AYRES v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SUSAN A.,

Plaintiff,

Civ. No. 21-07949 (KM)

v.

OPINION

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Susan A. brings this action to review a final decision of the

Commissioner of Social Security (“Commissioner”) denying her claims for Title

II Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security

(“SSI”). Upon reviewing and weighing certain evidence, the Administrative Law

Judge (“ALJ”) concluded that Susan A. was not disabled from April 20, 2018,

the onset date of the alleged disability, through July 1, 2020, the date of

decision.

The issue presented is whether the ALJ’s decision is supported by

substantial evidence. For the reasons stated below, I hold that the

Commissioner’s finding as to the applicant’s RFC is supported by substantial

evidence, but the decision is REVERSED and REMANDED on the issue of work

in the national economy that the applicant can perform.

I. BACKGROUND1

Susan A. applied for DIB pursuant to Sections 216(i) and 223(d) of the

Social Security Act (“SSA”), and for SSI pursuant to Section 1614(a)(3)(A) of the

1 Citations to the record are abbreviated as follows:

DE = docket entry

AR. _ = Administrative Record (DE 8) (the cited page numbers correspond to the

number found in the bottom right corner of the page for all DE 9 attachments)

SSA on June 18, 2018, alleging disability beginning as of April 20, 2018. (AR.

15.) Her application was denied initially then upon reconsideration. (AR. 15,

134-139, 144–151.) On July 16, 2019, Susan A. filed a request for a hearing

before an ALJ to review her application de novo. (AR. 15, 152-155.) A telephone

hearing was held on April 23, 2020, before ALJ Leonard F. Costa, who issued a

decision on July 1, 2020.

Susan A. requested Appeals Council Review of ALJ Costa’s decision, but

her request was denied on February 9, 2021. This denial rendered ALJ Costa’s

decision the final decision of the Commissioner. (AR. 1–6.) Susan A. now

appeals that decision, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

II. DECISION FOR REVIEW

A. The Five-Step Process and this Court’s Standard of Review

To qualify for Title II DIB benefits and for SSI disability, a claimant must

meet the insured status requirements of 42 U.S.C. § 423. To qualify, a claimant

must show that she is unable to engage in substantial gainful activity by

reason of any medically determinable physical or mental impairment that can

be expected to result in death or that has lasted (or can be expected to last) for

a continuous period of not less than twelve months. 42 U.S.C. §§ 423(c),

1382(a).

Under the authority of the SSA, the Social Security Administration (the

“Administration”) has established a five-step evaluation process for determining

whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920.

This Court’s review necessarily incorporates a determination of whether the

ALJ properly followed the five-step process, which is prescribed by regulation.

The steps may be briefly summarized as follows:

Step 1: Determine whether the claimant has engaged in substantial

gainful activity since the onset date of the alleged disability. 20 CFR §§

404.1520(b), 416.920(b). If not, move to step two.

Pl. Br. = Susan A.’s Moving Brief (DE 12)

Step 2: Determine if the claimant’s alleged impairment, or

combination of impairments, is “severe.” Id. §§ 404.1520(c),

416.920(c). If the claimant has a severe impairment, move to step

three.

Step 3: Determine whether the severe impairment meets or equals

the criteria of any impairment found in the Listing of Impairments.

20 CFR Pt. 404, Subpt. P, App. 1, Pt. A. If so, the claimant is

automatically eligible to receive disability benefits (and the analysis

ends); if not, move to step four. Id. §§ 404.1520(d), 416.920(d).

RFC and Step 4: Determine the claimant’s “residual functional

capacity” (“RFC”), meaning “the most [the claimant] can still do

despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). Caraballo v.

Comm’r of Soc. Sec., 2015 WL 457301, at *1 (D.N.J. Feb. 3, 2015).

Decide whether, based on her RFC, the claimant can return to her

prior occupation. 20 C.F.R. § 1520(a) (4)(iv); Id. §§ 404.1520(e)–(f),

416.920(e)–(f). If not, move to step five.

Step 5: At this point, the burden shifts to the Administration to

demonstrate that the claimant, considering her age, education,

work experience, and RFC, is capable of performing jobs that exist

in significant numbers in the national economy. 20 CFR §§

404.1520(g), 416.920(g); see Poulos v. Comm’r of Soc. Sec., 474

F.3d 88, 91–92 (3d Cir. 2007). If so, benefits will be denied; if not,

they will be awarded.

