VELEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 15

OPINION & ORDER denying Plaintiff's appeal; affirming the decision of the Administrative Law Judge; closing this case. Signed by Judge Claire C. Cecchi on 3/5/2025. (mxw, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GUIDO V.,

Civil Action No.: 23-22953

Plaintiff,

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION & ORDER

CECCHI, District Judge.
I.

INTRODUCTION
Before the Court is the appeal of Guido V. 1 (“Plaintiff”) seeking review of a final decision

by the Commissioner of Social Security (“Commissioner”) denying his application for disability
insurance benefits (“DIB”) under the Social Security Act (“SSA” or the “Act”). ECF No. 1; see
also ECF No. 10 (“Br.”). Defendant opposed the appeal (ECF No. 14, “Opp.”). This matter is
decided without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons
set forth below, the decision of the Administrative Law Judge (“ALJ”) is affirmed.
II.

BACKGROUND
Plaintiff is a 64-year-old man and has completed three years of college. ECF No. 4 (“R.”)

at 185, 189. He previously worked as a senior account executive. R. at 189.
On July 19, 2021, Plaintiff completed an Adult Function Report stating that despite
difficulties with lifting and walking, he was still able to perform daily activities like showering,
making breakfast, listening to the news, using the internet, and oil painting. R. at 196. He reported

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Pursuant to District of New Jersey standing order 2021-10, “any non-governmental party will be
identified and referenced solely by first name and last initial” due to privacy concerns present in social
security cases. D.N.J. Standing Order 2021-10; see also Bryan S. v. Kijakazi, No. 20-11145, 2022 WL
2916072, at *1 n.1 (D.N.J. July 25, 2022).

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sleep difficulties due to leg pain but had no trouble with personal hygiene or taking medication.
Id. He prepared meals twice a week, mowed his lawn, went outside every other day, and drove
independently. R. at 196-98. Despite memory issues, he shopped twice a week and managed his
finances. R. at 198. He enjoyed hobbies like oil painting and music and attended family reunions
monthly. R. at 199.
Plaintiff filed for DIB on April 28, 2021, alleging disability beginning on February 14,
2021. R. at 174-75. His application was denied initially, R. at 97-101. Plaintiff then requested a
hearing before an ALJ to review the application de novo. R. at 109. A hearing was held on March
9, 2022, R. at 38-73, before ALJ Donna A. Krappa. At the hearing, the ALJ notified Plaintiff that
his attorney had withdrawn from the case. R. at 40-41. The ALJ offered Plaintiff an adjournment
along with phone numbers of organizations that Plaintiff could contact for another attorney, R. at
41, and explained to Plaintiff the role of an attorney in these types of proceedings, R. at 43-44.
After the ALJ made Plaintiff aware of his options and his right to representation, Plaintiff decided
to proceed without an attorney. R. at 44.
During the hearing, Plaintiff testified that he was diagnosed with coronary heart disease,
high cholesterol, and high blood pressure, and had a triple bypass in 2015. R. at 47. He testified
that he experiences dizziness and knee pain which affects his ability to walk. R. at. 48, 52-53.
Plaintiff reported his corticosteroid injection and knee wraps helped him walk. R. at 53. He claimed
to have problems with standing and sitting for long periods but has no trouble lifting. R. at 53-54.
Plaintiff reported that he takes medication for high cholesterol, high blood pressure, and to prevent
blood clots. R. at 56. He is able to take a shower, get dressed, and make a meal, and has continued
applying for jobs. R. at 56-57. Plaintiff also testified that he sometimes provides care for his
handicapped son. R. at 59.

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Following the hearing, the ALJ issued a decision on August 18, 2022, denying disability.
R. at 25. The Appeals Council denied Plaintiff’s request for review of that decision, rendering the
ALJ decision final. R. at 1-6. Plaintiff then brought the instant appeal on December 7, 2023. ECF
No. 1.
III.

LEGAL STANDARD
A. Standard of Review
This Court has jurisdiction to review the Commissioner’s decision under 42 U.S.C. §§

405(g), 1383(c)(3). The Court is not “permitted to re-weigh the evidence or impose [its] own
factual determinations,” but must give deference to the administrative findings. Chandler v.
Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011); see also 42 U.S.C. § 405(g). Nevertheless,
the Court must “scrutinize the record as a whole to determine whether the conclusions reached are
rational” and substantiated by substantial evidence. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.
1978) (citations omitted). Substantial evidence is more than a mere scintilla and is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Chandler, 667 F.3d at 359 (citations omitted). If the factual record is adequately developed,
substantial evidence “may be ‘something less than the weight of the evidence, and 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. 08cv1676, 2009 WL 1011587, at *2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966)). In other words, under this deferential standard of review, the
Court may not set aside the ALJ’s decision merely because it would have come to a different
conclusion. See Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 479 (3d Cir. 2007).

