FAMULARO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 2/17/2021. (lag, )
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 20-1655 (KM)
COMMISSIONER OF SOCIAL
KEVIN MCNULTY, U.S.D.J.:
Claimant Christin Famularo appeals the final administrative decision of
the Commissioner of Social Security denying her claim for disability insurance
benefits. For the reasons provided herein, I will affirm the Commissioner’s
On May 24, 2016, Famularo filed a Title II application for a period of
disability and disability insurance benefits beginning October 15, 2015. (Tr.14).
Her claim was denied initially on September 8, 2016, and then upon
reconsideration on December 6, 2016. (Id.) Famularo then filed a request for a
hearing, which was held on September 26, 2018. (Id.). At the hearing, both
Famularo and Jackie Wilson, a vocational expert, testified. (Id.)
Following that hearing, on December 27, 2018, Administrative Law
Judge (“ALJ”) Sharon Allard concluded that Famularo had not been under a
Citations to the record will be abbreviated as follows. Citations to page numbers
refer to the page numbers assigned through the Electronic Court Filing system, unless
“DE” = Docket entry number in this case.
“Tr.” = Citations to the Administrative Record (DE 8)
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disability within the meaning of the Social Security Act (“SSA”) from October
15, 2015 through the date of the decision. (Tr.15). On January 16, 2020, the
Appeals Council denied Famularo’s request for review and the ALJ decision
thereby became final. (Tr. 1). Famularo now appeals to this Court.
a. Legal standard
Under the authority of the Social Security Act, the Social Security
Administration has established 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). 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. Part 404, Subpart P, Appendix 1, Part A. 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 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 conducts a plenary review of the
legal issues. See Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir.
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1999). The factual findings of the ALJ 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. ALJ Decision under review
Here, ALJ Allard made the following findings of fact and conclusions of
First, the ALJ found that Famularo met the insured status requirements
of the SSA through September 30, 2020, and had not engaged in substantial
gainful activity since October 15, 2015, the alleged onset date. (Tr.16–17)
Next, the ALJ found that Famularo has four severe medically
determinable impairments that significantly limited the ability to perform basic
work activities: complex regional pain syndrome secondary to multiple foot
surgeries, arthropathies, osteoarthritis, and obesity. (Id.) Additionally, the ALJ
found that Famularo has three non-medically determinable impairments: spine
disorders, fibromyalgia, and mental impairments.
With respect to the spine, “an MRI of the lumbar spine taken on
November 20, 2015 was normal” and “[a] physical exam of the lumbar spine in
June 2016 was normal.” (Id.).
As for the mental impairments, Famularo “had entirely normal mental
exams,” and “both agency medical consultants, Bernard Pierce, Ph.D., and
Michael Cremerius, Ph.D., both opined in September and November 2016,
respectively, that [Famularo] had no mental medically determinable
impairments.” (Id.). Both consultants reasoned that Famularo “had no
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allegations of impairments that were mental in nature and no medical evidence
of a mental impairment.” (Id.)
Finally, regarding the fibromyalgia, the impairment is not medically
determinable “because the components required by SSR 12-2p have not been
met.” (Id.) Specifically, there is not medical evidence that Famularo “had at
least 11 positive tender points in any of her physical exams” and she “does not
have repeated manifestations of fibromyalgia of six or more fibromyalgia
symptoms, such as fatigue, cognitive or memory problems, waking up
unrefreshed, depression anxiety, or irritable bowel syndrome.” (Id.)
The ALJ then found that Famularo does not have an impairment or
combination of impairments that meets or medically equals the severity of a
No treating or examining physician has indicated clinical signs or
diagnostic findings that meet or are comparable to the severity
requirements of a listed impairment. Specific consideration has been
given to the applicable listings under section 1.00 Musculoskeletal
System of the listed impairments. In addition, SSR 02-1p Obesity
was adequately considered, both singularly and in combination with
the claimant’s underlying impairments.
Next, the ALJ determined that Famularo has the RFC to perform
sedentary work as defined in 20 CFR § 404.1567(a). 2 (Id.) Specifically,
Famularo can “lift and carry up to ten pounds occasionally and less than ten
pounds frequently and stand/walk for two hours and sit for six hours in an
The regulations define sedentary work as follows:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a).
