KOON-BRANCH v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TRACEY KOON-BRANCH,

Plaintiff,

Case No. 2:17-cv-1339

v. Magistrate Judge Norah McCann King

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 Tracey Koon-Branch for

Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et

seq.1 Plaintiff appeals from the final decision of the Commissioner of Social Security denying

that application.2 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.

1 As explained below, Plaintiff seeks review of only the denial of her application for

supplemental security income. Plaintiff’s Reply Brief, ECF No. 31, p. 1.

2 Andrew Saul, the current Commissioner of Social Security, is substituted as Defendant in his

official capacity.

1

I. PROCEDURAL HISTORY

Plaintiff filed applications for disability insurance benefits and supplemental security

income on October 10, 2012, and November 16, 2012, respectively,3 alleging that she has been

disabled since May 1, 2005. R. 32, 106–07, 252–61. The applications were denied initially and

upon reconsideration. R. 108–55, 161–77. Plaintiff sought a de novo hearing before an

administrative law judge. R. 178–79.

On January 8, 2015, prior to the administrative hearing, Plaintiff amended her alleged

disability onset date to January 1, 2012. R. 225. This amended alleged onset date post-dated

Plaintiff’s date last insured for disability insurance benefits, which was March 31, 2010. R. 1, 14,

32–33, 279, 298. Administrative Law Judge Kimberly Schiro (“ALJ”) held an administrative

hearing on May 1, 2015, at which Plaintiff, who was represented by counsel, appeared and

testified, as did a vocational expert. R. 48–92. In a decision dated May 13, 2015, the ALJ, citing

Plaintiff’s amended alleged disability onset date of January 1, 2012, dismissed Plaintiff’s request

for disability insurance benefits as effectively withdrawn. R. 32–33. As to her remaining claim

for supplemental security income, the ALJ concluded that Plaintiff was not disabled within the

meaning of the Social Security Act since November 16, 2012, the date on which the application

for supplemental security income was filed. R. 32–42.

On December 7, 2016, the Appeals Council declined review on December 27, 2016. R.

14–17. However, in a letter dated March 20, 2017, the Appeals Council set aside that earlier

action to consider additional information. R. 1–6. The Appeals Council nevertheless denied

Plaintiff’s request for review, explaining as follows:

3Plaintiff filed two prior applications for disability insurance benefits and supplemental security

income; those applications were denied in 2008 and 2012. R. 109.

2

After considering the additional information, we found no reason under our rules

to review either the dismissal action or the decision of the Administrative Law

Judge. Therefore, we have denied your request for review.

This means that the Administrative Law Judge’s decision is the final decision of

the Commissioner of Social Security in your case regarding your application for

supplemental security income benefits, dated November 16, 2012.

The Administrative Law Judge dismissed part of your request for hearing with

respect to your application for a period of disability and disability insurance

benefits (Title II) regarding whether you were disabled on or before March 31,

2010, your date last insured.

Therefore, our earlier determination dated August 23, 2013 about that period stands

as the final decision of the Commissioner of Social Security.

R. 1.

Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On October

22, 2020, 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.

32.4 On October 23, 2020, the case was reassigned to the undersigned. ECF No. 33. 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

4The 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).

3

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.,

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

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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

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:

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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.

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.

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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. §

416.920(a)(4). “The claimant bears the burden of proof at steps one through four, and the

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. § 416.920(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. § 416.920(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.§

416.920(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 § 416.909. 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. § 416.920(e), (f).

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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. § 416.920(g). If the ALJ determines that the plaintiff can do 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

Plaintiff was 49 years old on the date the application for supplemental security income

was filed. R. 40. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful

activity since November 16, 2012, the application date. R. 34.

At step two, the ALJ found that Plaintiff suffered from the following severe impairments:

bipolar disorder, degenerative changes of the lumbar spine, history of brain aneurysm with

spontaneous resolution, essential hypertension, asthma, obesity, and mildly deficient intellectual

functioning. 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. 35–36.

At step four, the ALJ found that Plaintiff had the RFC to perform light exertion with

various additional limitations. R. 36–40. The ALJ also found that this RFC did not permit the

performance of Plaintiff’s past relevant work as a bartender, forklift driver, and addressing

clerk. R. 40.

At step five, the ALJ found that a significant number of jobs—i.e., approximately

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129,296 jobs as an inspector and hand packager; approximately 26, 809 jobs as a

photocopying machine operator; and approximately 70,976 jobs as a sealing and canceling

machine operator—existed in the national economy and could be performed by an individual

with Plaintiff’s vocational profile and RFC. R. 41. The ALJ therefore concluded that Plaintiff

has not been under a disability within the meaning of the Social Security Act since November

16, 2012, the date the application for supplemental security income was filed. Id.

Plaintiff disagrees with the ALJ’s findings at steps three, four, and five and apparently

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 Pursuant to

Local Rule 9.1, ECF No. 21; Plaintiff’s Reply Brief, ECF No. 31. 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. 26.

IV. DISCUSSION

A. Claim for disability insurance benefits

As previously discussed, Plaintiff’s claim for disability insurance benefits was previously

dismissed because her amended alleged disability onset date of January 1, 2012, post-dated

March 31, 2010, the date on which Plaintiff was last insured for purposes of disability insurance

benefits. R. 1, 32–33, 171–73. Plaintiff’s appeal to this Court originally included an appeal from

the denial of her claim for disability insurance benefits as well as her claim for supplemental

security income. ECF Nos. 1, 3. However, Plaintiff thereafter clarified her claims and

represented that she now intends to pursue only the claim for supplemental security income. ECF

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No. 31, p. 1. Accordingly, the Court grants Plaintiff’s request to amend, which dismisses her

claim for disability insurance benefits, id., and addresses in this decision the merits of only her

claim for supplemental security income.

