SOTO v. COMMISSIONER OF SOCIAL SECURITY

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ESMERALDA VALENTIN SOTO,

Plaintiff,

Civil Action No. 18-14165 (ES)

v.

OPINION

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

SALAS, DISTRICT JUDGE

Before the Court is plaintiff Esmeralda Valentin Soto’s appeal of Administrative Law

Judge Brian LeCours’s (the “ALJ”) decision denying Plaintiff’s application for supplemental

social security income (“SSI”) benefits based on her disability under Title XVI the Social Security

Act (the “Act”), 42 U.S.C. §§ 1381 et. seq. (D.E. No. 1). The Court decides this matter without

oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 9.1(f). The

Court has subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons below, the

Court AFFIRMS the Commissioner’s decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because the Court writes primarily for the benefit of the parties, only the essential facts are

recounted here. On April 2, 2014, Plaintiff filed a claim for SSI benefits alleging disability

beginning January 1, 2006, due to depression, sleep disorder, sinusitis, breathing problems,

diabetes, and arthritis. (D.E. No. 5, Administrative Record (“R.”) at 56). The claims were denied

on June 3, 2015. (Id. at 70–85). On July 17, 2015, Plaintiff filed a written request for a hearing

before an ALJ, which was held on May 30, 2017. (See id. at 35–55, 100). The ALJ issued a

decision on July 31, 2017, denying Plaintiff’s application for SSI benefits on the grounds that

Plaintiff had not been under a disability since the date her application was filed. (Id. at 18–29).

Plaintiff sought review from the Appeals Counsel. (Id. 1–3). After the Appeal Counsel denied

Plaintiff’s request for review, the ALJ’s decision became the Commissioner’s final decision.

Plaintiff filed the instant appeal on September 21, 2018. (D.E. No. 1). After numerous

extensions, Plaintiff filed a brief in support of the instant appeal on January 14, 2020 (D.E. No. 18

(“Pl. Mov. Br.”)); Defendant filed an opposition on February 28, 2020 (D.E. No. 19 (“Def. Opp.

Br.”)).

II. LEGAL STANDARD

Standard of Review

The Court applies plenary review of the ALJ’s application of the law and reviews factual

findings for “substantial evidence.” See 42 U.S.C. § 405(g); Chandler v. Comm’r of Soc. Sec., 667

F.3d 356, 359 (3d Cir. 2011). Substantial evidence is more than a “mere scintilla” of evidence and

“means such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Although substantial evidence

requires “more than a mere scintilla, it need not rise to the level of a preponderance.” McCrea v.

Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). While failure to meet the substantial

evidence standard normally warrants remand, such error is harmless where it “would have had no

effect on the ALJ’s decision.” Perkins v. Barnhart, 79 F. App’x 512, 515 (3d Cir. 2003).

The Court is bound by the ALJ’s findings of fact that are supported by substantial evidence

“even if [it] would have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358,

360 (3d Cir. 1999). “Where evidence in the record is susceptible to more than one rational

interpretation, [the Court] must accept the Commissioner’s conclusions.” Izzo v. Comm’r of Soc.

Sec., 186 F. App’x 280, 283 (3d Cir. 2006). Thus, this Court is limited in its review because it

cannot “weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).

Regarding the ALJ’s assessment of the record, the Third Circuit has stated, “Although the

ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which

he rejects and his reason(s) for discounting such evidence.” Burnett v. Comm’r Soc. Sec., 220 F.3d

112, 121 (3d Cir. 2000). The Third Circuit has noted, however, that “Burnett does not require the

ALJ to use particular language or adhere to a particular format in conducting his analysis. Rather,

the function of Burnett is to ensure that there is sufficient development of the record and

explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d

Cir. 2004).