On appeal, the Court conducts a plenary review of the legal issues. See

Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Factual

findings are reviewed “only to determine whether the administrative record

contains substantial evidence supporting the findings.” Sykes v. Apfel, 228

F.3d 259, 262 (3d Cir. 2000). Substantial evidence is “less than a

preponderance of the evidence but more than a mere scintilla.” Jones v.

Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted). “It means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. When substantial evidence exists to support the ALJ’s factual

findings, this Court must abide by the ALJ’s determinations. See id. (citing 42

U.S.C. § 405(g)).

This Court may, under 42 U.S.C. § 405(g), affirm, modify, or reverse the

Commissioner’s decision, or it may remand the matter to the Commissioner for

a rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v.

Comm’r of Soc. Sec., 235 F. App’x 853, 865–66 (3d Cir. 2007). Outright reversal

with an award of benefits is appropriate only when a fully developed

administrative record contains substantial evidence that the claimant is

disabled and entitled to benefits. Podedworny, 745 F.2d at 221–222; Morales v.

Apfel, 225 F.3d 310, 320 (3d Cir. 2000).

Remand is proper if the record is incomplete, or if there is a lack of

substantial evidence to support a definitive finding on one or more steps of the

five-step inquiry. See Podedworny, 745 F.2d at 221–22. Remand is also proper

if the ALJ’s decision lacks adequate reasoning or support for its conclusions, or

if it contains illogical or contradictory findings. See Burnett v. Comm’r of Soc.

Sec., 220 F.3d 112, 119–20 (3d Cir. 2000); Leech v. Barnhart, 111 F. App’x 652,

658 (3d Cir. 2004) (“We will not accept the ALJ's conclusion that Leech was not

disabled during the relevant period, where his decision contains significant

contradictions and is therefore unreliable.”). It is also proper to remand where

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) (internal quotation marks omitted).

B. The ALJ’s Decision

ALJ Costa undertook the five-step inquiry. His conclusions are

summarized as follows:

Step 1

ALJ Costa concluded that Susan A. had not engaged in substantial

gainful activity since April 20, 2018, the alleged onset date. (AR. 18.)

Step 2

The ALJ found that Susan A. had the following severe impairments:

status post lumpectomy for Stage II breast cancer and subsequent radiation

therapy and lymphedema of the right arm; major depressive disorder; and

generalized anxiety disorder. (AR. 18.) With respect to Susan A.’s psoriasis,

however, the ALJ concluded that the record did not establish “that [psoriasis]

has not caused more than minimal limitation in the claimant’s ability to

perform basic work activities for 12 consecutive months relevant to this

decision.” (AR. 18.) Because the ALJ found that Susan A. suffered from several

severe impairments, he proceeded to step three.

Step 3

With respect to Susan A.’s severe impairments, the ALJ determined that

she did not have an impairment or combination of impairments that met or

medically equaled the severity of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1. (AR. 17.) The ALJ paid particular attention to Listings

13.10 (Cancer of the Breast), 12.04 (Depressive, Bipolar and Related

Disorders), and 12.06 (Anxiety and Obsessive-Compulsive Disorders).

First, ALJ Costa declined to find that Susan A. met the criteria for Listing

13.10 (Cancer of the Breast), because the record “does not document locally

advanced cancer of the breast; carcinoma with metastases to the

supraclavicular or infra-clavicular nodes, to 10 or more axillary nodes, or with

distant metastases; recurrent carcinoma; small-cell carcinoma; or secondary

lymphedema that is caused by anticancer therapy and treated by surgery to

salvage or restore the functioning of an upper extremity, that would meet or

equal the listing.” (AR. 18.)

Second, the ALJ determined that Susan A.’s mental impairments, both

individually and in combination, did not meet the criteria of Listings 12.04

(Depressive, Bipolar, and Related Disorders) and 12.06 (Anxiety and Obsessive-

Compulsive Disorders). (AR. 19.) Specifically, the “paragraph B” criteria were

not satisfied. To satisfy “paragraph B” criteria, a claimant’s mental

impairments “must result in at least one extreme or two marked limitations in

a broad area of functioning which are: understanding, remembering, or

applying information; interacting with others; concentrating, persisting, or

maintaining pace; or adapting or managing themselves.” (AR. 19.)2

In particular, the ALJ found that the medical evidence demonstrates that

Susan A. had only moderate limitations in the areas of “understanding,

remembering, or applying information” and “concentrating, persisting, or

2 A claimant's affective disorder meets or medically equals listing 12.04

(Depressive, bipolar and related disorders) when it either satisfies both the paragraph

A and paragraph B criteria, or the paragraph A and paragraph C criteria. 20 C.F.R. Pt.

