BORCHERS v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CRYSTAL BORCHERS,

1:19-cv-13670-NLH

Plaintiff,

OPINION

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

APPEARANCES:

ELLEN LUBENSKY CASAGRAND

LEGAL SERVICES OF NEW JERSEY

100 METROPLEX DR.

PO BOX 1357

EDISON, NJ 08818

On behalf of Plaintiff

KRISTINA CAROL EVANS COLE

SOCIAL SECURITY ADMINISTRATION

300 SPRING GARDEN STREET

PHILADELPHIA, PA 19123

On behalf of Defendant

HILLMAN, District Judge

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 Plaintiff’s application for Disability

Insurance Benefits (“DIB”)1 and Supplemental Security Income

1 DIB is a program under the Social Security Act to provide

disability benefits when a claimant with a sufficient number of

quarters of insured employment has suffered such a mental or

(“SSI”)2 under Title II and Title XVI of the Social Security

Act.3 42 U.S.C. § 401, et seq. The issue before the Court is

whether the Administrative Law Judge (“ALJ”) erred in finding

that there was “substantial evidence” that Plaintiff was not

disabled as of January 1, 2008. For the reasons stated below,

this Court will affirm that decision.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, Crystal Borchers, applied for DIB and SSI on

October 6, 2014, alleging disability as of January 1, 2008.4

physical impairment that the claimant cannot perform substantial

gainful employment for at least twelve months. 42 U.S.C. § 423

et seq.

2 Supplemental Security Income is a program under the Social

Security Act that provides supplemental security income to

individuals who have attained age 65, or are blind or disabled.

42 U.S.C. § 1381 et seq.

3 The standard for determining whether a claimant is disabled is

the same for both DIB and SSI. See Rutherford v. Barnhart, 399

F.3d 546, 551 n.1 (3d Cir. 2005) (citation omitted).

DIB regulations are found at 20 C.F.R. §§ 404.1500-404.1599, and

the parallel SSI regulations are found at 20 C.F.R. §§ 416.900-

416.999, which correspond to the last two digits of the DIB

cites (e.g., 20 C.F.R. § 404.1545 corresponds with 20 C.F.R. §

416.945). The Court will provide citations only to the DIB

regulations. See Carmon v. Barnhart, 81 F. App’x 410, 411 n.1

(3d Cir. 2003) (explaining that because “[t]he law and

regulations governing the determination of disability are the

same for both disability insurance benefits and [supplemental

security income],” “[w]e provide citations only to the

regulations respecting disability insurance benefits”).

4 Even though Plaintiff contends that her onset date of

2

Plaintiff, who was 38 years old at the time of her alleged

disability onset date,5 claims that she can no longer work as a

package handler because of her impairments of bipolar disorder,

degenerative disc disease of the thoracic spine, degenerative

disc disease of the lumbar spine, and obesity.

After Plaintiff’s claim was denied initially and upon

reconsideration, Plaintiff requested a hearing before an ALJ,

which was held on December 14, 2017. On February 9, 2018, the

ALJ issued an unfavorable decision. Plaintiff’s Request for

Review of Hearing Decision was denied by the Appeals Council on

March 11, 2019, making the ALJ’s decision final. Plaintiff

brings this civil action for review of the Commissioner’s

decision.

disability is January 1, 2008, the relevant period for

Plaintiff’s SSI claim begins with her October 6, 2014

application date, through the date of the ALJ’s decision on

February 9, 2018. See 20 C.F.R. § 416.202 (claimant is not

eligible for SSI until, among other factors, the date on which

he or she files an application for SSI benefits); 20 C.F.R. §

416.501 (claimant may not be paid for SSI for any time period

that predates the first month he or she satisfies the

eligibility requirements, which cannot predate the date on which

an application was filed). This difference between eligibility

for SSI and DIB is not material to the Court’s analysis of

Plaintiff’s appeal.

5 Under the regulations, Plaintiff was defined as a “younger

individual” (age 18-49). 20 C.F.R. § 404.1563.

