REGAN v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 6/3/2024. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALICIA R., 1
Plaintiff,

Case No. 2:22-cv-2956
Magistrate Judge Norah McCann King

v.
MARTIN O’MALLEY,
Commissioner of Social Security, 2
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 Alicia R. for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Plaintiff
appeals from the Commissioner’s partially favorable decision on that application. 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. For the reasons that
follow, the Court affirms the Commissioner’s decision.
I.

PROCEDURAL HISTORY
On July 25, 2019, Plaintiff protectively filed her application for benefits, alleging that she

has been disabled since November 24, 2018. R. 101, 110, 203–04. The application was denied

The Committee on Court Administration and Case Management of the Judicial Conference of
the United States has recommended that, due to significant privacy concerns in social security
cases, federal courts should refer to plaintiffs in such cases by only their first names and last
initials. See also D.N.J. Standing Order 2021-10.
2
Martin O’Malley, the current Commissioner of Social Security, is substituted as Defendant in
his official capacity. See Fed. R. Civ. P. 25(d).
1

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initially and upon reconsideration. R. 113–18, 121–24. Plaintiff sought a de novo hearing before
an administrative law judge (“ALJ”). R. 125–27. ALJ Beth Shillin held a hearing on February
24, 2021, at which Plaintiff, who was represented by counsel, testified, as did a vocational
expert. R. 55–84. In a decision dated March 1, 2021, the ALJ concluded that Plaintiff was
disabled within the meaning of the Social Security Act (“the Act”) from her alleged onset date of
November 24, 2018, through July 16, 2020, but that her disability ended on July 17, 2020, and
she has not been disabled under the Act since that date. R. 22–47. That partially favorable
decision became final when the Appeals Council declined review on October 21, 2021. R. 1–7.
Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On April 13, 2023,
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. 12. 3 On that
same day, the case was reassigned to the undersigned. ECF No. 13. The matter is ripe for
disposition.
II.

LEGAL STANDARD
A.

Standard of Review

In reviewing the Commissioner’s decision on an application 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). The United States Supreme Court has
explained this standard as follows:

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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).
2

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
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,
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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
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
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such articulation, the Court “cannot tell if significant probative evidence was not credited or
simply ignored.” Id. at 705. As the Third Circuit explains:
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 an adverse determination, 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).
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)).

5

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 § 416.909. 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.
If a claimant is determined to be disabled, the Commissioner’s regulations also require a
determination of the length of that period of disability. 20 C.F.R. § 404.1594(a). Ordinarily, if
there has been any “medical improvement” in the claimant’s disabling impairment(s) and, if that
medical improvement “is related to [the claimant’s] ability to work,” then the claimant’s period
of disability will end if that medical improvement enables the claimant to engage in substantial
gainful activity. Id.
Where the underlying medical condition continues, there arises “a presumption of
continuing disability.” Kuzmin v. Schweiker, 714 F.2d 1233, 1238 (3d Cir. 1983). At that point,
“the [Commissioner] must present evidence that there has been sufficient improvement in the
claimant’s condition to allow the claimant to undertake gainful activity.” Id at 1237. “Thus, once
the claimant produces evidence of continuing disability, the burden of proof, or more properly
the risk of non-persuasion, shifts to the [Commissioner] to produce evidence that the claimant is
capable of undertaking gainful activity in order to rebut the presumption of continuing
disability.” Keegan v. Heckler, 744 F.2d 972, 975 (3d Cir. 1984). Finally, “‘once having found a
disability, the [Commissioner] may not terminate the benefits without substantial evidence to
justify so doing.’” Kuzmin, 714 F.2d at 1238 (quoting Miranda v. Sec'y of Health, Educ. and
Welfare, 514 F.2d 996, 998 (1st Cir. 1975)).
III.

