CROOK v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION. Signed by Judge Kevin McNulty on 2/16/2021. (qa, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SOPHIA CROOK,

v.
COMMISSIONER
OF SOCIAL
SECURITY,

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Plaintiff, :
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Defendant. :
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Civil Action No. 18-cv-16223
OPINION

McNULTY, District Judge
This matter comes before the Court on the appeal by Plaintiff Sophia Crook
(“Plaintiff”) of the final decision of the Commissioner of Social Security
(“Commissioner”) determining that she was not disabled under the Social
Security Act (the “Act”). The matter was reassigned from Judge Salas to me.
Having considered the submissions of the parties without oral argument, I will
AFFIRM the Commissioner’s decision.
I.

BACKGROUND 1
Procedural History
This appeal arises from Plaintiff’s application for disability insurance

benefits, alleging disability beginning June 24, 2012. The Social Security

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Citations to the record are abbreviated as follows:
“DE _” = Docket entry in this case

“R. _” = Administrative Record (DE 6) (the cited page numbers correspond to the
number found in the bottom right corner of the page for all DE 7 attachments)
“Pl.’s Br.” = Ms. Crook’s Brief (DE 12)
“Def’s Br.” = Commissioner’s Brief (DE 13)

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Administration denied the application initially (R. 122-131) and again on
reconsideration (R. 180-192). A hearing was held before Administrative Law
Judge (“ALJ”) Kimberly L. Schiro on April 29, 2015. (R. 26-62) She denied a
finding of disability (R. 20-41). Plaintiff thereafter sought review from the Appeals
Council which found no grounds for review on January 31, 2017. (R. 1-5.)
Plaintiff then filed suit in this Court under Case No. 17-cv-211. On September 5,
2017, the Honorable Susan D. Wigenton granted Defendant’s Motion to Remand.
(R. 620.) On December 21, 2017, the Appeals Council vacated the
Commissioner’s final decision and resubmitted the to an ALJ for a further
hearing. (R. 625.) On May 4, 2018, the hearing was held before ALJ Leonard F.
Costa, who issued a partially favorable decision on July 31, 2018. (R. 523-46.)
Plaintiff filed this appeal from the unfavorable component of that decision.
II.

STANDARDS AND ALJ’s DECISION
A.

The Five-Step Process and this Court’s Standard of Review

The Social Security Administration uses a five-step evaluation process for
determining whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520,
416.920. In the first step, the Commissioner determines whether the claimant
has engaged in substantial gainful activity since the onset date of the alleged
disability. Id. §§ 404.1520(b), 416.920(b). If not, the Commissioner moves to step
two to determine if the claimant’s alleged impairment, or combination of
impairments, is “severe.” Id. §§ 404.1520(c), 416.920(c); see also 20 C.F.R. §
416.924(c). If the claimant has a severe impairment, the Commissioner inquires
in step three as to whether the impairment meets or equals the criteria of any
impairment found in the Listing of Impairments. 20 C.F.R. Pt. 404, Subpt. P,
App. 1, Pt. A. In doing so, the Commissioner must consider the combined effect of
all medically determinable impairments, even those that are not severe. 20 C.F.R.
§ 416.923, 416.924a(b)(4), 416.926a(a) and (c). If so, the claimant is
automatically eligible to receive benefits (and the analysis ends); if not, the
Commissioner moves on to step four. Id. §§ 404.1520(d), 416.920(d). In the
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fourth step, the Commissioner decides whether, despite any severe impairment,
the claimant retains the Residual Functional Capacity (“RFC”) to perform past
relevant work. Id. §§ 404.1520(e)–(f), 416.920(e)–(f). The claimant bears the
burden of proof at each of these first four steps. At step five, the burden shifts to
the Social Security Administration to demonstrate that the claimant is capable of
performing other jobs that exist in significant numbers in the national economy
in light of the claimant’s age, education, work experience, and RFC. 20 C.F.R. §§
404.1520(g), 416.920(g); see Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91–92
(3d Cir. 2007) (citations omitted).
For the purpose of this appeal, the Court’s review of legal issues is plenary.
See Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Factual
findings are reviewed “only to determine whether the administrative record
contains substantial evidence supporting the findings.” Sykes v. Apfel, 228 F.3d
259, 262 (3d Cir. 2000). Substantial evidence is “less than a preponderance of
the evidence but more than a mere scintilla.” Jones v. Barnhart, 364 F.3d 501,
503 (3d Cir. 2004) (citation omitted). “It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. When
substantial evidence exists to support the ALJ’s factual findings, this Court must
abide by the ALJ’s determinations. See id. (citing 42 U.S.C. § 405(g)).
B.

