MC KEE v. COMMISSIONER OF SOCIAL SECURITY

Filing 25

OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 10/6/2020. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ELIZABETH MC KEE,
Plaintiff,
Case No. 2:18-cv-191
Magistrate Judge Norah McCann King

v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

OPINION AND ORDER
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Elizabeth Mc Kee for
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.,
and for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381 et seq. Plaintiff appeals from the final decision of the Commissioner of Social Security
denying Plaintiff’s application. 1 After careful consideration of the entire record, including the
entire administrative record, the Court decides this matter pursuant to Rule 78(b) of the Federal
Rules of Civil Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court
affirms the Commissioner’s decision.
I.

PROCEDURAL HISTORY
On June 10, 2014, Plaintiff filed applications for disability insurance benefits and

supplemental security income on, alleging that she has been disabled since May 15, 2012. R.
204–18. Plaintiff’s applications were denied initially and upon reconsideration. R. 81–138, 144–

Andrew Saul, the current Commissioner of Social Security, is substituted as Defendant in his
official capacity.
1

1

49. Plaintiff sought a de novo hearing before an administrative law judge. R. 150–52.
Administrative Law Judge Douglass Alvarado (“ALJ”) held a hearing on December 30, 2016, at
which Plaintiff, who was represented by counsel, appeared and testified, as did a vocational
expert. R. 31–80. In a decision dated March 6, 2017, the ALJ concluded that Plaintiff was not
disabled within the meaning of the Social Security Act from May 15, 2012, Plaintiff’s alleged
disability onset date, through the date of that decision. R. 15–30. That decision became the final
decision of the Commissioner of Social Security when the Appeals Council declined review on
November 21, 2017. R. 1–6. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g).
ECF No. 1. On April 16, 2018, Plaintiff consented to disposition of the matter by a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. ECF No. ECF No. 7. 2 On March 11, 2020, the case was reassigned to the
undersigned. ECF No. 24. The matter is now ripe for disposition.
II.

LEGAL STANDARD
A.

Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). 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

2

The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
2

(1988) (citation and internal quotations omitted); see K.K. ex rel. K.S. v. Comm’r of Soc. Sec.,
No. 17-2309 , 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018). 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) (citations and quotations omitted); see K.K., 2018
WL 1509091, at *4.
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists

3

only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although the ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter, 650 F.2d at 482. Absent such articulation, the Court
“cannot tell if significant probative evidence was not credited or simply ignored.” Id. at 705. As
the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial evidence approaches an abdication of the court’s duty to

4

scrutinize the record as a whole to determine whether the conclusions reached are
rational.
Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). 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, 745 F.2d at 221-22 (citation and quotation
omitted); see A.B., 166 F. Supp.3d at 518. In assessing whether the record is fully developed to
support an award of benefits, courts take a more liberal approach when the claimant has already
faced long processing delays. See, e.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). An
award is “especially appropriate when “further administrative proceedings would simply prolong
[Plaintiff’s] waiting and delay his ultimate receipt of benefits.” Podedworny, 745 F.2d at 223;
see Schonewolf, 972 F. Supp. at 290.
B.

Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation for determining
whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §§ 404.1520(a)(4),
5

416.920(a)(4). “The claimant bears the burden of proof at steps one through four, and the
Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d
632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, then the inquiry ends because the
plaintiff is not disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the plaintiff does not
have a severe impairment or combination of impairments, then the inquiry ends because the
plaintiff is not disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §§
404.1520(d), 416.920(d). If so, then the plaintiff is presumed to be disabled if the impairment or
combination of impairments has lasted or is expected to last for a continuous period of at least 12
months. Id. at §§ 404.1509, 416.909. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. §§ 404.1520(e),
(f), 416.920(e), (f). If the plaintiff can perform past relevant work, then the inquiry ends because
the plaintiff is not disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in

6

the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g). If the ALJ determines that the
plaintiff can do so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be
disabled if the impairment or combination of impairments has lasted or is expected to last for a
continuous period of at least twelve months.
III.

ALJ DECISION AND APPELLATE ISSUES
The Plaintiff was 26 years old on her alleged disability onset date. R. 25. Plaintiff met

the insured status requirements of the Social Security Act through December 31, 2018. R. 17.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since
May 15, 2012, her alleged disability onset date. Id.
At step two, the ALJ found that Plaintiff suffers from the following severe impairments:
autism spectrum disorder, intellectual disability, and anxiety disorder. Id. The ALJ also found
that Plaintiff’s obesity was not severe. R. 18.
At step three, the ALJ found that Plaintiff does not suffer an impairment or
combination of impairments that meets or medically equals the severity of any Listing. R. 18–
21.
At step four, the ALJ found that Plaintiff has the RFC to perform a full range of work
at all exertional levels subject to various non-exertional limitations. R. 21.
At step five, the ALJ found that a significant number of jobs—i.e., approximately
150,000 jobs as a labeler; approximately 60,000 jobs as a microfilm mounter; approximately
120,000 jobs as a ticketer—existed in the national economy and could be performed by an
individual with Plaintiff’s vocational profile and RFC. R. 26. The ALJ therefore concluded
that Plaintiff was not disabled within the meaning of the Social Security Act from May 15,
2012, her alleged disability onset date, through the date of his decision. R. 26.

7

Plaintiff disagrees with the ALJ’s findings at steps two through five and asks that the
decision of the Commissioner be reversed and remanded with directions for the granting of
benefits or, alternatively, for further proceedings. Plaintiff’s Memorandum of Law, ECF No.
18; Plaintiff’s Reply, ECF No. 23. The Commissioner takes the position that his decision
should be affirmed in its entirety because the ALJ’s decision correctly applied the governing
legal standards, reflected consideration of the entire record, and was supported by sufficient
explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF
No. 22.
IV.

DISCUSSION
A.

Listing 12.05B

The record contains certain school records. R. 328–45, 410–452. On June 10, 2002,
when Plaintiff was 16 years old, she underwent a psychological evaluation. R. 431. On the
Wechsler Intelligence Scale for Children (“WISC”), Plaintiff achieved a verbal IQ score of 71, a
performance IQ score of 64, and a full scale IQ score of 65. R. 333, 415, 431.
On January 10, 2008, when Plaintiff was 22 years old, Anthony J. Candela, Ph.D.,
A.B.P.N., administered the Wechsler Adult Intelligence Scale-III (“WAIS-III”), R. 368, on
which Plaintiff achieved a verbal IQ score of 75, a performance IQ score of 85, and a full scale
IQ score of 78. R. 369. Dr. Candela noted that Plaintiff’s “scores place her well within the
borderline to low average range of intellectual functioning. She is clearly learning disabled. Her
reading comprehension and her word usage is somewhat lower on the intelligence scale that was
on the reading test. The indication here is that she does have some trouble with comprehension.”
Id.