Determining Social Security Benefits

To qualify for SSI benefits, the claimant must first establish that she is “disabled.” 42

U.S.C. § 1381. “Under the Social Security Act, a disability is established where the claimant

demonstrates that there is some medically determinable basis for an impairment that prevents [her]

from engaging in any substantial gainful activity for a statutory twelve-month period.” Fargnoli

v. Halter, 247 F.3d 34, 38–39 (3d Cir.2001) (internal citations and quotations omitted). A claimant

is disabled only if her physical or mental impairments are “of such severity that [s]he is not only

unable to do [her] previous work but cannot, considering [her] age, education, and work

experience, engage in any other kind of substantial gainful work which exists in the national

economy[.]” 42 U.S.C. § 423(d)(2)(A). A physical or mental impairment is an “impairment that

results from anatomical, physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques.” 42. U.S.C. § 423(d)(3).

The Secretary of Health and Human Services has established a five-step sequential

evaluation process to determine whether a plaintiff is disabled. See 20 C.F.R. § 416.920. If the

determination at a particular step is dispositive of whether the plaintiff is or is not disabled, the

inquiry ends. 20 C.F.R. § 416.920(a)(4). The burden rests on the plaintiff to prove steps one

through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At step five, the burden shifts

to the government. Id.

At step one, the plaintiff must demonstrate that she has not engaged in any substantial

gainful activity since the onset date of his severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(i) &

416.920(a)(4)(i). Substantial gainful activity is defined as significant physical or mental activities

that are usually done for pay or profit. 20 C.F.R. §§ 404.1572(a) & 416.972(a), (b). If an individual

engages in substantial gainful activity, she is not disabled under the regulation, regardless of the

severity of her impairment or other factors such as age, education, and work experience. 20 C.F.R.

§§ 404.1520(b) & 416.920(b). If the plaintiff demonstrates that she has not engaged in substantial

gainful activity, the analysis proceeds to step two.

At step two, the plaintiff must demonstrate that her medically determinable impairment or

the combination of her impairments is “severe.” 20 C.F.R. §§ 404.1520(a)(4)(ii) &

416.920(a)(4)(ii). A “severe” impairment significantly limits a plaintiff’s physical or mental

ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). An impairment

or combination of impairments do not satisfy this threshold if medical and other evidence only

establishes slight abnormalities which have no more than a minimal effect on an individual’s

ability to work. See Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003).

At step three, the ALJ must assess the medical evidence and determine whether the

plaintiff’s sever impairment(s) (alone or in combination) meet or equal an impairment listed in the

Social Security Regulations’ “Listings of Impairments” in 20 C.F.R. § 404, Subpart P, Appendix

1 (“Listing”). See 20 C.F.R. §§ 404.1520(a)(4)(iii) & 416.920(a)(4)(iii).

If a plaintiff is not found to be disabled at step three, the analysis continues to step four.

Before reaching step four, the ALJ must first determine a plaintiff’s residual functional capacity

(“RFC”). A plaintiff’s RFC is the most that a plaintiff can do despite her limitations; all relevant

evidence is considered. 20 C.F.R. § 416.945(a). At step four, the ALJ determines whether the

plaintiff’s RFC permits her to perform her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv) &

416.920(a)(4)(iv). If the plaintiff lacks the RFC to perform any work she had done in the past, the

analysis proceeds.

In the final step, the burden shifts to the Commissioner to show that there is a significant

amount of other work in the national economy that the plaintiff can perform based on her age,

education, work experience, and RFC. 20 C.F.R. §§ 404.1520(a)(4)(v) & 416.920(a)(4)(v).

III. DISCUSSION

The ALJ’s Decision

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity since April 2, 2014, the date Plaintiff filed her SSI benefits application. (R. at 20). At

step two, the ALJ concluded that Plaintiff had the following severe impairments: diabetes mellitus

with diabetic neuropathy, carpal tunnel syndrome, lumbar degenerative disc disease, asthma,

affective disorders, post-traumatic stress disorder (“PTSD”), learning disorder, and personality

disorder. (Id.). The ALJ concluded that Plaintiff ’s gastritis was not severe at step two as it “would

not impose more than minimal work-related limitations of functioning.” (Id.). At step three, the

ALJ determined that Plaintiff did not have an impairment or combination of impairments that met

or equaled the severity of one of the impairments listed by the regulations. (Id.).