B. Step Three

Plaintiff argues that the ALJ erred at step three of the sequential evaluation when she

concluded that Plaintiff’s impairments neither meet nor equal a listed impairment, including

Listing 12.02. Plaintiff’s Brief Pursuant to Local Rule 9.1, ECF No. 21, pp. 12–18; Plaintiff’s

Reply Brief, ECF No. 31, pp. 2–7. Plaintiff specifically contends that the ALJ erred in failing to

analyze the requirements of Listing 12.02, and improperly focused on Listing 12.05, and

further erred in concluding that Plaintiff did not meet or equal Listing 12.02A, 12.02B, or

12.02C. Id. Plaintiff’s arguments are not well taken.

At step three, an ALJ considers whether the combination of the claimant’s medically

determinable impairments meets or equals the severity of one of the impairments in the

Listing of Impairments. 20 C.F.R. § 416.920(a)(4)(iii). An impairment meets a listed

impairment if it satisfies “‘all of the specified medical criteria. An impairment that manifests

only some of those criteria, no matter how severely, does not qualify.’” Jones, 364 F.3d at 504

(quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)) (emphasis in original). Moreover, “[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.” Zebley, at 531 (emphasis added). “[T]he medical criteria defining

the listed impairments [are set] at a higher level of severity than the statutory standard”

because the “listings define impairments that would prevent an adult, regardless of his age,

education, or work experience, from performing any gainful activity, not just ‘substantial

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gainful activity.’” Id. at 532 (emphasis in original) (quoting 20 C.F.R. § 416.925(a)).

Plaintiff first complains that the ALJ referred to Listing 12.02 at step three of the

sequential evaluation but did not discuss the criteria of that listing, but instead improperly

considered the criteria of Listing 12.05. Plaintiff’s Brief Pursuant to Local Rule 9.1, ECF No.

21, pp. 12–18; Plaintiff’s Reply Brief, ECF No. 31, p. 2. However, as discussed in depth

below, the ALJ did specifically consider the criteria of Listing 12.02, noting that the

“paragraph B” criteria of Listings 12.02 and 12.04 correspond with the “paragraph D” criteria

of Listing 12.05. R. 35–36. The ALJ also specifically found that Plaintiff did not meet the

“paragraph C” criteria of Listing 12.02 and 12.04. R. 36. Moreover, an ALJ’s failure to

expressly refer to the criteria of Listing 12.02 is not fatal to her decision “as long as the ALJ’s

review of the record permits meaningful review of the step-three conclusions.” See Lopez v.

Comm’r of Soc. Sec., 270 F. App’x 119, 121 (3d Cir. 2008) (citations omitted); cf. Rivera v.

Comm’r of Soc. Sec., 164 F. App’x 260, 262–63 (3d Cir. 2006) (rejecting the argument that

the ALJ was required to identify which listings he used in his decision, stating that “the ALJ is

not required to use any specific format or language in his analysis, as long as he sufficiently

develops the record to permit meaningful judicial review[,]” and finding that “the ALJ did

state what listings he used for comparison” by citing to Listing 1.00, which “is not merely an

introductory treatise”); Jones, 364 F.3d at 503–05 (finding that, even though the ALJ did not

expressly refer to any specific Listing, the ALJ’s analysis satisfied step three because the

decision indicated that the ALJ considered the appropriate factors). Here, “the ALJ’s decision,

read as a whole, illustrates that the ALJ considered the appropriate factors in reaching the

conclusion that [the Claimant] did not meet the requirements for any listing, including”

Listing 12.02. See Jones, 364 F.3d at 505; see also Lopez, 270 F. App’x at 122 (finding that

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the “ALJ’s failure to discuss specific Listings is not reversible error . . . because the ALJ

analyzed all the probative evidence and explained his Decision sufficiently to permit

meaningful review”); Rivera, 164 F. App’x at 262–63. In considering whether Plaintiff meets

or medically equals any listing and when determining Plaintiff’s RFC, the ALJ engaged in a

comprehensive review of the medical evidence relevant to Listing 12.02, detailing years of

medical records and hearing testimony. R. 35–40. Although Plaintiff cites to some arguably

favorable evidence, the ALJ’s recitation of the evidence provides substantial support for her

decision as set forth in more detail below.

At the time of the ALJ’s decision on May 13, 2015,5 Listing 12.02 addressed organic

mental disorders, i.e., psychological or behavioral abnormalities associated with a dysfunction of

the brain. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.02 (2015) (explaining further that, with

such disorders, “[h]istory and physical examination or laboratory tests demonstrate the presence

of a specific organic factor judged to be etiologically related to the abnormal mental state and

loss of previously acquired functional abilities”). A claimant meets the required level of severity

for this listing when the requirements of both paragraphs A and B are satisfied, or when the

requirements of both aragraphs A and C are satisfied:

A. Demonstration of a loss of specific cognitive abilities or affective

changes and the medically documented persistence of at least one of the

following:

1. Disorientation to time and place; or

5 In her opening brief, Plaintiff argues that she meets the criteria of Listing 12.02 as it existed at

the time of the ALJ’s decision in 2015 as well as the “new” criteria amended effective January

17, 2017. Plaintiff’s Brief, ECF No. 21, pp. 12–17. However, in her reply, Plaintiff insists that

she meets the criteria in the version in effect at the time of the ALJ’s decision, implicitly

conceding that only that version applies here. Plaintiff’s Reply Brief, ECF No. 31, pp. 2–5. This

Court agrees with Plaintiff’s current position. See Revised Medical Criteria for Evaluation

Mental Disorders, 81 Fed. Reg. 66138-01, at n.1 (Sept. 26, 2016) (“We expect that Federal

courts will review our final decisions using the rules that were in effect at the time we issued the

decisions.”) (emphasis added).

