RAUSCH v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION. Signed by Judge Brian R. Martinotti on 9/25/2024. (dam)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HOLLY R.,
Plaintiff,

Case No. 2:23-cv-03433 (BRM)
OPINION

v.
MARTIN O’MALLEY,
Commissioner of the Social Security
Administration,
Defendant.
MARTINOTTI, DISTRICT JUDGE

Before the Court is Plaintiff Holly R.’s (“Plaintiff”) appeal of the final decision of the
Commissioner of the Social Security Administration (“Commissioner” 1) denying her application
for Social Security Disability Insurance Benefits (“SSDI”) under Title II of the Social Security Act
(“Act”). Having considered the submissions of the parties without oral argument, for the reasons
set forth below and for good cause shown, Plaintiff’s appeal (ECF No. 1) is DENIED, and the
Commissioner’s decision is AFFIRMED.
I.

BACKGROUND
This case arises out of Plaintiff’s challenge to the administrative decision of the

Commissioner denying her application for SSDI benefits. (See id. at 1; ECF No. 4-2 (Transcript

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Martin O’Malley became Commissioner of the Social Security Administration (“SSA”) on
December 20, 2023. Therefore, pursuant to Federal Rule of Civil Procedure 25(d), Mr. O’Malley
is substituted as Defendant (previously, Kilolo Kijakazi) in this suit. See also 42 U.S.C. § 405(g)
(“Any action instituted in accordance with this subsection shall survive notwithstanding any
change in the person occupying the office of Commissioner of Social Security or any vacancy in
such office.”).
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of Proceedings (“Tr.”)) at 91.) On August 17, 2020, Plaintiff filed a Title II application for a period
of disability and SSDI benefits. (See ECF No. 6 at 4.) Plaintiff alleged a disability onset date of
August 20, 2019 (see ECF No. 11 at 4), based on adrenal lipid dystrophy, generalized anxiety
disorder, a learning disorder, and OCD. (See Tr. at 119–20.)
The Social Security Administration (“SSA”) initially denied Plaintiff’s claim on December
31, 2020 (see id. at 92), and upon reconsideration on May 4, 2021. (Id.) Plaintiff filed a written
request for a hearing on June 23, 2021 (see id.), and on October 13, 2021, Administrative Law
Judge Sharon Allard (“ALJ Allard”) held a hearing for Plaintiff’s claim. (See ECF No. 11 at 4.) At
the hearing, Plaintiff testified to her prior work and to her history of treatment, as well as the
symptoms of her conditions, including incontinence, leg spasms, balance issues, lower body
weakness, neuropathy, and sensory issues. (See Tr. at 129–31.) An impartial vocational expert also
appeared and testified at the hearing. (See id. at 151–59.)
On March 29, 2022, ALJ Allard issued a decision denying Plaintiff’s claim, finding
Plaintiff was not disabled within the meaning of the Act. (See ECF No. 6 at 4.) ALJ Allard
considered the entire record in making her decision. (See Tr. at 92, 97.) At step one, ALJ Allard
found Plaintiff “has not engaged in substantial gainful activity since August 20, 2019.” (Id. at 93.)
At step two, ALJ Allard found Plaintiff had the following “severe impairments”: “spine disorders
including degenerative disc disease of cervical and lumbar spines (status-post laminectomy);
cubital tunnel syndrome; other and unspecified arthropathies; and disorders of muscle, ligament,
and fascia.” (Id.) At step three, ALJ Allard did not find the Plaintiff to have “an impairment or
combination of impairments that meets or medically equals the severity of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” (Id.
at 96.) At step four, ALJ Allard found Plaintiff had the residual functional capacity (“RFC”) to:

