FRASCA v. COMMISSIONER OF SOCIAL SECURITY

Filing 20

OPINION. Signed by Judge Susan D. Wigenton on 9/8/2021. (ams, )

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MARTINA FRASCA,

Civil Action No. 20-10194 (SDW)
Plaintiff,
OPINION

v.
COMMISSIONER OF SOCIAL SECURITY,

September 8, 2021

Defendant.

WIGENTON, District Judge.
Before this Court is Martina Frasca’s (“Plaintiff”) appeal of the final administrative
decision of the Commissioner of Social Security (“Commissioner”). Specifically, Plaintiff appeals
Administrative Law Judge Henry J. Hogan’s (“ALJ Hogan”) denial of her claim for a period of
disability and disability insurance benefits (“DIB”) and her claim for Supplemental Security
Income (“SSI”) benefits under the Social Security Act (the “Act”). This appeal is decided without
oral argument pursuant to Federal Rule of Civil Procedure 78. This Court has subject matter
jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under 28 U.S.C. § 1391(b). For the
reasons set forth below, this Court finds that ALJ Hogan’s factual findings are supported by
substantial credible evidence and that his legal determinations are correct.
Commissioner’s decision is AFFIRMED.

1

Therefore, the

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I.

PROCEDURAL AND FACTUAL HISTORY
A. Procedural History
On January 27, 2017, Plaintiff filed an application for SSI alleging disability as of

November 21, 2016. (Administrative Record (“Record” of “R.”) 277-284.) Plaintiff additionally
filed an application for a period of disability and disability insurance benefits on the same date.
(R. 273-274.) Both claims were initially denied on May 3, 2017, (R. 189-194, 195-199), and again
on reconsideration on September 2, 2017, (R. 207-209, 210-212). Plaintiff then filed a written
request for a hearing on September 25, 2017, (R. 213-214), and ALJ Hogan held an administrative
hearing by video on May 9, 2019, (R. 95-126). ALJ Hogan presided over the video-conference
hearing in Boston, Massachusetts, during which Plaintiff appeared with counsel and a vocational
expert in Newark, New Jersey. (Id.) On August 13, 2019, ALJ Hogan issued an unfavorable
decision, denying Plaintiff’s claims. (R. 75-94.) On October 17, 2019, Plaintiff requested that the
Appeals Council review the decision. (R. 1-6.) On November 26, 2019, Plaintiff submitted an
additional evaluation from Occupational Assessment Services, Inc. (the “OAS Evaluation”). (R.
7-8.) On June 4, 2020, the Appeals Council denied Plaintiff’s request. (Id.) Plaintiff now seeks
a reversal or remand of that decision. (D.E. 16.)
B. Medical and Factual History
At the time she filed her application for SSI, Plaintiff was 21 years old. 1 (R. 128; D.E. 17
at 2.) Plaintiff currently lives in Passaic, New Jersey with her parents and younger brother. (R.
18.) The Record demonstrates Plaintiff’s history of anxiety and depression, as well as lower back

Thus, this Court considers whether the “claimant can be found eligible for the Supplemental Security Income using
the adult standards, as the claimant was age 21 at the time the application was filed.” Jones v. Colvin, Civ. No. 1400169, 2015 WL 1474851, at *7 (E.D. Mo. Mar. 31, 2015). However, because Plaintiff was classified as a younger
individual, she is presumed to be more readily able to adjust to other work than older individuals. See 20 C.F.R. §a§
404.1563(c), 416.963(c); see Soghoian v. Colvin, Civ. No. 12-1232, 2014 WL 996530, at *3 n.5 (E.D. Va. Mar. 13,
2014).
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pain due to a motor vehicle accident that occurred in or around summer 2017. 2 (See, e.g., R. 8081 (stating that the accident occurred in July 2017), 464-65 (stating that the accident occurred in
September 2017).) The following is a summary of the evidence.
Plaintiff graduated from West Orange High School in 2014. (R. 18, 303.) Since then, she
has obtained her associate degree in English from Passaic County Community College in 2019
and worked part-time as a bagger at ShopRite from 2014 to 2017, when she injured her back in a
car accident. (R. 18-19, 101-02, 303-04, 372-76.) Plaintiff worked part-time as a nanny as of
April 2018 and now attends William Patterson University, where she is majoring in English. (R.
18-19, 84.)
The Record demonstrates that Plaintiff suffers from anxiety and depressive symptoms for
which she sees a social worker and psychiatrist for medication and therapy. (R. 103-04, 135.)
Plaintiff has received psychiatric treatment from Alison Weiner, M.D., (“Dr. Weiner”), since 2015.
(R. 382.) On February 7, 2017, Dr. Weiner responded to the state disability agency’s request for
information with largely illegible notes. (See R. 436-40, 447.) Those notes seem to suggest that
Plaintiff experienced “mood swings,” “depression,” and “suicidal ideations.” (R. 436.) Dr.
Weiner also stated that Plaintiff exhibits “selective mutism.” (R. 439.) While Dr. Weiner indicated
that Plaintiff was limited in all areas regarding her ability to do work related to mental activities,
she did not provide support for her finding. (Id.) Additionally, Dr. Weiner indicated that Plaintiff
was capable of “managing or directing the management of benefits in [her] own best interest.” (R.
440.)