8

Plaintiff argues that the ALJ erred at step three of the sequential evaluation when he
concluded that Plaintiff’s impairments neither meet nor equal Listing 12.05, which, at the time of
the ALJ’s decision, addressed intellectual disorders. Plaintiff’s Memorandum of Law, ECF No.
18, pp. 17–20; Plaintiff’s Reply, ECF No. 23, pp. 3–4. Plaintiff specifically contends that the
ALJ erred in concluding, inter alia, that Plaintiff does not suffer significantly subaverage general
intellectual functioning. Id. This Court disagrees.
An impairment meets a listed impairment if it satisfies “‘all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter how severely,
does not qualify.’” Jones, 364 F.3d at 504 (quoting Sullivan v. Zebley, 493 U.S. 521, 530
(1990)) (emphasis in original). Moreover, “[a] claimant cannot qualify for benefits under the
‘equivalence’ step by showing that the overall functional impact of his unlisted impairment or
combination of impairments is as severe as that of a listed impairment.” Zebley, at 531
(emphasis added). “[T]he medical criteria defining the listed impairments [are set] at a higher
level of severity than the statutory standard” because the “listings define impairments that
would prevent an adult, regardless of his age, education, or work experience, from performing
any gainful activity, not just ‘substantial gainful activity.’” Id. at 532 (emphasis in original)
(quoting 20 C.F.R. § 416.925(a)).
At the time of the ALJ’s decision, i.e., March 6, 2017, Listing 12.05 provided as
follows:
12.05 Intellectual disorder (see 12.00B4), satisfied by A or B:
A. Satisfied by 1, 2, and 3 (see 12.00H):
1. Significantly subaverage general intellectual functioning evident in your
cognitive inability to function at a level required to participate in standardized
testing of intellectual functioning; and

9

2. Significant deficits in adaptive functioning currently manifested by your
dependence upon others for personal needs (for example, toileting, eating, dressing,
or bathing); and
3. The evidence about your current intellectual and adaptive functioning and about
the history of your disorder demonstrates or supports the conclusion that the
disorder began prior to your attainment of age 22.
OR
B. Satisfied by 1, 2, and 3 (see 12.00H):
1. Significantly subaverage general intellectual functioning evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an individually
administered standardized test of general intelligence; or
b. A full scale (or comparable) IQ score of 71–75 accompanied by a verbal or
performance IQ score (or comparable part score) of 70 or below on an individually
administered standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently manifested by extreme
limitation of one, or marked limitation of two, of the following areas of mental
functioning:
a. Understand, remember, or apply information (see 12.00E1); or
b. Interact with others (see 12.00E2); or
c. Concentrate, persist, or maintain pace (see 12.00E3); or
d. Adapt or manage oneself (see 12.00E4); and
3. The evidence about your current intellectual and adaptive functioning and about
the history of your disorder demonstrates or supports the conclusion that the
disorder began prior to your attainment of age 22.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (2017).
Here, the ALJ found that Plaintiff did not meet Listing 12.05, reasoning as follows:
The claimant does not meet listing 12.05 because the record does not demonstrate
that the claimant has significantly subaverage general intellectual functioning
evident in your cognitive inability to function at a level required to participate in
standardized testing of intellectual functioning; and significant deficits in adaptive
functioning currently manifested by your dependence upon others for personal
10

needs (for example, toileting, eating, dressing, or bathing); and the evidence about
the claimant’s current intellectual and adaptive functioning and about the history of
your disorder demonstrates or supports the conclusion that the disorder began prior
to your attainment of age 22. The evidence does not demonstrate that the claimant
has significantly subaverage general intellectual functioning evidenced by: a) a full
scale (or comparable) IQ score of 70 or below on an individually administered
standardized test of general intelligence; or b) a full scale (or comparable) IQ score
of 71-75 accompanied by a verbal or performance IQ score (or comparable part
score) of 70 or below on an individually administered standardized test of general
intelligence; and significant deficits in adaptive functioning currently manifested
by extreme limitation of one, or marked limitation of two, of the following areas of
mental functioning: a) understand, remember, or apply information (see 12.00EI);
or h) interact with others (see 12.00E2); or c) concentrate, persist, or maintain pace
(see 12.00E3); or d) adapt or manage oneself (see 12.00E4); and the evidence about
the claimant’s current intellectual and adaptive functioning and about the history of
the claimant’s disorder demonstrates or supports the conclusion that the disorder
began prior to attainment of age 22.
R. 18–19 (emphasis in original). In making this finding, the ALJ expressly referred to only
Plaintiff’s 2008 WAIS scores, not to her 2002 WISC scores; however, the ALJ went on to find
that Plaintiff did not meet Listing 12.05B because she had only moderate limitations in the four
broad areas of functioning:
In understanding, remembering, or applying information, the claimant has
moderate limitations. It was felt that regular education classes would produce high
anxiety levels due to faster pace and a more challenging workload. However,
special education classes provided direct individualized instruction with low
teacher/pupil ratio within a smaller classroom setting (Exhibit 13E, p. 10). On the
WAIS-III intelligence test, the claimant obtained a verbal IQ score of 75, a
performance IQ score of 85 and a full-scale IQ score of 78, placing her well within
the borderline to low average of intellectual functioning (Exhibit 1F, p. 3). The
claimant followed directions well and she worked to the best of her ability (Exhibit
7F, p. 2). The claimant enjoyed music and she played piano and clarinet (Exhibit
7F, p. 5).
In interacting with others, the claimant has moderate limitations. School records
show that while the claimant is personable, she had some difficulty relating to her
peers. She learned to advocate for herself and she was respectful to peers and staff
(Exhibit 13E, p. 4). The claimant reported that she had a couple of friends, she spent
time watching movies, goes to the mall and takes walks with her friends. She also
reported having a “sort of boyfriend” (Exhibit 2F, p. 3). The claimant had obvious
social difficulties, which made her an easy target for other students. She tended not
to reach out to join activities in the school (Exhibit 7F, p. 3).
11

With regard to concentrating, persisting, or maintaining pace, the claimant has
moderate limitations. Her perceptual reasoning index was 75, indicating borderline
functioning in this domain. Working memory subtests were uniformly borderline
and processing speed was low average. Her greatest strength was in the area of
daily living skills, where she was noted to demonstrate fairly good self-care skills
(Exhibit 3F, p. 2). The claimant followed school rules, she was respectful of
authority and she learned to advocate for her own needs (Exhibit 7F, p. 3).
As for adapting or managing oneself, the claimant has experienced moderate
limitations. The claimant worked part-time, 20-hours a week and she was capable
of assisting with household chores, shop with assistance and use a microwave
(testimony). School records shows that she consistently completed classwork and
homework. The claimant followed school rules, and she had good self-concept, hut
her self-esteem needed some improvement. She consistently needed reassurance
(Exhibit 13E, p. 4). The claimant reported that she helped her grandmother, she was
independent in dressing and she goes to the gym (Exhibit 2F, p. 3).
Because the claimant’s mental impairments do not cause at least two “marked”
limitations or one “extreme” limitation, the “paragraph B” criteria are not satisfied.
R. 19–20.
Plaintiff disagrees with the ALJ’s analysis, apparently contending that her medical and
school records and qualifying WISC scores establish the requirements of Listing 12.05B. R. 333,
415, 431; Plaintiff’s Memorandum of Law, ECF No. 18, pp. 17–20; Plaintiff’s Reply, ECF No.
23, pp. 3–4. 3 In opposing Plaintiff’s argument in this regard, the Commissioner argues that
substantial evidence supports the ALJ’s finding that Plaintiff had no more than moderate
limitations in all four broad functional areas and that she therefore does not meet the
requirements of Listing 12.05B. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 22,
pp. 17–19. Defendant’s arguments are well taken.
As set forth above, Plaintiff’s WISC scores—i.e., verbal IQ score of 71, performance IQ
score of 64, and full scale IQ score of 65—meet the first criterion of Listing 12.05B. See 20

