DELPIZZO v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NANCY DELPIZZO,

Plaintiff,

Case No. 3:19-cv-21105

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 Nancy Delpizzo for a

period of disability and Disability Insurance Benefits under Title II of the Social Security Act, 42

U.S.C. §§ 401 et seq. Plaintiff appeals from the final decision of the Commissioner of Social

Security denying that application. After careful consideration of the entire record, including the

entire administrative record, the Court decides this matter pursuant to Rule 78(b) of the Federal

Rules of Civil Procedure and Local Civil Rule 9.1(f). For the reasons that follow, the Court

affirms the Commissioner’s decision.

I. PROCEDURAL HISTORY

On August 18, 2015, Plaintiff filed her application for benefits, alleging that she has been

disabled since May 10, 2013, due to a number of physical and mental impairments. R. 311–12.

The application was denied initially and upon reconsideration. R. 235–40, 242–47. Plaintiff

requested a de novo hearing before an administrative law judge. R. 248–49. Administrative Law

Judge Theodore W. Grippo (“ALJ”) held a hearing on September 26, 2018, in which Plaintiff,

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who was represented by counsel, participated and testified, as did a vocational expert. R. 162–

99. In a decision dated October 21, 2018, the ALJ concluded that Plaintiff was not disabled

within the meaning of the Social Security Act from May 10, 2013, Plaintiff’s alleged disability

onset date, through the date of that decision. R. 16–27. That decision became the final decision

of the Commissioner of Social Security when the Appeals Council declined review on

September 18, 2019. R. 4–9. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g).

ECF No. 1. On August 25, 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. 14.1 On August 26, 2020, the case was reassigned to the undersigned. ECF

No. 15. The matter is now ripe for disposition.

II. LEGAL STANDARD

A. Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the

authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204

F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to

determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d

Cir. 2000); see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence “does not mean a

large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565

(1988) (citation and internal quotations omitted); see K.K. ex rel. K.S. v. Comm’r of Soc. Sec.,

No. 17-2309 , 2018 WL 1509091, at *4 (D.N.J. Mar. 27, 2018). Substantial evidence is “less

1The 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).

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than a preponderance of the evidence, but ‘more than a mere scintilla.”’ Bailey v. Comm’r of Soc.

Sec., 354 F. App’x 613, 616 (3d Cir. 2009) (citations and quotations omitted); see K.K., 2018

WL 1509091, at *4.

The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot

be set aside merely because the Court “acting de novo might have reached a different

conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli

v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported

by substantial evidence, we are bound by those findings, even if we would have decided the

factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,

2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or

substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d

1178, 1182 (3d Cir. 1992)).

Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic

or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)

(“The search for substantial evidence is thus a qualitative exercise without which our review of

social security disability cases ceases to be merely deferential and becomes instead a sham.”);

see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,

2016). The Court has a duty to “review the evidence in its totality” and “take into account

whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting

Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));

see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists

only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is

overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or

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“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of

Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see

K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into

account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.

at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).

Although an ALJ is not required “to use particular language or adhere to a particular

format in conducting [the] analysis,” the decision must contain “sufficient development of the

record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d

501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.

2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an

expression of the evidence s/he considered which supports the result, but also some indication of

the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121

(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication

of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing

Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a

comprehensive explanation for the rejection of evidence; in most cases, a sentence or short

paragraph would probably suffice.” Cotter, 650 F.2d at 482. Absent such articulation, the Court

“cannot tell if significant probative evidence was not credited or simply ignored.” Id. at 705. As

the Third Circuit explains:

Unless the [ALJ] has analyzed all evidence and has sufficiently explained the

weight [s/]he has given to obviously probative exhibits, to say that [the] decision is

supported by substantial evidence approaches an abdication of the court’s duty to

scrutinize the record as a whole to determine whether the conclusions reached are

rational.

Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.

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Following review of the entire record on appeal from a denial of benefits, a court can

enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or

without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the

record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or

contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,

221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a

complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the

record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see

A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award

benefits should be made only when the administrative record of the case has been fully

developed and when substantial evidence on the record as a whole indicates that the claimant is

disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation

omitted); see A.B., 166 F. Supp.3d at 518. In assessing whether the record is fully developed to

support an award of benefits, courts take a more liberal approach when the claimant has already

faced long processing delays. See, e.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000). An

award is “especially appropriate when “further administrative proceedings would simply prolong

[Plaintiff’s] waiting and delay his ultimate receipt of benefits.” Podedworny, 745 F.2d at 223;

see Schonewolf, 972 F. Supp. at 290.

B. Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation process for

determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §

404.1520(a)(4). “The claimant bears the burden of proof at steps one through four, and the

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Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d

632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).

At step one, the ALJ determines whether the plaintiff is currently engaged in substantial

gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not

disabled.

At step two, the ALJ decides whether the plaintiff has a “severe impairment” or

combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability

to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe

impairment or combination of impairments, then the inquiry ends because the plaintiff is not

disabled. Otherwise, the ALJ proceeds to step three.

At step three, the ALJ decides whether the plaintiff’s impairment or combination of

impairments “meets” or “medically equals” the severity of an impairment in the Listing of

Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §

404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination

of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.

at § 404.1509. Otherwise, the ALJ proceeds to step four.

At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)

and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).

If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not

disabled. Otherwise, the ALJ proceeds to the final step.

At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,

age, education, and work experience, can perform other jobs that exist in significant numbers in

the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do

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so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the

impairment or combination of impairments has lasted or is expected to last for a continuous

period of at least twelve months.

III. ALJ DECISION AND APPELLATE ISSUES

Plaintiff met the insured status requirements of the Social Security Act through December

31, 2018. R. 19. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful

activity between May 10, 2013, her alleged disability onset date, and the date of the ALJ’s

decision. R. 20.

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

fibromyalgia, degenerative disc disease, and chronic obstructive pulmonary disease. R. 20. The

ALJ also found that the following diagnosed impairments were not severe: migraines, right

shoulder dysfunction, essential hypertension, anxiety disorder, and substance addiction disorder.

R. 20–21.

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. 21–22.

