SANDOVAL v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FIDEL SANDOVAL,

1:20-cv-02837-NLH

Plaintiff,

OPINION

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

APPEARANCES:

ADRIENNE FREYA JARVIS

800 NORTH KINGS HIGHWAY

SUITE 304

CHERRY HILL, NJ 08034

On behalf of Plaintiff

ANDREW CHARLES LYNCH

SOCIAL SECURITY ADMINISTRATION

300 SPRING GARDEN ST

6TH FLOOR

PHILADELPHIA, PA 19123

On behalf of Defendant

HILLMAN, District Judge

This matter comes before the Court pursuant to Section

205(g) of the Social Security Act, as amended, 42 U.S.C. §

405(g), regarding Plaintiff’s application for Disability

Insurance Benefits (“DIB”)1 under Title II of the Social

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

Security Act. 42 U.S.C. § 423, et seq. The issue before the

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

finding that there was “substantial evidence” that Plaintiff

was disabled as of September 1, 2014. For the reasons stated

below, this Court will affirm that decision.

I. BACKGROUND AND PROCEDURAL HISTORY

On August 3, 2017, Plaintiff, Fidel Sandoval,

protectively filed an application for DIB,2 alleging that he

became disabled on September 1, 2014. Plaintiff claims that he

can no longer work as an airport safety security officer

because of his anemia (status-post colonic angiodysplasia);

diabetes mellitus; traumatic brain injury; migraine

headaches; lumbar/cervical degenerative disc disease; major

depressive disorder; anxiety disorder; post-traumatic stress

disorder; and attention deficit disorder.3

disability benefits when a claimant with a sufficient number

of quarters of insured employment has suffered such a mental

or physical impairment that the claimant cannot perform

substantial gainful employment for at least twelve months. 42

U.S.C. § 423 et seq.

2 A protective filing date marks the time when a disability

applicant makes a written statement of his or her intent to

file for benefits. That date may be earlier than the date of

the formal application and may provide additional benefits to

the claimant. See SSA Handbook 1507; SSR 72-8.

3 Under the regulations, Plaintiff, who was 40 at the time of

his alleged disability onset date, was defined as a “younger

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

After Plaintiff’s claim was denied initially and

on reconsideration, a hearing was held before an ALJ on

December 4, 2018, and a supplemental hearing was held on

September 6, 2019. On October 24, 2019, the ALJ issued her

decision, finding that Plaintiff was not disabled.

Plaintiff’s Request for Review of Hearing Decision was

denied by the Appeals Council on January 21, 2020, making the

ALJ’s decision final. Plaintiff brings this civil action for

review of the Commissioner’s decision.

II. DISCUSSION

A. Standard of Review

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

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

application for social security benefits. Ventura v. Shalala,

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

uphold the Commissioner’s factual decisions where they are

supported by “substantial evidence.” 42 U.S.C. §§ 405(g),

1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.

2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000);

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

Substantial evidence means more than “a mere scintilla.”

Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting

Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)).

It means “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. The inquiry

is not whether the reviewing court would have made the same

determination, but whether the Commissioner’s conclusion was

reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.

1988).

A reviewing court has a duty to review the evidence in

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

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

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

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

Willbanks v. Secretary of Health & Human Servs., 847 F.2d 301,

303 (6th Cir. 1988) (quoting Universal Camera Corp. V. NLRB,

340 U.S. 474, 488 (1951)).

The Commissioner “must adequately explain in the record

his reasons for rejecting or discrediting competent evidence.”

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

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

Circuit has held that an “ALJ must review all pertinent

medical evidence and explain his conciliations and

rejections.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d

112, 122 (3d Cir. 2000). Similarly, an ALJ must also consider

and weigh all of the non-medical evidence before him. Id.

(citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir.

1983)); Cotter v. Harris, 642 F.2d 700, 707 (3d Cir. 1981).

