FOLK v. SOCIAL SECURITY ADMINISTRATION

Filing 15

OPINION filed. Signed by Judge Brian R. Martinotti on 4/29/2019. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
__________________________________________
:
PIPPIN J. FOLK, also known as, MALIK
:
JOHNSON,
:
:
Plaintiff,
:
Civil Action No. 18-2222 (BRM)
:
v.
:
:
NANCY A. BERRYHILL,
:
OPINION
Acting Commissioner of Social Security,
:
:
Defendant.
:
:
MARTINOTTI, DISTRICT JUDGE
Before this Court is Pippin J. Folk’s, also known as Malik Johnson (“Plaintiff”), appeal
from the final decision of the Acting Commissioner of Social Security (“Defendant”) 1 denying his
application of Social Security Disability Insurance Benefits (“SSDI”) and application for
Supplemental Security Income (“SSI”). (ECF No. 8.) Having reviewed the administrative

record and the submissions filed in connection with the appeal pursuant to Local Civil Rule
9.1, and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure
78(b), for the reasons set forth below and for good cause shown, the matter is AFFIRMED.

1

Defendant adopted the decision of the Administrative Law Judge (“ALJ”) which concluded
Plaintiff was not disabled under the relevant standards, and issued a written decision denying his
application on July 13, 2016 (the “ALJ Decision”). (Tr. 23-43.)

I.

BACKGROUND
Plaintiff applied for SSDI and SSI benefits in March 2013, alleging disability beginning

July 1, 2007, due to affective/mood disorders. (Tr. 124-25.) His claim was denied initially on July
8, 2013, and on reconsideration on January 13, 2014. (Tr. 23-25, 170-72.) On February 28, 2014,
Plaintiff filed a written request for an administrative hearing. (Tr. 176.) On March 15, 2016, a
hearing was held where Plaintiff appeared and testified. (Tr. 44-45.) Impartial vocational expert,
Louis P. Szollosy, also appeared and testified at the hearing. (Tr. 45.) On July 13, 2016, the ALJ
concluded Plaintiff was not disabled. (Tr. 38.) Specifically, she found Plaintiff: (1) met the insured
status requirements of the Social Security Act; (2) had not engaged in substantial gainful activity
since July 1, 2007; (3) had two severe impairments, affective disorder and anxiety disorder; (4)
did not have an impairment or combination of impairments that met or equaled the severity of one
of the listed impairments; (5) had an RFC to perform a full range of work at all exertional levels
but with a couple of nonexertional limitations; (6) was unable to perform any past relevant work;
and (7) could find jobs based on his age, education work experience, and RFC that exist in
significant numbers in the national economy. (Tr. 28-38.) The Appeals Council denied Plaintiff’s
request for review, rendering the ALJ’s decision the Commissioner’s final decision. (Tr. 1-6.)
Having exhausted his administrative remedies, Plaintiff filed this action seeking review of the
Commissioner’s final decision on February 1, 2018. (ECF No. 1)
II.

STANDARD OF REVIEW
On a review of a final decision of the Commissioner of the Social Security Administration,

a district court “shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews v. Apfel,

2

239 F.3d 589, 592 (3d Cir. 2001). The Commissioner’s decisions regarding questions of fact are
deemed conclusive on a reviewing court if supported by “substantial evidence in the record.” 42
U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). This Court must affirm an
ALJ’s decision if it is supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3).
Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). To determine whether
an ALJ’s decision is supported by substantial evidence, this Court must review the evidence in its
totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). However, this Court may not “weigh
the evidence or substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970
F.2d 1178, 1182 (3d Cir. 1992) (citation omitted). Accordingly, this Court may not set an ALJ’s
decision aside, “even if [it] would have decided the factual inquiry differently.” Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999) (citations omitted).
III.

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
Under the Social Security Act, the Social Security Administration is authorized to pay

Social Security Insurance to “disabled” persons. 42 U.S.C. §§ 423(d)(1)(A), 1382(a). A person
is “disabled” if “he is unable 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). A person is unable to engage in substantial gainful
activity when 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