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B. Determining Disability
In order to be eligible for benefits under the SSA, a claimant must show he is disabled by
demonstrating an inability to “engage in any substantial gainful activity by 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.
§§ 423(d)(1)(A), 1382c(a)(3)(A). Considering the claimant’s age, education, and work experience,
disability is evaluated by the claimant’s ability to engage in his previous work or any other form
of substantial gainful activity existing in the national economy. Id. §§ 423(d)(2)(A);
1382c(a)(3)(B). A claimant is disabled for SSA purposes only if his physical or mental
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 . . . .” Id. § 1382c(a)(3)(B).
Decisions regarding disability are made individually and will be “based on evidence
adduced at a hearing.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000) (citing Heckler v.
Campbell, 461 U.S. 458, 467 (1983)). Congress has established the type of evidence necessary to
prove the existence of a disabling impairment by defining a physical or mental impairment as “an
impairment that results from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§§ 423(d)(3); 1382(a)(3)(D).
C. Sequential Evaluation for a Continuing Disability
The Social Security Administration follows a five-step, sequential evaluation to determine
whether a claimant is disabled under the SSA. 20 C.F.R. §§ 404.1520, 416.920.

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First, the ALJ must determine whether the claimant is currently engaged in substantial
gainful activity. Sykes, 228 F.3d at 262. Second, if the claimant is not engaged in such activity, the
ALJ determines whether the claimant has any impairments severe enough to limit his ability to
work. Id. Third, if he has any severe impairments, the ALJ considers the medical evidence to
determine whether the impairment or combination of impairments is included in 20 C.F.R. Part
404, Subpt. P, App. 1 (the “Listings”). If the claimant’s impairment(s) medically equal one of the
Listings, this results in a presumption of disability. Sykes, 228 F.3d at 262. If the impairment is not
in the Listings, the ALJ must determine how much residual functional capacity (“RFC”) the
applicant retains despite his impairment. Id. at 263. Fourth, the ALJ must consider whether the
claimant’s RFC is adequate to perform his past relevant work. Id. Fifth, if his RFC is not sufficient
to perform past work, the ALJ must determine whether there is other work in the national economy
the claimant can perform. Id.
The evaluation continues through each step unless it is ascertained at any point that the
claimant is or is not disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the
ultimate burden of establishing steps one through four of this test. Hess v. Comm’r Soc. Sec., 931
F.3d 198, 202 (3d Cir. 2019). The burden shifts to the Commissioner at step five to prove that the
claimant can perform a job that exists in the national economy. Ramirez v. Barnhart, 372 F.3d 546,
555 (3d Cir. 2004).
IV.

DISCUSSION
A. Summary of the ALJ’s Decision
After considering the evidence and following the five-step analysis outlined in 20 C.F.R.

§ 404.1520(a), the ALJ found that Plaintiff was not disabled during the relevant period. R. at 33.

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At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
during the relevant period. R. at 27.
At step two, the ALJ found that Plaintiff had the following severe impairments: coronary
artery disease (status post triple bypass); hypertension; a disorder of the left knee; and obesity. R.
at 27-28.
At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the Listings. R. at 29.
The ALJ then determined that Plaintiff had an RFC to:
perform light work as defined in 20 CFR 404.1567(b). Specifically, he is able to:
lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk for 6 hours;
sit for 6 hours in an eight hour work day; and perform unlimited pushing and pulling
within the weight restriction given. Moreover, regarding the postural and
environmental demands of work, the claimant is able to perform jobs: that require
only occasional use of ladders, ropes, or scaffolds; and that require frequent (as
opposed to continuous) use of ramps or stairs. The claimant is able to perform
frequent balancing, but only occasional stooping, kneeling, crouching, and
crawling.
R. at 29-30.
At step four, the ALJ determined that Plaintiff could perform past relevant work as an
advertising sales representative, crediting the testimony of the vocational expert. R. at 32-33.
At step five, the ALJ found that, considering Plaintiff’s RFC and the testimony of the
vocational expert, there were jobs that existed in significant numbers in the national economy that