404, Subpt. P, App’x 1, § 12.04.

To satisfy the paragraph A criteria, a claimant must, in essence, medically

document the persistence of depressive or bipolar syndrome. 20 C.F.R. Pt. 404, Subpt.

P, App’x 1, § 12.04. To satisfy the Paragraph B criteria of listing 12.04, a claimant

must demonstrate that her affective disorder results in “extreme limitation of one, or

marked limitation of two” of the following areas of mental functioning:

1. Understand, remember, or apply information.

2. Interact with others.

3. Concentrate, persist, or maintain pace.

4. Adapt or manage oneself.

Id.

“‘Marked’ as a standard for measuring the degree of limitation … means more

than moderate but less than extreme.” Id. § 12.00.

Listing 12.04, Paragraph C states:

Your mental disorder in this listing category is

“serious and persistent;” that is, you have a medically

documented history of the existence of the disorder over a

period of at least 2 years, and there is evidence of both: (1)

Medical treatment, mental health therapy, psychosocial

support(s), or a highly structured setting(s) that is ongoing

and that diminishes the symptoms and signs of your

mental disorder (see 12.00G2b); and (2) Marginal

adjustment, that is, you have minimal capacity to adapt to

changes in your environment or to demands that are not

already part of your daily life (see 12.00G2c).

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(C). See generally Trzeciak v. Colvin, No. CV

15-6333 (KM), 2016 WL 4769731, at *7 (D.N.J. Sept. 12, 2016).

maintaining pace,” as well as mild limitations “in interacting with others” and

“adapting or managing oneself.” (AR. 19.)

The ALJ also found that the evidence: (1) failed to “establish the presence

of ‘the paragraph C’ criteria because medical treatment diminishes the signs of

[Susan A.’s] mental disorders, and [Susan A.] has more than minimal capacity

to adapt to changes in her environment”; (2) “does not show such marginal

adjustment that [Susan A.] has minimal capacity to adapt to changes in the

environment or some new demands”; and (3) does not demonstrate “that simple

changes or increased demands have led to a deterioration of [Susan A.’s]

functioning or inability to function outside the home.” (AR. 19.)

RFC and Step 4

Next, ALJ Costa defined Susan A.’s RFC:

[T]he claimant has the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) and

416.967(b), with exceptions. The claimant cannot perform

overhead reaching with the dominate right arm. She is unable to

lift or carry weights in excess of 10 pounds with the right arm. She

can occasionally push/pull controls with the upper extremities.

She can frequently handle and finger objects with the right hand.

She is able to understand, remember and carry out simple

instructions with only occasional changes to essential job

functions and is able to make simple work-related decisions.”

(AR. 20.)

ALJ Costa began his RFC analysis by laying out the prescribed two-step

process. First, he was required to determine whether Susan A. had an

underlying medically determinable physical or mental impairment “that can be

shown by medically acceptable clinical and laboratory diagnostic techniques—

that would reasonably be expected to produce [Susan A.’s] pain or other

symptoms.” (AR. 20.) Second, the ALJ was required to “evaluate the intensity,

persistence, and limiting effects of [Susan A.’s] symptoms to determine the

extent to which they limit [her] work-related activities.” (AR. 20.) This

evaluation required him to look to objective medical evidence, or to the entire

case record, where objective medical evidence does not substantiate Susan A.’s

statements about “the intensity, persistence, and limiting effects of pain or

other symptoms.” (AR. 20.)

ALJ Costa concluded that while Susan A.’s “medically determinable

impairments reasonably could be expected to cause symptoms and

limitations,” to the extent Susan A. alleges that “the intensity, persistence, and

limiting effects of her symptoms result in disability,” her statements were not

consistent with the record. (AR. 21.)

Beginning with Susan A.’s physical symptoms, ALJ Costa noted that on

April 20, 2018, a routine mammogram screening revealed that Susan A. had

“heterogeneously dense breasts and a 1.5 cm density at the right lower inner

quadrant deep.” (AR. 21.) Because of these findings, Susan A. went for an

additional mammogram and ultrasound on May 4, 2018, which revealed: (1) “a

spiculated mass at the right lower breast measuring 13 x 21 mm”; (2) “a

hypoechoic mass at the right 5-6 o’clock axis, 6 cm from the nipple, and an

adjacent 12 mm nodule”; and (3) “a left breast cyst at 2 o’clock, which was too

small to characterize.” (AR. 21.) Susan A. was ultimately diagnosed with right

breast cancer. (AR. 21.)

