CONTI MACCARONE v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LISA C. M.,1

Plaintiff,

Case No. 3:20-cv-14153

v. Magistrate Judge Norah McCann King

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,

Defendant.

OPINION AND ORDER

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,

as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Lisa C.M. for Disability

Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Plaintiff

appeals from the final decision of the Commissioner of Social Security denying that application.2

After careful consideration of the entire record, including the entire administrative record, the

Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure and

Local Civil Rule 9.1(f). For the reasons that follow, the Court affirms the Commissioner’s

decision.

1 The Committee on Court Administration and Case Management of the Judicial Conference of

the United States has recommended that, due to significant privacy concerns in social security

cases, federal courts should refer to plaintiffs in such cases by only their first names and last

initials. See also D.N.J. Standing Order 2021-10.

2 Kilolo Kijakazi, the Acting Commissioner of Social Security, is substituted as Defendant in her

official capacity. See Fed. R. Civ. P. 25(d).

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I. PROCEDURAL HISTORY

On November 13, 2018, Plaintiff filed her application for benefits, alleging that she has

been disabled since April 1, 2016. R. 83, 100,160–61. The application was denied initially and

upon reconsideration. R. 102–06, 110–12. Plaintiff sought a de novo hearing before an

administrative law judge. R. 113–14. Administrative Law Judge (“ALJ”) Mark Solomon held a

hearing on March 10, 2020, at which Plaintiff, who was represented by counsel, testified, as did

a vocational expert. R. 35–66. In a decision dated April 29, 2020, the ALJ concluded that

Plaintiff was not disabled within the meaning of the Social Security Act from April 1, 2016,

Plaintiff’s alleged disability onset date, through the date of that decision. R. 16–29. That decision

became the final decision of the Commissioner of Social Security when the Appeals Council

declined review on August 19, 2020. R. 1–7. Plaintiff timely filed this appeal pursuant to 42

U.S.C. § 405(g). ECF No. 1. On April 30, 2021, Plaintiff consented to disposition of the matter

by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal

Rules of Civil Procedure. ECF No. 10, 11.3 On that same day, the case was reassigned to the

undersigned. ECF No. 12. The matter is ripe for disposition.

II. LEGAL STANDARD

A. Standard of Review

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

3The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases

seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot

Project (D.N.J. Apr. 2, 2018).

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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). The United States Supreme Court has

explained this standard as follows:

Under the substantial-evidence standard, a court looks to an existing administrative

record and asks whether it contains sufficien[t] evidence to support the agency’s

factual determinations. And whatever the meaning of substantial in other contexts,

the threshold for such evidentiary sufficiency is not high. Substantial evidence, this

Court has said, is more than a mere scintilla. It means – and means only – such

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

conclusion.

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks

omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal

quotations omitted); Bailey v. Comm’r of Soc. Sec., 354 F. App’x 613, 616 (3d Cir. 2009)

(citations and quotations omitted); K.K. ex rel. K.S. v. Comm’r of Soc. Sec., No. 17-2309, 2018

WL 1509091, at *4 (D.N.J. Mar. 27, 2018).

The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot

be set aside merely because the Court “acting de novo might have reached a different

conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli

v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported

by substantial evidence, we are bound by those findings, even if we would have decided the

factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,

2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or

substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d

1178, 1182 (3d Cir. 1992)).

Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic

or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)

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(“The search for substantial evidence is thus a qualitative exercise without which our review of

social security disability cases ceases to be merely deferential and becomes instead a sham.”);

see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,

2016). The Court has a duty to “review the evidence in its totality” and “take into account

whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting

Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));

see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists

only “in relationship to all the other evidence in the record”). 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, 710 F.2d at 114); see

K.K., 2018 WL 1509091, at *4. The ALJ decision thus must be set aside if it “did not take into

account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.

at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).

Although an ALJ is not required “to use particular language or adhere to a particular

format in conducting [the] analysis,” the decision must contain “sufficient development of the

record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d

501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.

2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an

expression of the evidence s/he considered which supports the result, but also some indication of

the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121

(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication

of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing

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Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a

comprehensive explanation for the rejection of evidence; in most cases, a sentence or short

paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent

such articulation, the Court “cannot tell if significant probative evidence was not credited or

simply ignored.” Id. at 705. As the Third Circuit explains:

Unless the [ALJ] has analyzed all evidence and has sufficiently explained the

weight [s/]he has given to obviously probative exhibits, to say that [the] 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, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.

