MALETTO v. COMMISSIONER OF SOCIAL SECURITY

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TINA MARIE MALETTO,

Plaintiff, Civil Action No. 20-12508 (FLW)

v.

OPINION

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,

Defendant.

WOLFSON, Chief Judge:

Tina Marie Maletto (“Plaintiff”) appeals from the final decision of the Acting

Commissioner of Social Security, Kilolo Kijakazi (“Defendant”), denying Plaintiff’s application

for disability under Title II of the Social Security Act (the “Act”). After reviewing the

Administrative Record (“A.R.”), the Court finds that the Administrative Law Judge’s (“ALJ”)

decision was based on substantial evidence, and accordingly, the ALJ’s decision is AFFIRMED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff, born on January 25, 1958, was 56 years old on July 22, 2014,1 her alleged

disability onset date. (A.R. 27.) Plaintiff is 4’11’’, weighs 132 pounds, and has a high school

education. (A.R. 34.) On April 21, 2015, Plaintiff filed a Title II application for a period of

disability, alleging disability due to polymyositis, hand numbness, hand tingling, lack of vitamin

D, ulcers, a removed gall bladder, general soreness, high cholesterol, and heartburn. (A.R. 27,

1 Plaintiff’s application originally alleged her disability period began on January 1, 2012, but she

later amended this date. (A.R. 103-104.)

110.) This application was denied initially on August 6, 2015, and upon reconsideration on June

20, 2016. (A.R. 27.) Plaintiff then filed a written request for a hearing before an ALJ, which was

held on July 11, 2019. (Id.) On July 25, 2019, the ALJ found Plaintiff was not disabled under the

relevant statutes. (A.R. 41.) Plaintiff requested review of the ALJ’s decision by the Appeals

Council, which was denied on July 20, 2020, after the Council determined that there was no basis

to review the ALJ’s decision. (A.R. 1-4.) This appeal ensued.

A. Review of Medical Evidence

i. Medical Records

In July 2014, Plaintiff was treated at Monmouth Family Health Center upon complaint of

back pain with numbness, bilateral hand numbness, tingling, morning stiffness, decreased

sensation or weakness in her hands. (A.R. 399.) On examination, Dr. Tisha Tan, M.D., found that

Plaintiff had a normal range of motion in her extremities, intact senses, normal gait, and was able

to stand without difficulty. (A.R. 400.) Dr. Tan diagnosed Plaintiff with peripheral neuropathy,

back pain, and peptic ulcer disease. (A.R. 401.) Dr. Tan prescribed Tylenol, Clotrimazole, and

Gabapentin, as well as physical therapy and an MRI. (Id.) Plaintiff returned on August 5, 2014,

and Dr. Tan noted Plaintiff had signs and symptoms of carpal tunnel and had ganglion cysts on

both wrists. (A.R. 403.) But Plaintiff denied joint pain, limitation of motion, or muscular

weakness. (A.R. 404.) Further, Plaintiff’s x-rays of her wrist, left hip, and spine were

unremarkable. (A.R. 405.)

On September 30, 2014, Plaintiff stated she had intermittent right upper quadrant pain

when she ate fatty foods. (A.R. 409.) Again, Plaintiff denied joint pain, limitations of motion, or

muscular weakness. (A.R. 410.) Plaintiff’s examining physician, Dr. Mana Rao, M.D., noted

Plaintiff had a history of degenerative disc disease, but that she had completed physical therapy

and reported no further pain. (A.R. 411.) Dr. Rao also stated that Plaintiff had a history of ganglion

cysts in her wrist, but she was presently asymptomatic. (Id.) On May 5, 2015, Plaintiff saw Dr.

Tan for weakness in her bilateral upper extremities, numbness on her right and left arm and fingers,

thigh aches with numbness, and pain in both wrists and knees. (A.R. 424.) Dr. Tan referred

Plaintiff for x-rays on her knee, hand, and lumbar spine. (A.R. 426-427.) On May 18, 2015,

Plaintiff visited a neurologist, Dr. Khakoo, M.D. (A.R. 522.) Plaintiff complained of pain and

bilateral hand weakness. (Id.) Dr. Khakoo diagnosed Plaintiff with peripheral neuropathy,

cervical and lumbar spondylosis and herniation, and bilateral carpal tunnel syndrome. (A.R. 523.)

On June 9, 2015, Plaintiff underwent nerve conduction studies in both upper extremities and an

EMG in her right upper extremity. (A.R. 443.) The studies found prolonged right median distal

latency and absent right median sensory nerve action potential, normal motor and sensory

conductions in her right ulnar nerve and left median and ulner nerves. (A.R. 444.) These findings

were consistent with right carpal tunnel syndrome. (Id.)

Plaintiff attended physical therapy at Healing Star Physical Therapy and Wellness between

August 2015 and October 2015 with the goal of alleviating pain, stiffness, and tingling in her

fingers, hands, arms, and neck. (A.R. 446-447.) Her physical therapist’s initial assessment was

that Plaintiff’s symptoms stemmed from her cervical and upper back, and did not appear to be

carpal tunnel related that day. (A.R. 448.) On September 14, 2015, Plaintiff reported that she still

had pain and discomfort in her right neck, but is feeling better after therapy. (A.R. 468.) At her

final physical therapy session on October 2, 2015, Plaintiff was assessed as making very slow

progress, and that her symptoms were still aggravated by doing household chores. (A.R. 487.)