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eight-hour workday.” (Id.) Further, Famularo “can occasionally kneel, stoop,
crouch, balance on wet, moving, or uneven surfaces, and climb stairs and
ramps” and “can occasionally push and pull and operate foot controls with the
right lower extremity and can frequently handle and finger, but cannot crawl or
climb ladders, ropes, and scaffolds.” (Tr, 17-18). Further, Famularo “must
avoid hazards, including moving mechanical parts or at unprotected heights
and must avoid vibrations.” (Tr.18). Finally, Famularo “will be off task for 10%
of the workday due to her physical impairments.” (Id.)
In making that RFC determination, the ALJ first considered Famularo’s
self-reported symptoms. Famularo, “a 36-year-old woman, alleges disability
based on complex regional pain syndrome involving the right foot” and reports
“limitations in lifting, squatting, walking, sitting, stair climbing, bending,
standing, kneeling, and concentration.” (Id.) Further, she submits that “she
cannot walk or sit for long periods without severe pain, needs to sit when
showering, cannot stand for more than twenty minutes when preparing meals,
and relies on help from her mother in cooking and cleaning.” (Id.) Finally,
Famularo stated that “she could walk, stand, or sit for no more than twenty
minutes, was limited in carrying, and cannot attend as many social [activities]
due to foot pain.” (Id.)
The ALJ also considered Famularo’s medical record. On June 7, 2012,
Famularo “underwent an arthroplasty of the right second toe with insertion of
an implant.” (Tr.18). The implant was removed three months later “due to
hammertoe and possible fracture of the implant.” (Id.) Then, in April 2013,
Famularo “received therapeutic injections into the right second web space
neuroma and deep peroneal nerve.” (Id.) Five months later Famularo
“underwent a right second MTP arthroplasty and a right redo hammertoe Du
Vries type arthroplasty and excision of a mass from the second right toe.”
In August 2014, Famularo “was treated for an infection in the right foot,
which led to a diagnosis of cellulitis and abscess in the right foot.” (Tr.19). She
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was then treated with medication that improved her pain. (Id.). Famularo was
also hospitalized from September 24 to September 30, 2014, “due to right foot
cellulitis status post incision and drainage of the right first interspace
infection.” (Id.). A September 24, 2014 X-ray of the right foot “showed a status
post prior resection of a second PIP implant and irregularity of the bone surface
that was present, which may be chronic.” (Id.). The following day, “an MRI of
the right foot displayed a diffuse subcutaneous edema in the plantar aspect of
the foot at a level of the second digit and bone marrow edema in the middle
phalanx of the second digit.” (Id.). Those MRI results demonstrated “a
possibility of early osteomyelitis.” (Id.). Famularo was then “treated with IV
antibiotics and pain medication and she was discharged in stable condition.”
(Id.). Three months later, “an MRI of the right foot showed changes of the
second proximal phalanx with sinus tract cellulitis and osteomyelitis.” (Id.). The
ALJ noted that “[t]here was probably avascular necrosis or sesamoiditis
involving the fibular sesamoid.” (Id.).
The ALJ also considered reports from examining physicians. Famularo
saw Robert Silverman, M.D. five times between October 2015 and June 2016.
(Id.). Those examinations “exhibited a full range of motion of the extremities
with tenderness, erythema, and marked allodynia between the right great and
second toe dorsum.” (Id.) Famularo’s neurological examinations were normal,
“other than an antalgic gait on the right side.” (Id.) Dr. Silverman “consistently
diagnoses [Famularo] with complex regional pain syndrome that was stable,”
and “[b]y June 26, 2015, Dr. Silverman indicated that claimant’s symptoms
were well managed by the present regimen.” (Id.).
On January 26, 2015, Gary Knackmuhs, M.D., conducted “an infectious
disease evaluation” on Famularo. (Id.). That exam revealed “a large open wound
between the great toe and second toe.” (Id.). However, “there was no erythema.”
(Id.). Famularo’s neurological exam demonstrated a “normal gait, power, tone,
and sensation to light tough as well as intact cranial nerves.” (Id.). Dr.