ALJ DECISION AND APPELLATE ISSUES
Plaintiff was a younger individual on her established disability onset date of November

24, 2018. R. 39. Plaintiff meets the insured status requirements of the Act through December
31, 2024. R. 31. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
7

activity between November 24, 2018, and the date of the decision. Id.
At step two, the ALJ found that Plaintiff suffered from the following severe impairments
from November 24, 2018, through July 16, 2020: degenerative disc disease of the lumbar spine;
status-post laminectomy/fusion of L4-5 and L5-S1; drop foot on the right with numbness;
depression; and anxiety. Id. The ALJ also found that Plaintiff’s status-post ankle fracture with
open reduction and internal fixation (“ORIF”) and post-traumatic stress disorder (“PTSD”) were
not severe. Id.
At step three, the ALJ found that, from November 24, 2018, through July 16, 2020,
Plaintiff did not suffer an impairment or combination of impairments that met or medically
equaled the severity of any Listing. R. 31–33.
At step four, the ALJ found that, from November 24, 2018, through July 16, 2020,
Plaintiff had the RFC to perform sedentary work subject to various additional limitations. R. 33–
39. The ALJ also found that, from November 24, 2018, through July 16, 2020, this RFC did not
permit the performance of Plaintiff’s past relevant work as a mixing machine operator; a
packager, machine; and a stores, laborer. R. 38–39.
At step five, the ALJ found that, from November 24, 2018, through July 16, 2020, there
were no jobs that existed in significant numbers in the national economy that Plaintiff could have
performed. R. 39–40. The ALJ therefore concluded that Plaintiff was under a disability, as
defined by the Act, from November 24, 2018, through July 16, 2020. R. 40.
However, the ALJ went on to consider whether Plaintiff remained disabled as of July 17,
2020. R. 40–47. The ALJ found that medical improvement had occurred as of that date and that
this medical improvement related to Plaintiff’s ability to work and resulted in an increase in her
RFC. R. 43. Although the ALJ found that this RFC still did not permit the performance of
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Plaintiff’s past relevant work, R. 46, the ALJ relied on the testimony of the vocational expert to
find that, beginning on July 17, 2020, a significant number of jobs—i.e., approximately 12,000
jobs as cutter and paster of press clippings, approximately 5,000 jobs as an assembler, and
approximately 6,000 jobs as a bench hand—existed in the national economy and could be
performed by an individual with Plaintiff’s vocational profile and this RFC. R. 46–47. The ALJ
therefore concluded that Plaintiff’s closed period of disability ended on July 16, 2020, and that
she was not disabled within the meaning of the Act from July 17, 2020, through the date of the
decision. R. 47.
Plaintiff disagrees with the ALJ’s partially favorable decision and objects to the
determination that Plaintiff’s closed period of disability ended on July 16, 2020; she asks that the
decision be reversed and remanded for further proceedings. Plaintiff’s Brief, ECF No. 8;
Plaintiff’s Reply Brief, ECF No. 11. The Commissioner takes the position that his 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 sufficient
explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF
No. 10.
IV.

DISCUSSION
A.