At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to

various additional limitations. R. 22–26. The ALJ also found that this RFC permitted the

performance of Plaintiff’s past relevant work as an auto finance manager. R. 26–27. The ALJ

therefore concluded that Plaintiff was not disabled within the meaning of the Social Security

Act from May 10, 2013, her alleged disability onset date, through the date of the decision. R.

27.

Plaintiff disagrees with the ALJ’s findings at steps four and five and contends that the

ALJ improperly excluded evidence. She asks that the decision of the Commissioner be

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reversed and remanded with directions for the granting of benefits or, alternatively, for further

proceedings. Plaintiff’s Memorandum of Law, ECF No. 9; Plaintiff’s Reply Brief, ECF No. 13.

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. 12.

IV. DISCUSSION

A. Evaluation of Medical Opinions

Plaintiff first argues the “ALJ failed to properly weigh . . . the opinions of the Plaintiff’s

treating doctors, Drs. Scheker, Mozzocchi, Podell, Toder, Dhar and Lanez,” and that the ALJ

erred in assigning “considerable” and “significant” weight to the opinions of two reviewing state

agency physicians. Plaintiff’s Brief, ECF No. 9, pp. 11–13; Plaintiff’s Reply Brief, ECF No. 13,

p. 6. For the reasons that follow, Plaintiff’s argument is not well taken.

1. Treating sources

Plaintiff contends that the ALJ’s rejection of the opinions of her treating physicians on

the basis that those opinions were not supported by the medical evidence was itself not supported

by substantial evidence. Plaintiff’s Brief, ECF No. 9, pp. 11, 13; see also Plaintiff’s Reply Brief,

ECF No. 13, p. 6. However, Plaintiff’s conclusory assertion in this regard is unaccompanied by

any substantive argument or citation to the record. See generally id. Notably, Plaintiff did not

identify any specific functional limitation found by any of these sources that the ALJ failed to

consider, nor does she explain why the ALJ’s consideration of any treating source opinion was

erroneous. See generally Plaintiff’s Brief, ECF No. 9; Plaintiff’s Reply Brief, ECF No. 13. The

Court will not construct Plaintiff’s arguments for her. See Atkins v. Comm’r Soc. Sec., No. 19-

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2031, 2020 WL 1970531, at *4 (3d Cir. Apr. 24, 2020) “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.”); Wright v. Comm’r Soc. Sec., 783 F. App’x 243, 245 (3d Cir. 2019)

(“We need not address this conclusory, undeveloped accusation.”) (citations omitted).

2. State agency physicians

The ALJ assigned “considerable weight” and “significant weight” to the opinions of the

reviewing state agency physicians, to which Plaintiff objects. State agency physicians are experts

in Social Security disability programs. SSR 96-6p. “An ALJ may not ignore these opinions and

must explain the weight given to them.” Neal v. Comm’r of Soc. Sec., 57 F. App’x 976, 979 (3d

Cir. 2003). An ALJ may rely on a state agency physician’s findings and conclusions even where

there is a lapse of time between the state agency report and the ALJ’s decision and where

additional medical evidence is later submitted. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356,

361 (3d Cir. 2012) (“The Social Security regulations impose no limit on how much time may

pass between a report and the ALJ’s decision in reliance on it. Only where ‘additional medical

evidence is received that in the opinion of the [ALJ] . . . may change the State agency medical . .

. consultant’s finding that the impairment(s) is not equivalent in severity to any impairment in the

Listing,’ is an update to the report required.”) (emphasis in original) (citations omitted); Wilson

v. Astrue, 331 F. App’x 917, 919 (3d Cir. 2009) (“Generally, an ALJ is required to consider the

reports of State agency medical consultants; however, there is no requirement that an ALJ must

always receive an updated report from the State medical experts whenever new medical evidence

is available.”).

Here, the ALJ assigned “considerable weight” and “significant weight” to the opinions of

the reviewing state agency physicians, reasoning as follows:

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As for the opinion evidence, in January 2016, Raymond Briski, M.D., the State

agency medical consultant, concluded that the claimant could perform light work

with unlimited balancing and frequent other postural activities, and should avoid

concentrated exposure to extreme temperatures, wetness, and humidity, as well as

even moderate exposure to pulmonary irritants (Ex. 1A/9-10). On reconsideration

in July 2016, Alka Bishnoi, M.D., affirmed Dr. Briski’s, assessment (Ex. 3A/15-

16). The undersigned has given the opinions of the State agency medical

consultants considerable weight. Drs. Briski and Bishnoi reviewed all of the

available evidence, and their opinions were based on that review, as well as their

knowledge of the disability program and its requirements. Additionally, these

opinions are consistent with the clinical examination findings and the claimant’s

longitudinal treatment history. . . .

In December 2015, Sharon Flaherty, Ph.D., the State agency psychological

consultant, concluded that the claimant's mental impairments were not severe (Ex.

IA/7-8). Luis Umpierre, Psy.D., affirmed Dr. Flaherty's opinion on reconsideration

in July 2016 (Ex. 3A/12-13). The undersigned has given the opinions of the State

agency psychological consultants significant weight. Drs. Flaherty and Umpierre

reviewed all of the available evidence, and their opinions were based on that review,

as well as their knowledge of the disability program and its requirements.

Furthermore, these opinions are consistent the claimant’s mental health treatment

history and the findings on mental status examination.

R. 25–26. The Court finds no error with the ALJ’s consideration in this regard.

Plaintiff, however, insists that the ALJ erred in assigning significant or considerable

weight to the reviewing state agency experts because their “opinions were based on an

incomplete record at the initial and reconsideration stages of the administrative process. Fully

20% of the medical documentation (not counting the evidence the ALJ refused to admit and

consider) was not in the record at the time those opinions were given. (R. 25-26)[.]” Plaintiff’s

Brief, ECF No. 9, p. 12. However, as previously noted, an ALJ may rely on a state agency

consultant’s findings and opinions even when additional medical evidence is later submitted.

Chandler, 667 F.3d at 361; Wilson, 331 F. App’x at 919. Notably, Plaintiff fails to explain how

any specific evidence submitted after the state agency consultants had reviewed the record

supports her argument in this regard. See Plaintiff’s Brief, ECF No. 9, p. 12; see also Shinseki v.

Sanders, 556 U.S. 396, 409–10 (2009) (“[T]he burden of showing that an error is harmful

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normally falls upon the party attacking the agency’s determination. . . . [T]he party seeking

reversal normally must explain why the erroneous ruling caused harm.”); 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.”).