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perform light work as defined in 20 CFR 404.1567(b) except
lift/carry up to 20 pounds occasionally and 10 pounds frequently.
The claimant can stand/walk for four hours and sit for six hours in
an eight-hour workday. The claimant can occasionally climb ramps
and stairs, balance on wet moving or uneven surfaces, kneel, stoop,
and crouch. The claimant cannot crawl, climb ladders, ropes or
scaffolds, or work around hazards, including moving mechanical
parts or at unprotected heights. The claimant is able to stand and
stretch for 1 to 5 minutes at the workstation after 30 minutes of
sitting; is able to sit for 1 to 5 minutes at the workstation after 30
minutes of standing or walking. The claimant can engage in frequent
reaching, handling, and fingering. The claimant can understand and
execute simple and routine tasks.
(Id. at 97.) Accordingly, ALJ Allard found, based on Plaintiff’s age, education, previous
work experience, and RFC that she was “capable of performing past relevant work as a case aid
(DOT 195.367-010[).]” 2 (Id.) Finally, and alternatively, at step five, ALJ Allard found “there are
other jobs that exist in significant numbers in the national economy that . . . [Plaintiff] can also
perform” (id.), including “Photo Copy Machine Operator (DOT 207.685-014[)] . . . and . . .
Collator Operator (DOT 208.685-010[).]” (Id. at 102.)
Plaintiff submitted a Request for Review of the Hearing Decision to the Appeals Council
on May 24, 2022. (See id. at 2.) On May 25, 2022, the Appeals Council granted Plaintiff’s request
for more time, providing an extension of 25 days to submit more information. (See id. at 60–61.)
On April 24, 2023, the Appeals Council denied Plaintiff’s request for review and affirmed ALJ
Allard’s decision, at which time ALJ Allard’s decision became the final decision of the
Commissioner. (See id. at 1.) Having exhausted her administrative remedies, Plaintiff filed a civil
action in the United States District Court for the District of New Jersey seeking judicial review of
the Commissioner’s final decision under 42 U.S.C. § 405(g). (See ECF No. 1 at 1.)

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ALJ Allard found that Plaintiff’s work as a case aid was “performed within the past fifteen years;
was of long enough duration to allow . . . [Plaintiff] to fully learn all the duties of the job; and was
performed at the level of substantial gainful activity.” (Id. at 101.)
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II.

STANDARD OF REVIEW
On a review of a final decision of the Commissioner, a district court “shall have power to

enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.
2001). The Commissioner’s decisions regarding questions of fact are deemed conclusive by a
reviewing court if supported by “substantial evidence” in the record. Id.; see Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). This Court must affirm an ALJ’s decision if it is supported by
substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir.
1985). Substantial evidence “is more than a mere scintilla of evidence but may be less than a
preponderance.” Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003). The Supreme
Court reaffirmed this understanding of the substantial evidence standard in Biestek v. Berryhill,
139 S. Ct. 1148, 1154 (2019). To determine whether an ALJ’s decision is supported by substantial
evidence, this Court must review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64,
70 (3d Cir. 1984). “Courts 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). Accordingly,
this Court may not set an ALJ’s decision aside, “even if [it] would have decided the factual inquiry
differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
III.

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
Under the Act, the SSA is authorized to pay SSDI to “disabled” persons. 42 U.S.C.

§ 1382(a). A person is “disabled” if “he is unable to engage in any substantial gainful activity by