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2. Memory impairment, either short-term (inability to learn new

information), intermediate, or long-term (inability to remember information

that was known sometime in the past); or

3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or

4. Change in personality; or

5. Disturbance in mood; or

6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.)

and impairment in impulse control; or

7. Loss of measured intellectual ability of at least 15 I.Q. points from

premorbid levels or overall impairment index clearly within the severely

impaired range on neuropsychological testing, e.g., the Luria–Nebraska,

Halstead–Reitan, etc.;

AND

B. Resulting in 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 duration;

OR

C. Medically documented history of a chronic organic mental disorder of at

least 2 years’ duration that has caused more than a minimal limitation of

ability to do basic work activities, with symptoms or signs currently

attenuated by medication or psychosocial support, and one of the following:

1. Repeated episodes of decompensation, each of extended duration; or

2. A residual disease process that has resulted in such marginal adjustment

that even a minimal increase in mental demands or change in the

environment would be predicted to cause the individual to decompensate;

or

3. Current history of 1 or more years’ inability to function outside a highly

supportive living arrangement, with an indication of continued need for

such an arrangement.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02 (2015).

As previously noted, at step two the ALJ found the following severe impairments: bipolar

disorder, degenerative changes of the lumbar spine, history of brain aneurysm with spontaneous

resolution, essential hypertension, asthma, obesity, and mildly deficient intellectual functioning.

R. 34. At step three, as previously noted, the ALJ specifically considered whether Plaintiff’s

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mental impairments, singly or in combination, meet or medically equal Listing 12.02, 12.04, and

12.05, and concluded they do not, reasoning as follows:

No treating or examining physician has mentioned findings equivalent in severity

to the criteria of any listed impairment, nor does the evidence show signs or findings

that are the same or equivalent to those of any listed impairment. . . .

The severity of the claimant’s mental impairments, considered singly and in

combination, do not meet or medically equal the criteria of listings 12.02, 12.04,6

and 12.05.7 In making this finding, the undersigned has considered whether the

“paragraph B” criteria (“paragraph D” criteria of listing 12.05) are satisfied. To

satisfy the “paragraph B” criteria (“paragraph D” criteria of listing 12.05), 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;

6 At the time of the ALJ’s decision, Listings 12.02 and 12.04, which addressed affective

disorders, shared the same “paragraph B” and “paragraph C” criteria. Compare id. with 20

C.F.R. Pt. 404, Subpt. P, App. 1, id. at § 12.04.

7 A claimant meets Listing 12.05, which addresses intellectual disability and which refers to

significant subaverage intellectual functioning with deficits in adaptive functioning with an onset

of the impairment before age 22, if the requirements of paragraphs A, B, C, or D are satisfied:

A. Mental incapacity evidenced by dependence upon others for personal needs

(e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such

that the use of standardized measures of intellectual functioning is precluded;

OR

B. A valid verbal, performance, or full scale IQ of 59 or less;

OR

C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or

other mental impairment imposing an additional and significant work-related

limitation of function;

OR

D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in 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 duration.

Id. at § 12.05.

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marked difficulties in maintaining concentration, 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 mild restriction. She lives with a friend

and receives some help with activities of daily living due to forgetfulness. In social

functioning, the claimant has moderate difficulties. She has related that she doesn’t

like people and has been noted to be irritable[. T]his was apparent at examinations.

With regard to concentration, persistence or pace, the claimant has moderate

difficulties. Her concentration was fair or moderately reduced upon examination.

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 (“paragraph D” criteria of

listing 12.05) are not satisfied.

The undersigned has also considered whether the “paragraph C” criteria of 12.02

and 12.04 are satisfied. In this case, the evidence fails to establish the presence of

the “paragraph C” criteria.

The limitations identified in the “paragraph B” (“paragraph D” criteria of listing

12.05) 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 the undersigned has found in the “paragraph B'” mental

function analysis.

R. 35–36 (discussing further why Plaintiff’s mental impairments do not meet the criteria for

Listing 12.05). In addition, at step four, the ALJ considered hearing testimony that, inter alia,

Plaintiff attended some college, has some emotional problems, does not get along with people

and does not socialize, plays on her laptop, prefers to do the cooking and cleaning herself if her

roommate and friend, Michael Thompson, “doesn’t do it right;” her hygiene is good, she takes

care of her personal grooming, and is able to make coffee. R. 37. The ALJ also provided a

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comprehensive review of the medical evidence relevant to Listing 12.02, detailing years of

medical records and state agency review. R. 25–29. A CT scan in 2010 revealed a small

aneurysm, but a CT scan of her head in 2011 was normal as was a neurological exam in 2014. R.