The ALJ’s Decision

The ALJ applied the five-step framework.
At step one, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since March 30, 2013. (R. 528.)
At step two, the ALJ found that plaintiff has the following severe
impairments: low back disorders, hypertension, history of anemia, knee
pain/arthritis disorder, depressive disorder, adjustment disorder and borderline
intellectual disorder. (R. 528–29.)
At step three, the ALJ concluded that plaintiff does not have an impairment
or combination of impairments which meet any impairment set forth in a Listing.
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(R. 529–32.)
At step four, the ALJ found that since June 24, 2012, Plaintiff retained the
residual functional capacity (“RFC”) to perform sedentary work. Her RFC
precluded climbing ladders or scaffolds; and limited her from standing and
walking more than two hours in an eight-hour workday; but permitted occasional
operation of push/pull controls.
At step five, the ALJ made two findings: (1) Plaintiff was not disabled prior
to April 6, 2017, according to the Medical-Vocational Guidelines; but (2) became
disabled on April 6, 2017 and remained disabled through the date of the ALJ’s
decision. Plaintiff’s disability status changed as of that date because she
graduated to the category of a person approaching advanced age—i.e., from ages
50 to 54—pursuant to 20 CFR 404.1563 and 416.963. Before April 6, 2017, the
ALJ found, based on the testimony of a vocational expert, that there were jobs
existing in in significant numbers in the national economy which Plaintiff could
perform. After that date, however, this was no longer true; for a person
approaching advanced age, jobs in significant numbers did not exist in the
national economy that she could perform. Hence, the ALJ concluded that
beginning on April 6, 2017, Plaintiff was disabled within the meaning of the Act.
III.

DISCUSSION
On appeal, Plaintiff argues that the Commissioner’s decision should be

