ROSARIO v. COMMISSIONER OF SOCIAL SECURITY

Filing 11

OPINION. Signed by Judge Susan D. Wigenton on 11/17/2022. (qa, )

NOT FOR PUBLICATION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

MARIO R.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

Civil Action No. 2:22-CV-00726
OPINION
November 17, 2022

Defendant.

WIGENTON, District Judge.
Before this Court is Plaintiff Mario R.’s (“Plaintiff”)1 appeal of the final administrative
decision of the Commissioner of Social Security (“Commissioner”) with respect to Administrative
Law Judge Meryl L. Lissek’s (“ALJ”) denial of Plaintiff’s claim for disability insurance benefits
(“DIB”) under the Social Security Act (the “Act”). This Court has subject matter jurisdiction
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Venue is proper pursuant to 28 U.S.C § 1391(b).
This appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For
the reasons set forth below, this Court finds that the ALJ’s factual findings are supported by
substantial evidence and that her legal determinations are correct. Therefore, the Commissioner’s
decision is AFFIRMED.

1

Plaintiff is identified only by his first name and last initial in this opinion, pursuant to Chief District Judge Freda
Wolfson’s Standing Order 2021-10, issued on October 1, 2021, available at https://www.njd.uscourts.gov/sites/njd/
files/SO21-10.pdf.

I.

PROCEDURAL AND FACTUAL HISTORY
A. Procedural History
On July 9, 2018, Plaintiff filed for DIB, alleging disability beginning October 2, 2016, due

to degenerative disc disease; coronary artery disease; diabetes mellitus; hernia; depression; anxiety
disorder; and learning disorder. (D.E. 4-2 (Administrative Record (“R.”)) at 15, 18, 45–83, 109,
389, 418–27.) The state agency denied Plaintiff’s claim initially on October 26, 2018, and upon
reconsideration on March 8, 2019. (R. 132–37, 142–44.) Plaintiff received a hearing before ALJ
Lissek on May 6, 2021 (R. 44–83), and the ALJ issued a partially favorable decision for Plaintiff
on May 26, 2021. (R. 9–37.) The Appeals Council denied the request for review on July 22, 2021,
making the ALJ’s decision the final decision of the Commissioner of Social Security. (R. 1–8.)
Plaintiff subsequently filed the instant appeal in this Court. (D.E. 1.) The parties completed timely
briefing, and Plaintiff did not file a reply. (D.E. 7, 10.)
B. Factual History2
Plaintiff was born on January 10, 1965, in the Dominican Republic. (R. 47, 53.) Plaintiff
has up to a fifth-grade education and previously worked as a hand packager for light fixtures. (R.
50–51, 53–56.) Plaintiff stopped working on or about October 2, 2016, following a hand injury.
(R. 51.) Plaintiff returned to work in 2017 but stopped working again on or about December 23,
2017. (R. 51, 419.) Plaintiff alleges he stopped working full-time due to a variety of physical and
mental health impairments. (R. 389, 419.) The following is a summary of the medical evidence
in the record.

2

Plaintiff’s “Procedural History/Statement of Facts” in his moving brief is insufficient and a blatant disregard of Local
Rule 9.1(e)(5)(c). Local Rule 9.1(e)(5)(c) requires “a statement of facts with references to the administrative record,”
and Plaintiff provides only his procedural history. Future non-compliant filings may result in sanctions, including
dismissal.

2

i.

Left Hand Impairment
On September 1, 2016, Plaintiff sustained an injury to his left index finger at work,

reporting that a metal object fell on his hand. (R. 661–64.) Plaintiff sought treatment at Raritan
Bay Medical Center from internist Dr. Gregorio Guillen, M.D., where an initial evaluation
revealed a partial avulsion with an open fracture of the left index finger. (R. 661, 663.) Plastic
surgeon Dr. George Smith, M.D., performed an immediate open reduction internal fixation surgery
on Plaintiff. (R. 661–62.) Plaintiff was discharged on September 7, 2016. (R. 662.)
On September 26, 2016, Plaintiff returned to Dr. Smith for removal of the K-wire in his
left index finger. (R. 601.) Following the procedure, there was an adequate reduction with mild
tenderness and discomfort at the fracture site, but medical records note adequate stability. (Id.)
Subsequent medical records do not indicate persistent complications or need for continued
treatment related to Plaintiff’s left finger fracture. (See generally R. 734–845.)
ii.