38. Plaintiff has a history of cocaine and alcohol abuse and did not follow through with medical

treatment when advised to do so. R. 37–38, 40. In 2014, she treated with Jennifer Gyi, D.O., for

complaints of back pain, but the record reflects that Dr. Gyi ultimately discharged Plaintiff from

her care when Plaintiff refused to allow a physical exam after being told that she would not be

prescribed medication, broke the contract twice, was extremely disrespectful, and walked out in

the middle of an exam. R. 38–39. Plaintiff did not seek psychiatric care and was not prescribed

psychotropic medication. R. 39. At a consultative examination with Paul Fulford, Ph.D., in

March 2013, Plaintiff had no memory or concentration problems. Id. Dr. Fulford diagnosed

bipolar disorder and gave Plaintiff a global assessment of functioning score of 65, which

indicated only mild symptomatology. Id. At a consultative examination in February 2015, Steven

Yalkowski, M.D., noted that Plaintiff was somewhat irritable, poorly motivated, and more

interested in complaining than participating in the exam. Id. Although Plaintiff achieved a full

score IQ of 66, which placed her in the mildly deficient range, Dr. Yalkowski commented that

the exam was somewhat limited by poor motivation. Id. He also speculated that Plaintiff had a

learning disorder. Id. The ALJ also considered the state agency reviewing physicians who found

that Plaintiff did not meet the criteria for paragraphs B or C of Listing 12.04 (which is the same

as those for Listing 12.02) and that she was capable of performing light work. R. 40, 134.

This thorough review by the ALJ of the evidence relevant to Listing 12.02 permits

meaningful review by this Court. See Jones, 364 F.3d at 505; cf. Klangwald v. Comm’r of Soc.

Sec., 269 F. App’x 202, 204 (3d Cir. 2008) (“After broadly concluding that [the claimant] ‘has

16

no impairment, which meets the criteria of any of the listed impairments,’ the ALJ followed this

conclusion with a searching review of the medical evidence. Under our precedents, this is

sufficient.”). This record constitutes substantial evidence supporting the ALJ’s findings at step

three that Plaintiff had only mild restrictions in activities of daily living, only moderate

difficulties in social functioning and concentration, persistence and pace, and no episodes of

decompensation for an extended duration and therefore did not meet the criteria of Listing

12.02B. Id.; see also Parks v. Comm’r of Soc. Sec., 401 F. App’x 651, 655 (3d Cir. 2010)

(agreeing with the ALJ who found that the ability to read, watch television, and play video

games “required a degree of concentration, persistence, or pace” and holding “that when all of

the testimony is considered together, substantial evidence supports the ALJ’s finding of

moderate limitations in concentration, persistence, or pace”). Similarly, substantial evidence

supports the ALJ’s finding that Plaintiff did not meet the criteria of Listing 12.02C, which

requires, inter alia, a medically documented history of a chronic organic mental disorder of at

least two years’ duration with, inter alia, symptoms or signs currently attenuated by medication

or psychosocial support, and repeated episodes of decompensation of extended duration; or a

residual disease process that has resulted in such marginal adjustment that even a minimal

increase in mental demands or change in the environment would be predicted to cause the

individual to decompensate; or a current history of one or more years’ inability to function

outside a highly supportive living arrangement, with an indication of continued need for such an

arrangement. Id.; 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02C (2015).8

8 Plaintiff contends that she meets the criteria of 12.02A and complains that the ALJ did not

address this criteria in her decision, thus requiring remand. Plaintiff’s Brief, ECF No. 21, pp. 13–

14 (providing no citations to the record); Plaintiff’s Reply Brief, ECF No. 31, pp. 2–3. However,

“the omission of the ‘paragraph A’ analysis does not render the ALJ’s decision unreviewable”

17

Although Plaintiff accuses the ALJ of cherry picking favorable evidence and cites to

other portions of the medical record that she believes support her argument that she meets or

medically equals Listing 12.02, Plaintiff’s Brief, ECF No. 21, pp. 13–17; Plaintiff’s Reply Brief,

ECF No. 31, pp. 2–6, there is no evidence of cherry picking and the Court “will uphold the

ALJ’s decision even if there is contrary evidence that would justify the opposite conclusion, as

long as the ‘substantial evidence’ standard is satisfied.” Johnson v. Comm’r of Soc. Sec., 497 F.

App’x 199, 201 (3d Cir. 2012) (citing Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986)); see

also Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (“Courts are not

permitted to reweigh the evidence or impose their own factual determinations [under the

substantial evidence standard].”); Hatton v. Comm’r of Soc. Sec. Admin., 131 F. App’x 877, 880

(3d Cir. 2005) (“When ‘presented with the not uncommon situation of conflicting medical

evidence . . . [t]he trier of fact has the duty to resolve that conflict.’”) (quoting Richardson v.

Perales, 402 U.S. 389, 399 (1971)); Davison v. Comm’r of Soc. Sec., No. CV 18-15840, 2020

WL 3638414, at *8 (D.N.J. July 6, 2020) (“The ALJ cited to multiple other reports and surveyed

a significant amount of evidence. He was not required to discuss or describe every page of the

record. He did not, as [the claimant] seems to suggest, cherry pick a handful of positive

statements out of a universe of negative statements.”); Lewis v. Comm’r of Soc. Sec., No.

15CV06275, 2017 WL 6329703, at *8 (D.N.J. Dec. 11, 2017) (“Though the Plaintiff accuses the

ALJ of cherry-picking evidence, it actually appears that the Plaintiff is the one guilty of cherry-

picking since the bulk of the medical record seems to indicate minimal issues with executive

function and mental capabilities.”). The Court therefore declines Plaintiff’s invitation to re-weigh

where “[i]t is quite plain that the ALJ’s decision rested on the absence of both ‘paragraph B” and

‘paragraph C’ criteria[.]” Holloman v. Comm’r Soc. Sec., 639 F. App’x 810, 814 (3d Cir. 2016).