The medical conditions underlying Plaintiff’s initial application are not clear from the record. This Court notes,
however, that although the ALJ discussed Plaintiff’s back pain and fully considered the medical evidence in the record
regarding same, the car accident that caused or exacerbated Plaintiff’s lower back pain did not occur until long after
her application for disability and SSI benefits.
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On April 6, 2017, Alexander Hoffman, M.D. examined Plaintiff and found that she “has a
major problem with selective mutism” and “possibly bipolar disorder” but noted that Plaintiff had
not had inpatient hospitalization since 2011 for suicidal ideation. (R. 442-43.) On July 26, 2017,
Disability Determination Services (“DDS”) requested additional information from Dr. Weiner. (R.
445-47.) Dr. Weiner responded by noting that her last visit with Plaintiff was on June 20, 2017,
and Plaintiff’s status had changed due to her 2017 motor vehicle accident. (Id.)
An MRI of Plaintiff’s cervical spine and lumbar spine was taken after the car accident in
September 2017. (R. 450.) Regarding her cervical MRI, while it was observed that there was
“loss and reversal of the normal cervical lordosis suggesting muscular spasm,” the MRI was
“unremarkable.” (Id.) Plaintiff’s lumbar MRI revealed “a moderate-sized central disc herniation”
at L5-S1 and “a moderate to large central and right paracentral disc herniation” at L4-L5. (R. 449.)
On April 23, 2018, Christopher Kyriakides, D.O., (“Dr. Kyriakides”), examined Plaintiff
during a follow-up for her lower back pain. (R. 464-65.) Dr. Kyriakides noted that Plaintiff
changed jobs “as she cannot do any lifting” due to her back injuries and began working part-time
as a nanny. (R. 464.) Dr. Kyriakides suggested that Plaintiff “remains partially disabled” and
would “need to continue her physical therapy treatment program” and “continue her medication.”
(R. 465.) Additionally, Dr. Kyriakides recommended that Plaintiff schedule a follow-up with a
spine specialist. (Id.)
C. Disability and Function Reports
Plaintiff submitted a disability report dated January 27, 2017, (R. 297-309), two function
reports dated February 4, 2017 and July 24, 2017, (R. 310-17, 343-50), and a third-party function
report dated February 5, 2017, (R. 318-25), all of which detail her ability to perform daily
activities, including completing various light household tasks and maintaining a minimal social

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life. Plaintiff’s disability report averred that her conditions did not affect the following activities:
hearing; reading; breathing; understanding; coherency; concentrating; sitting; standing; walking;
seeing; using hand(s); or writing. (R. 299.)
Plaintiff’s first function report averred limitations in areas such as understanding and
concentrating. (R. 311.) However, the report also indicated that Plaintiff could walk for one mile
before needing to stop and rest, she enjoyed “reading, writing, music, [and] art,” she did not have
any problems “getting along with others,” and she cared for her two cats. (R. 310-17.) Plaintiff’s
third-party function report indicated the following limitations: talking, memory, completing tasks,
concentration, understanding, and following instructions. (R. 323.) In her second function report,
Plaintiff indicated that she has “no problem with personal care,” prepares frozen food on a daily
basis, does laundry, and unloads the dishwasher. (R. 343-45.) Regarding social activities, Plaintiff
wrote that she would “go out to eat with friends monthly” and “text them daily.” (R. 347.)
However, she also indicated the same limitations as those in her third-party function report. (R.
348.)
C. Hearing Testimony
At the hearing before ALJ Hogan, Plaintiff testified about her education, previous
employment, daily activities, and medical treatment. (See generally R. 95-126.) ALJ Hogan heard
testimony from Plaintiff and Vocational Expert Courtney Olds (“VE Olds”). (Id.) Plaintiff
testified that she stopped working as a bagger at ShopRite in 2017 because she “couldn’t lift” after
suffering a back injury from a motor vehicle accident. (R. 101-02.) Plaintiff saw a doctor for
“pain management” “every few months” because of her back injury. (R. 103-04.) Plaintiff also
testified that she suffers from anxiety and depression for which she sees a psychiatrist “every
couple months” and takes medication which “sometimes” helps. (R. 104.) While Plaintiff