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reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A person is unable to engage in substantial
gainful activity,
only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
Regulations promulgated under the Act establish a five-step process for determining
whether a claimant is disabled for purposes of SSDI. 20 C.F.R. § 404.1520. First, the ALJ
determines whether the claimant has shown he or she is not currently engaged in “substantial
gainful activity.” 20 C.F.R. § 404.1520(b); see Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If a
claimant is presently engaged in any form of substantial gainful activity, he or she is automatically
denied disability benefits. See id. Second, the ALJ determines whether the claimant has
demonstrated a “severe impairment” or “combination of impairments” that significantly limits
their physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c); see Bowen,
482 U.S. at 140–41. Basic work activities are defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 404.1522(b). These activities include:
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual
work situations; and
(6) Dealing with changes in a routine work setting.
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Id. A claimant who does not have a severe impairment is not considered disabled. 20 C.F.R.
§ 404.1520(c); see Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
Third, if the impairment is found to be severe, the ALJ then determines whether the
impairment meets or is equal to the impairments listed in 20 C.F.R. § 404, Subpart P, App’x 1 (the
“Impairment List”). 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates his or her
impairments are equal in severity to, or meet, those on the Impairment List, the claimant has
satisfied his or her burden of proof and is automatically entitled to benefits. See 20 C.F.R.
§ 404.1520(d); see also Bowen, 482 U.S. at 141. If the specific impairment is not listed, the ALJ
will consider in his or her decision the impairment that most closely satisfies those listed for
purposes of deciding whether the impairment is medically equivalent. See 20 C.F.R. § 404.1526.
If there is more than one impairment, the ALJ then must consider whether the combination of
impairments is equal to any listed impairment. See id. An impairment or combination of
impairments is basically equivalent to a listed impairment if there are medical findings equal in
severity to all the criteria for the one most similar. See Williams v. Sullivan, 970 F.2d, 1178, 1186
(3d Cir. 1992).
If the claimant is not conclusively disabled under the criteria set forth in the Impairment
List, step three is not satisfied, and the claimant must prove at step four whether he or she retains
the residual functional capacity (“RFC”) to perform his or her past relevant work. See 20 C.F.R.
§ 404.1520(e)–(f); Bowen, 482 U.S. at 141. Step four involves three sub-steps:
(1) the ALJ must make specific findings of fact as to the claimant’s
[RFC]; (2) the ALJ must make findings of the physical and mental
demands of the claimant’s past relevant work; and (3) the ALJ must
compare the [RFC] to the past relevant work to determine whether
claimant has the level of capability needed to perform the past
relevant work.

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Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted). When
determining RFC, an ALJ’s consideration of medical opinion evidence is subject to the framework
articulated at Section 404.1527 (for claims filed before March 27, 2017) or Section 404.1520c (for
claims filed after March 27, 2017).
The claimant is not disabled if their RFC allows them to perform their past relevant work.
20 C.F.R. § 404.1520(a)(4)(iv). However, if the claimant’s RFC prevents him or her from doing
so, an ALJ proceeds to the fifth and final step of the process. See id. The final step requires the
ALJ to “show there are other jobs existing in significant numbers in the national economy which
the claimant can perform, consistent with her medical impairments, age, education, past work
experience, and [RFC].” Plummer, 186 F.3d at 428; 20 C.F.R. § 404.1520(a)(4)(v). In doing so,
“[t]he ALJ must analyze the cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled.” Id.; 20 C.F.R. § 404.1523.
Notably, an ALJ typically seeks the assistance of a vocational expert at this final step. See id.
(citation omitted).
The claimant bears the burden of proof for steps one, two, and four. See Sykes v. Apfel, 228
F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three “[b]ecause step
three involves a conclusive presumption based on the listings[.]” Id. at 263 n.2; see Bowen, 482
U.S. at 146–47 n.5. An ALJ bears the burden of proof for the fifth step. See Sykes, 228 F.3d at 263.
On appeal, the harmless error doctrine 3 requires a plaintiff to show, as to the first four steps:
(1) an error occurred; and (2) but for that error, they might have proven their disability. See