On November 30, 2015, Plaintiff reported to Dr. Assems Jacob that she had increased

tingling sensation and numbness in her arms, and that she was unable to sleep due to the numbness

and tingling that radiated from her fingers to her shoulder and neck. (A.R. 493.) Plaintiff also

complained of pain and numbness when holding weight in her hands, as well as hand weakness,

which resulted in dropping items, particularly when in her right hand. (Id.) Dr. Jacob found she

had normal range of motion in all of her extremities. (A.R. 495.)

In September 2016, Plaintiff reported neck pain and headaches to her physical therapist.

(A.R. 695.) Further, she complained of dropping objects, as well as throbbing pain when she slept.

(Id.) In December 2016, Plaintiff reported still having neck pain and headaches, but her headache

symptoms had improved by 70% and she felt a 50% improvement with hand numbness. (A.R.

731.) On January 11, 2017, Dr. Kevin C. McDaid, M.D., noted that Plaintiff had been given an

injection for her carpal tunnel six weeks prior and that she had experienced moderate relief, which

included no longer having numbness, but having some residual tingling at night. (A.R. 747.)

Plaintiff stated she was not interested in surgical treatment at the time, and Dr. McDaid stated she

should be treated conservatively with injections every three months, physical therapy, and

splinting until she feels she is not getting any better or worse. (Id.) In April 2017, Plaintiff reported

moderate relief from her prior injection, and she received another injection. (A.R. 748.)

On January 11, 2018, Dr. Joseph T. Glower reported that Plaintiff’s conservative treatment

had failed, and that she was still showing chronic carpal tunnel symptoms, including numbness

and tingling. (A.R. 756.) For this reason, Dr. Glower performed a right carpal tunnel release.

(Id.) On January 24, 2018, Plaintiff returned to Dr. Glower for a post-operation meeting and

reported no issues and that her parasthesias are improving. (A.R. 758.) On February 21, 2018,

Plaintiff visited Dr. Glower and stated that she had hypersensitivity in her wrist and decreased grip

strength. (A.R. 759.) But Plaintiff also claimed that her numbness and tingling had improved

greatly, aside from one episode overnight. (A.R. 759.) Dr. Hoan-Vu Nguyen, MD, reported on

April 25, 2018, that Plaintiff had been participating in occupational therapy and that Plaintiff’s

numbness and tingling had improved or were completely gone. (A.R. 760.)

ii. Medical Opinion Evidence

On the initial review of Plaintiff’s disability application, Dr. Jose Rabelo, a state agency

medical consultant, found Plaintiff’s impairments to be non-severe and Plaintiff to be not disabled.

(A.R. 119, 121.) Dr. Rabelo determined that Plaintiff had full range of motion in both her upper

and lower extremities, no neurological deficits, and normal gait. (A.R. 120.) Dr. Rabelo’s opinion

also noted that from the internal medicine point of view, Plaintiff had no restrictions in her physical

RFC. (Id.) On reconsideration, state medical consultant, Dr. Mary McLarnon, opined that Plaintiff

can perform light work. (A.R. 139.) Dr. McLarnon also found Plaintiff has no limitations in

climbing ramps or stairs, balancing, but has occasional or frequent limitations in climbing ladders,

stooping, kneeling, crouching and crawling. (A.R. 136.) Her opinion also found that Plaintiff was

limited in reaching overhead on both her right and left sides, handling and fingering on her right

side, but had no limitations as to feeling. (Id.) Plaintiff also had no visual, communicative, or

environmental limitations. (A.R. 137.) Dr. McLarnon determined that Plaintiff could perform her

past relevant work as “Jewelry Sales” as it is normally performed in the national economy. (A.R.

138.) Finally, Dr. McClarnon found Plaintiff to be not disabled, and noted that although Plaintiff’s

conditions resulted in some limitations in her ability to perform work activities, these limitations

are not sufficiently severe to prevent her from performing her past work. (A.R. 139.)

Dr. Betty Vekhnis, a consultative examiner, performed a neurological evaluation of

Plaintiff. (A.R. 540.) Dr. Vekhnis assessed that Plaintiff had no ataxia or dysmetria, she could

walk on her heels and toes, and that her finger to nose was negative. (A.R. 541.) Additionally,

Plaintiff had normal tone and strength in her upper and lower extremities, as well as no focal

weakness or focal atrophy. (A.R. 541.) Examination of Plaintiff’s hands showed no intrinsic

muscle atrophy and positive Tinel over her right wrist. (A.R. 541.) Further, Plaintiff’s sensory

exam was normal as to primary and cortical modalities, and her deep tendon reflexes were

physiological from her upper and lower extremities, and she showed no pathological reflexes.

(A.R. 541.) Dr. Vekhnis opined that Plaintiff demonstrated a non-focal neurological examination,

a history of right carpal tunnel syndrome, CTS, and moderate degenerative disc disease in her

cervical spine. (A.R. 541.) Dr. Vekhnis also opined that Plaintiff can use both hands for fine and

gross motor functions. (A.R. 541.)

B. Review of Testimonial Evidence

i. Plaintiff’s Testimony

At the hearing, Plaintiff testified that she lives with her sister, who helps her financially

and does things that are difficult for Plaintiff to do on her own, such as drive longer distances.

(A.R. 70-71.) Plaintiff explained that she does not drive longer distances anymore because her

vision is blurry, regardless of whether she wears glasses. (A.R. 71-72.) Plaintiff stated she

believed the blurry vision stemmed from her headaches, which made it difficult to focus or see

anything clearly. (A.R. 72.) Plaintiff also noted that her only source of income is food stamps.

(A.R. 85.)

As to her recent work history, Plaintiff explained she had previous jobs as a school bus

aide until 2012, a home health aide, which she stopped doing seven or eight years prior to the

hearing, and she had a home cleaning business until five years prior to the hearing. (A.R. 75-76.)