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answered affirmatively when asked if she has “a problem being around people,” she stated that she
can “ride a bus with people on it” and “sometimes” socializes with her family and friends. (R.
105; but see R. 338 (Plaintiff “spend[s] time with others”), 339 (Plaintiff “get[s] along with
others”), 340 (Plaintiff has never been “fired or laid off from a job because of problems getting
along with people”).) When asked about her daily activities, Plaintiff testified that she does not
have any problems walking, gets herself dressed every day, drives to school, does her laundry, and
“sometimes” cooks. (R. 106-09.) However, Plaintiff also stated that she has problems sitting,
reaching overhead, and cannot lift “anything heavy,” all due to her back pain. (R. 112-13, 117.)
VE Olds testified that a hypothetical individual matching Plaintiff’s vocational profile, age,
education, and limitations, as specified by the ALJ, could perform representative light, unskilled
occupations in the national economy, such as “mail sorter,” “housekeeper,” and “hand packager.”
(R. 119-20.) When questioned by Plaintiff’s counsel however, VE Olds stated that he did not
believe Plaintiff could perform any of these jobs on a full-time basis. (R. 121.)
II.

LEGAL STANDARD
A. Standard of Review
In Social Security appeals, this Court has plenary review of the legal issues decided by the

Commissioner. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Yet, this Court’s review of the
ALJ’s factual findings is limited to determining whether there is substantial evidence to support
those conclusions. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). 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) (internal citation and quotations omitted).

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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) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Importantly, “[t]his standard is not met if the
Commissioner ‘ignores, or fails to resolve, a conflict created by countervailing evidence.’” Id.
(quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). However, if the factual record is
adequately developed, “the possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding from being supported by substantial
evidence.” Daniels v. Astrue, Civ. No. 8-1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009)
(quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966) (internal quotation marks
omitted)). “The ALJ’s decision may not be set aside merely because [a reviewing court] would
have reached a different decision.” Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir.
2007) (citing Hartranft, 181 F.3d at 360). This Court is required to give substantial weight and
deference to the ALJ’s findings. See Scott v. Astrue, 297 F. App’x 126, 128 (3d Cir. 2008).
Nonetheless, “where there is conflicting evidence, the ALJ must explain which evidence she
accepts and which she rejects, and the reasons for that determination.” Cruz, 244 F. App’x at 479
(citing Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)).
In considering an appeal from a denial of benefits, remand is appropriate “‘where relevant,
probative and available evidence was not explicitly weighed in arriving at a decision on the
plaintiff’s claim for disability benefits.’” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.
1979) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976)). Indeed, 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

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claimant is disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 221–22 (3d
Cir. 1984) (citations omitted).
B. The Five–Step Disability Test
A claimant’s eligibility for social security benefits is governed by 42 U.S.C. § 1382. An
individual will be considered disabled under the Act if the claimant is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment” lasting continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A). The
impairment must be severe enough to render the individual “not only unable to do her previous
work but [unable], considering her age, education, and work experience, [to] engage in any kind
of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A
claimant must show that the “medical signs and findings” related to an ailment have been
“established by medically acceptable clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical, physiological, or psychological
abnormalities which could reasonably be expected to produce the pain or other symptoms alleged
. . . . ” 42 U.S.C. § 423(d)(5)(A).
To make a disability determination, the ALJ follows a five-step sequential analysis. 20
C.F.R. §§ 404.1520(a), 416.920(a); see also Cruz, 244 F. App’x at 480. If the ALJ determines at
any step that the claimant is or is not disabled, the ALJ does not proceed to the next step. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
Step one requires the ALJ to determine whether the claimant is engaging in substantial
gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as
work that “[i]nvolves doing significant and productive physical or mental duties . . . for pay or
profit.” 20 C.F.R. §§ 404.1510, 416.910. If the claimant engages in SGA, the claimant is not