Diabetes and Pacemaker Implantation
Medical records indicate that Plaintiff has a longstanding history of diabetes, dating back

to 2005, for which he was prescribed oral medications before starting insulin in 2018. (R. 734–
35, 737–38, 744–46, 758–59.) On July 6, 2017, Dr. Guillen noted that Plaintiff’s most recent A1c
was 9.5%, but Plaintiff denied any systemic complications and exhibited otherwise benign
physical examination findings. (R. 744–46.)
On May 8, 2018, Plaintiff reported to the hospital with complaints of weakness, dizziness,
syncope, chest pain, and vomiting. (R. 610–14, 618–19.) Upon examination, Plaintiff was
diagnosed with complete heart block and diabetic ketoacidosis. (R. 608, 624). He received a
permanent pacemaker, and was discharged to his home on insulin with instructions to closely
monitor his blood sugar levels. (R. 608–09, 624–25.) Later that month, Plaintiff returned to Dr.

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Guillen to report occasional chest pains and dizziness, but indicated that his blood sugar improved
since beginning insulin. (R. 737.) When plaintiff returned to Dr. Guillen throughout 2018 and
2019, Dr. Guillen noted that Plaintiff’s A1c levels remained elevated. (R. 880, 882). Plaintiff,
however, mentioned to Dr. Guillen in December 2019 that he was “feeling well without any
specific complaints.” (R. 860.)
On July 23, 2018, Plaintiff visited cardiologist Dr. Rakesh Passi, M.D., for follow-up of
his pacemaker placement. (R. 705–07.) On examination, Dr. Passi noted grade 1/6 systolic
murmur, but also normal and bilaterally equal pulsations. (R. 706.) Dr. Passi also noted Plaintiff’s
clear lungs and no muscle fasciculations, atrophy, muscle weakness, or asymmetry. (R. 705–07.)
Plaintiff sought follow-up cardiac visits from Dr. Passi in early 2020. (R. 915, 920–23.)
Plaintiff reported feeling well and denied symptoms of shortness of breath or chest pain, but
complained of headaches and pain at his pacemaker site when lifting his arm. (R. 920.) Dr. Passi
advised Plaintiff to continue his current medication regimen, and to consult with other medical
professionals for his other complaints.

(R. 922).

Later in the year, Dr. Passi prescribed

nitroglycerin tablets to Plaintiff for chest pain and shortness of breath, and advised him to go to
the emergency room if symptoms worsened. (R. 911–13, 915.) Plaintiff returned to Dr. Passi on
April 7, 2021, complaining of shortness of breath and occasional chest pain, including pain at his
pacemaker site when sleeping. (R. 901.) Dr. Passi recommended additional diagnostic testing to
rule out exacerbation of Plaintiff’s coronary heart disease. (R. 903.)
iii.

Mental Impairments
On June 1, 2017, Plaintiff presented to the George J. Otlowski, Sr. Center for Mental Health

Care (“GJOSC”) for an initial intake evaluation. (R. 554–67.) Plaintiff reported symptoms of
poor sleep, exhaustion, irritation, low energy, no interest in doing anything, and depressed moods.

4

(R. 555.) The evaluation by mental health clinician, Barbara Nelson, LCSW, established that
Plaintiff had insomnia, anxiety disorder, and mood disorder with depressive features. (R. 565–
66.) Two months later, on August 21, 2017, Plaintiff returned to GJOSC for a psychiatric
evaluation with Dr. Padmaja Annamaneni, M.D. (R. 568–71.) Dr. Annamaneni diagnosed
Plaintiff with adjustment disorder with mixed anxiety and depressed mood, and prescribed
Risperdal and trazodone. (R. 570.) In December 2017, a discharge summary from GJOSC noted
that it had lost contact with Plaintiff. (R. 572.)
iv.