Plaintiff also complains that the ALJ gave considerable and significant weight to the

reviewing state agency experts even though they had no treating relationship with the Plaintiff

and “[t]he record is silent as to the specialties of the consultants.” Plaintiff’s Brief, ECF No. 9, p.

13. Plaintiff’s arguments are not well taken. “Simply because these opinions were rendered by

state agency physicians who did not have a treating relationship with Plaintiff does not, as

discussed in the aforementioned precedent, mean that the ALJ could not give them significant

weight[.]” Jones v. Colvin, No. 3:14-CV-2337, 2016 WL 1071021, at *12 (M.D. Pa. Mar. 17,

2016); cf. Chandler, 667 F.3d at 361 (“State agent opinions merit significant consideration”). In

addition, “specialty is just one factor to consider. . . . Contrary to [Plaintiff’s] assertions, … a

state agency medical consultant—was per se qualified to issue a medical opinion for the ALJ’s

consideration.” Brunson v. Comm’r of Soc. Sec., 704 F. App’x 56, 60 (3d Cir. 2017) (citations

omitted).

B. RFC

Plaintiff argues that the ALJ failed to properly assess her RFC because the ALJ failed to

take into account all of her severe, medically determinable, impairments. Plaintiff’s Brief, ECF

No. 9, pp. 13–18. This Court disagrees.

A claimant’s RFC is the most that a claimant can do despite her limitations. 20 C.F.R. §

404.1545(a)(1). At the administrative hearing stage, the administrative law judge is charged with

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determining the claimant’s RFC. 20 C.F.R. §§ 404.1527(e), 404.1546(c); see also Chandler, 667

F.3d at 361 (“The ALJ—not treating or examining physicians or State agency consultants—must

make the ultimate disability and RFC determinations.”) (citations omitted). When determining a

claimant’s RFC, the 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 v. Barnhart,

399 F.3d 546, 554 (3d Cir. 2005); see also Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014)

(stating that the ALJ has discretion to choose whether to include “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 a limited range of light

work, as follows:

After careful consideration of the entire record, I find that the claimant has the

residual functional capacity to perform light work as defined in 20 CFR

404.1567(b) except she can frequently climb, stoop, kneel, crouch, and crawl. She

should avoid concentrated exposure to extreme cold, extreme heat, wetness, and

humidity, and even moderate exposure to irritants such as smoke, fumes, dust,

gases, and poor ventilation. She can rotate her head left and right 15 degrees (20%

of normal) and move her head up and down15 degrees (33% of normal).

R. 22. In making this determination, the ALJ detailed years of record evidence, including, inter

alia, findings by Samuel Schenker, M.D., a neurologist who examined Plaintiff in October 2013,

that revealed rigidity with flexion and extension of the cervical area and tenderness to palpation

of the lumbar area, but intact strength and sensation and normal gait; a November 9, 2013,

cervical spine MRI that showed cervical spondylosis with neural foraminal narrowing, but no

significant spinal canal stenosis; December 2015 findings by Franky Merlin, M.D., a consultative

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examiner, including an antalgic gait and inability to walk heel/toe, an ability to forward flex the

spine to 90 degrees and squat, normal strength and sensation, and straight-leg raising to 90

degrees bilaterally; x-rays of the thoracic and lumbar spine, taken in conjunction with the

consultative examination, which showed mild degenerative changes; the fact that Plaintiff did

not complain specifically of fibromyalgia at the consultative examination and, as to her COPD,

she admitted that she never had an episode of emphysema; Plaintiff’s attendant at physical

therapy sessions for a few months without any significant changes; September 2016 x-rays of the

cervical and lumbar spine which revealed cervical osteopenia with multilevel hypertrophic

spondylosis and lumbar dextroscoliosis with diffuse spondylosis, as well as severe foraminal

stenosis at L5-S1; May 2018 x-rays of the cervical and thoracic spine which demonstrated mild

multilevel loss of disc space height and anterior bridging syndesmophytes suggestive of

ankylosing spondylitis; the fact that Plaintiff cooks, shops for short periods, and cleans, including

using sprays daily and scrubbing the shower once per week; and state agency opinions that

Plaintiff could perform light exertional work subject to certain additional environmental

limitations. R. 23–26. The ALJ also specifically explained this RFC determination as follows:

The undersigned considered the evidence of progressive degenerative changes,

particularly in the claimant’s cervical and thoracic spine, as well as the clinical

findings of lumbar tenderness and decreased cervical range of motion, in assessing

a residual functional capacity for light work with frequent postural activities.

Nonetheless, the claimant’s consistently normal strength and sensation, as well as

her activity level, do not support the additional limitations she alleged.

R. 24.

The claimant’s fibromyalgia also would not prevent her from sustaining light work

with frequent postural activities. In his November 2014 letter, Dr. Podell reported

that the claimant had painful fibromyalgia tender points, as well as difficulty with

concentration and balance (Ex. 5F). The claimant did not complain specifically of

fibromyalgia at the consultative examination, but she had difficulty getting on the

examining table and she could not walk on her heels or toes (Ex. 7F/2). However,

as noted above, Dr. Merlin appreciated intact strength and sensation, including grip

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strength, contrary to the claimant’s allegations of inability to use her hands at times

(Id. at 2). In March 2016, the claimant established care with rheumatologist Rajat

Dhar, M.D., and Dr. Dhar observed degenerative changes of both hands, as well as

widespread soft tissue discomfort (Ex. 8F/3-4). The record does not document

additional treatment with Dr. Dhar and, although primary care records do show

positive fibromyalgia tender points and some complaints of pain, there is very little

other evidence in the record related to this impairment (Ex. 14F; 17F). Considering

the evidence of widespread positive fibromyalgia tender points, as well as the

claimant’s subjective complaints, the undersigned finds that pain from fibromyalgia

would contribute to a residual functional capacity for light work with frequent

postural activities. Nonetheless, the claimant’s normal strength and limited

treatment weigh against a finding of further limitations.

