# THOMAS v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · March 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10270125

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Not for Publication

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ARTHUR THOMAS,

Plaintiff,
Civil Action No. 19-13990 (ES)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MCNULTY, DISTRICT JUDGE
Before the Court is the appeal of plaintiff Arthur Thomas from the decision
of Administrative Law Judge Peter R. Lee (“ALJ Lee”), to the extent that it denied
Plaintiff’s application for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) benefits. The upshot of the convoluted procedural history
was a determination by the Secretary that until August 2, 2015, Plaintiff was not
disabled under the Social Security Act (the “Act”). 42 U.S.C. §§ 1381 et. seq.
(D.E. No. 1, Compl.). As of August 2, 2015, however, Mr. Thomas’s age category
changed, in effect lowering the bar for a finding of disability. The Secretary ruled
that from that date forward, he was disabled. Mr. Thomas appeals from the
adverse portion of the Secretary’s decision; unless otherwise specified, the
discussion herein should be understood to relate to the denial of benefits for the
period preceding August 2, 2015.
The matter was reassigned from Judge Salas to me for purposes of this
decision. The Court exercises jurisdiction pursuant to 42 U.S.C. § 405(g) and
decides this matter without oral argument, pursuant to Federal Rule of Civil

Procedure 78(b) and Local Civil Rule 9.1(f). For the reasons set forth herein, the
decision of the Commissioner of Social Security (the “Commissioner”) is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff, Mr. Thomas, was born on August 3, 1965. (R. 50). He has
held the following past employment positions: lead driver, 2010; building
maintenance repair, 2009; detailer specialist, 2004-2005; and security, 2005.
(R. 55).
On March 26, 2012, Plaintiff filed applications for DIB and SSI benefits

beginning on July 31, 2010, based on arthritis of the knees, high blood pressure,
and a heart condition. (R. 50, 133-40, 160). The claims were denied initially and
on reconsideration. (R. 86-91, 93-95). Plaintiff subsequently filed a request for
a hearing before an ALJ (R. 99-100), which was held on November 22, 2013
before ALJ Richard West (“ALJ West”). (R. 23-48).
ALJ West issued a decision denying Plaintiff’s applications on February
19, 2014. (R. 9-22). ALJ West made several determinations in connection with
the required five-step analysis, including the following: 1) Plaintiff has not

engaged in substantial gainful activity since July 31, 2010; 2) Plaintiff’s
hypertension, obesity, osteoarthritis of his knees, status post left knee total knee
replacement, and coronary artery disease constitute severe impairments; 3)
Plaintiff’s impairments, singly or in combination, did not meet or medically equal
the severity of any impairments in Appendix 1 of the Social Security Regulations;
4) Plaintiff has the residual functional capacity (“RFC”) to perform sedentary
work including “occasionally balance, kneel and stoop,” but “cannot climb

ladders, ropes or scaffolds,” or “crouch or crawl”; 5) Plaintiff is unable to perform
any past relevant work; and that 6) there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. (R. 14-19). The
Appeals Counsel denied review on April 13, 2015. (R. 1-8).
On May 12, 2015, Plaintiff filed an appeal to the District Court, challenging
ALJ West’s step three, RFC, and step five findings. (Civil Action No. 2:15-cv-
3288); (R. 350-52). On February 18, 2016, the Honorable Jose L. Linares issued
an Opinion and Order remanding the matter to the Commissioner for further

proceedings. (Civil Action No. 2:15-cv-3288); (R. 353-67). Specifically, Judge
Linares ordered remand based on ALJ West’s analysis at steps three and five. As
to step three, he reasoned as follows:
Although the ALJ found Plaintiff’s obesity to be a severe
impairment, he did not state that he considered obesity
in his step three analysis, referring to Plaintiff’s
impairments only generally in that section.

* * * *

Because the ALJ cited to Dr. Eyassu’s opinion, which
by implication considered the impact of Plaintiff’s
obesity and SSR 02-1p, without explanation for how he
considered the ruling, the Court will remand the matter
for further consideration and/or explanation of
Plaintiff’s obesity in combination with his other
impairments.

