PALLO v. COMMISSIONER OF SOCIAL SECURITY
MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 12/16/2016. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LISA M. PALLO,
: CIVIL ACTION NO. 15-7385 (MLC)
COMMISSIONER OF SOCIAL SECURITY, :
COOPER, District Judge
The plaintiff, Lisa M. Pallo (“Pallo”), seeks review of the final decision
(“Decision”) of an administrative law judge (“ALJ”) issued on behalf of the defendant,
Commissioner of the Social Security Administration (“Commissioner”), denying her
claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) (collectively “Benefits”). (See dkt. 1, Compl.; dkt. 5-2 at 13-23, Decision.) 1 See
42 U.S.C. § 405(g). The Commissioner asks the Court to affirm the Decision. (Dkt. 10.)
The Court, having carefully reviewed both the administrative record and the parties’
submissions, will affirm the Decision.
The Court will cite to the documents filed on the Electronic Case Filing System
(“ECF”) by referring to the docket entry numbers by the designation of “dkt.” Pincites reference
At the time of her March 12, 2015 hearing before the ALJ, Pallo was 32 years old.
(Dkt. 5-2 at 29.) Pallo is a high school graduate. She completed her education in June of
2001. (Dkt. 5-6 at 31.) She was subsequently employed as a customer service
representative for approximately seven years. (Id.) She stopped working in July of 2009
because she “was pregnant and had too much vertigo to work.” (Id. at 30.)
On December 3, 2011, Pallo was involved in a car accident. (See dkt. 5-7 at 2-6.)
She was the driver of a vehicle that was rear ended while stopped. She was examined the
same day at Saint Barnabas Medical Center Emergency Room, complaining of lower
back pain. (Id. at 3.) She was diagnosed with muscular strain, prescribed Valium and
Naprosyn, and discharged. (Id. at 5.) Prior to the December 3, 2011 car accident, Pallo
had no history of injury or symptoms related to her head, neck, back, shoulders, knees, or
extremities. (Dkt. 5-8 at 120.)
Pallo was examined by an orthopedist on December 12, 2011. At that time, she
“complained of continued pain in her jaw, right side of her back, right wrist, and right
knee.” (Id.) She also complained of headaches and indicated that her symptoms were
getting worse. (Id.) The examining orthopedist conducted a physical examination finding
tenderness in the lower back area and right knee. (Id.) The orthopedist referred her for
MRI study of the lumbar spine and right knee, and physical therapy treatment. (Id.)
Pallo returned to the orthopedist for evaluation on January 17, 2012. She continued
to complain of “constant low back pain and giving way of her right knee,” but indicated
that her right wrist symptoms were improving. (Id. at 107.) On physical examination, the
orthopedist found that “range of motion of the back was limited with pain” and “right knee
motion was limited with pain.” (Id.)
Pallo received conservative physical therapy treatment at the care of her orthopedist,
but did not respond positively. (See id.) As a result, she was referred to a pain management
specialist, who evaluated Pallo on April 11, 2012 and recommended she try acupuncture
and chiropractic treatment. (Id.) She was also referred to a neurologist for symptoms
related to her right wrist. (Id.)
After eight months of chiropractic therapy and four months of acupuncture therapy,
Pallo reported only temporary relief of her symptoms. (See id. at 108.) On December 19,
2012, her neurologist recommended facet nerve block 2 for diagnostic and therapeutic
purposes, however Pallo declined the recommendation. (Id.) Pallo was evaluated again
by her orthopedist approximately a month later and reported no change in her symptoms at
that time. (See id.)
On April 10, 2013, Pallo completed an Adult Function Report. (Dkt. 5-6 at 5-12.)
She reported that, on a typical day, she makes breakfast, sits with her son while he plays,
makes lunch/dinner, and puts her son to sleep. (Id. at 5.) She also reported that she cares
for her son, which included basic cooking and bathing. (Id.) She indicated she has
difficulty sleeping, and cannot stand, walk, or sit for long periods of time. (Id. at 6.) She
indicated she has no difficulties with personal care, prepares her own meals daily, and
A facet nerve block is a procedure in which an anesthetic is injected into an area that is
suspected as a generator of pain. See Lee R. Russ, et al., 7 Attorneys Medical Advisor § 71:161
performs some housework for periods of up to 45 minutes. (Id. at 7.) She reported that
she goes outside once a week and drives, but has trouble with anxiety, panic attacks, and
pain. (Id. at 7-8.) She indicated that she shops in stores and by computer. (Id. at 8.) She
also reported that she pays bills, counts change, and uses a checkbook/money order, but
has trouble remembering account balances. (Id.) She indicated that she does not spend
time with others, but goes to the doctor and to her family’s houses. (Id. at 9.) She also
reported she has problems getting along with people. (Id.)
On May 28, 2013, Pallo underwent a mental consultative examination. (See dkt. 59 at 78-81.) She reported suffering from anxiety, depression, and sleep disturbance. (See
id. at 78-79.) She stated that her symptoms of anxiety and depression began after her
motor-vehicle accident in 2011. (Id.) She indicated she was not in psychiatric treatment
at the time of her examination, and never sought psychiatric treatment for these disorders.
(Id. at 79.) She explained that her primary care physician prescribed Xanax and referred
her to a psychiatrist, however she could not get an appointment with a psychiatrist who
would accept her health care. (Id. at 78.) On mental status examination, the doctor found
[Pallo] was coherent, relevant, and revealed no abnormalities. Affect was
appropriate to the thought content. Mood was depressed and anxious.
Thoughts were goal directed. Mood was appropriately cheerful at times.
Thoughts were goal directed. . . .