Plaintiff stated that she could no longer clean houses because she could not do the lifting,

scrubbing, or mopping because of her back and other body pains. (A.R. 101.) Plaintiff also worked

at jewelry store between 1998 and 2011. (A.R. 76-77.) Plaintiff testified she was an assistant

manager for eight or nine years, and a manager for about two years. (A.R. 102.) Plaintiff implied

that she was laid off because her company was going out of business. (A.R. 77.)

Plaintiff further testified as to her physical and mental limitations and medical history.

Plaintiff has had issues with gripping and sensation in her hands since at least when she stopped

working in 2012. (A.R. 89-90.) Plaintiff discussed her right-hand carpal tunnel surgery, and

explained that while the surgery eliminated the tingling in her hand, the doctors damaged her hand

when taking out stitches from the surgery, and as a result her hand is extremely sensitive where

the stitches came out and there is constant, throbbing pain that has affected her hand strength and

motion. (A.R. 74.) Even with the tingling gone in her right hand, Plaintiff described that she still

has strength issues in both hands, and in particular, she has issues dealing with small items, such

as picking up coins, buttoning buttons, and zipping her clothing. (A.R. 89-91.) Plaintiff testified

that she can sometimes pick up a cup of coffee, but cannot pick up a gallon of milk without help

from her opposing hand. (A.R. 90-91.) She also has difficulty twisting items to open things. (A.R.

91.) Prior to surgery, Plaintiff testified that while she sometimes wore wrist splints during the day

for pain, she mainly wore them at night due to the pain she felt from tossing and turning while

sleeping. (A.R. 86-87.) Plaintiff also described her lower back problems, which she explained

causes shooting paint from her left lower back down to her hip and thigh. (A.R. 78.) Plaintiff

reported that she has done physical therapy for her back issues, and has never had surgery or taken

medication for the pain, but has taken medication for tingling and numbness in her hands. (A.R.

78-79.) Plaintiff also complained of degenerative neck pain and complications from gall bladder

surgery that caused her to constantly go to the bathroom. (A.R. 82-83.)

Plaintiff testified that she has trouble standing for longer than 25 minutes at a time. (A.R.

87-88.) Plaintiff stated does not have pain when sitting in the upright position, but she has pain

when she stands up after sitting. (A.R. 88.) When she sits in a reclined position, Plaintiff states

that there is less pressure on her neck and back. (Id.)

ii. Vocational Expert’s Testimony

The Vocational Expert, William T. Slaven III (the “VE”), both responded to interrogatories

from the ALJ and attended a supplemental hearing with the ALJ and Plaintiff. (A.R. 50-63; A.R.

379-382.) In the interrogatories, the VE classified Plaintiff’s past work as manager of a jewelry

store under DOT code 185.167.046, which is skilled work, with a Specific Vocational Preparation

(“SVP”) of 7, which is light exertion. (A.R. 40, 379.) Her past work in jewelry sales was also

classified under DOT code 279.357-058, which is skilled work, with an SVP of 5, and is generally

performed at a light exertional level and was performed by Plaintiff at a medium exertional level.

(A.R. 40, 379.)

In the interrogatories, the VE was asked the following hypothetical question:

Assume [] that this individual has the [RFC] to perform light work as defined by

20 CFR 404.1567(b) and 416.967(b) except [t]he claimant can climb ramps and

stairs occasionally, climb ladders, ropes, or scaffolds occasionally, balance

frequently, stoop frequently, kneel frequently, crouch frequently, crawl

occasionally. Could the individual described . . . perform any of the [Plaintiff’s]

past jobs as actually performed by the claimant or as generally performed in the

national economy?

(A.R. 380.) The VE responded “yes.” (Id.) The interrogatory then asked the VE to assume the

same individual was also limited to frequent handling, fingering, and feeling bilaterally, and

further asked if the hypothetical individual could perform her past work as actually or generally

performed. (Id.) The VE also responded “yes.” (A.R. 381.) The final hypothetical asked if the

hypothetical individual could perform her past work, as generally or actually performed, if it was

limited to occasional handling, fingering, and feeling bilaterally. (Id.) The VE responded “no,”

because the combined titles in the DOT require frequent handling. (Id.) The VE also opined that

the Plaintiff acquired transferable skills that would transfer to an occupation that meets the RFC

with little vocational adjustment. (A.R. 382.) In particular, the vocational expert determined that

the skills could transfer to the DOT occupation of telephone solicitor. (Id.)

At the hearing, Plaintiff’s attorney asked the VE a number of clarifying questions. (A.R.

50-63.) The VE testified that Plaintiff’s past relevant work as a manager of retail stores and as a

jewelry sales person required frequently handling, fingering, and feeling. (A.R. 41, 381.) Further,

the VE also opined that a person who needed to use the restroom every 30 minutes would be off-

task too often to perform Plaintiff’s past work. (A.R. 55-56.) Additionally, the VE stated that a

person who was off-task 11 percent of the day because she was dropping items and had to pick

them up would be unable to perform the past work. (A.R. 56-57.)