3

in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B).
Regulations promulgated under the Social Security Act establish a five-step process for
determining whether a claimant is disabled. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a)(1).
First, the ALJ determines whether the claimant has shown that he or she is not currently engaged
in “substantial gainful activity.” Id. §§ 404.1520(b), 416.920(b); see Bowen v. Yuckert, 482 U.S.
137, 146-47 n.5 (1987). If a claimant is presently engaged in any form of substantial gainful
activity, he or she is automatically denied disability benefits. See 20 C.F.R. § 404.1520(b); see
also Bowen, 482 U.S. at 140. Second, the ALJ determines whether the claimant has demonstrated
a “severe impairment” or “combination of impairments” that significantly limits his physical or
mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c); see Bowen, 482
U.S. at 146-47 n.5. Basic work activities are defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. § 404.1521(b). These activities include physical functions such as “walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.” Id. A claimant who does
not have a severe impairment is not considered disabled. Id. at § 404.1520(c); see Plummer v.
Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
Third, if the impairment is found to be severe, the ALJ then determines whether the
impairment meets or is equal to the impairments listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (the
“Impairment List”). 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates that his or her
impairments are equal in severity to, or meet those on the Impairment List, the claimant has
satisfied his or her burden of proof and is automatically entitled to benefits. See id. at §§
404.1520(d), 416.920(d); see also Bowen, 482 U.S. at 146-47 n.5. If the specific impairment is not
listed, the ALJ will consider in his or her decision the impairment that most closely satisfies those

4

listed for purposes of deciding whether the impairment is medically equivalent. See 20 C.F.R. §
404.1526(a). If there is more than one impairment, the ALJ then must consider whether the
combination of impairments is equal to any listed impairment. Id. An impairment or combination
of impairments is basically equivalent to a listed impairment if there are medical findings equal in
severity to all the criteria for the one most similar. Williams, 970 F.2d at 1186.
If the claimant is not conclusively disabled under the criteria set forth in the Impairment
List, step three is not satisfied, and the claimant must prove at step four whether he or she retains
the “residual functional capacity” (“RFC”) to perform his or her past relevant work. 20 C.F.R. §§
404.1520(e)-(f), 416.920(e)-(f); Bowen, 482 U.S. at 141. Step four involves three sub-steps:
(1) the ALJ must make specific findings of fact as to the claimant’s
[RFC]; (2) the ALJ must make findings of the physical and mental
demands of the claimant’s past relevant work; and (3) the ALJ must
compare the [RFC] to the past relevant work to determine whether
claimant has the level of capability needed to perform the past
relevant work.
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted). When
determining RFC, “[a]n ALJ may reject a treating physician’s opinion outright only on the basis
of contradictory medical evidence, but may afford a treating physician’s opinion more or less
weight depending upon the extent to which supporting explanations are provided.” Hoyman v.
Colvin, 606 F. App’x 678, 679-80 (3d Cir. 2015) (quoting Plummer, 186 F.3d at 429).
Unsupported diagnoses are not entitled to great weight. Jones v. Sullivan, 954 F.2d 125, 129 (3d
Cir. 1991). Moreover, an administrative law judge must provide the reason for providing more or
less weight to the evidence. See Fragnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).
The claimant is not disabled if his RFC allows him to perform his past relevant work. 20
C.F.R. § 416.920(a)(4)(iv). However, if the claimant’s RFC prevents him from doing so, an
administrative law judge proceeds to the fifth and final step of the process. Id. The final step

5

requires the administrative law judge to “show [that] there are other jobs existing in significant
numbers in the national economy which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and [RFC].” Plummer, 186 F.3d at 428. In
doing so, “[t]he ALJ must analyze the cumulative effect of all the claimant’s impairments in
determining whether she is capable of performing work and is not disabled.” Id. (citation omitted).
Notably, an administrative law judge typically seeks the assistance of a vocational expert at this
final step. Id. (citation omitted).
The claimant bears the burden of proof for steps one, two, and four. Sykes v. Apfel, 228
F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three “[b]ecause step
three involves a conclusive presumption based on the listings.” Id. at 263 n.2 (citing Bowen, 482
U.S. at 146-47 n.5). An administrative law judge bears the burden of proof for the fifth
step. See id. at 263.
IV.

PLAINTIFF’S APPEAL OF THE COMMISSIONER’S ADOPTION OF THE ALJ DECISION
Plaintiff challenges the ALJ Decision on several grounds. First, he argues the ALJ erred in

rejecting the opinions of Dr. Houg Chen and Hunterdon Behavioral Health in making its step-three
analysis. (ECF No. 8 at 18-28.) Second, Plaintiff argues the ALJ failed to fully develop the record
because it did not consider Middlesex County prison records that were submitted after the record
closed. (Id. at 28-29.) Third, he contends the ALJ erred by rejecting Arden Fushman, M.D.’s (“Dr.
Fushman”) opinion by not considering the effect of Plaintiff’s severe back pain on his ability to
work. (Id. at 30-32.)

