LOPEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION. Signed by Chief Judge Jose L. Linares on 11/28/2017. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FRANCES R. LOPEZ,
Civil Action No. 17-1073 (JLL)
Plaintiff,
v.

OPINION

NANCY A. BERRYHILL,
Acting Commissioner of Social Sect tritv,
Defendant.

LINARES, Chief District Judge.

This matter comes before the Court upon the appeal of Frances R. Lopez (“Plaintiff’) from
the final decision of the Commissioner (“Defendant”) upholding Administrative Law Judge
(“AU”) Leonard Olarsch’s denial of Plaintiffs application for disability insurance benefits
(“DIBs”) and supplemental security income (“551”) under Titles II and XVI of the Social Security
Act (“the Act”). The Court resolves this matter on the parties’ briefs pursuant to Local Civil Rule
9.1(f). The Court has reviewed the parties’ submissions, and, for the following reasons, affirms
the AU’s decision.
I.

BACKGROUND’

Plaintiff applied for DIBs and SSI on February 25, 2015, alleging disability as of
September 9, 2011 due to diabetes, high blood pressure, a history of stroke, asthma, and a heart
condition. (R. at 255—64). At the onset of disability, Plaintiff was about 46 years old. (R. at 12).
The New Jersey State Agency denied her claims. (R. at 12). At Plaintiffs request, AU Olarsch

“R.’ refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 9.

held a hearing on April 2, 2015, at which Plaintiff and Tanya M. Edghill, a vocational expert
(“yE”), both testified. (R. at 8 1—141). Later that month, the AU issued a partially favorable
decision finding at step five that, prior to March 16, 2015 (when Plaintiff turned 50 years old),
Plaintiff could perform a range of unskilled, sedentary work that existed in significant numbers in
the national economy and, therefore, Plaintiff was not disabled. (R. at 12—19). The AU further
found that, as of March 16, 2015, there were no jobs in the national economy that Plaintiff could
perform given her age, vocational profile, and residual functional capacity (“RFC”), and therefore
she was disabled and entitled to benefits as of that date. (R. at 12—19). Plaintiff appealed the
AU’s decision and, afier hearing her objections, the Appeals Council denied her request for
review. (R. 1—6). Accordingly, Plaintiff brought the pending action before this Court.
I.

STANDARD OF REVIEW

A reviewing court will uphold the Commissioner’s factual decisions if they are supported
by “substantial evidence.” 42 U.S.C.

§ 405(g), 1383(c)(3); Sykes v. Apfel, 228 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 v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Additionally,
under the Act, disability must be established by objective medical evidence. To this end, “[a]n
individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of
disability as defined in this section.” 42 U.S.C.

§ 423(d)(5)(A). Instead, a finding that one is

disabled requires:
[MJedical signs and findings, 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 and which, when considered with all evidence required to be
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would lead to a conclusion that
furnished under this paragraph.
the individual is under a disability.
.

Id.: 42 U.S.C.

.

§ 1382(a)(3)(A).

Factors to consider in detennining how to weigh evidence from medical sources include:
(1) the examining relationship; (2) the treatment relationship, including the length, frequency,
nature, and extent of the treatment; (3) the supportability of the opinion; (4) its consistency with
the record as a whole; and (5) the specialization of the individual giving the opinion. See 20 C.F.R.

§ 404.1527(c).
The “substantial evidence standard is a deferential standard of review.” Jones, 364 F.3d at
503.

The AU is required to “set forth the reasons for his decision” and not merely make

conclusory unexplained findings. Burnett v. Comm ‘r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000).

But, if the ALl’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 1178, 1 182 (3d Cir. 1992). It does not matter if this Court “acting
de novo might have reached a different conclusion” than the Commissioner. Monsour Med. Ctr.
i’.

Heckler, 806 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.
II.

THE FIVE STEP PROCESS AND THE AU’S DECISION

A claimant’s eligibility for benefits is governed by 42 U.S.C.