According to Susan A.’s March 29, 2019 progress notes, in 2018, Susan

A. “underwent lumpectomy with reduction mammoplasty on the opposite side

followed by radiation to the right breast.” (AR. 21) Susan A.’s radiation

treatment concluded in December 2018; however, because Susan A. was

suffering from “some left-sided chest pain,” she visited a cardiologist. (AR. 21.)

During this visit, as part of a workup, Susan A. also revealed an abnormal

“calcium score CAT scan,” which “led to a CT scan of the chest showing a right

upper lobe nodule.” (AR. 21.)

Since her appointment with the cardiologist, Susan A.’s “chest pain has

subsided.” (AR. 21.) The ALJ noted that during an evaluation, Susan A. stated

that, in retrospect, “she had a very minimal non bothersome cough” over the

past “couple of months,” along with “some rhinorrhea.” (AR. 21.) On the other

hand, Susan A. “was not short of breath at rest or with exertion,” and the chest

pain she previously complained of was resolved. (AR. 21.) Ultimately, Dr.

Frederic Scoopo’s assessment was that Susan A. “had a lung nodule, that may

be an inflammatory nodule status post radiation therapy, or possible early

scarring from radiation.” (AR 21.)

By February 3, 2020, according to Dr. May Abdo-Matkiwsky’s medical

records, Susan A. had no ongoing treatment events. (AR. 22.) While Susan A.

reported fatigue, she also reported “no generalized weakness, fair appetite, no

sleep disturbance, and no night sweats or hot flashes.” (AR. 22.) Moreover,

while Susan A. “had ongoing rheumatologic issues and psoriatic arthritis[,] …

[o]ther auto-immune disorders and hypothyroidism had been effectively

treated.” (AR. 22.) Finally, according to March 12, 2020 medical records,

Susan A.’s “right-sided breast cancer was noted to be in remission.” (AR. 22.)

ALJ Costa also considered Susan A.’s mental impairments. The ALJ cited

Dr. Paulette Sabol’s February 14, 2019 psychological consultative examination

report, in which Susan A. “reported symptoms of depression since she was

diagnosed with cancer.” (AR. 22.) Susan A. also stated that: (1) her tamoxifen

was “making her feel sad”; (2) she felt “tearful more than usual”; (3) she felt

irritable; (4) she had lost “interest in regular activities such as cleaning,

gardening, and organizing”; (5) “she has difficulty sleeping … because of pain

and worry”; (6) experienced “psychomotor slowing”; and (7) had “difficulty

concentrating and remembering information.” (AR. 22.) On the other hand,

Susan A. denied “suicidal ideation” or “auditory or visual hallucinations.” (AR.

22.)

The ALJ noted that Dr. Sabol reported that Susan A.’s “demeanor and

responsiveness to questions were pleasant and cooperative.” (AR. 22.) Further,

Susan A.’s “manner of relating, social skills, and overall presentation were

adequate” and that her “thought processes were coherent and goal directed

with no evidence of hallucinations, delusions, or paranoia in the evaluation

setting.” (AR. 22.) Dr. Sabol expressed, however, that Susan A. “seemed to

process information slowly” and that her “affect was tearful.” (AR. 22). Susan

A.’s mood was also described as “anxious and depressed” and that her “recent

and remote memory skills were impaired possibly because of [her] depression.”

(AR. 22.)

Nevertheless, according to Dr. Sabol, Susan A. was still able to “name

simple objects correctly,” “understand and carry out simple directions,” “read

and write a coherent sentence and copy a design correctly.” (AR. 22.) The

medical report described Susan A.’s intellectual functioning as “in the average

range,” “her general fund of information [a]s appropriate to her experience, and

her insight and judgment as “fair.” (AR. 22.) “Dr. Sabol’s psychological

impressions included major depressive disorder, recurrent, moderate, without

psychotic features; generalized anxiety disorder; and rule[d] out mild cognitive

impairments.” (AR. 22.)