The claimant’s COPD also does not cause limitations beyond those in the residual

functional capacity above. During the December 2015 consultative examination,

the claimant told Dr. Merlin that she had never had an episode of emphysema, and

she said that she took Advair, Spiriva, and Singulair (Ex. 7F/l). Dr. Merlin did not

note any abnormalities on lung examination, and pulmonary function testing

showed forced vital capacity (FVC) of 88% predicted and forced expiratory volume

(FEVI) of 82% predicted (Id. at 2). During a March 2016 primary care visit, the

claimant complained of an allergic reaction to her medication, with intermittent

wheezing; however, lung examination was again normal (Ex. 9F/2, 4). The record

does not clearly document any additional treatment or evaluation for COPD, and

the claimant has not sought emergency room or inpatient treatment for acute

exacerbations of breathing problems. Accordingly, although the undersigned finds

that the claimant’s COPD would cause a limitation to light work and require her to

avoid concentrated exposure to extreme temperatures, wetness and humidity, as

well as even moderate exposure to pulmonary irritants, additional limitations are

not appropriate.

R. 24–25.

In sum, the above residual functional capacity assessment is supported by the

medical evidence of record, as well as the opinions of the State agency medical and

psychological consultants. Specifically, pain and limited mobility in the claimant’s

back and neck related to degenerative disc disease could reasonably limit her to

light work with frequent postural activities, but restricted movement of the neck

side to side and up and down. Pain from fibromyalgia would also contribute to these

limitations. Shortness of breath and other symptoms from COPD are consistent

with a residual functional capacity for light work with no concentrated exposure to

extreme temperatures, wetness, and humidity, as well as not even moderate

exposure to pulmonary irritants. The claimant’s migraines, hypertension, right

shoulder dysfunction, anxiety disorder, and substance abuse disorder have also

been considered, but these conditions do not cause additional or significant

functional limitations.

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R. 26. In the view of this Court, this record 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.

Plaintiff, however, challenges this determination, arguing that her migraine headaches,

right shoulder dysfunction, anxiety disorder and essential hypertension—which the ALJ

addressed at step two of the sequential evaluation—require additional or more significant

limitations than those included in the ALJ’s RFC determination. Plaintiff’s Brief, ECF No. 9, pp.

13–18. Plaintiff’s argument is not well taken. As a preliminary matter, the ALJ specifically

found these impairments to be non-severe at step two because “the record does not establish that

these conditions result in significant work-related functional limitations.” R. 20. In addition, the

United States Court of Appeals for the Third Circuit has instructed that “no incantations are

required at steps four and five simply because a particular finding has been made at steps two

and three. Those portions of the disability analysis serve distinct purposes and may be expressed

in different ways.” Hess v. Comm’r Soc. Sec., 931 F.3d 198, 209 (3d Cir. 2019). Because the

RFC is the most that a claimant can do despite her limitations, the RFC “‘requires a more

detailed assessment [of the areas of functional limitation] by itemizing various functions

contained in the broad [functional limitation] categories’” and, “unlike the findings at steps two

and three, the RFC ‘must be expressed in terms of work-related functions[.]’” Id. (quoting SSR

96-8P, at *4, 6). “In short, the findings at steps two and three will not necessarily translate to the

language used at steps four and five.” Id. In any event, as previously discussed, the ALJ

specifically stated that he considered these non-severe impairments at step four but found that

“these conditions do not cause additional or significant functional limitations.” R. 26; cf. Wilson

v. Comm’r of Soc. Sec., No. CV 15-3096, 2018 WL 524548, at *7 (D.N.J. Jan. 23, 2018)

15

(“Wilson gives the Court no reason to doubt that, in determining his physical RFC, the ALJ

failed to consider all the evidence in the record (including the medical and non-medical

evidence)—and explained his rejection of certain pertinent evidence.”). As noted earlier, an ALJ

need include only “credibly established” limitations. Rutherford, 399 F.3d at 554. Notably,

Plaintiff cites to no record evidence that supports her apparent assertion that these impairments

require different or more restricted limitations, nor does she identify what those limitations

should be, or otherwise explain how remanding this action would lead to a different RFC. See

Plaintiff’s Brief, ECF No. 9, pp. 13–18. The Court will not hunt through the record to find

evidence or construct Plaintiff’s arguments for her. See Shinseki, 556 U.S. at 409–10; Atkins,

2020 WL 1970531, at *4; Claxton, 766 F.3d at 307.

Finally, Plaintiff complains that the ALJ relied on his own medical opinion where (1)

despite the observation by treating physician Dr. Podell “that Ms. Delpizzo had difficulty

completing serial sevens and her ability was extremely limited, the ALJ noted that he did not

observe any such difficulty at the hearing”; and (2) “the ALJ made up percentages of loss of

range of motion that are unsupported in th[e] record and are merely speculative.” Plaintiff’s

Brief, ECF No. 9, p. 16 (citing R. 20 and 23–24, respectively). Plaintiff’s arguments are not well

taken. In finding at step two that Plaintiff had only a mild limitation in her ability to understand,

remember, or apply information, the ALJ noted Dr. Podell’s observation that Plaintiff had

difficulty completing serial sevens and that her ability to sustain concentration was extremely

limited; however, the ALJ observed that “at the hearing the claimant did not have any difficulty

recalling details of her personal, work, and medical history at the hearing, nor did she appear

confused or have difficulty answering questions.” R. 20. An ALJ may properly rely on his or her

observations of a claimant during a hearing. Cf. Guyer v. Saul, No. 3:18-CV-01931, 2020 WL

16

497286, at *10 (M.D. Pa. Jan. 15, 2020), report and recommendation adopted, No. 3:18CV1931,

2020 WL 504658 (M.D. Pa. Jan. 30, 2020) (finding the RFC assessment was supported by

substantial evidence where the ALJ considered, inter alia, his own observation at the hearing

undermined the claimant’s assertions of the need to change positions every couple of minutes

while sitting). In any event, even if the ALJ erred at step two in relying on his own observations

at the hearing when finding that Plaintiff had only mild limitation in this area of functioning,

Plaintiff has not explained how this error would result in different functional limitations at step

four or would otherwise require remand based on the present record. Particularly is this so where

the ALJ found that Plaintiff had mild limitations in the three remaining areas of mental

functioning and where the state agency physicians found that Plaintiff’s mental impairments

were not severe. See Plaintiff’s Brief, ECF No. 9, p. 16; see also R. 20–21, 25–26; Shinseki, 556

U.S. at 409–10; Hess, 931 F.3d at 209.