6

A.

Plaintiff’s Challenge to the ALJ’s Step Three Determination and Rejection of
Dr. Chen and MaryAnne Foley-Mayor’s Opinions

Plaintiff argues the ALJ erred in in finding that he “does not have an impairment or
combination of impairments that medically equals the severity of one of the listed impairments”
because it erred in rejecting the impairment questionnaire completed by MaryAnne Foley-Mayor,
RN (“Nurse Foley-Mayor”) and signed off by Dr. Chen. (Id. at 21.) Moreover, Plaintiff contends
that the ALJ rejected the opinions of Nurse Foley-Mayor and Dr. Chen without considering and
explaining her reasons for discounting their pertinent evidence in making her determination. (Id.)
During step three, the ALJ compares the medical evidence of a claimant’s impairments
with the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“listed impairments” or
“listings”), which are presumed severe enough to preclude any gainful work. See Holley v. Colvin,
975 F. Supp. 2d 467, 476 (D.N.J. 2013), aff’d, 590 F. App’x 167 (3d Cir. 2014). The listings
articulated in 20 C.F.R. Pt. 404, Subpt. P., App. 1, are descriptions of various physical and mental
illnesses and abnormalities, categorized by the body system they affect. Sullivan v. Zebley, 493
U.S. 521, 529-30 (1990). All impairments are defined “in terms of several specific medical signs,
symptoms, or laboratory test results.” Id. at 530. “If a claimant’s impairment meets or equals one
of the listed impairments, he will be found disabled. . . . If the claimant does not suffer from a
listed impairment or its equivalent, the analysis proceeds to step four.” Holley, 975 F. Supp. 2d at
476. To be found disabled, however, the claimant “must present medical findings equal in severity
to all the criteria for the one most similar listed impairment.” Sullivan, 493 U.S. at 531.
“For a claimant to show that his impairment matches a listing, it must meet all of the
specified medical criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Id.; see Social Security Ruling (SSR) 83—19, Dep’t of Health &
Human Servs. Rulings 90 (Jan. 1983) (“An impairment meets a listed condition . . . only when it

7

manifests the specific findings described in the set of medical criteria for that listed impairment.”);
20 C.F.R. § 416.926(a) (1989) (noting that a claimant’s impairment is “equivalent” to a listed
impairment “if the medical findings are at least equal in severity and duration to the criteria of any
listed impairment”) “A claimant cannot qualify for benefits under the ‘equivalence’ step by
showing that the overall functional impact of his unlisted impairment or combination of
impairments is as severe as that of a listed impairment.” Sullivan, 493 U.S. at 531-32 (citing SSR
83–19, at 91–92 (“[I]t is incorrect to consider whether the listing is equaled on the basis of an
assessment of overall functional impairment. . . . The functional consequences of the impairments
. . . irrespective of their nature or extent, cannot justify a determination of equivalence” [sic])
(emphases in original)).
To conclude an applicant is not disabled under step three, the ALJ must “set forth the
reasons for [her] decision” for her step-three analysis. Burnett, 220 F.3d at 119. Conclusory
statements have been found to be “beyond meaningful judicial review.” Cotter v. Harris, 642 F.2d
700, 704-05 (3d Cir. 1981). In Burnett, the Third Circuit remanded the matter because the ALJ
made only conclusory statements without mentioning any specific listed impairments or explaining
his reasoning. Burnett, 220 F.3d at 119-20 (finding “although [the plaintiff] has established that
she suffered from a severe musculoskeletal [impairment], said impairment failed to equal the level
of severity of any disabling condition contained in Appendix 1, Subpart of Social Security
Regulations No. 4.”). In Torres v. Comm’r of Soc. Sec., 279 F. App’x 149, 152 (3d Cir. 2008), the
court found “the ALJ failed at step three by failing to consider [the plaintiff’s] impairments in
combination when determining medical equivalence.” Further, the “ALJ failed to combine [the
plaintiff’s] many medical impairments and compare them to analogous Appendix 1 listings.” Id.
The ALJ’s entire analysis consisted of one cursory paragraph stating:

8

Regarding steps two and three, the evidence establishes the
existence of a “severe” impairment involving left-eye blindness,
diabetes, hepatitis C and cirrhosis, degenerative disc disease of the
lumbar spine, bronchitis, and depression, but does not disclose any
medical findings which meet or equal in severity the clinical criteria
of any impairment listed in Appendix 1, Subpart P to Regulations
No. 4.
Id.
As the Third Circuit has explained, the ALJ is not required to “use particular language or
adhere to a particular format in conducting his analysis . . . [but must] ensure that there is sufficient
development of the record and explanation of findings to permit meaningful review.” Jones v.
Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). The ALJ satisfies this standard by “clearly evaluating
the available medical evidence in the record and then setting forth that evaluation in an opinion,
even where the ALJ did not identify or analyze the most relevant Listing.” Scatorchia v. Comm’r
of Soc. Sec., 137 F. App’x 468, 470–71 (3d Cir. 2005).
Listings 12.04 and 12.06 provide multiple ways to demonstrate the existence of a severe
mental impairment based on satisfying certain criteria. Both listings have “A Criteria,” “B
Criteria,” and “C Criteria.” For impairments under 12.04 (affective disorders), the severity
requirements are met if “both A and B are satisfied, or when the requirements in C are satisfied.”
20 C.F.R. Part 404, Subpart P, Appendix 1 (emphasis added). Listing 12.06 is slightly different;
the severity requirements under listing 12.06 are met “when the requirements in both A and B are
satisfied, or when the requirements in both A and C are satisfied. Id. (emphasis added).
The “B Criteria” for listings 12.04 and 12.06 are the same, and require a showing that the
applicant have “at least two of the following: (1) marked restriction of activities of daily living; or
(2) marked difficulties in maintaining social functioning; or (3) marked difficulties in maintaining
concentration, persistence, or pace; or (4) repeated episodes of decompensation, each of extended

9

duration.” Id. Criteria C would require Folk to demonstrate a disorder “resulting in complete
inability to function independently outside the area of one’s home.” 20 C.F.R. Part 404, Subpart
P, Appendix 1, para. 12.06(c).
Here, the ALJ did not err at step three of the sequential analysis, but instead made a
reasoned decision supported by substantial evidence in the record, such as Plaintiff’s contentions,
treating physicians, and state examiners. See Jakubowski v. Comm’r, 215 F. App’x 104 (3d Cir.
2007) (stating that an ALJ’s decision as to the severity of impairments is supported by substantial
evidence when the ALJ cites to specific medical records in his decision). The ALJ has supported
its denial with substantial evidence. Whether or not this Court would have decided the inquiry
differently is of no importance. Hartranft, 181 F.3d at 360.
Indeed, the ALJ devoted approximately a page and a half of her decision to her step-three
analysis and finding and considered singly and in combination Plaintiff’s mental health
impairments and compared them to listings 12.04 and 12.06. In addition, the ALJ incorporated by
reference her RFC assessment to further her step-three analysis, which is approximately six pages.
Specifically, she found:
The claimant's representative does not contend that a listing has
been met or equaled. Moreover, no treating or examining
physician has mentioned any findings equivalent in severity to
any listed impairment, nor are such findings indicated or
suggested by the medical evidence of record. Nevertheless, I
have carefully considered the specific requirements of the
relevant listings, and am satisfied that no listing is met or equaled.
The severity of the claimant's mental impairments, considered
singly and in combination do not meet or medically equal the
,
criteria of listings 12.04 and 12.06. In making this finding, I have
considered whether the "paragraph B" criteria are satisfied. To
satisfy the "paragraph B" criteria, the mental impairments must
result in at least two of the following: marked restriction of
activities of daily living; marked difficulties in maintaining social
functioning; marked difficulties in maintaining concentration,

10

persistence, or pace; or repeated episodes of decompensation, each
of extended duration. A marked limitation means more than
moderate but less than extreme.
Repeated episodes of
decompensation, each of extended duration, means three episodes
within 1 year, or an average of once every 4 months, each lasting
for at least 2 weeks.
In activities of daily living, the claimant has moderate restriction.
The claimant is able to drive. He was taking his children to the
park. He testified that he can make himself something to eat. He
does the laundry and can sweep and dust.
In social functioning, the claimant has moderate difficulties. The
claimant reported that he does not have friends, just associates. He
said he is distrustful of others and thinks people are lying 90% of
the time. He thinks people are watching him (Exhibit 7F). He
spends his days talking to other residents. He goes to a food bank.
With regard to concentration, persistence or pace, the claimant
has mild difficulties. The claimant reported that he spends time
reading. He was attending school to become an electrician. He
does not have a television. He does not have difficulty reading
fiction. He can pay bills, and make change. He said worry
interferes with following instructions.
As for episodes of decompensation, the claimant has experienced
no episodes of decompensation, which have been of extended
duration.
Because the claimant's mental impairments do not cause at least
two "marked" limitations or one "marked" limitation and "repeated"
episodes of decompensation, each of extended duration, the
"paragraph B" criteria are not satisfied.
I have also considered whether the "paragraph C" criteria are
satisfied. In this case, the evidence fails to establish the presence
of the "paragraph C" criteria. There is no evidence demonstrating
the claimant has had repeated episodes of decompensation each of
extended duration; that he has a residual disease process that has
resulted in such marginal adjustment that even a minimal increase
in mental demands or change in environment would be predicted to
cause the individual to decompensate or that he has a current history
of 1 or more years' inability to function outside a highly supportive
live arrangement with an indication of continued need for such
arrangement.