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disabled for purposes of receiving social security benefits regardless of the severity of the
claimant’s impairments. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the individual is
not engaging in SGA, the ALJ proceeds to step two.
Under step two, the ALJ determines whether the claimant suffers from a severe impairment
or combination of impairments that meets the duration requirement found in §§ 404.1509 and
416.909. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or a combination of
impairments is not severe when medical and other evidence establishes only a slight abnormality
or combination of abnormalities that would have a minimal effect on an individual’s ability to
work. 20 C.F.R. §§ 404.1521, 416.921; Social Security Rules (“SSR”) 85-28, 96-3p, 96-4p. An
impairment or a combination of impairments is severe when it significantly limits the claimant’s
“physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If
a severe impairment or combination of impairments is not found, the claimant is not disabled. 20
C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

If the ALJ finds a severe impairment or

combination of impairments, the ALJ then proceeds to step three.
Under step three, the ALJ determines whether the claimant’s impairment or combination
of impairments is equal to, or exceeds, one of those included in the “Listing of Impairments” in 20
C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If
an impairment or combination of impairments meets the statutory criteria of a listed impairment
as well as the duration requirement, the claimant is disabled and entitled to benefits. 20 C.F.R. §§
404.1520(d), 416.920(d). If, however, the claimant’s impairment or combination of impairments
does not meet the severity of the listed impairment, or if the duration is insufficient, the ALJ
proceeds to the next step.
Before undergoing the analysis in step four, the ALJ must determine the claimant’s residual

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functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(a), 404.1520(e), 416.920(a), 416.920(e). An
individual’s RFC is the individual’s ability to do physical and mental work activities on a sustained
basis despite limitations from his or her impairments. 20 C.F.R. §§ 404.1545, 416.945. The ALJ
considers all impairments in this analysis, not just those deemed to be severe. 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2); SSR 96-8p. After determining a claimant’s RFC, step four then
requires the ALJ to determine whether the claimant has the RFC to perform the requirements of
his or her past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the claimant is able
to perform past relevant work, he or she will not be found disabled under the Act. 20 C.F.R. §§
404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). If the claimant is unable to resume
past work, the disability evaluation proceeds to the fifth and final step.
At step five, the ALJ must determine whether the claimant is able to do any other work,
considering RFC, age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). Unlike in the first four steps of the analysis where the claimant bears the burden
of persuasion, the burden shifts to the ALJ at step five to determine whether the claimant is capable
of performing an alternative SGA present in the national economy. 20 C.F.R. §§ 404.1520(g)(1)
(citing 404.1560(c)), 416.920(g)(1) (citing 416.960(c)); Kangas v. Bowen, 823 F.2d 775, 777 (3d
Cir. 1987).

At this point in the analysis, the Social Security Administration (“SSA”) is

“responsible for providing evidence that demonstrates that other work exists in significant numbers
in the national economy that [the claimant] can do, given [the claimant’s RFC] and vocational
factors.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). If the claimant is unable to do any other
SGA, he or she is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
III.

DISCUSSION
A.

