FASULLO v. COMMISSIONER OF SOCIAL SECURITY
OPINION filed. Signed by Judge Anne E. Thompson on 1/31/2017. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KAREN E. FASULLO,
Civ. No. 16-2190
COMMISSIONER OF SOCIAL
This matter appears before the Court upon an appeal by Plaintiff Karen E. Fasullo
(“Plaintiff”) of the final administrative decision by Defendant Commissioner of the Social
Security Administration (“Defendant”) denying Plaintiff’s claim for Social Security disability
insurance benefits. (ECF. No. 1). The Court has decided the motion based upon the written
submissions of the parties and without oral argument pursuant to Federal Rule of Civil Procedure
78(b). For the reasons set forth below, the Court will deny Plaintiff’s appeal of the
This case concerns an application for disability benefits. On April 25, 2012, Plaintiff
filed a Title II application for a period of disability and disability insurance benefits beginning
August 6, 2007. (Social Sec. Admin. Decision (“Decision”) at 1, ECF No. 5-2). Plaintiff's claim
was denied on November 23, 2012, and denied upon reconsideration on June 4, 2013. (Id.).
Thereafter, Plaintiff filed a written request for hearing on July 18, 2013. (Id.). Plaintiff appeared
and testified before Administrative Law Judge Kimberly L. Shiro (“ALJ”) on September 17,
2014. (Id.). Plaintiff presented evidence of a herniated disc in the lumbar spine, cervical
narrowing and slippage, chronic pain, fusion surgery, anxiety, depression, and insomnia. (Id. at
5). On December 19, 2014, the ALJ denied Plaintiff's application. (Id. at 11). On April 19,
2016, Plaintiff filed the Complaint currently before the Court, seeking review of the now final
administrative decision. (ECF No. 1).
Under 42 U.S.C.A. §§ 416(i), 423(d)(1)(A), an applicant for disability insurance benefits
must establish “an inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment.” The Social Security disability
insurance benefits program requires that a claimant be fully insured at the time of disability in
ordered to qualify. 20 C.F.R. § 414.101(a).
An ALJ determines whether an individual is disabled by following a five-step evaluation
process. 20 CFR § 404.1520(a). First, the ALJ must determine that the individual was no longer
engaging in substantial gainful activity. Id. at (4)(i). Second, the ALJ must determine whether
the individual suffered from a severe impairment, i.e. an impairment that limits his ability to do
work-related activities. Id. at (4)(ii). Third, the ALJ must compare the severe impairments to a
list of impairments that are severe enough to preclude substantial gainful activity. Id. at (4)(iii).
If the individual has more than one impairment, the ALJ must consider the combination of these
impairments to determine whether this combination is of “medical equivalence” with the listed
impairments. See Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000). If
the ALJ determines that either the impairment or combination of impairments is the medical
equivalent of one of the listed impairments, the individual is deemed disabled. 20 CFR §
404.1520(a)(4)(iii). If the impairment does not meet the criteria, the ALJ then determines the
claimant's residual functioning capacity.
Fourth, the ALJ must determine whether the individual possesses the residual functioning
capacity to sustain his “past relevant work.” 20 CFR § 404.1520(a)(4)(iv). Finally, if the ALJ
finds that the individual cannot engage in past relevant work, the ALJ must then consider the
individual's residual functioning capacity, age, education, and work experience to determine
whether he can perform other kinds of work. 20 CFR § 404.1520(a)(4)(v).
In reviewing the ALJ’s decision, the District Court has a “responsibility to scrutinize the
entire record and to reverse or remand if the Secretary's decision is not supported by substantial
evidence.” Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981); see 42 U.S.C.A. § 405(g).
“Substantial evidence” has been defined as “more than a mere scintilla.” Richardson v. Perales,
402 U.S. 389 (1971). It means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. “[D]eference to administrative decisions [is] implied by
this standard.” Smith, 637 F.2d at 970.
The ALJ found and Plaintiff does not dispute that Plaintiff was no longer engaged in
substantial gainful activity and that her insured status expired March 31, 2009. Therefore,
Plaintiff needed to show that she was disabled between the onset date—August 6, 2007—and
March 31, 2009.
The ALJ found and Plaintiff does not dispute that Plaintiff suffered from a severe
physical impairment. Plaintiff challenges the ALJ’s findings that Plaintiff’s mental impairments
were not severe and that Plaintiff retained residual functioning capacity sufficient to sustain her
past relevant work. Specifically, Plaintiff argues that: (1) the ALJ improperly evaluated the
medical evidence; (2) the ALJ failed to properly assess the testimony and credibility of Plaintiff
regarding her mental impairment and its effect on her ability to work; (3) the ALJ erred in
finding that Plaintiff could perform her past relevant work; and (4) the ALJ improperly failed to
give proper weight to the vocation expert’s testimony in determining Plaintiff’s residual
After reviewing the record and the parties' submissions, the Court is persuaded that the
ALJ based her decision on substantial evidence and satisfactorily explained the basis for her
determination that Plaintiff was not disabled within the meaning of the statute during the relevant
The ALJ Did Not Err in Finding that Plaintiff’s Allegations of Mental
Impairments Do Not Qualify as Severe Impairments
Plaintiff argues that the ALJ improperly evaluated the medical evidence and failed to
properly assess the testimony and credibility of Plaintiff regarding her mental impairment and its
effect on her ability to work.
The ALJ noted that Plaintiff’s psychiatric treatment did not start until July 31, 2009, after
the relevant time period. (Decision at 3, ECF No. 5-2). The ALJ noted that the DDS state
agency consultants stated “there was no evidence of psychiatric history or signs and symptoms of
a psychological medically determinable impairment prior to the date last insured” and as such
there was “insufficient evidence for an appropriate adjudication” and the ALJ found there was no
medically determinable mental impairment prior to the date last insured. (Id. at 3–4. See also id.
at 9; Def.’s Br. at 8, ECF No. 11).