Knackmuhs diagnosed Famularo “with osteomyelitis of the right second toe
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and possible avascular necrosis or infection of the sesamoid bone.” (Id.). A
February 18, 2015 MRI of the right foot “showed extensive cellulitis
surrounding the second toe, some phlegmon along the plantar-medial aspect of
the proximal phalangeal remnants that may be present, and had exuberant
marrow edema in the fibular sesamoid of the hallux.” (Id.). Further,
“osteomyelitis was a possibility given the proximity of the sesamoid to the
cellulitic area.” (Id.). However, “there was no compelling evidence for
osteomyelitis involving the second digit.” (Id.)
On September 14, 2015, Famularo was examined by John Nogueira,
M.D. for right foot pain. (Tr.20). Famularo reported “that she had constant
pain, swelling, and redness in the right foot, but admitted that Percocet helped
the pain and that she recently returned to work.” (Id.). The “physical
examination was essentially normal, with 5/5 strength in the right leg, normal
reflexes, and . . . ability to stand without difficulty.” (Id.). However, Famularo
“had an antalgic gait and severe allodynia dorsum of the right foot near D2,”
and “Dr. Nogueira diagnosed [her] with complex regional pain syndrome and
gave her a prescription for aqua therapy and a sympathetic nerve clock.” (Id.).
The ALJ noted that “two general medical reports were submitted by Joe
Najjar, M.D. and Neal Yudkoff, DPM,” but “neither doctor provided an opinion
since they had not seen [Famularo] since prior to her alleged onset date.” (Id.)
The ALJ also considered the examinations conducted by consultants at
the request of the Social Security Administration. Marc Weber, M.D. examined
Famularo on August 23, 2016. (Id.). Dr. Weber observed that Famularo “was in
no acute distress, had 5/5 muscle strength in the upper and lower extremities,
and 5/5 grip and pinch strength.” (Id.). However, Famularo “had only trace
movement in the right ankle dorsiflexion and plantar flexion as well as in the
toe of the right foot.” (Id.). A “sensory examination revealed dysesthesias as well
as allodynia involving the right foot,” however “[t]here was no edema or muscle
atrophy noted, but deep tendon reflexes were not tested in the right foot.” (Id.)
Dr. Weber also observed that Famularo “had normal range of motion of the
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cervical spine and upper extremities, deferred range of motion for the lumbar
spine, and had 0-5 degrees dorsiflexion of the right ankle.” (Id.) He diagnosed
Famularo “with complex regional pain syndrome involving the right foot and a
history of osteomyelitis involving the right foot.” (Id.). Dr. Weber further opined
that Famularo “could fully extend her hands, make fists, oppose fingers,
separate papers, and lift a pin off the table, but could not stand on her heels
and toes or perform a squat.” (Id.). He added that Famularo “could ascend and
descend the examination table independently, remove and put on her shoes,
and her gait pattern was characterized by an inability to bring her right foot flat
to the floor and ambulated on the lateral portion of her right foot with the use
of a straight cane.” (Id.).
On August 30, 2016, state agency medical consultant Jose Acuna, M.D.,
performed a physical RFC assessment. (Id.) He opined that Famularo “was
limited to sedentary exertional work with a limitation in pushing and pulling
using the right lower extremity.” (Id.) Further, Famularo “could occasionally
balance, kneel, crouch, crawl, and climb stairs and ramps, but could never
climb ladders, ropes, or scaffolds.” (Id.) Dr. Acuna also added that Famularo
“had no manipulative, visual, or communicative restrictions, but must avoid
even moderate exposure to vibration and hazard such as machinery and
unprotected heights.” (Id.). On November 23, 2016, Dr. Acuna’s findings were
affirmed on reconsideration by state agency medical consultant Joseph
Udomsaph, M.D. (Id.).
On August 1, 2017, Steven Lomazow, M.D. examined Famularo to
evaluate her complex regional pain syndrome. (Id.). Dr. Lomazow noted that
Famularo “had trouble with her right foot since 2006 and subsequently had 15
surgeries, including a failed implant in 2012 and a 2014 hospitalization for a
staph infection.” (Id.) He further noted that Famularo “was obese, both of her
legs appeared somewhat swollen, and [there was] potential hyperesthesia of the
second toe of the right foot.” (Tr.20-21). However, the “motor examination
showed no evidence of any specific loss of bulk, tone, or strength and a gait
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examination indicated no evidence of retropulsion or propulsion.” (Tr.21).