3

Plaintiff does not argue that she meets Listing 12.05A.
12

C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05B.1 (2017) (requiring a full scale (or comparable) IQ
score of 70 or below on an individually administered standardized test of general intelligence;
or a full scale (or comparable) IQ score of 71–75 accompanied by a verbal or performance IQ
score (or comparable part score) of 70 or below). IQ scores are generally presumed to be “an
accurate reflection of . . . [the claimant’s] general intellectual functioning, unless evidence in
the record suggests otherwise.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00H.2.d (2017); see
also id. at § 112.00H.2.d (same). Accordingly, although “an ALJ may reject scores that are
inconsistent with the record[,]” the ALJ must “provide a basis for that rejection.” Markle v.
Barnhart, 324 F.3d 182, 187 (3d Cir. 2003); see also Morales v. Apfel, 225 F.3d 310, 318 (3d
Cir. 2000) (“An ALJ cannot reject IQ scores based on personal observations of the claimant
and speculative inferences drawn from the record.”).
Here, as previously noted, the ALJ did not discuss or refer to Plaintiff’s WISC scores at
step three when determining whether Plaintiff’s cognitive impairment meets the requirements
of Listing 12.05. However, it is clear that the ALJ was aware of those scores, because the ALJ
expressly referred to Plaintiff’s WISC scores at step four:
School records show that while the claimant was performing on grade level in math,
she was performing below grade level in Language Arts, Reading, Writing, Science
and Social Studies. The claimant had a strong work ethic and she consistently
completed homework and classwork (Exhibit 13E, p. 4). Intelligence testing show
the claimant had a full scale IQ of 65 and a performance IQ of 64. Her English
proficiency did not affect classroom performance and she showed an interest in
music and computers (Exhibit 13E, p. 6). It was felt that regular education classes
would produce high anxiety levels due to faster pace and a more challenging
workload. However, special education classes provided direct individualized
instruction with low teacher/pupil ratio within a smaller classroom setting (Exhibit
13E, p. 10).
R. 22. Although the ALJ did not explicitly discuss the validity of Plaintiff’s WISC scores or
expressly reject them, see Markle, 324 F.3d at 187; Morales, 225 F.3d at 318, any such error in

13

this regard was harmless. The ALJ went on to find that Plaintiff’s impairment failed to satisfy
the requirements of Listing 12.05B.2, which requires, in addition to a qualifying IQ score under
Listing 12.05B.1, at least one extreme limitation in a broad area of functioning or two marked
limitations in the broad areas of functioning. Plaintiff fails to explain how the ALJ’s failure to
mention her WISC IQ scores at step three harmed Plaintiff or how consideration of those scores
at step three when analyzing the 12.05B.2 requirements would have changed the outcome of
this case. See Plaintiff’s Memorandum of Law, ECF No. 18, pp. 17–18; Plaintiff’s Reply, ECF
No. 23, pp. 3–4. Accordingly, any error on the part of the ALJ in this regard was harmless and
does not require remand. See Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009) (“[T]he burden
of showing that an error is harmful normally falls upon the party attacking the agency’s
determination. . . . [T]he party seeking reversal normally must explain why the erroneous ruling
caused harm.”); Rutherford, 399 F.3d at 553 (finding that “a remand is not required here
because it would not affect the outcome of the case”).
Moreover, substantial evidence supports the ALJ’s conclusion that Plaintiff has no more
than moderate limitations in the four broad areas of functioning and that she therefore does not
satisfy the requirements of Listing 12.05B.2. R. 19–20. In making this finding, the ALJ
considered, inter alia, Plaintiff’s WAIS scores that reflect borderline to low average intellectual
functioning; ability to follow directions well; working to the best of her ability; ability to play
piano and clarinet; ability to advocate for herself; respectful to peers and school staff; having
friends; engaging in daily life activities such as watching movies, going to the mall, taking walks
with friends; having a “sort of boyfriend;” a perceptual reasoning index of 75, indicating
borderline functioning; uniformly borderline working memory subtests; low average processing
speed; fairly good self-care skills; followed school rules; respectful of authority; worked twenty

14

hours per week; capable of assisting with household chores; able to show with assistance; able to
use a microwave; consistently completed classwork and homework; able to help her
grandmother; and dressing independently. R. 20.
In challenging the ALJ’s finding on this point, Plaintiff simply recounts evidence from
Jeffrey M. Stone, Ph.D., Steven Yalkowsky, Ph.D., and James Agresti, D.O., none of whom
specifically opined that Plaintiff had a marked or extreme limitation in any broad area of
functioning. Plaintiff’s Memorandum of Law, ECF No. 18, pp. 17–18 (citing R. 375–377, 380,
390–91, 394–409); Plaintiff’s Reply, ECF No. 23, pp. 3–4 (same). Dr. Stone, an examining
psychologist, opined that Plaintiff was unlikely to become gainfully employed, support herself
financially, or live on her own. R. 376. However, the ALJ specifically considered this evidence
and did not give it controlling weight because Plaintiff’s employability is an issue reserved to the
Commissioner. R. 24; see also Louis v. Comm’r Soc. Sec., 808 F. App’x 114, 118 (3d Cir. 2020)
(“Whether or not Louis can perform occupational duties is a legal determination reserved for the
Commissioner.”) (citing 20 C.F.R. § 404.1527(d)); Zonak v. Comm’r of Soc. Sec., 290 F. App’x
493, 497 (3d Cir. 2008) (“[T]he ALJ was not obligated to give significant weight to Dr. Kumar’s
opinion as to Zonak’s ability to work because the opinion related to the ultimate issue of
disability—an issue reserved exclusively to the Commissioner.”). Plaintiff also cites Dr. Stone’s
finding that, according to the Vineland Adaptive Behavior Scales 2nd Edition (“Vineland II”),
Plaintiff’s “‘communication, socialization, and gross and fine motor skills are markedly
deficient.’” Plaintiff’s Memorandum of Law, ECF No. 18, p. 19 (quoting R. 376); Plaintiff’s
Reply, ECF No. 23, p. 3 (same). However, Plaintiff does not explain how this evidence translates
into a marked or extreme limitation in any of the broad areas of functioning referred to in Listing
12.05B.2. See id. The Court will not construct Plaintiff’s arguments for her. See Padgett v.