Plaintiff contends that her “complaints of depression [and insomnia] began during her
employment with Winfield Security.” (Pl.’s Br. at 11, ECF No. 10). Assuming that is in the
relevant time period, Plaintiff has failed to argue or present case law that her “complaints,”
alone, are sufficient to show a medically determinable impairment. Plaintiff has not shown that
the ALJ’s finding was not supported by substantial evidence or that the ALJ failed to properly
assess the testimony and credibility of Plaintiff regarding her mental impairment and its effect on
her ability to work.
Based on the record and the parties’ submissions, the Court is satisfied that the ALJ’s
finding was correct that Plaintiff did not suffer from severe mental impairment during the
Plaintiff also argues that the ALJ failed to give proper weight to Plaintiff’s testimony that
she was unable to perform her work. (Pl.’s Br. at 13–14, ECF No. 10). However, there was
substantial evidence that, while Plaintiff did experience pain during the relevant time period, she
maintained motor strength, sensation, and mobility sufficient to be “active and losing weight”
and perform sedentary work activities prior to Plaintiff’s 2011 surgery. (Decision at 6–8, ECF
No. 5-2). This is sufficient for a “reasonable mind” to conclude that Plaintiff was able to
perform her work and Plaintiff’s testimony was not credible.
Therefore, the Court will find that the ALJ’s decision was supported by substantial
The ALJ Did Not Err in Finding that Plaintiff Had the Residual Functioning
Capacity to Sustain Past Relevant Work
The ALJ must determine whether the individual possesses the residual functioning
capacity to sustain his “past relevant work.” 20 CFR § 404.1520(a)(4)(iv). There are two prongs
to this inquiry: the claimant’s “residual functioning capacity” and the requirements of the
claimant’s “past relevant work.”
Plaintiff claims both that the ALJ erred in finding that Plaintiff had residual functioning
capacity to work at the sedentary exertion level and that Plaintiff’s past relevant work was
“sedentary.” The Court will address each in turn.
A. Residual Functioning Capacity
The residual functioning capacity assessment is based on all relevant evidence in the case
record of a claimant’s remaining capacity to do work despite his impairments. See 20 C.F.R. §§
The ALJ cited Dr. Galst, Dr. Levine, and the DDS state agency consultants respectively
as stating that during the relevant time period: Plaintiff had some neck, back, and knee pain but
maintained a normal range of motion and could perform sedentary work activities (Decision at
6–8, ECF No. 5-2) 1; Plaintiff was very active and merely should avoid bending, squatting, and
kneeling (id. at 8); and Plaintiff was somewhat limited in reaching overhead and should never
climb ladders, etc., but was able to work at the light exertion level (id. at 9). On that basis, the
ALJ found that Plaintiff was not able to participate in a full range of work activities but was not
be precluded from all work activity and was able to work at the sedentary level. (Id. at 9–10).
The ALJ described substantial evidence that, despite her limitations, Plaintiff was able to
participate in sedentary work. Therefore, the Court will affirm this ALJ’s finding.
B. Past Relevant Work
The ALJ must determine what level of exertion the claimant’s past relevant work
required, in order to determine if the claimant’s residual functioning capacity is sufficient to
sustain that past relevant work. 20 CFR § 404.1520(a)(4)(iv). Past relevant work is work that
the claimant participated in within the past 15 years, that was substantial gainful activity, and
that lasted long enough for the claimant to learn to do it. 20 CFR § 404.1560(b)(1). The ALJ
may consider the claimant’s description of the work, others’ description of the work, and a
Dr. Galst noted that Plaintiff suffered from more severe pain after March 31, 2009, but opined
that Plaintiff could sustain sedentary work until her July 2011 surgery. (Decision at 8, ECF No.
vocational expert or specialist’s description of the work, either as the claimant actually
performed it or as generally performed in the national economy, in order to determine the level
of exertion required to perform the work. Id. at § (b)(2).
In this case, the ALJ considered Plaintiff’s description of her work activities and
vocational expert Rocco Meola’s description. Plaintiff herself testified that her position was
“sedentary,” and the ALJ described in detail the requirements of Plaintiff’s past relevant work
(Decision at 10, ECF No. 5-2), which were within the types of activities that Dr. Galst, Dr.
Levine, and the DDS consultants determined that Plaintiff could participate in during the relevant
period. Plaintiff argues that her work was a light exertion level because she was required to lift
and carry materials and walk and stand. (Pl.’s Br. at 19, ECF No. 10). However, Plaintiff’s
lawyer described the work as Dictionary of Occupational Titles number 201.362-030, which is
sedentary, and has not previously contested that description. The Court is not persuaded that the
ALJ erred in finding that Plaintiff’s past relevant work was sedentary and within Plaintiff’s
residual functioning capacity.
The Court notes that the record reflects that Plaintiff’s physical impairments, as well as
her mental impairments and the pharmacological response thereto, became more severe after the
relevant time period. Specifically, Plaintiff’s physical pain increased after her 2011 surgery, and
Plaintiff began medication and therapy in response to her depression and anxiety in July 2009.
Therefore, the Court finds that there is substantial evidence that Plaintiff had the residual
functioning capacity to sustain her past relevant work from April 6, 2007 until March 31, 2009,
while Plaintiff was fully insured and thus could qualify for disability insurance benefits.
For the reasons set forth above, the decision will be affirmed. An appropriate order will
/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.
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