(R. 360-63). And in connection with the step five analysis, Judge Linares relied
on Allen v. Bernhart, 417 F.3d 396, 407-08 (3d Cir. 2005):
The Allen Court made clear that “if the Secretary wishes
to rely on an SSR as a replacement for a vocational
expert, it must be crystal-clear that the SSR is probative
as to the way in which the nonexertional limitations
impact the ability to work, and thus, the occupational
base.

* * * *
. . . Although the ALJ accurately quotes the first portion
of [SSR 96-9P], he does not address the requirement to
explain the balance limitations. On remand, the ALJ
should address Plaintiff’s balance limitations consistent
with the SSR and/or obtain vocational expert
testimony.

(R. 364-66).
On September 7, 2016, a second hearing was conducted before ALJ West.
(R. 311-29). On September 21, 2016, ALJ West determined that Plaintiff was
not disabled from July 31, 2010 to August 1, 2015 and denied Plaintiff’s
application for DIB and SSI for that period. (R. 293-310).
At step one, ALJ West determined that Plaintiff had not engaged in
substantial gainful activity since July 31, 2010. (R. 299). At step two, ALJ West
concluded that Plaintiff had the following severe impairments: hypertension,
obesity, osteoarthritis of the knees, status post left knee total lee replacement,
coronary artery disease and hyperlipidemia. (Id.). At step three, ALJ West
determined that Plaintiff did not have an impairment or combination of
impairments that met or equaled the severity of one of the impairments listed in
Appendix 1 of the applicable regulations. (R. 300). ALJ West “fully considered
obesity in the context of the overall record in making this decision” pursuant to
the listings contained in sections 1.00Q, 3.00I, and 4.00F. (Id.). Applying that
analysis, ALJ West concluded as follows:
The claimant’s knee osteoarthritis and post status total
left knee replacement do not rise to the level of meeting
medical listing 1.02 given that the evidence e does not
demonstrate significant gross anatomical deformity
resulting in an inability to ambulate effectively.

The claimant’s coronary heart disease did not rise to the
level of meeting or equaling medical listing 4.04 prior to
August 24, 2000. Specifically, the record does not
support a finding of the required sign-or-symptom
limited exercise test findings; of documented impaired
myocardial function with left ventricular ejection
fraction of 30 percent or less with a physician’s
indication of marked limitation of physical activity
accompanied by a conclusion that performance of
exercise testing would present a significant risk to the
individual; or coronary artery disease with the requisite
angiographic evidence of narrowing or obstruction
resulting in marked limitation of physical activity.

(Id.).

At step four, ALJ West performed a lengthy analysis, ultimately
determining that Plaintiff had the RFC to perform “sedentary work” . . . “except
the claimant: cannot climb ladders, ropes or scaffolds; cannot crouch of crawl;
can perform other postural functions occasionally; can occasionally balance; can
occasionally stand or walk on any terrain given his ability to balance
occasionally; and must avoid concentrated exposure to extreme cold, he[at] and
humidity. (R. 299-304). ALJ West found that, “[g]iven a number of limitations,
including being limited to only occasionally walking,” since July 31, 2010,
Plaintiff has been unable to perform any past relevant work. (R. 302).
At step five, ALJ West found that Mr. Thomas did not meet the definition
of disability in the period preceding August 2, 2015, when he had not yet attained
50 years of age:
Prior to the established disability onset date, the
claimant was a younger individual age 45-49. On
August 2, 2015, the claimant’s age category changed to
an individual closely approaching advanced age (20
CFR 404.1563 and 416.963).

* * * *
Prior to August 2, 2015, transferability of job skills is
not material to the determination of disability because
using Medical Vocational Rules as a framework
supports a finding that the claimant is “not disabled”
whether or not the claimant has transferrable job skills.
Beginning on August 2, 2015, the claimant has not
been able to transfer job skills to other occupations [].

Prior to August 2, 2015, the date the claimant’s age
category changed, considering the claimant’s age,
education, work experience, and residual functional
capacity, there were jobs that existed in significant
numbers in the national economy that the claimant
could have performed [].

