GUNN v. COMMISSIONER OF SOCIAL SECURITY
Filing
26
OPINION and ORDER filed. Signed by Magistrate Judge Norah McCann King (OHSD) on 6/9/2021. (km)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIEL TODD GUNN,
Plaintiff,
Case No. 3:18-cv-10886
Magistrate Judge Norah McCann King
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Daniel Todd Gunn for
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.
Plaintiff appeals from the final decision of the Commissioner of Social Security denying
Plaintiff’s application. After careful consideration of the entire record, including the entire
administrative record, the Court decides this matter pursuant to Rule 78(b) of the Federal Rules
of Civil Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court affirms the
Commissioner’s decision.
I.
PROCEDURAL HISTORY
On November 5, 2014, Plaintiff filed an application for benefits, alleging that he has been
disabled since April 16, 2013. R. 180–86. Plaintiff’s application was denied, R. 151–54, and
Plaintiff sought a de novo hearing before an administrative law judge. R. 155–56. 1
Administrative Law Judge Timothy Wing (“ALJ”) held a hearing on March 16, 2017, at which
1
The record does not contain a reconsideration determination.
1
Plaintiff, who was represented by counsel different from the attorney appearing in this action,
appeared and testified, as did a vocational expert. R. 94–141. In a decision dated May 24, 2017,
the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act
at any time from April 16, 2013, Plaintiff’s alleged disability onset date, through June 30, 2013,
the date on which Plaintiff was last insured. R. 22–32. That decision became the final decision of
the Commissioner of Social Security when the Appeals Council declined review on May 10,
2018. R. 1–8. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On
December 7, 2018, Plaintiff consented to disposition of the matter by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF
No. 10. 2 On March 12, 2020, the case was reassigned to the undersigned. ECF No. 22. The
matter is now ripe for disposition.
II.
LEGAL STANDARD
A.
Standard of Review
In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence “does not mean a
large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565
(1988) (citation and internal quotations omitted); see K.K. ex rel. K.S. v. Comm’r of Soc. Sec.,
2
The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
2
No. 17-2309 , 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018). Substantial evidence is “less
than a preponderance of the evidence, but ‘more than a mere scintilla.”’ Bailey v. Comm’r of Soc.
Sec., 354 F. App’x 613, 616 (3d Cir. 2009) (citations and quotations omitted); see K.K., 2018
WL 1509091, at *4.
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is
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overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter, 650 F.2d at 482. Absent such articulation, the Court
“cannot tell if significant probative evidence was not credited or simply ignored.” Id. at 705. As
the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision is
supported by substantial evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the conclusions reached are
rational.
4
Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award
benefits should be made only when the administrative record of the case has been fully
developed and when substantial evidence on the record as a whole indicates that the claimant is
disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation
omitted); see A.B., 166 F. Supp.3d at 518. In assessing whether the record is fully developed to
support an award of benefits, courts take a more liberal approach when the claimant has already
faced long processing delays. See, e.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). An
award is “especially appropriate when “further administrative proceedings would simply prolong
[Plaintiff’s] waiting and delay his ultimate receipt of benefits.” Podedworny, 745 F.2d at 223;
see Schonewolf, 972 F. Supp. at 290.
B.
Sequential Evaluation Process
The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §
404.1520(a)(4). “The claimant bears the burden of proof at steps one through four, and the
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Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d
632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).
At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or
combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe
impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 404.1509. Otherwise, the ALJ proceeds to step four.
At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do
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so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the
impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III.
ALJ DECISION AND APPELLATE ISSUES
The Plaintiff was 48 years old on the date on which he was last insured for disability
insurance benefits. R. 30. At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity between April 16, 2013, his alleged disability onset date, and June 30,
2013, his date last insured. R. 24.
At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
cervical, thoracic, and lumbar disorders, including degenerative disc disease, spondylosis,
thoracic degenerative changes with kyphosis, and right knee disorder, including arthritis,
chondromalacia patella. Id.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination
of impairments that met or medically equaled the severity of any Listing. R. 24–25.