11

The limitations identified in the "paragraph B" criteria are not a
residual functional capacity assessment but are used to rate the
severity of mental impairments at steps 2 and 3 of the sequential
evaluation process. The mental residual functional capacity
assessment used at steps 4 and 5 of the sequential evaluation
process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraph B
of the adult mental disorders listings in 12.00 of the Listing of
Impairments (SSR 96-8p). Therefore, the following residual
functional capacity assessment reflects the degree of limitation I
have found in the "paragraph B" mental function analysis.
(Tr. 30-31.)
In addition, the ALJ, contrary to Plaintiff’s argument, considered Nurse Foley-Mayor’s and Dr.
Chen’s opinions and properly rejected them. In making a disability determination, the ALJ must
consider all evidence before her. See, e.g., Plummer, 186 F.3d at 433; Doak v. Heckler, 790 F.2d 26, 29
(3d Cir. 1986). Although the ALJ may weigh the credibility of the evidence, she must give some
indication of the evidence which she rejects and her reasons for discounting such evidence. Burnett, 220
F.3d at 121; Cotter, 642 F.2d at 705. In Burnett, the Third Circuit held the ALJ had not properly decided
an evidentiary issue because he “fail[ed] to consider and explain his reasons for discounting all of the
pertinent evidence before him in making his residual functional capacity determination.” 220 F.3d at
121. “In the absence of such an indication, the reviewing court cannot tell if significant probative
evidence was not credited or simply ignored.” Cotter, 642 F.2d at 705. Consequently, an ALJ’s failure
to note if evidence that contradicts her findings was considered, or to explain why such information was
not credited, are grounds for a remand. Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 435
(3d Cir. 1999). However, this rule does not require an ALJ to explicitly discuss every piece of relevant
evidence in her decision. Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001). For example, an ALJ
may be entitled to overlook evidence that is neither pertinent, relevant, nor particularly probative.

12

Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008); Hur v. Barnhart, 94 F. App’x 130,
133 (3d Cir. 2004).
Additionally, when the record presents inconsistencies with a physician’s ultimate opinion or
where the physician’s notes actually undermine his own opinion, an ALJ may appropriately discount
the physician’s opinion. See Burke v. Comm’r of Social Security, 317 F. App’x 240, 243-44 (3d Cir.
2009). Although the ALJ must not “reject evidence for no reason or for the wrong reason, [he] may
choose whom to credit when considering conflicting evidence.” Kerdman v. Comm’r of Soc. Sec., 607
F. App’x 141, 144 (3d Cir. 2015) (quotations omitted). A reviewing court “may not re-weigh the
evidence.” Id. Thus, even if there is contrary evidence in the record that would justify the opposite
conclusion, the ALJ’s decision will be upheld if it is supported by substantial evidence. Simmonds v.
Heckler, 807 F.2d 54, 58 (3d Cir. 1986)
Here, the ALJ articulated in her RFC analysis, which was incorporated into her step-three
analysis, Nurse Foley-Mayor and Dr. Chen’s contradictory opinion and why she rejected it.
Specifically, the ALJ stated:
Mary Ann Foley-Mayor, RN, APN, cosigned by Dr. Chew [sic],
completed a Mental Impairment Questionnaire in March 2016
finding the claimant was unable to meet competitive standards
remembering work-like procedures, maintaining attention for two
hour segment [sic], working in coordination with or in proximity to
others without being unduly distracted, completing a normal
workday and workweek without interruptions from psychologically
based symptoms, accepting instructions and responding
appropriately to criticism from supervisors, getting along with coworkers or peers without unduly distracting them or exhibiting
behavioral extremes, responding appropriately to changes in a
routine work setting, dealing with normal work stress, or dealing
with stress of semiskilled and skilled work. Ms. Foley indicated that
claimant has marked difficulties in maintaining social functioning
and difficulties in maintaining concentration, persistence or pace,
and one or two episodes of decompensation and would be absent
about one day per month. I assign little eight to these opinions as
they are based on only 5 visits beginning in March 2015. Further,