The Third Circuit has held that access to the

Commissioner’s reasoning is indeed essential to a meaningful

court review:

Unless the [Commissioner] has analyzed all

evidence and has sufficiently explained

the weight he has given to obviously

probative exhibits, to say that his

decision is supported by substantial

evidence approaches an abdication of the

court’s duty to scrutinize the record as a

whole to determine whether the conclusions

reached are rational.

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

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

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

is no requirement that the ALJ discuss in its opinion every

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

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

review, a district court is not “empowered to weigh the

evidence or substitute its conclusions for those of the fact-

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

substantial evidence inquiry, a reviewing court is entitled to

satisfy itself that the Commissioner arrived at his decision

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

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

1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).

B. Standard for DIB

The Social Security Act defines “disability” for purposes

of an entitlement to a period of disability and disability

insurance benefits as the inability to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be

expected to result in death, or which has lasted or can be

expected to last for a continuous period of not less than 12

months. See 42 U.S.C. § 1382c(a)(3)(A). Under this

definition, a Plaintiff qualifies as disabled only if her

physical or mental impairments are of such severity that she

is not only unable to perform her past relevant work, but

cannot, given her age, education, and work experience, engage

in any other type of substantial gainful work which exists in

the national economy, regardless of whether such work exists

in the immediate area in which she lives, or whether a

specific job vacancy exists for her, or whether she would be

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

(emphasis added).

The Commissioner has promulgated regulations4 for

4 The regulations were amended effective March 27, 2017. See

82 F.R. 5844. Because Plaintiff’s claim was filed after this

date, any applicable amendments are cited herein.

determining disability that require application of a five-step

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

step process is summarized as follows:

1. If the claimant currently is engaged in substantial

gainful employment, she will be found “not

disabled.”

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

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

3. If the severe impairment meets or equals a listed

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

Appendix 1 and has lasted or is expected to last for

a continuous period of at least twelve months, the

claimant will be found “disabled.”

4. If the claimant can still perform work she has done

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

severe impairment, she will be found “not disabled.”

5. Finally, the Commissioner will consider the

claimant’s ability to perform work (“residual

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

experience to determine whether or not she is

capable of performing other work which exists in the

national economy. If she is incapable, she will be

found “disabled.” If she is capable, she will be

found “not disabled.”

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

therefore dependent upon a finding that the claimant is

incapable of performing work in the national economy.

This five-step process involves a shifting burden of

proof. See Wallace v. Secretary of Health & Human Servs., 722

F.2d 1150, 1153 (3d Cir. 1983). In the first four steps, the

burden is on the claimant to prove every element of her claim

by a preponderance of the evidence. See id. In the final

step, the Commissioner bears the burden of proving that work

is available for the Plaintiff: “Once a claimant has proved

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

to the Commissioner to prove that there is some other kind of

substantial gainful employment he is able to perform.” Kangas

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

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

C. Analysis

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

in substantial gainful activity since the alleged onset of

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

impairments of anemia (status-post colonic angiodysplasia);

diabetes mellitus; traumatic brain injury; migraine headaches;

lumbar/cervical degenerative disc disease; major depressive

disorder; anxiety disorder; post-traumatic stress disorder;

and attention deficit disorder were severe. At step three,

the ALJ determined that Plaintiff’s severe impairments or his

severe impairments in combination with his other impairments

did not equal the severity of one of the listed impairments.

The ALJ then determined that Plaintiff had the residual

functional capacity (“RFC”) to perform sedentary work5 with

5 See 20 C.F.R. § 404.1567 (“Physical exertion requirements. To

certain restrictions, but that this RFC did not permit

Plaintiff to perform his past relevant work as an airport

safety security officer (step four). The ALJ considered

hearing testimony from a vocational expert (“VE”), and

determined that Plaintiff was not disabled because he was

capable of performing other jobs in the national economy, such

as a bench hand, final assembler, and document preparer (step

five).

Plaintiff presents several arguments as to how the ALJ

erred in her decision. Plaintiff challenges two findings

concerning his environmental limitations - noise and bright

lights. Plaintiff also contends that the ALJ improperly

considered his fatigue and his need to use a cane.6

All of these challenges arise from the ALJ’s RFC

determination.7 The ALJ found:

determine the physical exertion requirements of work in the

national economy, we classify jobs as sedentary, light,

medium, heavy, and very heavy.”).