Consultative Examinations
On September 17, 2018, Plaintiff was seen for a psychological consultative examination

by Dr. J. Theodore Brown, Ph.D., H.S.P.P. (R. 847–51.) Plaintiff indicated that he was not
receiving mental health treatment, and denied any history of psychiatric hospitalizations. (R. 847.)
Plaintiff reported symptoms of poor sleep, headaches, chest pain, decreased appetite, feeling
depressed and sad due to financial stress, crying episodes, reduced energy levels, poor memory
and concentration, anxiety manifested in pulling his hair, grinding his teeth, and picking sores, and
hearing music playing in his head that others could not hear. (R. 848.) While Plaintiff exhibited
pleasant and cooperative behavior, Dr. Brown also noted Plaintiff’s slightly lethargic motor
behavior; difficulty with interpreting proverbs; difficulty with memory exercises and serial sevens;
and estimated below average intellectual functioning. (Id.) Dr. Brown opined that Plaintiff
“should not be allowed to manage his own funds” due to a “learning disab[ility] and very likely
cognitively suffering from neurocognitive disorder.” (R. 850.)
On October 15, 2018, Plaintiff presented to Dr. Francky Merlin, M.D., for an internal
medicine consultative examination. (R. 852–53.) Plaintiff described loss of vision in his right eye
and pain in his left index finger. (R. 852.) Dr. Merlin noted that Plaintiff had no central vision in

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the right eye, but had peripheral vision in all quadrants of the right eye, and 20/30 vision in the left
eye. (R. 853.) Plaintiff exhibited inability to walk on his heels and decreased range of motion of
the bilateral shoulders. (Id.) X-rays of Plaintiff’s cervical and lumbar spine showed moderate
narrowing of C6-C7 vertebrae, decreased lordosis of the lumbar spine, and mild-to-moderate
posterior narrowing of L5-S1 intervertebral disc. (R. 856.)
v.

State Agency Physicians’ Findings
In 2018, state agency medical consultants reviewed the record and found, inter alia, that

Plaintiff had no exertional restrictions, but some non-exertional postural and environmental
restrictions. 3 (R. 93.) State agency psychologists found that Plaintiff was moderately limited in
his ability to understand, remember, or apply information; maintain attention and concentration
for extended periods; and adapt to changes in the work setting. (R. 91, 95–96.) Overall, the state
agency psychologists found that Plaintiff could carry out simple instructions; perform activities
within a schedule, maintain regular attendance, and be punctual; sustain ordinary routine; and
relate and adapt in simple work-like settings. (Id.)
C.

Hearing Testimony

At the administrative hearing on May 6, 2021, Plaintiff was represented by counsel. (R.
45–83.) ALJ Lissek heard testimony from Plaintiff and an impartial vocational expert, Linda
Vause (“VE Vause”). (See generally id.)
Plaintiff testified that following his work-related hand injury, he had surgery but “it ended
poorly” and he continued to have pain in his left hand. (R. 57.) Plaintiff also testified that because
of his pacemaker and diabetes, he occasionally has shortness of breath and chest pain when he

3

In her review of the state agency’s physical assessments of Plaintiff, ALJ Lissek found that “the substantial evidence
of record available . . . supports a somewhat higher degree of restriction . . . . Thus, the State agency medical
consultants’ physical assessments are each considered only somewhat persuasive in making the findings herein.” (R.
24–25.)

