# HORNER v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · July 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10273460

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 18, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LORIE H.,

Plaintiff, 1:20-cv-13192-NLH

v. OPINION

COMMISSIONER OF SOCIAL
SECURITY,1

APPEARANCES:

JENNIFER LILLEY STONAGE
RICHARD LOWELL FRANKEL
BROSS & FRANKEL
724 KENILWORTH AVE, SUITE 2
CHERRY HILL, NJ 08002

On behalf of Plaintiff

DAVID E. SOMERS , III
LAUREN DONNER CHAIT
NAOMI B. MENDELSOHN
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
6TH FLOOR
PHILADELPHIA, PA 19123

On behalf of the Commissioner

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. §

1 On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner
of the Social Security Administration.
405(g), regarding Plaintiff’s application for Disability
Insurance Benefits (“DIB”)2 under Title II of the Social 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 not
disabled at any time since her alleged onset date of disability,
August 15, 2016. For the reasons stated below, this Court will
affirm that decision.
I. BACKGROUND AND PROCEDURAL HISTORY
On September 12, 2016, Plaintiff protectively filed an
application for DIB,3 alleging that she became disabled on August
15, 2016. (R. at 13). Plaintiff claims that she cannot work
because of her impairments of status post craniotomy with tumor
embolization, osteoarthritis, carpal tunnel syndrome,
hypertension, hypothyroidism, obesity, depressive disorder,
anxiety disorder, obstructive sleep apnea, and fibromyalgia.4

2 DIB is a program under the Social Security Act to provide
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.

3 A protective filing date marks the time when a disability
applicant made 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.
4 On the alleged onset date, Plaintiff was 46 years old, which is
defined as a “younger person” (age 49 and under). 20 C.F.R. §
(ECF 14 at 2).
Plaintiff’s claim was denied initially and upon
reconsideration. (R. at 13). Plaintiff requested a hearing

before an ALJ, which was held on May 13, 2019. (Id.) On August
30, 2019, the ALJ issued an unfavorable decision. (Id. at 24).
Plaintiff’s Request for Review of Hearing Decision was denied by
the Appeals Council on August 11, 2020, making the ALJ’s
decision final. (Id. at 1). 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

404.1563.
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 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).
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 August 15, 2016,

Plaintiff’s alleged onset date and that she had sufficient
insurance coverage through September 30, 2019. (R. at 15). At
step two, the ALJ found that Plaintiff’s impairments of status
post-craniotomy with tumor embolization, osteoarthritis, carpal
tunnel syndrome, hypertension, hypothyroidism, obesity,
depressive disorder, and anxiety disorder were severe.5 (Id.)
At step three, the ALJ determined that Plaintiff’s impairments
individually or in combination with one another did not equal
the severity of one of the listed impairments. (Id. at 16-18).
The ALJ next determined that Plaintiff had the residual
functional capacity (“RFC”) to perform work at the sedentary
level,6 with certain exertional, postural, environmental,

5 As stated above, Plaintiff references non-severe impairments of
obstructive sleep apnea and fibromyalgia in her opening brief
before this Court. (ECF 14 at 2). Those two conditions were
not mentioned in the ALJ’s decision. Plaintiff indicates that
those conditions are documented on page 1030 of the record.
(Id.) However, the Court’s independent review of that page and
the surrounding pages reveals no reference to sleep apnea and
only one-word references to “fibromyalgia” on pages 1042 and
1045 of the record. Sleep apnea appears to be mentioned in
passing a few times in the record, most clearly on page 573. In
any case, Plaintiff appeals on issues unrelated to the ALJ’s
treatment of those two conditions.
6 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.”).
manipulative, and mental restrictions. (Id. at 18). At steps
four and five, the ALJ determined that Plaintiff did not have
any past relevant work, but that that based on her RFC, she

would be able to perform sedentary occupations such as document
preparer, scale operator, preparer. (Id. at 23).
From the Court’s review of Plaintiff’s briefing, the Court
discerns three areas of concern: (1) whether the ALJ erred by
failed to resolve inconsistencies between the vocational
expert’s (the “VE”) testimony and the Dictionary of Occupational
titles (the “DOT”) per SSR-004p; (2) whether the ALJ erred in
his treatment of medical opinion evidence; and (3) whether the
ALJ failed to assign proper limitations for the Plaintiff’s
severe impairments. (See ECF 14 at 1).
i. Resolving the VE’s Testimony

The Court rejects Plaintiff’s first assignment of error.
Plaintiff argues that the VE’s testimony contained a conflict in
that the VE identified potential jobs for Plaintiff that the DOT
does not list as having manipulative limitations. (ECF 14 at
14-16). Plaintiff argues that SSR-004p requires an ALJ to
resolve a conflict when one appears between the VE’s proposal of
jobs a claimant could do based on their RFC and the description
of those jobs in the DOT. (Id. at 14). A close look at
Plaintiff’s brief reveals that her real argument is that her RFC
should have included more manipulative limitations such that the
jobs proposed by the VE, based on their descriptions in the DOT,
would have been in conflict with an RFC that included more
manipulative limitations. (Id. at 15-16 (“The findings of the

ALJ are particularly concerning where the Plaintiff testified to
manipulative limitations aside from just typing. The Plaintiff
testified at length about her limitations using her hands,
including difficulty with gripping, tying shoes, undoing buttons
and holding a pen. (AR 40). It is unclear from the decision why
the ALJ determined that the plaintiff’s limitations to just
typing are all that is supported by the record, thus remand is
proper.”)).
In the ALJ’s RFC analysis, the ALJ found Plaintiff “can
perform all manipulative functions frequently except she can
only occasionally keyboard or type.” (R. at 18). This Court
will not disturb that finding as it was supported by substantial

evidence. Fargnoli, 247 F.3d at 38. In arriving at this RFC
limitation, the ALJ specifically discussed Plaintiff’s self-
completed function report from September 18, 2016, where she did
not check a box indicating that her conditions affected her
ability to use her hands. (R. at 274). The ALJ specifically
cited to medical reports that indicated that “fine hand motor
movements are within normal limits bilaterally.” (R. at 20).
He also neatly explained why he discounted medical evidence to
the contrary: because it was based on a one-time evaluation and
the medical source statement did not provide medical evidence to
support the suggested limitations. (R. at 22).
To the extent that Plaintiff is further arguing that the

ALJ otherwise had a duty to elicit VE testimony on specific
manipulative limitations for the proposed jobs, Plaintiff cites
no authority for that proposition. Indeed, where the DOT is
silent on an issue, such as manipulative limitations, there is
no conflict for the ALJ to resolve. Tracey v. Comm'r Soc. Sec.,
760 F. App'x 121, 124 (3d Cir. 2019) (rejecting appellant’s
contention that because the DOT description was silent on mental
capacity issues but the hypothetical to the VE indicated that he
could only make simple judgments constituted a conflict that the
ALJ had a duty to clarify); William I.B. v. Comm'r of Soc. Sec.,
No. CV 20-17380 (RBK), 2022 WL 577958, at *6 (D.N.J. Feb. 25,
2022) (“It is well established in this circuit that where

the DOT is silent on an issue, a conflict does not exist.”)
(internal alterations and quotation marks omitted). The DOT did
not reference manipulative parameters for the jobs proposed by
the ALJ.7 The ALJ specifically asked the VE to indicate if there
was conflict between the DOT descriptions of the proposed jobs
and Plaintiff’s RFC as posed in the hypothetical and the VE did

7 See DICTIONARY OF OCCUPATIONAL TITLES, available at
https://occupationalinfo.org/ (last visited July 15, 2022).
not indicate any conflicts. (R. at 58-60). Thus, the Court
rejects Plaintiff’s first assignment of error.
ii. Weighting of Medical Evidence

Plaintiff’s next assignment of error is the ALJ’s weighting
of medical opinion evidence, specifically, that of Dr. Pamela
Traisak. Plaintiff contends that Dr. Traisak’s opinion was
entitled to more weight as an opinion from a treating physician.8
(ECF 14 at 16). The Third Circuit in Farngoli explained, “Where
a treating source's opinion on the nature and severity of a
claimant's impairment is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the
claimant's case record, it will be given controlling weight.”
Fargnoli, 247 F.3d at 43 (internal alternations and quotation
marks omitted).

However, there must be an ongoing relationship between the
patient and the doctor for that doctor to be considered a
treating physician under the regulations for claims filed prior
to March 27, 2017. 20 C.F.R. § 404.1527(a)(2) (“Treating source
means your own acceptable medical source who provides you, or

8 Plaintiff’s claim was filed prior to March 27, 2017, when the
regulations were amended for various provisions, including for
the “treating physician rule.” See 82 F.R. 5844. The parties
do not dispute that the treating physician rule is applicable to
Plaintiff’s claim.
has provided you, with medical treatment or evaluation and who
has, or has had, an ongoing treatment relationship with you.”);
Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (“[A] court

considering a claim for disability benefits must give greater
weight to the findings of a treating physician than to the
findings of a physician who has examined the claimant
only once or not at all.”); Clark v. Astrue, No. CIV.A. 09-192,
2010 WL 3909161, at *8 n.17 (D. Del. June 30, 2010), report and
recommendation adopted, No. 1:09-CV-192, 2010 WL 3907772 (D.
Del. Sept. 29, 2010) (holding that a doctor who treated a
patient only once was not considered a treating physician). Dr.
Traisak only examined Plaintiff one time in September 2018.
(See R. at 968, 1002). Therefore, her opinion was not entitled

to controlling weight.
Separately, the ALJ provided cogent reasons as to why he
only provided Dr. Traisak’s opinion with “little weight.” The
ALJ stated, “Little weight is given to these opinions
because, although these opinions are based on personal
examination of the claimant; this was only a one-time evaluation
and the medical source statement does not provide adequate
evidence supporting such great limitations.” (R. at 22). A
review of Dr. Traisak’s statement reveals that she left blank
most of the comment sections of the medical source statement,
where she could have provided rationale for the limitations she
proposed. (R. at 968-73). Further, the actual record from Dr.
Traisak’s examination of Plaintiff only revealed mild to
moderate carpal tunnel syndrome. (Id. at 1006). The notes of

from the visit do not explain that diagnosis and Dr. Traisak’s
medical statement report does not explain how that diagnosis
links to a limitation to only “occasional” handling and
fingering as she checked off in her statement. (R. at 971).
Plaintiff also argues that the ALJ’s discounting of Dr.
Traisak’s report is not supported by substantial evidence
because he afforded “partial weight” to other physicians who
examined Plaintiff once or who only reviewed the medical
records. (ECF 14 at 17). The problem with Plaintiff’s argument
is that it assumes that the only reason Dr. Traisak’s opinion
was given less weight was because she only examined Plaintiff
once. The ALJ specifically found in addition to that fact that

the limitations imposed by Dr. Traisak were not consistent with
the evidence in the medical record. (R. at 22). For the other
medical sources that were afforded partial weight, the ALJ did
not find that they were not supported by evidence in the record
and explained where he found them to have merit. (See, e.g., R.
at 21-22 (“These opinions merit partial weight because the
consultants are familiar with the program, they examined the
available medical records, and their opinions are based on the
available medical records.”)). Plaintiff does not argue that
those medical opinions were not supported by medical evidence
such that they too should be afforded less weight. This Court
has reviewed the medical record as a whole and is satisfied that

these findings by the ALJ are supported by substantial evidence.
Williams, 970 F.2d at 1182.
iii. Assignment of Limitations in the RFC
Finally, Plaintiff complains that the ALJ erred in failing
to assign proper limitations for the Plaintiff’s severe
impairments including the need for a cane, headaches,
manipulative limitations and time off-task or absent. (ECF 14
at 1). Plaintiff explains that this argument stems from an
ALJ’s duty to perform a function-by function analysis when
arriving at an RFC for a claimant. (Id. at 20-25). She states
that the ALJ failed to include limitations consistent with her
status-post craniotomy with tumor embolization and that the

ALJ’s discussion of her resulting mental limitations at step
three does not suffice for the RFC analysis. (Id. at 22).
Plaintiff ties her argument to the requirements of SSR 96-8p.
SSR 96-8p requires a narrative of how the evidence supports
the ALJ’s conclusion regarding the RFC. At a high level, the
RFC is a function-by-function assessment based on all of the
relevant evidence of an individual's ability to do work-related
activities, but an ALJ does not need to use particular language
or adhere to a particular format in conducting her RFC analysis.
Ungemach v. Commissioner of Social Security, 2019 WL 3024858, at
*4 (D.N.J. 2019) (citing Jones v. Barnhart, 364 F.3d 501, 505
(3d Cir. 2004)). SSR 96-8p requires that each function "must be

considered," but it does not require every function to be
specifically delineated in the RFC. Indeed, SSR 96-8p
contemplates that in her "final RFC assessment," an ALJ may
assess the functions in combination rather than individually.
While a neat organization of the analysis around each
function is preferable, failure by an ALJ to do so is not
reversible error where the ALJ explains her RFC findings and
those findings are supported by substantial evidence. Malcolm
v. Commissioner of Social Security, 2017 WL 5951703, at *19 n.14
(D.N.J. 2017) (noting "where, as here, the ALJ's RFC
determination is supported by substantial evidence, and is
‘accompanied by a clear and satisfactory explication of the

basis on which it rests,’ [Fargnoli, 247 F.3d at 41], the Third
Circuit does not require strict adherence to the function-by-
function analysis set forth in Social Security Ruling 96-8p")
(citing Chiaradio v. Comm'r of Soc. Sec., 425 F. App'x 158, 161
(3d Cir. 2011) (affirming the ALJ's RFC determination, despite
the fact that "the ALJ did not make a task by task analysis,"
where the ALJ's RFC finding was supported by substantial
evidence in the record, and the ALJ's "overall review carefully
considered [the claimant's] past relevant work and the ALJ
assessed what [the claimant] could reasonably do.")); Garrett v.
Comm'r of Soc. Sec., 274 F. App'x 159, 164 (3d Cir. 2008)
(affirming the ALJ's RFC determination, despite the ALJ's

failure to perform the precise function-by-function assessment
outlined in SSR 96-8p, where the ALJ questioned the claimant
about the physical limitations of her prior work, and
substantial evidence supported the ALJ's findings); Bencivengo
v. Comm'r of Soc. Sec., 251 F.3d 153 (Table), [published in
full-text format at 2000 U.S. App. LEXIS 38785 at *5] (3d Cir.
Dec. 19, 2000) ("Although a function-by-function analysis is
desirable, SSR 96-8p does not require ALJs to produce such a
detailed statement in writing.")).
The Court disagrees with Plaintiff’s characterization of
the ALJ’s analysis of Plaintiff’s limitations in the RFC
analysis, particularly her mental limitations associated with

status-post craniotomy with tumor embolization. First, the ALJ
did not only discuss Plaintiff’s “moderate” mental limitations
at step three but also during the RFC analysis when he discussed
the findings from Plaintiff’s mental evaluations, specifically
in the context of Plaintiff’s tumors. (R. at 21-22).
In terms of other physical limitations such as headaches or
those that would necessitate the use of a cane or cause her to
miss work, the ALJ outlined his view of the medical evidence
that bore on those points, referencing examinations that
Plaintiff underwent relating to her ability to ambulate, her
pain, and her mental health after the procedure. (R. at 19-22).
The ALJ specifically mentioned the craniotomy and how the

claimant appeared to have recovered well from the procedure.
(Id. at 19 (“The record reflects that the claimant had a good
recovery. However, the claimant continued to have headaches.”)
(internal citations omitted)). The Third Circuit has made clear
that there is no magic language needed to satisfy the RFC
analysis as long as the ALJ adequately and clearly explains his
findings. Hess v. Comm'r Soc. Sec., 931 F.3d 198, 209 (3d Cir.
2019) (“[A]wide range of limitation language is permissible,
regardless of what the ALJ found at earlier steps of the
analysis, so long as the chosen limitation language is
explained.”). The ALJ adequately explained his limitation
findings in the RFC analysis by tying his findings to medical

evidence and the Court will not disturb that analysis.
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: July 18, 2022 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10273460. Public record. Not legal advice.