At step four, the ALJ provided a lengthy analysis, concluding that Plaintiff had the RFC to

perform “light work” as defined in 20 C.F.R. § 416.967(b), with the following exceptions:

[S]he []can frequently balance; she can occasionally stoop, kneel,

crouch, crawl, and climb ramps and stairs but is never able to climb

ladders, ropes, and scaffolds; she must avoid concentrated exposure

to vibration; must avoid concentrated exposure to pulmonary

irritants such as fumes, odors, dust and gasses; must avoid

concentrated exposure to hazardous conditions such as unprotected

heights and dangerous machinery; the work must consist of

unskilled tasks, work requiring little or no judgment to do simple

duties that can be learned on the job in a short period of time; and

there can be occasional interaction with the general public, with co-

workers and with supervisors.

(Id. at 22). The ALJ concluded that Plaintiff’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms, but Plaintiff’s “statements concerning the

intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the

medical evidence and other evidence in the record[.]” (Id.).

Finally, at step five and based on the record and the testimony of the vocational expert, the

ALJ determined that Plaintiff was capable of making a successful adjustment to other work that

exists in the significant numbers in the national economy. (Id. at 28). Accordingly, The ALJ

found that Plaintiff was not disabled. (Id.).

Step Three

Plaintiff argues that the ALJ’s step-three analysis “cannot be deciphered, understood or

reviewed.” (See Pl. Mov. Br. at 22). With respect to Plaintiff’s physical impairments, the ALJ’s

step-three analysis reads as follows:

In making this decision, I have considered listings 1.00, 9.00, 11.00,

and 12.00 of Appendix 1, Subpart P of Regulations No.4. The

pertinent listings require specific findings, which are not present in

this particular case. The medical evidence does not document

listing-level severity, and no acceptable medical source has

mentioned findings equivalent in severity to the criteria of any listed

impairment, individually or in combination.

(R. at 21). Plaintiff contends that the ALJ’s decision: (i) failed to consider her severe impairments

in combination (Pl. Mov. Br. at 13); (ii) failed to compare Plaintiff’s asthma to any Listing,

individually or in combination with any other impairments (id. at 15); (iii) improperly considered

Listings 9.00 (endocrine disorders) in relation to Plaintiff’s diabetes and diabetic neuropathy, when

those conditions should have been compared with Listing 11.14 (peripheral neuropathy) (id. at 15–

16), and (iv) generally failed to provide sufficient analyses for this Court “to apply its judicial

review authority in order to determine whether [the statements quoted above were] based on

substantial evidence” (id. at 14).

Assuming that Plaintiff is correct and that the ALJ should have performed a better analysis

at the third step, Plaintiff fails to show how the outcome would have been different. “Ordinary

harmless error review . . . is applicable to administrative appeals.” Holloman v. Comm’r Soc. Sec.,

639 F. App’x. 810, 814 (3d Cir. 2016) (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

Where, as here, a plaintiff alleges error by the ALJ, “the burden of showing harmfulness is

normally on the party attacking the agency’s determination.” See Shinseki, 556 U.S. at 398. This

means that Plaintiff must explain how she “might have prevailed at step three if the ALJ’s analysis

have been more thorough.” Holloman, 639 F. App’x at 814. Specifically, Plaintiff must

“affirmatively point[] to specific evidence that demonstrates [s]he should succeed at step three.”

Woodson v. Comm’r Soc. Sec., 661 F. App’x 762, 766 (3d Cir. 2016). Here, Plaintiff argues that

the ALJ should have considered Listings 1.04, 3.03, and 11.14 in connection to her various

physical impairments (Pl. Mov. Br. at 14–16), but she fails to identify any evidence of record to

make some demonstration that Plaintiff’s impairments, individually or in combination, met the

requirements of the Listings.1 Thus, even the Court were to find that a portion of the ALJ’s step-

three analysis was deficient, Plaintiff nevertheless fails to meet her burden of presenting sufficient

evidence that her medical problems were of listing severity such that the outcome would have been

different if the ALJ had been more thorough. Williams v. Comm’r of Soc. Sec., 156 F. App’x 501,

505 (3d Cir. 2005). Given that the ALJ’s step-four evaluation is supported by substantial evidence,

any error at step three was harmless.