To the extent that Plaintiff argues that the ALJ “made up percentages of loss of range of

motion” in the RFC, this argument is likewise not well taken. As previously noted, the ALJ’s

RFC specified that Plaintiff “can rotate her head left and right 15 degrees (20% normal) and

move her head up and down 15 degrees (33% normal).” R. 22. The consultative examiner, Dr.

Merlin, to whose findings and opinions the ALJ gave “great weight,” R. 25, found that

Plaintiff’s range of motion of the neck included “left rotation 0-15 degrees, right rotation 0-15

degrees, flexion 0-15 degrees, and extension 0-15 degrees.” R. 804. In any event, as previously

noted, it is the ALJ—not treating or examining physicians or state agency physicians—who

makes the ultimate disability and RFC determinations. Chandler, 667 F.3d at 361. Accordingly,

Plaintiff’s assertion that the ALJ improperly relied on his own medical opinion when crafting the

RFC does not warrant reversal or remand.

17

In short, for all these reasons, the Court concludes that the ALJ’s findings regarding

Plaintiff’s RFC are consistent with the record evidence and enjoy substantial support in the

record.

C. Past Relevant Work at Step Four

Plaintiff contends that the ALJ erred at step four of the sequential evaluation when

finding that Plaintiff was capable of performing her past relevant work as an auto finance

manager. Plaintiff’s Brief, ECF No. 9, pp. 18–20; Plaintiff’s Reply Brief, ECF No. 13, pp. 1–4.

Plaintiff specifically argues that her work as a finance manager cannot be considered “past

relevant work” at step four because the ALJ misstated the vocational expert’s testimony and

because Plaintiff did not perform that skilled work long enough for her to learn it, consistent with

SSR 82-61. Id. This Court disagrees.

At step four, “[t]he claimant bears the burden of demonstrating an inability to return to

her past relevant work.” Plummer, 186 F.3d at 428. “Past relevant work is work that [the

claimant has] done within the past 15 years, that was substantial gainful activity, and that lasted

long enough for [the claimant] to learn to do it.” 20 C.F.R. § 404.1560(b)(1). The ALJ considers

whether the claimant has the RFC to perform her past relevant work. 20 C.F.R. §

404.1520(a)(4)(iv). In making this assessment,

(1) the ALJ must make specific findings of fact as to the claimant’s residual

functional capacity; (2) the ALJ must make findings of the physical and mental

demands of the claimant’s past work; and (3) the ALJ must compare the residual

functional capacity to the past relevant work to determine whether claimant has the

level of capability needed to perform the past relevant work.

Garibay v. Comm’r of Soc. Sec., 336 F. App’x 152, 158 (3d Cir. 2009) (quoting Burnett, 220

F.3d at 120). An ALJ should determine whether “the claimant retains the capacity to perform the

particular functional demands and job duties peculiar to an individual job as he or she actually

18

performed it” or whether “the claimant retains the capacity to perform the functional demands

and job duties of the job as ordinarily required by employers throughout the national economy.”

SSR 82-61. In connection with this latter consideration, “if the claimant cannot perform the

excessive functional demands and/or job duties actually required in the former job, but can

perform the functional demands and job duties as generally required by employers throughout

the economy, the claimant should be found to be ‘not disabled.’” Id.

SSR 82-62 identifies the evidence that an ALJ should consider in making this

determination, and places particular emphasis on the claimant’s own statements about past work:

The claimant is the primary source for vocational documentation, and statements

by the claimant regarding past work are generally sufficient for determining the

skill level, exertional demands and nonexertional demands of such work.

Determination of the claimant’s ability to do [past relevant work] requires a careful

appraisal of (1) the individual’s statements as to which past work requirements can

no longer be met and the reason(s) for his or her inability to meet those

requirements; (2) medical evidence establishing how the impairment limits ability

to meet the physical and mental requirements of the work; and (3) in some cases,

supplementary or corroborative information from other sources such as employers,

the Dictionary of Occupational Titles, etc., on the requirements of the work as

generally performed in the economy.

SSR 82-62; see also Garibay, 336 F. App’x at 158 (stating that, when considering whether the

claimant retains the capacity to perform the functional demands and job duties of the job as

ordinarily required by employers, “the ALJ may rely on job descriptions found in the Dictionary

of Occupational Titles (“DOT”)”).

“The DOT lists a specific vocational preparation (SVP) time for each described

occupation.” Thomas v. Comm’r of Soc. Sec., 2019 WL 3562691, at *7 n.8 (D.N.J. Aug. 6,

2019). “SVP” refers to the amount of time required by a typical worker to learn how to perform a

specific job.” Jones v. Astrue, 570 F. Supp. 2d 708, 716 n.5 (E.D. Pa. 2007), aff’d sub nom.

Jones v. Comm’r of Soc. Sec., 275 F. App’x 166 (3d Cir. 2008). “Using the skill level definitions

19

in 20 C.F.R. § 404.1568, unskilled work corresponds to an SVP of 1-2; semi-skilled work

corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.”

Thomas, 2019 WL 3562691, at *7 n.8. A job with an SVP of 6 requires over one year and up to

two years to learn. DOT, App. C.

Here, the ALJ determined that Plaintiff was capable of performing her past relevant work

as an auto finance manager because that work did not require the performance of work-related

activities precluded by Plaintiff’s RFC:

In order for a job to qualify as past relevant work, the claimant must have performed

it within the 15 years prior to the date of decision, long enough to learn it, and at

substantial gainful activity levels. The claimant worked as an auto finance manager

from 2002 until 2013, and she earned as much as $87,000 per year during this

period (Ex. 5D/2). The vocational expert testified that this job was skilled, with an

SVP of six, requiring one to two years to learn. Based on the foregoing, the

claimant’s job as an auto finance manager qialifies [sic] as past relevant work.

In comparing the claimant’s residual functional capacity with the physical and

mental demands of this work, I find that the claimant is able to perform it as actually

and generally performed. The vocational expert testified that the auto finance

manager job was sedentary, both as actually and generally performed, and was not

otherwise inconsistent with the claimant’s residual functional capacity. Therefore,

the undersigned finds that the claimant can perform her past relevant work as an

auto finance manager as actually and generally performed.