6 Another one of Plaintiff’s challenges is to the finding that

he is capable of performing the job of bench hand. The Court

addresses this argument, infra, note 14.

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

despite [his or her] limitations.” 20 C.F.R. 404.1545(a).

The RFC determination is for the ALJ to determine, not a

medical source. See 20 C.F.R. §§ 404.1527(d)(2), 404.1546(c)

(explaining that the RFC finding is a determination expressly

reserved to the Commissioner rather than any medical source).

After careful consideration of the entire record, the

undersigned finds that the claimant has the residual

functional capacity to perform sedentary work as defined

in 20 CFR 404.1567(a) except he can occasionally climb

ramps or stairs; never climb ladders, ropes or scaffolds;

and occasionally balance, stoop, kneel, crouch and crawl.

He can tolerate no exposure to extreme heat or cold,

avoid concentrated wetness or humidity, noise, irritants

such as fumes, odors, dust and gases, poorly ventilated

areas or exposure to chemicals. He can have no exposure

to workplace hazards such as moving machinery or

unprotected heights. He is limited to simple, routine,

repetitive tasks in a work environment free of fast paced

production requirements involving only simple work

related decisions and few, if any, work place changes. He

can work for two hours before needing a break. He can

have no interaction with the public and only occasional

interaction with supervisors and co-workers, in proximity

but not on joint or shared tasks. He can frequently

finger, handle and feel and is allowed to wear colored

lenses in bright work environments. Finally, he requires

a sit/stand option available where he can alternate from

sitting to standing/walking every hour while staying on

task.

(R. at 20.)

1. Environmental limitations

• Noise

The ALJ found that Plaintiff “can tolerate no exposure to

extreme heat or cold, avoid concentrated wetness or humidity,

noise, irritants such as fumes, odors, dust and gases, poorly

ventilated areas or exposure to chemicals.”8 Plaintiff argues

8 Plaintiff interprets this sentence to mean that Plaintiff was

to “avoid concentrated noise.” (Docket No. 14 at 17.)

Although the sentence could have been drafted more clearly,

that interpretation appears to be correct. See Form SSA-4734-

BK at 5, providing four levels for environmental limitations

in the RFC: UNLIMITED, AVOID CONCENTRATED EXPOSURE, AVOID EVEN

that this finding is improper in three ways based on a June

10, 2019, medical source statement prepared by Plaintiff’s

treating physician, Sujata Soni, M.D., at Veterans Affairs.

In the environmental limitations section of the medical

source statement, Dr. Soni completed the form as follows:

cain |r Jo | i, [esi

Condition (Library) | (Office) (Heavy (Jackhammer)

Tratfic)

fee Ee TT

Identify the particular medical or clinical findings (i.¢., physical exam findings, x-ray findings, laboratory lest results,

history, and symptoms including pain, etc.) which support your assessment or any fimitations and why the findings

suppor the assessment.

VA audio

(R. at 4201.)

On different areas of the form regarding Plaintiff's

ability to perform various other work-related activities, Dr.

Soni indicated that her answers were “per pt.,” meaning that

what she recorded was based on Plaintiff’s statements to her.

That notation did not appear next to the “noise” section. (R.

at 4197-4202.)

In her decision, the ALJ did not consider Dr. Soni’s

medical source statement to constitute a medical opinion,’

MODERATE EXPOSURE, AVOID ALL EXPOSURE.

° An ALJ is required to state what weight he or she ascribes to

1]

explaining,

In June 2019, Sujata Soni, M.D., a treating physician,

prepared a Medical Source Statement regarding the

claimant’s functional limitations; however, the

limitations assessed therein appeared “per [patient]” and

did not represent Dr. Soni’s individual assessment of the

claimant’s abilities and restrictions (Exhibit 18F).