3

II. DISCUSSION

A. Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial

review of the Commissioner’s decision to deny a complainant’s

application for social security benefits. Ventura v. Shalala,

55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold

the Commissioner’s factual decisions where they are supported by

“substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3);

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v.

Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v. Sullivan,

970 F.2d 1178, 1182 (3d Cir. 1992). Substantial evidence means

more than “a mere scintilla.” Richardson v. Perales, 402 U.S.

389, 401 (1971)(quoting Consolidated Edison Co. V. NLRB, 305

U.S. 197, 229 (1938)). It means “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Id. The inquiry is not whether the reviewing

court would have made the same determination, but whether the

Commissioner’s conclusion was reasonable. See Brown v. Bowen,

845 F.2d 1211, 1213 (3d Cir. 1988).

A reviewing court has a duty to review the evidence in its

totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

1984). “[A] court must ‘take into account whatever in the

4

record fairly detracts from its weight.’” Schonewolf v.

Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks

v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th

Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.

474, 488 (1951)).

The Commissioner “must adequately explain in the record his

reasons for rejecting or discrediting competent evidence.”

Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing

Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). The Third

Circuit has held that an “ALJ must review all pertinent medical

evidence and explain his conciliations and rejections.” Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).

Similarly, an ALJ must also consider and weigh all of the non-

medical evidence before him. Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d

700, 707 (3d Cir. 1981).

The Third Circuit has held that access to the

Commissioner’s reasoning is indeed essential to a meaningful

court review:

Unless the [Commissioner] has analyzed all

evidence and has sufficiently explained the

weight he has given to obviously probative

exhibits, to say that his decision is

supported by substantial evidence approaches

an abdication of the court’s duty to

5

scrutinize the record as a whole to

determine whether the conclusions reached

are rational.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Although

an ALJ, as the fact finder, must consider and evaluate the

medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here

is no requirement that the ALJ discuss in its opinion every

tidbit of evidence included in the record,” Hur v. Barnhart, 94

F. App’x 130, 133 (3d Cir. 2004). In terms of judicial review,

a district court is not “empowered to weigh the evidence or

substitute its conclusions for those of the fact-finder.”

Williams, 970 F.2d at 1182. However, apart from the substantial

evidence inquiry, a reviewing court is entitled to satisfy

itself that the Commissioner arrived at his decision by

application of the proper legal standards. Sykes, 228 F.3d at

262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983);

Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).

B. Standard for DIB and SSI

The Social Security Act defines “disability” for purposes

of an entitlement to a period of disability and disability

insurance benefits as the inability to engage in any substantial

gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in

6

death, or which has lasted or can be expected to last for a

continuous period of not less than 12 months. See 42 U.S.C. §

1382c(a)(3)(A). Under this definition, a Plaintiff qualifies as

disabled only if his physical or mental impairments are of such

severity that he is not only unable to perform his past relevant

work, but cannot, given his age, education, and work experience,

engage in any other type of substantial gainful work which

exists in the national economy, regardless of whether such work

exists in the immediate area in which he lives, or whether a

specific job vacancy exists for him, or whether he would be

hired if he applied for work. 42 U.S.C. § 1382c(a)(3)(B)

(emphasis added).

The Commissioner has promulgated regulations6 for

determining disability that require application of a five-step

sequential analysis. See 20 C.F.R. § 404.1520. This five-step

process is summarized as follows:

1. If the claimant currently is engaged in substantial

gainful employment, he will be found “not disabled.”

2. If the claimant does not suffer from a “severe

impairment,” he will be found “not disabled.”

3. If the severe impairment meets or equals a listed

impairment in 20 C.F.R. Part 404, Subpart P, Appendix

6 The regulations were amended for various provisions effective

March 27, 2017. See 82 F.R. 5844. The parties do not argue

that any of these amendments are relevant to Plaintiff’s appeal.

7

1 and has lasted or is expected to last for a

continuous period of at least twelve months, the

claimant will be found “disabled.”