R. 26–27. The ALJ went on to find that Plaintiff was not under a disability from May 10, 2013,

her alleged disability onset date, through the date of the decision. R. 27.

Plaintiff challenges this finding, noting that the job of finance manager, identified by the

vocational expert as DOT 241.367-018, has a SVP of 6, which requires one to two years to learn.

Plaintiff’s Brief, ECF No. 9, p. 18–19. Plaintiff specifically argues that she performed this job

for only six months and the years spent working in a single job as both a finance manager and

assistant general manager, i.e. time spent working a “composite” or “combo” job, may not be

used towards the time spent in the single job of finance manager. In this regard, Plaintiff refers to

20

the testimony of the vocational expert, who testified that a person with Plaintiff’s vocational

profile and RFC could perform only the finance manager job and not the other jobs previously

performed by Plaintiff, i.e., assistant general manager and automobile sales. Id. at 18–20 (citing,

inter alia, R. 169–71); Plaintiff’s Reply Brief, ECF No. 13, pp. 1–4 (citing, inter alia, R. 169,

172, 190). Plaintiff’s arguments are not well taken.

“[C]omposite jobs have significant elements of two or more occupations and, as such,

have no counterpart in the DOT. Such situations will be evaluated according to the particular

facts of each individual case.” SSR 82-61. “‘To establish that a claimant maintains the RFC to

perform past relevant work in a composite job, the evidence must establish that the claimant can

perform each job within a composite job, whether as actually performed or as generally

performed in the national economy.’” Bear v. Saul, No. 3:19-CV-01414, 2020 WL 4924540, at

*6 (M.D. Pa. Aug. 21, 2020) (quoting Boggs v. Colvin, 2014 WL 1277882, at *10 (M.D. Pa.

2014)). “An ALJ may not ‘divide a composite job into two jobs and find the claimant capable of

performing past relevant work based on the less demanding of the two jobs.’” Boggs, 2014 WL

1277882, at *10 (quoting Boggs, 2014 WL 1277882, at *10).

Here, the vocational testified that Plaintiff’s past work included automobile sales, which

had an SVP of 6 and required light exertion, both as performed and as defined by the DOT;

finance manager, which had an SVP of 6 and required sedentary exertion, both as performed and

as defined by the DOT; and a “combo” job, i.e., composite job, of both finance manager and

assistant general manager, with the latter position having an SVP of 6 and which was defined by

the DOT as requiring light exertion but which required only sedentary exertion as Plaintiff

performed it. R. 190. The vocational expert testified that a person with Plaintiff’s vocational

background and RFC could perform the finance manager job but not the positions of automobile

21

sales or assistant general manager. R. 190–91. Although Plaintiff argues that her testimony

establishes that she performed the job of finance manager for only six months, the Court finds

that the ALJ reasonably interpreted the following testimony as establishing that Plaintiff worked

as a finance manager for several years, not six months:

Q When is the last time you worked?

A I believe it was May of 2013.

Q Mm-hmm. Okay. According to your earnings record, you were working for a

Toyota dealership at that time. Is that right?

A Correct.

Q And what was your position there?

A Finance manager.

Q How long had you held that position?

A At that dealership, I think I was there for maybe six months.

Q In performing this work, how much of the time would you say you were standing

and how much of the time were you sitting?

A Probably the majority was sitting because I did the finance, the paperwork. Let

me just think real quick. I worked on the computer, putting in the clients’

information for getting loan approvals, and then printing all the paperwork and

going over all the ancillary products and everything with the customers, and

reviewing their credit bureaus with them.

R. 169.

Q Okay. Before that it looks like you worked at another dealership called Morrie

Schwartz and Sons [phonetic]. Is that right?

A Correct.

Q And how long were you there?

A I don’t really remember. A couple of years maybe.

Q It looks like maybe 2012 and ‘13. Does that sound right?

22

A Yeah.

Q Okay. And were you doing the same thing there?

A Yes. A little more there. At that dealership I did a little bit more because I was

also the assistant GM. So when the GM wasn’t there, I had to fill both positions.

Q Okay. What duties did you have as an assistant GM that were different from

those of a finance manager?

A I was actually structuring the deals at the front desk, whether it be a lease, a

finance, a balloon note; whatever. Giving our customers different options on what

payment would be best for them.

Q Okay. And in this job, would you again estimate it was about 70 percent sitting

and 30 percent standing?

A I would say yes.

Q And how about the weight. Would you again say it was around 10 pounds –

A Yes.

Q -- maximum weight you had to lift?

A Yeah.

Q Okay. Before that you worked at Ford –

A Sansone Ford [phonetic].

Q Okay. And what did you do there?

A The same. Finance. And I helped close deals.

Q If we go back -- you stopped working in 2013. the last 15 years of your working

life –

A Yes.

Q – that’s going back in 1998.

A Yes.

Q Would it always have been the same work?

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A From ‘97 to -- yes. It was in the car business.

Q All right.

A Probably about ‘99 is when I became a finance manager. But it’s always been

in the car business since ‘97.

Q Between ‘97 and ‘99, what did you do?

A Selling cars and helping close deals for other salespeople.

R. 170–72 (emphasis added). The ALJ’s finding that Plaintiff had prior relevant work as a

finance manager for more that two years was reasonably based on Plaintiff’s own testimony.

Moreover, the ALJ’s interpretation of Plaintiff’s testimony that she worked as a finance

manager for the Toyota dealership and Sansone Ford for several years in excess of the required

one to two years required to learn this position—without counting the two years spent working in

the composite finance manager / assistant general manager composite job at Morrie Schwartz

and Sons—is also supported by other evidence in the record. Specifically, Plaintiff reported in her

Work History Report that she worked as a finance manager for multiple years. R. 343–50

(reflecting that she worked as a “Finance Manager” from 2002 to 2010; as a “Director of

Finance” from February 2011 to February 2013; and as a “Financial and Insurance Manager”

from February 2013 to May 2013); see also SSR 82-62 (“The claimant is the primary source for

vocational documentation, and statements by the claimant regarding past work are generally

sufficient for determining the skill level; exertional demands and nonexertional demands of such

work.”). Accordingly, this Court concludes that substantial evidence supports the ALJ’s finding

that Plaintiff was able to perform her past relevant work as a finance manager.