Medical Improvement

Plaintiff argues that the ALJ erred in finding that Plaintiff’s medical conditions had
improved as of July 17, 2020. Plaintiff’s Brief, ECF No. 8, pp. 20–22; Plaintiff’s Reply Brief,
ECF No. 11, pp. 1–2. This Court disagrees. By way of background, as previously discussed, the
ALJ first found that Plaintiff was disabled between November 24, 2018, and July 16, 2020. R.
31–40. During this closed period of disability, the ALJ found, inter alia, that Plaintiff suffered
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the following severe impairments: degenerative disc disease of the lumbar spine, status-post
laminectomy/fusion of L4-5 and L5-S1, drop foot on the right, depression, and anxiety, but that
none of these impairments, alone or in combination, met or medically equaled a listed
impairment. R. 31–33. The ALJ also found that Plaintiff had the RFC to perform a limited range
of sedentary work, as follows:
After careful consideration of the entire record, I find that, from November 24, 2018
through July 16, 2020, the claimant could perform sedentary work with the
following limitations: The claimant cannot climb ladders, scaffolds, or ropes. She
cannot work around heavy machinery or heights, and cannot do any crawling and
kneeling. The claimant can occasionally climb stairs and ramps, and occasionally
perform crouching, stooping and balancing. The claimant is limited to simple and
unskilled tasks. The claimant can have no exposure to extremes of temperature,
particularly cold. The claimant can do only occasional overhead reaching; and must
elevate her legs to a foot off the ground.
R. 33 (emphasis added). In reaching this determination, the ALJ considered years of record
evidence, including, inter alia, that Plaintiff had a history of lower back pain and radiculopathy
and, on August 18, 2017, and had undergone a spinal cord stimulator implant after unsuccessful
conservative treatment; that Plaintiff’s pain had returned after the implant had provided initial
relief and it was noted on December 11, 2018, that Plaintiff had diffuse lumbosacral tenderness,
poor lumbosacral range of motion, and positive straight leg raising, with significant back pain on
thigh flexion; that progress notes had reflected that from December 20, 2018 to February 12,
2019, Plaintiff was followed for chronic lower back pain with radiculopathy and that a cane had
been prescribed; that progress notes from April 9, 2019, had reflected limited motion of the
lumbar spine with pain, 3+/5 to 4/5 strength in the lower extremities, and positive straight leg
raising bilaterally; that on April 17, 2019, Plaintiff had undergone L4-S1 fusion surgery; that
although she had reported improvement in her pain, she went to the ER on June 6, 2019, due to
lower back pain; that a CT scan had revealed multilevel disc disease and facet arthropathy of the
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lumbar spine, worse at L4-5, with a disc osteophyte causing at least moderate bilateral neural
foraminal encroachment; that progress notes from July 11 to December 20, 2019, had reflected
that Plaintiff was followed for post-laminectomy syndrome and was ambulating with a cane and
that she had lower back pain, limited motion of the lumbar spine, lumbar paraspinal tenderness,
and decreased sensation on the right at L4 and L5, and reported right foot numbness; that as of
January 13, 2020, Plaintiff had only 25% range of motion in her spine but that, by April 3, 2020,
she had full motion of the lumbar spine, normal gait and station, and normal posture; that a July
16, 2020, examination had shown full range of motion in the neck, the lumbar spine, and all
extremities, with fewer reports of pain and good response to Cymbalta; that progress notes from
August 2020 had reflected a normal gait and station, normal posture, normal spinal contour, and
full range of motion of the lumbar spine and the lower extremities, with only mild lumbar
paraspinal tenderness; that psychiatric treatment notes from September 24, 2020, reflected that
Plaintiff had a very quick response to mental health treatment and overall was more upbeat and
in better condition. R. 35–36; see also R. 26–30 (reflecting ALJ’s summary of record evidence,
including, inter alia, that a July 16, 2020, annual physical examination revealed, among other
things, that Plaintiff denied any worsening symptoms and stated that Cymbalta had helped with
her neuropathic pain and that she had normal range of motion with 4/5 lower extremity strength
bilaterally; that while Plaintiff reported a depressed mood secondary to the loss of her job after
her back surgery, her mood and thought content were noted as normal; that a January 25, 2020,
consultative examination reflected, inter alia, that Plaintiff walked slowly with a cane and
reported being very depressed because she could not do some of the things that she used to do
and had to raise her legs and stay at home; that progress notes from September 24, 2020 to
November 28, 2020, revealed that Plaintiff had been seen for major depressive disorder, single
11