4. If the claimant can still perform work he has done in

the past (“past relevant work”) despite the severe

impairment, he will be found “not disabled.”

5. Finally, the Commissioner will consider the claimant’s

ability to perform work (“residual functional

capacity”), age, education, and past work experience

to determine whether or not he is capable of

performing other work which exists in the national

economy. If he is incapable, he will be found

“disabled.” If he is capable, he will be found “not

disabled.”

20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is

therefore dependent upon a finding that the claimant is

incapable of performing work in the national economy.

This five-step process involves a shifting burden of proof.

See Wallace v. Secretary of Health & Human Servs., 722 F.2d

1150, 1153 (3d Cir. 1983). In the first four steps of the

analysis, the burden is on the claimant to prove every element

of his claim by a preponderance of the evidence. See id. In

the final step, the Commissioner bears the burden of proving

that work is available for the Plaintiff: “Once a claimant has

proved that he is unable to perform his former job, the burden

shifts to the Commissioner to prove that there is some other

kind of substantial gainful employment he is able to perform.”

Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.

8

Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).

C. Analysis

At step one, the ALJ found that Plaintiff has not engaged

in substantial gainful activity since the alleged onset of

disability. At step two, the ALJ found Plaintiff’s impairments

of bipolar disorder, degenerative disc disease of the thoracic

spine, degenerative disc disease of the lumbar spine, and

obesity to be severe. At step three, the ALJ determined that

Plaintiff’s severe impairments, or her severe impairments in

combination with her other impairments, did not equal the

severity of one of the listed impairments. The ALJ then

determined at step four that Plaintiff’s residual functional

capacity (“RFC”)7 precluded her from performing her past work as

a package handler, but she was capable of performing light work

with certain limitations. At step five, the ALJ found that

Plaintiff was capable of performing jobs such as a bottle-line

attendant, electrical parts assembler, and a hospital parts

assembler, all of which exist in significant numbers in the

7 The RFC reflects “what [the claimant] can still do despite [his

or her] limitations,” 20 C.F.R. § 416.945(a), and the

controlling regulations are clear that the RFC finding is a

determination expressly reserved to the Commissioner and not for

a medical provider, 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2),

404.1546(c), 416.946(c).

9

national economy.

Plaintiff presents six arguments for how the ALJ erred in

her decision:

1. Did the ALJ [fail to] comply with SSR 85-15 when evaluating

Ms. Borchers' mental impairments, particularly her social

functioning limitations?

2. Did the ALJ inexplicably place greater weight on the opinions

of non-examining reviewers than on the opinion of examining

source Dr. Miller?

3. Did the ALJ err in finding Ms. Borchers capable of light

work?

4. Did the ALJ erroneously diminish the importance of Ms.

Borchers' multiple GAF scores?

5. Did the ALJ err in concluding that Ms. Borchers would be off

task only 5% of the workday?

6. Did the ALJ fail to incorporate in her determination all the

limitations supported by the record, which would have

eliminated all jobs cited by the Vocational Expert?

For the reasons expressed below, the Court answers “no” to

the questions presented by Plaintiff, and will therefore uphold

the ALJ’s decision as supported by substantial evidence.

A. The ALJ’s evaluation of Plaintiff’s mental impairments

Plaintiff argues that the ALJ erred in her evaluation of

Plaintiff’s mental impairments by not properly following SSR 85-

15, by diminishing the importance of Plaintiff’s GAF scores, and

by not providing the proper weight to the opinions of a

consultative physician who examined her. The Court does not

10

agree.

With regard to SSR 85-15, that regulation pertains to the

medical-vocational rules as a framework for evaluating solely

nonexertional impairments. Burrows v. Commissioner of Social

Sec., 2014 WL 2919469, at *5 (D.N.J. 2014). Plaintiff argues

that the ability of a claimant to respond appropriately to

supervisors and coworkers is a critical consideration under SSR

85-15 that the ALJ failed to adequately address despite numerous

examples of Plaintiff’s limitations in this area.