At step four, the ALJ found that Plaintiff had the RFC to perform sedentary work
except that he is limited to occupations that could be performed using a cane for ambulation
and subject to various additional limitations. R. 25–30. The ALJ also found that this RFC did
not permit the performance of Plaintiff’s past relevant work as a brick layer. R. 30.
At step five, the ALJ found that a significant number of jobs—i.e., approximately
150,000 jobs as a system monitor; approximately 100,000 jobs as an inspector; approximately
250,000 jobs as a bench assembler—existed in the national economy and could be performed
by an individual with Plaintiff’s vocational profile and this RFC. R. 31. The ALJ therefore
concluded that Plaintiff was not disabled within the meaning of the Social Security Act at any
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time from April 16, 2013, his alleged disability onset date, through June 30, 2013, the date on
which he was last insured. R. 32.
Plaintiff disagrees with the ALJ’s findings at steps four and five and asks that the
decision of the Commissioner be reversed and remanded with directions for the granting of
benefits or, alternatively, for further proceedings. Plaintiff’s Brief, ECF No. 24. The
Commissioner takes the position that his decision should be affirmed in its entirety because
the ALJ’s decision correctly applied the governing legal standards, reflected consideration of
the entire record, and was supported by sufficient explanation and substantial evidence.
Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 25.
IV.
DISCUSSION
A.
Step Five
At step four of the sequential evaluation, the ALJ determined that Plaintiff had the RFC
to perform a limited range of sedentary work:
After careful consideration of the entire record, the undersigned finds that, through
the date last insured, the claimant had the residual functional capacity to perform
sedentary work as defined in 20 CPR 404.1567(a) except the claimant is limited to
occupations that could be performed with using a cane for ambulation. The
claimant is limited to occupations that require no more than occasional postural
maneuvers, such as balancing, stooping, kneeling, crouching and climbing on
ramps and stairs. The claimant must avoid occupations that require climbing on
ladders, ropes and scaffolds or crawling. The claimant is limited to occupations that
require no more than occasional pushing and pulling with the lower extremities.
The claimant would need the option to sit and stand during the workday for brief
periods of a few minutes every half hour or so.
R. 25 (emphasis added). At step five, and relying on the testimony of the vocational expert, the
ALJ found that this RFC would not preclude the performance by Plaintiff of substantial gainful
employment.
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Plaintiff argues that the Commissioner failed to carry his burden of proof at step five of
the sequential evaluation. Plaintiff’s Moving Brief, ECF No. 24, pp. 11–24. Plaintiff specifically
argues that the vocational expert’s testimony regarding jobs that permit the changing of position
and the use of a cane was inconsistent with the Dictionary of Occupational Titles (“DOT”) 3 and,
contrary to the ALJ’s characterization, was not based on the vocational expert’s experience. Id.
at 14–20. Plaintiff also complains that the ALJ improperly failed to clarify for the vocational
expert the frequency and length of time of the sit/stand option that Plaintiff’s RFC would require.
Id. at 19–23. This Court disagrees.
“[A] vocational expert or specialist may offer expert opinion testimony in response to a
hypothetical question about whether a person with the physical and mental limitations imposed
by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous
work[.]” 20 C.F.R. § 404.1560(b)(2). “As a general rule, occupational evidence provided by a
[vocational expert] should be consistent with the occupational evidence presented in the DOT.”
Zirnsak v. Colvin, 777 F.3d 607, 617 (3d Cir. 2014) (citing SSR 00-4p, 2000 WL 1898704, at *2
(Dec. 4, 2000)). “To ensure consistency, courts have imposed an obligation on ALJs to
‘[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence
provided by [vocational experts] . . . and information in the [DOT].’” Id. (quoting SSR 00-4p at
*1). “Specifically, an ALJ is required to (1) ask, on the record, whether the [vocational expert’s]
testimony is consistent with the DOT, (2) ‘elicit a reasonable explanation’ where an
inconsistency does appear, and (3) explain in its decision ‘how the conflict was resolved.’” Id.