C. The ALJ Decision

On July 25, 2019, the ALJ issued a written decision analyzing whether Plaintiff satisfied

her burden to demonstrate disability using the standard five-step process. (A.R. 27-41.) At step

one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since her

amended alleged onset date of disability. (A.R. 30.) At step two, the ALJ found that Plaintiff’s

degenerative disc disease and carpal tunnel syndrome were severe impairments. (Id.) At step

three, the ALJ determined that Plaintiff “does not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed impairments” in the

relevant CFR. (A.R. 32.) In making this finding, the ALJ specifically considered Listings 1.04,

1.08, 11.02, and 11.14. (Id.) The ALJ determined that Plaintiff’s degenerative disc disease did

not meet listing 1.04, because the record did not demonstrate compromise of a nerve root or the

necessary spinal cord findings. (Id.) According to the ALJ, Plaintiff’s carpal tunnel did not meet

listing 1.08, because her carpal tunnel release improved her symptoms and Plaintiff has not lost

function of her upper extremities. (A.R. 32-33.) Further, Plaintiff did not have any neurological

deficits as described by listing 11.01, and therefore, her impairments did not meet that listing

either. (A.R. 33.) There are no specific listings for migraine headaches, but the ALJ considered

listing 11.02 criteria, which is for epilepsy. (Id.) The ALJ determined that although the record

showed typical headache event patterns, the record did not show the frequency or severity

necessary to meet the 11.02 listing criteria. (Id.)

The ALJ then determined that Plaintiff had the residual functional capacity (RFC) to

perform light work, except that Plaintiff can occasionally climb ramps, stairs, ladders, ropes, or

scaffolds, she can occasionally crawl, and she can frequently balance, stoop, kneel, and crouch.

(A.R. 33.) At step four, the ALJ determined that Plaintiff was capable of performing “her past

relevant work as a jewelry salesperson as generally performed and her past relevant work as a

manager, retail store, as generally and as actually performed.” (A.R. 41.) As such, the ALJ

determined that Plaintiff was not disabled. (A.R. 41.)

II. STANDARD OF REVIEW

On a review of a final decision of the Commissioner of the Social Security Administration,

a district court “shall have power to enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,

with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews v. Apfel,

239 F.3d 589, 592 (3d Cir. 2001). The Commissioner's decisions regarding questions of fact are

deemed conclusive on a reviewing court if supported by “substantial evidence in the record.” 42

U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). While the court must examine

the record in its entirety for purposes of determining whether the Commissioner's findings are

supported by substantial evidence, Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978), the

standard is highly deferential. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Indeed,

“substantial evidence” is defined as “more than a mere scintilla,” but less than a preponderance.

McCrea v. Comm'r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). “It means such relevant

evidence as a reasonable mind might accept as adequate.” Plummer v. Apfel, 186 F.3d 422, 427

(3d Cir. 1999) (internal quotations and citations omitted). A reviewing court is not “empowered

to weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507 U.S. 924 (1993). Accordingly,

even if there is contrary evidence in the record that would justify the opposite conclusion, the

Commissioner's decision will be upheld if it is supported by the evidence. See Simmonds v.

Heckler, 807 F.2d 54, 58 (3d Cir. 1986).

Disability insurance benefits may not be paid under the Act unless Plaintiff first meets the

statutory insured status requirements. See 42 U.S.C. § 423(c). Plaintiff must also demonstrate 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 . . . .” Id. § 423(d)(1)(A);

see Plummer, 186 F.3d at 427. An individual is not disabled unless “his physical or mental

impairment or impairments are of such severity that he is not only unable to do his previous work

but cannot, considering his age, education, and work experience, engage in any other kind of

substantial gainful work which exists in the national economy[.]” Id. § 423(d)(2)(A). Eligibility

for supplemental security income requires the same showing of disability. Id. § 1382c(a)(3)(A)-

(B).

The Act establishes a five-step sequential process for evaluation by the ALJ to determine

whether an individual is disabled. See 20 C.F.R. § 404.1520. First, the ALJ determines whether

the claimant has shown that he or she is not currently engaged in “substantial gainful activity.” Id.

§ 404.1520(a)(4)(i); see Bowen v. Yuckert, 482 U.S. 137, 146-47 n.5 (1987). If a claimant is

presently engaged in any form of substantial gainful activity, he or she is automatically denied

disability benefits. See id. § 404.1520(b); see also Bowen, 482 U.S. at 140. Second, the ALJ

determines whether the claimant has demonstrated a “severe impairment” or “combination of

impairments” that significantly limits his physical or mental ability to do basic work activities. Id.

§ 404.1520(c); see Bowen, 482 U.S. at 146-47 n.5. Basic work activities are defined as “the

abilities and aptitudes necessary to do most jobs.” Id. § 404.1522(b). These activities include

physical functions such as “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying

or handling.” Id. § 404.1522(b)(1). A claimant who does not have a severe impairment is not

considered disabled. Id. at § 404.1520(c); see Plummer, 186 F.3d at 428.

Third, if the impairment is found to be severe, the ALJ then determines whether the

impairment meets or is equal to the impairments listed in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (the

“Impairment List”). Id. § 404.1520(a)(4)(iii). If the claimant demonstrates that his or her

impairments are equal in severity to, or meet those on the Impairment List, the claimant has

satisfied his or her burden of proof and is automatically entitled to benefits. See id. § 404.1520(d);

see also Bowen, 482 U.S. at 146-47 n.5. If the specific impairment is not listed, the ALJ will

consider in his or her decision the impairment that most closely satisfies those listed for purposes

of deciding whether the impairment is medically equivalent. See id. § 404.1526(a). If there is more

than one impairment, the ALJ then must consider whether the combination of impairments is equal

to any listed impairment. Id. An impairment or combination of impairments is basically

equivalent to a listed impairment if there are medical findings equal in severity to all the criteria

for the one most similar. Williams, 970 F.2d at 1186. If the claimant is not conclusively disabled

under the criteria set forth in the Impairment List, step three is not satisfied, and the claimant must

prove at step four whether he or she retains the RFC to perform his or her past relevant work. 20

C.F.R. § 404.1520(e); Bowen, 482 U.S. at 141.