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On August 13, 2019, ALJ Hogan issued a decision concluding that Plaintiff was not
disabled. (R. 75-94.) The decision properly applied the five-step disability test within the meaning
of the Act. There is no basis for reversal or remand, because the ALJ’s findings are supported by
substantial evidence.
At step one, ALJ Hogan determined that Plaintiff has not engaged in SGA since the alleged
onset date of Plaintiff’s disability, despite her work activity. (R. 80.) At step two, Plaintiff was
found to have the following severe impairments: anxiety and depression. (R. 80-81.) In making
this finding, the ALJ concluded that these severe impairments “significantly limit[ed]” Plaintiff’s
“ability to perform basic work activities.” (Id.) However, ALJ Hogan found Plaintiff’s lowerback injury to be non-severe. (R. 81 (noting that Plaintiff did not allege “limits that would prohibit
her from walking, standing, or sitting”).)
At step three, the ALJ determined that Plaintiff did not have an impairment or combination
of impairments that “me[t] or medically equal[ed] the severity of the listed impairments” in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. 81.) The ALJ concluded that “the severity of
[Plaintiff’s] mental impairments, considered singly and in combination, d[id] not meet or
medically equal the criteria of listings of 12.04 and 12.06.” (R. 81.) In so finding, the ALJ first
considered whether Plaintiff satisfied the necessary “paragraph B” criteria, which asks whether
Plaintiff’s mental impairments “result in at least one extreme or two marked limitations in a broad
area of functioning which are: understanding, remembering, or applying information; interacting
with others; concentrating, persisting, or maintaining pace; or adapting or managing themselves.”
(R. 81-82.) The ALJ concluded that Plaintiff has a “moderate limitation” in understanding,
remembering, or applying information and interacting with others, and a “mild limitation” in
concentrating, persisting, or maintaining pace and adapting or managing oneself. (R. 82-83.)

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Thus, as Plaintiff’s “mental impairments d[id] not cause at least two ‘marked’ limitations or one
‘extreme’ limitation,” ALJ Hogan determined “the ‘paragraph B’ criteria [were] not satisfied.” (R.
83.) The ALJ also concluded that Plaintiff did not meet the necessary “paragraph C” criteria. 3 (R.
83.)
Before undergoing the analysis in step four, the ALJ determined that Plaintiff “ha[d] the
residual functional capacity (“RFC”) to perform light work” as defined in 20 C.F.R. 404.1567(b)
and 416.967(b). (R. 83.) However, ALJ Hogan noted the following exceptions: “occasional
bilateral overhead reaching; simple routine repetitive tasks; occasional interaction with public;
occasional work with coworker with not tandem task; and occasional supervision.” (Id.) The ALJ
defined “occasional” as “less than 1/3 of an 8 hour workday.” (Id.) In reaching this RFC
conclusion, ALJ Hogan followed a two-step process in which he first evaluated “whether there is
an underlying medically determinable physical or mental impairment(s) . . . that could reasonably
be expected to produce [Plaintiff’s] pain or other symptoms,” and second evaluated “the intensity,
persistence, and limiting effects of [Plaintiff’s] symptoms to determine the extent to which they
limit [Plaintiff’s] functional limitations.” (R. 84.) The ALJ based his conclusion on hearing
testimony, objective medical evidence, and opinion evidence. (R. 83-82.)
After considering Plaintiff’s testimony, in which she alleged disability due to symptoms of
depression and anxiety, ALJ Hogan concluded that while Plaintiff’s medically determinable
impairments “could reasonably be expected to cause the alleged symptoms . . . [her] statements
concerning the intensity, persistence, and limiting effects of [those] symptoms are not entirely

3
In making his determination, ALJ Hogan found that “there [wa]s no evidence in the record to show that [Plaintiff]
has experienced repeated episodes of decompensation, each of extended duration; nor that [s]he has experienced a
residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands
or change in the environment would be predicted to cause the individual to decompensate; nor that she has a current
history of 1 or more years inability to function outside a highly supporting living arrangement, with an indication of
continued need for such an arrangement.” (R. 83.)

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consistent with the medical evidence and other evidence in the record.” (R. 84.) The ALJ noted
that the medical record “indicated treatment for anxiety and depression” but was lacking in
evidence “detailing her psychiatric treating history.” (R. 85.) Specifically, ALJ Hogan found that
Plaintiff’s psychiatrist, Dr. Weiner, “did not describe or provide support for her finding” that
Plaintiff “was limited in all areas regarding her ability to do work related to mental activities.”
(Id.) Likewise, the ALJ noted that the medical record concerning Plaintiff’s back pain was scant,
mentioning that “Dr. Kyriakides noted that [Plaintiff] remained partially disabled, but he did not
specify as to her limitations.” (Id.) Thus, ALJ Hogan determined that “the medical evidence falls
short of demonstrating the existence of physical or psychological symptoms and limitations that
are so severe that the claimant cannot perform any work on a regular or continuing basis.” (Id.)
Regarding the opinion evidence, ALJ Hogan gave “partial weight to the opinions of the
non-examining state agency medical consultants” as “their opinions were consistent with other
significant evidence of record.” (R. 86.) Conversely, the ALJ gave “no weight” to Dr. Weiner’s
finding that Plaintiff “is unable to function independently” due to her mental impairments, as that
finding was “inconsistent with the longitudinal treatment record.” (Id.) The ALJ also gave “little
weight” to the opinion of Steven Clarke, D.O., as he “opined that [Plaintiff’s] physical condition
was treatment resistant and non-resolving in nature” but a “September 2017 MRI was an
unremarkable view of the cervical spine only showing a loss and reversal of the normal cervical
lordosis suggesting muscle spasm.” (Id.)
At step four, the ALJ found that Plaintiff was unable to perform her past relevant work as
a bagger. (R. 87.) Lastly, at step five, the ALJ concluded that, based on Plaintiff’s age, education,
work experience, and RFC, in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. Part
404, Subpart P, Appendix 2, Plaintiff was not disabled because she could perform jobs that existed