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D. Exclusion of Evidence

Plaintiff also argues that “the ALJ improperly excluded relevant medical evidence by

improper application of 20 C.F.R. § 404.935.” Plaintiff’s Brief, ECF No. 9, pp. 20–22; Plaintiff’s

Reply Brief, ECF No. 13, pp. 4–5. Plaintiff contends that the agency was aware of certain

medical records, yet excluded them from the record as a punitive application of 20 C.F.R. §

404.935. Id. Plaintiff’s arguments are not well taken.

Under applicable regulations, a claimant must submit any information or evidence to the

ALJ no fewer than five business days before the scheduled administrative hearing (“the five-day

rule”):

When you submit your request for hearing, you should also submit information or

evidence as required by § 404.1512 or any summary of the evidence to the

administrative law judge. Each party must make every effort to ensure that the

administrative law judge receives all of the evidence and must inform us about or

submit any written evidence, as required in § 404.1512, no later than 5 business

days before the date of the scheduled hearing. If you do not comply with this

requirement, the administrative law judge may decline to consider or obtain the

evidence, unless the circumstances described in paragraph (b) of this section apply.

20 C.F.R. § 404.935(a). If a claimant misses this submission deadline, an ALJ will accept the

information or evidence under certain limited circumstances:

If you have evidence required under § 404.1512 but you have missed the deadline

described in paragraph (a) of this section, the administrative law judge will accept

the evidence if he or she has not yet issued a decision and you did not inform us

about or submit the evidence before the deadline because:

(1) Our action misled you;

(2) You had a physical, mental, educational, or linguistic limitation(s) that

prevented you from informing us about or submitting the evidence earlier; or

(3) Some other unusual, unexpected, or unavoidable circumstance beyond your

control prevented you from informing us about or submitting the evidence earlier.

. . .

20 C.F.R. § 404.935(b).

25

Here, the ALJ sent Plaintiff a letter dated June 22, 2018, advising that an administrative

hearing was scheduled for September 26, 2018. R. 273–87. In that letter, the ALJ advised, inter

alia, as follows:

If you are aware of or have more evidence, such as recent records, reports, or

evaluations, you must inform me about it or give it to me no later than 5

business days before the date of your hearing. If you do not comply with this

requirement, I may decline to consider the evidence unless the late submission

falls within a limited exception.

R. 275 (emphasis in the original), 282 (duplicate) (emphasis in the original). In a letter dated

September 19, 2018, Plaintiff’s former counsel, Attorney Jasmine C. Dickerson, who also

represented Plaintiff at the administrative hearing on September 26, 2018, acknowledged that

“[u]nder the court rules, all medical evidence must be submitted 5 business days before the

hearing in order to be considered unless good cause is shown. Through this letter we submit our

statement of good cause.” R. 374–75. Attorney Dickerson advised that she had submitted a

records request to Dr. James Fischoff, but that “we still have not received their records. These

records illustrate additional information regarding the claimant’s mental health conditions that is

not as apparent in the records on file.” R. 374. Attorney Dickerson went on to request that the

record be left open for seven days in order to obtain the records. Id.

At the September 26, 2018, administrative hearing, Attorney Dickerson advised that she

had electronically submitted the records from Dr. Fischoff on September 24, 2018, and therefore

no longer needed the record to be held open. R. 164–65. The ALJ and Attorney Dickerson then

engaged in the following exchange regarding the late submission of these records:

ALJ: Let me see if I can find them here. Oh, yeah. Here they are [Dr. Fischoff’s

records]. I see. Okay. Why were they submitted so late?

ATTY: We requested the records back in July. It’s just the doctor’s office -- we

were waiting for him to not only fill out RFCs for our office regarding Ms.

Delpizzo, including the fibromyalgia questionnaire, but also release the records to

26

our office. Due to the summertime, the doctor was not in his office throughout the

summer, so it wasn’t until the doctor gave his clearance -- the staff clearance to

release that we finally received the records.

ALJ: Why did you request them in July [2018] when they go back to 2014?

ATTY: Because our office standard is once the hearing has actually been scheduled

and we get confirmation of the actual date, then we usually request records to

update the file, other than additional records that we may have been getting while

the claimant's been in treatment. Also part of his records that were submitted were

actually already submitted in Dr. Padell’s [Podell’s] records, because a portion of

these records include Dr. Padell’s [Podell’s] records as well as some x-rays that we

had already submitted as well. It’s just Dr. Fischhoff’s actual treatment notes and

the RFCs were just recent, more recent for a request. Everything else we submitted

prior to that.

ALJ: Well I –

ATTY: From Dr. Pradatriano [phonetic] –

ALJ: I will reserve ruling on whether that will be admitted.

ATTY: And we also did provide under the rules of the five-day rule you notice that

these records were outstanding.

ALJ: Your five-day letter was not adequate.

ATTY: It was –

ALJ: It does not comply with the SSR 17-4, and that’s why I’m hesitating here.

ATTY: Okay.

ALJ: But I will make the decision, and I will let you know in the decision what I

decided to do about these records.

ATTY: Okay.

ALJ: Whether they’ll be admitted or not.

ATTY: Either way. Some of the records that were submitted with Dr. Fischhoff’s

records were already submitted, and they’re seen in Ms. Delpizzo’s other records,

including Dr. Padell’s [Podell’s] assessment of the claimant, as well as the objective

evidence of x-rays indicating her condition. So these are already still in the record

regardless, if you don’t want to –

27

ALJ: So you’re telling me that you submitted duplicate records.

ATTY: I’m saying that we cannot cherry pick records. Therefore, Dr. Fischhoff’s

completed record that his office sent us is the exact same thing that we sent you.

ALJ: I’ve already said what I’m going to do.

ATTY: Okay.

ALJ: There’s nothing more to be said about this.

ATTY: Okay.

R. 165–67.

In the administrative decision, the ALJ found that Plaintiff did not meet the requirements

of 20 C.F.R. § 404.935(b) and refused to admit this medical evidence, explaining as follows:

The claimant submitted or informed me about additional written evidence less than

five business days before the scheduled hearing date. On September 24, 2018, two

days before the hearing, the claimant’s representative submitted into the electronic

file one document containing 129 pages with evidence from James Fischoff, M.D.,

ranging from August 9, 2014 to September 15, 2018. I decline to admit this

evidence because the requirements of 20 CFR 404.935(b) are not met.