Rather, they appeared to merely recite the claimant’s

allegations and description of his symptoms. As such,

this record does not constitute a medical opinion.

(R. at 28.)

Plaintiff argues that the ALJ erred (1) by not directly

addressing Dr. Soni’s finding that Plaintiff required a

“quiet” work environment, and instead without explanation

found that Plaintiff needed to “avoid concentrated noise,”

which is a less limiting limitation than “quiet”; (2) by not

considering Dr. Soni’s medical source statement to constitute

her medical opinion with regard to this environmental

limitation because “per pt” was not noted, and Dr. Soni

checked “quiet” based on the clinical findings of a “VA

audio”; and (3) Dr. Soni’s requirement that Plaintiff needs a

“quiet” work environment was not considered by the vocational

a medical opinion, but not to other forms of medical evidence.

Rafine v. Commissioner of Social Security, 2020 WL 3073829, at

*5 (D.N.J. 2020); see 20 C.F.R. § 404.1527(c) (“How we weigh

medical opinions. Regardless of its source, we will evaluate

every medical opinion we receive. Unless we give a treating

source’s medical opinion controlling weight under paragraph

(c)(2) of this section, we consider all of the following

factors in deciding the weight we give to any medical

opinion.”).

expert or the ALJ when it was determined Plaintiff was capable

of performing three jobs, all of which have “moderate” noise

levels.

According to SSR 96-9p, “Since all work environments

entail some level of noise, restrictions on the ability to

work in a noisy workplace must be evaluated on an individual

basis. The unskilled sedentary occupational base may or may

not be significantly eroded depending on the facts in the case

record. In such cases, it may be especially useful to consult

a vocational resource.” Here, the ALJ did just that.

At the hearing, the ALJ asked the VE to consider a

hypothetical person with an RFC that matched Plaintiff’s RFC,10

10 An ALJ is only required to pose hypotheticals to a VE that

contain the claimant’s medically established impairments,

rather than all of the impairments a claimant claims. See

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

(citing Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir. 2002)

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

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

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

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

require an ALJ to submit to the vocational expert every

impairment alleged by a claimant. Rather, in posing a

hypothetical to the VE, references to all impairments

encompass only those that are medically established. And that

in turn means that the ALJ must accurately convey to the

vocational expert all of a claimant's credibly established

limitations. As the Third Circuit noted in Rutherford,

objections to the adequacy of hypothetical questions posed to

a vocational expert often boil down to attacks on the RFC

assessment itself. Accordingly, if the ALJ did not

incorporate the limitation into the RFC, then the ALJ did not

need to incorporate the limitation into the hypothetical posed

including, “We’re going to avoid even moderate exposure to

extreme heat and cold. We’re going to avoid concentrated

exposure to wetness, humidity, noise, vibration, fumes, odors,

dusts and gases and poor ventilation.” (R. at 555.) The VE

asked a clarifying question: “Where you had said with regard

to noise, . . . if I just kept it at a 3, which is moderate,

is that okay or does it have to go down to a 2, which is

quiet?” (Id.) The ALJ answered, “No. We -- we would be

avoiding concentrated exposure, but not all exposure.” (Id.)

The VE responded with several jobs including a bench hand,

final assembler, and document preparer, which are of

“moderate” noise levels.11 (Id. at 557-58.)

to the VE.” (internal quotations omitted)).

11 See U.S. Dep’t of Labor, Selected Characteristics of

Occupations in the Revised Dictionary of Occupational Titles

(1993) (SCO), at D-2 (defining SCO Noise Intensity Level)

(“[Code] 2 [Level] Quiet [Illustrative Examples] library; many

private offices; funeral reception; golf course; art museum”);

id. (“[Code] 3 [Level] Moderate [Illustrative Examples]

business office where typewriters are used; department store;

grocery store; light traffic; fast food restaurant at off-

hours”); see also Program Operations Manual System (POMS), § DI

25001.001(A)(49) (Agency manual reiterating SCO definitions of

noise levels), https://secure.ssa.gov/poms.nsf/lnx/0425001001:

49. Noise level

A rating in the SCO based on the following coding system:

Code Level Illustrative Examples

1 Very quiet Isolation booth for hearing test

Plaintiff contends that the ALJ failed to reconcile Dr.