(R. 302-03). Accordingly, ALJ West found that Plaintiff “was not disabled prior to
August 2, 2015 but became disabled on that date and has continued to be
disabled through the date of this decision.” (R. 304).
Mr. Thomas appealed ALJ West’s second determination to the District
Court (Civil Action No 2:16-cv-9247), which resulted in a consent order to
remand, dated August 24, 2017. (R. 741-42). On remand, on August 7, 2018,
the Appeals Council issued a new decision affirming ALJ West’s determination
that Plaintiff was disabled starting as of August 2, 2015. (R. 745-46). It vacated
and remanded ALJ West’s decision “only with respect to the period prior to
August 2, 2015.” (R. 745). The Appeals Council ordered that a new hearing be
conducted before a new ALJ to specifically address the following issues:
Comply with the prior court order and give further
consideration to the claimant’s maximum residual
functional capacity and provide appropriate rationale
with specific references to the evidence of record in
support of the assessed limitations [].

If warranted by the extended record, obtain
supplemental evidence from a vocational expert to
clarify the effect of the assessed limitations on the
claimant’s occupational base [] and to determine
whether the claimant has acquired any skills that are
transferable to other occupations under the guidelines
[]. The hypothetical questions should reflect the specific
capacity/limitations established by the record as a
whole. Administrative Law Judge will ask the vocational
expert to identify examples of appropriate jobs and to
state the incidence of such jobs in the national economy
[]. Further, before relying on the vocational expert
evidence the Administrative Law Judge will identify and
resolve any conflicts between the occupational evidence
provided by the vocational expert and information in the
Dictionary of Occupational Titled (DOT) and its
companion publication, the Selected Characteristics of
Occupations [].

(R. 746).
On January 28, 2019, a third hearing was held, this time before ALJ Lee.
(R. 686-722). ALJ Lee issued a decision on February 25, 2019, finding that
Plaintiff had not been disabled from July 31, 2010 through August 1, 2015. (R.
678).
Plaintiff filed this, his current appeal, on June 19, 2019. (D.E. No. 1,
Compl.). On November 25, 2019, the administrative record was filed. (D.E. 6, R.).
After being granted several extensions, Plaintiff filed his main brief on appeal on
June 16, 2020. (D.E. No. 15 (“Pl. Mov. Br.”)). Defendant filed an opposition brief
on July 27, 2020. (D.E. No. 16 (“Def. Opp. Br.”)). The matter is fully briefed and
ripe for decision.
II. LEGAL STANDARD
Standard of Review

The Court reviews an ALJ’s application of the law de novo and all 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).
Courts are 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).
Determining Entitlement to Social Security Benefits
To qualify for benefits under the Act, the claimant must first establish that
he1 is “disabled.” 42 U.S.C. § 1381. A claimant is disabled only if his physical

or mental impairments are “of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and work experience,
engage 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 defined
by the Act as 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). Under the
Act, “a disability is established where the claimant demonstrates that there is

some medically determinable basis for an impairment that prevents [the
individual] 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).
In analyzing whether a disability exists under the Acta five-step sequential
evaluation process is followed. See 20 C.F.R. § 416.920. First, the plaintiff must
demonstrate that he 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)

1 Solely because this plaintiff happens to be male, I will not alter the regulations’
use of male pronouns to refer to a generic claimant.
& 416.972(a), (b). If an individual engages in substantial gainful activity, he is
not disabled under the regulation, regardless of the severity of his 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 he has not engaged
in substantial gainful activity, the analysis proceeds to step two.
Second, the plaintiff must demonstrate that his medically determinable
impairment or the combination of his 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
does 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).
Third, the ALJ must assess the medical evidence and determine whether
the plaintiff’s severe 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. However, before reaching step four, the ALJ must first determine a
plaintiff’s RFC. A plaintiff’s RFC is the most that a plaintiff can do despite his
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 him to perform his
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 he had done in the past, the analysis

proceeds to step five.
In the fifth and 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 his age, education, work experience, and RFC. 20
C.F.R. §§ 404.1520(a)(4)(v) & 416.920(a)(4)(v).
III. DISCUSSION
ALJ Lee’s Final Decision
At step one, ALJ Lee determined that Plaintiff had not engaged in