3

The Supreme Court explained its operation in a similar procedural context in Shinseki v. Sanders,
556 U.S. 396, 408–11 (2009) which concerned review of a governmental agency determination.
The Supreme Court stated: “the burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination.” Id. at 409. In such a case, “the claimant has the
‘burden’ of showing that an error was harmful.” Id. at 410.
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Holloman v. Comm’r of Soc. Sec., 639 F. App’x 810, 814 (3d Cir. 2016). In other words, when
reviewing an appeal based on the first four steps, a court considers whether the plaintiff articulated
a basis for a decision in their favor, based on the existing record. If the plaintiff cannot, it is unlikely
they will meet their burden of showing an error was harmful. See, e.g., Lippincott v. Comm’r of
Soc. Sec., 982 F. Supp. 2d 358, 380 (D.N.J. 2013) (finding ALJ’s error was harmless); Powers v.
Comm’r of Soc. Sec., Civ. A. No. 3:19-21970, 2021 WL 1207793, at *7 (D.N.J. Mar. 31, 2021)
(finding the plaintiff had not demonstrated she was prejudiced by the ALJ’s decision and had not
shown an error occurred amounting to harm).
The court’s review of legal issues within this appeal is plenary. See Schaudeck v. Comm’r
of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Factual findings are reviewed “only to determine
whether the administrative record contains substantial evidence supporting the findings.” Sykes,
228 F.3d at 262. Substantial evidence is “less than a preponderance of the evidence but more than
a mere scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted).
Substantial evidence also “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (citation and internal quotation marks omitted). When
substantial evidence exists to support the Commissioner’s factual findings, this Court must abide
by those determinations. See id. (citing 42 U.S.C. § 405(g)).
IV.
A.

DECISION
ALJ’s Finding that Plaintiff’s Mental Limitations Were Non-Severe
Plaintiff argues ALJ Allard’s finding that her mental impairments were non-severe is an

error amounting to harm and, therefore, warrants remand. (See ECF No. 6 at 26.) Plaintiff further
argues that because ALJ Allard’s decision did not consider the impacts of her “mental impairments
on her ability to work,” remand is warranted. (ECF No. 14 at 3.) While the Commissioner

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acknowledges Plaintiff has “obsessive compulsive disorder . . . caus[ing] her to worry and
ruminate” (ECF No. 11 at 6), this appeal primarily centers on Plaintiff’s disagreement with ALJ
Allard regarding the severity of Plaintiff’s mental impairments. Indeed, Plaintiff’s “theory of the
case” rests on the position that the “combination of her impairments”—both physical and mental—
means “she cannot even do sedentary work.” (Tr. at 120.)
Plaintiff claims there is “uncontradicted evidence” of her “mental impairments being more
than slight” and argues ALJ Allard failed to consider “these impairments in [Plaintiff’s] RFC
findings.” (ECF No. 6 at 28–29.) Plaintiff cites this Court’s discussion in Jankowski v. Comm’r of
Soc. Sec., Civ A. No. 3:19-cv-16424, 2020 WL 5810568 at *4 (D.N.J. Sept. 30, 2020), noting that
plaintiffs “need only demonstrate something beyond a slight abnormality or a combination of slight
abnormalities which would have no more than a minimal effect on an individual’s ability to work.”
(ECF No. 6 at 27.) Therefore, because ALJ Allard recognized Plaintiff’s “medically determinable
mental impairments . . . do not cause more than minimal limitations in [her] . . . ability to perform
basic mental work activities” (Tr. at 94), Plaintiff argues she carried her step two burden to show
these mental impairments were severe.
To the extent Plaintiff asserts, either explicitly or by implication, a challenge to ALJ
Allard’s decision based on her failure to consider Plaintiff’s mental limitations at step two, the
Court finds any such failure would not be reversible error, as it well-established that the failure to
identify a condition at step two is harmless error where other severe impairments are identified,
and all medically determinable impairments are ultimately accounted for in the RFC. See Richards
v. Astrue, Civ. A. No. 3:08–284, 2010 WL 2606523, at *6 (W.D. Pa. June 28, 2010) (“Where at
least one impairment is found to be ‘severe’ and all limitations (including those resulting from
‘non-severe’ impairments) are reflected in the ultimate residual functional capacity determination,