18

the evidence or to impose her or this Court’s own factual determination. See Chandler, 667 F.3d

at 359; Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Circ. 2014) (stating that a reviewing court “must

not substitute [its] own judgment for that of the fact finder”).

Plaintiff also argues that the ALJ’s treatment of Dr. Yalkowski’s IQ test results at step

three warrants remand. Plaintiff’s Brief, ECF No. 21, pp. 16–17; Plaintiff’s Reply Brief, ECF No.

31, pp. 5–7. The ALJ considered these results when concluding that Plaintiff did not meet or

medically equal Listing 12.05, reasoning as follows:

Turning back to listing 12.05, the requirements in paragraph A are met when there

is mental incapacity evidenced by dependence upon others for personal needs (e.g.,

toileting, eating, dressing, or bathing) and inability to follow directions, such that

the use of standardized measures of intellectual functioning is precluded. In this

case, these requirements are not met because the claimant’s cognitive deficits were

mild. She is able to attend college and work.

As for the “paragraph B” criteria, they are not met because the claimant does not

have a valid verbal, performance, or full scale IQ of 59 or less.

Finally, the “paragraph C” criteria of listing 12.05 are not met because the claimant

does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a

physical or other mental impairment imposing an additional and significant work-

related limitation of function. The claimant’s full-scale IQ of 66 was noted to be

affected by her poor motivation and possibility of any learning disorder. She was

able to attend college and work at semiskilled jobs for years.

R. 36.

According to Plaintiff, “[t]he ALJ erred in failing to credit the test results of Dr.

Yalkowski, only discussing the findings under listing 12.05 . . . Clearly the plaintiff is not aware

that this is a 12.05 case.” Plaintiff’s Brief, ECF No. 21, p. 16. Plaintiff goes on to argue that

“[t]he ALJ erred in her duty to fully and fairly develop the record by concluding that she would

discredit the only IQ psychological evaluation in [the] record which was performed by SSA’s

own psychological evaluator[.]” Id. at 17; see also id. at 18 (“Since the ALJ chose to discredit

her own consultant’s test results, she was under a duty to either recontact treating or consulting

19

sources, or order a new IQ evaluation.”); Plaintiff’s Reply Brief, ECF No. 31, p. 6 (“As

previously argued in Plaintiff’s Brief, if the ALJ had any question about validity of

SSA’s own psychological evaluator, Dr. Yalkowski, or if there was insufficient evidence in

record, then the ALJ had affirmative duties to fully and fairly develop the record[.]”).

Plaintiff’s arguments are not well taken. As a preliminary matter, the ALJ may reject IQ

scores “where there is evidence that the claimant was malingering or deliberately attempting to

distort the results during the test administration[.]” Coleman v. Comm’r of Soc. Sec., No. CV 15-

8839, 2019 WL 1594269, at *6 (D.N.J. Apr. 15, 2019) (citations omitted). Here, the ALJ

specifically explained that she discounted the IQ scores because Dr. Yalkowski noted that

Plaintiff’s score was affected by, inter alia, her poor motivation. R. 36. Substantial evidence

supports this determination. See Coleman, 2019 WL 1594269, at *6. However, even if the ALJ

erred in doing so, Plaintiff has not explained how the ALJ’s decision to discount this IQ score in

the analysis of Listing 12.05 harms her or how crediting this score establishes that she meets the

B or C criteria of Listing 12.02 or would otherwise lead to a different result. See generally

Plaintiff’s Brief, ECF No. 21; Plaintiff’s Reply Brief, ECF No. 31. Based on this record, Plaintiff

has shown, at most, only harmless error that does not require remand. 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.”); 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, to the extent that Plaintiff complains that the ALJ had duty to develop record by

recontacting treating or consulting physicians or by ordering additional IQ testing, that complaint

is unavailing. An ALJ is required to recontact a medical source for clarification only “when they

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provide opinions on issues reserved to the Commissioner and the bases for such opinions are not

clear. . . . ” SSR 96-5p. Here, there is nothing ambiguous about Dr. Yalkowski’s note regarding

his belief that Plaintiff’s poor motivation affected her IQ test score. R. 36. Accordingly, the

Court finds no error in the ALJ’s failure to recontact Dr. Yalkowski, or any medical source, for

additional information before discounting the IQ score.

Plaintiff’s argument that the ALJ should have sought additional IQ testing is equally

unpersuasive. Even though an ALJ retains the duty to “develop a full and fair record in social

security cases,” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995), “the ALJ need not search

for all relevant evidence available ‘because such a requirement would shift the burden of proof.’”

Crocker v. Comm’r of Soc. Sec., No. CV 15-8231, 2017 WL 1181584, at *4 (D.N.J. Mar. 29,

2017) (quoting Lynn v. Comm’r of Soc. Sec., No. 12-1200, 2013 WL 3854460, at *15 (W.D. Pa.

July 24, 2013)). “Moreover, where a claimant is represented by counsel before the ALJ, an

ALJ’s ‘passivity in developing the record will only be sufficient for remand or reversal when it

has clearly prejudiced the claimant.’” Crocker, 2017 WL 1181584, at *4 (quoting Cartagena v.