substantial gainful activity since July 31, 2010. (R. 673). At step two, ALJ Lee
concluded that Plaintiff had the following severe impairments: coronary artery
disease, hyperlipidemia, hypertension, osteoarthritis of the knees, status post
left knee total lee replacement, obesity, and sleep apnea. (Id.). At step three, ALJ
Lee determined that Plaintiff did not have an impairment or combination of
impairments that met or equaled the severity of one of the impairments listed in
Appendix 1 of the applicable regulations. (R. 673-74).
Specifically, ALJ Lee considered Listing 1.02, entitled joint dysfunction,

and determined that “the claimant’s impairments involving his knees do not rise
to the Listing-level.” (R. 674). ALJ Lee also considered Listing 4.04(C), for
coronary artery disease, but found that “the medical evidence does not support
the Listing criteria.” (Id.).
ALJ Lee determined that Plaintiff had the RFC to perform less than the full
range of sedentary work, adding the following limitations:
[T]he claimant can never climb ropes, ladders or
scaffolds; never be exposed to unprotected heights or
hazardous machinery; occasionally climb stairs and
ramps; never crawl; occasionally stoop and crouch;
occasionally push and pull; occasionally balance; and,
never have exposure to extremes in environmental
conditions. In addition, the claimant can sit for up to
six hours in an eight-hour work day, with the option to
stand or change position; and, can stand and/or walk
for two hours in an eight hour work day.

(R. 674). At step four, ALJ Lee found that, since July 31, 2010, Plaintiff has been
unable to perform any past relevant work, as actually or generally performed. (R.
676).
At step five, ALJ Lee determined that there was work in the national
economy that the claimant, despite his limitations, could perform:
the claimant’s ability to perform all or subsequently all
of the requirements of this level of work has been
impeded by additional limitations[, so he] asked the
vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age,
education, work experience, and residual functional
capacity.

The vocational expert testified that given all of these
factors the individual would be able to perform the
requirements of representative Light occupations such
as: Addressing Clerk (DOT 209.587-010) which is
Unskilled with a SVP 2 and of which are 8,000 jobs
available; Order Clerk (DOT 209.567.014) which is
Unskilled with an SVP 2 and which there are 21,000
jobs available; and, Document Preparer (DOT 249.587-
018) which is Unskilled with an SVP 2 and of which
there are 21,000 jobs available. Pursuant to SSR 00-4p,
I have determined that the vocational expert’s testimony
is consistent with the information contained in the
Dictionary of Occupational Titles.
Based on the testimony of the vocational expert, I
conclude that, considering the claimant’s age,
education, work experience, and residual functional
capacity, the claimant is capable of making a successful
adjustment to other work that exists in significant
numbers in the national economy. . .

(R. 302-03). Accordingly, ALJ Lee found that Plaintiff was not disabled from July
31, 2010 through August 1, 2015. (R. 678).
Plaintiff’s Arguments
i. Step Three
Mr. Thomas first argues that ALJ Lee’s step-three analysis is not based on
substantial evidence and that he failed to comply with controlling regulations
when he failed to consider Plaintiff’s obesity alone and in combination with
Plaintiff’s other impairments, as was ordered by the District Court and the
Appeals Council. (Pl. Mov. Br. 19).
In Judge Linares’s February 16, 2016 decision made it clear that the Court
was not satisfied with ALJ West’s step-three analysis:
Although the ALJ found Plaintiff’s obesity to be a severe
impairment, he did not state that he considered obesity
in his step three analysis, referring to Plaintiff’s
‘impairments’ only generally in that section.