The DOT is a “publication of the United States Department of Labor that contains descriptions
of the requirements for thousands of jobs that exist in the national economy,” and which ALJs
generally consult to determine whether any jobs exist that a claimant can perform. Burns v.
Barnhart, 312 F.3d 113, 119 (3d Cir. 2002).
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3
(quoting Burns, 312 F.3d at 127). “An ALJ’s failure to comply with these requirements may
warrant remand in a particular case[,]” but “the presence of inconsistencies does not mandate
remand,” so long as “‘substantial evidence exists in other portions of the record that can form an
appropriate basis to support the result.’” Id. (quoting Rutherford v. Barnhart, 399 F.3d 546, 557
(3d Cir. 2005)).
However, a vocational expert may rely on his or her own experience in addition to the
DOT when determining whether an individual is capable of performing any work. Horodenski v.
Comm’r of Soc. Sec., 215 F. App’x 183, 189–90 (3d Cir. 2007) (finding the ALJ did not err in
relying on a vocational expert who based his opinion on thirty years of his experience); Butler v.
Colvin, No. CIV. 13-7488, 2015 WL 570167, at *9 (D.N.J. Feb. 11, 2015) (noting that Judges in
the Third Circuit “have encouraged” vocational experts “to rely on their experiences rather than
solely on the DOT”).
Here, the hypothetical question posed by the ALJ to the vocational expert assumed a
claimant with Plaintiff’s vocational profile and the RFC found by the ALJ. R. 132–33. The
vocational expert testified that such an individual could perform such jobs as system monitor,
inspector, and bench assembler. R. 132–34. When the ALJ questioned whether this testimony
was consistent with the DOT, the vocational expert responded as follows:
It is, your honor, except for my opinion based upon the changing of positions, and
the use of a cane, and I base that on evaluating the representative examples
provided in hypothetical number one, your honor within the economy, sir.
R. 134. Plaintiff’s former counsel then questioned the vocational expert about the types of chairs
that this hypothetical worker would require:
Q For the sitting that was involved with the positions that you’ve identified would
they be -- what kind of chairs would that person be provided?
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A Well, they would vary depending on the employer, of course, but usually, like
for instance, the system monitor position is usually regular chair with a back. Okay,
you know, usually it’s an office-type chair are the ones I’ve evaluated in the past.
Inspector, bench assembler positions, they do vary. It’s usually like a, a chair that’s
more higher in height sometimes.
Q You mean more like a stool?
A It could be at times, or it could be a chair such as these depending on the height
of the work area.
Q So, it could be an armless chair?
A It could be, yes.
Q And, that would be the same with the other position as well?
A Yes, that’s true.
Q And
none of the positions would provide a recliner am I correct?
A Yes, that’s correct.
R. 135–36.
The ALJ found at step five that the vocational expert’s testimony was consistent with the
DOT with the exception of the required sit/stand option and use of a cane. As to those aspects of
Plaintiff’s RFC, the ALJ found that the vocational expert’s testimony was based on his own
experience:
Pursuant to SSR 00-4p, the vocational expert's testimony is consistent with the
information contained in the Dictionary of Occupational Titles (DOT) with the
exception of the testimony provided regarding the sit stand option and the use of a
cane. The vocational expert testified the jobs noted above could be performed either
sitting or standing and with needing to use a cane for ambulation. The vocational
expert testified information provided in considering the sit stand option and use of
a cane was based upon [his] experience in reviewing these types of positions. More
specifically, these limitations are not inconsistent with the DOT, but are simply not
contemplated by the publication. Nevertheless, in considering these limitations, the
vocational expert testified there were jobs available in the numbers discussed
above.
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R. 31 (emphasis added). Because Plaintiff could perform jobs that exist in significant numbers in
the national economy, the ALJ went on to conclude that Plaintiff was not disabled. R. 31–32.