The GAF Scale ranges from zero to one-hundred. An

individual’s “GAF rating is within a particular decile if either

the symptom severity or the level of functioning falls within

the range.” “[I]n situations where the individual’s symptom

severity and level of functioning are discordant, the final GAF

rating always reflects the worse of the two.” “In most

instances, ratings on the GAF Scale should be for the current

period (i.e., the level of functioning at the time of the

evaluation) because ratings of current functioning will

generally reflect the need for treatment or care.” Gulin v.

Commissioner, 2014 WL 1466488, 4 n.2 (D.N.J. 2014) (citing

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 34 (4th ed. text rev. 2000) (“DSM–IV–

11

TR”)). Plaintiff argues that the ALJ failed to properly

consider four GAF scores from 2013 (GAF scores of 30 and 35) and

2015 (GAF scores of 35 and 45),8 which are supported by

persuasive rationales and are consistent with the records such

8 As noted, the GAF Scale ranges from zero to one-hundred. An

individual's “GAF rating is within a particular decile if either

the symptom severity or the level of functioning falls within

the range.”:

A GAF of 51-60 is “Moderate symptoms (e.g., flat affect and

circumstantial speech, occasional panic attacks) OR

moderate difficulty in social, occupational, or school

functioning (e.g.. few friends, conflicts with peers or co-

workers).”

A GAF of 41-50 is “Serious symptoms (e.g.. suicidal

ideation, severe obsessional rituals, frequent

shoplifting) OR any serious impairment in social,

occupational, or school functioning (e.g.,

no friends, unable to keep a job).”

A GAF of 31-40 is “Some impairment in reality testing or

communication (e.g., speech is at times illogical, obscure,

or irrelevant) OR major impairment in several areas, such

as work or school, family relations, judgment, thinking, or

mood (e.g., depressed man avoids friends, neglects family,

and is unable to work; child frequently beats up younger

children, is defiant at home, and is failing at school).”

A GAF of 21-30 is “Behavior is considerably influenced by

delusions or hallucinations OR serious impairment in

communication or judgment (e.g., sometimes incoherent, acts

grossly inappropriately, suicidal preoccupation) OR

inability to function in almost all areas (e.g., stays in

bed all day; no job, home, or friends).

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 34 (4th ed. text rev. 2000) (“DSM–IV–

TR”) p. 34.

12

that they should have been accorded significant weight.

As for the consultative examiner Dr. Miller, he, unlike

other consultative examiners who only reviewed Plaintiff’s

records, examined Plaintiff in person on two occasions - in

February 2014 and in June 2015. Plaintiff argues that the ALJ

did not adequately explain why she afforded Dr. Miller’s

opinions “little weight” while she afforded the other

consultative examiners’ opinions “some weight.”

After detailing the medical and opinion evidence, as well

as Plaintiff’s testimony, the ALJ provided a thorough summary of

the reasons to support her RFC determination that Plaintiff was

capable of performing work at the light level. This detailed

analysis shows why none of Plaintiff’s three arguments is

availing. The ALJ summarized:

•

The claimant has described daily activities that are not

limited to the extent one would expect, given her

complaints of disabling symptoms and limitations. In her

November 2014 function report, she reported cleaning

herself and her home, cooking all kinds of meals daily,

caring for a cat, using public transportation, shopping in

stores for an hour at a time, managing her own finances,

playing card games and board games, and attending church

weekly (Exhibit 3E at 1-5; Exhibit 5E at 1-5).

•

During the consultative examinations, the claimant reported

having friends, taking care of her grooming, bathing and

hygiene, doing light chores like cooking, and handling her

own finances (Exhibit 4F at 2; Exhibit 8F at 3).

13

•

During the hearing, she testified that she maintained a

driver's license and could drive and that the cooked meals,

shopped, took public transportation, cleaned, and helped

take care of her sister's pets (Testimony).