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any error committed at the second step of the sequential evaluation process can fairly be
characterized as harmless.”); Alvarado v. Colvin, 147 F. Supp. 3d 297, 311 (E.D. Pa. 2015)
(quoting Salles v. Comm'r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007)) (“Accordingly,
not finding certain impairments severe at step two does not affect the ultimate disability
determination. Where an ALJ finds in a claimant’s favor at step two, ‘even if he . . . erroneously
concluded that some of [the plaintiff’s] other impairments were non-severe, any error [is]
harmless.’”); Donna M. v. O’Malley, Civ. A. No. 23-1760, 2024 WL 2130694, at *7 (D.N.J. May
13, 2024) (“Normally, when an ALJ finds at least one severe medical impairment at step two and
continues onto the other steps, the ALJ’s failure to consider other medically determinable
impairments or find that a particular impairment to be non-severe is a harmless error.”).
Plaintiff alternatively argues ALJ Allard’s failure to find that her limitations were severe
is an error amounting to harm “because if the ALJ found [Plaintiff]’s mental impairments severe
and limited [Plaintiff] to simple and routine tasks as a result, the [vocational expert] indicated that
this would be inconsistent with the ability to understand, remember, and carry out detailed
instructions.” (ECF No. 6 at 29 (citing Tr. at 158–59).) However, although ALJ Allard did find
that Plaintiff’s mental impairments were non-severe, she also found that Plaintiff only had the RFC
to “understand and execute simple and routine tasks” (Tr. at 97), rather than detailed and complex
ones. Notwithstanding this alleged omission from ALJ Allard’s written decision of the vocational
expert’s testimony regarding understanding, remembering, and carrying out detailed instructions, 4
it appears—in the context of the vocational expert’s testimony—ALJ Allard duly took Plaintiff’s

4

Even assuming, arguendo, that ALJ Allard's omission was erroneous, she clearly expressed that
the vocational expert’s testimony served only as a component of the basis for her decision, not the
basis itself. (See Tr. at 119 (stating that her “decision is based on [her] independent review of
[Plaintiff’s] records, as well as [Plaintiff’s] testimony and the testimony of . . . [the] vocational
expert, who will be offering testimony about jobs in the national economy”).)
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several limitations into account. Therefore, the alleged omission does not amount to reversible
error.
B.

ALJ’s Alleged Omission of Non-Severe Mental Impairments When
Formulating RFC
Plaintiff argues ALJ Allard “was supposed to consider all of [Plaintiff’s] impairments,

severe and non-severe, when formulating [her] RFC.” (ECF No. 6 at 29.) For support, Plaintiff
cites Curry v. Comm’r of Soc. Sec., No. 1:15-cv-07515, 2017 WL 825196 (D.N.J. Mar. 2, 2017),
where an ALJ did not “specifically consider or address the impact of [a p]laintiff’s mental
impairments on her ability to work” (ECF No. 6 at 29), thereby leaving the court “to guess if” the
“light exertional level” announced in the plaintiff’s RFC “would truly be the result” (ECF No. 6
at 30), but for the ALJ’s omission.
In turn, the Commissioner argues that “given the highly deferential standard of review
applicable to this case, the Court should reject Plaintiff’s arguments and affirm.” (ECF No. 11 at
4.) The Commissioner further argues reviewing courts “must uphold even a decision of less than
ideal clarity if the agency’s path may reasonably be discerned.” (ECF No. 16 at 11 (quoting
Garland v. Ming Dai, 141 S. Ct. 1669, 1679 (2021)).)
Although an ALJ is required to “consider all evidence before h[er]” and “give some
indication of the evidence which [s]he rejects and h[er] reason(s) for discounting such evidence[,]”
Burnett, 220 F.3d at 121, the indication of the ALJ’s reasoning may be “implicit” in the decision.
See Smith v. Astrue, 961 F. Supp. 2d 620, 652 (D. Del. 2013) (“Plaintiff is correct that the ALJ
failed to explicitly assess the credibility of Mrs. Smith’s testimony or assign her testimony a
particular amount of weight. However, a fair reading of the ALJ’s decision suggests that the ALJ
did implicitly make these judgments.”); Diciano v. Comm’r of Soc. Sec., Civ. A. No. 1:18-17383,
2019 WL 6696523, at *5 (D.N.J. Dec. 9, 2019) (finding that, although the RFC did not specifically