§ 1382. Pursuant to the Act,

a claimant is eligible for benefits if he meets the income and resource limitations of 42 U.S.C.

§

1382(a)(1)(A)—(B) and demonstrates that he is disabled based on an “inability to engage in any
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substantial gainful activity by reason of any medically determinable physical or mental impainnent
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C.

§ 423(d)(l)(A). A person is disabled

only if his physical or mental impairment(s) are “of such severity that he is not only unable to do
his previous work, but cannot, considering his age, education, and work experience, engage in any
other kind of work which exists in the national economy.” 42 U.S.C.

§ 423(d)(2)(A).

The Third circuit has summarized “the five step sequential evaluation for determining
whether a claimant is under a disability, as set forth in 20 C.F.R.

§ 404.1520” as follows:

In Step One, the Commissioner must determine whether the claimant is currently
engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a). If a claimant is
found to be engaged in substantial activity, the disability claim will be denied.
Bowen e. Yttckert, 482 U.S. 137, 140 (1987).
In Step Two, the Commissioner must determine whether the claimant is suffering
from a severe impairment. 20 C.F.R. § 404.1520(c). If the claimant fails to show
that her impairments are “severe,” she is ineligible for disability benefits.
In Step Three, the Commissioner compares the medical evidence of the claimant’s
impainnent to a list of impairnients presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not suffer from a listed
impainnent or its equivalent, the analysis proceeds to steps four and five.
Step Four requires the AU to consider whether the claimant retains the residual
functional capacity [(“RFC”)] to perform her past relevant work. 20 C.F.R. §
404.1520(d). The claimant bears the burden of demonstrating an inability to return
to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994).
If the claimant is unable to resume her fonTler occupation, the evaluation moves to
the final step [(Step_Five)1. At this stage, the burden of production shifts to the
Commissioner, who must demonstrate the claimant is capable of performing other
available work in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The
AU must show there are other jobs existing in significant numbers in the national
economy which the claimant can perform, consistent with her medical impairments,
age, education, past work experience, and residual functional capacity. The AU
must analyze the cumulative effect of all the claimant’s impairments in detennining
whether she is capable of performing work and is not disabled.
Jones, 364 F.3d at 118—19 (formatting and emphasis added).

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“The claimant bears the burden of proof for steps one, two, and four of this test. The
Commissioner bears the burden of proof for the last step.” Sykes, 228 F.3d at 263 (citing Bowen,
482 U.S. at 146 n. 5). Neitherpartybears the burden of proof at step three. Id. at 263 n.2.
The AU engaged in the above five-step sequential evaluation and found: for Step One,
that Plaintiff has not engaged in substantial gainful activity since the alleged onset date, (R. at 14);
for Step Two, that Plaintiff has the severe impairments of diabetes mellitus, visual disturbance,
asthma, and status post stroke, (R. at 14); for Step Three, that none of Plaintiffs impairments meets
or medically equals the severity of one of the listed impainTlents in 20 CFR Part 404, Sub. P,
App’x. 1, (R. at 15); for RFC, Plaintiff has the RFC to perform sedentary work with occasional
postural maneuvers, frequent reaching overhead and gross handling with the left hand, no
dangerous machinery, no unprotected heights, frequent near/far visual acuity, and being off-task
up to 10% of the time, (R. at 15); for Step Four, Plaintiff has been unable to perform any past
relevant work, (R. at 17); and, for Step Five, that, prior to March 16, 2015, there were jobs that
existed in significant numbers in the national economy that Plaintiff could perform but, after March
16, 2015, there were no jobs in the national economy that Plaintiff could perform given her age
category change to an individual closely approaching advanced age, (R. at 17—18).
At Step Five, the AU heard the testimony of a VE. (R. at 119). The AU asked the VE
what jobs a hypothetical person of Plaintiffs age, education, and work experience could perfonm
(R. at 122). The AU added that such a person could perform sedentary work with occasional
postural maneuvers, frequent bilateral overhead reaching, and no exposure to dangerous machinery
or unprotected heights. (R. at 122). The VE responded that such a person could perform the jobs
of a compact assembler, preparer, and envelope addresser, which existed in significant numbers in
the national economy, considering these jobs required frequent, but not constant, use of the upper

