ANDERSON v. COMMISSIONER OF SOCIAL SECURITY
Filing
30
OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 12/9/2020. (km)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN F. ANDERSON,
Plaintiff,
Case No. 2:18-cv-3625
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 James F. Anderson for
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. 1
Plaintiff appeals from the final decision of the Commissioner of Social Security denying that
application. 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.
The administrative record filed with this Court, ECF No. 6, contains only an application for
Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et
seq. R. 175–79. As Plaintiff explains, Plaintiff’s Moving Brief, ECF No. 27, p. 1 n.1, the
administrative denials reflect that Plaintiff’s application was for only a Title II disability claim.
See, e.g., R. 80–84, 90–92, 11–20 (reflecting the ALJ’s references to Plaintiff’s claim for
Disability Insurance Benefits and to the “date last insured[,]” which applies only to claims for
Disability Insurance Benefits). Notably, the Commissioner in the current briefing also refers to
Plaintiff’s claim as one for Disability Insurance Benefits and refers to a “date last insured.” See
Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 28, pp. 6, 18. Based on this record,
the Court will treat Plaintiff’s claim as one for Disability Insurance Benefits.
1
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I.
PROCEDURAL HISTORY
On September 30, 2014, Plaintiff filed an application for benefits, alleging that he has
been disabled since July 1, 2009. R. 175–79. Plaintiff’s application was denied initially and upon
reconsideration. R. 80–84, 90–92. Plaintiff sought a de novo hearing before an administrative
law judge. R. 94–95. Administrative Law Judge Peter R. Lee (“ALJ”) held a hearing on May 22,
2017, at which Plaintiff, who was represented by counsel, appeared and testified, as did a
vocational expert. R. 25–55. In a decision dated July 31, 2017, the ALJ concluded that Plaintiff
was not disabled within the meaning of the Social Security Act at any time from July 1, 2009, the
alleged disability onset date, through December 31, 2014, the date on which Plaintiff was last
insured. R. 11–24. That decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on January 18, 2018. R. 1–5. Plaintiff timely
filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On August 3, 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. 10. 2 On March 11, 2020,
the case was reassigned to the undersigned. ECF No. 29. 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
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).
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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
(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,
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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
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 an 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
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“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
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
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[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 process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §
404.1520(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). 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). 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). 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. Otherwise, the ALJ proceeds to step four.
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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).
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
the national economy. 20 C.F.R. § 404.1520(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.
THE ALJ DECISION AND APPELLATE ISSUES
The Plaintiff was 50 years old on his date last insured. R. 19. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity at any time from his alleged
disability onset date of July 1, 2009, through December 31, 2014, his date last insured. R. 13.
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
degenerative disc disease, foot fracture, gastroesophageal reflux disease (GERO), neuropathy,
radiculopathy, right kneecap fracture, obesity, affective disorder, and anxiety. Id. The ALJ also
found that the diagnosed impairment of hyperlipidemia was not severe. R. 14.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination
of impairments that met or medically equaled the severity of any Listing. R. 14–15.
At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to
various additional limitations. R. 15–19. The ALJ also found that this RFC did not permit the
performance of Plaintiff’s past relevant work as a construction worker and construction
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supervisor. R. 19.
At step five, the ALJ found that a significant number of jobs—i.e., approximately
30,000 jobs as a weld inspector; approximately 150,00 jobs as a labeler; approximately
100,000 jobs as an inspector/packer—existed in the national economy and could be performed
by an individual with Plaintiff’s vocational profile and RFC. R. 20. The ALJ therefore
concluded that Plaintiff was not disabled within the meaning of the Social Security Act at any
time from July 1, 2009, his alleged disability onset date, through December 31, 2014, the date
on which he was last insured. R. 20.
Plaintiff disagrees with the ALJ’s findings at steps three and four 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 Brief, ECF No. 27. 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. 28.
IV.
DISCUSSION
A.
Step Three
Plaintiff raises several challenges to the ALJ’s analysis at step three of the sequential
evaluation. Plaintiff’s Moving Brief, ECF No. 27, pp. 14–24.