With respect to Plaintiff’s mental impairments, Plaintiff similarly argues that the ALJ’s

decision: (i) failed to combine the mental impairments (Pl. Mov. Br. at 16); (ii) failed to compare

Plaintiff’s learning disorder “with its designated listing at 12.02 for neurocognitive disorders

affecting learning and memory” (id. at 17); (iii) failed to compare Plaintiff’s PTSD with “its

designated listing at 12.15 for trauma and stressor-related disorders” (id.); and (iv) improperly

considered the opinion of Leslie Williams, Ph. D., a psychological consultant of the State agency,

and failed to consider the relevant portions of the psychological evaluations performed by J.

Theodore Brown, Jr., Ph. D. and Robert Rekker, Psy. D. (id. at 17–22). Accordingly, Plaintiff

argues that the ALJ failed to sufficiently explain his analysis to permit meaningful review (id. at

17 & 22).

Plaintiff, again, fails demonstrate that how she was harmed by the ALJ’s review at step-

three. While Plaintiff identified additional Listings, as well as portions of Dr. Brown’s and

Dr. Rekker’s psychological evaluations, which the ALJ allegedly should have considered but did

not, Plaintiff’s arguments suffer from the same deficiency noted above. Plaintiff fails to explain,

1 In a footnote, Plaintiff discusses some evidence in the record regarding her peripheral neuropathy and carpal

tunnel syndrome and argues that the ALJ failed to consider such evidence at step three. (Pl. Mov. Br. at 15–16 n. 2).

Plaintiff goes on to argue that, considering her age, illiteracy, peripheral neuropathy, and carpal tunnel syndrome, “the

combination directs a finding of disability and vocational rule 201.17 if [P]laintiff cannot perform light work but is

limited to sedentary work.” (Id.). Plaintiff’s reference to the evidence in the record thus addresses the ALJ’s RFC

analysis, not a step three review.

based on the evidence of record, how she might have satisfied the criteria in the identified Listings

and prevailed at step three. See 20 C.F.R. § 404.1525(d) (“To meet the requirement of a listing,

you must have a medically determinable impairment(s) that satisfies all of the criteria in the

listing.”); Williams, 970 F.2d at 1186 (“In order to qualify for benefits at step three of the sequential

evaluation process, a claimant must match or equal a listed impairment.”).

Moreover, the Court disagrees that the ALJ’s step-three analysis as to Plaintiff’s mental

impairments deprived the Court of meaningful review. First, the Court does not agree that when

the ALJ stated that “[b]ased upon the foregoing,” he referred only to the paragraph immediately

above, and nothing else. (See Pl. Mov. Br. at 18 (“But the ‘foregoing’ refers to the forms filled-

out by a single DDS psychologist who neither treated nor examined the plaintiff and merely

reviewed whatever psychological evidence was included in the record on the date of that review

in April, 2015[.]”)). The ALJ’s decision clearly indicated that his decision was based on the four

preceding paragraphs where he summarized and analyzed the following evidence in the record: (i)

a psychological evaluation performed by Dr. Brown conducted on September 8, 2014 (R. at 377–

381); (ii) a bio-psychological assessment conducted by the Catholic Charities on March 10, 2014

(id. at 343–59); (iii) a psychological evaluation conducted by Dr. Rekker on February 17, 2015

(id. at 468–70); (iv) treatment notes from Padmaja Annamaneni, M.D., Plaintiff’s treating

psychiatrist; and finally, (iv) the opinion of Dr. Williams dated April 20, 2015 (id. at 81–83). (Id.

at 21–22). In fact, most quotes from Dr. Rekker’s psychological evaluation, which Plaintiff argues

were not considered, were specifically discussed in the ALJ’s opinion. (Cf. Pl. Mov. Br. at 18 with