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Plaintiff could have performed. R. at 33. Accordingly, the ALJ determined that Plaintiff was not
disabled during the relevant period. R. at 33.
B. Plaintiff’s Arguments on Appeal
Plaintiff puts forth three arguments in the instant appeal. Plaintiff argues that the ALJ did
not elicit an informed waiver of representation from Plaintiff and that the ALJ failed to observe
the enhanced duty owed to unrepresented claimants. Plaintiff also claims that the ALJ’s step three
analysis was lacking because it did not provide sufficient explanation for its conclusions and failed
to adequately consider Plaintiff's obesity. Plaintiff further contends that the decisional RFC was
not supported by substantial evidence. Each argument will be discussed in turn.
a. Informed Waiver of Representation
Plaintiff knowingly and intelligently waived his right to counsel and was not prejudiced by
his lack of counsel at the administrative hearing. The Third Circuit has noted that although a
claimant must be provided with notice of his right to counsel, the claimant can waive his right to
counsel if the waiver is knowing and intelligent. See Phifer ex rel. Phifer v. Comm’r of Soc. Sec.,
84 F. App’x 189, 190-91 (3d Cir. 2003). A waiver alone is not a sufficient justification for remand.
Instead, remand is proper only where the lack of counsel prejudices a claimant or where the lack
of counsel leads to an administrative proceeding marked by unfairness. See Livingston v. Califano,
614 F.2d 342, 345 (3d Cir. 1980).
The Third Circuit has analyzed whether waiver of counsel is knowing and intelligent under
the Seventh Circuit’s standard, which requires ALJs to explain to pro se claimants “(1) the manner
in which an attorney can aid in the proceedings, (2) the possibility of free counsel or a contingency
arrangement, and (3) the limitation on attorney fees to 25 percent of past due benefits and required
court approval of the fees.” Vivaritas v. Comm’r of Soc. Sec., 264 F. App’x 155, 157 n.1 (3d Cir.

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2008) (finding that the claimant knowingly and intelligently waived the right to representation
where the ALJ explained to the claimant his options to proceed without representation and the
claimant confirmed on the record that he voluntarily elected to proceed without an attorney). All
three of these requirements were met in this case. First, the ALJ explained in detail the way an
attorney can aid the proceedings:
So let me explain to you like what a lawyer does for you. What they would do is they
collect the evidence that’s outstanding on your behalf, like if there are any medical records
from treating doctors or pharmacy records, things like that. Then they spend some time
talking to you about your case so that you could put forward your best, you know, your
best case as to why you can’t work. If there are other people in your life that may want to
testify on your behalf, they might spend some time talking to them, too, and see if they
want to testify. So, you know, they have experience putting these cases together and putting
them forth in the best possible light.
R. at 43-44. Second, the ALJ explained to Plaintiff that he could reach out to legal services
organizations that could represent him and even offered to provide contact information for such
organizations. R. at 41 (“So, you do understand that I could give you an adjournment and I could
give you phone numbers of organizations that you could contact about getting another attorney”).
And third, the ALJ specifically mentioned the limitation on attorney fees to 25 percent of past due
benefits. R. at 41 (informing Plaintiff that “the lawyer would get 25 percent of any back benefits”).
After the ALJ provided Plaintiff with all of this information, Plaintiff voluntarily decided
to proceed without an attorney. R. at 44 (“Okay, I take the chance to go with you today.”). As such,
Plaintiff’s decision to waive counsel was knowing and intelligent.

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Regardless, Plaintiff has failed to demonstrate that he was prejudiced by his decision to
waive representation for the hearing. The ALJ developed the record, reviewed the entirety of the
relevant medical evidence, including Plaintiff’s treatment records, consultative examinations, and
the prior administrative medical findings of multiple state agency experts, and issued a decision
R. at 70-71, 22. The Third Circuit has explained that a claimant fails to show prejudice when, as
here, an ALJ develops the record and makes a decision based on a complete record. See Phifer, 84
F. App’x at 191 (noting that the plaintiff was not prejudiced by lack of counsel where “the ALJ
made efforts to develop the record fully”). Additionally, Plaintiff’s argument that the ALJ refused
to ask him whether he had anything he would like to say that was not asked by the ALJ is not
supported by the record. Pl. Br. at 49-50. Before questioning the vocational expert, the ALJ
specifically asked Plaintiff, “so is there anything else about your situation that we didn’t discuss
that you think I need to know?” R. at 62. The ALJ later repeated this question before closing the
hearing. R. at 71. The ALJ’s questioning of the vocational expert was also thorough, R. at 63-68,
and often incorporated Plaintiff’s own description of his limitations. R. at 65 (“Q: Okay. So let’s
assume because of the problem with the knee, he’s limited to only four hours of standing and
walking. How does that affect the job?”). Indeed, Plaintiff does not appear to present any additional
questions he would have asked the vocational expert about.
Accordingly, Plaintiff’s waiver of counsel was knowing and voluntary, and he was not
prejudiced by a lack of counsel.
b. Step Three Analysis
Plaintiff also argues that “[t]he step 3 medical equivalence finding is offered without
evidence, analysis, comparison or combination of impairments.” Pl. Br. at 6. But the ALJ
considered, at step three of her decision, Plaintiff’s impairments both alone and in combination,