(R. 361.) Judge Linares cited to Diaz v. Comm’r Soc. Sec. 577 F.3d 500, 504 (3d
Cir. 2009) and Mason v. Colvin, No. 15-1861, 2015 WL 6739108 (D.N.J. Nov. 3,
2015), as follows:
In Diaz, the Third Circuit found the “AU’s citation of
reports by doctors who were aware of Diaz’s obesity”
insufficient to meet this requirement. Id. The Third
Circuit stated: “Were there any discussion of the
combined effect of Diaz’s impairments, we might agree
with the District Court. However, absent analysis of the
cumulative impact of Diaz’s obesity and other
impairments on her functional capabilities, we are at a
loss in our reviewing function.” Id. & n.3 (emphasis in
original) (collecting cases reaching a similar
conclusion). This Court agrees with Mason v. Colvin, No.
15-1861, 2015 WL 6739108 (D.N.J. Nov. 3, 2015),
regarding the acceptable level of explanation where
obesity is an impairment to be considered. The Court in
Mason held:

[T]he ALJ did consider Plaintiffs obesity in
combination with her other impairments. She
explicitly said, ‘I have considered the potential
impact of obesity in causing or contributing to co-
existing impairments as required by Social
Security Ruling 02-Olp.’ The AU went on to quote
the Ruling at length, and then explain how
obesity can impact other impairments, such as
respiratory ailments. The AU concluded her
discussion by finding that Plaintiff’s obesity in
combination with her other impairments would in
fact not allow her to perform any level of work
besides light work. This amount of discussion
satisfies the Third Circuit’s mandate for enough
discussion ‘sufficient to enable meaningful
judicial review.’

(R. 362) (internal citations omitted). Judge Linares then ordered remand,
specifically to allow for “further consideration and/or explanation of Plaintiff’s
obesity in combination with his other impairments.” (R. 360-63). Additionally,
on August 7, 2018, the Appeals Council ordered ALJ Lee to
[c]omply with the prior court order and give further
consideration to the claimant’s maximum residual
functional capacity and provide appropriate rationale
with specific references to the evidence of record in
support of the assessed limitations [].

(R. 746).
On remand from the Appeals Council, ALJ Lee determined at step three
that Plaintiff did not have an impairment or combination of impairments that
met or equaled the severity of one of the impairments listed in Appendix 1 of the
applicable regulations. (R. 673-74). Specifically, ALJ Lee considered Listing

1.02, entitled joint dysfunction, and determined that “the claimant’s
impairments involving his knees do not rise to the Listing-level.” (R. 674). ALJ
Lee also considered Listing 4.04(C), for coronary artery disease, but found that
“the medical evidence does not support the Listing criteria.” (Id.).
There is unfortunately no mention of Plaintiff’s obesity in ALJ Lee’s step-
three analysis. That omission must be understood, however, in light of the
peculiar procedural history. Judge Linares remanded the matter for
consideration of obesity, and it was considered, after a hearing, in ALJ West’s

second decision:
As directed by the District Court- with regard to an
assessment of the impact of the claimant’s obesity on
his residual functional capacity- the claimant testified
at the initial hearing that he was 5’8 tall and 219
pounds. This is a Body Mass Index of 33, which does
constitute obesity but is well short of morbid obesity. As
noted in the prior Administrative Law Judge Decision
(Exhibit 9A), the claimant testified that (at this weight)
he could stand for 20 minutes and sit for an hour.
Consequently, although obesity has been considered in
combination with the other impairments, it does not
provide a basis for a conclusion that the claimant could
not perform sedentary-level exertional work.

(R. 302).
What followed was, in effect, a brief detour to district court, and a second
remand on consent—in effect, a resumption of Judge Linares’s remand, which
had not been fully implemented—resulting in further proceedings before ALJ
Lee. That consent remand, in my view, did not reset the counter to zero on all
issues; some had already been dealt with. True, the Appeals Council directed the
ALJ to “comply” with Judge Linares’s order, but it focused on the issue of

residual functional capacity, and I do not believe that this required disregard of
all that had gone before.
The Court thus finds that ALJ Lee’s failure to discuss obesity at step three
is at most harmless, for three reasons:
First, obesity had already been considered by ALJ West after Judge
Linares’s remand. ALJ Lee’s step three findings did not differ in any significant
regard from those of ALJ West, who “fully considered obesity in the context of
the overall record in making this decision.” (R. 300). ALJ Lee begins his decision

he begins by highlighting in the procedural history section that this case was
before him on remand from the Appeals Council, which specifically directed ALJ
Lee to “further consider the claimant’s limitation involving balancing for the
period prior to August 2, 2015.” (R. 671). Overall, I accept that ALJ Lee was fully
cognizant of what had gone before.
Second, ALJ Lee’s RFC analysis explicitly considers the overall effect of
obesity, though not at step three. In connection with the RFC determination, ALJ
Lee notes that “the claimant alleges that he is limited in his ability to work due