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, 220 F.3d at 119-20; 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) (internal quotation marks omitted); see

A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016). A decision to “award

benefits should be made only when the administrative record of the case has been fully

developed and when substantial evidence on the record as a whole indicates that the claimant is

disabled and entitled to benefits.” Podedworny, 745 F.2d at 221-22 (citation and quotation

omitted); see A.B., 166 F. Supp.3d at 518.

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B. Sequential Evaluation Process

The Social Security Act establishes a five-step sequential evaluation process for

determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §

404.1520(a)(4). “The claimant bears the burden of proof at steps one through four, and the

Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d

632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).

At step one, the ALJ determines whether the plaintiff is currently engaged in substantial

gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not

disabled.

At step two, the ALJ decides whether the plaintiff has a “severe impairment” or

combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability

to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe

impairment or combination of impairments, then the inquiry ends because the plaintiff is not

disabled. Otherwise, the ALJ proceeds to step three.

At step three, the ALJ decides whether the plaintiff’s impairment or combination of

impairments “meets” or “medically equals” the severity of an impairment in the Listing of

Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §

404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination

of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.

at § 404.1509. Otherwise, the ALJ proceeds to step four.

At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)

and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).

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If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not

disabled. Otherwise, the ALJ proceeds to the final step.

At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,

age, education, and work experience, can perform other jobs that exist in significant numbers in

the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do

so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the

impairment or combination of impairments has lasted or is expected to last for a continuous

period of at least twelve months.

III. ALJ DECISION AND APPELLATE ISSUES

Plaintiff was 56 years old on April 1, 2016, her alleged disability onset date. R. 28. At

step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity between that

date and the date of the decision. R. 18.

At step two, the ALJ found that Plaintiff ‘s post-traumatic stress disorder (“PTSD”) and

history of bronchitis were severe impairments. Id. The ALJ also found that Plaintiff’s diagnosed

chronic urticaria, gastritis, and GERD were not severe impairments. R. 18–19.

At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of

impairments that met or medically equaled the severity of any Listing. R. 19–20.

At step four, the ALJ found that Plaintiff had the RFC to perform a full range of work at

all exertional levels subject to various non-exertional limitations. R. 21–28. The ALJ also found

that this RFC did not permit the performance of Plaintiff’s past relevant work as a manager,

brokerage office. R. 28.

At step five, the ALJ found that a significant number of jobs—i.e., approximately 50,000

jobs as a hand packager; approximately 67,000 jobs as a laundry worker; approximately 37,000

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jobs as a warehouse worker—existed in the national economy and could be performed by an

individual with Plaintiff’s vocational profile and RFC. R. 29. The ALJ therefore concluded that

Plaintiff was not disabled within the meaning of the Social Security Act from April 1, 2016, her

alleged disability onset date, through the date of the decision. Id.

Plaintiff disagrees with the ALJ’s findings at steps four and five and asks that the decision

of the Commissioner be reversed and remanded for further proceedings. Plaintiff’s Memorandum

of Law, ECF No. 17; Plaintiff’s Reply Brief, ECF No. 19. The Acting Commissioner takes the

position that her decision should be affirmed in its entirety because the ALJ’s decision correctly

applied the governing legal standards, reflected consideration of the entire record, and was

supported by sufficient explanation and substantial evidence. Defendant’s Brief Pursuant to

Local Civil Rule 9.1, ECF No. 18.

IV. RELEVANT MEDICAL EVIDENCE

A. J. Theodore Brown, Jr., Ph.D., the Consultative Examiner

On February 11, 2019, J. Theodore Brown, Jr., Ph.D., conducted a consultative

psychological examination of Plaintiff at the request of the state agency. R. 321-325. His initial

impression of Plaintiff, “a 9/11 survivor,” R. 321, was “a 7 or 8” on a 1-10 mental status scale.

Id. Plaintiff reported sleep difficulty, depression and survivor’s guilt. Id. On examination,

Plaintiff’s thought processes were coherent and goal directed, without evidence of delusions,

hallucinations, or paranoia. R. 323. She was oriented, her mood was neutral, and her affect was

appropriate. Id. She reported that her activities of daily living included cooking, cleaning,

laundry, and shopping; she has friends and her family relationships were good. R. 324. However,

she also reported that she spends her time at home in bed, “negotiating her energy and symptoms

to do what housework and other activities she can when she can.” Id. Dr. Brown diagnosed

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major depressive disorder, r/o psychosis, unspecified, posttraumatic stress disorder, panic,

anxiety disorder, generalized anxiety disorder, and paranoid personality disorder. Id. Her

prognosis was “[u]ndetermined, very much dependent upon her continuing to receive and being

able to benefit from mental healthcare support and treatment.” Id.