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extremities. (R. at 122, 125). The VE then confirmed that such a hypothetical person could
perfonn these jobs even with the added limitation of being off task up to 10% of the work day. (R.
at 138). Based on this testimony as well as other evidence in the record, the AU issued a partially
favorable decision and concluded that, prior to March 16, 2015, Plaintiff was not disabled, but
after March 16, 2015, Plaintiff was disabled. (R. at 18). Plaintiff brought this appeal to challenge
the AU’s findings at Steps Two, Three, Five, and the RFC determination. (See ECF No. 15 (“Pl.’s
Br.”) at 11).
III.

DISCUSSION
A. Step Two
At Step Two, Plaintiff argues that the AU’s decision failed to consider her severe

conditions of disc disease, arthritic knee. uncontrolled hypertension, and coronary artery disease.
(Pl.’s Br. at 23). With regard to Plaintiffs conditions, the AU only found Plaintiffs diabetes
mellitus, visual disturbance, asthma, and status post stroke to qualify as severe impairments. (R.
at 14). However, even if the AU erred with respect to one of the impairments that he found to be
non-severe, such error would be harmless as long as he found other impairments to be severe,
engaged in the full five-step evaluation, and accounted for related possible limitations in his RFC
finding. See Sal/es v. Comm ‘r of Soc. Sec., 229 F. App’x 140, 145 (3d Cir. 2007) (“Because the
AU found in Salles’ favor at Step Two, even if he had erroneously concluded that some of her
other impairments were non-severe, any error was harmless.”) (citing Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005)). Here, the AU found in Plaintiffs favor at Step Two when he ruled
that her diabetes mellitus, visual disturbance, asthma, and status post stroke were severe
impairments. (R. at 14). The AU then went on to engage in the full five step analysis. (R. at 14—
19). Accordingly, even if the AU erred in not finding Plaintiffs other conditions to be severe

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impairments, such error is at most harmless and, therefore, the Court uphoLds the AU’s Step Two
determination.
B. Step Three

Plaintiff attacks the AU’s Step Three determination on two grounds: (1) the AU failed to
consider listing 1 .04A and (2) the AU

improperly discredited Plaintiffs subjective pain

complaints. (P1’s Br. at 22, 32).
1. The AU’s Evaluation of Listed Impairments
Plaintiff argues that the AU’s Step Three determination failed to discuss listing 1 .04A
(spinal disorder). (Pl.’s Br. at 22). Listing 1.04A requires a disorder of the spine resulting in
compromise of a nerve root or the spinal cord, with evidence of nerve root compression
accompanied by sensory or reflex loss. 20 C.F.R. pt. 404, subpt. P., app. 1,

§ l.04A. At Step

Three, the ALl is not required to use particular language in conducting his analysis, so long as he
or she provides sufficient analysis “to permit meaningful review” by this Court. Jones, 364 F.3d
at 505; see also Scttderi v. Comm ‘r of Soc. Sec., 302 F. App’x 88, 90 (3d Circ. 2008) (“[Am AU
need not specifically mention any of the listed impairments in order to make ajudicially reviewable
finding.

.

.

.“).

furthermore, a plaintiff must show that all, not merely some, of the criteria for a

listing have been met in order for the plaintiff to medically equal that listing. See Sullivan v.