She was alert and oriented to time, place, and person except being off on the
exact date by about five days. . . . She was able to recall two out of three
objects after five minutes. She was able to comprehend and follow
instructions and the topic of conversation. She had difficulty with serial
seven subtractions; she seemed to have some difficulty with concentration
and it took her a long time while making some mistakes. She seemed to get
overwhelmed. Her fund of knowledge was inadequate, stating that she does
not pay attention to what is happening in the world. She abstracted well on
one proverb, could not answer the second proverb, and her answer was
concrete on the third proverb. There were no abnormalities of posture or
gait. She did not exhibit any involuntary movements.
(Id. at 80-81.) Pallo was diagnosed with posttraumatic stress disorder, anxiety disorder not
otherwise specified, and major depressive disorder, single episode, severe, without
psychotic features, chronic. (Id. at 81.)
On June 5, 2013, Pallo saw a psychiatrist for a consultative orthopedic examination.
(See dkt. 5-9 at 82-83.) The psychiatrist’s impression was that Pallo had a history of nonradicular low back pain, and that she had normal functions of her hands for fine and gross
motor manipulations. (Id. at 83.)
On June 10, 2013, a Disability Determination Service (“DDS”) psychologist
reviewed Pallo’s file and concluded that Pallo had the following medically determinable
impairments: “spine disorders,” “anxiety disorders,” and “affective disorders.” (Dkt. 5-3
at 8, 22.) The DDS psychologist noted that Pallo had mild restrictions in her activities of
daily living, moderate difficulties in concentration, persistence, or pace, and no episodes
of decompensation. (Id. at 8, 22) However, the DDS psychologist opined that Pallo
retained sufficient mental Residual Functional Capacity (“RFC”) for simple work. (Id. at
12, 26.) On November 8, 2013, another DDS psychologist reviewed Pallo’s file and agreed
with the prior opinions and conclusions of the other psychologist. (See id. at 31-63.)
On August 23, 2013, Pallo submitted an additional Adult Function Report with the
assistance of legal counsel. (See dkt. 5-6 at 45-52.) She indicated her mother and family
assist her in caring for her son. (Id. at 46.) She indicated she now had difficulty caring for
herself. (Id.) She also reported she no longer prepared her own meals and is unable to
complete household chores. (Id. at 47-48.) She indicated that she still goes out once or
twice a week and drives, but only short distances. (Id. at 48.) She reported her mother
now does all of the shopping. (Id.) She reported she was still able to pay bills, count
change, use a checkbook/money orders, and is now able to handle a savings account. (Id.)
From August 2013 to July 2014, Pallo was also treated by her primary care
physician for various ailments and sought a referral for bariatric surgery. (See dkt. 5-9 at
122-140.) She was prescribed Xanax in August 2013 for anxiety, however this prescription
was discontinued the following month. (See id. at 122, 130.)
On July 30, 2014, prior to bariatric surgery, Pallo underwent a psychological
evaluation in connection with that procedure. (See dkt. 5-10 at 99-100.) The clinical
psychologist noted that Pallo presented herself in a “cooperative, open and clear manner”
and seemed “highly motivated to lose weight to improve her health and her quality of life.”
(Id. at 99.) The clinical psychologist indicated that Pallo had met with a dietician twice
and had an additional meeting scheduled. (Id.) Pallo indicated she was following the
dietician’s suggestions and instructions, including eliminating sugars and consuming more
protein, which resulted in her losing 12 pounds. (Id.) Pallo described herself as being in
“excellent health (other than her back) because ‘she used to go to the gym every day.’”
(Id.) Pallo denied “any significant problems with depression” and explained that in
response to her car accident “she had become ‘mad,’ not depressed, and stayed as active as
she could.” (Id. at 99.) Pallo informed the clinical psychologist that her family was
supportive of her efforts to eat and drink healthy. (Id.) Pallo also indicated that she had
received “lots of advice and support” from her friends who have had bariatric surgery. (Id.)
In psychologically clearing Pallo for bariatric surgery, which she ultimately had, the
clinical psychologist noted that Pallo “communicates a good understanding and thoughtful
consideration of bariatric surgery, including potential complications, behavioral
requirements, and possible pitfalls” and that she “seems highly motivated to lose weight to
improve her quality of life and prevent spine surgery.”
(Id. at 100.)
psychologist also noted that Pallo appeared to have “strong mental health.” (Id.)
Following her bariatric surgery, Pallo received treatment for complaints of
abdominal pain. (See dkt. 5-12 at 9-136.) A psychological examination was performed at
that time and revealed she was able to express feelings easily, ask questions appropriately,
and was calm and cooperative with intact judgment. (Id. at 60, 133.)
In March 2014, Pallo began seeing a doctor of osteopathic medicine on a monthly
basis for opioid pain management treatment. (See dkt. 5-10 at 2.) In September 2014, that
doctor completed a Physical Functional Capacity Questionnaire. (See id. at 2-6.) He
indicated that Pallo had depression, somatoform disorder, and anxiety. (Id. at 3.) He
opined that Pallo was “incapable of even ‘low stress’ jobs,” explaining that her pain is
worse moving and standing. (Id. at 3.)
On March 25, 2013, Pallo filed a Title II application for DIB, and on April 2,
2013, she filed a Title XVI application for SSI. (Dkt. 5-5 at 2-9.) In both applications,
Pallo alleged disability as of December 3, 2011 due to the following conditions stemming
from her car accident: “chronic pain, ruptured disc in back, carpal tunnel syndrome, panic
attacks, depression, anxiety, [and] nerve damage in both legs.” (See id. at 2-9; dkt. 5-3 at
Pallo’s claims were initially denied on June 18, 2013, and again upon
reconsideration on November 13, 2013. (Dkt. 5-4 at 2-7, 11-18; dkt. 5-3.) Pallo filed a
request for a hearing before an ALJ, which was granted and held on March 12, 2015.
