# DENNIS v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · July 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10273556

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 26, 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

NORABETH D.,

Plaintiff,
No. 1:21-cv-12874
v.

KILOLO KIJAKAZI, Acting OPINION
Commissioner of Social Security,

Defendant.

APPEARANCES:
Alan H. Polonsky
POLONSKY & POLONSKY
512 S. White Horse Pike
Audubon, NJ 08106

On behalf of Plaintiff.

Philip R. Sellinger
United States Attorney
U.S. DEPARTMENT OF JUSTICE
OFFICE OF THE U.S. ATTORNEY
401 Market Street
P.O. Box 2098
Camden, NJ 08101

Diana Jan Lin
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE REGIONAL CHIEF COUNSEL
300 Spring Garden Street, Sixth Floor
Philadelphia, PA 19123

On behalf of Defendant.
O’HEARN, District Judge.
INTRODUCTION
This matter comes before the Court on Plaintiff Norabeth D.’s1 (“Plaintiff”) Appeal from
a denial of Social Security disability benefits by the Acting Commissioner of Social Security

(“Defendant”). The Court did not hear oral argument pursuant to Local Rule 9.1(f). For the reasons
that follow, the Court AFFIRMS the Acting Commissioner’s decision.
I. BACKGROUND
The Court recites herein only those facts necessary for its determination on this Appeal.

A. Administrative History
On September 26, 2013, Plaintiff filed a Title II application for a period of disability and
disability insurance benefits, alleging disability beginning February 1, 2011. (R. 2008). The claim
was denied initially on February 7, 2014, and upon reconsideration on May 15, 2014. (R. 2008).
Thereafter, Plaintiff filed a written request for a hearing on May 19, 2014. (R. 2008). She appeared
and testified at a hearing held on August 29, 2016, in Pennsauken, New Jersey, which resulted in
an affirmation of the earlier unfavorable determination. (R. 2008). Plaintiff requested that the
Appeals Council review the case, which it did, remanding for further review on November 29,
2017. (R. 2008). The case then went before Administrative Law Judge Karen Shelton (“ALJ”).
(R. 2008).
The ALJ issued a decision on February 19, 2019, again rendering an unfavorable
determination. (R. 2008) Plaintiff appealed the decision to the Appeals Council, which affirmed
the ALJ’s decision on August 6, 2019. (R. 2008) Plaintiff then appealed the Appeals Council denial

1 Pursuant to this Court’s Standing Order 2021-10, this Opinion will refer to Plaintiff solely
by first name and last initial.
to this Court, which reversed and remanded the matter for further proceedings related to the
consideration of the opinions of Andro Zangaladze, M.D. and Carrie Kern, D.O. (R. 2104–24).
This Court held that a remand was warranted because the ALJ neither provided valid reasons for
rejecting the doctors’ opinions nor recontacted the doctors for clarification. (R. 2122, 2124).

Following remand, on February 2, 2021, the ALJ held a telephone hearing due to the
extraordinary circumstances presented by the COVID-19 global pandemic. After the hearing, the
ALJ again found that Plaintiff was not disabled in a decision dated April 21, 2021. (R. 2020).
Plaintiff now appeals that decision.
B. Plaintiff’s Background and Testimony
Plaintiff initially filed for disability insurance benefits on September 26, 2013, with an
alleged period of disability beginning on February 1, 2011. (R. 157–58). The disabilities were
based on brain damage, seizures, and right-side weakness. (R. 171–72). The initial onset date was
later amended to May 16, 2012. (R. 145).
Plaintiff was thirty-three-years old on her alleged disability onset date and thirty-nine-years

old as of her date last insured. (R. 157, 171). She has received high school and vocational school
education and has prior experience as a cardiac technician, nurse assistant, and medical assistant.
(R. 51, 148–49). She was capable of taking on numerous household chores. (R. 61, 397, 398, 399,
574, 1458).
Plaintiff testified that she was unable to work for the past ten years after a car accident.
(R. 2048–66). Among other things, Plaintiff claimed that she has panic disorder and PTSD, that
she is hyper-vigilant and needs to know that there is a place to escape, and that she is unable to
tolerate bright lights due to a vision problem known as lateral rectus palsy. (R. 2048). Plaintiff also
claimed that she experiences seizures, which appear to be related to stress. (R. 2049–50). Plaintiff
explained that she experiences seizures that make her body shake and vision blurry, describing
them as “like an out of body experience.” (R. 2051). However, her CT scan and MRIs were normal,
neurological examinations were stable, and her EEG did not show any evidence of seizures. (R.
489, 495).