Soni’s checkmark for “quiet” based on the “VA audio” with the

ALJ’s finding that Plaintiff was capable of performing jobs

that were at the “moderate” noise level. Plaintiff contends

that this in error because not only did the ALJ fail to

consider Dr. Soni’s remark about Plaintiff’s exposure to noise

to be a medical opinion, such an opinion should have been

afforded great weight because it was offered by a treating

source. See Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.

2000) (explaining that a “cardinal principle guiding

disability eligibility determinations is that the ALJ accord

treating physicians’ reports great weight, especially when

their opinions reflect expert judgment based on a continuing

observation of the patient’s condition over a prolonged period

of time”).

The Court does not agree. First, even if the Court

considered Dr. Soni’s checkmark for “quiet” based on the “VA

audio” to constitute a medical opinion, it is “weak evidence”

2 Quiet Library, many private offices

3 Moderate Department or grocery store

4 Loud Large earth movers, heavy traffic

5 Very loud Rock concert, jack hammer

in this form. See Rafine v. Commissioner of Social Security,

2020 WL 3073829, at *6 (D.N.J. 2020) (citing Stelzer v.

Commissioner of Social Security, 2019 WL 950165, at *6 (D.N.J.

2019) (citing Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir.

1993) (“Form reports in which a physician’s obligation is only

to check a box or fill in a blank are weak evidence at

best.”). Dr. Soni completed the form on June 10, 2019, and

Dr. Soni’s reference to “VA audio” is without any substantive

explanation of when the test was conducted, what the test

measured, and how the results of that test equated to a

finding that Plaintiff was restricted to a “quiet” work

environment as of June 10, 2019. The lack of any meaningful

explanation to support the check in the box for “quiet”

renders this opinion to be thin support for a more restrictive

limitation of Plaintiff’s exposure to noise. See Zonak v.

Commissioner of Social Sec., 290 F. App’x 493, 497 (3d Cir.

2008) (affirming the ALJ’s rejection of the plaintiff’s

treating physician’s opinion because it was provided on a

check-box form and no reasons were given in support of the

doctor’s conclusion on that form)).

Second, the record evidence recited by the ALJ in her

decision does not support Dr. Soni’s opinion. In April 2015

and November 2017, Plaintiff reported a startle effect with

loud noises, but in addition to participating in activities

such as playing video games, watching TV, and expressing a

desire to return to school, he was able to travel to

California by airplane in October 2015 and December

2017/January 2018, and while there he visited family and went

to museums and wineries. (R. at 25-26.) In January 2019,

Plaintiff was able to start college. (R. at 26.) Medical

records and reports of consultative examiners did not note

that Plaintiff reported any issues with noise during any of

those activities. (Id.)

Additionally, in noting that there was a lack of evidence

of significant residual limitations with regard to Plaintiff’s

exposure to noise, the ALJ also noted that in March 2018, Emil

Liebman, M.D., a state agency medical consultant, found that

Plaintiff had no severe hearing impairments, and that as of

April 2019, Plaintiff had been having a positive response to

hearing aids, which assisted his ability to understand

conversations in noisy environments and listen to TV at normal

levels.12 (R. at 27, 142.)

Based on the foregoing record evidence, the Court finds

that substantial evidence supports the ALJ’s determination

12 The ALJ related that it was noted in March 2018 that

Plaintiff had tinnitus and was fitted with hearing aids, which

reportedly improved this condition. (R. at 16.)

that Plaintiff was to “avoid concentrated exposure” to noise,

which equates to a moderate noise level work environment of

the jobs suggested by the VE. Other than Dr. Soni’s checkmark

for “quiet” on the medical source statement form, the

remainder of the record evidence supports the ALJ’s RFC

determination. Thus, even if the ALJ erred as Plaintiff

argues by failing to consider Dr. Soni’s check in the box for

“quiet” as a medical opinion of a treating medical source,

such error is harmless. See McGraw v. Commissioner Social

Sec., 609 F. App’x 113, 116 (3d Cir. 2015) (citing Rutherford,

399 F.3d at 553 (holding that any error that would not affect

the outcome of the proceeding was harmless)); see also Plummer

v. Apfel, 186 F.3d 422, 439 (3d Cir. 1999) (“[A]n ALJ is

permitted to accept or reject all or part of any medical

source’s opinion, as long as the ALJ supports his assessment

with substantial evidence.”), cited by Brownawell v.