15

Comm’r of Soc. Sec., No. CV 16-9441, 2018 WL 1399307, at *2 (D.N.J. Mar. 20, 2018)
(“[B]ecause Plaintiff has articulated no analysis of the evidence, the Court does not understand
what argument Plaintiff has made here. Plaintiff has done no more than thrown down a few
pieces of an unknown jigsaw puzzle and left it to the Court to put them together. The Court does
not assemble arguments for a party from fragments.”). In any event, the Court “will uphold the
ALJ’s decision even if there is contrary evidence that would justify the opposite conclusion, as
long as the ‘substantial evidence’ standard is satisfied.” Johnson v. Comm’r of Soc. Sec., 497 F.
App’x 199, 201 (3d Cir. 2012) (citing Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986)); see
also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (“Courts are not
permitted to reweigh the evidence or impose their own factual determinations [under the
substantial evidence standard].”).
Plaintiff also cites Dr. Yalkowsky’s statement that “‘[g]iven the likelihood of global
cognitive deficits, it is believed [Plaintiff] would require some advocacy from a responsible adult
in her life to effectively manage her benefits if granted. Perhaps this intervention could be
provided by her mother with whom she lives.’” Plaintiff’s Memorandum of Law, ECF No. 18, p.
19 (quoting R. 380); Plaintiff’s Reply, ECF No. 23, p. 4 (same).However, Plaintiff again fails to
explain how this statement translates into an extreme or marked limitation in any identified broad
area of functioning, as required by Listing 12.05B.2. See id. The Court cannot and will not
speculate as to why this statement establishes that Plaintiff meets any requirement under Listing
12.05B.2. See Padgett, 2018 WL 1399307, at *2.
Plaintiff also refers to Dr. Agresti’s treatment notes, including an August 9, 2013, note
stating that Plaintiff has cognitive, motor, language, social/emotional delays. and other records
indicating that Plaintiff has been treated for anxiety and panic attacks for which she took

16

medication, and that “[t]he impression was panic attacks but probably depressive disorder.”
Plaintiff’s Memorandum of Law, ECF No. 18, p. 19 (citing R. 390–91, 394–409); Plaintiff’s
Reply, ECF No. 23, p. 4 (same). However, Plaintiff again fails to explain how this evidence
establishes that she has an extreme or marked limitation in a broad area of functioning. Id.; see
also Padgett, 2018 WL 1399307, at *2. In any event, the ALJ specifically took Dr. Agresti’s
records into consideration, but also noted that Plaintiff no longer took medication for anxiety and
that the record did not reflect any further treatment for anxiety. R. 23. 4
For all these reasons, this Court concludes that the ALJ’s finding that Plaintiff does not
meet the requirements of Listing 12.05 enjoys substantial support in the record.
B.

Obesity

Plaintiff also argues that the ALJ erred when he found Plaintiff’s obesity to be non-severe
at step two of the sequential evaluation and failed to properly evaluate her obesity in accordance
with SSR 02-1p. Plaintiff’s Memorandum of Law, ECF No. 18, at 19–21; Plaintiff’s Reply, ECF
No. 23, p. 4. Plaintiff’s argument is not well taken.
Although obesity was removed as a “listed impairment” in 1999, the Court of Appeals for
the Third Circuit has recognized that this removal “did not eliminate obesity as a cause of
disability.” Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009) (citing SSR 00-3p, 65
Fed. Reg. 31039, 31040–42 (May 15, 2000)). “To the contrary, the Commissioner promulgated
SSR 00-3p, indicating how obesity is to be considered. This SSR replaced an automatic
designation of obesity as a listed impairment, based on a claimant’s height and weight, with an
individualized inquiry, focused on the combined effect of obesity and other severe impairments

To the extent that Plaintiff challenges this finding by the ALJ, the Court addresses this matter
later in this Opinion and Order.
4

17

afflicting the claimant[.]” Id. “Although SSR 00-3p was superseded by SSR 02-1p, 67 Fed. Reg.
57859, 57859 (Sept. 12, 2002), SSR 02-1p did not materially amend SSR 00-3p.” Id. (citations
omitted); see also SSR 00-3p, 65 Fed. Reg. 31039-01 (May 15, 2000) (“[O]besity may increase
the severity of coexisting or related impairments to the extent that the combination of
impairments meets the requirements of a Listing. This is especially true of musculoskeletal,
respiratory, and cardiovascular impairments. It may also be true for other coexisting or related
impairments, including mental disorders.”).
SSR 02-1p provides in relevant part as follows:
[W]e consider obesity to be a medically determinable impairment and remind
adjudicators to consider its effects when evaluating disability. The provisions also
remind adjudicators that the combined effects of obesity with other impairments
can be greater than the effects of each of the impairments considered separately.
They also instruct adjudicators to consider the effects of obesity not only under the
listings but also when assessing a claim at other steps of the sequential evaluation
process, including when assessing an individual’s residual functional capacity.
....
Because there is no listing for obesity, we will find that an individual with obesity
“meets” the requirements of a listing if he or she has another impairment that, by
itself, meets the requirements of a listing. We will also find that a listing is met if
there is an impairment that, in combination with obesity, meets the requirements of
a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular
impairments. It may also be true for other coexisting or related impairments,
including mental disorders.
For example, when evaluating impairments under mental disorder listings 12.05C,
112.05D, or 112.05F, obesity that is “severe,” . . . satisfies the criteria in listing
12.05C for a physical impairment imposing an additional and significant workrelated limitation of function and in listings 112.05D and 112.05F for a physical
impairment imposing an additional and significant limitation of function. . . .
We may also find that obesity, by itself, is medically equivalent to a listed
impairment. . . . For example, if the obesity is of such a level that it results in an
inability to ambulate effectively, as defined in sections 1.00B2b or 101.00B2b of
the listings, it may substitute for the major dysfunction of a joint(s) due to any cause
(and its associated criteria), with the involvement of one major peripheral weight-

18

bearing joint in listings 1.02A or 101.02A, and we will then make a finding of
medical equivalence. . . .
We will also find equivalence if an individual has multiple impairments, including
obesity, no one of which meets or equals the requirements of a listing, but the
combination of impairments is equivalent in severity to a listed impairment. For
example, obesity affects the cardiovascular and respiratory systems because of the
increased workload the additional body mass places on these systems. Obesity
makes it harder for the chest and lungs to expand. This means that the respiratory
system must work harder to provide needed oxygen. This in turn makes the heart
work harder to pump blood to carry oxygen to the body. Because the body is
working harder at rest, its ability to perform additional work is less than would
otherwise be expected. Thus, we may find that the combination of a pulmonary or
cardiovascular impairment and obesity has signs, symptoms, and laboratory
findings that are of equal medical significance to one of the respiratory or
cardiovascular listings. [Footnote omitted.]
However, we will not make assumptions about the severity or functional effects of
obesity combined with other impairments. Obesity in combination with another
impairment may or may not increase the severity or functional limitations of the
other impairment. We will evaluate each case based on the information in the case
record.
SSR 02-1p, 67 Fed. Reg. 57859-02. Accordingly, “an ALJ must meaningfully consider the effect
of a claimant’s obesity, individually and in combination with her impairments, on her workplace
function at step three and at every subsequent step.” Diaz, 577 F.3d at 504. “For meaningful
judicial review, the ALJ must provide a discussion of the evidence and an explanation of
reasoning, . . . but we do not ‘require the ALJ to use particular language or adhere to a particular
format in conducting his analysis[.]’” Woodson v. Comm’r Soc. Sec., 661 F. App’x 762, 765–66
(3d Cir. 2016) (quoting Jones, 364 F.3d at 505). However, “[c]onclusory statements that a
condition does not constitute the medical equivalent of a listed impairment are insufficient.”
Diaz, 577 F.3d at 504.
Here, the ALJ found at step two Plaintiff’s obesity to be non-severe, reasoning as
follows:
The claimant also has the following non-severe impairment: obesity. Claimant’s
19