(See dkt. 5-4 at 19-26; dkt. 5-2 at 24-40.)
At the hearing before the ALJ, Pallo testified that she suffers from carpal tunnel
syndrome and that her back pain is severe. (Dkt. 5-2 at 30.) She indicated that back surgery
had been recommended to her, but that she could not find a doctor that accepts her
insurance to perform it. (Id. at 33-34.) She also indicated that no doctor ever recommended
a carpal tunnel release procedure to her. (Id. at 34.) She stated that her depression and
anxiety caused her to refrain from going out, and that she has a fear of driving. (Id. at 30.)
However, she indicated she drove a few weeks prior to the hearing. (Id. at 33.) She stated
the medication she takes makes her extremely dizzy, nauseous, and tired, and that she takes
multiple naps a day. (Id. at 31.) However, she did not report the negative impact of
medications to her doctor. (Id. at 36.) She testified that she could not perform a sedentary
job because she cannot sit or stand for more than 15 minutes without pain, and cannot lift
more than five pounds. (Id. at 32.)
During the same hearing, the ALJ took testimony from a vocational expert (“VE”).
(See id. at 36-40.) The ALJ posed the following hypothetical to the VE:
I’m going to ask you to assume an individual of the claimant’s age, education
and work history. Assume further the individual is restricted to sedentary
work. Assume additionally the individual is restricted to simple and
repetitive jobs such as those involved in one and two-step processes to
completion to account for side effects of pain and/or side effects of
medication. Additionally, assume the individual can – is restricted to jobs
that allow for frequent, but not continual fine finger manipulation bilaterally.
With those limitations could such an individual perform any of this
claimant’s past relevant work [as a customer service representative]?
(Id. at 37.) The VE answered no, but indicated that with the described limitations, one
may be able to work as: (1) a scale operator, sedentary, with a specific vocational
preparation (“SVP”) of 2; (2) a preparer, sedentary, with an SVP of 2; and (3) a table
worker, sedentary, with an SVP of 2. (Id. at 37-38.) 3
The ALJ posed a second hypothetical, asking the VE to assume the same
limitations as noted in the first hypothetical, but to further assume the individual would
“[SVP] is defined as the amount of lapsed time required by a worker to learn the
techniques, acquire the information, and develop the facility needed for average performance in a
specific job-worker situation.” Dictionary of Occupational titles (“DOT”), App. C, 1991 WL
688702. It includes vocational education, apprenticeship training, in-plant training, on-the-job
training, and essential experience in other jobs. Id. The SVP rating is a numerical rating. The
following chart explains those ratings:
Short demonstration only
Anything beyond short demonstration up to and
including 1 month
Over 1 month up to and including 3 months
Over 3 months up to and including 6 months
Over 6 months up to and including 1 year
Over 1 year up to and including 2 years
Over 2 years up to and including 4 years
Over 4 years up to and including 10 years
Over 10 years
be “restricted to occasional, but not frequent, fine finger manipulation.” (Id. at 38.)
Under these assumptions, the VE testified that one may be able to work as: (1) a preparer,
sedentary, with an SVP of 2; (2) a weight tester, sedentary with an SVP of 2; and (3) a
hand mounter, sedentary, with an SVP of 2. (Id.)
The ALJ posed a third hypothetical, asking the VE to again assume the same
limitation as noted in the first hypothetical, but to further assume the individual would be
“restricted to grasping and gross movements, but no fine finger manipulation.” (Id.)
Under these assumptions, the VE testified that at the sedentary, unskilled level, there
would be no jobs for such a person. (Id.) The VE also testified that there would be no
jobs for a person with any combination of limitations that also included a limitation that
the individual would be off task from performing even jobs of simple and repetitive
nature or a limitation that the individual would be unable to go to work for three or more
days per month for any medical reason. (Id. at 39.)
The ALJ issued the Decision, which was unfavorable to Pallo, on May 14, 2015,
which announced the ALJ’s findings of fact and conclusions of law. (See dkt. 5-2 at 1323.) The ALJ stated, inter alia, that:
1. [Pallo] meets the insured status requirements of the Social Security Act
through December 31, 2014.
2. [Pallo] has not engaged in substantial gainful activity since December 3,
2011, the alleged onset date[.]
3. [Pallo] has the following severe impairments: disorder of the back and
carpal tunnel syndrome[.]
These impairments are considered “severe” under the Regulations because
the medical record supports a finding that they are medically determinable
impairments which, when considered either individually or in unison,
significantly limit [Pallo’s] mental and physical abilities to do one or more
basic activities. In addition, the record also supports a finding that the
claimant’s impairments have lasted at a “severe” level for a continuous
period of more than 12 months.
Regarding [Pallo’s] mental impairment, although the psychiatric consultative
examiner diagnosed the claimant with major depressive disorder, anxiety
disorder and post-traumatic stress disorder, the record reveals the claimant
has never had any form of psychiatric treatment. In addition, she takes no
psychiatric medication. Daily activities may or may not be limited but there
is no reasonable medical basis demonstrated by the record for any such
limitations. I note the intake worker noted that [Pallo] appeared to be “dazed
and confused” despite there being no allegations of cognitive issues. Despite
her not having any serious medical issues, the consultative examiner
diagnosed her with multiple mental disorders, but offered no limitations nor
an opinion on her Global Assessment of Functioning (GAF). She does not
see a psychiatrist allegedly because she cannot find one (testimony).
[T]he credible evidence cannot be accepted as showing limitations that
would result in more than minimal, limitation in finding any severe mental
impairment[.] [I] disagree with the state agency physicians that the
claimant has sufficient medical evidence demonstrating a debilitating mental
[Pallo’s] medically determinable mental impairment of Post-Traumatic
Stress Disorder and depression and anxiety does not cause more than
minimal limitation in the claimant’s ability to perform basic mental work
activities and is therefore nonsevere.