episode, moderate, and an adjustment disorder with anxiety, and that she had responded well to
having a daily schedule; that she had specifically reported on November 7, 2020, that she spent
time with family and friends).
As previously noted, the ALJ further found that, from November 24, 2018, through July
16, 2020, Plaintiff’s RFC precluded her performance of any past relevant work as well as other
jobs that existed in the national economy. R. 38–40. The ALJ therefore concluded that Plaintiff
was under a disability from November 24, 2018, through July 16, 2020. R. 40.
However, the ALJ went on to consider whether Plaintiff had experienced medical
improvement, R. 40–47, and concluded that medical improvement had in fact occurred as of July
17, 2020:
14. Medical improvement occurred as of July 17, 2020, the date the claimant’s
disability ended (20 CFR 404.1594(b)(1)).
As discussed above, examinations from July 16, 2020 on seem to consistently show
full range of motion in the neck, the lumbar spine and all extremities, with fewer
reports of pain and good response to Cymbalta. For example, progress notes from
August 25, 2020 note that the claimant had a normal gait and station, normal
posture, normal spinal contour, and full range of motion of the lumbar spine and
the lower extremities, with only mild lumbar paraspinal tenderness (Exhibit 29F,
4-6). With regard to the claimant’s anxiety and depression, even the psychiatric
treatment notes from September 24, 2020 to the present show that the claimant had
a very quick response to mental health treatment and overall is more upbeat and in
better condition (Exhibit 35F). The mental health treatment notes show that the
claimant responded well to the idea of having a daily schedule with hourly things
scheduled and that she was able to spend time with family (Exhibit 35F). Thus, the
evidence indicates an improvement in the claimant’s functional abilities as of July
17, 2020.
R. 43. The ALJ also found that this medical improvement related to Plaintiff’s ability to work
and resulted in an increase in her RFC and that, beginning on July 17, 2020, Plaintiff had the
RFC to perform a limited range of sedentary work, as follows:
After careful consideration of the entire record, I find that, beginning July 17, 2020,
the claimant has had the following residual functional capacity: The claimant could
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perform sedentary work with the following limitations: The claimant cannot climb
ladders, scaffolds, or ropes. She cannot work around heavy machinery or heights,
and cannot do any crawling and kneeling. The claimant can occasionally climb
stairs and ramps, and occasionally perform crouching, stooping and balancing. The
claimant is limited to simple and unskilled tasks. The claimant can have no
exposure to extremes of temperature, particularly cold. The claimant can do only
occasional overhead reaching. The claimant needs the option to sit or stand or shift
position at will within the workstation while remaining on task.
Id. (emphasis added). Although the ALJ again found that this RFC precluded the performance of
Plaintiff’s past relevant work, the ALJ relied on the testimony of the vocational expert to find
that, beginning on July 17, 2020, there were jobs that existed in significant numbers that Plaintiff
could perform despite her lessened capacity. R. 46–47. The ALJ therefore concluded that
Plaintiff’s disability ended on July 17, 2020, and that she was not disabled from that date through
the date of the decision. R. 47. The Court finds no error with the ALJ’s analysis in this regard,
including her finding of medical improvement beginning on July 17, 2020. See 20 C.F.R. §
404.1594(b), (c)(1); Rocshon D. G. v. Kijakazi, No. 21CV12889, 2023 WL 1750326, at *4
(D.N.J. Feb. 3, 2023) (concluding that substantial evidence supported the finding that the
claimant experienced medical improvement where, inter alia, the initial disability determination
was rooted in the claimant’s inability to use his right hand and later records reflected marked
improvement in that ability).
Plaintiff, however, challenges the ALJ’s finding of medical improvement beginning on
July 17, 2020, contending first, as to her physical impairments, that “the 8/25/2020 visit was via
telemedicine and it is difficult to imagine how these physical findings were assessed virtually. R.
2227. Furthermore, the visits on 8/24/20 and 8/28/20 indicate that pain management visits were
ongoing. R. 2227, 2173.” Plaintiff’s Brief, ECF No. 8, p. 21; see also Plaintiff’s Reply Brief,
ECF No. 11, p. 1 (characterizing as “suspect” the findings from the telemedicine visit on August