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stands for over 15 minutes. (R. 58–59.) Plaintiff claimed that he is unable to see out of his right
eye due to “blocked vision.” (R. 59.) Additionally, Plaintiff stated that he had depression in the
past but it improved with medication, while trouble with his memory and concentration persists.
(R. 59–60.)
VE Vause testified that an individual with Plaintiff’s vocational background and residual
functional capacity (“RFC”), as assessed by ALJ Lissek, would not be capable of working
Plaintiff’s previous job as a hand packager. (R. 65.) VE Vause testified that there were unskilled
jobs at the light exertional level in the national economy that a person with Plaintiff’s age,
education, work experience, and RFC could perform such as a marker, routing clerk, and
photocopying machine operator. (R. 75.)
During the hearing, ALJ Lissek presented various hypotheticals to determine Plaintiff’s
capabilities in performing past relevant work. (See R. 65–81.) ALJ Lissek asked VE Vause to
provide clarification on her answers to the hypotheticals, and Plaintiff’s counsel asked VE Vause
questions on cross-examination. (Id.) VE Vause responded to the questions accordingly. (Id.)
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) (citation and internal quotations omitted). Thus,

7

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.’” Bailey,
354 F. App’x. at 616 (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, No. 4:08-cv-1676, 2009 WL 1011587, at
*2 (M.D. Pa. Apr. 15, 2009) (internal quotation marks omitted) (quoting Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966)). “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 he accepts and which he 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) (internal quotation marks omitted) (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

8

record as a whole indicates that the 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 his previous
work but [unable], considering his 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 his or her 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

9

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 Sections 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 Rule (“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.

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Before undergoing the analysis in step four, the ALJ must determine the claimant’s 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
his or her 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
his or her 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 his or her 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, at step five 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. The ALJ’s Decision
On May 26, 2021, ALJ Lissek issued a partially favorable decision concluding that Plaintiff

was not disabled between October 2, 2016, the alleged onset date, and January 10, 2020, when

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Plaintiff’s age category changed. (R. 27.) At step one, the ALJ determined that Plaintiff had not
engaged in any substantial gainful employment since the alleged onset date. (R. 17–18.) At step
two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease;
coronary artery disease; diabetes mellitus; hernia; depression; anxiety disorder; and learning
disorder. (R. 18.)
At step three, ALJ Lissek explained that Plaintiff’s impairments, individually and in
combination, did not meet or medically equal the severity of any listing. (R. 18.) Based on the
record, ALJ Lissek found that Plaintiff’s spinal narrowing did not meet the requirements of Listing
1.16, lumbar spinal stenosis resulting in compromise of the cauda equine. 4 (R. 18–19). In
addition, the ALJ found that Plaintiff did not satisfy the conditions under Listings 2.02, 2.03, and
2.04, because Plaintiff’s vision records did not evince “loss of central visual acuity, contraction of
the visual field, or loss of visual efficiency in the better, left eye of the degree contemplated by
those listings.” 5 (R. 19.) As for Listing 4.04, the ALJ found that Plaintiff’s cardiac medical
evidence “does not adequately establish sign- or symptom-limited exercise tolerance test findings,
ischemic episodes, or angiographic evidence of arterial narrowing.”6 (Id.) Further, the ALJ stated

4

For this listing, Plaintiff would have to prove motor, sensory, and reflex loss, as well as a documental medical need
for a hand-held assistive device. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.16.
5

Listing 2.02 applies to loss of central visual acuity. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 2.02. Listing 2.03 refers
to contraction of the visual field in the better eye. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 2.03. Listing 2.04 describes
loss of visual efficiency, or visual impairment, in the better eye. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 2.04.
6

Listing 4.04, ischemic heart disease, requires symptoms due to myocardial ischemia, while on a prescribed treatment
regimen. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 4.04. Listing 4.04 also requires a “(A) Sign- or symptom-limited
exercise tolerance test”; “(B) Three separate ischemic episodes”; or medical imaging of “(C) Coronary artery disease.”
Id.