R. at 21). Based on recited evidence, the ALJ noted the inconsistencies on Plaintiff’s subjective

report of her alcohol and drug use history, as well as whether she was hospitalized for psychiatric

reasons. (R. at 21). The ALJ concluded that, while Plaintiff may not have “a conscious intention

to mislead,” such inconsistencies suggested that the information provided by Plaintiff “generally

may not be entirely reliable.” (Id.). The ALJ further considered the relevant portions of the various

physicians’ reports, including treatment notes from Plaintiff’s treating psychologist, who

consistently given Plaintiff a global assessment of functioning (“GAF”) score of 60. (Id.). The

ALJ ultimately concluded that Plaintiff’s mental impairments did not meet “the criteria of any

listed impairment, individually or in combination.” (R. 21–22). The Court thus finds that, contrary

to Plaintiff’s argument, the ALJ’s decision as a whole, reflects “sufficient development of the

record and explanation of findings” to allow meaningful review of the step three analysis. See

Burnett, 220 F.3d at 119; Jones, 364 F.3d at 505.

Steps Four

At step four, the ALJ determined that Plaintiff had the RFC to perform “light work” as

defined in 20 C.F.R. § 416.967(b), with additional limitations. (R. at 22). Plaintiff argues that

“the light work RFC [was] not based on substantial evidence” and that “the mental RFC [was]

utterly without evidentiary foundation,” because the RFC determination failed to take into account

that Plaintiff “[could not] stand, walk[,] or balance herself without a cane, ha[d] physical

limitations to both hands and both feet, and ha[d] a severely circumscribed mental capacity to

focus, concentrate, remember, learn, understand or perform the simplest calculations or mental

associations.” (Pl. Mov. Br. at 28). Plaintiff further argues that the ALJ’s decision did not address

“why/what evidence show[ed] that plaintiff perform the exertional demands of light work” and

“how long [could] plaintiff sit, stand and walk and how much [could] she lift and carry and for

how long?” (Pl. Mov. Br. at 27). The Court disagrees.

When making an RFC determination, an ALJ is required to consider all evidence before

him. Burnett, 220 F.3d at 121. However, an ALJ need not discuss in her opinion “every tidbit of

evidence included in the record,” Hur v. Barnhart, 94 Fed. App’x. 130, 133 (3d Cir. 2004), so long

as “the ALJ’s decision, read as a whole, illustrates that the ALJ considered the appropriate factors”

in reaching his conclusions, Jones, 364 F.3d at 505.

Here, with respect to Plaintiff’s physical conditions, the ALJ first addressed Plaintiff’s

subjective report of symptoms presented at the hearing, where she stated that, inter alia, she was

able to stand for about an hour and walk for about a block before she began to experience pain.

(R. at 23). Plaintiff also testified that she was unable to sit for long periods or bend over and that

she used a cane that was prescribed by her doctor a long time ago. (Id.). The ALJ then considered,

inter alia, treatment records from Solania Rios, P.A., Plaintiff’s treating physician assistant (R.

511–75); a podiatric evaluation conducted by Fuasto Ramos, D.P.M. on October 3, 2013 (368–

76); an X-ray taken on December 11, 2013 (424–27); medical records from Plaintiff’s treating

physicians from approximately December 2013 to December 2014 (390–427); a consultative

medical examination report from Fracky Merlin, M.D., dated October 15, 2014; an EMG nerve

conduction study date February 19, 2015 (id. at 48185); and finally, a consultative medical

examination report from Rashel Potashnik, M.D., (id. 471–77). Based on these clinical and

diagnostic findings, the ALJ concluded that Plaintiff “has not generally received the type of

medical treatment one would expect for a totally disabled individual.” (Id. at 25). For example,

the ALJ noted that the EMG nerve conduction study was “not suggestive of severe and disabling

symptoms.” (Id. at 24). Similarly, based on Tinel’s test conducted by Dr. Potashnik, the ALJ

concluded that Plaintiff’s allegations of bilateral carpal tunnel were not supported by the record.

(R. at 26).