25, 2020). Plaintiff also argues that, “[o]verall, there is very little orthopedic treating medical
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evidence after the end of the closed period, July 17, 2020. And there is nothing in the medical
records on July 17, 2020 or in the days thereafter that logically indicates significant medical
improvement.” Plaintiff’s Brief, ECF No. 8, p. 21; see also Plaintiff’s Reply Brief, ECF No. 11,
p. 2 (stating that, overall, there is “scant orthopedic evidence dated after the end of the closed
period” and pointing to Plaintiff’s hearing testimony that she “pay[s] for it” if she goes
someplace and there is no recliner to elevate her legs). As to her psychological impairments,
Plaintiff also observes that, on November 7, 2020, her psychologist noted “a discussion about not
scheduling visits or activities back-to-back days and to not set ‘[t]oo high expectations will lead
to disappointments and lower self esteem.’” Plaintiff’s Brief, ECF No. 8, p. 21 (quoting R. 2544).
Plaintiff also points to her November 14, 2020, report to her psychologist that “she was in a lot
of pain that week, possibly due to weather, and had cancelled social gatherings and spent time in
bed[,]” and to her November 21, 2020, report that “she was struggling with pain and nightmares
that week.” Id. (citing R. 2545–46).
Plaintiff has not persuaded this Court that this issue requires remand. As set forth above,
the ALJ detailed record evidence reflecting limitations flowing from Plaintiff’s physical and
mental impairments that rendered her disabled for the period November 24, 2018, through July
16, 2020, but that Plaintiff experienced medical improvement beginning on July 17, 2020. R. 27–
30, 34–38, 43–46. Although Plaintiff attacks as “suspect” the evidence from Plaintiff’s
telemedicine examination on August 25, 2020, Plaintiff’s Brief, ECF No. 8, p. 21; see also
Plaintiff’s Reply Brief, ECF No. 11, p. 1, Plaintiff bases this attack on only her own speculation
that such examinations have no probative value. Id. Notably, the treating provider explained why
and how the examination was conducted on August 25, 2020:
Today’s visit was conducted via Telemedicine and the patient provided consent by
logging in. The need for Telemedicine was needed because of concerns for
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infection risk related to COVID-19, following New Jersey state recommendations
to limit social contact, including use of the physician's office, when other options
(including home offices) are available. This synchronous care, was conducted with
both video and audio feed. The patient was physically located at their home and I,
the physician, was located in my office. A thorough history, review of medical
records and radiological studies was performed. Additionally, the examination on
this chart was created based on visual inspection and patients self-reported
symptoms.
R. 2228 (emphasis added); see also R. 2227 (“Since our last consultation, she underwent and
retrieved up-to-date xray’s [sic] of her lumbar spine. The study, which I reviewed and
interpreted, reveals status-post L4/S1 circumferential fusion with good hardware placement, no
evidence of loosening, no instability, good lumbar lordosis, and solid fusion. Overall, the study is
within normal limits and age appropriate.”). Based on this record, the ALJ did not err in relying
on this evidence when determining that Plaintiff had experienced medical improvement as of
July 17, 2020.
Plaintiff also asserts that “the visits on 8/24/20 and 8/28/20 indicate that pain
management visits were ongoing[,]” but she does not explain how this fact undermines the ALJ’s
finding of medical improvement as of July 17, 2020. Plaintiff’s Brief, ECF No. 8, p. 21 (citing R.
2227, 2173); cf. Padgett v. Comm’r of Soc. Sec., No. CV 16-9441, 2018 WL 1399307, at *2
(D.N.J. Mar. 20, 2018) (“[B]ecause Plaintiff has articulated no analysis of the evidence, the
Court does not understand what argument Plaintiff has made here. Plaintiff has done no more
than throw down a few pieces of an unknown jigsaw puzzle and left it to the Court to put them
together. The Court does not assemble arguments for a party from fragments.”). In any event, the
Court notes that the August 24, 2020, progress note advised Plaintiff to return to pain
management on only an as needed basis. R. 2227–28 (“Given her lack of persistent leg
symptoms, no further studies are needed. My recommendation is that she continue to treat her
symptoms conservatively with medication. Therefore, she should return to pain management for
15