Comm’r of Soc. Sec., No. 10-05712, 2012 WL 1161554, at *4 (D.N.J. Apr. 9, 2012)). Here,

Plaintiff was represented by counsel in the underlying administrative proceedings, including

during the administrative appeals process. R. 105, 312–20. Plaintiff’s counsel never asked for

another IQ test or to keep the record open to obtain additional IQ testing. See id. In addition, for

the reasons previously discussed, substantial evidence supports the ALJ’s determination that

Plaintiff did not meet the paragraph B or C criteria for Listing 12.02. R. 35–40. Under these

circumstances, the Court cannot conclude that the ALJ erred in failing to order additional IQ

testing. See Gist v. Barnhart, 67 F. App’x 78, 82 (3d Cir. 2003) (rejecting the plaintiff’s

argument that remand for, inter alia, additional intellectual function testing was required and

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clarifying that such remand is required only “where the medical evidence suggests that a finding

of medical equivalence to a listing is reasonable”); Colombin v. Colvin, No. CV 16-311, 2017

WL 272029, at *4 (W.D. Pa. Jan. 19, 2017) (“Plaintiff was represented by counsel at the hearing,

yet, during the hearing, his counsel did not ask the ALJ to order a current IQ test on Plaintiff’s

behalf or to keep the record open to secure an IQ test.”); Smith v. Colvin, No. CV 15-1426, 2016

WL 6729120, at *3 (W.D. Pa. Nov. 15, 2016) (“Yet, at no time did counsel seek to keep the

record open to secure a current valid IQ test or ask the ALJ to order one on Plaintiff’s behalf or

request any other additional evidence be obtained.”).

In short, and fairly reading the ALJ’s decision as a whole, this Court concludes that

substantial evidence supports the ALJ’s finding that Plaintiff’s mental impairments do not meet

or medically equal any listing, including Listing 12.02.

C. Subjective Complaints

Plaintiff also challenges the ALJ’s consideration of her subjective complaints, apparently

arguing that the ALJ improperly minimized Plaintiff’s impairments. Plaintiff’s Brief, ECF No.

21, pp. 18–22; Plaintiff’s Reply Brief, ECF No. 31, p. 8. This Court disagrees.

“Subjective allegations of pain or other symptoms cannot alone establish a disability.”

Miller v. Comm’r of Soc. Sec., 719 F. App’x 130, 134 (3d Cir. 2017) (citing 20 C.F.R. §

416.929(a)). Instead, objective medical evidence must corroborate a claimant’s subjective

complaints. Prokopick v. Comm’r of Soc. Sec., 272 F. App’x 196, 199 (3d Cir. 2008) (citing 20

C.F.R. § 404.1529(a)). Specifically, an ALJ must follow a two-step process in evaluating a

claimant’s subjective complaints. SSR 96-7p, 1996 WL 374186 (July 2, 1996); see also SSR 16-

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3p, 2016 WL 1119029 (March 16, 2016).9 First, the ALJ “must consider whether there is an

underlying medically determinable physical or mental impairment(s)–i.e., an impairment(s) that

can be shown by medically acceptable clinical and laboratory diagnostic techniques–that could

reasonably be expected to produce the individual's pain or other symptoms.” SSR 96-7p.

“Second, once an underlying physical or mental impairment(s) that could reasonably be expected

to produce the individual's pain or other symptoms has been shown, the adjudicator must

evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine

the extent to which the symptoms limit the individual's ability to do basic work activities.” Id.

See also Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (“[Evaluation of the intensity and

persistence of the pain or symptom and the extent to which it affects the ability to work]

obviously requires the ALJ to determine the extent to which a claimant is accurately stating the

degree of pain or the extent to which he or she is disabled by it.”) (citing 20 C.F.R. §

404.1529(c)). In conducting this evaluation, an ALJ considers objective medical evidence as well

as other evidence relevant to a claimant’s symptoms. 20 C.F.R. § 416.929(c)(3) (listing the

following factors to consider: daily activities; the location, duration, frequency, and intensity of

pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness,

and side effects of any medication you take or have taken to alleviate pain or other symptoms;

treatment, other than medication, currently received or have received for relief of pain or other

symptoms; any measures currently used or have used to relieve pain or other symptoms; and

9SSR 16-3p superseded SSR 96-7p on March 26, 2016, and eliminated the use of the term

“credibility.” SSR 16-3p. However, “while SSR 16-3P clarifies that adjudicators should not

make statements about an individual’s truthfulness, the overarching task of assessing whether an

individual’s statements are consistent with other record evidence remains the same.” Levyash v.

Colvin, No. CV 16-2189, 2018 WL 1559769, at *8 (D.N.J. Mar. 30, 2018).

23

other factors concerning your functional limitations and restrictions due to pain or other

symptoms).

Finally, “[t]he ALJ has wide discretion to weigh the claimant’s subjective complaints,

Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983), and may discount them where they are

unsupported by other relevant objective evidence.” Miller, 719 F. App’x at 134 (citing 20 C.F.R.

§ 416.929(c)); see also Izzo v. Comm’r of Soc. Sec., 186 F. App’x 280, 286 (3d Cir. 2006) (“[A]

reviewing court typically defers to an ALJ’s credibility determination so long as there is a

sufficient basis for the ALJ’s decision to discredit a witness.”).