•

The claimant's treatment for her mental health impairment

was almost entirely conservative. While the claimant has

reported a history of numerous psychiatric

hospitalizations, her only documented hospitalization

occurred in October 2013 and lasted only a few days before

she was discharged in stable condition (Exhibit 9F).

•

After starting treatment at SERV in early 2015, the

claimant generally demonstrated a calm mood with stable

symptomatology (Exhibit 1OF; Exhibit 14F). During the June

2015 psychiatric consultative examination, the claimant

admitted that her [] medications were now effective in

managing her symptoms and that she was functioning better

and getting along better with other household members

(Exhibit 8F at 1, 3).

•

During the hearing, the claimant acknowledged that she had

improved significantly. She noted that she formerly saw

her psychiatric providers once a week, but was now seeing

them once every month or two. She stated that she had

worked out many of her issues and had less conflict with

her sister than she did prior to beginning therapy.

(R. at 26.)

This summary, along with the specific chronological

recitation of the medical evidence and Plaintiff’s testimony,

demonstrates that the ALJ addressed Plaintiff’s ability to

respond appropriately to others. The ALJ noted that even though

Plaintiff had a moderate limitation in interacting with others

(R. at 25), Plaintiff had the ability to attend church, have

friends, and get along with family members. The ALJ also noted

14

the consultative opinion evidence that further supported this

finding. (R. at 24.) The ALJ did not violate SSR 85-15 as

Plaintiff contends.

The ALJ also did not err in her consideration of

Plaintiff’s GAF scores. Although on four occasions Plaintiff

was assessed a GAF that showed a severe impairment at that time,

the ALJ explained the reasons why she did not credit those GAF

scores more than any other evidence. The ALJ explained,

GAF ratings are opinion evidence and need supporting

evidence to give them weight. By itself, the GAF rating

cannot be used to "raise" or "lower" someone's level of

function. A GAF rating is only a snapshot opinion about

the level of functioning. It is one opinion that we

consider with all the evidence about a person's

functioning. Unless the clinician clearly explains the

reasons behind his or her GAF rating, and the period to

which the rating applies, it does not provide a reliable

longitudinal picture of the claimant's mental functioning

for a disability analysis. Here, because the GAF rating

assessments of record are not supported by a persuasive

clinician rationale and not entirely consistent with the

treatment records, the undersigned accords them little

weight.

(R. at 25.)

Unlike a situation where an ALJ fails to consider a

claimant’s GAF scores at all, in this case the ALJ noted

Plaintiff’s GAF scores and explained how those scores impacted

the ALJ’s overall assessment of Plaintiff’s RFC. This is

consistent with the ALJ’s obligations under the regulations and

15

the law in this Circuit. See Lindemeyer v. Saul, 2020 WL

3397287, at *12 (D.N.J. 2020) (explaining that GAF scores

represent a “snapshot” of a claimant’s current functioning, and

present vague one-time assessments which do not reflect a

claimant’s overall capabilities over a significant period)

(citing Hughes v. Comm’r Soc. Sec., 643 F. App'x. 116, 119 (3d

Cir. 2016) (noting “that the latest edition of the Diagnostic

and Statistical Manual of Mental Disorders abandoned the GAF

scale as a measurement tool,” and that an ALJ should not “give

controlling weight to a GAF from a treating source unless it is

well supported and not inconsistent with other evidence.”)); see

also Sutherland v. Commissioner Social Security, 785 F. App’x

921, 928–29 (3d Cir. 2019) (where the plaintiff argued that the

ALJ failed to appropriately consider the low GAF scores during

the November 2008 hospitalization and relied on speculative

inferences in dismissing them, the court found that to the

contrary, the ALJ thoroughly considered the scores because (1)

it noted that the low GAF scores accurately reflect the time

period during and immediately after hospitalization, but do not

extend to later time periods; (2) it further dismissed GAF

scores, in general, as an unreliable indicator of a claimant’s

overall disability status and noted that the Diagnostic and

16

Statistical Manual has since ceased use of GAF scores; and (3)

it nonetheless credited the low GAF scores as reasonable for the

limited time period when the plaintiff was hospitalized and in

need of medical care. “Taken together, the ALJ supported its

decision to credit the low GAF scores for a limited time period

and dismiss the scores as indicative of Sutherland’s overall RFC

with substantial evidence.”).