In addition to the objective medical evidence, the ALJ also properly considered the medical

opinions listed above and explained the weight he accorded to each. (Id. at 26–27); see Fargnoli

v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001) (“Although the ALJ may weigh the credibility of the

evidence, he must give some indication of the evidence that he rejects and his reason(s) for

discounting that evidence.”) (citing Burnett, 220 F.3d at 121). Relevant here, the AJL gave

“greater weight to the opinion of Mohammad Abbassi, M.D.,” who specifically opined on “how

long [could] plaintiff sit, stand and walk and how much [could] she lift and carry and for how

long.” (See id. at 26; see also Pl. Mov. Br. at 26). Indeed, the ALJ determined that Dr. Abbassi

overstated Plaintiff’s abilities, and based on “the evidence received at hearing,” the ALJ found that

“slightly greater limitations” were justified. (R. at 27). Plaintiff does not argue that the ALJ gave

Dr. Abbassi’s opinion improper weight. The Court thus finds that the ALJ’s RFC determination

regarding Plaintiff’s physical impairments was supported by substantial evidence on the record as

whole.

Contrary to Plaintiff’s assertion that “the mental RFC is utterly without evidentiary

foundation,” the ALJ’s RFC determination regarding Plaintiff’s mental impairments was also

supported by substantial evidence. The ALJ accorded great weight to the “well-established history

of mental health treatment.” (R. at 25); see Morales v. Apfel, 225 F. 3d 310, 317 (3d Cir. 2000)

(“A cardinal principle guiding disability eligibility determinations is that the ALJ accord treating

physicians’ reports great weight, especially when their opinions reflect expert judgment based on

a continuing observation of the patient’s condition over a prolonged period of time.”). The ALJ

considered treatment notes from Dr. Annamaneni, Plaintiff’s treating psychiatrist, whose notes

dated as far back as April 2005 and primarily included medical records from 2014 to 2017. (R. at

25; see also id. at 428–67 & 489–509). As the ALJ correctly noted, Dr. Annamaneni “consistently

[gave] Plaintiff a GAF score of 60, indicating only moderate limitation in social functioning.” (Id.

at 25; see id. at 431 (dated April 3, 2014), 435 (dated August 30, 2013); 439 (dated November 14,

2013); 443 (dated May 6, 2014); 447 (dated September 25, 2014); 492 (dated February 26, 2015);

and 495 (dated July 10, 2015)). The ALJ also considered a bio-psychological evaluation from

March 2014 conducted by Catholic Charities and noted that this evaluation indicated that

Plaintiff’s “mental status examination was normal”; her memory was not impaired; she “was

oriented to time, place, and person,” and she “ha[d] good impulse control, judgment, insight,

intellectual capacity, and motivation.” (Id. at 25). Notably, this bio-psychological evaluation also

gave Plaintiff a GAF score of 60. (Id.). By comparison, the ALJ gave little weight to allegations

Plaintiff provided during the consultative examinations before Dr. Brown and Dr. Rekkers, where

she alleged that, for example, there were times where she did not recognize her husband. (R. at

25). Considering the remaining content in Dr. Brown’s and Dr. Rekkers’s reports, the ALJ found

that they “did not provide a detailed assessment of [Plaintiff’s] mental functioning” and gave those

reports “some weight.” (Id. at 26). Plaintiff argues that the ALJ “marginaliz[ed]” Dr. Brown’s

and Dr. Rekker’s reports, which, according to Plaintiff, included “detailed assessments.” (Pl. Mov.

Br. at 31). This argument, again, invites the Court to reweigh the evidence the ALJ specifically

considered and accorded less weight because the doctors’ opinions were based on statements

contradictory to “longitudinal medical evidence” from Plaintiff’s treating psychiatrists. The Court

cannot reweigh evidence and does not do so. See Williams, 970 F.2d at 1182; Morales, 225 F.3d

at 317. The ALJ provided a sufficient explanation, supported by the record, as to the weight he

was attributing to the opinion evidence. The Court thus finds no error in the ALJ’s RFC

determination regarding Plaintiff’s mental impairments and finds that the ALJ’s RFC

determination to be supported by substantial evidence.