to obesity, arthritis of the knees and high blood pressure and a heart condition.”
(R. 675). His step five analysis, too, explicitly states that “obesity has been
considered in combination with the other impairments.” (Id.). Such statements
might better have been inserted at step three as well, but they sufficiently clarify
that Judge Lee considered obesity. Thus, for example, in Diaz v. Comm’r Soc. Sec.
577 F.3d 500 (3d Cir. 2009), relied on by Judge Linares, the Third Circuit
reversed, but stated: “Were there any discussion of the combined effect of Diaz’s

impairments, we might agree with the District Court. However, absent analysis
of the cumulative impact of Diaz’s obesity and other impairments on her
functional capabilities, we are at a loss in our reviewing function.” Id. at 504 &
n.3; see also Mason v. Colvin, No. 15-1861, 2015 WL 6739108 (D.N.J. Nov. 3,
2015) (affirming, noting that “the ALJ did consider Plaintiffs obesity in
combination with her other impairments. She explicitly said, ‘I have considered
the potential impact of obesity in causing or contributing to co-existing
impairments as required by Social Security Ruling 02-Olp.’ “) ALJ Lee’s decision

as a whole, particularly in its procedural context, reflects “sufficient development
of the record and explanation of findings” to allow meaningful review. See
Burnett, 220 F.3d at 119; Jones, 364 F.3d at 505.
Third, given the full airing of issues here, Plaintiff fails to show how the
outcome would have been different if ALJ Lee had discussed obesity at step three.
“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 he “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 he should succeed at step three.” Woodson v. Comm’r Soc. Sec.,
661 F. App’x 762, 766 (3d Cir. 2016); see also Rutherford v. Barnhart, 399 F.3d

546, 553 (3d Cir.2005) (the Court noting that the claimant “has not specified
how that factor would affect the five-step analysis undertaken by the ALJ,
beyond an assertion that her impairment makes it more difficult for her to stand,
walk and manipulate her hands and fingers. That generalized response is not
enough to require a remand[.]”).
Plaintiff, now with the benefit of multiple opportunities, has failed to point
to medical or other evidence that obesity so aggravated his other, listed
conditions that he would have prevailed at step three. And, as noted in the

following section, the ALJ performed a “bottom line” analysis of Plaintiff’s
residual functional capacity, a further backstop to the screening process of step
three. Thus, the Court finds that Plaintiff has failed to meet his burden on this
portion of his appeal.
ii. RFC
Likewise, Mr. Thomas argues that ALJ Lee failed to properly include a
discussion of obesity in analyzing Plaintiff’s RFC. (Pl. Mov. Br. 29-31). The
Secretary responds that “by limiting Plaintiff to a restricted range of sedentary

work (rather than his prior light and medium work) in both the 2016 and 2019
decisions,” ALJ Lee clearly did take obesity into account. (R. 15).
A plaintiff’s RFC sets forth the most that a plaintiff can do despite his
limitations. 20 C.F.R. § 416.945(a). When making an RFC determination, an
ALJ is required to consider all evidence. Burnett, 220 F.3d at 121. However, an
ALJ need not rehash or discuss “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.
ALJ Lee determined that Plaintiff had the RFC to perform “sedentary work”
with certain exceptions:
[T]he claimant can never climb ropes, ladders or
scaffolds; never be exposed to unprotected heights or
hazardous machinery; occasionally climb stairs and
ramps; never crawl; occasionally stoop and crouch;
occasionally push and pull; occasionally balance; and,
never have exposure to extremes in environmental
conditions. In addition, the claimant can sit for up to
six hours in an eight-hour work day, with the option to
stand or change position; and, can stand and/or walk
for two hours in an eight hour work day.