C. Medical History
On February 1, 2016, Plaintiff began treatment with Andro Zangaladze, M.D., Ph.D., who
is board-certified in neurology and clinical neurophysiology by the American Board of Psychiatry
and Neurology. (R. 2016–17; Pla.’s Reply, ECF No. 16 at 7).2 Dr. Zangaladze examined Plaintiff
twice: in January 2016, (R. 796), and in July 2016, (R. 1362). For both examinations, Plaintiff’s
tests were normal. (R. 795, 1362). Dr. Zangaladze therefore concluded on the first visit that
Plaintiff may have non-epileptic seizures, (R. 795), and on the second visit that Plaintiff may have
pseudoseizures. (R. 1362). Based on these examinations, Dr. Zangaladze completed a Seizures
Residual Functional Capacity Questionnaire, (R. 1393), and noted that Plaintiff would have one to
two pseudoseizures or possible focal seizures per month, lasting around ten minutes each time, (R.

1393). Dr. Zangaladze also noted that Plaintiff should not work at heights or with power machines
and should not drive or take a bus alone. (R. 1395). Based on the examinations, Dr. Zangaladze
concluded that Plaintiff would not be able to work low-stress jobs and would be absent from work
more than four times a month. (R. 1396).

2 The ALJ acknowledged that Dr. Zangaladze’s area of practice is neurology and
neurophysiology. (R. 2016–17). It is not clear to the Court whether there is evidence in the record
as to Dr. Zangazalde’s certification by the American Board of Psychiatry and Neurology, but the
Court can take judicial notice of an indisputably accurate fact. FED. R. EVID. 201(b). As Dr.
Zangazalde’s certification is readily confirmed by a search using the Board’s “verifyCERT” tool,
the Court takes such notice. Zangaladze, Andro, AMERICAN BD. OF PSYCHIATRY & NEUROLOGY:
VERIFYCERT (July 22, 2022, 5:00 PM), https://apps.abpn.com/verifycert/?lastName=zangaladze.
In March 2018, approximately two years after the Plaintiff’s date-last-insured, Samuel
Sarmiento, M.D., conducted a comprehensive internal medicine consultative evaluation on
Plaintiff. (R. 1472). As noted by Plaintiff, (Pla.’s Br., ECF No. 12 at 20), Dr. Sarmiento discovered
certain physical limitations pertinent to Plaintiff’s conditions: for example, Plaintiff could only

carry up to ten pounds but no heavier, (R. 1480); she could only sit or stand for ten to fifteen
minutes, (R. 1481); and she could only walk for 45 minutes, (R. 1481). Notwithstanding these
findings, however, Dr. Sarmiento concluded that Plaintiff would be able to walk, sit, and stand
with reasonable breaks. (R. 1476). The consultative evaluation report did not specify whether the
diagnosis was relevant to Plaintiff’s medical condition prior to her date-last insured.
In April 2018, a month after Dr. Sarmiento’s consultative examination, Juan Cornejo, D.O.,
performed an orthopedic consultative examination on Plaintiff. (R. 2018). Dr. Cornejo noted
several limitations applicable to Plaintiff’s condition: for example, Plaintiff would have difficulty
with prolonged walking and standing, would need to take breaks after sitting for a reasonable
amount of time, and would be limited from “physically exerting activity.” (R. 1460). Dr. Cornejo

also noted that Plaintiff stated herself that she had neck and back pain since 2012. (R. 1457).
However, he pointed out that Plaintiff would be capable of sedentary work with breaks and is
capable of possible occasional light lifting. (R. 1460). Dr. Cornejo also reviewed an MRI of
Plaintiff’s neck from February 2017 showing “minimal anterolisthesis, central disc protrusion, as
well as bulging.” (R. 1457). Similar to Dr. Sarmiento’s medical report, Dr. Cornejo’s report also
makes no mention of whether the present diagnosis is applicable to Plaintiff’s condition before her
date-last-insured.
In addition to these examinations, Plaintiff’s primary care physician, Carrie Kern, M.D.,
wrote three “To Whom It May Concern” letters dated November 2018, July 2020, and November
2020, respectively. (R. 1680, 3138, 3984). In her November 2018 letter, Dr. Kern indicated that
she believed that Plaintiff could not “work 8 hour shifts, five days per week.” (R. 1680). She
explained that Plaintiff suffers from seizures or pseudoseizures, is not permitted to drive, cannot
work with machinery, and is unable to sit at a computer for prolonged periods. (R. 1680). In her