Commissioner, 554 F.3d 352, 355 (3d Cir. 2008)); Cotter v.

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

cognizant that when the medical testimony or conclusions are

conflicting, the ALJ is not only entitled but required to

choose between them.... [W]e need from the ALJ not only an

expression of the evidence s/he considered which supports the

result, but also some indication of the evidence which was

rejected.”).

• Bright lights

The ALJ observed that Plaintiff sustained several head

injuries while in the military, he reported several episodes

of blast exposures from rocket launchers which were associated

with dizziness, and he reported feeling dazed and confused

with tunnel vision with some head injuries. (R. at 24.) The

ALJ related that treatment notes since the alleged onset date

reflected Plaintiff’s history of traumatic brain injuries

(“TBI”), which mostly manifested in migraine headaches. (Id.)

The ALJ further noted, however, that through 2018-19 Plaintiff

planned to attend college, and in May 2019 Plaintiff reported

his headaches had improved, with his headaches occurring 1-2

times per week, they were of milder severity, and they

resolved with his prescribed medication. (Id.) The ALJ

concluded,

Considering his history of TBIs and resultant migraines,

and in light of his hearing testimony regarding light

sensitivity and need for colored lenses, the undersigned

finds the claimant is restricted from work around

workplace hazards (due to potential distractibility or

vision issues), [he] must be allowed to wear colored

lenses in bright colored environments, and [he] requires

the environmental restrictions identified above due to

potential migraine triggers.

(Id.) In the statement of Plaintiff’s RFC, the ALJ determined

that Plaintiff “is allowed to wear colored lenses in bright

work environments.” (R. at 20.)

Plaintiff argues that these findings were in error

because the ALJ failed to give any reason for rejecting

Plaintiff’s testimony that colored lenses in his glasses

delayed but did not prevent the onset of headaches in

environments with bright lights. Plaintiff argues that this

error was harmful because the jobs of bench hand and final

assembler could not be performed by Plaintiff because, as the

VE testified, those jobs usually had fluorescent lighting,

which is “bright light.” Plaintiff further argues that the VE

testified that even though the document preparer job would

have “typical incandescent lighting,” “the vocational expert

did not say that such incandescent lighting would not be

bright,” and a “light that is not fluorescent can be bright.”

(Docket No. 14 at 27.)

Plaintiff’s arguments are unpersuasive. First, contrary

to Plaintiff’s contention that the ALJ provided no explanation

as to why she rejected Plaintiff’s testimony, the ALJ properly

supported the RFC regarding Plaintiff’s limitation with bright

lights.13 The ALJ noted Plaintiff’s history of TBIs and

13 See SSR 16-3-p (“An individual’s statements may address the

frequency and duration of the symptoms, the location of the

symptoms, and the impact of the symptoms on the ability to

perform daily living activities. An individual’s statements

may also include activities that precipitate or aggravate the

migraines, but further noted that he desired to attend

college, and that as of May 2019 his migraines had improved,

were limited to 1-2 times a week, and were milder. Based on

that evidence, the ALJ determined that Plaintiff did not need

to avoid jobs that had bright lights, but rather Plaintiff was

limited to jobs where he could wear glasses with colored

lenses to reduce the negative effects of bright lights.