Further, Famularo’s “mental status exam was entirely normal.” (Id.) Dr.
Lomazow concluded that Famularo “had some sort of neuropathic pain
syndrome and said there was nothing he could do since he did not treat
patients with chronic pain, but [he] prescribed Percocet for one month.” (Id.).
Dr. Lomazow further concluded that Famularo “was totally disabled because of
her foot and complex regional pain syndrome.” (Id.).
From October 2017 through September 2018, Nilay Shah, M.D.,
examined Famularo five times. (Id.). Those examinations demonstrated that
Famularo “was obese with a body mass index of 35.7, but had 5/5 strength in
all four extremities with some giveaway due to pain, no tremors, and intact
sensation to pinprick except to the right foot,” and that “the right foot had
hyperesthesia to light touch and her gait was normal based, but antalgic.” (Id.).
Dr. Shah diagnosed Famularo “with complex regional pain syndrome of the
right foot, but feared in September 2018 that it spread to all four limbs.” (Id.).
Dr. Shah “recommended continued medication management to treat the pain.”
Finally, the ALJ considered the examinations by Henry Sardar, DO, who
treated Famularo primarily for right foot pain between September 2016 and
October 2018. (Id.). Those examinations “repeatedly reflected” that Famularo
had “a slow gait, mild difficulty standing on her heels and toes, good balance,
and was able to ambulate independently without the use of any assistive
devices.” (Id.) However, the examinations also revealed that Famularo had “a
decreased range of motion in plantar flexion and dorsiflexion of the right foot
with mild swelling with pressure points palpated at the bottom of the right
foot.” (Id.) Further, “[t]he right foot displayed significant tenderness, tissue
texture changes, positive joint laxity, and diminished vascular pulses.” (Id.).
Famularo was “consistently diagnosed” with “right foot pain and complex
regional pain syndrome.” (Id.). By October 2018, Famularo “had 70% pain relief
and overall improvement from her pain.” (Id.)
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After consideration of the record, the ALJ concluded that Famularo’s
“medically determinable impairments could reasonably be expected to cause
the alleged symptoms.” (Id.) However, the ALJ found that Famularo’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.” (Id.). The ALJ then determined that Famularo has the
RFC to perform sedentary work. (Tr.17, 20).
The ALJ premised her RFC determination upon the following. First,
Famularo “has received treatment for her impairment(s)[and] that treatment
has been essentially routine and/or conservative in nature.” (Id.). Secondly,
The ALJ reasoned that the medical evidence of record supports Famularo’s
ability to perform sedentary work:
The objective physical findings are fairly routine and do not show
that the claimant was debilitated to the point of being disabled. Also,
despite repeated observation of an antalgic gait, the medical
evidence repeatedly demonstrated the claimant’s ability to ambulate
independently. She had pain relief and improvement in her activities
of daily living with medication management.
Third, regarding the opinion evidence, the ALJ gave “considerable weight”
to “Dr. Acuna and Dr. Udomsaph because both doctors accurately found
[Famularo] was not disabled and remained capable of performing sedentary
work.” (Tr.22). Although the ALJ found that Famularo “has more functional
restrictions than opined by Dr. Acuna and Dr. Udomsaph,” the “opinions of
both doctors generally support the overall finding that [Famularo] has
physical limitations that does not preclude all work activities.” (Id.).
The ALJ gave “some weight to Dr. Weber with greater weight being given
to the fact that he was able to personally examine [Famularo] and observed
some functional limitations.” (Id.) However, the ALJ found that “Dr. Weber’s
opinion is undermined by the fact [that] he did not administer a comprehensive
functional assessment” to examine Famularo’s “ability to sit, stand, walk, lift,
carry, push and pull.” (Id.).