In assessing Susan A.’s RFC, the ALJ also reviewed opinion evidence as

to both her physical and mental impairments. The ALJ found the opinion of the

DDS medical consultants to be “somewhat persuasive” and “somewhat

consistent” with the overall medical record. (AR. 23.) The DDS consultants

found that Susan A. could “occasionally lift/carry 20 pounds; frequently

lift/carry 10 pounds; stand/walk for about 6 hours in an 8-hour workday; and

sit for about 6 hours in an 8-hour workday,” along with postural limitations.

(AR. 23.) Further, the DDS consultants described Susan A. as having

“moderate limitations” in “understanding, remembering, or applying

information” and “concentrating, persisting and maintaining pace,” as well as

having “mild limitations” in “interacting with others” and “adapting or

managing oneself.” (AR. 23.) However, ALJ Costa noted that while the DDS

consultants examined the medical record and cited supporting evidence, the

consultants never observed Susan A. personally and did “not incorporate the

entirety of [her] limitations.” (AR. 23.) Ultimately, the ALJ determined that the

DDS consultants’ opinions were “somewhat consistent” with the medical

record. (AR. 23.)

ALJ Costa also cited Dr. Gary Mascilak’s medical opinion with respect to

Susan A.’s ability to perform physical work-related activities. (AR. 23.) Dr.

Mascilak reported that Susan A. could “lift and carry less than 10 pounds; sit

less than 2 hours in an 8-hour workday; stand and walk less than 2 hours in

an 8-hour workday; [could] never crouch; limited in pushing/pulling overhead;

and would be absent from work more than three times per months.” (AR. 23.)

Nonetheless, the ALJ stated that while Dr. Mascilak’s opinion was based on his

personal examination and observation of Susan A., in his view, the opinion

lacked “adequate rationale or supporting evidence for such great limitations,

especially the opinion as to absences per month.” (AR. 23.) Overall, the ALJ

stated that the report was “somewhat consistent” with the medical record. (AR.

23.)

Finally, the ALJ cited Dr. Sabol’s medical opinion as to Susan A.’s mental

impairments. (AR. 23.) According to Dr. Sabol, Susan A. has “major depressive

disorder and generalized anxiety,” with a “fair” prognosis. (AR. 23.) Dr. Sabol

also stated that Susan A. is “able to follow and understand simple directions,”

“perform tasks independently,” “maintain attention and concentration,”

although noting that Susan A. “may have difficulty maintaining a regular

schedule due to anxiety.” (AR. 23.) ALJ Costa expressed that while Dr. Sabol’s

opinion was based on her personal examination of Susan A., it “was only a one-

time evaluation.” (AR. 23-24.) The ALJ described Dr. Sabol’s opinion as being

“somewhat consistent with the record reflecting that [Susan A.] severe mental

impairments resulting in some limitations.” (AR. 24.)

Step 5

At step five, ALJ Costa explained that “considering the claimant’s age,

education, work experience, and residual functional capacity,” there were other

jobs that existed in significant numbers in the national economy that the

claimant could have performed. (AR. 24.)3 The ALJ relied on the testimony of a

vocational expert, who testified that Susan A. would have been able to perform

the following representative occupations: Retail Marker (Dictionary of

Occupational Titles (“DOT”)) 209.587-034; Mail Sorter, (DOT) 209.687-026, and

3 The ALJ also found that Susan A. could perform past relevant work as an office

assistant in light of her RFC. AR. 24.

Laundry Attendant, (DOT) 361.687-030. (AR. 25.) All three occupations are

classified as light, unskilled work, and there are between 110,000 and 130,000

positions in these three occupations in the United States. (AR. 25.)4

Accordingly, the ALJ concluded that Susan. A. was not disabled from

April 20, 2018, the onset date of the alleged disability, through July 1, 2020,

the date of decision.

III. DISCUSSION

A. Evaluation of Opinion Evidence

Susan A. claims that the ALJ’s “weighting” of Dr. Mascilak’s medical

opinion was unreasonable, thus requiring remand. (Pl. Br. at 23.) In Dr.

Mascilak’s medical opinion, Susan A. could “lift and carry less than 10 pounds;

sit less than 2 hours in an 8-hour workday; stand and walk less than 2 hours

in an 8-hour workday; [could] never crouch; limited in pushing/pulling

overhead; and would be absent from work more than three times per month.”