B. Sandra Diaz, Ph.D., a State Agency Reviewer

On February 15, 2019, Sandra Diaz, Ph.D., reviewed the record on behalf of the state

agency and concluded that the record documented depressive, bipolar, and related disorders;

anxiety and obsessive-compulsive disorders; and trauma and stressor-related disorders. R. 76.

Limitations on Plaintiff’s ability to understand, remember, or apply information were

characterized as “mild,” as were those relating to her abilities to interact with others and to adapt

or manage herself. Id. Limitations on her ability to concentrate, persist, or maintain pace were

characterized as “moderate.” Id. Dr. Diaz explained, in pertinent part:

[Plaintiff] worked as a financial consultant (2016) and financial manager (1991-

2015). She last worked on 03/30/2016 because of her conditions. A review of the

Psyc CE and functional report was conducted. Overall, there is no psyc evidence

of any marked limitations. She continues to get her basic needs met and complete

basic tasks, takes care of her son and manages her household. She has no

problems going alone. She walks her dog, goes grocery shopping, drops off her

son and picks him up. She goes out to dinner, or the movies, celebrates birthdays

and sees friends once in a while. She reports going to her son’s school, attend

curch and shops at stores on a regular basis. She takes her son to the doctor’s on a

regular basis for his ADHD. She has no history of any inpatient psychiatric

hospitalizations no recent psychiatric, voluntary or involuntary. She reports that

she is no[t] taking any medications. She appears to be functioning quite well

despite her conditions. Her symptoms appear to be moderately severe. She is

capable of managing her funds. She appears capable of doing skilled or unskilled

work.

R. 80.

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C. Jeanette Maldonado, Psy.D., a State Agency Reviewer

Jeanette Maldonado, Psy.D., reviewed Plaintiff’s medical record on reconsideration by

the state agency on August 12, 2019. R. 84–99. In assessing the criteria for Listings addressing

depressive, bipolar, and related disorders, and trauma and stressor-related disorders, Dr.

Maldonado opined, inter alia, that Plaintiff had moderate limitations in her ability to understand,

remember, or apply information, and to concentrate, persist, or maintain pace, and only a mild

limitation in her ability to interact with others and adapt or manage herself. R. 94. Assessing

Plaintiff’s mental RFC, Dr. Maldonado indicated that Plaintiff had no limitation in understanding

and memory, explaining as follows:

STRESS CARE REPORTED AS NORMAL THE RECENT AND REMOTE

MEMORY, THE C/E ME/E FOUND THAT SHE COULD REMEMBER 3/3

ITEMS I[M]MEDIATELY AND 2/3 AFTER 5 MINUTES. CLAIMANT

ALLEGES MEMORY PROBLEMS, BUT INFORMED TO BE ABLE OF [sic]

PAY BILLS AND SHO[]P. HER ALLEGED ME[M]ORY DEFICIT WAS NOT

SUSTAINED BY EVIDENCE IN RECORD.

R. 96. Plaintiff was not significantly limited in her ability to carry out very short and simple

instructions, maintain attention and concentration for extended periods, sustain an ordinary

routine without special supervision, work in coordination with or in proximity to others without

being distracted by them, and make simple work-related decisions. Id. However, Plaintiff was

moderately limited in her ability to carry out detailed instructions, to perform activities within a

schedule, maintain regular attendance, and be punctual within customary tolerances, and in her

ability to complete a normal workday and workweek without interruptions from psychologically

based symptoms, and to perform at a consistent pace without an unreasonable number and length

of rest periods. Dr. Maldonado explained her opinion in this regard as follows:

STRESS CARE REPORTED AS NORMAL[.] THE CONCENTRATION[] THE

CE FOUND PREVIOUSLY[] THAT SHE COULD MENTION AS 12 THE

MONTHS OF THE YEAR AND COULD NOT SUB[]TRACT THE SERIAL 7

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AND HAD DIFFICULTY WITH THE SERIAL 3. CLAIMANT ALLEGES

THAT [SHE] CAN SUSTAIN ATTENTION DEPENDING ON HER MIND

DRIFTS, BUT IN SPITE OF IT, TO BE ABLE [TO] MANAGE HER FINANCES,

COOK BY TIME AS WELL AS PERFORM THE HOUSE CHORES AND

DRIVE HER AUTO ALONE. ALTHOUGH HER CONCENTRATION

DEFICITS, ANXIOUS AND DEPRESSIVE MOOD, FEARS, CRYING SPELLS

AND YELLING EPISODES BY TIME, SHE STILL RETAIN[S] THE

COGNITIVE SKILLS AS NORMAL RECEPTIVE AND EXPRESSIVE

LANGUAGE AS WELL [AS] THE ORIENTATION, NORMAL THINKING

PROCESS, NO HALLUCINATIONS, DELUSIONS, PARANOIA, IS

COHERENT AND GOAL DIRECTED, AVERAGE INTELLECT AND

COOPERATIVE, AND IS ALLOW [SIC] OF PERFORM [SIC] SIMPLE TASKS

WITHIN THE []WEEKLY DEMANDS OF PACE, OF CONCENTRATION FOR

[ILLEGIBLE] EMOTIONAL ESTATE BY 05/14/2019.

R. 96–97. Dr. Maldonado further opined that Plaintiff was not significantly limited in her ability

to ask simple questions or request assistance, accept instructions and respond appropriately to

criticism from supervisors, get along with coworkers or peers without distracting them or

exhibiting behavioral extremes, and maintain socially appropriate behavior and adhere to basic

standards of neatness and cleanliness, but was moderately limited in her ability to interact with

the general public, explaining as follows: “HER DEPRESSIVE REACTIONS BY TIME AND

OF ANXIETY TO HER P.T.S.D., WILL NOT ALLOW HER TO INTERACT WITH THE

GENERAL PUBLIC CONTINUALLY, BUT CAN RELATE WITH PEERS AND ACCEPT

SUPERVISION AND CRITICISM.” R. 97. Under the heading “MRFC — Additional

explanation[,]” Dr. Maldonado explained:

AT RC LEVEL THIS 60 YEAR[] OLD FEMALE DO[ES] NOT ALLEGE[] TO

HA[VE] WORSEN[ED] HER EMOTIONAL DISORDERS SINCE INITIAL

LEVEL NOR THE NEW M/E IN FILE SUSTAIN THE OPPOSITE[.]HER

ALLEGE[D] PANIC ATTACKS []OR PARANOID IDEATIONS ARE NOT

SUSTAINED BY THE M/E PROVIDED BY THE T/SOURCES. THE

EVIDENCE IN RECORD SUSTAIN[S] A MODERATE EMOTIONAL

DISORDER DUE TO ANXIETY AND DEPRESSION.

A PRTF AND A FLEXIBLE MRFC FO[]R SIMPLE TASKS ARE INCLUDED IN

RECORD.

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DX: P.T.S.D. MODERATE

DEPRESSIVE DISORDER (NOS)[.]

R. 97–98 (emphasis added). Dr. Maldonado concluded that Plaintiff was not disabled. R. 99.

D. Nicole Willms,4 LPC, Plaintiff’s Treating Counselor

Nicole Willms, LPC, Plaintiff’s treating licensed professional counselor, completed a

psychiatric report on August 6, 2019. R. 454–59. Ms. Willms noted that Plaintiff’s weekly

treatment sessions began on April 12, 2019. R. 454. Ms. Willms’ DSM-IV diagnosis was PTSD

with symptoms of being “unable to work, difficulty concentrating, increased appetite,

nightmares, flashbacks, paranoia, irritability, hypervigilance, panic attacks[.]” Id. In addressing

Plaintiff’s psychiatric history, Ms. Willms noted that Plaintiff had attended a “couple of

sessions” with a therapist for all 9/11 survivors,5 was provided “case management through World

Trade Center Foundation,” and was “certified with PTSD by the US government[.]” Id. On

mental status evaluation, Ms. Willms found that Plaintiff was alert; oriented times three;

paranoid about safety but with no observed suicidal, homicidal, or hallucinations; had an anxious

mood, sad affect, and restless behavior, but had normal appearance and speech, good judgment,

and appropriate intellect. R. 455. Plaintiff’s concentration was “okay when focused but cannot

concentrate when anxious, is having panic attacks, depressed, or triggered by her PTSD;” she

“has a vivid memory of her traumas[.]” Id. Ms. Willms also noted that Plaintiff could

immediately recall three out of three words and could recall content earlier in the session, events

of the past week, and long-term events, and track conversation. Id. Plaintiff could complete serial

3’s and repeat digits forward but not backward. Id. Ms. Willms noted that Plaintiff experienced

4 The ALJ and Acting Commissioner mistakenly refer to this individual as “Nicole Williams.” R.

23, 26–27; Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 18, pp. 4–7, 14–17.