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and substantial evidence supports her finding of medical equivalence under the listings. R. at 29.
Specifically, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
C.F.R Part 404, Subpart P, Appendix 1. R. at 29. The ALJ explained that the “medical evidence
of record does not consistently document signs, symptoms, or laboratory findings indicating any
impairment or combination of impairments severe enough to meet the criteria of any listed
impairments.” R. at 29 (emphasis added). The ALJ further noted that “[n]o treating, examining, or
non-examining medical source has rendered an opinion that the claimant’s impairments, singly or
in combination, medically equal the criteria of any listed impairment.” R. at 29. Contrary to
Plaintiff’s arguments, the ALJ also sufficiently considered Plaintiff’s obesity in accordance with
SSR 19-2p and considered Listing 1.18 Abnormality of a major joint(s) in any extremity and
Listing 4.04 Ischemic heart disease. R. at 29 (“The undersigned has also considered the claimant’s
obesity in accordance with SSR 19-2p.”).
Plaintiff argues that the ALJ’s step three analysis is lacking because it does not provide a
detailed explanation of why each listing is not met; but the ALJ does not have a heightened duty
of explanation with respect to evaluating medical equivalency under the listings. To the contrary,
SSR 17-2p states that if an ALJ “believes that the evidence already received in the record does not
reasonably support a finding that the individual’s impairment(s) medically equals a listed
impairment, the [ALJ] is not required to articulate specific evidence supporting his or her finding
that the individual’s impairment(s) does not medically equal a listed impairment.” 2017 WL
3928306 at *4. Instead, “a statement that the individual’s impairment(s) does not medically equal
a listed impairment constitutes sufficient articulation for this finding.” Id. This is because the
ALJ’s “articulation of the reason(s) why the individual is or is not disabled at a later step in the

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sequential evaluation process will provide rationale that is sufficient for a subsequent reviewer or
court to determine the basis for the finding about medical equivalence at step 3.” Id. Here, the
ALJ’s statement that “the medical evidence of record does not consistently document signs,
symptoms, or laboratory findings indicating any impairment or combination of impairments severe
enough to meet the criteria of any listed impairment,” R. at 29, satisfies the articulation requirement
set forth in SSR 17-2p.
In short, the ALJ found that Plaintiff’s impairments did not meet or medically equal any of
the listed impairments at step three, and her explanation for her findings was sufficient and satisfied
the articulation requirement set forth in SSR 17-2p. The ALJ also evaluated Plaintiff’s obesity in
accordance with SSR 19-2p and provided sufficient explanation in her decision to permit
meaningful judicial review.
c. RFC Determination
Finally, Plaintiff argues the ALJ’s “decisional RFC is offered without reason or rationale
and is very apparently at odds with the substantial medical evidence of record.” Pl. Br. at 26. The
Court finds that the ALJ adequately explained the basis for her RFC assessment and that this
assessment is supported by substantial evidence from the record. The ALJ considered the totality
of the record, including objective medical findings, Plaintiff’s self-reports to the agency, his
activities of daily living, and prior administrative medical findings to arrive at the RFC for light
work. R. at 29-30.
Specifically, the ALJ considered Plaintiff’s allegations, noting his complaints of coronary
artery disease and left knee pain, and its effects on his ability to lift, stand, walk, squat, kneel, and
climb stairs. R. at 30. The ALJ also found that, although impairments could reasonably be expected
to cause the alleged symptoms, Plaintiff’s statements concerning the intensity, persistence and