further treatment. She express[es] understanding, and will follow-up on a PRN basis.”) (emphasis
added); see also Holt v. Comm’r of Soc. Sec., No. 3:12-CV-218, 2013 WL 2434432, at *4 n.7
(S.D. Ohio June 5, 2013), report and recommendation adopted sub nom. Holt v. Colvin, No.
3:12-CV-218, 2013 WL 3976558 (S.D. Ohio Aug. 1, 2013), aff'd (June 11, 2014) (noting that
“‘prn’ stands for the Latin phrase, pro re nata, meaning ‘as the occasion arises; when
necessary.’”) (citing Stedman’s Medical Dictionary 776, 1562 (28th ed.2006)). Although
Plaintiff was seen again for pain management on August 28, 2020, R. 2173, she concedes that
“there is very little orthopedic treating medical evidence after the closed period, July 17, 2020.”
Plaintiff’s Brief, ECF No. 8, p. 21. Notably, “the fact that Plaintiff continued to experience pain .
. . does not, alone, demonstrate that she could not perform the work as identified in the RFC. It is
well-settled that a claimant need not be pain-free or experiencing no discomfort in order to be
found not disabled.” Ruggiers v. Saul, No. 4:19-CV-1633, 2020 WL 4447927, at *6 (M.D. Pa.
Aug. 3, 2020) (citing Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991)); cf. Marissa M. v.
Comm’r of Soc. Sec., No. CV 21-18821, 2023 WL 143848, at *5–6 (D.N.J. Jan. 10, 2023)
(finding that the ALJ properly found that the claimant’s medical condition had improved after
December 31, 2019, where, inter alia, “the ALJ found that the record contained limited medical
evidence from January 1, 2020 onward—namely, the record contained only laboratory testing
records, reflecting largely normal results” and, to the extent that she did continue to receive
treatment, the ALJ considered that evidence, and therefore, “to agree with Plaintiff that the ALJ
misinterpreted the evidence in the record or should have reached a different conclusion would
require the Court to” improperly reweigh the evidence) (internal quotation marks omitted).
Although Plaintiff insists that elevating her legs sometimes helps alleviate her pain and, if she
does not, she is “going to pay for it for the next two or three days possibly[,]” Plaintiff’s Brief,
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ECF No. 11, p. 2 (citing R. 67) (internal quotation marks omitted), Plaintiff does not elaborate on
what this testimony—i.e., that she will “pay for it”—means. Id. Regardless, as previously
explained, the fact that Plaintiff is not completely pain-free does not establish that she is disabled
within the meaning of the Act, or that she did not experience medical improvement. Cf. Marissa
M., 2023 WL 143848, at *5–6; Ruggiers, 2020 WL 4447927, at *6.
As to her mental impairments, Plaintiff points to psychological progress notes but, again,
does not explain how this evidence establishes that the ALJ erred in finding medical
improvement as of July 17, 2020. Plaintiff’s Brief, ECF No. 8, p. 21 (quoting R. 2544–46). In
any event, Plaintiff’s reliance on this evidence is unavailing where the ALJ expressly found that
“psychiatric notes from September 24, 2020 to the present show that the claimant had a very
quick response to mental health treatment and overall is more upbeat and in better condition
(Exhibit 35F [R. 3540–47, reflecting treatment notes from September 24, 2020, through
November 28, 2020]).” For example, Plaintiff highlights that on November 7, 2020, there
appears “a discussion about not scheduling visits or activities back-to-back days and to not set
‘[t]oo high expectations will lead to disappointments and lower self esteem.’” Id. (quoting R.
2544). However, that same note also reflected, inter alia, that Plaintiff “expressed today that in
only 2 sessions she feels less fragmented and connect things. Responded well to advice about
scheduling, changing negative thoughts to coping self talk and the info about trauma work.” R.
2544. Plaintiff also points to a November 14, 2020, note in which she reported “a lot of pain that
week, possibly due to weather, and had cancelled social gatherings and spent time in bed.”
Plaintiff’s Brief, ECF No. 8, p. 21 (citing R. 2545) (emphasis added). However, the note also
reflects that Plaintiff further “reported being able to keep her mood up and to remain positive and
hopeful by doing self-talk and taking an hour at a time. spoke about childhood friend that she
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speaks to weekly and other friends and family members.” R. 2545. Similarly, while Plaintiff
points to a progress note dated November 21, 2020, in which she reported to her psychologist
that she was struggling with pain and nightmares that week, Plaintiff’s Brief, ECF No. 8, p. 21
(citing R. 25456), the same note also reflects that Plaintiff “always seems to be relieved and
empower[ed] when she gains insight and able to fit the pieces together. Her coping skills and
insight are progressing & increase her mental functioning. Pt seems to trust enough in order to
share her trauma.” R. 2546.
In short, the ALJ fairly characterized this evidence and appropriately relied on it when
finding medical improvement as of July 17, 2020. To the extent that Plaintiff insists that this
Court should reach a different result based on this evidence, Plaintiff is asking the Court to
improperly reweigh the evidence, which it cannot do. See 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)); Marissa M., 2023
WL 143848, at *6.
Accordingly, the ALJ’s finding that medical improvement occurred as of July 17, 2020,
enjoys substantial support in the record.
B.