In challenging the ALJ’s findings at step five, Plaintiff first contends that the ALJ
mischaracterized the vocational expert’s testimony regarding the sit/stand option and use of a
cane as based on his experience because the vocational expert claimed no specific experience in
this regard. According to Plaintiff, the vocational expert “didn’t seem to know very much about
any of the jobs and had clearly never seen them performed and done any study regarding how
they were performed.” Plaintiff’s Moving Brief, ECF No. 24, pp. 14–20. To the contrary, the
ALJ’s construction of the vocational expert’s testimony regarding the DOT and jobs that permit
the changing of position and the use of a cane as based on the vocational expert’s own
experience was reasonable and reflects a fair reading of that testimony. Compare R. 31 with R.
134. Accordingly, to the extent that the vocational expert’s testimony was inconsistent with the
DOT, the vocational expert sufficiently resolved any such conflict by explaining his evaluation
of the representative occupations, which reasonably invoked his own experience. R. 134; see
also Horodenski, 215 F. App’x at 189–90; Butler, 2015 WL 570167, at *9; Knight v. Colvin, No.
CV 16-1816, 2018 WL 1400077, at *1 n.1 (W.D. Pa. Mar. 20, 2018) (“The ALJ’s reliance on
this [vocational expert testimonial] evidence was reasonable, especially in light of the fact that
the DOT provides the maximum requirements for occupations as generally performed, not the
requirements for a specific job in a specific setting. A VE can provide more specific information
about a specific job, which is precisely what happened here.”).
Moreover, the Court rejects Plaintiff’s assertion that the vocational expert’s testimony
regarding the types of chairs used in the three representative occupations reflects the expert’s
lack of familiarity with these occupations and undermines the finding that the vocational expert
12
properly relied on his own experience. Plaintiff’s Moving Brief, ECF No. 24, pp. 15–16. The
Court agrees with the Commissioner that the vocational expert’s inability to describe the precise
chair used by every employer at each job site does not undermine the vocational expert’s
testimony, as Plaintiff would have this Court find. Defendant’s Brief Pursuant to Local Civil
Rule 9.1, ECF No. 25, pp. 7–8. Rather, the vocational expert’s testimony reasonably reflects that
the conditions and equipment provided at a particular work site will vary with each employer and
that this variation prevented the vocational expert from providing a more definitive response
about the particular type of furniture used for each job identified by him. Id.
As noted, the ALJ found that Plaintiff would need “the option to sit and stand during the
workday for brief periods of a few minutes every half hour or so.” R. 25 Plaintiff complains that
this finding failed to clearly define the parameters of the sit/stand option, and that the ALJ
thereby failed to clarify the frequency and length of time for this option in contravention of SSR
96-9p. Plaintiff’s Moving Brief, ECF No. 24, pp. 19–23. This Court disagrees. The plain
meaning of the phrase “a few minutes every half hour or so” is, in the view of this Court,
sufficiently precise to permit the vocational expert to offer his expert opinion without further
clarification. Cf. Robinson v. Astrue, No. CIV.A. 07-1825, 2008 WL 5046337, at *6 (D.N.J.
Nov. 21, 2008) (deferring to the “plain meaning” of a doctor’s use of the phrase “at this time”
and not construing it to mean the entire treatment period).
Finally, this Court notes that Plaintiff’s counsel did not object at the hearing to either the
vocational expert’s qualifications or to his testimony regarding the required sit/stand option and
use of a cane. See generally R. 131–140; cf. Brown v. Comm’r of Soc. Sec., No. CV 19-2110,
2020 WL 1244186, at *5 (E.D. Pa. Mar. 16, 2020) (“Brown’s counsel did not object to either the
VE’s qualifications or to her testimony in this respect. . . . Therefore, the ALJ did not err in
13
relying on the VE’s testimony.”) (citations omitted). For all these reasons, the ALJ reasonably
relied on the vocational expert’s testimony when finding at step five that there were jobs that
exist in significant numbers in the national economy that Plaintiff could perform.