July 2020 letter—a mere five sentences—Dr. Kern noted that “[Plaintiff] is currently not working
due to a disability that precludes her from working.” (R. 3158). In her November 2020 letter,
Dr. Kern noted that Plaintiff was then undergoing treatment for “Panic disorder with agoraphobia
and unspecified Major Depressive Disorder as well as Seizure disorder (possibly non-epileptic).”
(R. 3984). However, in the same report, Dr. Kern noted that Plaintiff’s MRI scans of the brain and
EEGs were both normal. (R. 3984). Dr. Kern did not mention in any of her letters whether the
diagnoses were applicable to the time period before the date-last-insured.
On November 17, 2020, Cori-Ann Feiner-Escoto, Psy.D., also wrote a “To Whom It May
Concern” letter. (R. 3983). In the letter, Dr. Feiner-Escoto noted that she has seen Plaintiff for
individual therapy sessions since September 2017. (R. 3983). Dr. Feiner-Escoto further noted that

“[Plaintiff] carries diagnoses of panic disorder with agoraphobia and major depressive order” and
that her “mental health issues contribute to the difficulties she would have obtaining and
maintaining employment.” (R. 3983).
D. Vocational Expert Testimony
During the January 2019 hearing, the ALJ posed a hypothetical question to the vocational
expert (“VE”). (R. 149–51). The hypothetical assumed an individual with Plaintiff’s vocational
profile and Residual Functional Capacity (“RFC”). (R. 149–51). The question was what range of
sedentary work was available to Plaintiff that involved no exposure to unprotected heights,
hazardous machinery, or ladders, ropes, or scaffolds; occasional balancing and stair climbing;
frequent stooping, kneeling, crouching, and crawling; frequent handling and fingering; and only
simple, routine tasks in a work environment with few changes and breaks every two hours. (R.
149–51). The VE testified that Plaintiff could work as an Addresser, Call Out Operator, and
Telephone Quotation Clerk. (R. 151).

At the most recent hearing in February 2021, (R. 2036), the ALJ noted to Plaintiff’s counsel
that since there was already “hypothetical testimony on a sedentary” from the prior case, she did
not need VE testimony if she wanted to use “a less than sedentary” hypothetical. (R. 2066). The
ALJ then proceeded to ask Plaintiff’s counsel whether he had any questions, and Plaintiff’s counsel
responded by only asking a question about work absences. (R. 2067).
E. The ALJ’s Decision
The ALJ’s five-step sequential analysis concluded with a finding that Plaintiff was not
disabled within the meaning of the Social Security Act. (R. 2021); see 20 C.F.R. § 404.1520. At
Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity from the
alleged onset date through the date last insured. (R. 2011). At Step Two, the ALJ found that

Plaintiff had seizure disorder, migraine headaches, patellar maltracking disorder, and degenerative
disc disease. (R. 2011). At Step Three, the ALJ found that none of Plaintiff’s impairments, or any
combination thereof, met or medically equaled the severity of an impairment listed at 20 C.F.R.
Part 404, Subpart P, Appendix 1. (R. 2012–13).
Before proceeding to Step Four, the ALJ determined that Plaintiff retained the RFC to
perform sedentary work as defined in 20 C.F.R. 404.1567(a) except:
she had to be able to sit for 5 minutes after an hour of standing/walking; could only
occasionally climb ramps stairs but never climb ladders, ropes or scaffolds; could
only frequently stoop, kneel, crouch or crawl and occasionally balance and
frequently; could only frequently handle and finger; and could not be exposed to
unprotected heights or hazardous machinery. Additionally, she could understand,
remember and carry out simple instructions and make simple work decisions in a
routine work environment with few changes and can work for 2 hours before
needing a break.