Zebley, 493 U.S. 521, 530 (1990).
In this case, the ALl’s Step Three determination permitted meaningful review because the
AU directly discussed Plaintiffs severe impainTlents of diabetes and the conditions associated
with her stroke. (R. at 15). As for listing 1.04A, the Court notes that, although Plaintiffs 2014
MRI of the cervical and lumbar spine showed disc hemiation, (R. at 464), the record only shows
intermittent complaints of back pain with no evidence of nerve root compression characterized by

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motor loss, (R. at 3 60—66). In fact, the medical evidence showed normal muscle strength and tone.
(R. at 461). Therefore, the AU was not required to discuss listing 1.04A because Plaintiff did not
show that all of the criteria for that listing had been met. See Sttllivan, 493 U.S. at 530.
2. The AU’s Evaluation of Plaintiffs Subjective Pain Complaints
Plaintiff further argues that the AU wrongfully discredited Plaintiffs subjective pain
complaints without properly explaining his reasoning. (Pl.’s Br. at 32). The AU has discretion
to evaluate Plaintiffs credibility and render an independent judgment in light of the medical
findings and other evidence regarding the true extent of the alleged symptoms. Malloy v. Comm ‘r
ofSoc. Sec., 306 F. App’x. 761, 765 (3d Cir. 2009) (“Credibility detenninations as to a claimant’s
testimony, regarding pain and other subjective complaints are for the AU to make.”) (citing Van
Horn v. Schweiker. 717 f.2d $71, $73 (3d Cir. 1983)).

Here, the AU found that Plaintiffs

impairments could reasonably be expected to cause the alleged symptoms but further stated that
Plaintiffs “statements concerning the intensity, persistence and limiting effects of these symptoms
are not entirely credible for the reasons explained in this opinion.” (R. at 17).
The AU accounted for Plaintiffs complaints and, when he did not account for Plaintiffs
complaints, he explained why Plaintiffs complaints were not supported by the medical evidence
provided by Plaintiffs treating physicians. (R. at 16). For example, the AU found Plaintiffs
lower back pain to be partially credible because it was supported by x-rays and MRIs indicated
hemiation but that the severity of the herniation was minor.

(R. at 16).

complaints of lower back pain were supported by the record, the AU

When Plaintiffs

accounted for such

complaints when he recognized Plaintiff would be limited to sedentary work with occasional
postural maneuvers. See Sim,nonds v. Heckler, 807 F.2d 54, 58 (3d Cir.1986) (holding that the
AU accorded due weight to assertions of pain when, after refusing to find total disability, he

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credited them to the extent that the claimant would be able to perform work only at a sedentary
exertional level).

Based on the record, the AU provided substantial evidence in analyzing

Plaintiffs subjective pain complaints. Therefore, the Court rejects both of Plaintiffs arguments
and affirms the AU’s Step Three determination.
C. RFC Finding

The AU found that Plaintiff had an RFC of sedentary work with several additional
limitations including occasional posture maneuvers, frequent gross handling with the left hand,
and being off task up to 10% of the work day. (R. at 15). Without discussion, Plaintiff attacks the
AU’s RFC finding for failing to correspond with her severe impainTients. (Pl.’s Br. at 25—30).
However, an AU’s RFC finding need only account for Plaintiffs “credibly-established
limitations,” which the AU did in this case. See Rtttherford, 399 f.3d at 554. As discussed above,
Plaintiffs established impairments are her diabetes mellitus. visual disturbance, asthma, and status
post stroke. (R. at 14). The AU considered Plaintiffs diabetes mellitus when he limited Plaintiff
to sedentary work with only occasional postural maneuvers and frequent overhead reaching. (R.
at 15). Furthermore, the AU accounted for Plaintiffs history of stroke when he limited Plaintiff
to frequent—rather than constant—gross handling with the left hand and no exposure to dangerous
machinery or heights. (R. at 15). This finding was consistent with Plaintiffs testimony that she
experienced tingling in her left hand but that her right hand was better. (R. at 89, 105). finally,
the AU accounted for Plaintiffs vision and asthma when he limited Plaintiff to being off task up
to 10% of the work day. (R. at 15). Based on the record, the Court concludes that the AU
sufficiently accounted for all of Plaintiffs credibly established limitations.
Plaintiff further argues that the AUJ’s RfC finding failed to explain the evidence that the
AU relied upon in reaching his decision. (Pl.’s Br. at 25—30). It is well established that an AU

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is not required “to adhere to any set format for explaining his [or her] analysis so long as there is
‘sufficient development of the record and explanation of findings to permit meaningful judicial
review.” Garrett v. Comm ‘r of Soc. Sec., 274 F. App’x. 159, 162—63 (3d Cir. 2008) (quoting
Jones, 364 F.3d at 505). The Court concludes that the AU based his RFC determination on

substantial evidence because he relied on the medical information provided in the record. (R. at
15—16).