B.
Treating Physicians
Plaintiff next contends that the ALJ erred in discounting the opinions of his treating
physicians, including his primary care physicians Gregory J. Salko, M.D. and Anthony Frisoli,
M.D., arguing that remand is required because the ALJ impermissibly crafted the RFC without
any supporting treating opinions. Plaintiff’s Moving Brief, ECF No. 24, pp. 24–34. Plaintiff’s
argument is not well taken.
“‘A cardinal principle guiding disability eligibility determinations is that the ALJ accord
treating physicians’ reports great weight, especially when their opinions reflect expert judgment
based on a continuing observation of the patient’s condition over a prolonged period of time.’”
Nazario v. Comm’r Soc. Sec., 794 F. App’x 204, 209 (3d Cir. 2019) (quoting Morales v. Apfel,
225 F.3d 310, 317 (3d Cir. 2000)); see also Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352,
355 (3d Cir. 2008) (stating that an ALJ should give treating physicians’ opinions “great weight”)
(citations omitted); Fargnoli, 247 F.3d at 43 (stating that a treating physician’s opinions “are
entitled to substantial and at times even controlling weight”) (citations omitted). However, “[a]
treating source’s opinion is not entitled to controlling weight if it is ‘inconsistent with the other
substantial evidence in [the] case record.’” Hubert v. Comm’r Soc. Sec., 746 F. App’x 151, 153
(3d Cir. 2018) (quoting 20 C.F.R. § 404.1527(c)(2)); see also Brunson v. Comm’r of Soc. Sec.,
704 F. App’x 56, 59–60 (3d Cir. 2017) (“[A]n ALJ may reject the opinion of a treating physician
when it is unsupported and inconsistent with the other evidence in the record.”). “In choosing to
reject the treating physician’s assessment, an ALJ may not make speculative inferences from
14
medical reports and may reject a treating physician’s opinion outright only on the basis of
contradictory medical evidence and not due to his or her own credibility judgments, speculation
or lay opinion.” Morales, 225 F.3d at 317 (internal quotation marks and citations omitted).
In deciding what weight to accord the opinion of a treating physician, an ALJ must
consider the following factors: (1) the length of the treatment relationship and frequency of
examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the
opinion; (4) the consistency of the opinion with the record as a whole; (5) the treating source’s
specialization; and (6) any other relevant factors. 20 C.F.R. § 404.1527(c)(1)–(6); see also SSR
96-2p. 4 Accordingly, “the ALJ still may choose whom to credit but ‘cannot reject evidence for
no reason or the wrong reason.’” Sutherland v. Comm’r Soc. Sec., 785 F. App’x 921, 928 (3d
Cir. 2019) (quoting Morales, 225 F.3d at 317); see also Nazario, 794 F. App’x at 209–10 (“We
have also held that although the government ‘may properly accept some parts of the medical
evidence and reject other parts,’ the government must ‘provide some explanation for a rejection
of probative evidence which would suggest a contrary disposition.’”) (quoting Adorno v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994)); Morales, 225 F.3d at 317 (“Where . . . the opinion of a
treating physician conflicts with that of a non-treating, non-examining physician, the ALJ may
choose whom to credit[.]”); Cotter, 642 F.2d at 706–07 (“Since it is apparent that the ALJ cannot
reject evidence for no reason or for the wrong reason, . . . an explanation from the ALJ of the
reason why probative evidence has been rejected is required so that a reviewing court can
determine whether the reasons for rejection were improper.”) (internal citation omitted). Finally,
The Social Security Administration has amended the regulations addressing the evaluation of
medical evidence, see, e.g., 20 C.F.R. § 404.1527 (providing that the rules in this section apply
only to claims filed before March 27, 2017), and SSR 96-2p was rescinded. Plaintiff filed his
claim on November 5, 2014.
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4
“‘[t]he law is clear . . . that the opinion of a treating physician does not bind the ALJ on the issue
of functional capacity[.]’” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011)
(quoting Brown v. Astrue, 649 F.3d 193, 197 n. 2 (3d Cir. 2011)).