(R. 2013).
Based on the testimony of the VE from the prior proceeding, (R. 148–56), the ALJ found
that Plaintiff could perform the jobs of an Addresser, Call Out Operator, and Telephone Quotation
Clerk, and that a significant number of such jobs existed in the national economy. (R. 2020). Thus,
the ALJ concluded that Plaintiff was not disabled under the Social Security Act. (R. 2021).
II. LEGAL STANDARD
In reviewing applications for Social Security disability benefits, this Court has the authority
to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204 F.3d 78, 83
(3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to determine if they are
supported by “substantial evidence.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000); see also 42
U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence” means “more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations omitted) (quoting Cons.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999). Evidence is not substantial if “it is overwhelmed by other evidence,” “really constitutes not
evidence but mere conclusion,” or “ignores, or fails to resolve, a conflict created by countervailing
evidence.” Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). The ALJ’s decision thus must be set aside
if it “did not take into account the entire record or failed to resolve an evidentiary conflict.”
Schonewolf v. Callahan, 972 F. Supp. 277, 284–85 (D.N.J. 1997) (citing Gober v. Matthews, 574
F.2d 772, 776 (3d Cir. 1978)).
The Social Security Act defines “disability” 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act further states,

[A]n individual shall be determined to be under a disability only if 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, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner of the Social Security Administration has promulgated a five-step,
sequential analysis for evaluating a claimant’s disability, as outlined in 20 C.F.R. §§
404.1520(a)(4)(i)-(v). The analysis proceeds as follows:
At step one, the ALJ determines whether the claimant is performing “substantial
gainful activity[.]” If he is, he is not disabled. Otherwise, the ALJ moves on to step
two.

At step two, the ALJ considers whether the claimant has any “severe medically
determinable physical or mental impairment” that meets certain regulatory
requirements. A “severe impairment” is one that “significantly limits [the
claimant’s] physical or mental ability to do basic work activities[.]” If the claimant
lacks such an impairment, he is not disabled. If he has such an impairment, the ALJ
moves on to step three.

At step three, the ALJ decides “whether the claimant’s impairments meet or equal
the requirements of an impairment listed in the regulations[.]” If the claimant’s
impairments do, he is disabled. If they do not, the ALJ moves on to step four.

At step four, the ALJ assesses the claimant’s “residual functional capacity”
(“RFC”) and whether he can perform his “past relevant work.” A claimant’s “[RFC]
is the most [he] can still do despite [his] limitations.” If the claimant can perform
his past relevant work despite his limitations, he is not disabled. If he cannot, the
ALJ moves on to step five.
At step five, the ALJ examines whether the claimant “can make an adjustment to
other work[,]” considering his “[RFC,] . . . age, education, and work experience[.]”
That examination typically involves “one or more hypothetical questions posed by
the ALJ to [a] vocational expert.” If the claimant can make an adjustment to other
work, he is not disabled. If he cannot, he is disabled.

Hess v. Comm’r Soc. Sec., 931 F.3d 198, 201–02 (3d Cir. 2019) (alterations in original, citations
and footnote omitted).
Following review of the entire record on appeal from a denial of benefits, the court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119–20 (3d Cir.
2000); Podedworny v. Harris, 745 F.2d 210, 221–22 (3d Cir. 1984). Remand is also appropriate
if the ALJ’s findings are not the product of a complete review which “explicitly weigh[s] all
relevant, probative and available evidence” in the record. Adorno v. Shalala, 40 F.3d 43, 48 (3d
Cir. 1994); see A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp. 3d 512, 518 (D.N.J. 2016).
III. DISCUSSION
On appeal, Plaintiff asserts that the ALJ’s findings at Steps Four and Five were not
supported by substantial evidence and that the ALJ did not provide a sufficient rationale for
rejecting the opinions of Dr. Zangaladze, Dr. Kern, Dr. Cornejo, Dr. Sarmiento, Dr. Feiner-Escoto
and the VE. For the following reasons, the Court finds that the ALJ’s conclusions are supported
by substantial medical evidence in the record and affirms the final decision of the Acting
Commissioner.
A. Step Four Evaluation: Residual Functional Capacity

“Residual functional capacity 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, 181 F.3d at 359 n. 1); see also 20 C.F.R. § 404.1545(a). Here, the ALJ found that
Plaintiff had the RFC to perform sedentary work with several exceptions and was therefore not
disabled. (R. 2013).
The Social Security Act defines work as “sedentary” when it—
involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other sedentary criteria are met.

20 C.F.R. § 404.1567(a).

The several exceptions identified by the ALJ included—

[Plaintiff] had to be able to sit for 5 minutes after an hour of standing/walking;
could only occasionally climb ramps stairs but never climb ladders, ropes or
scaffolds; could only frequently stoop, kneel, crouch or crawl and occasionally
balance and frequently; could only frequently handle and finger; and could not be
exposed to unprotected heights or hazardous machinery.

(R. 2013).