In making this finding, I have considered the four broad functional areas set
out in the disability regulations for evaluating mental disorders . . . .
The first functional area is activities of daily living. [Pallo] has mild
limitation. The evidence . . . shows that [Pallo] is, for the most part, able to
engage in activities of daily living in an appropriate and effective manner, on
an independent and sustained basis. She reported in her April 2013 function
report that she was able to take care of her personal needs without difficulty.
She was able to take care of her son. She also reported she could make simple
meals, do light housework, drive a car, shop in stores and handle money.
Although she reported a significant reduction[.]
The next functional area is social functioning. In this area, [Pallo] has no
limitation. The evidence . . . shows that [Pallo] is, for the most part, capable
of interacting independently, appropriately, effectively, and on a sustained
basis with other individuals. She [reported] that she has difficulty getting
along with family and friends because she has anxiety, depression and anger
issues. However, [ ] she indicated that she visit[s] her family’s houses.
The third functional area is concentration, persistence or pace. In this area,
[Pallo] has mild limitation.
Although [Pallo] reported difficulty
concentrating and remembering, when examined by . . . Dr. Vasudev, she
was able to comprehend and follow instructions and the topic of a
conversation . . . . I find her ability to take care of her personal needs without
difficulty, pay bills, take care of her son, prepare meals daily, shop in stores,
and watch television for extended periods shows an ability to think,
concentrate, to pay attention and to remember[,] all of which negate a
diagnosis of severe disabling symptoms. . . . Moreover, at the hearing [Pallo]
was able to answer all questions asked of her in an appropriate and timely
manner, thereby demonstrating a level of concentration in the arguably
stressful setting of a disability hearing.
The fourth functional area is episodes of decompensation. [Pallo] has
experienced no episodes of decompensation which have been of extended
Because the claimant’s medically determinable mental impairment causes no
more than “mild” limitation in any of the first three functional areas and “no”
episodes of decompensation which have been of extended duration in the
fourth area, it is nonsevere[.]
4. [Pallo] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1[.]
The requirements of listing 1.02 have not been met because the evidence fails
to establish an impairment “characterized by gross anatomical deformity . . .
and chronic joint pain and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s) . . . .
Medical Listing 1.04 is not met because the record does not demonstrate
compromise of a nerve root . . . or the spinal cord . . . .
There is no specific medical listing regarding obesity, but I have evaluated
the impairment herein pursuant to the extensive and detailed guidelines . . . .
I have fully considered obesity in the context of the overall record evidence
in making this decision.
Finally, as to [Pallo’s] carpal tunnel syndrome, I note that there is no specific
listing for carpal tunnel syndrome. However, listings 11.00C [ ] and listing
1.00B can serve as a guide for evaluating carpal tunnel syndrome.
Listing 11.00C, as related to carpal tunnel syndrome, essentially requires
documented evidence of persistent disorganization of motor function in the
form of paresis or paralysis, tremor or other involuntary movements, or
ataxia and sensory disturbances, or interference with the use of fingers, hands
and arms. Listing 1.00B . . . essentially requires documented evidence that
[Pallo] is unable to use [her] upper extremities effectively to be able to carry
out activities of daily living.
In this case, the medical evidence of record does not demonstrate clinical
findings showing that [Pallo] is unable to use [her] upper extremities
effectively, within the residual functional capacity assessment found below.
I therefore find that [Pallo’s] carpal tunnel syndrome is not of listing level
5. . . . I find that [Pallo] has the residual functional capacity to perform
sedentary work . . . except she is limited to frequent but not continual fine
finger manipulation, bilaterally and due to side effect of pain and
medication, she is limited to simple and repetitive tasks.
In making this finding, I have considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence . . . . I have also considered
opinion evidence in accordance with the requirements . . . .
In considering [Pallo’s] symptoms, I must follow a two-step process in which
it must first be determined whether there is an underlying medically
determinable physical or mental impairment(s) . . . .
Second, . . . I must evaluate the intensity, persistence, and limiting effects of
[Pallo’s] symptoms to determine the extent to which they limit [her]
functioning. [W]henever statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not substantiated
by objective medical evidence, I must make a finding on the credibility of
the statements based on a consideration of the entire case record.
After careful consideration of the evidence, I find that [Pallo’s] medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [Pallo’s] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible
for the reasons explained in this decision.
I note that the sedentary residual functional capacity is assessed based on the
objective medical findings in the record. The record reflects [Pallo] under
the care of Dr. Wolkstein in December 2011, following a motor-vehicle
accident. She presented with complaints of pain in the back, right wrist and
right knee. An MRI of the lumbar spine showed diffuse bulging of the L4L5
and L5-S1 disc and Grade I anterolisthesis of L5 in relationship to S1. An
MRI of the right knee showed mild sprain of the proximal fibular collateral
and lateral collateral ligaments and trace joint effusion. She received
conservative treatment including physical therapy, chiropractic treatments,
acupuncture and pain medication.
[Pallo] has complained of pain in her lower back and right knee, which limit
[her] ability to sit, stand and walk. She reported that she is unable to do any
daily activities and basically stays in bed most of the day. She reported that
she is losing her ability to function to the point that she is unemployable.