With regard to the ALJ’s assessment of the consultative

evaluators’ opinions, the ALJ fulfilled her obligation to

explain what weight she afforded to a medical opinion and why

she assigned the weight as she did. See 20 C.F.R. §§

404.1527(c), 416.927(c) (“How we weigh medical opinions.

Regardless of its source, we will evaluate every medical opinion

we receive. Unless we give a treating source's medical opinion

controlling weight under paragraph (c)(2) of this section, we

consider all of the following factors in deciding the weight we

give to any medical opinion.”). The ALJ explained that Dr.

Miller found that Plaintiff required assistance with managing

funds, but this was contradicted by another consultative

examiner’s opinion that Plaintiff could manage her money, as

well as Plaintiff’s own testimony that she could handle her own

finances and shop in stores. (R. at 24.) Based on this, the

17

ALJ afforded the other doctor’s opinion more weight and less

weight to Dr. Miller’s opinions. (Id.)

Simply because Dr. Miller evaluated Plaintiff in person

does not require the ALJ to afford his opinions greater weight

than non-examining consultative examiners so long as the ALJ

explains why. The ALJ properly did so here. See 20 C.F.R. §

404.1527 (Evaluating opinion evidence for claims filed before

March 27, 2017) (“Generally, we give more weight to the medical

opinion of a source who has examined you than to the medical

opinion of a medical source who has not examined you.”); cf.

Tisoit v. Barnhart, 127 F. App’x 572, 575 (3d Cir. 2005) (citing

Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001)) (“We also

conclude that the ALJ adequately explained his assignment of

greater weight to the findings of the non-examining medical

consultant regarding Mr. Tisoit's mental capacity and that his

decision to do so is supported by the administrative record.”);

Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981) (“We are also

cognizant that when the medical testimony or conclusions are

conflicting, the ALJ is not only entitled but required to choose

between them.... [W]e need 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.”).

18

B. The ALJ’s RFC determination and step-five analysis

A claimant’s RFC reflects “what [the claimant] can still do

despite [his or her] limitations,” 20 C.F.R. § 416.945(a), and

the controlling regulations are clear that the RFC finding is a

determination expressly reserved to the Commissioner rather than

any medical source, 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2),

404.1546(c), 416.946(c).

When making the RFC determination, the ALJ is required to:

[C]consider all your symptoms, including pain, and the

extent to which your symptoms can reasonably be accepted as

consistent with the objective medical evidence and other

evidence. By objective medical evidence, we mean medical

signs and laboratory findings . . . . By other evidence,

we mean . . . statements or reports from you, your treating

or nontreating source, and others about your medical

history, diagnosis, prescribed treatment, daily activities,

efforts to work, and any other evidence showing how your

impairment(s) and any related symptoms affect your ability

to work. . . .

20 C.F.R. § 404.1529.

Additionally, the RFC assessment takes into consideration

all of a claimant’s medically determinable impairments in

combination, including those that the ALJ has found to be

severe, as well as those that are not deemed to be severe at

step two. See 20 C.F.R. § 404.1545(a)(2) (“We will consider all

of your medically determinable impairments of which we are

aware, including your medically determinable impairments that

19

are not ‘severe,’ as explained in §§ 404.1520(c), 404.1521, and

404.1523, when we assess your residual functional capacity.”).

Here, the ALJ found Plaintiff’s RFC to be as follows:

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform light work as defined in 20

CFR 404.1567(b) and 416.967(b), except that she is limited

to no more than frequently climbing ramps or stairs; no

more than occasionally climbing ladders, ropes, or

scaffolds; no more than occasionally stooping, crouching,

kneeling, or crawling; performing simple, routine tasks;

working in a low stress job (defined as having only

occasional decision-making and only occasional changes in

the work setting); no more than occasionally interacting

with supervisors, coworkers (with no tandem tasks or

teamwork, working with objects rather than people), or the

general public; and would be off-task 5% of the workday, in

addition to regularly-scheduled breaks.