In determining an individual’s RFC at Step Four, the ALJ must consider all relevant
evidence—including “medical records, observations made during formal medical examinations,
descriptions of limitations by the claimant and others, and observations of the claimant’s
limitations by others.” Fargnoli v. Massanari, 247 F.3d 34, 41 (3d Cir. 2001) (citing 20 C.F.R. §
404.1545(a)); see 20 C.F.R. §§ 404.1527(e)(2), 404.1545(a), 404.1546; Burnett, 220 F.3d at 121.
The ALJ’s finding must “be accompanied by a clear and satisfactory explanation of the basis on
which it rests,” sufficient for the reviewing court to determine if the decision is supported by
substantial evidence. Cotter v. Harris, 642 F.2d 700, 704–05 (3d Cir. 1981). The ALJ, however,
is not required “to make reference to every relevant treatment note in a case where the claimant
. . . has voluminous medical records.” Fargnoli, 247 F.3d at 42. When presented with conflicting
evidence, the ALJ may choose whom to credit but “cannot reject evidence for no reason or for the

wrong reason.” Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993); Plummer, 186 F.3d at 429
(“The ALJ must consider all the evidence and give some reason for discounting the evidence she
rejects.”).
Plaintiff alleges two errors in the ALJ’s determination of her RFC: (1) that the ALJ was
unjustified in rejecting the opinions of Dr. Zangaladze and Dr. Kern outright and failed to recontact
them; (2) that the ALJ erred in discounting the reports of examinations done after the date last
insured by Dr. Cornejo, Dr. Sarmiento, and Dr. Feiner-Escoto. The Court finds neither argument
persuasive and addresses each in turn.
1. The ALJ Accorded Some Weight to Dr. Zangaladze’s Opinions.
Plaintiff first argues that the ALJ rejected Dr. Zangaladze’s opinion outright without

considering it and without first recontacting him as the treating physician despite having the
obligation to do so. (Pla.’s Br., ECF No. 12 at 18).
First, as this Court has previously recognized, “recontacting a medical source is now
discretionary.” Sheryl W. v. Comm’r of Soc. Sec., No. 19-19127, 2020 WL 7258623, at *7 (D.N.J.
Dec. 10, 2020) (citing Bryson v. Comm’r of Soc. Sec., 639 F. App’x 784, 787 n.8 (3d Cir. 2016)).
Further, “[w]hen an ALJ does not express ‘confusion’ about a treating source statement, but,
instead, concludes that it lacks proper support, there is no reason to recontact the physician.”
Vargas v. Berryhill, No. 16-02003, 2018 WL 1938312, at *7 (M.D. Pa. Mar. 13, 2018). Reviewing
the record, there is no evidence that the ALJ expressed confusion about Dr. Zangaladze’s opinion.
(R. 2016–17)
Plaintiff is also incorrect in suggesting that the ALJ failed to consider Dr. Zangaladze’s
opinion and rejected it outright. In fact, the ALJ accorded great weight to Dr. Zangaladze’s findings

regarding Plaintiff’s inability to work at heights or near hazardous machinery. (R. 2016). The ALJ
did not, however, accord such weight to other portions of Dr. Zangaladze’s opinion, specifically
those portions which are favorable to Plaintiff’s claim. (R. 2016–17)
Reviewing the record, it is clear that the ALJ considered the remainder of Dr. Zangaladze’s
opinion and provided several reasons for assigning it little weight. First, the ALJ noted that there
were inconsistencies between Dr. Zangaladze’s opinion and Plaintiff’s medical records. (R. 2016).
While Dr. Zangaladze noted in his opinion that Plaintiff had “possible” focal seizures, there was
evidence in his treating notes that suggested that he believed the source of the seizure activity
might have been pseudoseizures. (R. 2016). The fact that he did not change the medication
prescribed or prescribe new medication also supports this conclusion. (R. 2016).

Second, the ALJ pointed out that as a neurologist, Dr. Zangaladze was not qualified to
opine on whether Plaintiff experienced pseudoseizures because such opinions “are evaluated under
mental impairments, not the neurological listing” and therefore “outside of his area of practice.”
(R. 2017). Plaintiff raises—seemingly for the first time in her Reply—that Dr. Zangaladze is
board-certified by the American Board of Psychiatry and Neurology, suggesting that this opinion
is within his area of expertise. Setting aside that raising new facts and arguments in a reply brief
is generally improper, see, e.g., Karlo v. Pittsburgh Glass Works, LLC, 880 F. Supp. 2d 629, 641
(W.D. Pa. 2012), Dr. Zangaladze’s certification does not establish that he is qualified to offer an
opinion as a psychiatrist or psychologist because he is neither. The ALJ recognized that Dr.
Zangaladze received his board certification in neurology and clinical neurophysiology, not
psychiatry, and Plaintiff cites no evidence to the contrary.
Finally, the ALJ noted that Dr. Zangaladze’s opinion that Plaintiff will be absent from work
four days a month was inconsistent with the fact that Plaintiff only experienced pseudoseizures

once or twice a month. (R. 2017).
Therefore, contrary to Plaintiff’s argument, the ALJ did not reject Dr. Zangaladze’s opinion
outright but instead considered it closely. The Court does not agree that the ALJ was “inserting
her own medical expertise against that of a treating physician.” (Pla.’s Br., ECF No. 12 at 18).
Plaintiff fails to address the inherent contradictions that the ALJ found existed within Dr.
Zangaladze’s records and opinions, which are the precise reasons the ALJ assigned it less weight.
For these reasons, Plaintiff’s argument fails in this respect, and substantial evidence supports the
ALJ’s decision.
2. The ALJ Considered Dr. Kern’s Opinions and Letters Adequately.
Plaintiff claims that the ALJ did not give adequate weight to the opinions and letters of Dr.

Kern and failed to recontact her to clarify her report. (Pla.’s Br., ECF No. 12 at 19). Dr. Kern
provided one opinion and two “To whom it may concern” letters dated November 2018, July 2020,
and November 2020, respectively. (R. 1680–81, 3138, 3984–85).
In finding that a claimant has not carried out the burden of proving that her impairment
matches or is equivalent to a listed impairment, the ALJ must provide additional reasoning other
than a “bare conclusory statement that an impairment did not match, or is not equivalent to, a listed
impairment.” Jones v. Barnhart, 364 F.3d 501, 504 (3d Cir. 2004) (citing Burnett v. Comm’r of
Soc. Sec., 220 F.3d 112, 119–20 (3d Cir. 2000)). That said, the ALJ only needs to offer a “sufficient
explanation to provide meaningful review.” Jones, 364 F.3d at 505.
In the instant case, the ALJ did just that. First, the ALJ considered Dr. Kern’s November
2018 opinion and accorded great weight to the finding that Plaintiff cannot work with machinery
due to seizure-related dangers. (R. 2016). However, the ALJ did not give weight to the remainder
of Dr. Kern’s opinion and explained that it was because (1) she is Plaintiff’s primary care provider,

and (2) there were “little, if any treatment notes to support her opinion prior to the date last
insured.” (R. 2017). Furthermore because the treatment note was made after the date last insured,
the ALJ pointed out that it was impossible to “determine whether the opinion is based upon what
occurred prior to September 2016 or after[;] the opinion does not acknowledge the periods of
treatment it was considering.” (R. 2017). Plaintiff claims that Dr. Kern has been treating Plaintiff
for five years and had “extensive treatment records . . . back to 2013,” (Pla.’s Br., ECF No. 12 at
19), but Plaintiff cites no such evidence in the record to substantiate this claim.
The ALJ also offered “sufficient explanation” for assigning little weight to Dr. Kern’s July
2020 “To whom it may concern” letter. Jones, 364 F.3d at 505. The ALJ noted that, similar to her
November 2018 opinion, Dr. Kern did not provide the timeframe that the July 2020 opinion

addresses. (R. 2017). She also provided nothing but a brief statement that Plaintiff is “currently
not working due to a disability that precludes her from working,” (R. 3138), which in itself is a
conclusory statement and opinion that the ALJ need not grant “any special significance.” 20 C.F.R.
§ 404.1527(d)(3); Dixon v. Comm’r of Soc. Sec., 183 F. App’x 248, 251 (3d Cir. 2006)
(“[O]pinions on disability are not medical opinions and are not given any special significance.”).
The ALJ did not accord this opinion any significance because it lacked any function-by-function
analysis and thus did not qualify as a medical opinion under the regulations. See Shane v. Berryhill,
No. 18-00284, 2019 WL 1099807, at *3 (W.D. Pa. Mar. 8, 2019). Plaintiff’s argument again fails,
and the ALJ’s opinion in this regard is supported by substantial evidence.
3. The ALJ Considered Dr. Cornejo, Dr. Sarmiento and Dr. Feiner-
Escoto’s Opinions and Letters Adequately.
Plaintiff claims that the ALJ failed to appropriately consider the medical opinions of Drs.
Cornejo, Sarmiento, and Feiner-Escoto. This Court disagrees. As the matter stands, and
considering the medical opinions Plaintiff provided, the ALJ was justified in assigning less weight
to the doctors’ medical opinions because they are all dated after Plaintiff’s date-last-insured. See,
e.g., Scouten v. Comm’r Soc. Sec., 722 F. App’x 288, 290 (3d Cir. 2018) (“The ALJ was entitled
to consider the complete medical record and to place greater reliance on the contemporaneous
entries than on the doctor’s later, inconsistent opinion.”); Brandau v. Berryhill, No. 17-01411,
2018 WL 6733874, at *9 (E.D. Pa. Sept. 4, 2018) (“[T]he ALJ did not err in considering the fact

that [the physician’s] opinion was rendered after Plaintiff’s date last insured.”). For Dr. Feiner-
Escoto’s, the ALJ noted that her opinions “are not relevant to the time period at issue” because she
“started treating the claimant after the date last insured.” (R. 2018). For Drs. Cornejo and
Sarmiento, the ALJ noted that their opinions “fail to provide an accurate opinion regarding the
claimant’s residual functional capacity” because “their opinions were based on the examination of
the claimant in 2018, well after her date last insured.” (R. 2018).
Plaintiff also argues that the ALJ failed to appropriately consider the medical opinions of
the doctors before discounting them, especially given that the previous ALJ ordered them, claiming
that “[s]he could have recontacted those doctors to see if they believed their assessment would
apply to earlier periods or she could have exercised her discretion and called a medical advisor to

render an opinion as to onset date.” (Pla.’s Br., ECF No. 12 at 22). As Plaintiff recognizes
recontacting a medical source is discretionary. Bryson, 639 F. App’x 784 at 787 n.8. “Neither the
claimant nor his or her representative can require an ALJ to call on the services of an ME to assist
in inferring the date that the claimant first met the statutory definition of disability.” SSR 18-01p,
2018 WL4945639 (Oct. 2, 2018). Furthermore, “[i]n general, an individual has a statutory
obligation to provide [the Social Security Administration] with the evidence to prove to [them]
that he or she is disabled.” Id.
For the foregoing reasons, this Court finds that there was substantial evidence justifying

the ALJ’s decision with respect to Plaintiff’s residual functional capacity.
B. Step Five Evaluation: Alternative Work
Plaintiff first argues that “if the residual functional capacity is not accurate, then any
determination as to alternative work activity is invalid.” (Pla.’s Br., ECF No. 12 at 23). Because
this Court has already found that the ALJ’s assessment of Plaintiff’s RFC is supported by
substantial evidence, this point is moot. However, Plaintiff argues separately that (1) the ALJ
should not have considered prior VE testimony from the vacated ALJ decision at all and erred by
not being clear about her intention to rely on said testimony; and (2) the ALJ erred by relying on
evidence regarding jobs that are now obsolete. The Court disagrees and addresses each argument
in turn.

1. The Prior VE Testimony
The ALJ did not err by considering the testimony of a VE during a prior proceeding. It is
true that “[o]n remand, the ALJ reviews evidence de novo and is therefore not required to consider
the vocational testimony of a VE from a vacated prior decision.” Michele R. v. Kijakazi, No. 20-
15032, 2022 WL 1081035, at *6 (D.N.J. Apr. 11, 2022). However, there is no requirement
preventing the ALJ from reviewing vocational testimony from a vacated prior decision. See
Connelly v. Colvin, No. 15-03351, 2016 WL 6902353, at *8 (E.D. Pa. Oct. 26, 2016) (evaluating
evidence from a prior ALJ hearing but reversing on other grounds).
The ALJ was clear about her intentions to rely upon prior testimony from the VE and
brought it to the attention of Plaintiff’s counsel during the hearing:
Let’s see, Counsel, I think we had from the prior case we had hypothetical
testimony on a sedentary. If I wanted to use a less than sedentary, I don’t think I
need vocational expert testimony on that . . . . [I]s there a hypothetical that you want
me to frame for the VE?
. . . .
[I]f I have a sedentary hypothetical already, I can do a less than sedentary for that.
We don’t need the hypothetical for that.
(R. 2066).
Plaintiff’s claim that she was not put on notice that the prior testimony would be used is
belied by the record and the failure of Plaintiff’s counsel to object at the time. The questions posed
by the ALJ to Plaintiff’s counsel were clearly predicated upon the “sedentary hypothetical” posed
in the prior VE testimony and would not make sense otherwise. (R. 2066). In any event, the ALJ
offered Plaintiff’s counsel another opportunity to seek clarification by explicitly asking Plaintiff’s
counsel if there was anything else he wanted to ask. (R. 2066). In response to the ALJ’s question,
Plaintiff’s counsel only posed one question about work absences, and confirmed that that was the
only question he would ask. (R. 2067). For these reasons, the Court finds that the ALJ’s reliance
on the prior testimony of a VE was proper and provides further substantial evidence supporting
her conclusion at Step Five.
2. Jobs Cited by the ALJ
Plaintiff finally argues that the ALJ erred in Step Five by citing jobs that are obsolete. The
three jobs cited by the ALJ included “Addresser,” “Call Out Operator,” and “Telephone Quotation
Clerk.” (R. 2020). Plaintiff argues that these jobs are outdated because they were last updated in
1977 and do not exist in the manner described in the Dictionary of Occupational Titles (“DOT”).
(Pla.’s Br., ECF No. 12 at 26). However, “the DOT remains an appropriate source of occupational
data. Under 20 C.F.R. § 404.1566(d)(1), the Social Security Administration may take
administrative notice of job information from the DOT.” Devault v. Astrue, No. 13-0155, 2014
WL 3565972, at *6 (W.D. Pa. July 18, 2014); see also Jean-Pierre v. Comm’r of Soc. Sec., No.
16-5691, 2017 WL 4316880, at *8-9 (D.N.J. Sept. 28, 2017); Smith v. Comm’r Soc. Sec., No. 19-

20682, 2020 WL 7396355, at *7. (D.N.J. Dec. 17, 2020). The ALJ’s reliance on the DOT is thus
presumptively justified.
Even assuming that some of the DOT occupations cited are obsolete, not all of them are.
Two of the jobs cited by the ALJ—Addresser and Call Out Operator—have clear analogs in
today’s economy that are not obsolete.3 See Feeley, 2015 WL 3505512, at *11 (“That these DOT
categories survive in the more modern O*Net compilation strongly suggests that they are not
obsolete.” (internal citations omitted)). Given these analogs, neither of these jobs can properly be
described as obsolete. As such, the Court finds that the ALJ committed no error in relying on them
(or the VE’s opinion based on them) to form her conclusions at Step Five. The VE testified that
there were 65,200 Addresser jobs and 34,350 Call Out Operator jobs in the national economy.

(R. 2020). The VE’s testimony about such data is “the kind of evidence—far ‘more than a mere

3 Compare DOT, § 209.587-010 (defining the responsibilities of an Addresser as “Addresses
by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for
mailing. May sort mail”) with NAT’L CTR. FOR O*NET DEV., O*NET ONLINE [hereinafter
“O*NET”], No. 43-9022.00 (defining the responsibilities of a Typist as “Use typewriter or
computer to type letters, reports, forms, or other straight copy material from rough draft, corrected
copy, or voice recording. May perform other clerical duties as assigned”) and compare DOT, §
237.367-014 (defining the responsibilities of a Call Out Operator as “Compiles credit information,
such as status of credit accounts, personal references, and bank accounts to fulfill subscribers'
requests, using telephone. Copies information onto form to update information for credit record
on file, or for computer input. Telephones subscriber to relay requested information or submits
data obtained for typewritten report to subscriber”) with O*NET, No. 43-4041.00 (defining the
responsibilities of a Credit Checker as “Investigate history and credit standing of individuals or
business establishments applying for credit. Telephone or write to credit departments of business
and service establishments to obtain information about applicant's credit standing”).
scintilla’—that a reasonable mind might accept as adequate to support’ a finding about job
availability.” Biestek v. Berryhill, 139 S. Ct. 1148, 1155 (2019). Therefore, either of these
categories would constitute substantial evidence to support the ALJ’s conclusion that a significant
number of suitable jobs for Plaintiff exist in the national economy.
For all of these reasons the ALJ’s determination at Step Five was supported by substantial
evidence in the record and Plaintiff's challenges are unsuccessful.
CONCLUSION
For the foregoing reasons, the Court affirms the final decision of the Acting Commissioner.
An appropriate Order will be entered.

CHRISTINE P. HEARN -
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10273556. Public record. Not legal advice.