Step Five

Next, Plaintiff argues that “the ALJ’s construction of hypothetical questioning to the VE

did not include all of Plaintiff’s credibly established mental limitations.” (Pl. Mov. Br. at 29–33).

At step three, the ALJ found that Plaintiff “had moderate limitation with understanding,

remembering, and applying information; moderate difficulties with interacting with others;

moderate difficulties with concentration, persistence, or maintaining pace; and mild limitations

with adapting or managing herself.” (R. at 22). It is unclear to the Court whether Plaintiff takes

issue with all, or some, of these findings. Nowhere in Plaintiff’s brief does she specify that certain

mental limitations were improperly excluded when, at step four, the ALJ found that Plaintiff was

able to perform “light work,” which required that, inter alia, “the work must consist of unskilled

tasks, work requiring little or no judgment to do simple duties that can be learned on the job in a

short period of time; and there can be occasional interaction with the general public, with co-

workers and with supervisors.” (Id. at 27). Instead, Plaintiff appears to argue that the hypothetical

questions in this case are “virtually identical” to the ones the Third Circuit rejected in Ramirez v.

Barnhart, where the court found that “a requirement that a job be limited to one or two step tasks

. . . does not adequately encompass a finding that Ramirez often has deficiencies in concentration,

persistence, or pace.” 372 F.3d 546, 554 (3d Cir. 2004) (internal quotation marks and alteration

omitted). Plaintiff also relies on Tirone v. Astrue, where the Court held that the ALJ’s hypothetical

question did not properly include the limitation that the plaintiff had at least a “moderate difficulty

in sustaining concentration, persistence and pace.” No. 08-4715, 2009, WL 2488153, at *7 (D.N.J.

Aug. 11, 2009). The Court thus assumes that the medical limitations that the ALJ allegedly failed

to include here was that Plaintiff had “moderate difficulties with concentration, persistence, or

maintaining pace.” Based on this assumption, the Court disagrees with Plaintiff.

Contrary to Plaintiff’s apparent argument, Ramirez did not establish “a categorical

prohibition against using ‘simple tasks’ limitation after an ALJ has found that a claimant ‘often’

faces difficulties in ‘concentration, persistence, or pace.” Hess v. Comm’r Soc. Sec., 931 F.3d 198,

212 (3d Cir. 2019). “[A] ‘simple tasks’ limitation is acceptable after such a finding, as long as the

ALJ offers a valid explanation for it.” Id. As discussed above, the ALJ sufficiently explained why

Plaintiff’s “moderate difficulties with concentration, persistence, or maintaining pace” were not so

significant such that she could still perform “unskilled tasks” requiring little or no judgment and

with duties that can be learned on the job in a short period of time. In addition, the ALJ also noted

that if Plaintiff were experiencing the degree of difficulty as she alleged, “one would reasonabl[y]

expect to see that reflected in the bio-psychological evaluation or the treatment notes from

Dr. Annamaneni.” (R. at 25). Yet the bio-psychological evaluation stated that Plaintiff’s “memory

was not impaired” and she had “good impulse control, judgment, insight, intellectual capacity, and

motivation.” (Id.).

Finally, Plaintiff argues that the VE’s testimony that Plaintiff could perform jobs as

“assembler, electrical accessories I” and “document preparer, microfilming” is “in stark conflict

with their description in the [Dictionary of Occupational Titles (“DOT”)].” (Pl. Mov. Br. at 33–

36). Plaintiff argues that DOT’s description of “assembler, electrical accessories I” requires

“detecting defects through testing,” which is inconsistent with the RFC determination that Plaintiff

could perform light work that, inter alia, requiring “little or no judgement” or involving “simple

duties that can be learned on the job in a short period of time.” (Id. at 34–35; R. at 27). Plaintiff

further argues that the DOT’s description of “document preparer, microfilming” is a sedentary job

with language requirement beyond Plaintiff’s level, which is inconsistent with requirements that

Plaintiff could perform light work and was illiterate. (Pl. Mov. Br. at 33–34; see R. at 27 & 50–

51).