If the claimant can perform past relevant work, the claimant is determined to not be

disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e); Bowen, 482 U.S. at 141-42. The claimant bears

the burden of demonstrating an inability to return to the past relevant work. Plummer, 186 F.3d at

428. Finally, if it is determined that the claimant is no longer able to perform his or her past

relevant work, the burden of production then shifts to the Commissioner to show, at step five, that

the “claimant is able to perform work available in the national economy.” Bowen, 482 U.S. at

146-47 n.5; Plummer, 186 F.3d at 428. This step requires the ALJ to consider the claimant's RFC,

age, education, and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). The ALJ must analyze

the cumulative effect of all the claimant's impairments in determining whether the claimant can

perform work and not disabled. Id.

III. PLAINTIFF’S CLAIMS ON APPEAL

First, Plaintiff maintains that her past relevant work was a composite job, i.e., a jewelry

manager who also conducts sales, and as such, the ALJ erred by determining whether Plaintiff

could perform that work as generally performed in the economy. (Pl. Br. at 3.) Second, Plaintiff

argues that the ALJ’s RFC determination failed to account for Plaintiff’s limitations as to fingering

and handling, and therefore, was not based on substantial evidence. (Pl. Br. at 8.)

A. Plaintiff’s Past Relevant Work is Not a Composite Job

Plaintiff contends that her past relevant work as “jewelry salesperson” and “manager, retail

store” was performed “simultaneously” and, as such, her relevant work was a composite job. (Pl.

Br. at 3.) In that connection, Plaintiff argues that, because her past work was a composite job, the

ALJ mistakenly considered whether she could perform her past work as generally performed, when

relevant Social Security regulations limit the ALJ to determining whether Plaintiff could perform

her past composite job as it was actually performed. (Pl. Br. at 5-7.) Defendant disagrees, and

argues that the ALJ did not find that the two DOT occupations at issue comprised a composite job,

but rather, the ALJ determined that Plaintiff had two separate jobs that qualified as past relevant

work and that each job had a DOT counterpart. (Def. Br. at 10.) In support, Defendant notes,

among other things, that Plaintiff’s own work history report and testimony indicate that she started

as a sales associate, and later, was promoted to a management position. (Def. Br. at 11; A.R. 92.)

I agree with Defendant, and find that Plaintiff’s past relevant work was not a composite job. As

such, I need not reach the question of whether the ALJ mistakenly considered her prior work as

generally performed.

In assessing a claimant's past relevant work,

(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 v. Comm'r

of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000)). According to the Social Security Administration,

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.

Titles II & XVI: A Disability Claimant's Capacity to Do Past Relevant Work, in Gen., SSR 82–62

(S.S.A. 1982); see also Burnett, 220 F.3d at 120; Garibay, 336 F. App'x at 158. In evaluating this

evidence, the ALJ should find 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 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.” S.S.R. 82–61. The

ALJ may rely on job descriptions found in the Dictionary of Occupational Titles (“DOT”) to assist

in determining the ordinary job requirements of the occupations in question. Id. “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.’” Garibay, 336 F.

App'x at 158 (quoting S.S.R. 82–61).

Because certain jobs “defy easy categorization” and do not fit within any job in the DOT,

the ALJ may determine that the claimant’s past work is a “composite job.” Levyash v. Colvin, No.

16-2189, 2018 WL 1559769, at *11 (D.N.J. Mar. 30, 2018). “A composite job is one which has

significant elements of two or more occupations and no counterpart in the DOT.” Schwartz v.

Berryhill, No. 17-854, 2018 WL 3575046, at *6 (W.D. Pa. July 25, 2018); see Garcia v. Colvin,

Civ. No. 12-4191, 2013 WL 3321509, at * 11 n.5 (N.D. Ill. June 28, 2013) (observing that, “if the

ALJ can accurately describe the main duties of past relevant work only by considering multiple

DOT occupations, the claimant may have performed a composite job.” (citation omitted)).

Here, Plaintiff’s position that her prior work was a composite job is based on an inaccurate

reading of the record and a misunderstanding of the ALJ’s decision. First, as required under

relevant regulations, the ALJ examined Plaintiff’s work history for “substantial gainful activity,

performed long enough for the [Plaintiff] to achieve average performance, [and] performed within

the relevant period[,]” and determined that Plaintiff had past relevant work in both “jewelry sales”

and “manager, retail.” (A.R. 40.) Plaintiff argues that in making this finding, the ALJ was

implicitly finding that these two DOT occupations, in combination, comprised her prior work as a

jewelry store manager, or a composite job. (Pl. Br. at 3.) This is incorrect. Rather, as Defendant

correctly argues, the ALJ was describing two separate jobs from Plaintiff’s work history that each

had their own DOT counterpart: one in “jewelry sales” and a second as “manager, retail.” (A.R.

40; A.R. 279-282.)2 This is confirmed by the record, which shows that Plaintiff was a jewelry

salesperson, and then was promoted into a new management position. (A.R. 54 (“Q. [Plaintiff]

had two [jobs], one as a manager in a jewelry store and one as a sales associate at a jewelry store.

A. Right[.]”); A.R. 92 (“Q: Now, I understand from reading your functional report that you started

as a . . . salesperson [and] worked your way up to management[?] A. Yes.”); A.R. 279-282.)

2 Countering Defendant’s argument, Plaintiff notes that the VE’s answers to hypotheticals

regarding whether a hypothetical person could perform Plaintiff’s past work were based on the

“combined titles,” that is, a combination of the “jewelry sales” and “management, retail” DOT

occupations. (Pl. Reply Br. at 1; A.R. 380-381.) In Plaintiff’s view, this supports her position that

the ALJ analyzed that her past work as a composite job. (Pl. Br. at 5.) While the VE’s use of the

word “combined” is, admittedly, confusing, based on the record, I disagree that the word

“combined” meant Plaintiff worked a composite job. First, Plaintiff’s work history report and

testimony are definitive that she held a job in jewelry sales, and then was promoted to jewelry

store manager. (A.R. 92; 279-282) Second, the VE stated at the supplemental hearing that Plaintiff

worked two separate prior jobs. (A.R. 54.) Third, the ALJ, citing to the VE’s interrogatories and

testimony, clearly read the VE’s statements to mean that Plaintiff held two separate positions that

each had DOT counterparts. (A.R. 41 (“[T]he [VE] testified that the [Plaintiff’s] past relevant

work as a manager of retail stores and as a jewelry sales person require frequently handling,

fingering and feeling. Additionally, [VE] Slaven opined that a[] hypothetical individual . . . could

perform the [Plaintiff’s] past relevant work as jewelry sales and manager, retail store.”) Finally,

there is no reading of the DOT occupations at issue that results in Plaintiff’s prior work being a

composite job. As I will explain infra, even if her job as “manager, retail” required her, as actually

performed, to conduct work required by “jewelry sales,” the duties of both occupations are

encompassed in the “manager, retail” DOT description, and therefore, her prior manager work is

not a composite job.

Moreover, after concluding that these two separate jobs qualified as Plaintiff’s past relevant work,

the ALJ went on to separately compare the physical and mental demands of each job to Plaintiff’s

RFC, as is required at step four. (A.R. 40; see Garibay, 336 F. App'x at 158 (“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.”)) The ALJ ended the analysis

by finding that Plaintiff “can perform her past relevant work as a jewelry salesperson as generally

performed and her past relevant work as a manager, retail store, as generally and as actually

performed.” (A.R. 41.) In sum, because each of these two jobs had their own DOT counterpart,

the ALJ did not, and had no basis to, find that Plaintiff’s past relevant work was a composite job.

See Schwartz, 2018 WL 3575046, at *6 (“A composite job is one which has significant elements

of two or more occupations and no counterpart in the DOT.”).

Second, Plaintiff also assumes that because her job as a jewelry store manager required

elements of both a manager and salesperson, her prior relevant work should have been found to be

a composite job. (See Pl. Br. at 3-5.) But, as explained supra, a finding of a composite job is only

permitted when the prior work in question does not have a DOT counterpart. Here, the “manager,

retail sales” DOT description covers Plaintiff’s prior work as a jewelry store manager that also had

sales duties:

Manages retail store engaged in selling specific line of merchandise . . . jewelry[.]

[P]erforming following duties personally or supervising employees performing

duties: Plans and prepares work schedules and assigns employees to specific duties.

Formulates pricing policies on merchandise according to requirements for

profitability of store operations. Coordinates sales promotion activities and

prepares, or directs workers preparing, merchandise displays and advertising copy.

Supervises employees engaged in sales work, taking of inventories, reconciling

cash with sales receipts, keeping operating records, or preparing daily record of

transactions for ACCOUNTANT (profess & kin.) 160.162-018, or performs work

of subordinates, as needed. Orders merchandise or prepares requisitions to

replenish merchandise on hand. Ensures compliance of employees with established

security, sales, and record keeping procedures and practices. May answer

customer's complaints or inquiries. May lock and secure store. May interview, hire,

and train employees. May be designated according to specific line of merchandise

sold, such as women's apparel or furniture; related lines of merchandise, such as

camera and photographic supplies, or gifts, novelties, and souvenirs; type of

business, such as mail order establishment or auto supply house; or general line of

merchandise, such as sporting goods, drugs and sundries, or variety store.

Manager, retail store, DOT 185.167-046, 1991 WL 671299 (emphasis added). Plaintiff testified

that as a manager, she was required to make schedules, load inventory, receive merchandise,

inspect merchandise, ensure the store was clean, change lightbulbs, and change displays, among

other tasks. (A.R. 95-97.) Further, Plaintiff testified that after being promoted to manager, she

was still required to do all of her salesperson duties. (A.R. 95-96.) These duties match the above

job description, which importantly, includes that a person doing this job “performs work of

subordinates, as needed.” As such, Plaintiff’s work as a retail sales manager fits within the

description of a DOT counterpart, and therefore, the ALJ was not required to determine whether

Plaintiff’s prior relevant work as a manager was a composite job. Accordingly, I need not

determine whether the ALJ conducted a proper past relevant work analysis for composite jobs.

B. Substantial Evidence Supports the ALJ’s RFC Determination

Next, Plaintiff argues that the ALJ’s RFC finding is not based on substantial evidence. (Pl.

Br. at 8.) Specifically, Plaintiff maintains that her functional limitations prohibit her from

performing light work, including performing frequent fingering and handling. (Pl. Br. at 11.)

Plaintiff asserts that there is undisputed evidence in the record that both her treating doctors and

the consultative examiner found that Plaintiff’s medical limitations only allow her to complete

occasional, rather than frequent, fingering and handling. (Id.) As such, Plaintiff maintains that

she cannot perform the work required by her RFC. (Pl. Br. at 15.) I disagree, and find that the

ALJ’s RFC determination is based on substantial evidence.

“[RFC] is defined as that which an individual is still able to do despite the limitations

caused by his or her impairment(s).” Burnett, 220 F.3d at 121 (quoting Hartranft v. Apfel, 181

F.3d 358, 359 n.1 (3d Cir. 1999)); see 20 C.F.R. § 404.1545(a). When a case is brought to an

administrative hearing, the ALJ is charged with ultimately determining the claimant’s RFC. 20

C.F.R. §§ 404.1527(e), 404.1546(c), 416.927(e), 416.946(c). “[I]n making a residual functional

capacity determination, the ALJ must consider all evidence before him,” and, although the ALJ

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

he rejects and his reason(s) for discounting such evidence.” Burnett, 220 F.3d at 121; see Cotter

v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). When assessing a claimant’s RFC, an ALJ must

consider all of the claimant’s medically determinable impairments which are supported by the

record, including those considered non-severe. 20 C.F.R. §§ 404.1545 (a)(2), 416.945 (a)(2); see

also Rutherford v. Barnhart, 399 F.3d 546, 554 (3d. Cir 2005). “Where the ALJ’s findings of fact

are supported by substantial evidence, [district courts] are bound by those findings, even if [the

courts] would have decided the factual inquiry differently.” Hagans v. Comm’r of Soc. Sec., 694

F.3d 287, 292 (3rd Cir. 2012) (internal quotation marks and citation omitted); see McCrea, 370

F.3d at 360 (“Substantial evidence has been defined as ‘more than a mere scintilla’; it means ‘such

relevant evidence as a reasonable mind might accept as adequate.’” (citation omitted)).

In his Opinion, the ALJ thoroughly “considered all symptoms and the extent to which these

symptoms can reasonably be accepted as consistent with the objective medical evidence . . . based

on the requirements of 20 CFR 404.1529 and 416.1529 and SSR 16-3p.” (A.R. 33.) After

considering this evidence, the ALJ found that Plaintiff’s “medically determinable impairments

could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements

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

consistent with medical evidence and other evidence in the record[.]” (A.R. 35.)

The ALJ gave particular care to analyze the medical evidence related to her carpal tunnel,

and found that “the record reveals that [Plaintiff] can frequently handle, feel, and finger.” (A.R.

36.) Specifically, the ALJ noted that on August 5, 2014, Dr. Eng found Plaintiff’s wrist x-rays to

be unremarkable, but that they showed carpal tunnel syndrome. (A.R. 35-36.) Thereafter, Dr. Eng

recommended that Plaintiff wear splints and continue physical therapy. (A.R. 36.) The ALJ also

noted that in September 2014, Dr. Rao found ganglion cysts on her wrists, but noted she was

asymptomatic. (Id.) Further, the ALJ discussed that in May 2015, Plaintiff reported to Dr. Tan

that she had bilateral upper extremities weakness in both wrists, and that she could comb her hair,

but not for long. (Id.) Dr. Tan diagnosed Plaintiff with a history of polymyositis carpal tunnel

syndrome, and referred Plaintiff for a neurological evaluation. (Id.) The ALJ explained that, a

few days later, Plaintiff visited neurologist, Dr. Khakoo, who diagnosed Plaintiff with bilateral

carpal tunnel syndrome and referred her for an EMG and nerve conduction studies. (Id.)

After the June 2015 EMG and nerve conduction studies revealed right carpal tunnel

syndrome, Plaintiff’s carpal tunnel was initially managed conservatively with physical therapy.

(Id.) The ALJ discussed Plaintiff’s physical therapy records, where Plaintiff reported constant

tingling in her fingertips and dropping things, but her physical therapist noted that Plaintiff’s wrist

showed normal range of motion. (A.R. 37.) Later, in October 2015, another physical therapist

assessed that Plaintiff was making slow progress. (Id.) In November 2015, Dr. Jacob, Plaintiff’s

treating doctor, diagnosed Plaintiff with bilateral numbness and tingling of her hands, but more in

her right hand. (Id.) In December 2015, Plaintiff reported that while she still had numbness in her

right hand, she further indicated that it was 50% better. (Id.) The ALJ also considered Plaintiff’s

function report from May 19, 2015, where Plaintiff noted her difficulties lifting more than two to

five pounds and using her hands for prolonged periods due to numbness. (A.R. 34.) The ALJ

stated that on a November 2, 2015 function report, Plaintiff maintained that she wears splints on

her hands, she was losing all feeling in her hands and arms, and she had difficulty opening and

lifting things. (Id.) The ALJ further explained that at her hearing, Plaintiff testified that she

underwent right hand carpal tunnel surgery, and although she continues to experience swelling and

weakness, the tingling is gone. (A.R. 34.) Plaintiff also testified that her doctors sought to have

her carpal tunnel release surgery on her left hand, but Plaintiff stated that she does not want to

undergo that surgery after her experience with side effects in her right hand. (A.R. 34.)

Based on the various considerations, the ALJ found that Plaintiff’s right-hand had

symptoms improved after carpal tunnel release surgery, and that she can now frequently finger,

feel and handle bilaterally. (A.R. 35, 37.) In so concluding, ALJ explained that in the year prior

to carpal tunnel release surgery, Plaintiff was treated with numerous injections for her carpal tunnel

symptoms. (A.R. 37.) After these injections, the ALJ noted that Plaintiff generally denied

numbness and weakness, and was no longer dropping things, although she did have trouble with

residual tingling during nighttime. (Id.) But after the carpal tunnel release surgery in February

2018, the ALJ noted that Plaintiff’s numbness and tingling were “completely gone” except for one

episode overnight. (A.R. 38.) The ALJ also relied on Plaintiff’s statements made in May 2018,

that her right hand was still weak compared to her left, but that her right hand was improving and

that she had decreased right wrist pain and was able to use the hand more with functional tasks.

(Id.)

The ALJ also considered the consultative medical opinions. The ALJ, first, pointed to the

opinion of Dr. Jose Rabelo, a state agency medical consultant, who opined in July 2015 that

Plaintiff’s impairments were non-severe, and that from an internal medicine perspective, she had

no physical restrictions. (A.R. 38.) This opinion was accorded partial weight to the degree it was

consistent with the present RFC assessment. (Id.) The ALJ further noted that Dr. Betty Vekhnis,

a consultative examiner, assessed in March 2016 that Plaintiff’s hands showed no intrinsic muscle

atrophy, positive Tinel’s test over right wrist, her sensory examination was normal to primary, and

her cortical modalities and her Phalen’s sign was positive on the right. (A.R. 39.) Dr. Vekhni

noted that despite a history of right carpal tunnel syndrome, Plaintiff did not use an assistive device

for ambulation and can use both hands for fine and gross motor functions. (Id.) Dr. Vekhni’s

opinion was accorded significant weight to the degree it was consistent with the Plaintiff’s present

RFC, and because it was generally consistent with the substantial evidence on the record, including

Plaintiff’s course of treatment, diagnostic tests, and Dr. McLarnon’s opinion. (Id.) The ALJ also

determined that Dr. Vekhni’s opinion was generally consistent with Plaintiff’s own statements

that, at least during the relevant period, Plaintiff worked as a home health aide and ran a cleaning

service. (Id.) Finally, the ALJ considered the opinion of Dr. Mary McLarnon, a state agency

medical consultant, from June 15, 2016, which opined that Plaintiff could perform a light range of

work. (Id.) Dr. McLarnon determined that Plaintiff had no limitations for feeling and can

frequently handle and finger with her right upper extremity. (Id.) This opinion was also accorded

significant weight as consistent with substantial evidence in the record. (Id.)

Furthermore, the ALJ determined that Plaintiff’s allegations were only partially consistent

with the record. (Id.) As an example, the ALJ noted that Plaintiff claimed significant limitations

with her hands, but she is independent in her daily living activities and her carpal tunnel syndrome

improved after right carpal tunnel release. (Id.) Additionally, Plaintiff’s claimed limitations were

not consistent with her reports that, during at least part of the relevant period, she worked as a

home health aide and ran a cleaning service. (A.R. 39-40.) The ALJ pointed out that that while

Plaintiff stated that doctors have recommended left hand surgery, the record did not reveal that

surgery was ever recommended. (A.R. 40.)

Nevertheless, Plaintiff argues that because her treating physicians’ diagnosis regarding her

ability to finger and handle is undisputed, the ALJ’s RFC is not based on substantial evidence. In

support, Plaintiff cites only to medical evidence that implies she cannot finger or handle, much of

which is, in fact, explicitly considered in the ALJ’s Opinion, and makes no mention of contrary or

inconsistent evidence in the record. (Pl. Br. at 12-15.) Specifically, Plaintiff points to various

physician reports from 2014-2016, as well as one report post-carpal tunnel surgery in March 2018,

where physicians noted that Plaintiff presented with hand numbness, tingling, decreased sensation,

carpal tunnel syndrome, degenerative joint disease, grip weakness, and pain from lifting, among

other symptoms. (Pl. Br. at 12-15.) But, as demonstrated supra, the ALJ clearly considered both

Plaintiff’s treating physicians’ diagnoses, and evidence that differed from these diagnoses,

particularly in the period following her January 2018 right carpal tunnel surgery. For example,

the ALJ noted Plaintiff’s treating physicians found that injections and surgery helped alleviate

Plaintiff’s symptoms. (A.R. 38.) This includes two post-operative statements made in February

and April 2018 when Plaintiff reported that her numbness and tingling had either improved or were

completely gone. (A.R. 37-38, 759-760.) The ALJ’s Opinion further indicates that on May 1,

2018, Plaintiff’s pain was a one at rest and three with activity. (A.R. 37, 674.) The ALJ also

observed that on May 31, 2018, Plaintiff reported that her right hand was still weak compared to

her left, but that it was improving and “she had decreased right wrist pain and was able to use [the]

hand more with functional tasks.” (A.R. 38.) Additionally, Plaintiff is incorrect in claiming that

the consultative examiners’ reports support the findings of her treating physicians. (Pl. Br. at 11.)

The ALJ explained that Dr. Rabelo’s consultative exam, which found her to be not disabled, stated

that Plaintiff had full range of motion in her extremities and that she had no physical restrictions.

(A.R. 38, 116-121.) In addition, Dr. McLarnon’s consultative exam found that she was capable of

light work and can frequently handle and finger with her right upper extremity. (A.R. 39, 136-

137.) In light of this, and other evidence, the ALJ determined that Plaintiff’s statements regarding

the effects of her impairments were “not entirely consistent” with the medical and consultative

evidence, and determined that Plaintiff had the RFC to perform light work with frequent fingering

and handling, among other limitations. (A.R. 35.) As such, it is clear that the ALJ’s RFC

determination was based on evidence well above the “mere scintilla” needed to meet the substantial

evidence standard. McCrea, 370 F.3d at 360.

IV. CONCLUSION

For the reasons set forth above, the ALJ’s decision is AFFIRMED. An appropriate order

shall follow.

Date: January 19, 2022 /s/ Freda L. Wolfson

Freda L. Wolfson

U.S. Chief District Judge