(R. at 21.)

Plaintiff argues that the ALJ erred by finding she was

capable of performing light work, and as a part of that finding,

the ALJ erred by finding that Plaintiff was capable of only

being off-task 5% of the workday. For the determination that

Plaintiff’s exertional impairments of degenerative disc disease

of the thoracic spine, degenerative disc disease of the lumbar

spine, and obesity limited Plaintiff to light work, Plaintiff

argues that because two consultative examiners noted that their

examination findings corroborated Plaintiff’s subjective

complaints, and the ALJ afforded those examiners’ opinions

20

significant weight, the ALJ should have found that Plaintiff’s

exertional limitations were more severe. Plaintiff also argues

that the ALJ did not properly consider Plaintiff’s obesity.

As with the ALJ’s analysis of Plaintiff’s ability to

interact with others, Plaintiff’s GAF score, and Dr. Miller’s

opinions, the ALJ properly supported her determination that

Plaintiff was capable of light work with certain restrictions.

For her physical impairments, the ALJ noted that Plaintiff’s

treatment had been minimal and entirely conservative, with

imaging studies showing relatively mild abnormalities. (R. at

26.) The ALJ further noted that Plaintiff managed her symptoms

with medications and a brief course of physical therapy, and

Plaintiff never received any injections or surgery. (Id.) The

ALJ also noted that in September 2015 Dr. Levitsky recommended

conservative treatment of core muscle strength building, weight

loss, and naproxen. (Id.) The ALJ supported these findings

with the “credible aspects of the opinions of medical

consultants Dr. Udomsaph, Dr. Briski, Dr. Starace, and Dr.

Wielczko.” (Id.)

Plaintiff points to her subjective complaints for why she

is not capable of performing light work, and certain examiners’

notations regarding her complaints. The ALJ squarely addressed

21

Plaintiff’s testimony and found that the medical evidence and

Plaintiff’s daily activities showed a greater range of

functioning than Plaintiff’s complaints would suggest.

Plaintiff was able to clean, cook meals daily, care for her own

grooming, care for her sister’s cat, shop in stores, go to

church, use public transportation, and drive a car. (R. at 26.)

For Plaintiff’s obesity, the ALJ noted that obesity may

have an adverse impact on co-existing impairments, and that the

ALJ was required to consider a claimant’s obesity at steps two

through five. (R. at 20.) The ALJ complied with this

obligation by reciting Plaintiff’s height, weight, and BMI, and

stating that she “carefully considered the claimant's obesity in

connection with her other impairments in arriving at the

assigned residual functional capacity (SSR 02-lp).” (R. at 24.)

The ALJ’s assessment of Plaintiff’s exertional impairments,

along with her daily living activities, demonstrates that

Plaintiff’s obesity affected her ability to work only to the

extent found by the ALJ. Plaintiff does not point to any

evidence in the record that her obesity caused more restrictions

than those found by the ALJ.

Regarding the ALJ’s finding that Plaintiff would be off-

task 5% of the workday, Plaintiff argues that it is an arbitrary

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finding without support in the record. The Court disagrees.

The ALJ noted that the record evidence showed that Plaintiff had

a moderate limitation in concentrating, persisting, or

maintaining pace, and that the treating records showed that

Plaintiff often presented as distractible and sometimes

scattered and tangential. (R. at 19.) The ALJ further noted,

however, that Plaintiff was agreeable to redirection and

receptive to feedback, and her activities of daily living of

shopping, cooking, cleaning, taking public transportation,

managing her finances, playing card games and board games, and

her retained ability to drive all demonstrated concentration and

persistence, including the ability to deal with the stress

inherent in the operation of a motor vehicle. (Id.) The ALJ

also considered the VE’s testimony, who stated that a person who

was off-task 10% of the workday would preclude that person from

all work. (R. at 73.) Thus, in formulating Plaintiff’s RFC,

which as noted above is only the province of the ALJ to

determine and not any medical or other source, the ALJ properly

supported her determination that the evidence did not warrant a

10% off-task limitation, but rather a 5% off-task limitation.