11

mention the “functions of sitting, standing, walking, lifting, carrying, or pushing . . . that does not
mean the ALJ did not ‘consider’ those functions. This is because implicit in the finding that
Plaintiff is capable of performing work at all exertional levels is that Plaintiff has no limitations in
those areas”); Wise v. Comm’r of Soc. Sec., 626 F. App’x 357, 360 (3d Cir. 2015) (“We conclude
that . . . the ALJ’s discussion of the evidence in the record that implicitly supported Dr. Rohar’s
criticism provided a reasonable basis for the ALJ not to include a limitation in the RFC about
Wise’s inability to adapt to normal work pressures or changes.”). Therefore, it is sufficient for the
RFC determination to be supported by “substantial evidence” in the entire record, and it is
unnecessary for the ALJ to engage in an explicit “function-by-function” analysis where the
reasoning for the decision is implicit in the record. See Glass v. Comm’r of Soc. Sec., Civ. A. No.
18-15279, 2019 WL 5617508, at *8 (D.N.J. Oct. 31, 2019) (“Contrary to Plaintiff’s assertion
otherwise, the . . . Third Circuit does not require an ALJ to perform a ‘function-by-function’
analysis at step four, so long as the ALJ’s RFC determination is supported by substantial evidence
in the record.”); Donna R. v. Kijakazi, Civ. A. No. 1:20-15449, 2022 WL 13009149, at *12 (D.N.J.
Oct. 21, 2022) (“Although the ALJ did not expressly weigh Dr. Brown’s opinions at step four, the
ALJ’s discussion at step two demonstrates that he implicitly discounted that examiner’s opinions
when assessing Plaintiff’s limitations in her ability to understand, remember, or apply information
and to concentrate, persist, or maintain pace.”); Sheppard v. Comm’r of Soc. Sec., Civ. A. No.
1:19-18206, 2020 WL 5652450, at *5 (D.N.J. Sept. 23, 2020) (“Here, the RFC did not specifically
reference the four non-exertional functions, but that does not mean the ALJ did not consider those
functions, singularly or in combination with Plaintiff’s other limitations from her various
impairments.”).

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While ALJ Allard’s discussion of Plaintiff’s non-severe mental impairments when
formulating her RFC is less than ideally clear, ALJ Allard’s path to her RFC finding can be
implicitly discerned because there are clear links between the opinion evidence ALJ Allard decided
to credit and the ultimate RFC findings. Cf. Garland, 141 S. Ct. at 1679. Although this Court
would advise ALJs to more explicitly incorporate discussion of non-severe impairments when
formulating a plaintiff’s RFC, ALJ Allard did note she “considered several other factors in
assessing the consistency of the [Plaintiff’s] subjective complaints” (Tr. at 99), beyond the
principal evidence concerning Plaintiff’s medically determinable severe impairments (see id. at
99–100), when formulating Plaintiff’s RFC, including Plaintiff’s “allegations of psychological . .
. symptoms” and “neurological findings.” (Id. at 100.) Accordingly, remand is not necessary on
account of this alleged issue.
C.

ALJ’s Alleged Improper Evaluation of the Opinion Evidence
Plaintiff argues that because ALJ Allard “failed to provide a logical and accurate bridge

from the evidence to the rejection of the consistent opinion evidence” (ECF No. 6 at 33), remand
is warranted. The Court disagrees.
Plaintiff argues “there is no requirement of psychiatric hospitalization before a person can
be found to have limiting mental impairments” and, by suggesting so, “the ALJ . . . unfairly and
unreasonably increased Rausch’s burden of proof.” (ECF No. 6 at 31.). Plaintiff also points to Otra
v. Comm’r of Soc. Sec., Civ A. No. 2:15-cv-6061, 2016 WL 6304437 at *6 (D.N.J. Oct. 25, 2016),
where this Court explained that an “ALJ[’s] merely cit[ing] . . . Plaintiff’s daily activities . . . did
not adequately explain [the ALJ’s] decision to discount Dr. Fusman’s opinion, and the Court
cannot offer meaningful review of this issue.” In exchange, the Commissioner argues ALJ Allard

