatient

hospitalizations due to an exacerbation of his psychiatric symptoms. However, the ALJ did take
into consideration Plaintiff’s subjective complaints as well as Dr. Barnett’s psychological

15

diagnoses and determined that Plaintiff is capable of simple tasks in a low contact environment
involving occasional contact with supervisors but no contact with the general public. (Tr. 20.)
These shortfalls in Plaintiff’s medical evidence allowed ALJ Krappa to conclude that
Plaintiff did not meet the requirements of listings 1.02, 1.04, or 12.04. In regard to listing 1.02,
Plaintiff’s January 2012 MRI of his left shoulder revealed infraspinatus and supraspinatus
peritendinitis, moderate hypertrophic degenerative joint disease of the acromioclavicular joint, and
deficiency and irregularity of the anterior superior labrum, but there was no joint space narrowing,
bony destruction or ankyloses as required by the listing.

(Tr. 275.)

Plaintiff’s shoulder

examination in November 2012 was normal and his examination in January 2014 revealed normal
motor strength and sensory examinations in both upper extremities. (Tr. 334, 373.) In regard to
listing 1.04, Plaintiff’s November 2012 examination revealed only a mild restriction in cervical
range of motion. (Tr. 332.) Examinations that took place more recently revealed improvement in
his condition. (Tr. 373, 377, 385.) In regard to listing 12.04, Plaintiff does not satisfy section B
because his mental impairments do not cause at least two “marked” limitations or one “marked”
limitation and “repeated” episode of decompensation, each of extended duration. 20 C.F.R. pt.
404, subpt. P app. 1, § 12.04B. Plaintiff does not satisfy subsections C(1) and C(2) because there
is no evidence of repeated episodes of decompensation each of extended duration and there is no
evidence that “a minimal increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate.” 20 C.F.R. pt. 404, subpt. P app. 1, §
12.04(C)(2). In addition, Plaintiff is unable to satisfy the requirements of subsection C(3) because

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he lives independently and is able to care for his personal needs, care for his pets, go out alone,
and handle his financial affairs. (Tr. 15, 198, 224, 226-27.)
Finally, Plaintiff alleges that ALJ Krappa did not consider his ailments in combination.
(Tr. 18.) However, an ALJ need not “use particular language or adhere to a particular format in
conducting his analysis . . . [so far as] 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).
Here, the ALJ considered Plaintiff’s ailments separately and in combination and determined that
they do not meet or medically equal the severity of a listed impairment. (Tr. 14-16.)
2. Substantial Evidence Supports the ALJ’s RFC Determination
Plaintiff argues that certain findings in the ALJ’s RFC ignore evidence in the record. (Pl.’s
Br. 27-28.) However, “the ALJ need only include in the RFC those limitations which he finds to
be credible.” Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 147 (3d Cir. 2007). In addition,
“where there is conflicting evidence, the ALJ must explain which evidence he accepts and which
he rejects, and the reasons for that determination.” Cruz v. Comm’r of Soc. Sec., 244 F. App’x.
475, 479 (3d Cir. 2007) (citing Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)). Here,
the ALJ referenced the credible evidence in the record, including medical treatment from the same
doctors over an extended period of time, and compared Plaintiff’s subjective complaints to his
daily activities when making her RFC determination. (See Tr. 16-20.) In addition, as discussed
supra, the ALJ explained why she gave little weight to Dr. Ivanov’s findings. (Tr. 20.) Using
this evidence, the ALJ constructed a detailed RFC that limits Plaintiff to light work with the
additional limitations that he must be given the opportunity every 45 minutes to one hour to stand
and stretch for three to five minutes; can only reach occasionally overhead with both arms; can
frequently reach in front and laterally to 18 inches; can frequently use ladders, ropes or scaffolds;
can frequently climb ramps or stairs; can frequently crawl; is unlimited for balancing, stooping,
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kneeling and crouching; can perform jobs that were simple and repetitive and required only
occasional contact with supervisors but no contact with the general public; cannot perform quick
movements with his head; and is only able to rotate his head side-to-side up to 45 degrees, but his
whole body can be moved to look side-to-side. (Tr. 16.) It is also important to note that the RFC
is an administrative finding and not a medical decision, and the ALJ’s decision must not be set
aside simply because “[a reviewing court] would have reached a different decision.” Cruz, 244 F.
App’x. at 479 (citing Hartranft, 181 F.3d at 360). The possibility of another ALJ reaching a
different determination from the credible evidence on record is not reason enough for ALJ
Krappa’s decision to be set aside.
Plaintiff also claims that, because his RFC was allegedly improperly constructed, the
hypothetical given to the vocational expert does not include the entirety of his mental disabilities
and therefore does not sufficiently represent his limitations. (Pl.’s Br. at 31.) However, Plaintiff
does not specify which of these additional limitations the ALJ allegedly should have included in
her hypothetical. Similar to the construction of the RFC, the ALJ must only consider credibly
established limitations when constructing the hypothetical presented to the vocational expert.
Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). Here, the ALJ included all of Plaintiff’s
credibly established mental limitations when she presented her hypothetical to the vocational
expert. (Tr. 54.) The ALJ’s hypothetical limited Plaintiff to simple and repetitive tasks that
required only occasional contact with supervisors and no contact with the general public, which
was supported by Dr. Barnett’s credible opinion that Plaintiff had below-average memory and
concentration and would have difficulty coping with stressful situations. (Tr. 54, 325.)

The

vocational expert took into account the credibly established limitations that the ALJ presented in
her hypothetical when determining that a person with Plaintiff’s limitations would be able to

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perform certain jobs that exist in significant numbers in the national economy. Therefore, ALJ
Krappa properly formulated both Plaintiff’s RFC and the hypothetical presented to the vocational
expert.
IV.

CONCLUSION
Because this Court finds that ALJ Krappa’s factual findings are supported by substantial

credible evidence in the record and that her legal conclusions are correct, the Commissioner’s
determination is AFFIRMED.

s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Orig:
cc:

Clerk
Parties

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