However, [Pallo’s] longitudal medical history is not consistent with her
allegation of disability. While the record shows the claimant was involved
in a motor vehicle accident in December 2011 and as a result sustained
injuries to her lower back and knee, the finding by the orthopedic
consultative examiner are largely negative. She did not squat but she was
able to walk on heels and toes. There was no significant abnormalities noted
and straight leg raising was negative bilaterally. Examination of the lower
extremities showed no tenderness, focal weakness or sensory loss in the
knees. The doctor noted she had normal functions of her hands for fine and
gross motor functions and she did not use an assistive device for
Even the most recent evidence received since earlier periods of adjudication
fails to confirm [Pallo’s] allegations of physical disability. [C]urrent treating
records until January 2015 from her current pain management physician 
regarding her ability to perform exertional activities do not indicate any
greater restrictions necessary, than limiting her to performing sedentary
work. [T]reatment notes … only show clinical evidence of tenderness in the
lumbar spine and decreased sensory in distribution of L4-L5 and L5-S1.
Motor strength was grossly intact. Deep tendon reflexes were normal and
neurological examination was normal. She also related relief in her pain with
Tramadol and Trazadone. [U]pdated records . . . do not show any
deterioration in [Pallo’s] condition. I note neurological examination was
intact. Babinski, Hoffman and Romberg signs were negative. Examination
of the extremities was negative for edema, varicosities and pulses were equal.
The question of credibility is germane. [Pallo’s] recitation of her problems
were [not] entirely credible. For instance, she does however see a pain
management doctor and takes both OxyContin and Xanax. Please note the
comments by the intake worker that [Pallo] appeared at her interview to be
‘dazed and confused’ despite there being no allegation of cognitive issues.
At the hearing, [Pallo] said that she is now taking morphine, also from a pain
management specialist. [Pallo] said that the pain comes from her back and
knee (from time to time and carpel tunnel). She also alleges depression and
anxiety. She said she does not want to go out (although she does continue to
drive and run errands.). She also alleges PTSD from a relatively minor car
accident. She lives with her mother and her 5-year-old child. She said that
she does not care for him due to the medication that she is on. She said that
she does literally nothing, her mother does everything, she was a bit unclear
about back surgery. She has never had any but she initially said she declined
but then said she was still considering. She said that no doctor has ever
suggested she have a carpel tunnel release and she has no treatment for this,
the only doctor she sees is her pain management doctor whom she sees once
a month. She said she sleeps all day but then said she does not sleep at night.
When I asked if she has ever mentioned to her doctor that the drugs he gives
her cause her to do nothing and she is not even able to care for [her] child
and she said she has never mentioned it to him.
As for the opinion evidence, . . . a physical residual functional capacity
questionnaire [was submitted] for [Pallo] regarding her claim of disability,
finding [Pallo] limited to less than sedentary work[.] Nonetheless, in
considering all the opinions, I have incorporated some restrictions in her
ability to perform the full range of sedentary work except she is limited to
frequent but not continual fine finger manipulation, bilaterally and due to
side effects of pain and medication, she is limited to simple and repetitive
tasks, as this is supported by the record. Even [Pallo] conceded at the hearing
that she was capable of much greater exertional activity . . . .
Notably, in a subsequent Function Report(s) prepared August 2013 and in
her testimony, [Pallo] reported somewhat of a reduction in her activities of
daily living, this was after she had been denied benefits by the Administration
on the initial and reconsideration levels. Accordingly, she was motivated to
decrease the extent of her activities during her testimony. Despite her current
claims of functional decline, the medical evidence shows no significant
objective change in her medical condition to warrant such a change in
functioning. In my judgment, the daily activities [Pallo] has reported, when
considered in conjunction with the objective medical evidence, are not
consistent with a finding of disability.
The statements of [Pallo’s] mother . . . does not establish that [Pallo] is
disabled. [Pallo’s mother] is not medically trained to make exacting
observations . . . the accuracy of the testimony is questionable. Moreover . .
. the witness cannot be considered a disinterested third party . . . . Most
importantly, significant weight cannot be given to the witness’s statements
because it, like [Pallo’s], is simply not consistent with the preponderance of
the opinions and observations by medical doctors in this case.
[T]he above residual functional capacity assessment is supported by the
clinical findings of . . . the orthopedic consultative examiner[,] and the report
of the psychiatric consultative examiner[,] who noted [Pallo] does light
cooking and the objective signs and finding in the records from her treating
medical source[,] I find that [Pallo’s] impairment-cased exertional
limitations do not preclude all work activity and support a conclusion that
[Pallo] retains the residual function capacity to perform work. I also concur
with the assessment that [Pallo] is not disabled from all work activity[.]
6. [Pallo] is unable to perform any past relevant work[.]
[Pallo] has past relevant work as a customer service representative. Since
[Pallo’s] past relevant [work] was simple and repetitive [sic], I find she is
unable to perform past relevant work.
7. [Pallo] was born on November 10, 1982 and was 29 years old, which is
defined as a younger individual age 18-44, on the alleged disability onset
[Pallo] has at least a high school education and is able to communicate
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocation Rules as a framework
supports a funding that the claimant is “not disabled,” whether or not
[Pallo] has transferable job skills[.]
10. Considering [Pallo’s] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform[.]
In determining whether a successful adjustment to other work can be made,
I must consider [Pallo’s] residual functional capacity, age, education, and
work experience in conjunction with the Medical-Vocational Guidelines[.]
If the claimant can perform all or substantially all of the exertional demands
at a given level of exertion, the Medical-Vocational rules direct a conclusion
of either “disabled” or “not disabled” depending upon [Pallo’s] specific
vocational profile[.] When the claimant cannot perform substantially all of
the exertional demands of work at a given level of exertion and/or has
nonexertional limitations, the Medical-Vocational rules are used as a
framework for decision making unless there is a rule that directs a conclusion
of “disabled” without considering the additional exertional and/or
nonexertional limitations[.] If [Pallo] has solely nonexertional limitation, . .