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“was correct to consider the type of treatment Plaintiff received, which appears to be limited only
to medication 5 and some therapy, when assessing these findings.” (ECF No. 11 at 18.)
The ALJ is responsible for making the ultimate determination of an individual’s RFC. 20
C.F.R. § 404.1546; see Chandler, 667 F.3d at 361 (“The ALJ—not treating or examining
physicians or State agency consultants—must make the ultimate disability and RFC
determinations.”). “[I]n making a[n] [RFC] determination, the ALJ must consider all evidence
before h[er],” and, although the ALJ may weigh the credibility of the evidence, she must “give
some indication of the evidence which [s]he rejects and h[er] reason(s) for discounting such
evidence.” Burnett, 220 F.3d at 121; see also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
A fair reading of the ALJ’s decision shows that, while ALJ Allard’s bridge may be want
for details, it is neither illogical nor inaccurate. To the contrary, ALJ Allard repeatedly stressed
that Plaintiff’s “self-reported activities of daily living”—including taking care of an adult child
with autism (see Tr. at 95), preparing meals, driving, taking care of her dog, exercising “4 to 5
days a week and report[ing] that she is able to walk half a mile every day,” her ability to “lift or
carry 20 pounds,” inter alia—were inconsistent “with her allegations of psychological and medical
symptoms.” (Id. at 99–100.) Further, ALJ Allard identified that Plaintiff’s “statements regarding
the duration, frequency, and intensity of her symptoms are generally not supported by the medical
evidence” (Id. at 99.)
To that end, while ALJ Allard took issue with Dr. Friedman’s analysis “not provid[ing] a
function-by-function assessment,” she decided they nevertheless merited credibility because his
findings were “somewhat consistent with the overall record, which shows that the claimant

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During the hearing on October 13, 2021, Plaintiff testified she takes Effexor, an anti-depressant,
to address both her physical and mental impairments. (Tr. at 135 (“The Effexor is nice because I
do have you know, anxiety too. We figured that is kind of a catch[-]all.”).)
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consistently had normal mental status findings on exam.” (Id. at 95.) According to the
Commissioner, Dr. Friedman’s psychological examination of Plaintiff assessed that “there were
no signs of a thought disorder” (ECF No. 11 at 9); however, Plaintiff’s “short term memory was
mildly impaired . . . and her working memory and concentration was impaired.” (Id.) Dr. Friedman
ultimately concluded Plaintiff showed “symptoms consistent with generalized anxiety disorder,
obsessive compulsive disorder, and learning disorder.” (Id.)
Moreover, ALJ Allard acknowledged that “state agency psychological consultants found
that the claimant has a moderate limitation in all functional domains.” (Tr. at 95.) However, ALJ
Allard concluded the state agency psychological consultants’ findings were not persuasive
because: (1) Plaintiff had “no psychiatric hospitalizations,” (2) “had normal mental status findings
aside from difficulty with concentration and working memory at the consultative exam,” and (3)
the findings were “inconsistent with the overall record,” namely Plaintiff’s ability “to care for an
adult child with Autism and perform her activities of daily living.” (Id.)
Regarding Ms. Alvarado’s assessment, ALJ Allard found her findings “unsupported
because [she] is not an acceptable medical source and [because] . . . [the] questionnaire was created
by the [Plaintiff’s] representative.” 6 (Id. at 95.) ALJ Allard also took issue with Ms. Alvarado’s
findings being “overly broad and restricted” and “not provid[ing] a function-by-function
assessment.” (Id.)
Coupling all the opinion evidence with Plaintiff’s subjective “statements concerning the
intensity, persistence, and limiting effects” of her medically determinable impairments, ALJ Allard
concluded Plaintiff’s medically determinably impairments “could reasonably be expected to cause

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Despite Plaintiff’s initial claims during her testimony, ALJ Allard noted Ms. Alvarado was a
social worker, not a medical doctor. (See Tr. at 155 (“She identifies herself as an MSW and an
ACSW which I believe refers to social worker.”).)
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the alleged symptoms,” but that nevertheless, the subjective extent of her symptoms was “not
entirely consistent with the medical evidence and other evidence in the record.” (Id. at 98.) Thus,
ALJ Allard has adequately explained why certain opinion evidence—like Ms. Alvarado’s, for
instance—was discounted in the context of all the medical evidence and other evidence in the
record. Therefore, this Court is able to offer meaningful review of this issue. Accordingly, ALJ
Allard’s treatment of the opinion evidence does not raise reversible error.
D.