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that the medical evidence does not meet the criteria under Listing 4.05 for recurrent arrhythmias. 7
(Id.)
ALJ Lissek considered the severity of Plaintiff’s mental impairments pursuant to Listings
12.04, 12.06, and 12.11. 8 The ALJ found that Plaintiff has moderate limitations in “understanding,
remembering, or applying information,” 9 but his mental impairment(s) did not satisfy the
applicable mental disorder listings. (Id.) ALJ Lissek found that, “while the claimant exhibited
some evidence of below average intellectual functioning and difficulty with memory upon mental
status examination, there is no indications of any profound issues . . . .” (Id.) Additionally, the
ALJ noted that Plaintiff, “except as limited by his physical symptoms, [] is able to perform selfcare tasks and daily activities.” (R. 20.)
In assessing Plaintiff’s RFC, the ALJ found that Plaintiff, since the alleged onset date:
[H]ad the residual functional capacity to perform light work . . . except he: can use
his hands for handling and fingering constantly; can climb ramps and stairs
frequently; can climb ladders, ropes, or scaffolds, or stoop occasionally; must avoid
concentrated exposure to extreme heat and cold, fumes, odors, dusts, gases, and
poor ventilation; can do work that does not involve peripheral vision; can do near
acuity frequently; depth perception occasionally, and color vision occasionally; can
understand and perform simple instructions; can have occasional contact with
supervisors and occasional face-to-face contact with the general public; and can
deal with occasional changes in a routine work setting.”
(R. 20.)

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The criteria for recurrent arrhythmias require a showing of “uncontrolled episodes of cardiac syncope or near
syncope, despite prescribed treatment, and documented by resting or ambulatory electrocardiography, or by other
appropriate medically acceptable testing.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 4.05.
8

Listing 12.04 describes the requirements for depressive, bipolar, and related mental disorders. 20 C.F.R. Pt. 404,
Subpt. P, App. 1 § 12.04. Listing 12.06 describes the requirements for anxiety and obsessive-compulsive disorders.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06. Listing 12.11 describes the requirements for neurodevelopmental
disorders. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.11.

9

Listings 12.04, 12.06, and 12.11 list the ability to “understand, remember, or apply information” as criteria under
which an extreme limitation or marked limitation in mental functioning may exist.

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At step four, the ALJ determined that someone with Plaintiff’s RFC could not perform
Plaintiff’s previous job as a hand packager. (R. 26.) At step five, ALJ Lissek relied on VE Vause’s
testimony to explain that Plaintiff could perform work that existed in significant numbers in the
national economy such as a marker, assembler, or photocopy machine operator. (R. 27.) ALJ
Lissek therefore concluded that Plaintiff was not disabled under the Act prior to January 10, 2020.
(R. 27.) On January 10, 2020, the date of which Plaintiff’s age category changed, the ALJ found
that Plaintiff became disabled and has continued to be disabled through the date of her decision. 10
(Id.)
B.

Analysis

On appeal, Plaintiff seeks reversal or remand of the Commissioner’s decision. (See D.E.
7.) Plaintiff first asserts that the ALJ’s hearing was improper and non-neutral. (D.E. 7 at 8–21.)
Second, Plaintiff alleges that the ALJ’s decision disregards substantive evidence in the
administrative record to support a finding of Plaintiff’s disability between October 2, 2016, and
January 10, 2020. (D.E. 7 at 21–37.) This Court considers the arguments in turn and finds each
unpersuasive.
A.
Plaintiff contends that the ALJ’s hearing was conducted with bias “in a non-neutral and
adversarial manner,” inter alia, because ALJ Lissek’s questions/hypotheticals presented to VE
Vause and Plaintiff’s counsel were purposed to achieve a “predetermined outcome” unfavorable
to Plaintiff. (D.E. 7 at 11, 17.) Plaintiff’s arguments are without merit.

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In evaluating disability, age is a contemplated vocational factor: “[i]f we find that you cannot do your past relevant
work because you have a severe impairment(s), we will consider the same residual functional capacity assessment . .
. together with your vocational factors (your age, education, and work experience) to determine if you can make an
adjustment to other work. . . . If you cannot, we will find you disabled.” 20 C.F.R. § 404.1520(g).