(R. 674). In reaching this conclusion, ALJ Lee noted that “the claimant alleges
that he is limited in his ability to work due to obesity, arthritis of the knees and
high blood pressure and a heart condition.” (R. 675 (emphasis added)). Plaintiff
asserted that his conditions were worsening, highlighting shortness of breath.
The ALJ cited contrary evidence in the record that Mr. Thomas “was able to
prepare meals and perform light household chores. He also reported being able
to use public transportation, shop in stores and engage in social activity.” (Id.).
ALJ Lee noted the 2012 physical consultative examination which showed that
Plaintiff then had a full range of motion in the upper extremity, that fine motor
activity was normal, and that his hip, ankle, and spinal range of motion was
“full.” (R. 675).
In addition to the objective medical evidence, ALJ Lee also considered
several medical opinions and explained the weight he accorded to each. (R. 675-

76); 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). His analysis was careful and balanced.
For example, ALJ Lee made a plaintiff-favorable decision to give little
weight to the State Agency DDS medical consultants’ finding that Plaintiff is
capable of light exertion. Those consultants, he wrote, “did not perform an in-
person evaluation of the claimant and did not have the benefit of additional

medical evidence that became part of the record.” (R. 676).
The ALJ adequately stated his reasons for giving some, but only partial,
weight to another consultative examiner’s opinion. That report found that the
claimant is limited from activities requiring moderate-to-marked exertion
secondary to Plaintiff’s chest pain and limitation in squatting and kneeling,
activity with prolonged stair climbing, activity with sustained pulling and
pushing, and lifting. But that opinion, the ALJ wrote, “is only based on one
examination and does not set forth function-by-function vocational limitations.”

(Id.).
Dr. Shehadeh’s opinion on the Work First NJ form was given limited weight
because it was not fully supported, was rendered under the standards of a
different program, and was stated in conclusory fashion. (Id.). These are all
legitimate considerations.
ALJ Lee stated that he based his RFC determination on a review of “all of

the medical evidence available after hearing the claimant’s testimony,” listing in
particular the claim of obesity. (Id.). The RFC represents a bottom-line
determination of what functions the claimant, given his limitations, can perform.
That analysis was undertaken here. What is more, ALJ Lee significantly revised
the prior RFC, confirming that he analyzed the matter afresh. ALJ Lee found that
Plaintiff could crouch occasionally, and added that Plaintiff can occasionally:
climb stairs and ramps, push and pull, sit up for six hours in a eight hour work
day, with the option to stand or change position, stand and/or walk for two hours

in an eight hour work day, but that Mr. Thomas cannot be exposed to
unprotected heights or hazardous machinery. All of these findings were absent
from, or significantly different in, ALJ West’s prior decision. (See R. 301-02) (“ALJ
West noting that the evidence in the record “does not provide a basis for a
conclusion that the claimant could not perform sedentary-level exertional
work.”); (see also R. 676) (ALJ Lee noting that the evidence supports an RFC
“categorized as less than full range sedentary work.”). That revision confirms that
the ALJ discharged, and was not merely giving lip service to, the duty to review

all evidence of impairments.
I find that ALJ Lee’s RFC determination was supported by substantial
evidence in the record as whole. The ALJ sufficiently explained why objective
evidence undercut Plaintiff’s subjective complaints, and also adequately
explained the weight he accorded each piece of opinion evidence.
The Court cannot reweigh evidence and does not do so. See Williams, 970

F.2d at 1182; Morales, 225 F.3d at 317. Finding that ALJ Lee’s RFC analysis was
supported by substantial evidence, I must affirm it.
Step Five
Mr. Thomas argues that it was error to rely on the vocational expert’s
testimony because it was “based on ALJ hypotheticals which assume plaintiff’s
ability to sustain the exertional demands of sedentary work activity.” (Pl. Mov.
Br. 31-32). In short, this is a repackaging of Plaintiff’s objections to the RFC. I
have, however, already determined that the RFC finding must be upheld, so it

was proper to pose hypotheticals to the vocational expert based on that RFC. I
therefore uphold the step five determination.
IV. CONCLUSION
For the foregoing reasons, the Court affirms the decision of the
Commissioner of Social Security. An appropriate Order accompanies this
Opinion.
Dated: March 8, 2021

/s/ Kevin McNulty

________________________
Kevin McNulty
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270125. Public record. Not legal advice.