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Little weight was given to both Dr. Lomazow and Dr Shah. (Id.). With
respect to the former, the ALJ noted that “he examined [Famularo] just once,
did not treat patients with chronic pain, and opined that [she] was totally
disabled, which is an opinion reserved for the Commissioner.” (Id.). Further,
the ALJ found that Dr. Lomazow’s “is not consistent with the medical evidence
of record that shows despite chronic foot pain, the claimant retained the
capability to perform sedentary work.” (Id.)
Regarding Dr. Shah, the ALJ found that “his opinion is vague, broad, and
is contradicted by his own treatment notes seen in Exhibits 19F and 20F as
well as the other medical evidence of record.” (Id.) In particular, his medical
exams demonstrated that Famularo’s “physical issues were confined to the
right foot,” but he nevertheless suggested that Famularo is incapable “of doing
any sort of physical activity on a regular basis.” (Id.) The ALJ noted that
“despite right foot pain, the medical evidence is clear in establishing that it
does not preclude the claimant for all work activities.” (Id.)
After determining Famularo’s RFC, the ALJ found that she is unable to
perform any past relevant work as a pediatric nurse, pediatric nurse
practitioner, advanced practice nurse, and nursing instructor because
Famularo “is limited to no more than sedentary exertional work.” (Tr.22-23).
Because Famularo was thirty-three years old at the time of the alleged onset
date, she is considered a “younger individual.” (Tr.23). Famularo has at least a
high school education and is able to communicate in English. (Id.) The ALJ
further found that transferability of job skills is not material. (Id.).
Finally, the ALJ found that, considering Famularo’s, age, education,
work experience, and RFC, there are job that exist in significant numbers in
the national economy that Famularo can perform. (Id.). The ALJ noted that the
vocational expert testified that, given those factors, Famularo “would be able to
perform the requirements of representative occupations such as table worker
(DOT 739.687-183), which has 508,000 jobs nationally; document preparer
(DOT 249.587-018), which has two million nationally; and as a order clerk
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(DOT 209.567-014), which has 185,000 jobs nationally.” (Tr.24). All of those
occupations “require sedentary physical exertion and are unskilled with an SVP
of two.” (Id.). The ALJ found the vocational expert’s testimony consisted with
the Dictionary of Occupational Titles.” (Id.)
In sum, based on the vocational expert’s testimony, and considering
Famularo’s age, education, work experience, and RFC, the ALJ determined that
Famularo “is capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.” (Id.). Therefore, the ALJ
entered a finding of not disabled. (Id.)
c. Claimant’s Appeal
Famularo asserts that the Commissioner’s final decision is not based on
substantial evidence and is flawed as a matter of law. (DE 11 at 1). Famularo
presents four bases upon which the final agency decision should reversed. I
will address each in turn.
1. Discounting and ignoring relevant evidence of disability
First, Famularo submits that the ALJ committed legal error by
discounting and ignoring probative evidence of disability without good reason.
(DE 11 at 7).
An “ALJ cannot reject evidence for no reason or for the wrong reason.”
Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981). Therefore, the ALJ must
explain “the reason why probative evidence has been rejected . . . so that a
reviewing court can determine whether the reasons for rejection were improper.
Id. at 707. Additionally, “[a] cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians’ reports great weight,
especially ‘when their opinions reflect expert judgment based on a continuing
observation of the patient's condition over a prolonged period of time.’” Morales
v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999)); see also Brewster v. Heckler, 786 F.2d 581, 585 (3d
Cir. 1986) (noting that where “the opinion of a treating physician conflicts with
that of a non-treating, non-examining physician, the ALJ must make clear on
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the record his reasons for rejecting the opinion of the treating physician.”).
Further, an “ALJ must consider the medical findings that support a treating
physician's opinion that the claimant is disabled.” Morales, 225 F.3d at 317.
An ALJ may reject outright such treating physician’s determination “‘only on
the basis of contradictory medical evidence’ and not due to his or her own
credibility judgments, speculation or lay opinion.” Id. (quoting Plummer, 186
F.3d at 429).
Here, Famularo submits that all of the treating doctors agree that she
has significant pain, significant limitation of function, and is unable to work.