reversed to the extent she was found not to be disabled before April 6, 2017. She
contends that the ALJ erred at steps three, four, and five. Essentially, Plaintiff
contends (1) that the ALJ failed to consider whether a combination of Plaintiff’s
impairments is medically equivalent to several Listings; and (2) that the ALJ’s
conclusions are not based on substantial evidence.
A. Step Three – Whether Plaintiff Qualifies for a Listing
At step three, Plaintiff argues, the ALJ failed to recognize that her combined
physical and mental conditions were equivalent to the Listings. (Pl.’s Br. at 16.)
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In particular, she points to Listings 12.02 (neurocognitive disorders), 12.04
(depressive, bipolar, and related disorders), 12.05B (intellectual disorder), and
12.06 (anxiety and obsessive-compulsive disorders). (Id.)
According to plaintiff, the ALJ failed to take into account “crucial” evidence
that would have established that she had “‘marked limitations’ in managing
information, interacting with others and (concentration, persistence and pace),”
and thus would meet the requirements for the psychiatric listings above. (Id. at
17, 26.) Specifically, plaintiff takes issue with the ALJ’s treatment of the 2012
report of a psychologist, Dr. Yalkowsky. The ALJ cited that report in support of
his conclusion that the plaintiff did “not manifest a significant deficit in adaptive
functioning.” (Id. at 17-18 (citing R. 531-532).) Plaintiff claims this analysis
omitted important facts, however: particularly, that Plaintiff “had been homeless,
that welfare pays her rent, that she has no friends, that she unable to shop
independently,” that she had limitations with short term memory and arithmetic,
and that she is illiterate. (Pl.’s Br. at 18).
I conclude plaintiff does not meet any of the Listings.
Listing 12.02 (neurocognitive disorders) requires:
. . . a clinically significant decline in cognitive functioning.
Symptoms and signs may include, but are not limited to,
disturbances in memory, executive functioning (that is,
higher-level cognitive processes; for example, regulating
attention, planning, inhibiting responses, decisionmaking), visual-spatial functioning, language and speech,
perception, insight, judgment, and insensitivity to social
standards.
Subsection 12.02(B)(1)(a) (Emphasis added). Importantly, this listing requires
“[m]edical documentation of a significant cognitive decline from a prior level of
functioning in one or more of several listed cognitive areas.” (Emphasis added).
Plaintiff has failed to cite evidence that her cognitive functioning declined from a
prior level over the several years of evaluations. Her argument that she “has
exhibited a decline in virtually all of these . . . criteria functions (except for
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language)” is conclusory; no evidence or facts are cited. (Pl.’s Br. at 22). The
burden at step three rests with plaintiff, and that burden is not met here.
Plaintiff has thus failed to demonstrate harmful error. See Shinseki v. Sanders,
556 U.S. 396, 409–10 (2009).
Next, plaintiff challenges the ALJ’s ruling that he had considered plaintiff’s
mental afflictions “singly and in combination” but that she did “not meet or
medically equal the criteria of listings 12.04, 12.05 or 12.06.” (R. 530.) Here,
plaintiff relies heavily on a report from a single psychologist, Dr. Linehan, who
opined that plaintiff is “of probable borderline intellectual potential . . .
functioning most likely within the mild range of mental retardation to the
borderline range on a brief test of cognitive abilities.” (Pl.’s Br. at 23.) Yet Dr.
Linehan cautions that this observation “would need to be corroborated by formal
testing.” (Id.) Such a qualified conclusion is insufficient to support plaintiff’s
assertion that Dr. Linehan’s observations “confirm [her] disability under the
listings.” (Id. at 26.)
As for Listing 12.04 (depressive, bipolar, and related disorders), the
Commissioner cites evidence that plaintiff did not report taking medication for
her mental complaints (R. 820, 822, 824), and regularly attended talk therapy.
(R. 475-518, 816-24.) The Commissioner also notes that a psychiatrist, Dr. Efobi,
reviewed the reports of Dr. Yalkowsky and Dr. Linehan, and found that plaintiff
specifically did not meet Listing 12.04. Rather, Dr. Efobi concluded, plaintiff
suffered from depression which would entail mild limitations to interacting in the
work setting. (Def. Br. at 13, 16); (R. 467.) This was substantial evidence on
which the ALJ could legitimately rely.
Plaintiff’s 12.05 argument is flawed on its face. First, plaintiff failed to
argue that her supposed intellectual disorder began prior to her attaining the
age of 22. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05B(3); (Def. Br. at 14.)
Second, although she points to a reported full scale IQ score of 68, which meets
one of the requirements of 12.05B, she has not brought forth any evidence that
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she meets the others: i.e., that she suffers from an “extreme limitation of one, or
marked limitation of two” of four listed areas of mental functioning, a
requirement of Listing 12.05. 20 C.F.R. pt. 404, subpt. P,app. 1, § 12.05B(1)(a),
(2).
As for plaintiff’s other factual contentions, substantial evidence supports
the ALJ’s contrary conclusions. For instance, plaintiff claims that she was
entirely friendless, but the record contains a “third party function report” from
her friend, Teresa Spence, in March 2017. Spence reported that plaintiff is
capable of interacting with others, is “good “at handling stress, and can adapt to
changes in her routine. (R. 536.) The ALJ accorded this report “some weight, as
Ms. Spence is a friend who does observe” plaintiff. (Id.) Plaintiff’s claim of
illiteracy is also contradicted by the evidence in the record. (R. 280); (Pl.’s Br. at
37.) Plaintiff herself stated in 2017 that she “reads the Bible” (R. 533, 702-03,
818), has past relevant work as a salesclerk (R. 582), and attended school
through eighth grade (R. 531.) No treating or examining physician confirms her
claim that she cannot read. (Def. Br. at 15.)
I thus find that substantial evidence supported the ALJ’s step 3 findings.
B. Step Four – Whether the ALJ’s Assessment of Plaintiff’s RFC Was
Based on Substantial Evidence
At step four, plaintiff contests the ALJ’s assessment of her RFC, arguing
that it is not based on substantial evidence. (Pl.’s Br. at 26-27.) The RFC, as
found by the ALJ, is as follows:
Only occasional climbing of ramps/stairs, stooping,