Specifically, in a letter dated September 19, 2018, Jasmine Dickerson, the

claimant’s attorney who represented her at the hearing, advised that records from

Dr. Fischoff had not been received, and she requested that the record be held open

for 7 days for receipt of those records (Ex. 10E). Ms. Dickerson’s letter also

provided Dr. Fischoff’s address and telephone number (Id.). Finally, the letter

acknowledged that “all medical evidence must be submitted 5 business days before

the hearing in order to be considered unless good cause is shown” and that the letter

was her statement of good cause (emphasis added) [emphasis added by ALJ] (Id.).

At the outset, I note that, although the letter is dated September 19, 2018, it was not

received into the electronic folder until September 21, 2018, less than five business

days before the hearing [footnote omitted]. As such, the letter itself did not timely

inform me of outstanding medical evidence. Even so, I also find that the September

19, 2018 letter does not comply with the requirements of SSR 17-4p and 20 CFR

404.935(b). Specifically, although the attorney acknowledged that she had to show

“good cause” for her failure to obtain records on a timely basis, no cause was stated,

much less good cause. Additionally, the letter did not provide any information

about the outstanding medical evidence except its source - e.g., the letter did not

identify the evidence’s importance to the case, the relationship of Dr. Fischoff to

28

the claimant, the time period covered by the records, what such records were

expected to show, or the specific kinds of illness(es) treated by Dr. Fischoff.

These deficiencies were pointed out to Ms. Dickerson at the hearing, and she was

given the opportunity to explain the delay in obtaining the records. Ms. Dickerson

offered three explanations:

1. she acknowledged that the records had not even been requested until July

2018 and that the delay was partly due to her office’s having requested that

Dr. Fischoff complete opinions;

2. she then stated that a reason for the delay was that the doctor was “out

most of the summer”; and,

3. she offered the explanation that her office has a policy of not requesting

records until the hearing is scheduled (Hearing Recording).

Each of these explanations is insufficient to establish good cause. There was no

mention in the letter that opinions from Dr. Fischoff had recently been requested,

and Ms. Dickerson acknowledged that much of the evidence was duplicative of

what was already admitted into the record (Hearing Recording). That the doctor

was “out most of the summer” is also no excuse. Records requests are normally

handled by persons in the doctor’s office other than the doctor, and there was no

showing that that could not have been the case here. Finally, the representative’s

policy of not requesting records until the hearing does not excuse the claimant’s

representative from timely submitting evidence, especially when the representative

has been of record since August 2015 (Exs. 1B; 2B).

For the foregoing reasons, I refuse to admit the untimely medical evidence and have

not considered it in this decision.

R. 16–17. The Court finds no error with the ALJ’s reasoning in this regard.

Plaintiff, however, apparently contends that the ALJ violated the spirit of 20 C.F.R. §

404.935(b) by punishing her and excluding this medical evidence where Plaintiff did not ask to

postpone the hearing or the administrative decision and where the ALJ “excluded evidence

adduced at the hearing. In excluding the documents the ALJ also excluded evidence from

medical sources of whom the agency was well aware from prior submissions, including

Community Medical Center, NJ Imaging, Shore Imaging, Dr. Podell, Ocean Health and Dr.

Dickerson.” Plaintiff’s Brief, ECF No. 9, pp. 20–22 (citing 81 Fed. Reg. 90987 for the

29

proposition that, according to Plaintiff, the five-day rule was implemented to avoid

postponement of hearings or decisions to secure new evidence and that 81 Fed. Reg. 90987

advises that the five-day rule should not be used as a punitive device against claimants or their

representatives); see also Plaintiff’s Reply Brief, ECF No. 13, pp. 4–5 (same).

Plaintiff’s arguments are not well taken. As detailed above, an ALJ will accept evidence

submitted after the deadline established by the five-day rule if the ALJ has not yet issued the

decision and if the Social Security Administration’s (“SSA’s”) actions misled the claimant; or

the claimant had a physical, mental, educational, or linguistic limitation(s) that prevented the

claimant from informing the SSA about or submitting the evidence earlier; or some other

unusual, unexpected, or unavoidable circumstance beyond the claimant’s control prevented the

claimant from informing the SSA about or submitting the evidence earlier. 20 C.F.R. §

404.935(b). Here, the Court agrees with the ALJ’s reasoning that none of the three explanations

offered by Attorney Dickerson satisfied the regulation. R. 17; see also Upton v. Comm’r of Soc.

Sec., No. CV 20-430, 2021 WL 1662491, at *1 (W.D. Pa. Apr. 28, 2021) (“Where, as here, the

ALJ excluded untimely evidence and provided every opportunity for Plaintiff to argue an

exception excusing the lateness of her filing, the Court finds no abuse of discretion in excluding

the late-filed materials.”); Acosta v. Saul, No. 3:18-CV-02136, 2019 WL 7407396, at *3 (M.D.

Pa. Nov. 12, 2019), report and recommendation adopted, No. 3:18-CV-2136, 2020 WL 42047

(M.D. Pa. Jan. 2, 2020) (“Because the ALJ thoroughly detailed his reasoning for rejecting

counsel’s reliance on an exception to the [five-day] rule [that there were unusual, unexpected or

unavoidable circumstances beyond the claimant’s control], there is no basis for reversal on this

ground.”).

In short, because the ALJ did not err in excluding the proffered medical evidence, such

30

exclusion does not require remand.

E. Step Five

Finally, Plaintiff contends that the Commissioner failed to carry his burden at step five of

the sequential evaluation process. Plaintiff’s Brief, ECF No. 9, pp. 22–23. However, because the

ALJ found, at step four, that Plaintiff could perform her prior relevant work as a finance manager

and never reached step five of the sequential evaluation process, this argument is utterly without

merit. See 20 C.F.R. § 404.1520(a)(4)(iv) (providing that a claimant will be found not disabled

where the ALJ finds at step four that the claimant can perform past relevant work).

V. CONCLUSION

For these reasons, the Court AFFIRMS the Commissioner’s decision.

The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42

U.S.C. § 405(g).

IT IS SO ORDERED.

Date: June 28, 2021 s/Norah McCann King

NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

31