The ALJ’s decision at step five was based on the VE’s testimony that Plaintiff could

perform three types of jobs: “production assembler,” DOT number 706.684-022; “assembler,

electrical accessories I,” DOT number 729.697-010; and “document preparer, microfilming,” DOT

number 249.587-018. (R. 28). Plaintiff mounts no challenge to the VE’s testimony regarding the

first job type, “production assembler.” As the Commissioner correctly points out, the

Commissioner need only identify one type of job existing in significant numbers in the national

economy to meet his step-five burden. 20 C.F.R. § 416.966(b) (stating “if work that you can do

does exist in the national economy, we will determine that you are not disabled”). Because

Plaintiff fails to raise any conflict between the VE’s testimony and the DOT regarding the job

“production assembler,” the ALJ’s decision is affirmed on this basis.

The Court further finds that no inconsistency exists between the VE’s testimony and the

DOT’s description regarding the job “assembler, electrical accessories I.” The DOT lists the

following qualification for this job: Strength Level: Light Work; General Educational

Development (“GED”) Level: Reasoning Development Level 2, Mathematical Development

Level 1, and Language Development Level 2; and Specific Vocational Preparation (“SVP”): Level

2.2 With respect to Plaintiff’s argument that she could only do job requiring “little or no

judgement” or involving “simple duties that can be learned on the job in a short period of time,”

the relevant qualifications are Reasoning Development and SVP. Specifically, jobs with a

Reasoning Level 2, such as “assembler, electrical accessories I” at issue, require an employee to

be able to “[a]pply commonsense understanding to carry out instructions furnished in written, oral,

or diagrammatic form [and d]eal with problems involving several concrete variables in or from

2 ASSEMBLER, ELECTRICAL ACCESSORIES I (Code: 729.687-010), Dictionary of Occupational Titles,

https://occupationalinfo.org/72/729687010.html.

standardized situations.”3 Jobs with a SVP level 2 means that a typical worker needs “[a]nything

beyond short demonstration up to and including 1 month” to “learn the techniques, acquire the

information, and develop the facility needed for average performance.” Appx. C. Where, as here,

plaintiffs were limited to simple, repetitive tasks, courts have repeated found that the plaintiffs are

at least suited for jobs that require Reasoning Level 2. Zirnsak v. Colvin, 777 F.3d 607, 618 (3d

Cir. 2014) (collecting cases). Some courts have even ruled that plaintiffs with a limitation of

“simple, routine tasks/unskilled work” could perform a level 3 reasoning job. Id. (collecting cases

and stating that “there is no bright-line rule stating whether there is a per se conflict between a job

that requires level 3 reasoning and a finding that a claimant should be limited to simple and routine

work”). Similarly, where claimants, like Plaintiff, were limited to unskilled work, the suitable jobs

are those with an SVP of 1 to 2. SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000) (“[U]nskilled

work corresponds to an SVP of 1–2”). Accordingly, the VE’s testimony and his description of the

job “assembler, electrical accessories I” is consistent with the description in the DOT and

constitutes substantial evidence on which the ALJ based his decision at step five.4

IV. CONCLUSION

For the foregoing reasons, the Court AFFIRMS the decision of the Commissioner of Social

Security. An appropriate Order accompanies this Opinion.

s/Esther Salas

3 Appendix C, Dictionary of Occupational Titles, https://occupationalinfo.org/appendxc_1html (hereinafter

“Appx. C”).

4 The Court note that the remaining job discussed by the VE, “document preparer, microfilming,” only has a

Strength Level requirement of Sedentary Work, while the hypothetical questions constructed by the ALJ required the

employee to “perform a range of light work.” (R. at 49); DOCUMENT PREPARE, MICROFILMING (Code: 249.587-018),

Dictionary of Occupational Titles, https://occupationalinfo.org/24/249587018html. However, as discussed above,

the Commissioner need only identify one type of job existing in significant numbers in the national economy to meet

his step-five burden, which he had. The Court thus does not address Plaintiff’s arguments regarding the job of

“document preparer, microfilming.”

Esther Salas, U.S.D.J.