(DE 11 at 8). Famularo points to the opinion of Dr. Lomazow that she is “totally
disabled.” (Id.). She further cites to Dr. Shah’s treatment notes. (Id.). In those
notes, Dr. Shah transcribed Famularo’s self-reporting that “her hands are
numb and weak” and that Famularo cannot “hold onto things without dropping
them.” (Tr.363). Famularo also highlights her own testimony that her hands
hurt as much as her feet (Tr.59); that her hands are numb which causes her to
lose grip of items in her grasp (Tr.75); and that her pain is so severe it impacts
her ability to concentrate (Tr. 75).
The Commissioner contends that the ALJ thoroughly discussed
Famularo’s medical record and weighed all medical opinions with supporting
rationale. (DE 17 at 11-12). I agree. With respect to Dr. Lomazow’s opinion
that Famularo is totally disabled, the ALJ properly gave it little weight because
the ultimate disability determination is an administrative rather than medical
finding. 20 C.F.R. § 404.1527 (noting that some opinions are not medical
opinions, and that the Commissioner is “responsible for making the
determination or decision about whether [a claimant] meets the statutory
definition of disability.”); 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.”).
Secondly, the ALJ noted that Dr. Lomazow examined Famularo “just once” and
“did not treat patients with chronic pain.” (Tr.22). Thus, his opinion does not
“reflect expert judgment based on a continuing observation of the patient’s
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condition over a prolonged period of time.” See Morales, 225 F.3d at 317
(internal quotation marks omitted) (quoting Plummer, 186 F.3d at 429).
Finally, the ALJ found that Dr. Lomazow’s opinion was inconsistent with
the medical evidence of record. (Tr.22) For example, after Famularo visited the
emergency room in September 2014, she was discharged in stable condition.
(Tr.277). In September 2015, Famularo went to Hackensack Neurology Group
due to pain in her foot. (Tr.293). After examining Famularo, Dr. Nogueira
indicated that she appeared “well-nourished, in no acute distress, general level
of motor activity normal, cooperative during history and examination.” (Tr.294
(emphasis added)). Dr. Nogueira diagnosed Famularo with complex regional
pain syndrome and plotted a course of treatment that included aqua therapy
and a sympathetic nerve block. (Tr.295). June 2016 notes from Dr. Silverman,
who examined Famularo a number of times, noted that Famularo’s severe and
chronic pain related to complex regional pain syndrome was “mild to moderate
and very well managed on a regimen that includes physical therapy and
oxycodone 10, when necessary.” (Tr.298 (emphasis added)). Further, Dr.
Silverman stated that Famularo “finds this medication very helpful,” and that
the medication “allows her to take care of her ADLs and manage her own
affairs.” (Id.). And, he noted that Famularo “finds her overall quality of life
improved on these medications.” (Id.).
With respect to Dr. Shah’s treatment records, a claimant’s own
subjective report about her symptoms, does not become a medical opinion by
virtue of being recorded in treatment notes. Morris v. Barnhart, 78 F. App'x
820, 824 (3d Cir. 2003) (“[T]he mere memorialization of a claimant's subjective
statements in a medical report does not elevate those statements to a medical
opinion.”) (citing Craig v. Chater, 76 F.3d 585, 590 n. 2 (4th Cir.1996)).
Moreover, in contrast to Famularo’s report that her hands were weak and
numb, Dr. Shah opined that Famularo had full strength and intact sensation
in her upper extremities. (Tr. 358-64). Further, on each visit from October 2017
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to May 2018, Dr. Shah indicated that Famularo appeared comfortable and was
not in acute distress. (Id.).
Based on the foregoing, I find that the ALJ appropriately considered and
weighed the medical evidence.
2. Rejecting medical opinions regarding the nature and severity of
claimant’s impairments based on lay interpretation of medical
Next, Famularo submits that the ALJ improperly substituted her lay
opinion for the medical opinions regarding the nature and severity of her
An ALJ’s RFC determination must be based on the medical evidence of
record. 20 C.F.R. § 404.1545(a)(3) (“We will assess your residual functional
capacity based on all of the relevant medical and other evidence.”). Further, the
ALJ must “provide a ‘clear and satisfactory explication’ of the basis on which
[her] determination rests.” Mays v. Barnhart, 78 F. App'x 808, 812 (3d Cir.