. the Medical-Vocational Guidelines provides a framework for decision
If [Pallo] had the residual functional capacity to perform the full range of
sedentary work, a finding of “not disabled” would be directed . . . . However,
[Pallo’s] ability to perform all or substantially all of the requirements of this
level of work has been impeded by additional limitations. To determine the
extent to which these limitations erode the unskilled sedentary occupational
base, I asked the vocational expert whether jobs exist in the national economy
for an individual with [Pallo’s] age, education, work experience, and residual
functional capacity. The vocational expert testified that given all of these
factors the individual would be able to perform the requirements of
representative occupations such as scale operator (DOT#737.687-126), with
75,000 jobs in the national economy; preparer (DOT#700.687-062), with
100,000 jobs in the national economy; and table worker (DOT#739.687182), with 100,000 jobs in the national economy.
[I] have determined that the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, I conclude that, considering
[Pallo’s] age, education, work experience, and residual functional capacity,
[Pallo] is capable of making a successful adjustment to other work that exists
in significant numbers in the national economy. A finding of “not disabled”
is therefore appropriate . . . .
11. [Pallo] has not been under a disability, as defined in the Social Security
Act, from December 3, 2011, through the date of this decision[.]
(Id. at 15-23 (citations omitted).) The ALJ, based on these conclusions, determined that
Pallo was not entitled to Benefits. (See id. at 23.)
Pallo sought review of the Decision by the Social Security Administration Appeals
Council (“Appeals Council”) on May 25, 2015. (Dkt. 5-2 at 9.) The Appeals Council
denied the request for review of the Decision on August 6, 2015. (Dkt. 5-2 at 2-5.) Pallo
filed the Complaint before this Court on October 9, 2015, seeking judicial review of the
Decision. (See dkt. 1.) See 42 U.S.C. § 405(g); Poulos v. Comm’r of Soc. Sec., 474 F.3d
88, 91 (3d Cir. 2007) (“Because the Appeals Council denied review of the ALJ’s
decision, we review that decision as the final decision of the Commissioner.”)
Standard of Review
The Court has jurisdiction to review the ALJ Decision, but the review is limited.
42 U.S.C. § 405(g). The Court has plenary review of all legal issues. Schaudeck v.
Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). But, the Court may only review
the ALJ’s findings of fact to determine whether they are supported by substantial
evidence. 42 U.S.C. § 405(g); Schaudeck, 181 F.3d at 431. Substantial evidence, as
defined in this context, “is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014)
(internal quotation marks and citation omitted). Substantial evidence “is more than a
mere scintilla but may be somewhat less than a preponderance of the evidence.” Id.
(internal quotation marks and citation omitted).
“[T]he substantial evidence standard is a deferential standard of review.” Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (internal citation omitted). The Court will not
set aside the ALJ Decision “if it is supported by substantial evidence, even if we would
have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d
Cir. 1999). Nevertheless, the Court “retain[s] a responsibility to scrutinize the entire
record[.]” Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
The Five Step Analysis
Under the authority of the Social Security Act, the Social Security Administration
has established a five-step evaluation process for determining whether a claimant is
entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920.
Step 1: Determine whether the claimant has engaged in substantially gainful
activity since the onset date of the alleged disability. 20 C.F.R. §§ 404.1520(b),
416.920(b). If not, move to step two.
Step 2: Determine whether the claimant has a medically determinable impairment
that is “severe” or a combination of impairments that is “severe.” 20 C.F.R. §§
404.1520(c), 416.920(c). If the claimant has a severe impairment or combination of
impairments, move to step three.
Step 3: Determine whether the claimant’s impairment or combination of
impairments is of a severity to meet or medically equal the criteria of an impairment
listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If so, the claimant is disabled; if not, move
to step four. 20 C.F.R. §§ 404.1520(d), 416.920(d).
Step 4: Determine whether, despite any severe impairment, the claimant retains
the RFC to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If
the claimant has the RFC to do her past relevant work, the claimant is not disabled. If not,
move to step five.
Step 5: At this point, the burden shifts to the Social Security Administration to
demonstrate that the claimant, considering her age, education, work experience, and RFC
is capable of performing jobs that exist in significant numbers in the national economy.
20 C.F.R. §§ 404.1520(g), 416.920(g); see Poulos v. Comm'r of Soc. Sec., 474 F.3d 88,
91–92 (3d Cir. 2007). If so, benefits will be denied; if not, they will be awarded.
Pallo challenges the ALJ’s decision on three fronts: (1) the ALJ erred in finding
Pallo’s mental impairments were not “severe;” (2) the VE’s testimony relied upon by the
ALJ was inconsistent with the Dictionary of Occupational Titles (“DOT”) and therefore it
cannot be considered substantial evidence that Pallo can perform jobs in the national
economy; and (3) the ALJ’s RFC finding failed to accurately portray Pallo’s physical and
1. Pallo’s Mental Impairments
Pallo asserts the ALJ erroneously concluded her mental impairments were not
“severe” (see dkt. 9 at 20-22), a determination made at step two of the sequential
evaluation process. Specifically, Pallo faults the ALJ for rejecting the opinions of two
state experts that concluded Pallo’s mental impairments were “severe.” (See id. at 2021.) She highlights prior medical diagnoses and treatment history concerning mental
impairments and their effect on her physical condition. (See id. at 21-22.)
Defendant contends that the ALJ’s step two finding is supported by substantial
evidence. (See dkt. 10 at 16-20.) Defendant also contends that the ALJ’s determination
that Pallo’s mental health impairment was not “severe” is irrelevant because the ALJ did
not decide the claim at that step and, therefore, this claimed error cannot be cause for
remand. (See id. at 20-21.) The Court agrees with Defendant.
To reach his conclusion that Pallo does not have any “severe” mental impairments,
the ALJ assessed functional limitations using the four broad functional areas set forth in
the disability regulations for evaluating mental disorders. See 20 C.F.R. Pt. 404, Subpt.