(AR. 23.) Although Dr. Mascilak’s personally examined Susan A., the ALJ found

that (1) there was not “adequate rationale or supporting evidence” for the

extent of his limitations, especially “as to absences per month” and (2) his

opinion was “somewhat consistent” with the record. (AR. 23.)

Because Susan A.’s claim was filed after March 27, 2017, the relevant

regulations eliminated the hierarchy of medical source opinions that gave

preference to the opinions of treating sources. Compare 20 C.F.R. § 404.1527

with 20 C.F.R. § 404.1520c(a) (providing, inter alia, that the Commissioner will

no longer “defer or give any specific evidentiary weight, including controlling

weight, to any medical opinion(s) or prior administrative medical finding(s),

including those from [the claimant's] medical sources”). Rather than assigning

weight to medical opinions, the Commissioner instead articulates “how

4 As to the number of jobs for the listed representative occupations, ALJ Costa

also stated that the number reflected “a 50% reduction due to the claimant being

unable to lift or carry weights in excess of 10 pounds with the right arm.” AR. 25.

persuasive” he or she finds the medical opinions. 20 C.F.R. §§ 404.1520c(b),

416.920c(b).

The Commissioner’s consideration of medical opinions is guided by the

following factors: (1) supportability; (2) consistency; (3) relationship with the

claimant; (4) specialization of the medical source; and (5) any other factors that

tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(c)(1)-(5),

416.920c(c)(1)-(5). However, the “supportability” and “consistency” of the

opinion are considered the most important factors for the Commissioner’s

consideration. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Indeed, while the

ALJ may explain his or her consideration of the other factors, the ALJ must

explain how he or she considered the “supportability” and “consistency” of a

medical source’s opinion. Id. Nevertheless, the ALJ need not rely on a specific

medical opinion, as the ALJ makes the ultimate disability and RFC

determinations.5

The Court finds that ALJ Costa’s explanation of the “supportability” and

“consistency” of Dr. Mascilak’s opinion both (1) complied with the governing

regulations and (2) is supported by substantial evidence. As previously stated,

the ALJ did not believe that Dr. Mascilak’s opinion provided the requisite

rationale or supporting evidence to justify the proposed limitations and

absences from work. When asked “[w]hat medical findings support[ed] the

limitations,” Dr. Mascilak only stated “see treatment notes.” (AR. 1731-33.) And

with respect to work absences caused by Susan A.’s impairments, Dr. Mascilak

indicated “[m]ore than three times a month,” although noting that it “[d]epends

on work, as a hair stylist >3x/month.” (AR. 1733.)

5 See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The

ALJ—not treating or examining physicians or State agency consultants—must make

the ultimate disability and RFC determinations.”); Titterington v. Barnhart, 174 F.

App'x 6, 11 (3d Cir. 2006) (there is no current “legal requirement that a physician have

made the particular findings that an ALJ adopts in the course of determining an RFC

[residual functional capacity]”); Mays v. Barnhart, 78 F. App'x 808, 813 (3d Cir. 2003).

A review of Dr. Mascilak’s treatment notes indicates that he only treated

Susan A.’s right shoulder (AR. 546-81, 622-76, 1683-1730); therefore, based on

these treatment notes, the ALJ determined that Dr. Mascilak did not provide

the necessary support for his proposed limitations, which included drastically

limiting how often Susan A. could sit, stand, and walk in an 8-hour workday.

This finding is supported by substantial evidence. As Susan A. reported in her

function report, while she complained that her surgery caused “difficulty in

[her] right shoulder and … trouble with [a] full range of motion and tight

muscles in the right side of [her] neck,” she did not indicate that her

impairments adversely affected her ability to squat, bend, stand, walk, sit, or

kneel, (AR. 256-271.) Moreover, Susan A. testified that her limitations are

currently “not being able to lift [her] arm, not being able to cross it or cross

[her] shoulder without pain” (AR. 46), although also stating that she was able

to walk and sit with necessary accommodations to her right arm. (AR. 55-56.)

Finally, the DDS consultants found that Susan A. was capable of standing,

walking, and sitting for about 6 hours in an 8-hour workday—although the ALJ

similarly classified their opinions as “somewhat consistent” with the record and

noted that the consultants failed to “incorporate the entirety of the claimant’s

limitations,” most notably with respect to her right shoulder. (AR. 23.)

The Court finds that the ALJ’s RFC determination was based on a

thorough discussion of the medical evidence, and not merely a lay opinion.