ALJ’s Alleged Improper Fragmentation of Plaintiff’s Impairments
Plaintiff argues ALJ Allard “failed to provide more than conclusory statement[s] regarding

consideration of the combination of all of [Plaintiff]’s impairments.” (ECF No. 6 at 34.) As
mentioned above, Plaintiff’s theory of the case rests on this idea of fragmentation (see Tr. at 120);
that is, if ALJ Allard did not fragment Plaintiff’s medically determinable impairments from her
non-severe mental impairments, Plaintiff would have been found disabled within the meaning of
the Act. (See ECF No. 6 at 33–34.)
Plaintiff further argues that the Third Circuit has recognized that “where an ALJ fails to
properly consider all the relevant and probative evidence, the Court should not substitute its own
analysis of the record in search for substantial evidence to support the ALJ’s decision.” (ECF No.
6 at 26 (citing Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001)).) Additionally, Plaintiffs
adds, an “‘ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision;’ the
Commissioner may not offer a post-hoc rationalization.” (ECF No. 14 at 5 (citing Keiderling v.
Astrue, Civ. A. No. 07-2237, 2008 WL 2120154, at *3 (E.D. Pa. May 20, 2008)).)
However, the Commissioner argues that “where the ALJ has indicated that the impairments
have been considered in combination, there is ‘no reason not to believe’ that the ALJ did so” and,

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therefore, “no further discussion [i]s required . . . [because] there [i]s no reason to believe the ALJ
did not consider Plaintiff’s impairments in combination.” (ECF No. 11 at 20.)
The Court finds ALJ Allard properly complied with 20 C.F.R. § 404.1526, 7 and her alleged
fragmentation of Plaintiff’s severe and non-severe impairments does not call for remand. Not only
were ALJ Allard’s RFC findings made “[a]fter careful consideration of the entire record” (Tr. at
97; see also Tr. at 119 (ALJ Allard stating that her “decision is based on [her] independent review
of [Plaintiff’s] records, as well as [Plaintiff’s] testimony and the testimony of . . . [the] vocational
expert, who will be offering testimony about jobs in the national economy”)), but also she
acknowledged that Plaintiff’s impairments were evaluated “singly and in combination.” (Id. at 94
(emphasis added); see also ECF No. 11 at 12 (quoting 20 C.F.R. § 404.1522(a)) (arguing ALJ
Allard “reasonably concluded . . . Plaintiff did not have a ‘severe’ mental impairment . . . [because]
an impairment or combination of impairments is not severe if it does not significantly limit your
physical or mental ability to do basic work activities.”).) Accordingly, ALJ Allard provided more
than conclusory statements regarding Plaintiff’s impairments because she both explicitly and
implicitly evaluated all of Plaintiff’s non-severe mental impairments before discussing the
Impairment List at step three. Therefore, ALJ Allard’s alleged fragmentation of Plaintiff’s
impairments does not present reversible error.

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Where—as here—a plaintiff has more than one impairment, the ALJ must consider whether the
combination of impairments is equal to any of the impairments listed in the Impairment List. See
20 C.F.R. §§ 404.1526(b)(3), 404.1520(a)(4)(iii); cf. 20 C.F.R. § 404.1523.
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V.

CONCLUSION
For the reasons set forth above, the Court finds Plaintiff failed to show ALJ Allard erred in

determining Plaintiff was not disabled under the Social Security Act. Therefore, Plaintiff’s appeal
(ECF No. 1) is DENIED, and the Commissioner’s decision is AFFIRMED. An appropriate Order
follows.

Date: September 25, 2024

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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