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It is well-settled that due process is violated when a claimant applying for Social Security
benefits “is deprived of the opportunity to present evidence to an ALJ in support of his or her
claim, or where the ALJ exhibits bias or animus against the claimant.” Bordes v. Comm’r of Soc.
Sec., 235 F. App’x 853, 857–58 (3d Cir. 2007) (citing Ventura v. Shalala, 55 F.3d 900, 902–03
(3d Cir. 1995)). The Third Circuit has recognized that ALJs in Social Security hearings are
expected to maintain a high degree of impartiality because “the absence in the administrative
process of procedural safeguards normally available in judicial proceedings has been recognized
as a reason for even stricter application of the requirement that administrative adjudicators be
impartial.” See Hummel v. Heckler, 736 F.2d 91, 93 (3d Cir. 1984). Nevertheless, a district court
may not play a fact-finding role in Social Security cases, to include determining whether an ALJ
conducted a hearing with bias against a plaintiff. See id. Accordingly, a district court’s review of
the Commissioner’s findings on a bias claim necessitates that the claim was raised at a prior
administrative level. See 20 C.F.R. § 416.1440 (“If you object to the administrative law judge
who will conduct the hearing, you must notify the administrative law judge at your earliest
opportunity.”); see also Ventura, 55 F.3d at 902; Davis v. Comm’r of So. Sec., 2016 WL 356075,
at *4 (D.N.J. Jan. 28, 2016) (“Because Claimant raised the bias challenge for the first time before
this Court, she is deemed to have waived her bias claim.”); Laver v. Comm’r of Soc. Sec., 2020
WL 7640536, at *3 (D.N.J. Dec. 22, 2020) (finding that the claimant’s bias claim was waived for
failing to assert bias at the administrative level).
Even assuming that Plaintiff did not waive the issue, an ALJ is presumed to be unbiased
unless there is a specific showing for cause to disqualify. See Schweiker v. McClure, 456 U.S.
188, 195 (1982). The party making the allegation of bias has the burden of overcoming this
presumption. See id. at 195–96. The party must show that the behavior of the ALJ was “so extreme

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as to display clear inability to render fair judgment.” Liteky v. United States, 510 U.S. 540, 551;
see also Johnson v. Comm’r of So. Sec., 2008 WL 699591 (D.N.J. Mar. 12, 2008) (“Displays of
annoyance, impatience, dissatisfaction, or anger toward a party also do not form a basis for proving
bias.”).
Here, Plaintiff’s arguments are without merit. Plaintiff never raised any bias claim or
allegation against the ALJ at the administrative level. Moreover, a plain reading of the hearing
transcript does not reveal any egregious act committed by the ALJ rising to the level of a bias
claim, and reflects that Plaintiff was given an opportunity to appear at a full and fair hearing before
the ALJ. (See R. 45–83.) Plaintiff’s attorney was not prevented from representing his client.
During the hearing, Plaintiff’s attorney was permitted to present evidence to the ALJ, question the
VE and Plaintiff, and conduct opening and closing statements. (R. 56–63, 70–82.) The record
unequivocally demonstrates that Plaintiff was permitted to ask questions until Plaintiff rested his
case. (R. 56–63.) As such, Plaintiff’s argument is rejected.
B.
Second, Plaintiff asserts that the ALJ’s RFC assessment is not supported by substantial
evidence because it “arrive[s] without adequate rationale bridging the evidence to the RFCs.”
(D.E. 7 at 21.) Plaintiff further alleges that the ALJ’s decision “offers [a] collection of conclusory
statements which never quite refer to any evidence, articulate a function by function analysis or
create a bridge between the recited evidence and the RFC findings.” (D.E. 7 at 28.) This Court
finds no basis to reweigh the evidence, and the ALJ’s partial disability award based on Plaintiff’s
age of 55 is appropriate and supported by substantial evidence in the record.
When evaluating a Plaintiff’s claim, an ALJ considers the persuasiveness of medical
opinions and “will explain how [he or she] considered the supportability and consistency factors