Plaintiff disagrees with this finding but it is supported by

substantial evidence. See, e.g., Perkins v. Barnhart, 79 F.

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App’x 512, 514–15 (3d Cir. 2003) (“Perkins's argument here

amounts to no more than a disagreement with the ALJ's decision,

which is soundly supported by substantial evidence.”); Moody v.

Commissioner of Social Security Administration, 2016 WL 7424117,

at *8 (D.N.J. 2016) (“[M]ere disagreement with the weight the

ALJ placed on the opinion is not enough for remand.”); Grille v.

Colvin, 2016 WL 6246775, at *8 (D.N.J. 2016) (“Distilled to its

essence, Plaintiff's argument here amounts to nothing more than

a mere disagreement with the ALJ's ultimate decision, which is

insufficient to overturn that decision.”).

Finally, Plaintiff argues that the ALJ failed to

incorporate in her determination all the limitations supported

by the record, and if she had done so, it would have eliminated

all jobs cited by the Vocational Expert. Plaintiff argues that

the ALJ failed to include in the hypothetical to the VE

Plaintiff’s issues with unscheduled supervision and the

potential for Plaintiff to engage in verbal altercations with

co-workers.

Plaintiff’s argument is unavailing because to the extent

that Plaintiff had issues with supervisors and coworkers, the

ALJ accounted for those in the RFC. (R. at 21 (“[W]orking in a

low stress job (defined as having only occasional decision-

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making and only occasional changes in the work setting); no more

than occasionally interacting with supervisors, coworkers (with

no tandem tasks or teamwork, working with objects rather than

people).) The ALJ also included these limitations as reflected

in the RFC in her hypotheticals to the VE. (R. at 69, 71, 72.)

Indeed, the ALJ specifically asked the VE about a person who had

issues with supervisors and a person who would get into

altercations with co-workers. (Id.)

Moreover, an ALJ is only required to pose hypotheticals to

a VE that contain the claimant’s medically established

impairments, rather than all of the impairments a claimant

claims. See Pidgeon v. Colvin, 2016 WL 2647666, at *13 (D.N.J.

2016) (citing Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir.

2002) (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d

Cir. 1987); Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.

2005)) (“[A] hypothetical posed to a vocational expert must

reflect all of a claimant's impairments. But this do[es] not

require an ALJ to submit to the vocational expert every

impairment alleged by a claimant. Rather, in posing a

hypothetical to the VE, references to all impairments encompass

only those that are medically established. And that in turn

means that the ALJ must accurately convey to the vocational

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expert all of a claimant's credibly established limitations. As

the Third Circuit noted in Rutherford, objections to the

adequacy of hypothetical questions posed to a vocational expert

often boil down to attacks on the RFC assessment itself.

Accordingly, if the ALJ did not incorporate the limitation into

the RFC, then the ALJ did not need to incorporate the limitation

into the hypothetical posed to the VE.” (internal quotations

omitted)). Thus, the ALJ did not err in the hypotheticals

presented to the VE.

III. Conclusion

This Court may not second guess the ALJ’s conclusions, but

may only determine whether substantial evidence supports the

ALJ’s determinations. Hartzell v. Astrue, 741 F. Supp. 2d 645,

647 (D.N.J. 2010) (citing Williams v. Sullivan, 970 F.2d 1178,

1182 (3d Cir. 1992)). The Court finds that the ALJ’s

determination that Plaintiff was not totally disabled as of

January 1, 2008 is supported by substantial evidence. The

decision of the ALJ will therefore be affirmed.

An accompanying Order will be issued.

Date: July 20, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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