BROWN IV v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WILLIAM B.,

1:20-cv-13849-NLH

Plaintiff,

OPINION

v.

COMMISSIONER OF SOCIAL

SECURITY,1

Defendant.

APPEARANCES:

PAUL HOWARD YOUNG

YOUNG, MARR, MALLIS & DEANE, LLC

3554 HULMEVILLE RD.

SUITE 102

BENSALEM, PA 19020

On behalf of Plaintiff

ELIZABETH S. MATONI

SOCIAL SECURITY ADMINISTRATION

OFFICE OF THE GENERAL COUNSEL

300 SPRING GARDEN STREET

6TH FLOOR

PHILADELPHIA, PA 19123

On behalf of Defendant

HILLMAN, District Judge

This matter comes before the Court under § 1614(a)(3)(A) of

the Social Security Act, as amended 42 U.S.C. § 1382c(a)(3(A),

1 On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner

of the Social Security Administration.

regarding Plaintiff’s application for supplemental security

income (“SSI”)2 under Title XVI of the Social Security Act. 42

U.S.C. § 1381 et seq. The issue before the Court is whether the

decision of Administrative Law Judge (“ALJ”) that Plaintiff was

not disabled at any time since November 4, 2008, the date the

Commission last determined Plaintiff was not disabled, was

supported by substantial evidence. For the reasons stated

below, this Court will affirm the Commissioner’s decision.

I. BACKGROUND AND PROCEDURAL HISTORY

On January 11, 2018, Plaintiff filed an application for

SSI, alleging that he became disabled on June 2, 1988. The ALJ

considered evidence of his claimed disability dating from

November 3, 2008 onward.3 Plaintiff claims that he can no longer

work as a property assessment monitor, because of his

impairments of sickle cell anemia, asthma, and anxiety.4

Plaintiff’s claim was denied initially and upon

2 Supplemental Security Income is a program under the Social

Security Act that provides supplemental security income to

individuals who have attained age 65, or are blind or disabled.

42 U.S.C. § 1381 et seq.

3 Plaintiff previously applied for SSI alleging an onset date of

June 2, 1988, the date of his birth. That request was denied on

November 3, 2008. (R. at 12).

4 On application date of January 11, 2018, Plaintiff was 29 years

old, which is defined as “a younger individual” (age 18-49). 20

C.F.R. § 404.1563.

reconsideration. Plaintiff requested a hearing before an ALJ,

which was held on December 6, 2019. On January 2, 2020, the ALJ

issued an unfavorable decision. Plaintiff’s Request for Review

of Hearing Decision was denied by the Appeals Council on

September 11, 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 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 factfinder, 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 SSI

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 regulations for

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 of the

analysis, 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 January 11, 2018, the

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

impairments of sickle cell disease and asthma were severe. The

ALJ also determined that the impairment of anxiety was not

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 his

listed impairments.

The ALJ next determined that Plaintiff had the residual

functional capacity (“RFC”) to perform work at the sedentary

level,5 with certain exertional restrictions. At steps four and

five, the ALJ determined that Plaintiff was not able to perform

his past relevant work, but Plaintiff’s RFC rendered him capable

of performing other jobs in the national economy, such as a

document preparer, surveillance systems monitor, or a table

worker. The ALJ therefore concluded that Plaintiff was not

disabled.

Plaintiff argues that the ALJ erred in her decision because

she failed to consider whether Plaintiff met Medical Listed

Impairment 7.18 for Repeated Complications of Hematological

Disorders, failed to accord proper weight to Plaintiff’s

treating physician, Dr. Stephen Wallace, failed to accord proper

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

determine the physical exertion requirements of work in the

national economy, we classify jobs as sedentary, light, medium,

heavy, and very heavy.”).

weight to Plaintiff’s testimony, and failed to follow the

vocational expert’s conclusions.

The ALJ’s failure to explicitly address Listing 7.18

presents a close call for the Court. The Third Circuit has

ruled that it would be preferable for ALJs to specifically

identify each of the listed impairments under consideration in a

case, but as long as the ALJ’s discussion of medical impairments

allows the court to evaluate which listings were considered, the

ALJ’s decision may be upheld. Arroyo v. Comm'r of Soc. Sec.,

155 F. App'x 605, 608 (3d Cir. 2005) (“Although we would

encourage ALJs to specifically identify the listed impairments

under consideration, we are able to discern the particular

listed impairments considered in this cased based on the ALJ's

discussion of the relevant evidence and his related conclusion

that Arroyo's combined impairments were not severe enough to

“‘meet or medically equal one of the listed impairments.’”)

“[A]n ALJ need not specifically mention any of the listed

impairments in order to make a judicially reviewable finding,

provided that the ALJ's decision clearly analyzes and evaluates

the relevant medical evidence as it relates to the Listing

requirements.” Scuderi v. Comm'r of Soc. Sec., 302 F. App'x 88,

90 (3d Cir. 2008). Generally, even if the ALJ does not

enumerate the listings under consideration, a statement that

none of the listings applied followed by a searching review of

the medical evidence is sufficient. See Polanco v. Colvin, 2016

WL 4408821, at *2 (D.N.J. Aug. 16, 2016); Sassone v. Comm'r of

Soc. Sec., 165 F. App'x 954, 960 (3d Cir. 2006) (affirming the

ALJ’s decision where “the ALJ implicitly addressed in the

negative each of the requirements of [a particular listing]”).

Here, the ALJ did not specifically mention Listing 7.18.

However, the ALJ made clear that she was considering whether

Plaintiff’s impairments met any of the Listings. (R. at 17).

(“The undersigned has considered all of the claimant’s

impairments individually and in combination but can find no

evidence that the combined clinical findings from such

impairments reach the level of severity contemplated in the

listings.”) The fact that the ALJ explicitly referenced Listing

7.05, (id.), does not change the Court’s conclusion because she

“implicitly addressed in the negative each of the requirements

of” Listing 7.18. Sassone, 165 F. App'x at 960.

Listing 7.18 presents a carveout for hematological

disorders that do not fall under the category of another

listing. Listing 7.18 provides:

Repeated complications of hematological disorders (see

7.00G2) including those complications listed in 7.05, 7.08,

and 7.10 but without the requisite findings for those

listings, or other complications (for example, anemia,

osteonecrosis, retinopathy, skin ulcers, silent central

nervous system infarction, cognitive or other mental

limitation, or limitation of joint movement), resulting in

significant, documented symptoms or signs (for example,

pain, severe fatigue, malaise, fever, night sweats,

headaches, joint or muscle swelling, or shortness of

breath), and one of the following at the marked level (see

7.00G4)

A. Limitation of activities of daily living (see 7.00G5).

B. Limitation in maintaining social functioning

(see 7.00G6).

C. Limitation in completing tasks in a timely manner due to

deficiencies in concentration, persistence, or pace

(see 7.00G7).

(Listing 7.18, SOC. SEC. ADMIN., https://www.ssa.gov/disability

/professionals/bluebook/7.00-HematologicalDisorders-

Adult.htm#7_00G7. (last visited Mar. 6, 2022)) (bold in

original).

The ALJ implicitly determined in the negative each of the

three subparts in Listing 7.18. With respect to limitations on

activities of daily living, which Listing 7.00G5 explains

includes “a serious limitation in your ability to maintain a

household or take public transportation because of symptoms such

as pain, severe fatigue, anxiety, or difficulty concentrating,

caused by your hematological disorder”, the ALJ addressed

Plaintiff’s ability to care for himself. The ALJ noted that

Plaintiff had normal concentration skills and was able to

perform basic hygiene, also weighing heavily that Plaintiff had

been able to attend college. (R. at 16, 18).

For a limitation in maintaining social functioning, which

Listing 7.00G6 describes as “a serious limitation in social

interaction on a sustained basis because of symptoms such as

pain, severe fatigue, anxiety, or difficulty concentrating, or a

pattern of exacerbation and remission, caused by your

hematological disorder,” the ALJ discussed Plaintiff’s social

skills and noted that he had no more than a “mild” limitation in

“interacting with others.” (R. at 16).

Finally, for a limitation on completing tasks in a timely

manner, which Listing 7.00G7 describes as “a serious limitation

in your ability to sustain concentration or pace adequate to

complete work-related tasks because of symptoms, such as pain,

severe fatigue, anxiety, or difficulty concentrating caused by

your hematological disorder,” the ALJ stated, “[w]ith regard to

concentrating, persisting, or maintaining pace, the claimant has

mild limitations.” (R. at 16). Even though the ALJ did not

specifically mention Listing 7.18, because she analyzed the

evidence particular to all three elements of it, the Court finds

no error here.

The Court also does not discern any error in the ALJ’s

decision to reject Dr. Wallace’s medical opinion. The ALJ

specifically noted that Dr. Wallace’s “opinion is not consistent

with the opinions of consulting physicians who considered the

claimant’s medical record.” (Id. at 20). It is completely

acceptable for an ALJ to reject a contrasting medical opinion as

long as he or she “explain[s] his conciliations and rejections.”

Burnett, 220 F.3d at 122. The ALJ did so here by explaining

that Dr. Wallace’s conclusions about Plaintiff’s limitations

were unpersuasive because the record showed that most of the

time Plaintiff was able to manage his symptoms with medications

and doctor visits. (R. at 20). The ALJ made this statement

after a lengthy analysis of how the objective medical evidence

stacked up. (Id.)

The same is true of Plaintiff’s argument that the ALJ

improperly considered Plaintiff’s hearing testimony. (ECF 8 at

16-18). Plaintiff argues that the ALJ mischaracterized his

testimony by understanding him to have testified that he had

been dealing with his medical impairments his entire life and

therefore concluding that Plaintiff was able to manage the

conditions. (Id.) Upon the Court’s review of the hearing

testimony, the Court concludes that the ALJ’s conclusion that

Plaintiff had been successfully managing his symptoms for his

entire life to be consistent with Plaintiff’s hearing testimony.

(R. at 18, 35). Just because Plaintiff would have liked the ALJ

to draw a different conclusion does not render that conclusion

unsupported by substantial evidence. Brown, 845 F.2d at 1213

(noting that the conclusion of the ALJ must be reasonable, not

that the district court would have come to the same conclusion).

Plaintiff’s argument that the ALJ did not consider the

vocational expert’s testimony is also unavailing. Plaintiff

points out that the vocational expert opined that there would

not be work in the national economy for someone who had to miss

work three days per month due to sickle cell disease and that

the maximum tolerance for absenteeism would be one day per

month. (ECF 8 at 18-19). Plaintiff further contends that the

record shows that Plaintiff would have to miss work a minimum of

1-2 days a month due to his conditions (Id. at 19). While the

vocational expert did opine that three days a month of

absenteeism compelled a conclusion of no work, (R. at 55-57),

the ALJ did not accept that factual predicate.

More specifically, the ALJ separately discussed her

conclusion that the degree of absenteeism described by

Plaintiff, based on the opinion of Dr. Wallace, was not

supported by the other medical evidence and opinions in the

record, which the ALJ discussed in adequate detail and under the

relevant standard. (Id. at 20). Moreover, when questioned by

the ALJ about his history of absenteeism on a monthly or yearly

basis his answers were largely non-responsive, (R. at 58-60),

and his employment records from his most recent employment were

not before the ALJ at the time of the hearing. (R. at 59). This

Court is not empowered to substitute its reasoning for that of

the ALJ when the ALJ’s opinion is supported by substantial

evidence. Williams, 970 F.2d at 1182.

III. Conclusion

For the reasons expressed above, the decision of the ALJ

was supported by substantial evidence and must be affirmed.

An accompanying Order will be issued.

Date: March 7, 2022 s/ Noel L. Hillman

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