obesity, while not stated by any physician to be disabling, was considered in terms
of its possible effects on claimant’s ability to work. Although obesity is no longer
a listed impairment, SSR 02-01 provides important guidance on evaluating obesity
in adult and child disability claims. I am required to consider obesity in determining
whether a claimant has medically determinable impairments that are severe,
whether those impairments meet or equal any listing, and determining the
claimant's residual functional capacity. Obesity is considered severe when, alone
or in combination with another medically determinable physical or mental
impairment(s), it significantly limits an individual’s physical or mental ability to do
basic work activities (SSR 02-01). However, I will not make assumptions about the
severity or functional effects of obesity combined with other impairments. While
obesity may or may not increase the severity or functional limitations of other
impairments, each case will be evaluated solely on the information in the case
record. In the present case, claimant’s file does not contain evidence indicating
that her obesity alone has caused her to be unable to work, nor does it show
that in conjunction with her other impairments it has disabled her. The
claimant is overweight, but does not complain of difficulties caused by her
weight. Thus, claimant’s obesity is not, by itself, nor in conjunction with her
other impairments, so severe as to prevent her from working.
R. 18 (emphasis added). The Court finds no error with the ALJ’s assessment in this regard. See
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (finding remand unwarranted because
it would not affect the outcome of the case where the claimant “never mentioned obesity as a
condition that contributed to her inability to work, even when asked directly by the ALJ to
describe her impairments” and that the claimant’s “generalized response [that her weight makes
it more difficult to perform certain physical tasks] is not enough to require a remand,
particularly when the administrative record indicates clearly that the ALJ relied on the
voluminous medical evidence as a basis for his findings regarding her limitations and
impairments”); see also Romero v. Comm’r of Soc. Sec., No. CV 18-16806, 2020 WL 2301444,
at *2 (D.N.J. May 8, 2020) (rejecting conclusory contention that ALJ’s error in failing to
consider obesity at any point in decision justifies remand and noting that “the Diaz Court
acknowledged the continuing vitality of Rutherford”) (citations omitted). In arguing that the
ALJ failed to properly evaluate her obesity, Plaintiff does not explain why her obesity is severe

20

nor does she identify any limitations caused by her obesity. Plaintiff’s Memorandum of Law,
ECF No. 18, at 19–21; Plaintiff’s Reply, ECF No. 23, p. 4. Notably, Plaintiff did not identify
obesity as a disability in her application for benefits or in her request for reconsideration during
the administrative process. R. 147, 248; see also R. 378 (reflecting Dr. Yalkowsky’s note that
Plaintiff “is obese; but is otherwise, medically stable and does not report any health related
difficulties”). Nor does Plaintiff explain how further consideration of her obesity would result
in a different outcome. See Shinseki, 556 U.S. at 409–10; Rutherford, 399 F.3d at 553. Based
on this record, this Court concludes that the ALJ properly considered Plaintiff’s obesity.
Rutherford, 399 F.3d at 553; see also Carter v. Comm’r Soc. Sec., 805 F. App’x 140, 143 (3d
Cir. 2020) (“In any event, remand to reconsider her combined impairments is not required
because Carter has relied on the language of SSR 02-1p stating that obesity can impair one’s
ability to perform basic work activities rather than specifying how her obesity or headaches
affected her ability to perform basic work activities” and that the claimant “does not point to
any medical evidence that her impairments, determinable or not, limit her ability to perform
work activities”) (emphasis in original); Tietjen v. Berryhill, No. CV 17-8030, 2019 WL
1238830, at *4 (D.N.J. Mar. 18, 2019) (rejecting argument that the ALJ failed to properly
consider the claimant’s obesity where the claimant “failed to specify how her obesity met the
disability criteria contained in the SSR and how her obesity precluded her from performing
sedentary work with postural and environmental limitations, as the ALJ concluded she could”
and where the claimant “failed to list obesity as an illness, injury, or condition constituting a
disability in her application for SSI and SSDI benefits”); cf. Woodson v. Comm’r Soc. Sec., 661
F. App’x 762, 765–66 (3d Cir. 2016) (finding any error in the ALJ’s analysis of obesity at step
three would be harmless because the claimant “never explains how, even if the ALJ’s analysis

21

was lacking, the deficiency was harmful to his claims. Woodson only says in very vague terms
that an actual discussion of his impairments would lead to the conclusion that he was disabled
at step three” and the claimant “has not affirmatively pointed to specific evidence that
demonstrates he should succeed at step three”); Dias v. Saul, No. 3:17CV1812, 2019 WL
4750268, at *4–5 (M.D. Pa. Sept. 30, 2019) (affirming denial of benefits where “the plaintiff’s
medical records are nearly devoid of references to his obesity. Plaintiff himself is unable to
point to any restrictions or limitations in the medical record due to his obesity which must be
considered” and finding a single reference to pain relating to the claimant’s obesity did not
show “how his obesity resulted in limitations on his ability to perform basic work activities”).
In any event, at step two, an ALJ determines whether a plaintiff has a “severe
impairment” or combination of impairments that “significantly limits [the plaintiff’s] physical or
mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). “The steptwo inquiry is a de minimis screening device to dispose of groundless claims.” Newell v. Comm’r
of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003) (citations omitted). “So long as the ALJ rules in
Plaintiff’s favor by finding that any single impairment meets the severity threshold required at
step two, any error the ALJ made in this determination was harmless.” Auriemma v. Colvin, No.
13-5947, 2015 WL 5097902, at *6 (D.N.J. Aug. 31, 2015) (citing Salles v. Comm’r of Soc. Sec.,
229 F. App’x 140, 145 n.2 (3d Cir. 2007) (“Because the ALJ found in [Plaintiff]’s favor at Step
Two, even if he had erroneously concluded that some of h[is] other impairments were nonsevere, any error was harmless.”); see also Hicks v. Colvin, No. 2:15-cv-07221, 2016 WL
8674251, at *8 (D.N.J. Oct. 14, 2016) (“Even if the ALJ had in fact erred with respect to one of
the impairments that she found to be non-severe, such error would be harmless since she found
other impairments to be severe, engaged in the full five-step evaluation, and accounted for

22

related possible limitations in her RFC finding.”).
As discussed, the ALJ decided in Plaintiff’s favor at step two, finding that her autism
spectrum disorder, intellectual disability, and anxiety disorder are severe. R. 17. The ALJ went
on to evaluate Plaintiff’s impairments through the remainder of the five-step sequential
evaluation. R. 18–25. Accordingly, even if the ALJ erred by not finding other severe
impairments, any such error at step two is harmless based on this record. See Salles, 229 F.
App’x at 145 n.2; Hicks, 2016 WL 8674251, at *8; Auriemma, 2015 WL 5097902, at *6.
C.