P., App. 1, § 12.00(C). To find a “marked” limitation, it must be more than moderate but
less than extreme and the degree of limitation is such as to interfere seriously with the
ability to function independently, appropriately, effectively, and on a sustained basis. Id.
First, with respect to activities of daily living, the ALJ found Pallo has a mild
limitation. 4 The ALJ based his finding primarily on Pallo’s statements in her first Adult
Function Report. Pallo reported in her first Adult Function Report that she was able to
take care of her personal needs without difficulty, was able to take care of her son, could
make simple meals, complete light housework, drive a car, shop in stores and handle
money. (See dkt. 5-6 at 5-12.) The Court finds that substantial evidence supports the
According to the Social Security regulations, “[a]ctivities of daily living include
adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills,
maintaining a residence, caring appropriately for your grooming and hygiene, using telephones
and directories, and using a post office.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(1).
ALJ’s conclusion that Pallo did not exhibit a marked limitation in activities of daily
Second, the ALJ found no limitation with respect to activities of social
functioning. 5 Strength in social functioning may be exhibited by an ability to initiate
social contact with others, communicate clearly with others, or interact and actively
participate in group activities. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(2).
Despite reporting that she had difficulty getting along with others, Pallo indicated that she
visited her family’s houses. (See dkt. 5-6 at 9.) She also demonstrated an ability to
communicate and interact with doctors. (See dkt. 5-9 at 78-81; dkt. 5-10 at 99-100.) The
Court finds that substantial evidence supports the ALJ’s conclusion that Pallo did not
exhibit a marked limitation in activities of social functioning.
Third, the ALJ found that Pallo has only a mild limitation in the functional area of
concentration, persistence, or pace. 6 The ALJ based his finding on Pallo’s ability to take
care of her personal needs, manage her finances, care for her son, prepare meals, shop in
stores, and watch television for extended periods of time. (Dkt. 5-2 at 16.) Additionally,
the ALJ noted that Pallo demonstrated the ability to sustain focused attention and
According to the Social Security regulations, “social functioning refers to your capacity
to interact independently, appropriately, effectively, and on a sustained basis with other
individuals.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(2).
According to the Social Security regulations, “[c]oncentration, persistence, or pace
refers to the ability to sustain focused attention and concentration sufficiently long to permit the
timely and appropriate completion of tasks commonly found in work settings. Limitations in
concentration, persistence, or pace are best observed in work settings, but may also be reflected
by limitations in other settings.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(3).
concentration during her disability hearing, an arguably stressful event. (Id. at 16-17.)
The Court finds that substantial evidence supports the ALJ's conclusion that plaintiff did
not exhibit marked restriction in concentration, persistence, or pace. Finally, the ALJ
found no episodes of decompensation which have been of extended duration. 7
Because plaintiff's mental impairments cause no more than “mild” limitations in
any of the first three functional areas and “no” episodes of decompensation which have
been of extended duration in the fourth area, the ALJ properly found them nonsevere. (Id.
at 17.) Further, the ALJ’s decision to discount the opinions of two state experts was
supported by substantial evidence. “When a conflict in the evidence exists, the ALJ may
choose whom to credit but cannot reject evidence for no reason or for the wrong reason.
The ALJ must consider all the evidence and give some reason for discounting the
evidence she rejects.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (internal
quotation marks and citation omitted). Here, the ALJ considered the reports, but
explained that the state agency opinions regarding Pallo’s mental impairments were not
supported by the medical record and were inconsistent with her reported abilities. (See
id. at 15-16.) The Court finds there is substantial evidence to support the ALJ's finding
that Pallo’s mental impairments are not “severe.”
According to the Social Security regulations, “[e]pisodes of decompensation are
exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive
functioning, as manifested by difficulties in performing activities of daily living, maintaining
social relationships, or maintaining concentration, persistence, or pace. Episodes of
decompensation may be demonstrated by an exacerbation in symptoms or signs that would
ordinarily require increased treatment or a less stressful situation (or a combination of the two).”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(4).
Even if the ALJ had erroneously concluded that Pallo’s mental impairments were
not “severe,” any error would be harmless. As noted in Salles v. Comissioner of Social
Security, when an ALJ finds in the claimant's favor at step two, “even if he had
erroneously concluded that some of [his] impairments were non-severe, any error [is]
harmless.” 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (citing Rutherford v. Barnhart, 399
F.3d 546, 553 (3d Cir. 2005)).
Here the ALJ found in Pallo’s favor at step two. (Id. at 15.) Further, her RFC
included certain limitations that reflect functional difficulties related to Plaintiff's mental
health impairments. (Id. at 17-18.) Therefore, this asserted error presents no basis for
2. Unresolved Conflict Between the VE’s Testimony and the
Dictionary of Occupational Titles
Pallo asserts that the VE’s testimony was inconsistent with the DOT, and that the
ALJ failed to exercise his affirmative responsibility to ask about the conflict. See SSR
00-4P, 2000 WL 1898704. 8 Specifically, Pallo argues that the ALJ’s hypotheticals posed
The relevant portion of SSR 00-4P provides:
When a VE or VS provides evidence about the requirements of a job or occupation,
the adjudicator has an affirmative responsibility to ask about any possible conflict
between that VE or VS evidence and information provided in the DOT. In these
situations, the adjudicator will:
Ask the VE or VS if the evidence he or she has provided conflicts with information
provided in the DOT; and
If the VE’s or VS’s evidence appears to conflict with the DOT, the adjudicator will
obtain a reasonable explanation for the apparent conflict.