Work That Existed in Significant Numbers

Plaintiff raises a number of challenges to the ALJ’s finding that, as of July 17, 2020,
Plaintiff could perform work that existed in significant numbers in the national economy.

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Plaintiff’s Brief, ECF No. 8, pp. 22 – 26; Plaintiff’s Reply Brief, ECF No. 11, For the reasons
that follow, Plaintiff’s arguments are not well taken.
An ALJ must determine whether the claimant, considering her RFC, age, education, and
work experience, could perform jobs that exist in significant numbers in the national economy.
20 C.F.R. §§ 404.1520(g), 404.1594(a). The Commissioner bears the burden of proof on this
issue. Hess v. Comm’r Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019); Johnson v. Comm’r of Soc.
Sec., 529 F.3d 198, 205 (3d Cir. 2008) (citing Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir.
2005)). See also Keegan, 744 F.2d at 975. “‘Advisory testimony from a vocational expert is
often sought by the ALJ for that purpose [of determining whether other jobs exist in significant
numbers in the national economy that the claimant could perform] . . . and factors to be
considered include medical impairments, age, education, work experience and RFC.’” Id. at
205–06 (quoting Rutherford, 399 F.3d at 551). Before relying on vocational expert testimony,
however, an ALJ must “[i]dentify and obtain a reasonable explanation for any conflicts between
occupational evidence provided by [vocational experts] and information in the Dictionary of
Occupational Titles[(“DOT”).]” SSR 00-4p, 2000 WL 1898704, at *1. “Specifically, an ALJ is
required to (1) ask, on the record, whether the [vocational expert’s] testimony is consistent with
the DOT, (2) ‘elicit a reasonable explanation’ where an inconsistency does appear, and (3)
explain in its decision ‘how the conflict was resolved.’” Zirnsak v. Colvin, 777 F.3d 607, 617 (3d
Cir. 2014) (quoting Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir. 2002)). While an “ALJ’s
failure to comply with these requirements may warrant remand in a particular case[,]” “this
Circuit has emphasized that the presence of inconsistencies does not mandate remand, so long as
‘substantial evidence exists in other portions of the record that can form an appropriate basis to
support the result.’” Id. (citations omitted) (emphasis added); see also Jackson v. Barnhart, 120
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F. App’x 904, 905–06 (3d Cir. 2005) (“[E]ven if it was error for the ALJ to fail to solicit
testimony about potential conflicts between this portion of the VE’s testimony and the DOT, the
error was harmless. Where substantial evidence supports the ALJ’s opinion and where the failure
to solicit the testimony contemplated in SSR 00-4p is harmless, this court will not reverse the
ALJ’s decision.”) (citations omitted).
In the case presently before this Court, the ALJ found that Plaintiff’s RFC as of July 17,
2020, enabled her to perform other jobs that existed in significant numbers in the national
economy, namely, cutter and paster of press clippings (12,000 jobs in the national economy);
assembler (5,000 jobs in the national economy); and bench hand (6,000 jobs in the national
economy), and that Plaintiff’s disability therefore ended on July 17, 2020. R. 46 –47. In
challenging this finding, Plaintiff first argues that the ALJ failed to resolve an inconsistency
between the DOT and the vocational expert’s testimony. Plaintiff’s Brief, ECF No. 8, pp. 22–24;
Plaintiff’s Reply Brief, ECF No. 11, pp. 2–3. Plaintiff specifically contends that the vocational
expert agreed that the RFC’s restrictions to simple and unskilled tasks were inconsistent with the
DOT’s definition for cutter and paster of press clippings, which requires a reasoning level 2, i.e.,
an ability to carry out “detailed” instructions. 4 Plaintiff’s Brief, ECF No. 8, pp. 22–24 (citing,

“The qualification categories listed by the DOT for each job include the job’s Strength level,
General Educational Development (“GED”) level, and its Specific Vocational Preparation
(“SVP”) level.” Zirnsak, 777 F.3d at 616 (quoting Appendix C, DOT). “GED measures ‘those
aspects of education (formal and informal) which are required of the worker for satisfactory job
performance.’” Id. “GED is broken into three categories: (1) reasoning development, (2)
mathematical development, and (3) language development. . . . Reasoning levels in the DOT
range from level 1 to level 6.” Id. (citing Appendix C, DOT). GED reasoning level 1 applies
“commonsense understanding to carry out simple one- or two-step instructions” in “standardized
situations with occasional or no variables in or from these situations encountered on the job.”
Appendix C, 1991 WL 688702. Reasoning level 2 applies “commonsense understanding to carry
out detailed but uninvolved written or oral instructions” in “problems involving a few concrete
variables in or from standardized situations.” Id. Reasoning level 3 applies “commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic form” in
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4