2003) (quoting Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.1981)).
Famularo relies on Doak v. Heckler, 790 F.2d 26 (3d Cir. 1986) for the
proposition that an ALJ “cannot use the record evidence to arrive at his own
conclusion regarding [a claimant’s] physical capabilities, particularly in the
face of a contrary opinion reached by a treating medical doctor.” (DE 11 at 8).
In Doak, the ALJ determined that the claimant could perform light work, which
is more strenuous than sedentary work. 790 F. 2d at 29. The United States
Court of Appeals for the Third Circuit held that the record did not support such
a finding. Id. The Court reasoned that the ALJ’s opinion failed to correspond to
the medical evidence:
One physician believes Doak is totally disabled, another said he
could do sedentary work, and a third made no conclusion about
ability to work but stated that the claimant “was only able to exercise
to a total of 4 METs of activity reaching a heart rate of 133 at which
time he was extremely short of breath and [it] was indeed noticed
that the wheezing was much worse.” No physician suggested that
the activity Doak could perform was consistent with the definition
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of light work set forth in the regulations, and therefore the ALJ's
conclusion that he could is not supported by substantial evidence.
Id. (alteration in original) (internal citations omitted). More recently, however,
the Third Circuit explained that while the ALJ’s decision must be based on the
medical evidence, “the opinion of a treating physician does not bind the ALJ on
the issue of functional capacity.” Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d
Cir. 2011); see also Mays, 78 F. App’x at 813 (“[T]he ALJ is responsible for
making a residual functional capacity determination based on the medical
evidence, and he is not required to seek a separate expert medical opinion.”)
(citing 20 C.F.R. §§ 404.1527(e), 404.1546(c)).
Here, I find the ALJ’s RFC determination that Famularo is capable of
performing sedentary work is supported by substantial evidence. The ALJ,
while “sympathetic to [Famularo’s] long term history of surgical procedures and
pain management,” noted that Famularo’s treatment courses have been
“essentially routine and/or conservative in nature”; “the medical evidence
repeatedly demonstrated [Famularo’s] ability to ambulate independently”
despite having an antalgic gait; and Famularo’s pain and daily activities
improved with treatment. (Tr.20-21). Further, the ALJ gave considerable weight
to Dr. Acuna’s and Dr. Udomsaph’s opinions that Famularo could perform
sedentary work. (Tr.22). Finally, as explained supra, Section II.c.1., the ALJ
properly considered and weighed all of the medical evidence in the record.
This was not mere lay opinion, but an RFC determination based on the
ALJ’s thorough discussion of the medical evidence. Instead, it is substantially
supported by the record.
3. Failing to perform the required analysis under SSR 02-1
Famularo submits that the ALJ failed to consider her obesity as required
by Social Security Ruling 02-1. (DE 11 at 10).
Ruling 02-1 provides that obesity can cause a limitation of function.
Titles II & Xvi: Evaluation of Obesity, SSR 02-1P (S.S.A. Sept. 12, 2002). The
ruling further provides that an assessment should be “made of the effect
obesity has upon the individual's ability to perform routine movement and
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necessary physical activity within the work environment.” Id. Here, the ALJ
noted that Famularo’s obesity was considered in connection with the listing
analysis. (Tr.17). And, in making her RFC determination, the ALJ relied in part
on the analyses of Drs. Acuna and Udomsaph, who both considered
Famularo’s obesity in their assessments. (Tr.92-93; Tr.106-07). Further, the
ALJ recognized that Famularo’s obesity constitutes a severe impairment. After
acknowledging Famularo’s obesity and crediting the determinations of Drs.
Acuna and Udomsaph, the ALJ entered her RFC determination of sedentary
In her briefing, Famularo recites Ruling 02-1 almost in its entirety, and
then states: “There is none of the analysis that is required by the ruling above.
None. Zip. Zero. Just a bald empty statement that the ruling existed. It is
respectfully submitted to the Court that this complete failure to do the required
analysis requires a remand.” (DE 11 at 16). However, Famularo does not even
attempt to demonstrate how her obesity imposes limitations beyond those
captured by the ALJ’s RFC determination. “[T]he burden of showing an error is
harmful normally falls upon the party attacking the agency’s determination.”