Subjective Complaints

Plaintiff also challenges the ALJ’s consideration of her subjective complaints, apparently
arguing that the ALJ improperly minimized Plaintiff’s impairments. Plaintiff’s Memorandum of
Law, ECF No. 18, pp. 21–26; Plaintiff’s Reply, ECF No. 23, pp. 1–3. This Court disagrees.
“Subjective allegations of pain or other symptoms cannot alone establish a disability.”
Miller v. Comm’r of Soc. Sec., 719 F. App’x 130, 134 (3d Cir. 2017) (citing 20 C.F.R. §
416.929(a)). Instead, objective medical evidence must corroborate a claimant’s subjective
complaints. Prokopick v. Comm’r of Soc. Sec., 272 F. App’x 196, 199 (3d Cir. 2008) (citing 20
C.F.R. § 404.1529(a)). Specifically, an ALJ must follow a two-step process in evaluating a
claimant’s subjective complaints. SSR 16-3p, 2016 WL 1119029 (March 16, 2016). First, the
ALJ “must consider whether there is an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as
pain.” Id. “Second, once an underlying physical or mental impairment(s) that could reasonably
be expected to produce an individual’s symptoms is established, [the ALJ] evaluate[s] the
intensity and persistence of those symptoms to determine the extent to which the symptoms limit
an individual’s ability to perform work-related activities[.]” Id.; see also Hartranft v. Apfel, 181

23

F.3d 358, 362 (3d Cir. 1999) (“[Evaluation of the intensity and persistence of the pain or
symptom and the extent to which it affects the ability to work] obviously requires the ALJ to
determine the extent to which a claimant is accurately stating the degree of pain or the extent to
which he or she is disabled by it.”) (citing 20 C.F.R. § 404.1529(c)). In this evaluation, an ALJ
considers objective medical evidence as well as other evidence relevant to a claimant’s
symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (listing the following factors to consider:
daily activities; the location, duration, frequency, and intensity of pain or other symptoms;
precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate pain or other symptoms; treatment, other than
medication, currently received or have received for relief of pain or other symptoms; any
measures currently used or have used to relieve pain or other symptoms; and other factors
concerning your functional limitations and restrictions due to pain or other symptoms).
Finally, “[t]he ALJ has wide discretion to weigh the claimant’s subjective complaints,
Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983), and may discount them where they are
unsupported by other relevant objective evidence.” Miller, 719 F. App’x at 134 (citing 20 C.F.R.
§ 416.929(c)); see also Izzo v. Comm’r of Soc. Sec., 186 F. App’x 280, 286 (3d Cir. 2006) (“[A]
reviewing court typically defers to an ALJ’s credibility determination so long as there is a
sufficient basis for the ALJ’s decision to discredit a witness.”). 5
Here, the ALJ followed this two-step evaluation process. After considering the record
evidence, including Plaintiff’s hearing testimony, the ALJ concluded that Plaintiff’s medically

SSR 16-3p superseded SSR 96-7p on March 26, 2016, and eliminated the use of the term
“credibility.” SSR 16-3p. However, “while SSR 16-3P clarifies that adjudicators should not
make statements about an individual’s truthfulness, the overarching task of assessing whether an
individual’s statements are consistent with other record evidence remains the same.” Levyash v.
Colvin, No. CV 16-2189, 2018 WL 1559769, at *8 (D.N.J. Mar. 30, 2018).
5

24

determinable impairments could reasonably be expected to cause symptoms, but that Plaintiff’s
“statements concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record for the reasons
explained in this decision.” R. 21–22; see also R. 22 (“[T]here are several reasons why the
claimant’s allegations of debilitating symptoms, should he deemed to be not wholly persuasive
nor consistent with the evidence in the record. Although the record shows the claimant does have
the impairments noted above, the symptoms do not cause the degree of limitation alleged.”). The
ALJ also detailed years of record evidence, including, inter alia, that Plaintiff consistently
completed homework and classwork; her English proficiency did not affect classroom
performance; that her IQ scores on the WAIS-III placed her in the borderline to low average of
intellectual functioning; that Dr. Candela thought that training in clerical office skills would be
appropriate for her; that she was pleasant and cooperative during her examination by Ronald
Silikovitz, Ph.D. in April 2009, and was responsive to all questions, smiled appropriately, and
was eager to please; that Dr. Agresti noted in March 2010 that although Plaintiff had been
prescribed Paxil and Xanax, she was no longer taking medication for her anxiety; that Dr.
Yalkowsky noted in August 2014 that although Plaintiff’s social skills were impacted by her
developmental disorder, she was pleasant and cooperative during the evaluation and her thought
processes were logical and coherent; that she reported to Dr. Yalkowsky that she had never
needed medication for her mental health issues, that she had been working part-time for eleven
years and reported no difficulties at work and enjoyed her work; that she is able to independently
use public transportation, do her own laundry, and perform household chores; that Plaintiff’s
sister reported that Plaintiff spent time watching television, talking on the phone, going out and
interacting with people daily, and attending social events, including attending church and

25

attending alumni events; that Dr. Amy Brams, a state agency reviewing physician, opined in
October 2014 that Plaintiff was capable of performing most activities of daily living
independently, travel independently on familiar routes, understand, remember and execute
simple instructions, adapt to change, and adjust to supervision in environments where emotional
and mental demands were modest; and that the fact that she works only part-time appeared to be
related to availability of hours at her place of employment rather than to her inability to perform
the work on a full-time basis, and that she was able to learn the work, which does not change
significantly from day-to-day and she occasionally interacts with others. R. 22–24.
Plaintiff challenges the ALJ’s observation that Plaintiff does not take prescribed
medication: “The medication was prescribed but plaintiff’s mother did not given them to her
daughter because of the side effects of the medication.” Plaintiff’s Memorandum of Law, ECF
No. 18, p. 22 (citing R. 59–60 (referring to Plaintiff’s mother’s testimony that she did not give
Plaintiff prescribed medication because of side effects)). Plaintiff’s argument in this regard is not
well taken. The ALJ properly considered Plaintiff’s failure or refusal to take prescribed
medication as one of many considerations in assessing her subjective complaints. See 20 C.F.R.
§§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv); see also Milano v. Comm’r of Soc. Sec., 152 F. App’x
166, 171 (3d Cir. 2005) (rejecting assertion that the ALJ improperly considered the claimant’s
subjective complaints where the ALJ, inter alia, “pointed out that she was not taking any
prescription medication for pain, and had refused medication that had been prescribed to her for
depression”); Davis v. Colvin, No. CV 16-625-LPS-MPT, 2017 WL 2829653, at *11 (D. Del.
June 30, 2017), report and recommendation adopted sub nom. Davis v. Berryhill, No. CV 16625, 2017 WL 4082567 (D. Del. Sept. 15, 2017) (deferring to the ALJ’s assessment of the
claimant’s subjective complaints where the ALJ considered, inter alia, the claimant’s “failed

26

adherence to his prescribed medical regimen”); cf. Cardona v. Comm’r of Soc. Sec., 94 F. App’x
106, 107 (3d Cir. 2004) (finding that substantial evidence supported the ALJ’s treatment of the
claimant’s subjective complaints where the ALJ considered, inter alia, that the claimant did not
take prescription medicine).
Plaintiff also refers to Dr. Agresti’s December 2014 observation that Plaintiff “is quite
immature, childish, unable to live alone and does repeat herself on several occasions[,]” R. 387,
arguing that the ALJ apparently rejected this treating physician’s opinion. Plaintiff’s
Memorandum of Law, ECF No. 18, pp. 23–24; Plaintiff’s Reply, ECF No. 23, p. 2. Although the
opinions of treating physicians are entitled to great weight if they are consistent with the record,
see Nazario v. Comm’r Soc. Sec., 794 F. App’x 204, 209 (3d Cir. 2019); Hubert v. Comm’r Soc.
Sec., 746 F. App’x 151, 153 (3d Cir. 2018), it does not appear that observation constitutes a
medical opinion. See 20 C.F.R. §§ 404.1527(a) (“Medical opinions are statements from
acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.”), 416.927(a) (same); cf. Paczkoski v.
Colvin, No. 3:13-CV-01775, 2014 WL 4384684, at *9 (M.D. Pa. Sept. 4, 2014) (affirming denial
of benefits where the ALJ afforded little weight to treating doctor’s assessments where the doctor
“did not opine that [the claimant] had any specific functional limitations or that he was disabled.
. . . Thus, there was no opinion of functionality by [the treating doctor] that the ALJ could
weigh”). In any event, Plaintiff has not shown how the outcome of the matter would be different
if the ALJ had assigned great weight to Dr. Agresti’s statement in this regard. See Shinseki, 556
U.S. at 409–10 (2009); Rutherford, 399 F.3d at 553. Accordingly, if there was any error in this
regard, the error was, at most, harmless. Id.

27

Finally, Plaintiff also points to evidence in the record that supports her subjective
complaints. Plaintiff’s Memorandum of Law, ECF No. 18, pp. 21–26; Plaintiff’s Reply, ECF No.
23, pp. 1–3. However, as previously noted, the Court “will uphold the ALJ’s decision even if
there is contrary evidence that would justify the opposite conclusion, as long as the ‘substantial
evidence’ standard is satisfied.” Johnson, 497 F. App’x at 201; see also Chandler, 667 F.3d at
359.
Accordingly, this Court finds that the ALJ has sufficiently explained his reasoning in
assessing Plaintiff’s subjective complaints, and his findings in this regard are supported by
substantial evidence in the record. The ALJ’s evaluation of Plaintiff’s subjective complaints is
therefore entitled to this Court’s deference. See SSR 16-3p; Miller, 719 F. App’x at 134; cf.
Malloy v. Comm’r of Soc. Sec., 306 F. App’x. 761, 765 (3d Cir. 2009) (“Credibility
determinations as to a claimant’s testimony regarding pain and other subjective complaints are
for the ALJ to make.”) (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Davis
v. Comm’r Soc. Sec., 105 F. App’x 319, 322 (3d Cir. 2004) (finding that the ALJ sufficiently
evaluated the plaintiff’s testimony where “the ALJ devoted two pages to a discussion of
claimant’s subjective complaints and cited Claimant’s daily activities and objective medical
reports”); Campbell v. Berryhill, No. CV 17-1714, 2018 WL 3575255, at *11 (E.D. Pa. July 25,
2018) (“‘A diagnosis of fibromyalgia does not automatically render a person unable to perform
jobs that exist in significant numbers in the national economy.’”) (quoting Edelman v. Astrue,
2012 WL 1605102, at *4 (E.D. Pa. May 8, 2012)). Accordingly, the ALJ’s assessment of
Plaintiff’s subjective complaints cannot serve as a basis for remand of this action. Id.
D.

RFC

Plaintiff argues that the ALJ’s RFC determination is not supported by substantial

28

evidence. Plaintiff’s Memorandum of Law, ECF No. 18, pp. 26–27; Plaintiff’s Reply, ECF No.
23, pp. 2–5. This Court disagrees.
A claimant’s RFC is the most that the claimant can do despite the claimant’s limitations.
20 C.F.R. §§ 404.1545.(a)(1), 416.945(a)(1). At the administrative hearing stage, an ALJ is
charged with determining the claimant’s RFC. 20 C.F.R. §§ 404.1527(e), 404.1546(c),
416.927(e), 416.946(c); see also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir.
2011) (“The ALJ—not treating or examining physicians or State agency consultants—must
make the ultimate disability and RFC determinations.”) (citations omitted). When determining a
claimant’s RFC, an ALJ has a duty to consider all the evidence. Plummer, 186 F.3d at 429.
However, the ALJ need include only “credibly established” limitations. Rutherford, 399 F.3d at
554; see also Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014) (stating that the ALJ has
discretion to exclude from the RFC “a limitation [that] is supported by medical evidence, but is
opposed by other evidence in the record” but “[t]his discretion is not unfettered—the ALJ cannot
reject evidence of a limitation for an unsupported reason” and stating that “the ALJ also has the
discretion to include a limitation that is not supported by any medical evidence if the ALJ finds
the impairment otherwise credible”).
Here, the ALJ determined that Plaintiff had the RFC to perform a full range of work at
all exertional levels, but with certain additional nonexertional limitations:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform a full range of work at all exertional levels
but with the following nonexertional limitations: She is able to understand,
remember and carryout simple instruction, with only occasional changes to
essential job functions; and is able to make simple work-related decisions. She can
occasionally interact with supervisors and coworkers, but she cannot work on a
team or in tandem with co-workers. She can never interact with the public and she
cannot work in a job requiring extensive money management or making change.
R. 21. In making this determination, the ALJ detailed years of record evidence, including, inter
29

alia, that Plaintiff consistently completed homework and classwork; that her English proficiency
did not affect her classroom performance; on the WAIS-III, she obtained a verbal score of 75, a
performance IQ score of 85, and a full-scale IQ score of 78, which placed her in the borderline to
low average of intellectual functioning; that Dr. Candela thought that training in clerical office
skills would be appropriate for her; that she was pleasant and cooperative during her examination
by Ronald Silikovitz, Ph.D. in April 2009, and was responsive to all questions, smiled
appropriately, and was eager to please; that Dr. Agresti noted in March 2010 that although she
had been prescribed Paxil and Xanax, she was no longer taking medication for her anxiety; that
Dr. Yalkowsky noted in August 2014 that although Plaintiff’s social skills were impacted by her
developmental disorder, she was pleasant and cooperative during the evaluation and her thought
processes were logical and coherent; that she reported to Dr. Yalkowsky that she never required
any medication for her mental health issues, that she had been working part-time for eleven years
and reported no difficulties at work and enjoyed work; that she is able to independently use
public transportation, do her own laundry, and perform household chores; that Plaintiff’s sister
reported that Plaintiff spent time watching television, talking on the phone, going out and
interacting with people daily, and attending social events, including attending church and alumni
events; that Dr. Amy Brams, a state agency reviewing physician, opined in October 2014 that
Plaintiff could perform most activities of daily living independently, travel independently on
familiar routes, understand, remember and execute simple instructions, adapt to change, and
adjust to supervision in environments where emotional and mental demands were modest; and
that her working part-time was apparently related to the availability of hours at her place of
employment rather than to her inability to perform the work on a full-time basis, that she was
able to learn the work, which does not change significantly from day-to-day, and that she

30

occasionally interacts with others. R. 22–24. The record unquestionably contains substantial
evidence to support this RFC determination. See Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d
at 554; Plummer, 186 F.3d at 429.
In challenging this determination, Plaintiff simply asserts, with no citation to the record,
that “[t]he record will show that plaintiff has an inability to perform work at this level in that she
is not capable of working more than a part time job. Judge Alvarado failed to provide such a
detailed assessment, on this error alone, this matter must be remanded for a full and complete
adjudication of the plaintiff’s application.” Plaintiff’s Memorandum of Law, ECF No. 18, p. 27.
Plaintiff cites to no record evidence that supports her apparent assertion that her mental
impairments require different or more restrictive limitations, nor does she identify what those
limitations should be, or otherwise explain how remanding this action would lead to a different
RFC determination. See generally id. The Court will not hunt through the record to find evidence
or construct Plaintiff’s arguments for her. See Atkins v. Comm’r Soc. Sec., No. 19-2031, 2020
WL 1970531, at *4 (3d Cir. Apr. 24, 2020) (“‘[J]udges are not like pigs, hunting for truffles
buried in the record.’”) (quoting Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8
(3d Cir. 2006)) (internal citation omitted)); United States v. Claxton, 766 F.3d 280, 307 (3d Cir.
2014) (“[T]his Court has frequently instructed parties that they bear the responsibility to comb
the record and point the Court to the facts that support their arguments.”).
To the extent that Plaintiff appears to argue in reply that her ability to work part-time
does not translate into an ability to work full-time, see Plaintiff’s Reply, ECF No. 23, pp. 2–5,
this argument is not well taken. As set forth above, Plaintiff’s ability to work part-time was but
one of many factors that the ALJ considered when crafting the RFC determination.This Court
concludes that the ALJ’s RFC determination is consistent with the record evidence and enjoys

31

substantial support in the record.
E.

Step Five

Finally, Plaintiff challenges the ALJ’s step five determination, arguing that the
Commissioner failed to carry his burden at that stage because the hypothetical questions posed to
the vocational expert, which included the ALJ’s RFC determination, failed to include all of
Plaintiff’s claimed limitations. Plaintiff’s Moving Brief, ECF No. 18, pp. 27–29. Plaintiff’s
argument is not well taken.
“[A] vocational expert or specialist may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental limitations imposed
by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous
work[.]” 20 C.F.R. § 416.960(b)(2); see also 20 C.F.R. § 404.1560(b)(2). “While ‘the ALJ must
accurately convey to the vocational expert all of a claimant’s credibly established limitations,’ . .
. ‘[w]e do not require an ALJ to submit to the vocational expert every impairment alleged by a
claimant.’” Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010) (quoting Rutherford,
399 F.3d at 554). “[T]o accurately portray a claimant’s impairments, the ALJ must include all
‘credibly established limitations’ in the hypothetical. Zirnsak, 777 F.3d at 614 (citing Rutherford,
399 F.3d at 554). Credibly established limitations are limitations “that are medically supported
and otherwise uncontroverted in the record.” Rutherford, 399 F.3d at 554. “Limitations that are
medically supported but are also contradicted by other evidence in the record may or may not be
found credible—the ALJ can choose to credit portions of the existing evidence but cannot reject
evidence for no reason or for the wrong reason.” Id. (citations and internal quotation marks
omitted). Finally, a “vocational expert’s testimony concerning a claimant’s ability to perform
alternative employment may only be considered for purposes of determining disability if the

32

[ALJ’s hypothetical] question accurately portrays the claimant’s individual physical and mental”
limitations. Podedworny, 745 F.2d at 218.
Here, the hypothetical question posed by the ALJ to the vocational expert assumed a
claimant with Plaintiff’s vocational profile and the RFC found by the ALJ. R. 21, 75–76. The
vocational expert responded that the jobs of labeler, microfilm mounter, and ticketer would be
appropriate for such an individual. R. 76. For the reasons discussed earlier in this decision, this
hypothetical sufficiently captured Plaintiff’s credibly established limitations and therefore
supported the ALJ’s determination at step five. See Rutherford, 399 F.3d at 554; Podedworny,
745 F.2d at 218. To the extent that Plaintiff’s criticism of the hypothetical questions is that all
her alleged impairments were not addressed, this criticism boils down to an attack on the RFC
determination itself, see Rutherford, 399 F.3d at 554 n.8, which this Court has already rejected
for the reasons previously discussed.
Finally, Plaintiff’s reliance on Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004), is
unavailing to the extent that she contends that the limitation to simple work or tasks does not
adequately capture her mental impairments, presumably her moderate limitation in
concentration, persistence, or pace. Plaintiff’s Memorandum of Law, ECF No. 18, p. 28. “[A]s
long as the ALJ offers a ‘valid explanation,’ a ‘simple tasks’ limitation is permitted after a
finding that a claimant has ‘moderate’ difficulties in ‘concentration, persistence, or pace.’” Hess
v. Comm’r Soc. Sec., 931 F.3d 198, 211 (3d Cir. 2019) (explaining that this conclusion “flows
directly from our decision in Ramirez”). Here, as previously noted, the ALJ offered a “valid
explanation” for the finding that Plaintiff would be limited to simple work-related decisions,
relying on, inter alia, Dr. Brams’s finding that Plaintiff retained the ability to understand,
remember, and execute simple instructions. R. 21–24. Accordingly, based on this record,

33

Ramirez does not require remand or otherwise undermine that RFC finding or the
Commissioner’s finding at step five.
In short, the Court finds that the Commissioner has carried his burden at step five of the
sequential evaluation and concludes that substantial evidence supports his determination in this
regard.
V.

CONCLUSION
For these reasons, the Court AFFIRMS the Commissioner’s decision.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42

U.S.C. § 405(g).
IT IS SO ORDERED.

Date: October 6, 2020

s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE

34