kneeling, crouching, balancing, or crawling; never
climbing ladders/ropes/scaffolds; only occasional
pushing or pulling of controls with the lower
extremities; occasional interaction with the general
public, coworkers, and supervisors; having the ability
to understand, remember, and carry out simple
instructions; only occasional changes to essential job
functions; and having the ability to make simple workrelated decisions.
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(R. 583-84.) The vocational expert acknowledged that those limitations precluded
plaintiff from performing her past relevant work. (R. 585.) Still, plaintiff could
perform representative alternative work as a document preparer, touchup
screener, and final assembler. (Id.)
Plaintiff claims that the ALJ simply dismissed her hypertension, fatigue,
obesity, and shortness of breath. She notes Dr. Robert Clarke’s conclusion that
she had problems walking and lifting due to shortness of breath, and that her
hypertension and other ailments excluded her from work requirements. (R. 535–
36.) The ALJ, however, discounted those conclusions because Dr. Clarke did not
provide a narrative explanation for his opinion or describe specific work-related
limitations helpful for assessing plaintiff’s functional capacity. Those are
acceptable reasons for discounting a physician’s decision, even if another ALJ
might have, in another case, come to a different conclusion. (R. 535–36.)
Similarly, the ALJ plainly considered plaintiff’s “musculoskeletal
impairments in conjunction with hypertension and obesity.” He evaluated the
evidence bearing on plaintiff’s ability to walk or stand, including Dr. Clarke’s
conclusions that plaintiff could not walk or lift due to shortness of breath and his
evaluation that plaintiff could not sit or stand due to ankle surgery in February of
2015. (R. 535–36.) The ALJ also considered Dr. Ahmed’s report, which concluded
that these evaluations predated plaintiff’s ankle surgery, which podiatric records
indicated had contributed to a significant improvement in her walking ability. (R.
536.) The ALJ thus did not disregard the relevant evidence or ignore
musculoskeletal impairments; he had substantial evidence on which to base his
decision that plaintiff could not perform work requiring “standing and walking
more than two hour in an eight-hour workday . . . carrying more than [ten]
pounds, [or otherwise in]consistent with a sedentary exertional level.” (R. 534.)
C. Step Five – Plaintiff’s RFC Limitations
Finally, plaintiff makes the following arguments contesting the ALJ’s step
five conclusion: (1) the ALJ did not include all of plaintiff’s specific RFC
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limitations in the hypothetical; and (2) the ALJ applied Medical-Vocational
Guidelines, or “Grids,” “mechanically without explanation” and also failed to
account for plaintiff’s supposed illiteracy. Id.
The Third Circuit in Rutherford v. Barnhart, promulgated the following
standard for hypothetical questions to vocational experts:
[T]he directive in Podedworny is that the hypotheticals posed
must “accurately portray” the claimant’s impairments and
that the expert must be given an opportunity to evaluate those
impairments “as contained in the record.” [...] Fairly
understood, such references to all impairments encompass
only those that are medically established. And that in turn
means that the ALJ must accurately convey to the vocational
expert all of a claimant’s credibly established limitations.
399 F.3d 546, 553 (3rd Cir. 2005) (citations omitted).
“[C]redibly established limitations” are those that are in the RFC
determination and supported by substantial evidence. The record shows that
the hypothetical fully incorporated the ALJ’s RFC conclusions. (R. 584.) I have
already found that the RFC was supported by substantial evidence. Thus, the
ALJ committed no error in using it as the basis for a hypothetical question to
the vocational expert.
Plaintiff’s step five contention also rests on the notion that the ALJ should
have considered her alleged illiteracy under Grid 201.17, which may justify a
finding of disability for “younger individuals age 45-49” who are “illiterate or
unable to communicate in English” and limited to sedentary work. As
addressed earlier, plaintiff relies on a single statement she made to Dr.
Yalkowsky that she is illiterate, but there is ample evidence to the contrary. (R.
280.) As previously noted, for instance, plaintiff completed forms and
applications for benefits (R. 219-26, 699-706, 709-16), stated she reads the
Bible (R. 533, 702-03, 818), “and performed semi-skilled work for fourteen
years.” (R. 465.) Substantial evidence thus supports the ALJ’s rejection of
plaintiff’s claim of illiteracy; this was not a credibly established limitation.
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Finally, plaintiff challenges the award of benefits starting on her 50th
birthday, arguing that the ALJ “had the discretion to award benefits up to [six]
months earlier” but provided no explanation for not doing so. (Pl.’s Br. at 36-37.)
The Commissioner’s regulations state that “[w]e will not apply the age categories
mechanically in a borderline situation. If you are within a few days to a few
months of reaching an older age category, and using the older age category would
result in a determination or decision that you are disabled, we will consider
whether to use the older age category after evaluating the overall impact of all the
factors of your case.” 20 C.F.R. §§ 404.1563(b), 416.963(b) (emphasis added).
The regulations define a borderline age issue as follows:
1. The claimant reached or will reach the next higher
age category within a few days to a few months after
the . . . date of adjudication” . . . ; and
2. Using the claimant’s chronological age results in a not
disabled determination; and [u]sing the next higher
age category to adjudicate the borderline period
results in a disabled determination.
The ALJ found that plaintiff became disabled on April 6, 2017—the date
plaintiff’s age category changed to that of a person approaching advanced age. (R.
537.) She did not attain the age of 50 “after the . . . date of adjudication”; the ALJ
issued his decision on July 31, 2018. This did not meet the definition of a
“borderline age” situation in which mechanical application of the age category
resulted, or would have resulted, in an unfair denial. Id.
CONCLUSION
The ALJ’s decision was legally correct and supported by substantial
evidence. It is affirmed.
Dated: February 16, 2021
/s/ Kevin McNulty
KEVIN MCNULTY, U.S.D.J.

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