Here, the ALJ followed this two-step evaluation process. After considering the record

evidence, including Plaintiff’s hearing testimony, the ALJ concluded that Plaintiff’s medically

determinable impairments could reasonably be expected to cause symptoms, but that Plaintiff’s

“statements concerning the intensity, persistence and limiting effects of these symptoms are not

entirely credible for the reasons explained in this decision.” R. 37. As set forth in more detail

above, the ALJ also detailed years of record evidence, R. 37–40, which she summarized as

follows:

The claimant’s presentation at all of the consultative examinations indicated poor

cooperation. Moreover, there is little ongoing regular treatment with physicians and

no evidence of psychiatric treatment or the taking of prescription mental health

medications. The most recent follow-up on the claimant’s brain aneurysm was

negative. She has no residuals from the aneurysm documented in 2010 and there is

no evidence of her having two others, as she testified. Her lumbar MRI has minimal

pathology. She failed to attend the prescribed physical therapy and broke her

narcotic medication contract and was consequently discontinued from pain

management. She has a history of cocaine abuse. The consultative examiner found

no cause for the pain she claimed she had, and her own physician observed that she

never appeared to be in distress, yet reported 10/10 pain. She refused to cooperate

with one of the examiners and never had any strength or sensation deficits. Her

limitations on movement were no more than moderate at the one examination where

she agreed to move. There is no evidence of any knee pathology and clinical

findings were completely negative. She testified that her roommate does the chores,

unless she isn’t satisfied with his job, when she does them herself. On the Function

24

Report (E file) she wrote that she did light cooking, swept, wiped counters and went

shopping once a month with her friend.

R. 40. The Court finds no error with the ALJ’s consideration of Plaintiff’s subjective complaints

in this regard.

Plaintiff, however, complains that the ALJ considered that she “did not comply with

medical treatment or keep appointments, but failed to take into consideration her documented

cognitive and memory impairments or her personality changes secondary to her head trauma and

brain aneurysm as limiting her ability to follow through with treatment or complete tasks.”

Plaintiff’s Brief, ECF No. 21, p. 22. Plaintiff’s argument is not well taken. As an initial matter,

although Plaintiff cites to “Id.” to support this contention, it is not clear to what page(s) in the

record Plaintiff intends to refer. The prior cite on an earlier page of her brief refers to R. 35,

which reflects part of the ALJ’s analysis at step three, but it is not immediately clear how R. 35

supports Plaintiff’s argument; she has not pointed to record evidence establishing personality or

cognitive impairments secondary to head trauma or a brain aneurysm. “Lacking any direction

from [the claimant] as to the specific [evidence] at issue, we will not scour the record to attempt

to discern [the claimant’s] position.” Atkins v. Comm’r Soc. Sec., No. 19-2031, 2020 WL

1970531, at *4 (3d Cir. Apr. 24, 2020); see also United States v. Claxton, 766 F.3d 280, 307 (3d

Cir. 2014) (“[T]his Court has frequently instructed parties that they bear the responsibility to

comb the record and point the Court to the facts that support their arguments.”). In any event, the

ALJ specifically considered Plaintiff’s history of headache with multiple ER visits as well as her

small aneurysm reflected in a 2010 CT scan, but went on to note a normal CT scan in 2011. R.

25

37–38. As previously discussed, the ALJ also considered Plaintiff’s cognitive impairments, but

concluded, based on the record, that these caused only mild or moderate limitations. R. 35–40.10

Accordingly, this Court concludes that the ALJ has sufficiently explained her reasoning

in assessing Plaintiff’s subjective complaints, and that her findings in this regard are supported

by substantial evidence in the record. Her evaluation of Plaintiff’s subjective complaints is

therefore entitled to this Court’s deference. See SSR 96-7p; Miller, 719 F. App’x at 134; cf.

Malloy v. Comm’r of Soc. Sec., 306 F. App’x. 761, 765 (3d Cir. 2009) (“Credibility

determinations as to a claimant’s testimony regarding pain and other subjective complaints are

for the ALJ to make.”) (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Davis

v. Comm’r Soc. Sec., 105 F. App’x 319, 322 (3d Cir. 2004) (finding that the ALJ sufficiently

evaluated the plaintiff’s testimony where “the ALJ devoted two pages to a discussion of

claimant’s subjective complaints and cited Claimant’s daily activities and objective medical

reports”).

D. Step Four

Plaintiff also argues that substantial evidence does not support the ALJ’s RFC

determination. Plaintiff’s Brief, ECF No. 21, pp. 22–25; Plaintiff’s Reply Brief, ECF No. 31, pp.

8–9. This Court disagrees.

A claimant’s RFC is the most that the claimant can do despite the claimant’s limitations.

20 C.F.R. § 416.945(a)(1). At the administrative hearing stage, an ALJ is charged with

determining the claimant’s RFC. 20 C.F.R. §§ 416.927(e), 416.946(c); see also Chandler

v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The ALJ—not treating or examining

10 To the extent that Plaintiff challenges the RFC in light of these limitations, the Court addresses

this issue next.

26

physicians or State agency consultants—must make the ultimate disability and RFC

determinations.”) (citations omitted). When determining a claimant’s RFC, an ALJ has a duty to

consider all the evidence. Plummer, 186 F.3d at 429. However, the ALJ need include only

“credibly established” limitations. Rutherford, 399 F.3d at 554; see also Zirnsak v. Colvin, 777

F.3d 607, 615 (3d Cir. 2014) (stating that the ALJ has discretion to exclude from the RFC “a

limitation [that] is supported by medical evidence, but is opposed by other evidence in the

record” but “[t]his discretion is not unfettered—the ALJ cannot reject evidence of a limitation for

an unsupported reason” and stating that “the ALJ also has the discretion to include a limitation

that is not supported by any medical evidence if the ALJ finds the impairment otherwise

credible”).