Plaintiff’s challenge to this finding amounts to a mere

disagreement with the ALJ’s assessment rather than showing

that the ALJ’s findings were not properly supported.14

Second, even accepting that Plaintiff would not be able

to perform the jobs of bench hand and final assembler because

those jobs would have bright fluorescent lighting, and glasses

symptoms, medications and treatments used, and other methods

used to alleviate the symptoms. We will consider an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms, and we will evaluate whether the

statements are consistent with objective medical evidence and

the other evidence.”).

14 See, e.g., Perkins v. Barnhart, 79 F. App’x 512, 514–15 (3d

Cir. 2003) (“Perkins’s argument here amounts to no more than a

disagreement with the ALJ's decision, which is soundly

supported by substantial evidence.”); Moody v. Commissioner of

Social Security Administration, 2016 WL 7424117, at *8 (D.N.J.

2016) (“[M]ere disagreement with the weight the ALJ placed on

the opinion is not enough for remand.”); Grille v. Colvin,

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

essence, Plaintiff's argument here amounts to nothing more

than a mere disagreement with the ALJ's ultimate decision,

which is insufficient to overturn that decision.”).

with colored lenses would not be helpful, the VE testified

that the document preparer job would not have such bright

lights. Although, as points out as a practical matter “light

that is not fluorescent can be bright,” the VE did not

identify the document preparer job as having “bright light”

working conditions, which the VE distinguished from the other

two jobs which did. At the end of the five-step analysis, an

ALJ need only establish that a claimant is capable of

performing one job that exists in significant numbers in the

national economy, and with regard to Plaintiff’s bright light

argument, the document preparer job meets that requirement.15

See Penrose v. Commissioner of Social Security, 2020 WL

7640585, at *7 (D.N.J. 2020) (citing Sasse v. Commissioner

of Social Security, 2019 WL 1233553, at *8 (D.N.J. 2019)

(citing Reed v. Commissioner of Social Security, 2018 WL

5617549, at *6 (D.N.J. 2018) (citing Nalej v. Berryhill, 2017

WL 6493144, at *11 (D.N.J. 2017) (explaining that SSA

regulations provide that work exists in the national economy

15 This one-job requirement also defeats Plaintiff’s challenge

to the ALJ’s finding that Plaintiff was capable of performing

the bench hand position based on the “apparent obvious

conflict between [the VE’s] testimony and the DOT with respect

to the handling that work as a bench hand requires.” (Docket

No. 14 at 30.) Even if this were true, Plaintiff has not

shown how he is incapable of performing the document preparer

position.

when there is a significant number of jobs in one or more

occupations that an individual can perform, and holding that

even if the ALJ erred in finding the plaintiff capable of

performing two of three jobs, he did not err as to the third

job, and that finding as to only one job was sufficient to

support his determination that the plaintiff was not

disabled)).

2. Fatigue

Plaintiff argues that the ALJ’s finding that he could

work at the sedentary level for eight hours per day, five days

per week, or an equivalent work schedule does not properly

account for his fatigue, evidence of which he established

through his testimony and medical records. The Court does not

agree.

Over several pages in her decision, the ALJ detailed

Plaintiff’s testimony, including about his fatigue, and the

medical evidence regarding Plaintiff’s conditions which were

causing his fatigue. In consideration of that evidence, the

ALJ concluded,

[T]he claimant is limited to a range of work at the

sedentary exertional level, with the additional postural

and environmental restrictions adopted above; considering

his neuropathy, anemia, fatigue and bleeding risk, the

undersigned finds it prudent to restrict him from work

around hazards such as moving machinery or unprotected

heights.

(R. at 14.) Thus, by finding that Plaintiff was limited to

sedentary work,16 along with several other limitations, the ALJ

specifically accounted for Plaintiff’s fatigue. The ALJ did

not err in considering Plaintiff’s fatigue.17

3. Use of a cane

Plaintiff argues that that ALJ erred in not taking into

account that Plaintiff began using a case prescribed by Dr.

Soni in June 2019. This argument is unavailing.

The ALJ detailed Plaintiff’s orthopedic impairments, and

noted,

Though the claimant has not required significant

treatment for his spinal complaints, the undersigned

finds it prudent to limit him to a range of work at the

sedentary exertional level, with the additional postural

and environmental restrictions adopted above.