SSR 00-4P, 2000 WL 1898704 at *4.
at the March 12, 2015 hearing called for jobs with a GED reasoning level of 1, because
the hypothetical restricted the individual to “simple and repetitive jobs such as those
involved in one and two-step processes to completion to account for the side effects of
pain and/or side effects of medication.” 9 (Dkt. 9 at 17-18) Pallo asserts that a conflict
was created when the VE responded by providing the ALJ with GED reasoning level 2
jobs. 10 (Id. at 18-19.)
Defendant contends that there was no apparent unresolved conflict between the
VE’s testimony and the DOT that would require the ALJ to inquire further under SSR 004P. (See dkt. 10 at 21-23.) Defendant also contends that one of the jobs the VE provided
was in fact a GED level 1 job, contrary to Plaintiff’s assertion, and therefore substantial
evidence still supports the ALJ’s conclusion. (See id. at 23-24.)
Where an apparent, unresolved conflict exists about every position identified by
the VE, the court generally must remand. See Boone v. Barnhart, 353 F.3d 203, 208 (3d
Cir. 2003). However, an unexplained inconsistency between the VE's testimony and the
DOT is not per se fatal to the ALJ's determination so long as substantial evidence exists
A job with a GED reasoning level of 1 requires skills to “[a]pply commonsense
understanding to carry out simple one- or two- step instructions. Deal with standardized
situations with occasional or no variables in or from these situations encountered on the job.”
DOT, App. C, 1991 WL 688702.
A job with a GED reasoning level of 2 requires skills to “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions. Deal with
problems involving a few concrete variables in or from standardized situations.” DOT, App. C,
1991 WL 688702.
in the record to support the ALJ's finding. Rutherford v. Barnhart, 399 F.3d 546, 557 (3d
Cir. 2005) (internal citations omitted).
The Third Circuit, as well as district courts within the Third Circuit, have held that
there is no conflict between “simple, repetitive tasks” and a GED reasoning level of 2.
See Money v. Barnhart, 91 F. App’x 210, 215 (3d Cir. 2004) (“Working at reasoning
level 2 would not contradict the mandate that her work be simple, routine and
repetitive”); Jones v. Astrue, 570 F. Supp. 2d 708, 715-16 (E.D. Pa. 2007) (finding “no
apparent consistency between the limitations [of simple, repetitive tasks] in the ALJ’s
RFC determinations and the level two reasoning ability required of the addresser job
identified by the VE”); Tollivers v. Astrue, No. 11-6358, 2013 WL 427096 at *6 (D.N.J.
Feb. 1, 2013) (finding no conflict between GED reasoning level 2 and limitation of
performing simple work).
In this case, however, the ALJ’s hypothetical restricted the individual to “simple
and repetitive jobs such as those involved in one and two-step processes to completion to
account for the side effects of pain and/or side effects of medication.” (Dkt. 9 at 17-18.)
The limitation of “one and two-step processes” may arguably correspond with a level one
reasoning level requirement, potentially creating a conflict. See Rounds v. Comm’r Soc.
Sec. Admin., 807 F.3d 996, 1003-04 (9th Cir. 2015). The Court need not address this
issue because substantial evidence exists in the record to support the ALJ's finding.
Rutherford, 399 F.3d at 557.
As Defendant points out, the VE identified the position of table worker. (Dkt. 5-2
at 37-38.) 11 The position of table worker has a GED reasoning level of 1. See DOT
739.687-182, 1991 WL 680217. Therefore, the VE’s testimony, at least with respect to
the position of table worker, was consistent with the DOT.
The burden at the fifth step of the sequential analysis may be satisfied if the ALJ
identifies at least one occupation with a significant number of jobs in the national
economy that the claimant can perform. See Wilkinson v. Comm'r of Soc. Sec., 558 F.
App’x 254, 256 (3d Cir. 2014) (citing 20 C.F.R. §§ 404.1566(b), 416.966(b)). Here, the
VE testified that the position of table worker exists in numbers of 100,000 nationally.
(Id. at 38.) As a result, substantial evidence exists in the record to support the ALJ's
3. The ALJ’s RFC Assessment
Finally, Pallo asserts that the ALJ’s RFC finding is deficient because it failed to
accurately portray her individual physical and mental limitations.
(See dkt. 9 at 19-20.)
Specifically, Pallo argues that the RFC failed to account for her limitations in
“maintaining concentration, persistence, or pace,” including “being off-task during an
eight-hour workday.” (Id.)
A table worker is defined as a person who “[e]xamines squares (tiles) of felt-based
linoleum material passing along on conveyor and replaces missing and substandard tiles. DOT
739.687-182, 1991 WL 680217.
Defendant contends that the ALJ limited Plaintiff to only simple and repetitive
tasks, which appropriately encapsulates all limitations stemming from a “mild” limitation
in concentration, persistence, or pace. (See dkt. 10 at 24-27.)
The Court agrees with Defendant. As discussed supra, the ALJ's conclusion that
Pallo has only a mild limitation in the functional area of concentration, persistence, or
pace is supported by substantial evidence. The Third Circuit has found a limitation to
simple and repetitive tasks to be adequate to encompass mild limitations in concentration,
persistence, or pace. See Najmi–Nejad v. Barnhart, 75 F. App'x 60, 64 (3d Cir. 2003)
(limiting individual to simple routine work sufficiently accounted for deficiencies of
“concentration, persistence, or pace”); McDonald v. Astrue, 293 F. App'x 941, 946 (3d
Cir. 2008) (limiting individual to “simple, routine tasks” to account for “moderate
limitations with his ability to maintain concentration, persistence and pace”).
Accordingly, we find that the ALJ adequately accounted for the credibly established
limitations that fall within the functional area of concentration, persistence, or pace when
he limited Pallo to simple and repetitive tasks.
For the reasons discussed above, the Court will affirm the Decision of the
Commissioner. The Court will issue an appropriate Order.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Date: December 16, 2016
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