Indeed, Susan A.’s RFC is largely consistent with Dr. Mascilak’s treatment

records, with the ALJ finding that she could not (1) “perform overhead reaching

with the dominate right arm” or (2) “lift or carry weights in excess of 10 pounds

with the right arm.” (AR. 20.) Moreover, the ALJ ultimately determined that

Susan A. could not work in her old occupation as a hairdresser; therefore, Dr.

Mascilak’s opinion as to Susan A.’s absences from work—based on her working

as a hairdresser—is of minimal value.

Accordingly, based on the evidence in the record and the ALJ’s stated

reasons, I find that the ALJ’s determination of how much weight to give the

medical opinions was supported by substantial evidence in the record. I thus

affirm the determination as to Susan A.’s RFC.

B. Conflict Between VE’s Testimony and the DOT

More substantial is Susan A.’s challenge to the ALJ’s determination that

she can perform either (1) her past relevant work as an office assistant or (2)

work that exists in significant numbers in the national economy. In

determining Susan A.’s RFC, ALJ Costa found that she was “able to

understand, remember, and carry out simple instructions with only occasional

changes to essential job functions and … make simple work-related decisions.”

(AR. 20.) Susan A. argues, however, that there is a conflict between the ALJ’s

mental impairment-related limitations and the jobs identified by the vocational

expert, Richard Hall, during the April 23, 2020 telephonic hearing. While the

ultimate decision of the ALJ might well have a substantial basis, I will remand

so that inconsistency can be explained or resolved.

Mr. Hall testified that given Susan A.’s RFC, she would be capable of

performing her past job as an office assistant, along with the representative

jobs of a retail marker, mail sorter, or laundry attendant, classified as light,

unskilled work. (AR. 60-61). Nevertheless, when asked by Susan A.’s counsel

whether her “limitation to simple instructions … would preclude the ability to

carry out detailed written and oral instructions,” Mr. Hall answered in the

affirmative. (AR. 62 (emphasis added).) According to Susan A., Mr. Hall’s

testimony created a direct conflict between [her] RFC limitation, because the

reasoning level requirements of her prior employment and the other jobs cited

by the ALJ exceed those in her RFC. (Pl. Br. at 18.)

Susan A. submits that her prior office assistant job, along with the retail

marker and the laundry attendant jobs, have a General Educational

Development (“GED”) reasoning level of 2. A reasoning level of 2 requires an

individual to be able to “[a]pply commonsense understanding to carry out

detailed but uninvolved written or oral instructions” and “[d]eal with problems

involving a few concreted variables in or from standardized situations.” (Pl. Br.

at 12 (emphasis added).)6

Susan A. claims that neither the ALJ nor Mr. Hall explained how

someone (1) limited to simple instructions and (2) unable to “carry out detailed

written and oral instructions” could perform the GED level 2 representative

jobs which “require the ability to handle detailed instructions.” (Pl. Br. at 18

(emphasis added).) This, Susan A. argues, violates SSR 00-4p, which requires

the ALJ to “[i]dentify and obtain a reasonable explanation for any conflicts

between occupational evidence provided by VEs … and information in the

[DOT].”7

6 The DOT “is a vocational dictionary that lists and defines all jobs available in

the national economy and specifies what qualification are needed to perform each job.”

Zirnsak v. Colvin, 777 F.3d 607, 617 (3d Cir. 2014) (citing DOT, Appendix C,

www.occupationalinfo.org/appendxc_1.html (other citations omitted). To that end, the

DOT lists qualification categories for each job, which includes the job’s (1) Strength

level, (2) GED level, and (3) Specific Vocational Preparation (“SVP”) level.

GED level measures “those aspects of education (formal and informal) which

are required of the worker for satisfactory job performance” and is broken into three

specific categories: (1) reasoning development; (2) mathematical development; and (3)

language development. Id. (citing Appendix C). At issue here, reasoning development,

comprises levels 1 through 6. Id. Relevant to the instant action:

Level 3 reasoning is: Apply commonsense understanding to carry out

instructions furnished in written, oral, or diagrammatic form. Deal with

problems involving several concrete variables in or from standardized

situations.

Level 2 reasoning is: Apply commonsense understanding to carry out detailed

but uninvolved written or oral instructions. Deal with problems involving a few

concrete variables in or from standardized situations.

Level 1 reasoning is: Apply commonsense understanding to carry out simple

one-or two-step instructions. Deal with standardized situations with occasional

or no variables in or from these situations encountered on the job.