5 Plaintiff “was working at World Trade Center at the time of the terrorist attack on September

11, 2001.” R. 22.

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weekly panic attacks that last 15 to 20 minutes and during which Plaintiff had breathing

difficulty, rapid heartbeat, increased blood pressure, and a feeling of inability to move, and

which included screaming and crying. R. 456. Plaintiff “cannot focus or function during panic

attacks[.]” Id. The panic attacks are “[r]andomly triggered by tragedy, loud noises, and reminders

of trauma[.]” Id. Based on these findings, Ms. Willms was of the opinion that Plaintiff had no

limitation in her ability to understand and remember, noting that Plaintiff “vividly remembers her

trauma which leads to increased triggers[.]” R. 457. Ms. Willms further opined that Plaintiff was

limited in her ability to sustain concentration and persist, explaining that Plaintiff “has difficulty

with sustained concentration due to feeling ‘on guard’ and needing to make sure that she is safe.

Panic attacks and depression may lead to attendance issues.” Id. Ms. Willms also opined that

Plaintiff was limited in her ability to socially interact, finding that Plaintiff “has difficulty in

public places due to anxiety and PTSD and being focused on her safety. She has difficulty

regulating her emotions.” Id. According to Ms. Willms, Plaintiff was also limited in her ability to

adapt, explaining that Plaintiff “cannot use public transportation due to fear and cannot respond

calmly to sudden changes or hazards.” Id. Ms. Willms went on to note that Plaintiff “reports

issues due to 9/11 related illnesses including chronic hives, bronchitis, thyroid nodules, and

more.” Id. In describing Plaintiff’s daily activities, Ms. Willms noted that Plaintiff “has a teenage

son whom she has difficulty taking care of due to not being able to get out of bed with depressed

mood or panic attacks when triggered. She is having trouble when she sees planes, goes over

bridges, or is in crowded public places.” R. 458. In finding that Plaintiff has only a mental (not

physical) impairment, Ms. Willms opined that Plaintiff has “PTSD which leads to anxiety and

depressed mood.” Id. According to Ms. Willms, Plaintiff “has made a little bit of progress but

continues to have triggers and stress which impede optimal functioning.” Id. Ms. Willms also

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noted that Plaintiff was not taking any medication. According to Ms. Willms, Plaintiff’s

prognosis was fair and she was capable of managing or directing the management of benefits in

her own best interest. Id.

On February 21, 2020, Ms. Willms completed a two-page, check-the-box, and fill-in-the-

blank form entitled “Medical Assessment of Ability to Do Work Related Activities (Mental).” R.

541–42. In describing Plaintiff’s ability to perform activities, Ms. Willms used the following

terms: Unlimited or very good (“ability to function in his area is more than satisfactory); good

(“ability to function in this area is limited by satisfactory”); fair (“ability to function in this area

is seriously limited but not precluded”); and poor or none (“[n]o useful ability to function in this

area”). R. 541. In assessing Plaintiff’s occupational adjustments (her “ability to adjust to a job”),

Ms. Willms opined that Plaintiff had a fair ability to follow work rules; relate to co-workers; deal

with the public; use judgment; interact with supervisors; deal with work stresses; function

independently; and maintain attention/concentration. Id. In support of these findings, Ms. Willms

explained:

Due to the client’s PTSD which includes symptoms of anxiety and depression, she

is often very suspicious of others, is constantly thinking of worst case situations,

has difficulty with maintaining focus, feels constantly overwhelmed which makes

it hard for her to deal with stress, and often needs to reach out to others to help her

deal with life if she has a good relationship with them.