Here, the ALJ specifically considered the opinions of Dr. Salko and Dr. Frisoli, but
assigned these opinions, which were issued before and after the relevant period respectively,
little weight:
As for the opinion evidence, the record contains medical source statements before
and after the relevant period. Dr. Salko, the claimant’s primary care doctor,
completed medical source statements on January 19, 2012 and February 2, 2012
that limited the claimant to less than full time work at an extremely reduced range
of sedentary exertion (Exhibit B1F). These assessments include limitations of no
lifting of any weight or less than ten only on occasion, zero minutes of walking,
two minutes of standing and ten minutes of sitting in an eight-hour workday and
absolutely no use of the hands and feet. Initially, the undersigned notes that the
weight of these opinions on their face is reduced because the extreme level of
limitation opined by Dr. Salko is more consistent with an individual that is unable
to live without skilled care, when in fact during this time, the claimant stated he
was living with his son and girlfriend, who was ill and he aided in her care. The
claimant also testified to being able to mow a small lawn during this time with
breaks. Further, this opinion, although from a treating source, is inconsistent with
other substantial evidence of record, including the MRI findings showing no nerve
compression and the clinical examination findings of an orthopedic doctor, who
found negative straight leg raise testing, normal and equal deep tendon reflexes in
the lower extremities, full motor strength bilaterally and intact motor and sensory
findings (Exhibit B2F). As such, it appears that the level of limitation in these
opinions is largely influenced by the claimant’s subjective reports rather than by
the objective findings.
Dr. Frisoli completed a physical residual functional capacity on March 13, 2017
and indicated the claimant could only sit for five minutes at a time and stand for
five minutes at a time, sit for less than two hours in an eight-hour workday and
stand/walk for less than two hours in an eight-hour workday. Dr. Frisoli also opined
the claimant could not lift any weight whatsoever. The assessment of Dr. Frisoli
indicates the claimant could not sustain full time work at a significantly reduced
sedentary level (Exhibit B11F). This treating source opinion is also given little
weight as it relates to the relevant period. Initially, this opinion is approximately
four years after the relevant period and from a primary doctor who the claimant did
not start treating with until October 2016. In addition, the opinion is not consistent
with the clinical findings in Dr. Frisoli’s own treatment records. In this regard,
physical examination findings from Dr. Frisoli’s records from November 14, 2016
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indicate that at his annual physical examination, the claimant had normal range of
motion in the bilateral shoulders, hips and knees, normal strength and reflexes,
normal gait and no sensory deficits (Exhibit B10F, Pg. 29). In sum, there is no
objective evidence in this opinion to relate limitations to the relevant period.
R. 30. The Court finds no error with the ALJ’s decision to assign little weight to these opinions.
See 20 C.F.R. § 404.1527(c)(2), (3), (4), (6); see Cunningham v. Comm’r of Soc. Sec., 507 F.
App’x 111, 118 (3d Cir. 2012) (“[I]t is appropriate for an ALJ to consider the number and type
of activities in which a claimant engages when assessing his or her residual functional capacity. .
. and was permitted to consider them to evaluate the credibility of [the claimant’s] subjective
complaints of pain and other symptoms.”) (citations omitted); Smith v. Astrue, 359 F. App’x 313,
316 (3d Cir. 2009) (concluding that, where the treating source’s “medical opinion is contradicted
by several pieces of evidence in the record and also contains internal inconsistencies, it is not
entitled to the level of deference otherwise accorded to a treating physician’s opinion”);
Wimberly v. Barnhart, 128 F. App’x 861, 863 (3d Cir. 2005) (holding that the ALJ did not err by
refusing to assign controlling weight to a treating physician’s opinion that “was itself internally
inconsistent”); O’Neill v. Comm’r of Soc. Sec., No. CV 18-0698, 2019 WL 413539, at *7 (D.N.J.