Furthermore, considering his potential for increased pain

16 20 C.F.R. § 404.1567(a) (“Sedentary work involves lifting no

more than 10 pounds at a time and occasionally lifting or

carrying articles like docket files, ledgers, and small tools.

Although a sedentary job is defined as one which involves

sitting, a certain amount of walking and standing is often

necessary in carrying out job duties. Jobs are sedentary if

walking and standing are required occasionally and other

sedentary criteria are met.”).

17 The Court also does not find compelling Plaintiff’s one-

sentence argument that the ALJ should have independently

obtained medical-expert testimony to address the functional

impact beyond environment restrictions of Plaintiff’s fatigue.

It is Plaintiff’s burden to prove that an impairment impacts

his ability to work. See Wallace v. Secretary of Health &

Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (explaining

that the first four steps of the sequential step analysis, the

burden is on the claimant to prove every element of her claim

by a preponderance of the evidence).

with maintaining prolonged positions, the undersigned

finds he requires a sit/stand option as detailed above.

As discussed above, the undersigned has also been

diagnosed with carpal tunnel syndrome, and this condition

has been accommodated with manipulative restrictions set

forth in the residual functional capacity adopted herein.

Though the claimant testified he had used a cane for the

past 5-6 months, there is no evidence to suggest that

such cane usage can be expected to persist for at least

12 months and thus has not been accommodated in the above

residual functional capacity.

(R. at 25.)

Plaintiff argues that substantial evidence does not

support the conclusion that his use of a case was not expected

to last for at least 12 months. Under the Social Security

Act, a disability is the “inability to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12

months . . . .” 42 U.S.C. § 423(d); 20 C.F.R. § 404.1509

(“Unless your impairment is expected to result in death, it

must have lasted or must be expected to last for a continuous

period of at least 12 months. We call this the duration

requirement.”). Plaintiff argues that the ALJ did not cite

evidence or medical records to show that Plaintiff’s herniated

lumbar disk associated with radiculopathy would spontaneously

remit within one year, and a “herniated lumbar disc with

radiculopathy is not something like an ankle sprain that even

a layperson knows would, absent unusual circumstances,

generally get better within a year. The ALJ thus improperly

played doctor, implying that she knew that whatever caused Mr.

Sandoval’s need for a cane in mid-2019 would no longer cause

that need within a year.” (Docket No. 14 at 24.)

To the contrary, the ALJ’s RFC specifically accommodated

for Plaintiff’s orthopedic impairments, and the ALJ noted,

“July 2019 imaging of his lumbar spine revealed no overall

change since March 2017 imaging.” (R. at 23.) Plaintiff did

not receive or use a cane until June 2019. Thus, the ALJ’s

conclusion that Plaintiff’s use of a cane did not meet the

durational requirement because his lumbar spine condition had

not changed since March 2017 is supported by substantial

evidence.18

18 The Court notes that Dr. Soni did not opine on the necessity

of Plaintiff using a cane - the prescribing note simply

states, “6/11 nc plz dispense cane also.” (R. at 4263.) The

Court also notes another portion of the record visit:

Reviewed with patient for completion of form:

states ext weakness and physical decline in last 1 l/2yr

however informed writer 6/6/19 when he brought SS

disability forms from lawyer who is guiding and assisting

in pt care. There is a very sudden abrupt change in what

patient reveals to writer regarding decreased gi

increased weakness dropping things decreased

ambulation[.]

(Id.)

III. Conclusion

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

and may only determine whether substantial evidence supports

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

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

1182 (3d Cir. 1992))(explaining the pinnacle legal principal

that a district court is not empowered to weigh the evidence

or substitute its conclusions for those of the ALJ). For the

foregoing reasons, the ALJ’s determination that Plaintiff was

not disabled as of September 1, 2014 is supported by

substantial evidence. The decision of the ALJ will therefore

be affirmed.

An accompanying Order will be issued.

Date: July 26, 2021 s/ Noel L. Hillman

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