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in significant numbers in the national economy. (R. 88.) Relying on the VE’s testimony, the
decision detailed the availability of light work jobs that Plaintiff could perform. (Id.) VE Olds
testified that an individual such as Plaintiff could perform occupations that were widely available
in the national economy, such as mail sorter, housekeeper, and hand packager. (Id.) ALJ Hogan
therefore concluded that Plaintiff was not disabled under the Act during the relevant period. (R.
88-89.)

B.
On appeal, Plaintiff seeks reversal of the Commissioner’s decision, or remand for a new
hearing, contending that: (1) there is a reasonable probability that the OAS Evaluation would
change the outcome of the ALJ’s decision because it corroborates medical evidence in the record;
and (2) the ALJ failed to consider the totality of the medical evidence, including two medical
professionals’ opinions (psychiatrist Dr. Weiner and treating physician Dr. Clarke) and the 2017
lumbar spine MRI. (See D.E. 16 at 9-19.) After considering each argument in turn, this Court
finds them unpersuasive.
First, Plaintiff takes issue with the Appeals Council’s decision to disregard the OAS
Evaluation in its denial of review. (D.E. 16 at 9.) A plaintiff who attempts to present new evidence
on appeal that was not submitted at least five days prior to the ALJ hearing must demonstrate that
the evidence “is new, material, and relates to the period on or before the date of the hearing
decision” and that “there is a reasonable probability that the additional evidence would change the
outcome of the decision.” Hawks v. Berryhill, Civ. No. 17-1020, 2018 WL 6728037, at *4 (M.D.
N.C. 2018) (quoting 20 C.F.R. §§ 404.970, 416.1470 (2017)). Further, the Appeals Council will
“only consider additional” evidence if the moving party shows “good cause for not informing [the

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Council] about or submitting the evidence as described in § 404.935 ….” Id. Good cause requires
evidence that the party was “misled,” or evidence that “physical, mental, educational, or linguistic
limitation(s)” or “[s]ome other unusual, unexpected, or unavoidable circumstance[s]” prevented
the moving party from properly presenting the evidence. Id.
Similarly, the District Court may remand a case to the Commissioner “when the claimant
seeks to rely on evidence that was not before the ALJ … only if the evidence is new and material
and if there was good cause why it was not previously presented ….” Matthews v. Apfel, 239 F.3d
589, 593 (3d Cir. 2001); see also Keeton v. DHHS, 21 F.3d 1064, 1067 (11th Cir. 1994); Newhouse
v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985). New evidence is considered material if it is
“probative and relevant to the time period” and “creates the reasonable probability that it would
have changed the [hearing] outcome.” Volage v. Astrue, Civ. No. 11-4413, 2012 WL 4742373, at
*10 (D.N.J. Oct. 1, 2012); see also Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831, 833
(3d Cir. 1984).
The OAS Evaluation opines that Plaintiff is unemployable. (R. 9-72.) Plaintiff asserts that
the new evidence is material “because it relates to the time period for which benefits were denied
and does not concern a later acquired disability, or subsequent deterioration, having reviewed the
medical records from 2016 onwards.” (D.E. 16 at 11.) The Appeals Council concluded that
Plaintiff had not shown good cause for failure to submit the OAS Evaluation within the five-day
period and ultimately concluded that the evaluation did not support a finding that there was a
reasonable probability of a different outcome. (R. 1-3.) This Court agrees. The OAS Evaluation
relies on the same medical evidence that was before the ALJ during Plaintiff’s hearing. (See
generally R. 9-72.)