13

the treatment records, including the lack of mental status evaluation,
do no support such severe limitations.
(Tr. 36.)
Since the function of this Court is simply to ensure that the ALJ’s decision was supported
by substantial evidence, the Court finds the ALJ made a sound decision based on the evidence that
Plaintiff does not equal a listed impairment. The Court also find’s the ALJ properly considered
and discounted Nurse Foley-Mayor and Dr. Chen’s opinions. This Court cannot apply a more
stringent standard than that of “substantial evidence,” nor can it act as the fact-finder. McCrea v.
Comm'r of Soc. Sec., 370 F.3d 357, 360-61 (3d Cir. 2004). The administrative record provides this
Court with “more than a mere scintilla” of evidence to support the ALJ’s decision. Jones, 364 F.3d
at 503 (defining substantial evince as “less than a preponderance of the evidence but more than a
mere scintilla”). Accordingly, the ALJ’s decision and Commissioner’s denial of review at stepthree is AFFIRMED and the Court finds the ALJ properly considered Nurse Foley-Mayor’s and
Dr. Chen’s opinion.
B. Plaintiff’s Challenge to the Middlesex County Prison Records
Plaintiff argues the ALJ failed to fully develop the record because it did not consider
Middlesex County prison records that were submitted after the record closed. (Tr. 28.) The Court
disagrees. This evidence was in fact considered and explicitly discussed by the ALJ in its decision.
(Tr. 28-29, 33.) The ALJ explicitly referenced the prison records and stated, “In March 2008, the
claimant was taking Zoloft and Depakote. He said he was diagnosed with bipolar disorder and
anxiety. He appeared to be well-managed on his medications. In April 2010, he was diagnosed
with anxiety disorder and depressive disorder. He was noted to be stable.” (Tr. 33.) The ALJ need
not “cite all evidence a claimant presents.” Johnson, 529 F.3d at 204. Accordingly, the ALJ
decision is AFFIRMED.

14

C. Plaintiff’s Challenge to the ALJ’s Rejection of Dr. Fusman’s Opinion
Plaintiff argues the ALJ erred in rejecting Dr. Fusman’s opinion regarding his back-pain’s
effect on his ability to work. (ECF No. 8 at 30-32.) The Court disagrees.
Not only did the ALJ consider Dr. Fusman’s opinion but substantial evidence supports the
little weight the ALJ gave to Dr. Fusman’s opinions that Plaintiff was mildly limited in his ability
to walk and stand and moderately limited in his ability to bend, crouch, stoop, lift, and carry. (Tr.
36.) The ALJ concluded Dr. Fusman’s opinions were “not based on any objective medical testing
and appear to be solely based on the claimant’s reported pain.” (Id.) There is substantial evidence
in the record to support this conclusion.
Although Dr. Fusman stated in December 2013 that Plaintiff has some limited lumbar spine
range of motion, he also had normal range of motion otherwise, negative straight leg raise test
results, normal sensation, normal reflexes, and a relatively normal gait. (Tr. 495, 498-501.)
Plaintiff was also able to climb on and off the examination table, dress independently, squat
halfway down, and walk on his heals and toes. (Id.) Moreover, at visits with Hunterdon Behavioral
in September 2013, January 2015, August 2015, and January 2016, Plaintiff demonstrated a normal
build/stature, mostly normal posture, unremarkable muscle strength and tone, and unremarkable
gait. (Tr. 495, 583, 703-04, 715-16.)
Because the ALJ provided valid reasons for rejecting Dr. Fusman’s opinion based on the
record, it was proper to discredit his opinions. Kerdman, 607 F. App’x at 144. This Court cannot “reweigh the evidence.” Id. Even if there is contrary evidence in the record that would justify the opposite
conclusion, the ALJ’s decision will be upheld if it is supported by substantial evidence. See Simmonds,
807 F.2d at 58. Accordingly, the ALJ’s decision is AFFIRMED.

15

V.

CONCLUSION
For the reasons set forth above, the matter is AFFIRMED.

Date: April 29, 2019

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

16