DOT, Appendix C.

7 See SSR 00-4p, 2000 WL 1898704, at *1 (Dec. 4, 2000); see also Pl. Br. at 19

(“When there is such an apparent unresolved conflict between the VE or VS evidence

and the DOT, the adjudicator must elicit a reasonable explanation for the conflict

In response, the government attempts to salvage the ALJ’s admittedly

inconsistent ruling by citing the so-called Zinsak factors: (1) whether the

plaintiff “seriously argue[s] that she is incapable of performing the jobs

recommended by the VE,” (2) whether the plaintiff’s “counsel [ ] identif[ied] any

inconsistencies between the VE’s testimony and the DOT at her hearing,” and

(3) whether “the jobs listed by the VE were only representative examples—not

an exhaustive list—of jobs that the [plaintiff] was capable of performing”

(hereinafter, “Zirnsak factors”). See Ana M. v. Comm'r of Soc. Sec., No. CV 21-

7780 (SDW), 2022 WL 1639206, at *8 (D.N.J. May 23, 2022) (citing Zirnsak,

777 F.3d at 618-19). The Third Circuit has thus authorized a finding of

harmless error in a proper case.8

On the first Zirnsak factor, as to Susan A.’s ability to perform prior

relevant work or the jobs that the vocational expert identified during the

hearing, it is not a sufficient answer that Susan A. was found capable of

performing “unskilled” work. To be sure, there are items in the record that

could support such a determination.9 I am not satisfied, however, that the

before relying on the VE or VS evidence to support a determination or decision about

whether the claimant is disable.”).

8 See Zirnsak, 777 F.3d at 617 (“[T]his Circuit has emphasized that the presence

of inconsistencies does not mandate remand, so long as substantial evidence exists in

other portions of the record that can form an appropriate basis to support the

result.”); Jackson v. Barnhart, 120 F. App’x 904, 906 (3d Cir. 2005) (citations omitted)

(“[E]ven if it was error for the ALJ to fail to solicit testimony about potential conflicts

between this portion of the VE's testimony and the DOT, the error was harmless.

Where substantial evidence supports the ALJ's opinion and where the failure to solicit

the testimony contemplated in SSR 00–4p is harmless, this court will not reverse the

ALJ's decision.”).

9 For example, Dr. Sobel reported that she was able to (1) “understand and carry

out simple directions,” (2) “read and follow directions,” and (3) “write a coherent

sentence and copy a design correctly.” (AR. 22.) Dr. Sabol also reported that Susan

A.’s intellectual function is “in the average range,” her “general fund of information” to

be appropriate with her experience, and that she had fair insight and judgment. (AR.

22.) Indeed, Dr. Sabol’s report is consistent with the DDS consultants who described

Susan A. as having only “moderate limitations” in “understanding, remembering, or

applying information” and “concentrating, persisting, and maintaining pace.” (AR. 23.)

relevant evidence was considered and weighed in relation to jobs that exist in

the national economy—or at least as to the particular jobs cited by the VE. This

Court should not in the first instance perform that function, which is

committed to the sound discretion of the ALJ, guided by the expertise of the

VE.

On the third Zinsak factor, a review of the hearing transcript does make

it clear that the representative jobs were proffered as examples—not an

exhaustive list—of the jobs that Susan A. could perform. (AR. 59, 61.) That, of

course, is nearly always the case; a VE does not generally list every job in the

national economy that an applicant could perform. Again, I do not suggest

that the ALJ could not reach the same conclusion on remand, but the record

does not place this Court in a position to posit or identify jobs other than the

“examples” that Susan A. could perform.

On the second Zirnsak factor, I have already identified a conflict or

inconsistency between the VE’s conclusions and the DOT.

In sum, I am unable to determine whether the ALJ, guided by the VE,

actually and adequately considered and resolved the issue of jobs this

applicant could perform. I am unwilling to construct a hypothetical ruling from

items in the record which the ALJ should be considering in the first instance. I

will therefore remand for clarification and resolution of the apparent

inconsistency.

IV. CONCLUSION

For the reasons set forth above, I hold that the Commissioner’s finding

as to the applicant’s RFC is supported by substantial evidence, but the

decision is REVERSED and REMANDED on the issue of work in the national

economy that the applicant can perform. In remanding, I do not suggest an

outcome or purport to limit the ALJ’s resolution of this issue. A separate order

will issue.

Dated: June 27, 2022

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge