GARCIA v. COMMISSIONER OF SOCIAL SECURITY
Filing
18
OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 5/9/2022. (DS, )
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
VILMA G.,
Plaintiff,
Case No. 2:21-cv-1402
Magistrate Judge Norah McCann King
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
OPINION AND ORDER
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Vilma G. for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Plaintiff
appeals from the final decision of the Commissioner of Social Security denying that application. 1
After careful consideration of the entire record, including the entire administrative record, the
Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure and
Local Civil Rule 9.1(f). For the reasons that follow, the Court affirms the Commissioner’s
decision.
I.
PROCEDURAL HISTORY
On May 29, 2019, Plaintiff filed her application for benefits, alleging that she has been
disabled since February 1, 2017. R. 62, 82, 146–47. The application was denied initially and
upon reconsideration. R. 85–92. Plaintiff sought a de novo hearing before an administrative law
Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her
official capacity. See Fed. R. Civ. P. 25(d).
1
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judge. R. 93–94. Administrative Law Judge (“ALJ”) Kevin Kenneally held a hearing on April 9,
2020, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. R.
27–61. In a decision dated June 1, 2020, the ALJ concluded that Plaintiff was not disabled
within the meaning of the Social Security Act from February 1, 2017, Plaintiff’s alleged
disability onset date, through the date of that decision. R. 15–23. That decision became the final
decision of the Commissioner of Social Security when the Appeals Council declined review on
December 7, 2020. R. 1–6. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF
No. 1. On May 27, 2021, Plaintiff consented to disposition of the matter by a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil
Procedure. ECF No. 9. 2 On May 28, 2021, the case was reassigned to the undersigned. ECF No.
10. The matter is now ripe for disposition.
II.
LEGAL STANDARD
A.
Standard of Review
In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). The United States Supreme Court has
explained this standard as follows:
Under the substantial-evidence standard, a court looks to an existing administrative
record and asks whether it contains sufficien[t] evidence to support the agency’s
factual determinations. And whatever the meaning of substantial in other contexts,
the threshold for such evidentiary sufficiency is not high. Substantial evidence, this
2
The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
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Court has said, is more than a mere scintilla. It means – and means only – such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks
omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal
quotations omitted); Bailey v. Comm’r of Soc. Sec., 354 F. App’x 613, 616 (3d Cir. 2009)
(citations and quotations omitted); K.K. ex rel. K.S. v. Comm’r of Soc. Sec., No. 17-2309, 2018
WL 1509091, at *4 (D.N.J. Mar. 27, 2018).
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
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Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ’s decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent
such articulation, the Court “cannot tell if significant probative evidence was not credited or
simply ignored.” Id. at 705. As the Third Circuit explains:
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Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.
Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award
benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation
omitted); see A.B., 166 F. Supp.3d at 518.
B.
Sequential Evaluation Process
The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §
404.1520(a)(4). “The claimant bears the burden of proof at steps one through four, and the
Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d
632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).
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At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe
impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 404.1509. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do
so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the
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impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III.
ALJ DECISION AND APPELLATE ISSUES
Plaintiff meets the insured status requirements under the Social Security Act through
December 31, 2022. R. 18. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity between February 1, 2017, her alleged disability onset, and the date of
the ALJ’s decision. Id.
At step two, the ALJ found that Plaintiff’s severe impairments consist of status-post L5S1 laminectomy, cervical spine herniation, and asthma. The ALJ also found that Plaintiff’s
diagnosed hypothyroidism and hypertension were not severe. Id.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of
impairments that met or medically equaled the severity of any Listing. R. 19.
At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to
various additional limitations. R. 19–23. The ALJ also found that this RFC permitted the
performance of Plaintiff’s past relevant work as an office clerk as that work is generally
performed. R. 23. The ALJ therefore concluded that Plaintiff was not disabled within the
meaning of the Social Security Act from February 1, 2017, her alleged disability onset date,
through the date of the decision. Id.
Plaintiff disagrees with the ALJ’s findings at step four and asks that the decision of the
Commissioner be reversed and remanded for further proceedings. Plaintiff’s Brief, ECF No. 15;
Plaintiff’s Reply Brief, ECF No. 17. The Acting Commissioner takes the position that her
decision should be affirmed in its entirety because the ALJ’s decision correctly applied the
governing legal standards, reflected consideration of the entire record, and was supported by
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sufficient explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule
9.1, ECF No. 18.
IV.
DISCUSSION
Plaintiff argues that substantial evidence does not support the ALJ’s RFC determination
because the ALJ failed to properly evaluate Plaintiff’s subjective complaints. Plaintiff’s Brief,
ECF No. 15; Plaintiff’s Reply Brief, ECF No. 17. Plaintiff’s argument is not well taken.
A claimant’s RFC is the most that the claimant can do despite her limitations. 20 C.F.R. §
404.1545(a)(1). At the administrative hearing stage, the administrative law judge is charged with
determining the claimant’s RFC. 20 C.F.R. § 404.1546(c); see also Chandler v. Comm’r of Soc.
Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The ALJ—not treating or examining physicians or State
agency consultants—must make the ultimate disability and RFC determinations.”) (citations
omitted). When determining a claimant’s RFC, the ALJ has a duty to consider all the evidence.
Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). However, the ALJ need include only
“credibly established” limitations. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005); see
also Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014) (stating that the ALJ has discretion to
choose whether to include “a limitation [that] is supported by medical evidence, but is opposed
by other evidence in the record” but “[t]his discretion is not unfettered—the ALJ cannot reject
evidence of a limitation for an unsupported reason” and stating that “the ALJ also has the
discretion to include a limitation that is not supported by any medical evidence if the ALJ finds
the impairment otherwise credible”).
In the case presently before the Court, the ALJ determined that Plaintiff had the RFC to
perform a limited range of light work, as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
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CFR 404.1567(b) except the claimant can occasionally push, pull, operate controls
with the bilateral upper and lower extremities; can occasionally climb ramps and
stairs; can never climb ropes, ladders, or scaffolds; can occasionally balance, stoop,
kneel, crouch, and crawl; can never be exposed to unprotected heights, moving
mechanical parts, or operate a motor vehicle; and is limited to only occasional
exposure to humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme
cold, and extreme heat.
R. 19. In making this determination, the ALJ detailed years of record evidence, including, inter
alia, that medical records documented a history of back and neck pain that radiates into both legs
since a car accident on September 7, 2016; a November 2016 MRI of Plaintiff’s lumbar spine
showed L5-S1 disc herniation, annular bulging at L2-L3 and L5-S1, posterolisthesis of L5-S1,
suspected disc bulging at T11-T12, and stenosis; a November 2016 MRI of Plaintiff’s cervical
spine revealed disc herniation at C2-C3, C3-C4, and C4-C5, productive change at C5-C6, and
mild to moderate disc space narrowing at the C5-C6 level with mild productive changes; but
Plaintiff’s January 2017 EMG and nerve conduction study (“NCS”) revealed no remarkable
evidence of cervical or lumbar radiculopathy; Plaintiff’s diagnosis of disc herniation with
posterolisthesis and annular tear at the L5-S1 level with symptoms of radiculitis into the left
lower extremity and disc herniations at the C2-C3, C3-C4, and C4-C5 levels with annular tear at
the C3-C4 and C4-C5, and cord compression at the C3-C4, C4-C5, and C5-C6; findings from an
emergency department for asthma in June 2017 that reflected a normal physical and mental
status examination, including mild wheezing but otherwise normal respirations, no spinal
tenderness, and full range of motion of the extremities with no cyanosis, normal mentation and
normal memory; treatment notes in 2017 and 2018 reflecting Plaintiff’s complaints of back and
neck pain that radiated into her lower extremities and difficulty ambulating despite physical
therapy, injections, and medications; examinations during this time that reflected reduced
range of motion, positive straight leg raises in the seated position, and diminished Achilles
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tendon reflexes bilaterally, but 5/5 strength in the iliopsoas and quadriceps bilaterally; a
February 2018 MRI of the lumbar spine that showed worsening of the herniation and progression
of L5-S1 stenosis and a discogram that revealed that Plaintiff was positive in L5-S1; that
Plaintiff underwent a L5-S1 laminectomy in April 2018; follow-up medical records indicating
that, although she had some back discomfort, Plaintiff was doing well, her leg pain had
improved, her numbness and tingling had almost completely resolved, and she was taking
Percocet very sparingly for pain relief and was participating in physical therapy; findings of
limited but improved range of motion with no new or evolving neurological changes; subsequent
records indicating that Plaintiff noticed significant relief of her radicular symptoms into the
lower extremities and that she had discontinued taking Percocet; a September 2019 consultative
examination by Michael Lam, M.D., during which Plaintiff reported receiving injections and
taking only over-the-counter ibuprofen for pain control; Dr. Lam’s observations that Plaintiff
was in no acute distress, was able to get on and off the examining table, was comfortable in a
seated position, had a normal gait, did not use an ambulation aide, showed good hand-eye
coordination, and was able to heel walk, toe walk, and squat without difficulty; Dr. Lam’s
findings on examination that, although Plaintiff had limited range of motion of the left shoulder
and decreased range of motion of the lumbar spine, she also showed full grip of the upper
extremities, full range of motion of the lower extremities, and full range of the motion of the
cervical spine; the fact that Plaintiff’s mental status examination also showed normal findings;
Plaintiff’s report that her asthma had been well-controlled with her medication and that she had
not experienced any exacerbation of her asthma in “quite some time”; Plaintiff’s report that she
goes to a store or office by herself, does laundry, does light cleaning, feeds herself, makes simple
meals by herself, dresses herself, puts on and takes off her shoes, brushes her teeth, takes a
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shower or bath, drives, climbs up and down a few steps, and can walk one block; notes from a
February 2020 presentation to the St. Joseph’s Regional Medical Center for asthma which
reflected mild expiratory wheezing but otherwise normal findings, including full range of motion
of the neck, normal respiration, full range of motion of the extremities with no injury or
deformity, normal pulses, and steady gait; findings that Plaintiff was lucid, followed commands,
and was oriented to time, place, and time; chest x-rays showing no acute cardiopulmonary
process; Plaintiff’s discharge on that same day in stable condition; the opinions of the state
agency reviewing consultants that there were no psychiatric impairments and the state agency
consultant’s opinion on reconsideration that Plaintiff could perform light exertional work with
additional postural and environmental limitations, opinions that the ALJ found were generally
consistent and supported by the medical record. R. 20–22. The ALJ went on to explain his RFC
findings as follows:
In sum, the above residual functional capacity assessment is supported by the
medical record showing significant limitations in functioning, but only to the
degree noted in the residual functional capacity above. It is recognized that the
claimant may experience some degree of pain and discomfort, particularly with
significant physical exertion, which has been considered in limiting her to light
work. However, this is not, in itself, incompatible with the performance of some
work activity. Although the claimant has a history of treatment, the objective
medical evidence since that time reflects mostly moderate clinical findings,
generally normal mental status examinations, normal gait, and fairly conservative
management of the claimant’s symptoms. Furthermore, the claimant reported that
she lives with family, brings her brother meals, shops, manages funds, performs
self-care, prepares meals, and performs household chores such as sweeping, doing
laundry, ironing, and vacuuming (4E, 2F). Looking at the allegations of the
claimant in the light most favorable to her, but in conjunction with the medical
evidence available, it is found that the claimant retains a residual functional
capacity at the light exertional level with the additional erosions indicated above.
R. 22. In the view of this Court, this record contains substantial evidence to support the ALJ’s
RFC determination. See Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554; Plummer, 186
F.3d at 429.
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Plaintiff, however, challenges this RFC determination, arguing that the ALJ failed to
properly consider her subjective complaints. Plaintiff’s Brief, ECF No. 15; Plaintiff’s Reply
Brief, ECF No. 17. This Court disagrees.
“Subjective allegations of pain or other symptoms cannot alone establish a disability.”
Miller v. Comm’r of Soc. Sec., 719 F. App’x 130, 134 (3d Cir. 2017) (citing 20 C.F.R. §
416.929(a)). Instead, objective medical evidence must corroborate a claimant’s subjective
complaints. Prokopick v. Comm’r of Soc. Sec., 272 F. App’x 196, 199 (3d Cir. 2008) (citing 20
C.F.R. § 404.1529(a)). Specifically, an ALJ must follow a two-step process in evaluating a
claimant’s subjective complaints. SSR 16-3p, 2016 WL 1119029 (March 16, 2016). First, the
ALJ “must consider whether there is an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as
pain.” Id. “Second, once an underlying physical or mental impairment(s) that could reasonably
be expected to produce an individual’s symptoms is established, [the ALJ] evaluate[s] the
intensity and persistence of those symptoms to determine the extent to which the symptoms limit
an individual’s ability to perform work-related activities[.]” Id.; see also Hartranft v. Apfel, 181
F.3d 358, 362 (3d Cir. 1999) (“[Evaluation of the intensity and persistence of the pain or
symptom and the extent to which it affects the ability to work] obviously requires the ALJ to
determine the extent to which a claimant is accurately stating the degree of pain or the extent to
which he or she is disabled by it.”) (citing 20 C.F.R. § 404.1529(c)). In conducting this
evaluation, an ALJ must consider the objective medical evidence as well as other evidence
relevant to a claimant’s subjective symptoms. 20 C.F.R. § 404.1529(c)(3) (listing the following
factors to consider: daily activities; the location, duration, frequency, and intensity of pain or
other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side
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effects of any medication you take or have taken to alleviate pain or other symptoms; treatment,
other than medication, currently received or have received for relief of pain or other symptoms;
any measures currently used or have used to relieve pain or other symptoms; and other factors
concerning your functional limitations and restrictions due to pain or other symptoms). Finally,
an “ALJ has wide discretion to weigh the claimant’s subjective complaints, Van Horn v.
Schweiker, 717 F.2d 871, 873 (3d Cir. 1983), and may discount them where they are unsupported
by other relevant objective evidence.” Miller, 719 F. App’x at 134 (citing 20 C.F.R. §
416.929(c)); see also Izzo v. Comm’r of Soc. Sec., 186 F. App’x 280, 286 (3d Cir. 2006) (“[A]
reviewing court typically defers to an ALJ’s credibility determination so long as there is a
sufficient basis for the ALJ’s decision to discredit a witness.”). 3
In the present case, the ALJ followed this two-step evaluation process. The ALJ
specifically considered Plaintiff’s subjective complaints. R. 20. The ALJ found that Plaintiff’s
medically determinable impairments could reasonably be expected to cause symptoms, but that
Plaintiff’s statements “concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the record
for the reasons explained in this decision.” Id. As previously discussed, the ALJ detailed years of
medical evidence to support his findings, and specifically considered Plaintiff’s hearing
testimony and subjective statements. R. 20–22. In the view of this Court, this record provides
substantial support for the ALJ’s decision to discount Plaintiff’s subjective statements as
SSR 16-3p superseded SSR 96-7p on March 26, 2016, and eliminated the use of the term
“credibility.” SSR 16-3p. However, “while SSR 16-3P clarifies that adjudicators should not
make statements about an individual’s truthfulness, the overarching task of assessing whether an
individual’s statements are consistent with other record evidence remains the same.” Levyash v.
Colvin, No. CV 16-2189, 2018 WL 1559769, at *8 (D.N.J. Mar. 30, 2018).
3
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inconsistent with the record evidence. Van Horn, 717 F.2d at 873; Miller, 719 F. App’x at 134;
Izzo, 186 F. App’x at 286.
Plaintiff’s contrary arguments do not militate a different result. For example, Plaintiff
points to objective medical evidence that she believes supports her subjective statements.
Plaintiff’s Brief, ECF No. 15, pp. 17–18. However, as detailed above, the ALJ considered most,
if not all of this evidence, but nevertheless concluded that Plaintiff’s statements were not entirely
consistent with the record as a whole for the reasons previously discussed. R. 20–22. Notably,
the Court “will uphold the ALJ’s decision even if there is contrary evidence that would justify
the opposite conclusion, as long as the ‘substantial evidence’ standard is satisfied.” Johnson v.
Comm’r of Soc. Sec., 497 F. App’x 199, 201 (3d Cir. 2012) (citing Simmonds v. Heckler, 807
F.2d 54, 58 (3d Cir. 1986)); see also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d
Cir. 2011) (“Courts are not permitted to reweigh the evidence or impose their own factual
determinations [under the substantial evidence standard].”); Hatton v. Comm’r of Soc. Sec.
Admin., 131 F. App’x 877, 880 (3d Cir. 2005) (“When ‘presented with the not uncommon
situation of conflicting medical evidence . . . [t]he trier of fact has the duty to resolve that
conflict.’”) (quoting Richardson v. Perales, 402 U.S. 389, 399 (1971)).
Plaintiff also contends that the opinion of the consultative examiner, Dr. Lam, supports
her subjective statements and that the ALJ erred in finding his opinion unpersuasive. Plaintiff’s
Brief, ECF No. 15, pp. 18–20. Plaintiff’s argument is not well taken.
For claims filed after March 27, 2017, 4 the regulations eliminated the hierarchy of
medical source opinions that gave preference to treating sources. Compare 20 C.F.R. § 404.1527
with 20 C.F.R. § 404.1520c(a) (providing, inter alia, that the Commissioner will no longer “defer
4
As previously noted, Plaintiff’s claim was filed on May 29, 2019.
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or give any specific evidentiary weight, including controlling weight, to any medical opinion(s)
or prior administrative medical finding(s), including those from [the claimant’s] medical
sources”). Instead, the Commissioner will consider the following factors when considering all
medical opinions: (1) supportability; (2) consistency; (3) relationship with the claimant,
including the length of the treating examination, the frequency of examinations, and the purpose
of the treatment relationship; (4) the medical source’s specialization; and (5) other factors,
including, but not limited to, “evidence showing a medical source has familiarity with the other
evidence in the claim or an understanding of our disability program's policies and evidentiary
requirements.” 20 C.F.R. § 404.1520c(c).
The regulations emphasize that “the most important factors [that the ALJ and
Commissioner] consider when [] evaluat[ing] the persuasiveness of medical opinions and prior
administrative medical findings are supportability (paragraph (c)(1) of this section) and
consistency (paragraph (c)(2) of this section).” Id. at § 404.1520c(a). As to the supportability
factor, the regulations provide that “[t]he more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions
or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). As to the consistency
factor, the regulations provide that “[t]he more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical finding(s) will be.” Id. § 404.1520c(c)(2).
The applicable regulations further require the ALJ to articulate his “consideration of
medical opinions and prior administrative medical findings” and articulate in the “determination
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or decision how persuasive [he] find[s] all of the medical opinions and all of the prior
administrative medical findings in [the claimant’s] case record.” Id. at § 404.1520c(b).
“Specifically, the ALJ must explain how he considered the ‘supportability’ and ‘consistency’
factors for a medical source’s opinion. . . . The ALJ may—but is not required to—explain how
he considered the remaining factors.” Michelle K. v. Comm’r of Soc. Sec., No. 1:19-CV-01567,
2021 WL 1044262, at *4 (W.D.N.Y. Mar. 19, 2021) (citing 20 C.F.R. §§ 404.1520c(b)(2),
416.920c(b)(2)).
In the present case, the ALJ specifically considered Dr. Lam’s opinion, but found it
unpersuasive, reasoning as follows:
The undersigned finds the opinion of Dr. Lam to be unpersuasive (2F). Dr. Lam
opined the claimant would not be limited from walking 1 block and standing 10
minutes with reasonable breaks; she would be able to sit for 15 minutes with needed
breaks; she does not require an ambulation aide at this time; no significant balance
limitations were observed during the evaluation; she has difficulty reaching with
her left arm; she would be able to handle fine and small sized objects; she has no
significant limitations to fingering such as picking and pinching objects; and she
can lift 5 to10 pounds in each arm (Id.). The opinion of Dr. Lam is based on a onetime examination with the claimant and is inconsistent and unsupported by later
medical record showing generally unremarkable physical examinations (2F at 5 [R.
275], 3F at 20 [R. 300]).
R. 22.
In challenging the ALJ’s consideration in this regard, Plaintiff complains that the ALJ
cited to “the CE’s own report and the ER visit on February 11, 2020 for influenza and asthma
exacerbation. Id.; see also Tr. 275 (CE, Dr. Lam’s report); Tr. 300 (ER visit). The record
contains no other documentation of any ‘later’ examination.” Plaintiff’s Brief, ECF No. 15, p. 19.
Plaintiff goes on to complain that the ALJ improperly discounted Dr. Lam’s opinion because it
was based on a one-time examination, noting that consultative examinations are “always” based
on a one-time examination and that it is illogical to call a consultative examiner and then reject
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that opinion. Id. at 19–20. Plaintiff also contends that the ALJ improperly rejected Dr. Lam’s
opinion “without acknowledging or discussing the findings in the report and the record as a
whole that are patently consistent with the opinion.” Id. at 20 (emphasis in the original).
Plaintiff’s arguments are not well taken. It is true that the ALJ cited to two pages—a page
from Dr. Lam’s own report, R. 275, and a page from St. Joseph’s University Medical Center
when Plaintiff visited the emergency department on February 11, 2020, R. 300—but the ALJ’s
reliance on these pages does not warrant remand. Although the ALJ erred in characterizing the
citation to Dr. Lam’s own report, R. 275, as part of the “later medical record[,]” R. 22, the ALJ
properly considered Dr. Lam’s own findings when determining the persuasiveness of that
physician’s opinion. 20 C.F.R. § 404.1520(c); Crossley v. Kijakazi, No. 3:20-CV-02298, 2021
WL 6197783, at *11 (M.D. Pa. Dec. 31, 2021) (finding physician’s opinion was not supported
where, inter alia, that physician’s own treatment notes reflected that the claimant’s strength was
routinely “normal” and that he had a “normal range of motion”); Hendricks v. Kijakazi, , No.
1:20-CV-01045, 2021 WL 5823017, at *7 (M.D. Pa. Dec. 8, 2021) (concluding that the ALJ
properly found physician’s opinion inconsistent where, inter alia, that physician’s opinion
regarding the claimant’s “standing and walking limitations do not correspond to [the physician’s]
own examination findings”). As detailed above, the ALJ specifically considered that Dr. Lam’s
musculoskeletal and neurological examination revealed, inter alia, a normal gait without an
ambulation aide; good hand-eye coordination; ability to heel walk, toe walk, and squat without
difficulty; limited range of motion of the left shoulder and decreased range of motion of the
lumbar spine, but full grip strength of the upper extremities, full range of motion of the lower
extremities, and full range of the motion of the cervical spine; clear to auscultation of the lungs;
and normal mental status examination findings. R. 21, 275; see also Serrano v. Kijakazi, No. CV
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20-3985, 2021 WL 4477137, at *3–4 (E.D. Pa. Sept. 30, 2021) (“In this case, the ALJ discussed
and analyzed the evidence extensively before determining the persuasiveness of the medical
opinions. . . . The ALJ was not required to repeat this information for the sake of elaborating on
her findings of persuasiveness.”); Zajac v. Comm’r of Soc. Sec., No. 1:20-CV-135, 2021 WL
1169466, at *4 (W.D. Mich. Mar. 29, 2021) (finding that the ALJ properly analyzed an opinion
under §§ 404.1520c(c)(1)–(2) and 416.920c(c)(1)–(2) where the ALJ “articulated proper bases
for finding the opinion unpersuasive, namely, consistently normal physical and mental
examination findings, and she supported her reasons with citations to specific evidence in the
record”).
Similarly, the ALJ properly considered Plaintiff’s physical examination at the emergency
department at St. Joseph’s University Medical Center on February 11, 2020, which, as
previously detailed, revealed, inter alia, mild expiratory wheezing but otherwise normal
findings, including full range of motion of the neck, normal respiration, full range of motion of
the extremities with no injury or deformity, normal pulses, and steady gait; she was lucid,
followed commands, and was oriented to time and place; her chest x-rays showed no acute
cardiopulmonary process and she was discharged on the same day in stable condition. R. 21–22,
300; see also 20 C.F.R. § 404.1520c(c)(1)–(2); Serrano, 2021 WL 4477137, at *3–4; Zajac,
2021 WL 1169466, at *4. To the extent that Plaintiff insists that the ALJ failed to
“acknowledge[e] or discuss[] the findings in the report and the record as a whole that are
patently consistent with the opinion[,]” Plaintiff’s Brief, ECF No. 15, p. 20 (emphasis in the
original), Plaintiff never identifies any such findings that support Plaintiff’s subjective statements
or a conclusion of disability. See id. The Court will not hunt through the record to find evidence
or construct Plaintiff’s arguments for her. See Atkins v. Comm’r Soc. Sec., 810 F. App’x 122, 129
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(3d Cir. 2020); United States v. Claxton, 766 F.3d 280, 307 (3d Cir. 2014) (“[T]his Court has
frequently instructed parties that they bear the responsibility to comb the record and point the
Court to the facts that support their arguments.”). In any event, even if the Court considered as
supportive of Plaintiff’s argument the objective evidence identified earlier in Plaintiff’s Brief,
ECF No. 15, pp. 17–18, as previously explained, the Court “will uphold the ALJ’s decision even
if there is contrary evidence that would justify the opposite conclusion, as long as the ‘substantial
evidence’ standard is satisfied.” Johnson, 497 F. App’x at 201; Chandler, 667 F.3d at 359;
Hatton, 131 F. App’x at 880.
Plaintiff next complains that the ALJ relied on a “highly selective” description of her
daily activities when discounting her subjective complaints and insists that her actual activities
do not demonstrate an ability to perform work activity on a sustained basis. Plaintiff’s Brief, ECF
No. 15, pp. 21–22; Plaintiff’s Reply Brief, ECF No. 17, pp. 3–4. However, Plaintiff’s activities
of daily living were but one relevant factor that the ALJ considered in making his RFC
determination and in assessing Plaintiff’s subjective complaints. R. 20–22; see also 20 C.F.R. §
404.1529(c)(3)(i) (providing that the ALJ may consider a claimant’s daily activities);
Cunningham v. Comm’r of Soc. Sec., 507 F. App’x 111, 118 (3d Cir. 2012) (“[I]t is appropriate
for an ALJ to consider the number and type of activities in which a claimant engages when
assessing his or her residual functional capacity. . . and was permitted to consider them to
evaluate the credibility of [the claimant’s] subjective complaints of pain and other symptoms.”)
(citations omitted). In any event, to the extent that Plaintiff points to evidence that she believes
undermines the ALJ’s consideration, as long as the ALJ satisfies the substantial evidence
standard, the Court will uphold the ALJ’s decision even if contrary evidence exists that justifies
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the opposite conclusion. Johnson, 497 F. App’x at 201; Chandler, 667 F.3d at 359; Hatton, 131
F. App’x at 880.
Plaintiff also contends that the ALJ did not properly consider the location, duration,
frequency, and intensity of her pain, and argues that, to the extent that the ALJ acknowledges her
subjective complaints of pain, such “concession that her pain persisted despite a range of
treatment is not reasonably or logically connected to his finding that her description of persistent
pain is not consistent with the record[.]” Plaintiff’s Brief, ECF No. 15, pp. 22–24. This Court
disagrees. As detailed above, the ALJ carefully considered the medical record in this case,
noting, inter alia, that Plaintiff’s symptoms improved after her surgery in 2018. R. 21–22. The
ALJ went on to specifically recognize that Plaintiff “may experience some degree of pain
and discomfort, particularly with significant physical exertion, which has been considered in
limiting her to light work. However, this is not, in itself, incompatible with the performance of
some work activity.” R. 22. The Court finds no error with the ALJ’s reasoning in this regard. See
Jennifer L. v. Comm’r of Soc. Sec., No. CV 20-8537, 2022 WL 494110, at *3 (D.N.J. Feb. 17,
2022) (noting that the claimant’s pain resulting from rheumatoid arthritis “is not enough to
support a finding that Plaintiff is disabled”) (citations omitted); Longboat v. Berryhill, No. CV
17-146-E, 2018 WL 4157067, at *1 (W.D. Pa. Aug. 30, 2018) (finding, inter alia, that the “ALJ
did not entirely discount Plaintiff's allegations of pain in his decision; rather, he appropriately
found that Plaintiff indeed suffered from moderate pain, but still retained the capacity for light
work with additional restrictions”); Morel v. Colvin, No. 14-2934, 2016 WL 1270758, at *6
(D.N.J. Apr. 1, 2016) (“The claimant need not be pain-free to be found ‘not disabled.’”).
Plaintiff goes on to argue that she “attempted numerous treatment modalities, including
physical therapy, chiropractic care, various injections, pain medication, and ultimately, surgery”
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to alleviate her pain, which reflects that her symptoms were intense and persistent. Plaintiff’s
Brief, ECF No. 15, pp. 24–25 (citing, inter alia, SSR 16-3p). Plaintiff’s argument is not well
taken. As is evident from the summary detailed above, the ALJ specifically considered Plaintiff’s
treatment history, including the fact that, although she continued to experience some discomfort,
her pain improved, her numbness and tingling almost completely resolved, and she ultimately
discontinued taking Percocet after her surgery in April 2018. R. 21. Notably, as the Acting
Commissioner notes, Defendant’s Brief Pursuant to Local Rule 9.1, ECF No. 16, pp. 11–12,
Plaintiff cites to treatment that pre-dated this surgery. Plaintiff’s Brief, ECF No. 15, pp. 24–25.
Plaintiff has not persuaded this Court that the ALJ erred in his consideration of her treatment
history.