Shinseki v. Sanders, 556 US 396, 409 (2009). Thus, to warrant remand,
Famularo would have to explain how her “obesity impacts h[er] functioning or
ability to work” or identify “medical evidence of the same.” Cosme v. Comm'r of
Soc. Sec., No. 18-CV-01327, 2020 WL 2079284, at *4 (D.N.J. Apr. 30, 2020).
Because that was not done here, and no basis for such a conclusion is
suggested by the record, remand is not warranted.
4. Discrediting hypothetical question posed to vocation expert
Finally, Famularo submits that, based on a proper hypothetical question,
the vocational expert’s opinion would indicate that there was no work in the
national economy that she could perform. (DE 11 at 16-17).
Vocational experts are usually asked hypothetical questions to aid the
ALJ in making an RFC determination. Rutherford v. Barnhart, 399 F.3d 546,
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553 (3d Cir. 2005). The proper use of such questions was explained by the
Third Circuit in Podedworny v. Harris:
Testimony of vocational experts in disability determination
proceedings typically includes, and often centers upon, one or more
hypothetical questions posed by the ALJ to the vocational expert.
The ALJ will normally ask the expert whether, given certain
assumptions about the claimant's physical capability, the claimant
can perform certain types of jobs, and the extent to which such jobs
exist in the national economy. While the ALJ may proffer a variety of
assumptions to the expert, the vocational expert's testimony
concerning a claimant's ability to perform alternative employment
may only be considered for purposes of determining disability if the
question accurately portrays the claimant's individual physical and
mental impairments. Thus the expert must have evaluated
claimant's particular impairments as contained in the record.
745 F.2d 210, 218 (3d Cir. 1984) (internal citations omitted) (emphasis added).
Here, Famularo points to the following exchange between the ALJ and
If we said that the individual could engage in occasional
handling and fingering, would the jobs that you’ve given us
However, would there be any other positions classified in the
national economy that an individual so described could
No, your honor.
(Tr.79). Famularo ignores, however, the preceding question:
If we were to say that the individual can engage in frequent
handling and fingering, would the jobs that you’ve given us
(Id.) (emphasis added).
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As explained in Podedworny, the ALJ can pose multiple questions, but it
is only those hypothetical questions that accurately reflect the claimant’s
symptoms that can be used in making the RFC determination. 745 F.2d at
218. Stated differently, for the answer to constitute substantial evidence, the
hypothetical question must accurately reflect the claimant’s impairments. Id.;
see also Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (“A
hypothetical question must reflect all of a claimant's impairments that are
supported by the record; otherwise the question is deficient and the expert's
answer to it cannot be considered substantial evidence.”).
Here, the ALJ rejected Famularo’s assertion that she could not make
frequent movements with her hands. (Tr.21 (“[T]he claimant’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.”). Indeed, an August 2016 orthopedic consultative examination report
by Dr. Weber indicates that Famularo had full muscle strength in her upper
extremities and full grip and pinch strength. (Tr. 341). Further, the report
states that Famularo “is able to fully extend her hands, make fists and oppose
her fingers.” (Id.). And, that she “is able to separate papers as well as lift a pin
off the table.” (Id.). Additionally, Dr. Shah repeatedly opined that Famularo
maintains full muscle strength in her arms. (Tr. 358-64). After those
examinations, Dr. Shah also stated that he did not notice any tremors. (Id.)
As a result, the relevant hypothetical question was the one in which the
claimant was assumed to be capable of “frequent handling and fingering.” On
that assumption, which was supported by substantial evidence, there did exist
relevant jobs in the national economy.
As explained in the previous section, substantial evidence supports the
ALJ’s RFC determination that Famularo can perform sedentary work. The
isolated hypothetical question that Famularo relies on, which does not
accurately reflect her symptoms, does not undermine that determination.
Case 2:20-cv-01655-KM Document 18 Filed 02/17/21 Page 20 of 20 PageID: 573
For the reasons set forth above, the Commissioner’s decision is
AFFIRMED. An appropriate order follows.
Dated: February 17, 2021
/s/ Kevin McNulty
United States District Judge
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