Thus, Plaintiff fails to suggest a reasonable probability that the OAS

Evaluation would change the outcome of the ALJ’s decision.

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As to the good cause requirement, “[s]ome courts have defined good cause as requiring a
claimant to show ‘some justification’ for failing to submit the evidence” while “[o]thers have
referred to good cause as having ‘good reason’ for failing to submit the evidence to the ALJ in the
first place.” Shuter v. Astrue, 537 F. Supp. 2d 752, 758 (E.D. Pa. 2008) (citations omitted).
Plaintiff contends that she met the good cause requirement, because the new OAS Evaluation was
not in existence at the time of the hearing. (D.E. 16 at 13.) However, a plaintiff must go beyond
stating that evidence is new in order to fulfill the good cause requirement. See Parris v. Colvin,
Civ. No. 13-00004, 2014 WL 427697, at *5 (W.D.N.C. Feb. 4, 2014) (finding good cause does
not exist “where a plaintiff creates and submits new evidence after an unfavorable decision by an
ALJ”). As Plaintiff fails to do so here, the good cause requirement is not met.
Second, the ALJ properly considered the medical opinions and MRIs when assessing
Plaintiff’s residual functional capacity. “Allegations of pain and other subjective symptoms must
be supported by objective medical evidence.” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
Further, “an ALJ’s credibility determination is afforded significant deference.” Al Muraiheg v.
Colvin, Civ. No. 16-75, 2017 WL 4124587, at *1 n.1 (W.D. Pa. Sept. 18, 2017) (citing Reefer v.
Barnhart, 326 F.3d 376, 380 (3d Cir. 2003)). The ALJ properly followed the required two-step
process for evaluating Plaintiff’s subjective complaints: first evaluating the medical impairment to
determine whether it could be expected to produce the complained of symptoms, and next
evaluating the claimed intensity and persistence of those symptoms. Hartranft, 181 F.3d at 362.
The Record contained some contradictory evidence concerning intensity, persistence, and
function. For example, Dr. Clarke found Plaintiff’s back injury to be “non-resolving in nature,”
(R. 459), yet Plaintiff’s 2017 MRI revealed an “unremarkable” view of the cervical spine, (R. 450).
Additionally, Plaintiff was still capable of walking and performing daily activities, including

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working part-time as a nanny. (R. 87, 106-09.) Thus, the ALJ properly gave little weight to Dr.
Clarke’s opinion evidence because it was inconsistent with the medical record.
The ALJ also appropriately assigned no weight to Dr. Weiner’s opinion that Plaintiff was
“unable to function independently” due to her mental impairments. (R. 439.) As noted by ALJ
Hogan, Dr. Weiner’s notes were largely illegible. (R. 439.) As such, it was proper for the ALJ to
discount her opinion evidence. See McQueen v. Comm’r of Soc. Sec., 322 F. App’x 240, 245 (3d
Cir. 2009) (noting that it was proper for the ALJ to give “less weight” to Plaintiff’s treating
physician’s opinion due to “indecipherable notes”). Moreover, ALJ Hogan noted that the legible
areas of Dr. Weiner’s notes were inconsistent with the “longitudinal medical record.” (R. 87); see
Wallace v. Colvin, Civ. No. 13-79, 2014 WL 1664895, at *6 (E.D. Mo. Apr. 25, 2014) (affirming
the ALJ’s opinion where “[t]he objective evidence or absence thereof provided no support [for the
discounted] opinion and was inconsistent with [that] opinion.”). While Dr. Weiner opined that
Plaintiff was extremely limited in every functional capacity due to her mental impairments,
Plaintiff testified that she was able to perform a significant number of daily activities, including
attending school, completing her assignments, and working as a bagger and nanny. (R. 102, 10609, 303.) Therefore, the ALJ appropriately assessed the record evidence in determining that
Plaintiff was not disabled within the meaning of the relevant statutes.
IV.

CONCLUSION
Because this Court finds that ALJ Hogan’s factual findings were supported by substantial

credible evidence in the record and that his legal conclusions were correct, the Commissioner’s
decision is AFFIRMED.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

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Orig: Clerk
cc:
Parties

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