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for a medical source’s medical opinions or prior administrative medical findings in [the claimant’s]
determination or decision.” 20 C.F.R. § 404.1520c(b)(2), (c)(1)–(5). However, “[a]n ALJ need
not defer to a treating physician’s opinion about the ultimate issue of disability because that
determination is an administrative finding reserved to the Commissioner.” Gantt v. Comm’r Soc.
Sec., 205 F. App’x. 65, 67 (3d Cir. 2006) (citing 20 C.F.R. § 404.1527(e)). “[T]here is [also] no
format to which an ALJ must adhere when giving h[is or her] reasoning so long as ‘there is
sufficient development of the record and explanation of findings to permit meaningful review.’”
Tompkins v. Astrue, Civ. No. 12-1897, 2013 WL 1966059, at *13 (D.N.J. May 10, 2013) (quoting
Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004)). Importantly, the Third Circuit has held that
an inconsistency between a plaintiff’s daily living activities and a medical opinion is a legitimate
basis to discredit the opinion. See, e.g., Hubert v. Comm’r of Soc. Sec., 746 F. App’x 151, 153 (3d
Cir. 2018); Russo v. Astrue, 421 F. App’x 184, 191 (3d Cir. 2011).
Plaintiff has pointed to no medical evidence that was overlooked concerning Plaintiff’s
functional limitations and impairments to support his position that the ALJ erred in determining
his RFC assessment. Indeed, it is Plaintiff’s burden to prove evidence of his disability, including
his RFC. See 20 C.F.R. § 404.1512(a). “[C]ourts are not permitted to re-weigh the evidence or
impose their own factual determinations.” Chandler v. Comm’r. of Soc. Sec., 667 F.3d 356, 359
(3d Cir. 2011). In assessing Plaintiff’s RFC, the ALJ provided a sufficient narrative discussion of
Plaintiff’s entire medical record during the alleged period of disability. (R. 20–25.)
The ALJ fully articulated her reasoning in determining Plaintiff’s RFC based on all relevant
evidence, including medical records, medical source opinions, and Plaintiff’s subjective
complaints and description of his own limitations. (Id.) An ALJ may discount a claimant’s
allegations about the intensity, persistence, or limiting effects of his symptoms where the evidence

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does not fully support those allegations, and “need only include in the RFC those limitations which
he finds to be credible.” Salles v. Comm’r of Soc. Sec, 229 F. App’x 140, 147 (3d Cir. 2007)
(citations omitted); see also 20 C.F.R. §§ 404.1529 and 416.929; see also Social Security Ruling
16-3p, 2016 WL 1119029 (S.S.A. Mar. 16, 2016). In this matter, ALJ Lissek explained that her
RFC findings were based on “careful consideration of the evidence,” where “the claimant’s
medically determinable impairments could reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not fully supported . . .” (R. 21.) The ALJ considered all evidence in the
record, including state agency medical physicians’ functional assessments, to find that Plaintiff
could perform light exertional work. (R. 20–25.) Thus, the ALJ articulated a meaningful rationale
between the evidence and her determination of Plaintiff’s RFC.
Reviewing the ALJ’s decision and the medical record as a whole, it is clear that there is
substantial evidence—i.e., more than a mere scintilla of evidence—to support the ALJ’s partially
favorable decision. Prior to January 10, 2020, Plaintiff was capable of performing light exertional
work, as opined by the treating and consultative physicians. This Court will therefore affirm the
ALJ’s decision.
IV.

CONCLUSION
For the foregoing reasons, this Court finds that ALJ Lissek’s factual findings were

supported by substantial credible evidence in the record and that her legal determinations were
correct. The Commissioner’s determination is therefore AFFIRMED. An appropriate order
follows.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

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Orig: Clerk
cc:
Parties

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