Jan. 31, 2019) (“The ALJ here reasonably discounted the opinion at issue upon a reasonable
reading of seemingly contradictory treatment notes.”). Although Plaintiff complains that the ALJ
improperly discounted Dr. Salko’s opinion as “too extreme” and Dr. Frisoli’s opinion because it
was authored after the date on which Plaintiff was last insured for benefits, Plaintiff’s Moving
Brief, ECF No. 24, p. 26, the Court concludes that the ALJ’s evaluation of these opinions
conformed to governing standards and enjoys substantial support in the record.
Plaintiff complains that the ALJ improperly rejected opinions of disability expressed by
Plaintiff’s “treating physicians at Whites Crossing Medical group and treating physicians [from]
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Scranton Orthopedic Specialists[.]” Plaintiff’s Moving Brief, ECF No. 24, pp. 26–27. The ALJ
considered these statements, but assigned them little weight, reasoning as follows:
The record also contains general statements in the treatment records indicating the
claimant is “disabled”, “unable to perform any substantial work” and/or is “unable
to work or engage in productive work” (Exhibits B1F [R. 273–337, reflecting
records from Whites Crossing Medical Group, including Dr. Salko], B2F [R. 338
– 40, reflecting records from Scranton Orthopaedic Specialists, P.C., including
treating physician Alan P. Gillick, M.D.], and B5F [R. 347–53, reflecting records
from Scranton Orthopaedic Specialists, P.C., including Dr. Gillick]). These
statements are given little weight because they are not consistent with the clinical
findings on physical examination, when even provided, from the medical providers
making these statements with detailed findings within normal limits during the
relevant period discussed in detail above. In addition, these opinions are not
consistent with the diagnostic evidence or the treatment history and they are not
explained in any detail. Further, these statements are from individuals not trained
in evaluating work ability based on a specific functional assessment and opinions
regarding the ultimate issue of disability are reserved to the Commissioner.
R. 29–30 (emphasis added). To the extent that these opinions are mere conclusory opinions of
disability, the ALJ properly discounted the opinions because they relate to the ultimate issue
reserved exclusively to the Commissioner. See Louis v. Comm’r Soc. Sec., 808 F. App’x 114,
118 (3d Cir. 2020) (“Whether or not Louis can perform occupational duties is a legal
determination reserved for the Commissioner.”) (citing 20 C.F.R. § 404.1527(d)); Zonak v.
Comm’r of Soc. Sec., 290 F. App’x 493, 497 (3d Cir. 2008) (“[T]he ALJ was not obligated to
give significant weight to Dr. Kumar’s opinion as to Zonak’s ability to work because the opinion
related to the ultimate issue of disability—an issue reserved exclusively to the Commissioner.”);
Dixon v. Comm’r of Soc. Sec., 183 F. App’x 248, 252 (3d Cir. 2006) (“The treating
professionals’ opinions stated that Dixon was disabled and unable to do the specific jobs
identified by the vocational expert. Because the opinions reflected the treating professionals’
opinions on disability, they were properly afforded no special significance.”) (citing 20 C.F.R. §
404.1527(e)(1) & (3)); Dennis-Orshak v. Berryhill, No. 3:18-CV-15987, 2020 WL 4364330, at
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*5 (D.N.J. July 30, 2020) (“First, the ALJ properly gave no weight to Dr. Cohen’s opinion that
Dennis-Orshak ‘could never return to full time work’ because that is a determination reserved to
the Commissioner.”) (citations omitted). The ALJ’s finding in this regard is sufficient to permit
meaningful review and persuades this Court that substantial evidence supports the ALJ’s
evaluation of these conclusory opinions of disability. See id.