Specifically, the AU’s RFC finding cited to MRIs and treating physician opinions

provided by Plaintiff to conclude that Plaintiff has “a history of poorly-controlled diabetes with
neuropathy and hypertension, however with medication and treatment compliance, as well as.
asthma.” (R. at 15). The AU relied on this evidence to further conclude that Plaintiff “is insulin
dependent and has a history of cardiovascular accident with attendant vision,” as well as having
overall weakness in her left hand. (R. at 16). Considering the AU accounted for Plaintiffs
established limitations and based his decision on substantial evidence in the record, the Court
affirms the AU’s Rf C finding.
D. Step Five

At Step Five, the AU must consider the plaintiffs RFC, age, education, and work
experience in conjunction with the Medical-Vocational Guidelines (“the Guidelines”) to determine
if Plaintiff can perform other work in the national economy. 20 CFR

§ 404 subpt. P, app. 2. Age

is a relevant factor for this determination and is divided into three categories: younger person
(under age 50), person closely approaching advanced age (age 50 to 54), and persons of advance
age (age 55 or older). 20 C.F.R.

§ 404.1563(b), 416.963(b). The regulations further state that

the AUJ “will not apply the age categories mechanically in a borderline situation” and instead “if
you are within a few days or a few months of reaching an older age category, and using the older
age category would result in a determination or decision that you are disabled, [the agency] will

10

consider whether to use the older age category after evaluating the overall impact of all the factors
of your case.” Id.
Plaintiffs final argument is that she falls within a borderline age situation and that the AU
improperly applied the Guidelines in a mechanical fashion to find that she was not disabled before
she reached age 50. (Pl.’s Br. at 34—36). However, consistent with the regulations, the AU relied
on the VE’s testimony, and not the Guidelines, to find that Plaintiff was not disabled prior to
reaching age 50. (R. at 17—1 8). Specifically, the AU questioned the VE to determine “the extent
to which [Plaintiffs] limitations eroded the unskilled sedentary occupational base.” (R. at 18). In
response to the AU’s questions, the VE stated that a hypothetical person of plaintiffs age,
education, and work experience could perform the jobs of a compact assembler, preparer, and
envelope addresser, which existed in significant numbers in the national economy. (R. at 122).
This conclusion included Plaintiffs limitations ofperforming only sedentary work with occasional
postural maneuvers, frequent bilateral overhead reaching, and no exposure to dangerous machinery
or unprotected heights.2 (R. at 122). Therefore, the Court finds that the AU’s determination was
based on the VE’s testimony and not a “mechanical application of the Guidelines.” In fact, the
AU only relied on the Guidelines to find in Plaintiffs favor that she was disabled after reaching
age 50. (R. at 18). Accordingly, the Court affirms the AU’s Step Five determination.

2

The Court finds that the Vi’s testimony provided substantial evidence for the AUs determination, because the
Vi’s answers were based on Plaintiffs RFC, which incorporated her established disabilities of diabetes mellitus,
visual disturbance, asthma, and status post stroke, as well as being consistent with the Dictionary of Occupational
Titles. See Chrtipcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (“A hypothetical question must reflect all of
a claimant’s impairments that are supported by the record; otherwise the question is deficient and the expert’s answer
to it cannot be considered substantial evidence.”); see also Rutherford, 399 f.3d at 554 (stating that an AU’s
hypothetical question need not include “every impairment alleged by a claimant,” but only those that are “medically
established.”).

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IV.

CONCLUSION

For the foregoing reasons, the Court affirms the AU’s decision. An appropriate Order
follows this Opinion.

Dated: November

7

LI11(RES
JO
edge, United States District Court

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