Here, the ALJ determined that Plaintiff had the RFC to perform light exertion subject to

various additional non-exertional limitations:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform simple, routine tasks at the

light level of exertion as defined in 20 CFR 416.967(b). She cannot climb ladders,

ropes or scaffolds or work around hazards, which I define as moving mechanical

parts or at unprotected heights. She cannot have concentrated exposure to

temperature extremes, wetness, humidity, fumes, odors, dusts, gases and poor

ventilation. She can occasionally climb ramps and stairs, balance, kneel, stoop,

crouch and crawl. She can have occasional contact with coworkers and supervisors,

but no direct work-related contact with the public. She can work around others, but

not on teams or in collaboration with others. She can make simple decisions and

adapt to occasional changes and essential work tasks.

R. 36. In making this determination, the ALJ detailed years of record evidence, including, inter

alia, that Plaintiff attended some college, has some emotional problems, does not get along with

people and does not socialize, plays on her laptop, prefers to do the cooking and cleaning herself

if her roommate and friend “doesn’t do it right,” maintains good hygiene, takes care of her

personal grooming, is able to make coffee, has a history of a small aneurysm in 2010 that did not

27

appear in a 2011 CT scan, has a history of cocaine and alcohol abuse and a history of not

following through with medical treatment when advised, is uncooperative in medical

examinations, failed to seek psychiatric care, has no history of prescribed psychotropic

medication, had no memory or concentration problems reflected in a March 2013 examination,

has a diagnosis of bipolar disorder with a global assessment of functioning score of 65, a full IQ

score of 66 that was affected by her poor motivation, and was found by the state agency

reviewing physicians that she was capable of performing light work. R. 37–40. The record

unquestionably contains substantial evidence to support the ALJ’s RFC determination. See

Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554; Plummer, 186 F.3d at 429.

In challenging this determination, Plaintiff simply recites medical evidence and does not

point to evidence documenting how those conditions impair her functioning or result in greater

or different restrictions than those found by the ALJ and which would lead to a different

outcome. See Plaintiff’s Brief, ECF No. 21, pp. 22–25; Plaintiff’s Reply Brief, ECF No. 31, pp.

8–9. Notably, “[a] diagnosis alone . . . does not demonstrate disability.” Foley v. Comm’r of Soc.

Sec., 349 F. App’x 805, 808 (3d Cir. 2009) (citing Petition of Sullivan, 904 F.2d 826, 845 (3d

Cir. 1990)); cf. Phillips v. Barnhart, 91 F. App’x 775, 780 (3d Cir. 2004) (“[The claimant’s]

argument incorrectly focuses on the diagnosis of an impairment rather than the functional

limitations that result from that impairment. A diagnosis of impairment, by itself, does not

establish entitlement to benefits under the Act”). Plaintiff does not identify specific functional

limitations found by any medical source that the ALJ failed to include in the RFC. Id. To the

extent that Plaintiff relies on her own subjective statements to undermine the ALJ’s RFC

determination, the ALJ discounted these statements as inconsistent with the medical evidence as

28

previously discussed. For all these reasons, this Court concludes that the RFC found by the ALJ

enjoys substantial support in the record.

E. Step Five

Finally, Plaintiff challenges the ALJ’s step five determination, arguing that the

Commissioner failed to carry his burden at that stage because the hypothetical questions posed to

the vocational expert, which included the ALJ’s RFC determination, failed to include all of

Plaintiff’s claimed limitations. Plaintiff’s Brief, ECF No. 21, pp. 25–26; Plaintiff’s Reply Brief,

ECF No. 31, p. 9. Plaintiff’s argument is not well taken.

“[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. § 416.960(b)(2). “While ‘the ALJ must accurately convey to the vocational

expert all of a claimant’s credibly established limitations,’ . . . ‘[w]e do not require an ALJ to

submit to the vocational expert every impairment alleged by a claimant.’” Smith v. Comm’r of

Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010) (quoting Rutherford, 399 F.3d at 554). “[T]o

accurately portray a claimant’s impairments, the ALJ must include all ‘credibly established

limitations’ in the hypothetical. Zirnsak, 777 F.3d at 614 (citing Rutherford, 399 F.3d at 554).

Credibly established limitations are limitations “that are medically supported and otherwise

uncontroverted in the record.” Rutherford, 399 F.3d at 554. “Limitations that are medically

supported but are also contradicted by other evidence in the record may or may not be found

credible—the ALJ can choose to credit portions of the existing evidence but cannot reject

evidence for no reason or for the wrong reason.” Id. (citations and internal quotation marks

omitted). Finally, a “vocational expert’s testimony concerning a claimant’s ability to perform

29

alternative employment may only be considered for purposes of determining disability if the

[ALJ’s hypothetical] question accurately portrays the claimant’s individual physical and mental”

limitations. Podedworny, 745 F.2d at 218.

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. 36, 81–82. The

vocational expert responded that the jobs of inspector and hand packager, photocopy machine

operator, and sealing and canceling machine operator would be appropriate for such an

individual. R. 82–83. For the reasons discussed earlier in this decision, this hypothetical

sufficiently captured Plaintiff’s credibly established limitations and therefore supported the

ALJ’s determination at step five. See Rutherford, 399 F.3d at 554; Podedworny, 745 F.2d at 218.

To the extent that Plaintiff’s criticism of the hypothetical questions is that all her alleged

impairments were not addressed, this criticism boils down to an attack on the RFC determination

itself, see Rutherford, 399 F.3d at 554 n.8, which this Court has already rejected for the reasons

previously discussed.

In short, the Court finds that the Commissioner has carried his burden at step five of the

sequential evaluation and concludes that substantial evidence supports his determination in this

regard.

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).

Date: October 28, 2020 s/Norah McCann King

NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

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