Plaintiff also contends that the ALJ improperly rejected these opinions on the basis that
they were “from individuals not trained in evaluating work ability based on a specific functional
assessment[.]” Plaintiff’s Moving Brief, ECF No. 24, p. 27 (citing R. 30) (internal quotation
marks omitted). Plaintiff’s argument is not well taken. Reading the ALJ’s opinion as a whole, see
Jones, 364 F.3d at 505, the ALJ was specifically referring to only the physicians’ conclusory
opinions of disability when he stated they were not trained in evaluating work ability based on a
specific functional assessment. R. 30. Notably, the ALJ evaluated Dr. Salko’s treating source
opinions earlier in the decision, R. 29, and that evaluation is supported by substantial evidence
for the reasons already explained. In any event, the ALJ’s statement in this regard amounts to, at
most, harmless error because the ALJ’s alternative bases for rejecting these conclusory opinions
of disability are sufficient. See Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009) (“[T]he burden
of showing that an error is harmful normally falls upon the party attacking the agency’s
determination. . . . [T]he party seeking reversal normally must explain why the erroneous ruling
caused harm.”); Louis, 808 F. App’x at 118; cf. Rutherford, 399 F.3d at 553 (finding that “a
remand is not required here because it would not affect the outcome of the case”).
Finally, Plaintiff argues that the ALJ’s rejection of all these treating opinions requires
remand because the ALJ is left with no medical opinion—only his lay opinion—to support the
RFC determination. Plaintiff’s Moving Brief, ECF No. 24, pp. 27–34 (citing, inter alia, “Here,
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the undersigned made an independent assessment of the claimant’s residual functional capacity
based on all of the medical and other evidence of record.” R. 30). Plaintiff’s argument is not well
taken. It is the ALJ—not treating or examining physicians—who makes the ultimate disability
and RFC determinations. 20 C.F.R. §§ 404.1527(e), 404.1546(c); see also Chandler, 667 F.3d at
361 (“The ALJ—not treating or examining physicians or State agency consultants—must make
the ultimate disability and RFC determinations.”) (citations omitted). Moreover, “[t]here is no
legal requirement that a physician have made the particular findings that an ALJ adopts in the
course of determining an RFC.” Titterington v. Barnhart, 174 Fed. App’x 6, 11 (3d Cir. 2006);
see also Chandler, 667 F.3d at 362 (stating that an ALJ “is not precluded from reaching RFC
determinations without outside medical expert review of each fact incorporated into the
decision”); cf. Glass v. Comm’r of Soc. Sec., No. CV 18-15279, 2019 WL 5617508, at *8 (D.N.J.
Oct. 31, 2019) (“[T]he United States Court of Appeals for the Third Circuit does not require an
ALJ to perform a ‘function-by-function’ analysis at step four, so long as the ALJ’s RFC
determination is supported by substantial evidence in the record.”) (collecting cases). In any
event, the ALJ did not simply rely on his lay opinion in making the RFC determination in this
case; instead, the ALJ detailed years of objective medical evidence and hearing testimony when
determining Plaintiff’s RFC, including, inter alia, 2012 MRIs of the thoracic and lumbar spine
that reveal only mild to moderate findings with no evidence of compression of nerve root or of
the spinal canal; conservative treatment; stable symptomology; negative straight leg-raise testing;
normal and equal deep tendon reflexes in the lower extremities; full motor strength bilaterally
and intact motor and sensory findings; normal motor and sensory findings; Plaintiff’s daily
activities, which included cutting a small lawn of grass with breaks, chores around the house in
small increments, driving on occasion, aiding in the care of his sick live-in girlfriend; and no
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evidence showing significant worsening of symptoms until 2015, which was years after the date
on which he was last insured, with nothing in the evidence to relate this worsening to the relevant
period in 2013. R. 26–29; see also R. 33 (reflecting list of exhibits considered by ALJ, including
the opinion of the initial reviewing state agency physician), 148–49 (reflecting an opinion that
Plaintiff was capable of light exertion and was not disabled).
In short, the Court concludes that the ALJ did not err when considering the treating
opinions and that the RFC determination is consistent with the record evidence and enjoys
substantial support in the record.
V.
CONCLUSION
For these reasons, the Court AFFIRMS the Commissioner’s decision.
The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
IT IS SO ORDERED.
Date: June 9, 2021
s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE
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