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limiting effects of his symptoms were not entirely consistent with medical evidence and other
evidence in the record. R. at 30. For instance, there was little evidence of continuing treatment for
his various complained of conditions. R. at 30-31. The ALJ noted that Plaintiff had not seen a
cardiologist for three years as of August 2021 (R. at 31, citing R. at 1150), and at his prior
appointment in July 2021, Plaintiff had no chest pain, palpitations, or shortness of breath (R. at 31,
citing R. at 1149). Dr. Merlin performed a consultative examination and noted that Plaintiff had
regular heart sounds with no murmur, gallop, or friction rub. R. at 31, citing R. at 1131. Plaintiff
also had a normal gait and station, no difficulty getting on and off the exam table, unimpaired
grasping strength and manipulative functions, could flex his spine 90 degrees, squat, and walk on
his heels and toes. Id. The ALJ also noted that Plaintiff had a corticosteroid injection to his left
knee, which improved his symptoms. R. at 31-32.
The ALJ also walked through the opinion evidence that supported her finding and noted
that both Drs. Simpkins and Sobelman concluded that Plaintiff could perform work at the light
exertional level. R. at 32. The ALJ found both opinions persuasive because they were wellsupported and consistent with findings of Dr. Riggi, Dr. Pecker, Dr. Barsky, and Dr. Merlin. Id.
The ALJ noted that most examinations showed that Plaintiff had a normal gait, normal strength,
and his cardiac examination yielded essentially normal results. Id. The ALJ also made sure to
consider Plaintiff’s obesity and noted that Plaintiff’s obesity was at the low range of obesity under
medical guidelines and that no physician had labeled his obesity as disabling. Id. The ALJ
underscored that despite Plaintiff’s obesity, Plaintiff reported engaging in activities that are
comparable with work at the light exertional level such as dressing and grooming himself, cooking,
bathing, cleaning, and shopping. Id.

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Plaintiff’s argument that the ALJ also needed to specifically discuss the mental
impairments as part of her RFC analysis also fails because the ALJ had already found that
Plaintiff’s “medically determinable mental impairment of depression does not cause more than
minimal limitation in the claimant’s ability to perform basic mental work activities and is therefore
non-severe.” R. at 28; see also R. at 28-29 (considering all four functional areas and finding that
Plaintiff’s mental impairment is “non-severe” because it “causes no more than ‘mild’ limitation in
any of the functional areas and the evidence does not otherwise indicate that there is more than a
minimal limitation in the claimant’s ability to do basic work activities”). And although an ALJ
“consider[s]” both severe and non-severe impairments in assessing a claimant’s RFC, 20 C.F.R. §
404.1545(a)(2), if an ALJ finds a limitation is minimal or negligible, it is not error to decline to
assess a functional limitation. See Holley v. Comm’r Soc. Sec., 590 F. App’x 167, 169 (3d Cir.
2014) (finding where plaintiff “had—at most—minor mental impairments,” the ALJ did not err
when RFC included no mental limitations); Redhead v. Berryhill, No. 17-cv-639, 2018 WL
1911370, at *4 (W.D. Pa. Apr. 23, 2018) (finding “[t]o the extent that the ALJ omitted any
restrictions in the RFC relating to depression and anxiety, the ALJ did so based upon a finding that
any limitations associated with Redhead’s depression and anxiety were minimal in nature”);
Makowski v. Comm’r of Soc. Sec., No. 16-cv-1656, 2017 WL 3151243, at *7 (D.N.J. July 24,
2017) (“[T]he ALJ was entitled to not include ‘minimal or negligible’ deficiencies in the RFC.”).
Thus, the ALJ was not required to include any mental functional limitations in the RFC due to the
minor impact Plaintiff’s mental impairments had on his functioning.
In short, the ALJ provided an appropriate rationale with specific references to the record
to support her finding that Plaintiff’s impairments did not prevent him from performing work
within the confines of the RFC. Read as a whole, the ALJ’s decision more than adequately permits

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meaningful judicial review. See Hess v. Comm’r Soc. Sec., 931 F.3d 198, 209-10 (3d Cir. 2019)
(explaining that whether the ALJ provided a “valid explanation” for the residual functional
capacity finding depends on the facts of the particular case).
V.

CONCLUSION
In sum, Plaintiff knowingly and intelligently waived his right to counsel, and the ALJ did

not err in her step three analysis or her RFC determination. Therefore, the ALJ’s decision is
affirmed.
Accordingly, IT IS on this 5th day of March, 2025,
ORDERED that Plaintiff’s appeal (ECF No. 1) is DENIED; and it is further
ORDERED that the decision of the Administrative Law Judge is hereby AFFIRMED;
and it is further
ORDERED that the Clerk of the Court shall mark this matter as CLOSED.
SO ORDERED.
/s/ Claire C. Cecchi
CLAIRE C. CECCHI, U.S.D.J.

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