At step three, an ALJ considers whether the combination of the claimant’s medically
determinable impairments meets or equals the severity of one of the impairments in the Listing
of Impairments. 20 C.F.R. § 404.1520(a)(4)(iii). An impairment meets a listed impairment if it
satisfies “‘all of the specified medical criteria. An impairment that manifests only some of those
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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). “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.” Sullivan,
493 U.S. 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)). Although an ALJ is not required to use “particular
language” when determining whether a claimant meets a listing, the ALJ’s discussion must
provide for “meaningful review.” Jones, 364 F.3d at 505 (citing Burnett, 220 F.3d at 120).
Accordingly, if the ALJ’s decision, “read as a whole, illustrates that the ALJ considered the
appropriate factors in reaching the conclusion that [the claimant] did not meet the requirements
for any listing,” “[t]his discussion satisfies Burnett’s requirement that there be sufficient
explanation to provide meaningful review of the step three determination.” Id.
At step three, the ALJ specifically considered the Listings of “1.00 Musculoskeletal
System, 4.00 Cardiovascular System, 5.00 Digestive System, 11.00 Neurological, and 12.00
Mental Disorders of the listed impairments. Additionally, SSR 02-lp Obesity was adequately
considered, both singularly and in combination with the claimant’s underlying impairments.” R.
14. Plaintiff argues that the ALJ erred by failing to meaningfully evaluate Plaintiff’s obesity at
step three and at subsequent steps in accordance with SSR 02-1p. Plaintiff’s Moving Brief, ECF
No. 27, at 14–24. Plaintiff specifically complains that the ALJ failed to consider obesity in
combination with other impairments, and identified no listing or its elements. Plaintiff’s Moving
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Brief, ECF No. 27, p. 21–22. Plaintiff further argues that the ALJ failed to consider in
combination Plaintiff’s cervical and lumbar disease, spinal canal stenosis, gastric ulcers, GERD,
and gallbladder removal. Plaintiff’s Moving Brief, ECF No. 27, p. 22. Plaintiff’s arguments are
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
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.
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....
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 weightbearing 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.
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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 h[is] impairments, on h[is]
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 identified obesity as one of Plaintiff’s severe impairments at step two. R.
13. At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of any listed impairment, noting, inter
alia, that “[n]o treating, examining, or non-examining medical source has mentioned findings or
rendered an opinion that the claimant’s impairments, singly or in combination, medically equaled
the criteria of any listed impairment.” R. 14. In so finding, the ALJ expressly stated that he
evaluated Plaintiff’s obesity, both singularly and in combination with Plaintiff’s underlying
impairments, pursuant to the guidelines set forth in SSR 02-1p. Id. The ALJ also expressly stated
that he specifically considered sections of the listed impairments relating to, inter alia,
musculoskeletal, cardiovascular issues, 3 and mental issues. Id. As noted above, SSR 02-1p
Plaintiff complains that the ALJ considered section 4.00, addressing the cardiovascular system,
of the listed impairments even though Plaintiff had no cardiovascular abnormalities. See
Plaintiff’s Moving Brief, ECF No. 27, p. 22. However, SSR 02-1p explicitly provides that
“obesity affects the cardiovascular and respiratory systems because of the increased workload the
additional body mass places on these systems.” It was therefore not improper for the ALJ, in his
step three analysis, to consider whether Plaintiff’s obesity impacted his cardiovascular system.
Id.
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expressly observes that these conditions may be impacted by a claimant’s obesity. Lindemeyer v.
Saul, No. CV 19-8781, 2020 WL 3397287, at *9 (D.N.J. June 19, 2020) (“To be clear, the Court
does not hold that an ALJ adheres to the obligations under the pertinent regulations, if he or she
merely indicates that a claimant’s impairments have been considered together or in combination.
Rather, a court should give credit to such statements when the ALJ renders a decision, such as
the one here, that allows for a meaningful judicial review, on the basis of having provided a
sufficient explanation of the medical record evidence, and the reasoning behind the ALJ’s
determinations.”); Gainey v. Astrue, No. 10-1912, 2011 WL 1560865, at *12 (D.N.J. Apr. 25,
2011) (“[W]here the ALJ has indicated that the impairments have been considered in
combination, there is ‘no reason not to believe’ that the ALJ did so.”) (quoting Morrison v.
Comm’r of Soc. Sec., 268 F. App’x 186, 189 (3rd Cir. 2008)); see also R. 14–15 (considering
Plaintiff’s mental impairments in detail and finding that those impairments do not meet or
medically equal Listings 12.04 or 12.06).
At step four, the ALJ further detailed Plaintiff’s musculoskeletal impairments and
treatment, noting records that reflected, inter alia, normal grasp, no point tenderness to the neck,
normal cervical range of motion as well as notes that indicated that Plaintiff’s functioning
remained stable. R. 16–17. The ALJ also considered Plaintiff’s digestive issues, noting records
that reflected conservative treatment for GERD beginning in 2009 and for gastritis, gastric
ulcers, mild esophagitis, and internal hemorrhoids as of 2010. R. 17. The ALJ further noted that
Plaintiff was seen in September 2012 for abdominal pain, was diagnosed with cholecystitis
(inflammation of the gall bladder) and underwent laparoscopic cholecystectomy (surgical
removal of the gall bladder) that same month. Id.; see also R. 17 (considering, inter alia,
Plaintiff’s foot and back as well as his diagnoses of radiculopathy and neuropathy), 17–18
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(giving “significant weight” at step four to state agency medical and psychiatric consultants who
determined that Plaintiff’s obesity was severe but that Plaintiff was not disabled and was capable
of light work (citing Exhibits 1A through 4A, R. 56–79)), 38 (reflecting the ALJ’s questioning of
Plaintiff at the administrative hearing about his weight and Plaintiff’s responsive testimony), 42
(reflecting Plaintiff ‘s hearing testimony about his weight loss), 45 (reflecting Plaintiff’s hearing
testimony that his cholesterol levels had gone down since losing weight).
In short, considering the opinion as a whole, see Jones, 364 F.3d at 505, the ALJ properly
considered Plaintiff’s obesity at step three and at subsequent steps when he recognized Plaintiff’s
obesity as a severe impairment, recognized that he must consider the effect of Plaintiff’s obesity
on his other impairments, found that none of Plaintiff’s impairments, whether considered singly
or in combination, met or equaled a listed impairment, and specifically and in detail considered
Plaintiff’s musculoskeletal impairment—and the limitations imposed by that impairment—in
determining Plaintiff’s RFC. The ALJ expressly found, after engaging in that analysis, that
Plaintiff’s impairments did not preclude the performance of substantial gainful employment prior
to the lapse of his insured status on December 31, 2014. R. 13–20; see also Diaz, 577 F.3d at
504; Woodson, 661 F. App’x at 765–66; SSR 02-1p. Notably, Plaintiff has not identified any
medical evidence that his obesity imposes greater limitations than those found by the ALJ. See
generally Plaintiff’s Moving Brief, ECF No. 27, pp. 14–21. 4
Based on this record, this Court is not persuaded by Plaintiff’s generalized assertions that
the ALJ failed to consider his impairments in combination and failed to properly consider obesity
in accordance with SSR 02-1p, thus requiring remand on this issue. See Carter v. Comm’r Soc.
Sec., 805 F. App’x 140, 142–43 (3d Cir. 2020) (“[R]emand to reconsider her combined
4
The Court considers the RFC determination in more detail in the next section.
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impairments is not required because [the claimant] 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.
Indeed, [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); Woodson, 661 F.
App’x at 765 (“Woodson simply speculates about how his obesity might exacerbate other
impairments—his back disorder, complaints of pain, arthritic knees, congestive heart failure,
asthma attacks, or sleep apnea . . . . But Woodson never points to specific medical evidence in
the record to demonstrate that his obesity, in combination with other impairments, is sufficiently
disabling. Instead, the evidence before the ALJ suggests otherwise.”); Vargas v. Colvin, No. CV
15-2502, 2017 WL 123436, at *5 (D.N.J. Jan. 11, 2017) (affirming denial of benefits where,
inter alia, “[a]lthough [the ALJ’s] analysis is rather brief, it is appropriate given the absence of
any medical evidence in the record indicating that Mr. Vargas’s obesity has affected his
functioning in any way. Further, Vargas points to none.”); Jones v. Colvin, No. CV 14-6778,
2016 WL 7338528, at *6 (D.N.J. Dec. 19, 2016) (“Here, ALJ O’Leary considered Plaintiff's
obesity both individually and in combination with his other impairments. Plaintiff points to no
evidence in the record to illustrate that the ALJ failed to appropriately consider obesity.”). The
Court therefore finds that the ALJ’s discussion of Plaintiff’s obesity is sufficient and permits
meaningful judicial review. See Diaz, 577 F.3d at 504; Woodson, 661 F. App’x at 765–66; SSR
02-1p.
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B.
Step Four
Plaintiff also argues that substantial evidence does not support the ALJ’s RFC
determination that he was capable of a limited range of light work. Plaintiff’s Moving Brief, ECF
No. 27, pp. 24–38. A claimant’s RFC is the most that the claimant can do despite his limitations.
20 C.F.R. § 404.1545(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); 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 light work with certain
additional limitations:
After careful consideration of the entire record, I find that, through the date last
insured, the claimant had the residual functional capacity to perform a wide range
of light work. The claimant could lift and/or carry and push and/or pull up to 10
pounds frequently and 20 pounds occasionally. Further, he could sit for up to 6
hours in an 8-hour workday and stand and/or walk for up to 6 hours in an 8-hour
workday. However, the claimant could never climb ropes, ladders, or scaffolds and
never crawl, but could occasionally climb stairs and ramps, stoop, and crouch. In
addition, he could never be exposed to unprotected heights or hazardous machinery.
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He could perform frequent handling. Finally, the claimant could perform simple
and repetitive tasks.
R. 15. In making this determination, the ALJ detailed years of record evidence, including, inter
alia, medical records reflecting Plaintiff’s normal grasp, no point tenderness to the neck, normal
cervical range of motion as well as notes that indicated that Plaintiff’s functioning remained
stable, R. 16–17; little evidence of specific treatment for complaints of low back pain, R. 17;
Plaintiff’s foot pain and diagnoses of stress fracture, radiculopathy, and neuropathy, id.; digestive
impairments that were treated conservatively beginning in 2009 and laparoscopic
cholecystectomy in September 2012, id.; and state agency medical and psychiatric consultants
who determined that Plaintiff was not disabled and was capable of light work, R. 17–18 (citing
Exhibits 1A through 4A, R. 56–79)). The record unquestionably contains substantial evidence to
support the ALJ’s RFC determination. See Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at
554; Plummer, 186 F.3d at 429.
Plaintiff argues, however, that the RFC lacks substantial evidence for a number of
reasons. Plaintiff’s Moving Brief, ECF No. 27, pp. 24–38. For example, Plaintiff complains that
“[t]reating podiatrist Demarzo, who believes plaintiff incapable of standing and walking due to
his neuropathy, radiculopathy and joint fractures, was rejected by the ALJ.” Id. at 29. Plaintiff
does not provide any citation to the record for this conclusory assertion, see id., and the Court
has no obligation to search through the record to locate evidence or flesh out his argument. 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
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facts that support their arguments.”).
In any event, the Court finds that the ALJ properly considered the opinions of Eugene
Demarzo, D.P.M. On May 16, 2014, Dr. Demarzo opined, inter alia, as follows:
Patient was advised that the radiculopathy/neuropathy is a serious problem and can
lead to more serious injury if it goes on treated [sic]. Patient states that he has
recently been treating with a neurologist or orthopedic [sic] and has recent MRIs
which show six herniated disc’s [sic]. Patient is under evaluation and a treatment
plan will be outlined. Patient is not working at this time and has been advised not
to work due to the danger that is presented by his neuropathy/radiculopathy.
R. 387. On November 7, 2014, Dr. Demarzo stated: “Patient was advised that he is right and [sic]
not working because he is a danger to both himself and any other employee that he works with
due to the neuropathy and radiculopathy that he experiences. If this condition is not treatable
then I would consider this patient permanently disabled.” R. 398. The ALJ considered these
opinions as follows:
As for the opinion evidence, in May 2014, Eugene Demarzo, DPM noted that the
claimant had been advised not to work due to the danger that was presented by his
neuropathy/radiculopathy (Exhibit 6F, page 12). Dr. Demarzo later indicated that
the claimant was permanently disabled (Exhibit 6F, page 23). These opinions are
given little weight because they are vague and fail to offer any specific work related
functional limitations linked to the claimant’s impairments.
R. 17. The Court finds no error in the ALJ’s decision to assign little weight to these opinions. See
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)); See Kerdman v. Comm’r of Soc. Sec., 607 F. App’x 141, 144 (3d Cir.
2015) (“[S]ubstantial evidence supports the ALJ’s conclusion that Dr. Frank’s opinion was not
well-supported, as Dr. Frank failed to reference any objective medical evidence supporting his
statements of disability or articulate any specific functional limitations suffered by [the
claimant].”); Zonak v. Comm’r of Soc. Sec., 290 F. App’x 493, 497 (3d Cir. 2008) (“[T]he ALJ
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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.”); Nixon v. Comm’r of Soc. Sec., No. CV 18-1631, 2019 WL 4748058, at *1
(W.D. Pa. Sept. 30, 2019) (“Thus, as Dr. Tran’s opinion did not include specific functional
limitations and merely opined as to Plaintiff’s limited employability, the Court finds that the ALJ
did not err in giving little weight to that opinion in his analysis.”).
Plaintiff also contends that the ALJ improperly “rejected” the third party witness
statement of Loretta Wheeler, Plaintiff’s girlfriend. Plaintiff’s Moving Brief, ECF No. 27, pp.
29–30. Plaintiff’s argument is not well taken. As a preliminary matter, Plaintiff does not provide
any citation to the record for his assertion that Ms. Wheeler stated that Plaintiff “couldn’t stand
for even a half an hour and needed help out of bed and taking care of his personal hygiene.” Id.
at 29 (citing only R. 18, which reflects the ALJ’s evaluation of Ms. Wheeler’s statement without
specifying these details). As previously noted, the Court need not search through the record or
compile evidence for Plaintiff. See Atkins, 2020 WL 1970531, at *4; Claxton, 766 F.3d at 307.
In any event, the ALJ did not “reject” Ms. Wheeler’s Third Party Function Report dated
October 8, 2014, R. 227–34, as Plaintiff contends, but instead assigned it “some weight,”
reasoning as follows: “This lay statement has been duly considered in accordance with 20 CFR
404.1527(f) and is given some weight. However, as Ms. Wheeler is a close friend of the
claimant, it is expected for her to advocate on his behalf. Thus, her statement cannot be
considered wholly objective.” R. 18. Plaintiff contends that the ALJ improperly discounted Ms.
Wheeler’s statement because she was “‘too friendly’ to be believed[.]” Plaintiff’s Moving Brief,
ECF No. 27, p. 29. However, under SSR 06-03p, which was in effect at the time of Plaintiff’s
claim and was applicable to claims filed before March 27, 2017, an ALJ may consider factors
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such as “the nature and extent of the relationship” when evaluating evidence from “other
nonmedical sources,” such as spouses and friends.
Moreover, even if the ALJ erred in his evaluation of Ms. Wheeler’s statement, any such
error was harmless. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (“An error is
‘harmless’ when, despite the technical correctness of an appellant’s legal contention, there is also
‘no set of facts’ upon which the appellant could recover.”) (citation omitted). Plaintiff asserts that
Ms. Wheeler stated that “plaintiff couldn’t stand for even a half an hour and needed help out of
bed and taking care of his personal hygiene[.]” Plaintiff’s Moving Brief, ECF No. 27, p. 29. 5
However, to the extent that Ms. Wheeler’s statement echoes Plaintiff’s statements about his
limitations, the ALJ specifically considered those statements and explained why these were not
consistent with the record as a whole. R. 18, 227–34. Finally, Ms. Wheeler’s statement about the
extent of Plaintiff’s limitations is inconsistent with some of Plaintiff’s own statements about his
ability to perform activities of daily living, such as driving and riding in a car, traveling on his
own, performing his own weekly grocery shopping, and walking for about twenty minutes before
needing to rest. R. 18; see also SSR 06-03p (identifying as one factor to consider in assessing
nonmedical source evidence how consistent the opinion is with other evidence); Seewagen v.
Comm’r of Soc. Sec., No. 1:18-CV-01818, 2019 WL 1568277, at *6–8 (D.N.J. Apr. 10, 2019)
(“The ALJ also properly addressed two other factors – how long the source has known and how
frequently the source has seen the individual as well as how consistent the opinion is with other
Although Plaintiff contends that “there is no excuse to refuse to even recite the statements that
are being rejected[,]” id. at 29–30, it was not reversible error for the ALJ to fail to repeat the
details of Ms. Wheeler’s statement. See Gunn v. Comm’r of Soc. Sec., No. 1:16-CV-05313, 2017
WL 4786558, at *7 (D.N.J. Oct. 24, 2017) (“Even though the ALJ did not restate every detail
related by Plaintiff’s husband and mother, the ALJ was not required to do so, and he satisfied his
burden of showing that he considered their testimony and articulated the weight he was affording
their testimony.”) (citing Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014)).
20
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evidence – in providing some weight to [the claimant’s wife’s] testimony.”).
Plaintiff next asserts that “it should be abundantly clear that plaintiff cannot tolerate
being on his feet long enough to sustain a 40 hour week performing light work activity” due to
“the mountain of evidence from spinal canal stenosis to foot and knee fractures to lumbar and
cervical disc disease to exogenous obesity[.]” Plaintiff’s Moving Brief, ECF No. 27, p. 30; see
also id. at 31. However, Plaintiff provides no citation to the record for this conclusory argument.
See id.; see also Atkins, 2020 WL 1970531, at *4; Wright v. Comm’r Soc. Sec., 783 F. App’x
243, 245 (3d Cir. 2019) (“We need not address this conclusory, undeveloped accusation.”)
(citations omitted); Claxton, 766 F.3d at 307. In any event, “[a] diagnosis alone . . . does not
demonstrate disability.” Foley v. Comm’r of Soc. Sec., 349 F. App’x 805, 808 (3d Cir. 2009)
(citing Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990)); see also Phillips v. Barnhart, 91
F. App’x 775, 780 (3d Cir. 2004) (“[The claimant’s] argument incorrectly focuses on the
diagnosis of an impairment rather than the functional limitations that result from that
impairment. A diagnosis of impairment, by itself, does not establish entitlement to benefits under
the Act”). Plaintiff does not identify any specific limitations flowing from these impairments that
are different or more restrictive than those already found by the ALJ. Therefore, Plaintiff’s
unsupported and conclusory assertion in this regard does not undermine the ALJ’s RFC
determination. See Rutherford, 399 F.3d at 554 (stating that the ALJ is required to include in the
RFC only “credibly established” limitations, i.e., limitations “that are medically supported and
otherwise uncontroverted in the record”).
Finally, Plaintiff challenges the ALJ’s consideration of his subjective complaints.
Plaintiff’s Moving Brief, ECF No. 27, pp. 31–37. “Subjective allegations of pain or other
symptoms cannot alone establish a disability.” Miller v. Comm’r of Soc. Sec., 719 F. App’x 130,
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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, the ALJ must follow a
two-step process in evaluating a claimant’s subjective complaints. S.S.R. 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 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 making this evaluation, the ALJ considers objective medical evidence as well as
other evidence relevant to a claimant’s symptoms. 20 C.F.R. § 404.1529(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).
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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.”). 6
Here, the ALJ followed this two-step evaluation process. The ALJ concluded that
Plaintiff’s medically determinable impairments could reasonably be expected to cause the
symptoms alleged by Plaintiff, 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. 16. As
previously discussed, the ALJ went on to detail years of record evidence and hearing testimony.
R. 16–18. After considering this evidence, the ALJ specifically assessed Plaintiff’s subjective
complaints, explaining as follows:
Factors relevant to the claimant’s symptom-related allegations that I have
considered include the objective medical evidence, longitudinal medical history,
medical opinions and observations by treating and non-treating sources, and nonexamining medical source opinions. Additional factors include the claimant’s daily
activities, the location, duration, frequency, and intensity of the reported symptoms,
the precipitating and aggravating factors, and the type, dosage, effectiveness, and
side effects of any medication the claimant takes or has taken to alleviate
symptoms. Furthermore, I have also considered any other treatment the claimant
may have received for relief of the reported symptoms, any other measures
currently or previously used to relieve symptoms, and other factors concerning the
claimant’s functional limitations and restrictions allegedly caused by these
symptoms.
SSR 16-3p superseded SSR 96-7p on March 26, 2016, to eliminate 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).
23
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Additional factors considered are the consistency of the claimant’s statements as
compared to the objective medical evidence and other information from medical
sources, as well as observations from non-medical persons such as family, friends,
public and private agencies, SSA employees, and adjudicators. The claimant’s
work history is also a consideration (See 20 CFR 404.1529 and 416.929).
In evaluating the claimant’s symptoms under these factors, there are several reasons
why the claimant’s allegations of debilitating symptoms cannot be considered
entirely credible. First, the claimant has described daily activities that are not
limited to the extent one would expect, given the complaints of disabling symptoms
and limitations. Notably, despite the alleged impairments, he reported that he was
able to drive and ride in a car, travel on his own, and perform his own weekly
grocery shopping (Exhibit 5E). Further, he indicated that he could walk for about
20 minutes before needing to rest for 5 to 10 minutes (Exhibit 5E). An ability to
engage in such activities is inconsistent with total disability.
Second, although the claimant received treatment for the allegedly disabling
impairments, that treatment was essentially routine and/or conservative in nature.
Notably, the claimant’s treatment consisted largely of medication management,
which offered adequate control of the alleged symptoms.
Third, while there is opinion evidence suggesting that the claimant was disabled, it
is not adequately supported by the record as outlined above.
Fourth, the claimant did not exhibit debilitating symptoms while testifying at the
hearing. While the hearing was short-lived and cannot be considered a conclusive
indicator of the claimant’s overall level of functioning on a day-to-day basis, the
apparent lack of debilitating symptoms during the hearing is given some slight
weight under the guidance of Social Security Administration regulations in
reaching a conclusion regarding the claimant’s alleged symptoms and maximum
residual functional capacity.
R. 18–19.
Plaintiff attacks each of the ALJ’s four proffered reasons for partially discounting
Plaintiff’s subjective complaints. Plaintiff’s Moving Brief, ECF No. 27, pp. 34–37. First,
Plaintiff contends that his testimony upon which the ALJ relies regarding Plaintiff’s ability to
walk for 20 minutes before needing to rest for 5 or 10 minutes undermines a finding that he
could perform light work, which requires that a person be able to stand and walk for 6 to 8 hours
in an 8-hour day. Id. at 34–35. This Court disagrees. As set forth above, this testimony was but
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one example of the daily activities that the ALJ properly considered when concluding that
Plaintiff’s allegations of debilitating symptoms were not entirely credible. R. 18 (considering
other daily activities such as ability to drive and ride in a car, travel on his own, and perform his
own grocery shopping); see also 20 C.F.R. § 404.1529(c)(3)(i). Moreover, the ALJ simply
referred to the testimony about Plaintiff’s ability to walk for 20 minutes as evidence that was
“inconsistent with total disability.” Id. The ALJ previously explained that he gave “significant
weight” to the state agency doctors, R. 17, who found, inter alia, that Plaintiff could stand and/or
walk for about 6 hours in an 8-hour workday and was capable of light work. R. 63, 65, 76, 78.
Reading the decision as a whole, see Jones, 364 F.3d at 505, substantial evidence supports the
ALJ’s consideration of Plaintiff’s subjective complaints in this regard as well as the RFC for
light work.
Second, Plaintiff contends that the ALJ erred in discounting, in part, his subjective
statements because his treatment “‘was essentially routine and/or conservative in nature.’”
Plaintiff’s Moving Brief, ECF No. 27, p. 35 (quoting R. 18). In support, Plaintiff initially argues
that “[t]he ALJ does not specify what treatment would have constituted a more acceptable
avenue[.]” Id. However, the ALJ properly considered Plaintiff’s routine and/or conservative
treatment when assessing his subjective complaints. See 20 C.F.R. § 404.1529(c)(3)(v); Phillips
v. Barnhart, 91 F. App’x 775, 782 (3d Cir. 2004) (considering the claimant’s conservative
treatment history as a factor that supported the ALJ’s determination to discount the claimant’s
subjective complaints). Moreover, Plaintiff cites no authority for his assertion that the ALJ
should have specified “a more acceptable” method of treatment. See Plaintiff’s Moving Brief,
ECF No. 27, p. 35; cf. Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010) (“The
claimant bears the burden of proof at steps one through four, and the Commissioner bears the
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burden of proof at step five.”) (citations omitted). Plaintiff further contends that he “had to wear
a pneumatic cast 24 hours per day and had his gallbladder surgically removed. There is no
surgical ‘fix’ for spinal stenosis and multi-level disc disease.” Plaintiff’s Moving Brief, ECF No.
27, p. 35. However, Plaintiff cites to no record evidence that supports his apparent assertion that
these impairments require different or more restricted limitations than those found by the ALJ,
nor does he identify what those limitations should be, or otherwise explain how remanding this
action would necessarily lead to a different RFC determination. See Plaintiff’s Moving Brief,
ECF No. 27, p. 35; see also see also Atkins, 2020 WL 1970531, at *4; Claxton, 766 F.3d at 307.
The Court will not guess at Plaintiff’s meaning or construct arguments for him. Padgett v.
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 throw 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.”). Moreover, as previously noted, a mere
diagnosis does not establish disability and entitlement to benefits. Foley, 349 F. App’x at 808;
Phillips, 91 F. App’x at 780.
Third, Plaintiff complains that the ALJ does not explain what part of the record fails to
adequately support opinion evidence suggesting that Plaintiff was disabled. Plaintiff’s Moving
Brief, ECF No. 27, p. 35. However, as discussed earlier, the ALJ specifically considered Dr.
Demarzo’s opinions that Plaintiff should not work and that he was permanently disabled. R. 17.
For the reasons previously discussed, substantial evidence supports the ALJ’s consideration of
these opinions. Plaintiff goes on to argue that “the ALJ seems to confuse total disability in
general with a finding of disability in this case. In this case, a finding that plaintiff could sustain
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sedentary work for 8 hours per day, every day, would result in a directed finding of disability.”
Plaintiff’s Moving Brief, ECF No. 27, p. 35. Plaintiff, however, provides no evidence for his
conclusory assertion that he is limited to sedentary work. See id. Moreover, as detailed above,
the ALJ’s RFC determination for light work is supported by substantial evidence.
Finally, Plaintiff contends that the ALJ erred in discounting his subjective complaints by
relying on observations of Plaintiff’s demeanor during a short administrative hearing. Plaintiff’s
Moving Brief, ECF No. 27, pp. 35–37 (arguing that courts have rejected “sit and squirm
observations”). Here, however, the ALJ’s observation at the hearing was but one of a number of
factors that the ALJ took into account in assessing Plaintiff’s subjective complaints and crafting
the RFC determination. R. 76–78; cf. Holley v. Colvin, 975 F. Supp. 2d 467, 480–81 (D.N.J.
2013), aff’d sub nom. Holley v. Comm’r of Soc. Sec., 590 F. App’x 167 (3d Cir. 2014) (finding
no error in the ALJ’s consideration of the plaintiff’s ability to sit through a 65-minute hearing
where the ALJ’s observations did not serve as the “sole basis” for his assessment of the
plaintiff’s subjective complaints); Guyer v. Saul, No. 3:18-CV-01931, 2020 WL 497286, at *10
(M.D. Pa. Jan. 15, 2020), report and recommendation adopted, No. 3:18CV1931, 2020 WL
504658 (M.D. Pa. Jan. 30, 2020) (finding that the RFC assessment was supported by substantial
evidence where the ALJ considered, inter alia, his own observation at the hearing which
undermined the claimant’s assertions of a need to change positions every couple of minutes
while sitting); Torres v. Comm’r of Soc. Sec., No. 1:17-CV-00843, 2018 WL 1251630, at *8
(D.N.J. Mar. 12, 2018) (“This is not the case where the ALJ substituted her own lay observations
for that of the medical evidence. Plaintiff’s demeanor at the hearing was only one factor in the
ALJ’s comprehensive examination of the evidence in the record, and it was only noted in
reference to the ALJ’s assessment of Plaintiff’s subjective testimony regarding her pain.”);
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Bokor v. Comm’r of Soc. Sec., No. CIV.A. 10-5880, 2012 WL 254130, at *10 (D.N.J. Jan. 27,
2012), aff’d, 508 F. App’x 186 (3d Cir. 2012) (finding that the ALJ provided a clear and
satisfactory explanation of the basis of the RFC when “he adequately justified his decision to
give little credence to the ‘conclusory statements’ contained therein by stating that they were not
corroborated by the clinical evidence of record and were inconsistent with his personal
observations of Plaintiff at the hearing”).
In short, the Court concludes that the ALJ’s RFC determination is consistent with the
record evidence and enjoys substantial support in the record.
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: December 9, 2020
s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE
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