Finally, Plaintiff contends that the ALJ erred when failing to consider “her exemplary,
uninterrupted 37-year work history” when assessing her subjective complaints. Plaintiff’s Brief,
ECF No. 15, pp. 25–28; see also Plaintiff’s Reply Brief, ECF No. 17, pp. 4–6. The Court is not
persuaded that this issue requires remand. The United States Court of Appeals for the Third
Circuit has upheld an ALJ’s evaluation of a claimant’s subjective complaints where the ALJ did
not “explicitly discuss his years of uninterrupted employment[,]” but where the ALJ did explain
why other evidence in the record belied the claimant’s subjective complaints. Sanborn v.
Comm’r of Soc. Sec., 613 F. App’x 171, 177 (3d Cir. 2015); see also Forcinito v. Comm’r of Soc.
Sec., No. CIV. 12-6940, 2014 WL 252095, at *9 (D.N.J. Jan. 23, 2014) (“[W]ork history is only
one of many factors the ALJ may consider in assessing claimant’s credibility. . . . Work history
is not dispositive of credibility and the question of credibility is left to the ALJ’s discretion after
considering all of the relevant factors.”) (citations omitted). Here, as noted above, the ALJ
detailed why other record evidence undermined Plaintiff’s subjective complaints. R. 20–22.
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Moreover, even though the ALJ did not expressly discuss Plaintiff’s work history when assessing
her subjective statements, the ALJ specifically referred to her work history when concluding that
Plaintiff was capable of performing her past relevant work as an office clerk. R. 23 (citing, inter
alia, Exhibit 3E, R. 165 – 73, which reflects, inter alia, that Plaintiff worked as a “Sr. clerk /
receptionist” from July 21, 1979, to February 1, 2017, R. 166). See Burrell v. Kijakazi, No. CV
21-3662, 2022 WL 742841, at *4 (E.D. Pa. Mar. 10, 2022) (finding that although “the ALJ did
not mention Plaintiff's work history in her credibility assessment, she explicitly referenced
Plaintiff’s work history in her factual findings and when determining if jobs existed in the
national economy that Plaintiff could perform” and that “even if the ALJ failed to consider
Plaintiff’s work history, such failure does not constitute reversible error because the ALJ
articulated how she reached her decision based on the evidence in the record”); Forcinito v.
Comm’r of Soc. Sec., No. CIV. 12-6940 JBS, 2014 WL 252095, at *9 (D.N.J. Jan. 23, 2014)
(rejecting the plaintiff’s argument that the ALJ failed to consider her work history where “the
ALJ did consider Plaintiff's work history by acknowledging her past relevant work as a cook”
and that “work history is only one of many factors the ALJ may consider in assessing claimant’s
credibility” but that “[w]ork history is not dispositive of credibility and the question of credibility
is left to the ALJ’s discretion after considering all of the relevant factors”). Accordingly, the
Court finds that the ALJ sufficiently explained his reasoning in evaluating Plaintiff’s subjective
complaints. The ALJ’s findings in this regard are supported by substantial evidence in the record
and are therefore entitled to this Court’s deference. See id.; see also R. 20–23; SSR 16-3p;
Miller, 719 F. App’x at 134; cf. Malloy v. Comm’r of Soc. Sec., 306 F. App’x. 761, 765 (3d Cir.
2009) (“Credibility determinations as to a claimant’s testimony regarding pain and other
subjective complaints are for the ALJ to make.”) (citing Van Horn v. Schweiker, 717 F.2d 871,
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873 (3d Cir. 1983)); Davis v. Comm’r Soc. Sec., 105 F. App’x 319, 322 (3d Cir. 2004) (finding
that the ALJ sufficiently evaluated the plaintiff’s testimony where “the ALJ devoted two pages to
a discussion of claimant’s subjective complaints and cited Claimant’s daily activities and
objective medical reports”). Accordingly, the ALJ’s assessment of Plaintiff’s subjective
complaints will not serve as a basis for remand of this action. Id.
In short, for all these reasons, the Court concludes that the ALJ’s findings regarding
Plaintiff’s RFC are consistent with the record evidence and enjoy substantial support in the
record, as does his consideration of Plaintiff’s subjective complaints and the opinion of Dr. Lam.
V.
CONCLUSION
For these reasons, the Court AFFIRMS the Commissioner’s decision.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
IT IS SO ORDERED.
Date: May 9, 2022
s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE
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