inter alia, R. 82–83); Plaintiff’s Reply Brief, ECF No. 11, pp. 2–3. Plaintiff also contends that the
job of cutter and paster of press clippings is obsolete. Plaintiff’s Brief, ECF No. 8, pp. 24–25;
Plaintiff’s Reply Brief, ECF No. 11, p. 3. Even assuming, without deciding, that Plaintiff is
correct that the ALJ erred in relying on this job, any such error is harmless. As previously noted,
the vocational expert identified two additional jobs—i.e., assembler and bench hand—that could
be performed by someone with Plaintiff’s vocational profile and Plaintiff’s RFC beginning on
July 17, 2020, and testified that there existed approximately 5,000 and 6,000, respectively, such
jobs in the national economy. R. 46–47, 79–81.
Plaintiff contends that 11,000 jobs (i.e., the total number of the two jobs) in the national
economy does not constitute a significant number of jobs. Plaintiff’s Brief, ECF No. 8, pp. 25–
26; Plaintiff’s Reply Brief, ECF No. 11, pp. 3–4. This Court disagrees. “[T]here is no precise
estimate for what significant numbers’ of jobs under the Social Security Act.” Young v. Astrue,
519 F. App’x 769, 772 (3d Cir. 2013) (citing 20 C.F.R. § 404.1566). This Court has previously
found that fewer than 11,000 jobs in the national economy is significant. See Emilia N. v.
Comm’r of Soc. Sec., No. CV 21-18677 (RMB), 2022 WL 14834594, at *7–9 (D.N.J. Oct. 26,

“problems involving several concrete variables in or from standardized situations.” Id. “SVP
levels, on the other hand, measure the skill level necessary to perform a particular job.” Zirnsak,
777 F.3d at 616 (citing SSR 00–4p, 2000 WL 1898704, at *3 (Dec. 4, 2000)). “SVP levels in the
DOT range from level 1 to level 9” and “[t]he DOT skill levels correspond with the second
source of information relied on by the Commissioner: the CFR.” Id. (citing SSR 00–4p). The
CFR categorizes occupations into three classes: unskilled, semi-skilled, and skilled. 20 C.F.R. §
404.1568(a)–(c). “Unskilled work is work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time[,]” while “[s]emi-skilled work is work
which needs some skills but does not require doing the more complex work duties,” and
“[s]killed work requires qualifications in which a person uses judgment to determine the machine
and manual operations to be performed in order to obtain the proper form, quality, or quantity of
material to be produced.” Id. at § 404.1568(a), (b), (c). “[U]nskilled work corresponds to an
SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an
SVP of 5-9 in the DOT.” SSR 00-4p, 2000 WL 1898704, at *3.
21

2022) (finding that 1313 jobs—547 type copy examiner jobs and 766 loader jobs—available in
the national economy were significant); Benton v. Comm’r of Soc. Sec., No. 1:18-CV-09478NLH, 2019 WL 2285490, at *7 (D.N.J. May 29, 2019) (finding 1,940 jobs in the national
economy significant); cf. Ahmad v. Comm’r of Soc. Sec., 531 F. App’x 275, 278 (3d Cir. 2013)
(“In light of our determination in Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987), that 200 jobs
in the regional economy was a ‘clear indication’ that other meaningful work in the national
economy existed, we conclude that the ALJ did not err by concluding that the 569 jobs available
as a surveillance system monitor was evidence of other work in significant numbers in the
national economy.”); Emilia N., 2022 WL 14834594, at *8 n. 5 (rejecting attempt to distinguish
Craigie and Ahmad where those cases had relied on regional numbers instead of national
numbers because “[t]he ALJ does not have to conclusively prove the existence of these jobs in
the national economy. Evidence that has a tendency to support the proposition can be
sufficient”).
In short, the Court finds that the Commissioner has carried his burden at step five of the
sequential evaluation and concludes that substantial evidence supports the ALJ’s determination
in this regard.
V.

CONCLUSION
For all 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).

Date: June 3, 2024

s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE
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