Id. In assessing Plaintiff’s performance adjustments (her “ability to adjust to a job”), Ms. Willms

opined that Plaintiff had a fair ability to understand, remember, and carry out simple job

instructions, but poor or no ability to understand, remember, and carry out complex job

instructions, and to understand and remember, and poor or no ability to carry out detailed but not

complex job instructions. R. 542. “Due to her limited concentration and focus due to racing

thoughts and anxiety, [Plaintiff] is unable to remember and carry out instructions.” Id. In

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assessing Plaintiff’s ability to adjust personally and socially, Ms. Willms opined that Plaintiff

had an unlimited/very good ability to maintain personal appearance; a good ability to

demonstrate reliability; and a fair ability to behave in an emotionally stable manner and relate

predictably in social situations. Id. In explaining these findings, Ms. Willms stated that Plaintiff

“feels often overwhelmed, depressed, and anxious which lead to panic attacks, tearfulness, fear,

worry, and feeling as though she cannot function.” Id. Plaintiff “often experiences anxiety and

panic being around large groups of people and being in new environments which leads to

depressed mood as she is no longer able to function the way she had in the past.” Id. According

to Ms. Willms, Plaintiff’s limitations have been present since September 11, 2001. R. 542.

Finally, Ms. Willms opined that Plaintiff could manage benefits in her own best interest. Id.

V. DISCUSSION

A. RFC and Opinion Evidence

The ALJ found that Plaintiff has the RFC for a full range of work at all exertional levels

but with certain nonexertional limitations:

[T]he claimant can perform work that avoids working at unprotected heights or

with hazardous machinery. She can perform work that avoids concentrated

exposure to respiratory irritants. She can remember, understand, and carry out

simple instructions. She can make simple work related decisions. She can interact

appropriately with supervisors and co-workers. She can adapt to routine changes

in work environment but would require a job with no close interpersonal contact

with the general public and not requiring high volume or fast paced production

quotas.

R 21. Plaintiff argues that substantial evidence does not support this RFC because the ALJ failed

to properly consider the opinions of Dr. Maldonado and Counsellor Willms. Plaintiff’s

Memorandum of Law, ECF No. 17, pp. 14–18; Plaintiff’s Reply Brief, ECF No. 19, pp. 3–4.

This Court disagrees.

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A claimant’s RFC is the most that the claimant can do despite her limitations. 20 C.F.R. §

404.1545(a)(1). At the administrative hearing stage, it is the ALJ who is charged with

determining the claimant’s RFC. 20 C.F.R. § 404.1546(c); see also 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.”) (citations

omitted). When determining a claimant’s RFC, the ALJ has a duty to consider all the evidence.

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). However, the ALJ need include only

“credibly established” limitations. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005); see

also Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014) (stating that the ALJ has discretion to

choose whether to include “a limitation [that] is supported by medical evidence, but is opposed

by other evidence in the record” but “[t]his discretion is not unfettered—the ALJ cannot reject

evidence of a limitation for an unsupported reason” and stating that “the ALJ also has the

discretion to include a limitation that is not supported by any medical evidence if the ALJ finds

the impairment otherwise credible”).

In finding that Plaintiff had an RFC for a full range of work at all exertional levels but

with certain non-exertional limitations, the ALJ detailed the record evidence, including, inter

alia, Plaintiff’s January 2019 report that, although she sometimes cannot get out of bed due to

depression and has difficulties handling stress and bad moods because of her PTSD, she had no

difficulty in personal care, was basically a single parent caring for her fourteen year-old son, did

housework, shopped in stores and on-line, was able to drive, and was able to follow written and

spoken instructions; evidence that she stopped working at her long-time job in 2015 due to

downsizing and later obtained a temporary job, until the job was cut, as a consultant in

Manhattan from February 2016 to April 2016, traveling by bus from New Jersey to New York,

16

which required travel through the Lincoln Tunnel; evidence that she had no documented

psychiatric limitations or complaints, or on-going psychiatric care, prior to stopping work in

2016 and that she did not begin treatment until 2018; Dr. Brown’s February 2019 consultative

report and opinions; an April 2019 mental status examination, R. 464, which reflected that

Plaintiff’s mood, affect, concentration, and memory were normal and her judgment, insight, and

impulse were good; Plaintiff’s May 2019 report of being actively engaged in a 9/11 program for

survivors; Plaintiff’s August 2019 report of difficulty with depressed mood and stress but feeling

calmer after talking with therapist; Ms. Willms’ August 2019 findings that Plaintiff’s judgment

was good and that she could recall three out of three words at five minutes, could recall content

without issues, could recount digits forward but not backward, was capable of serial 3s, and

could track conversation; the fact that, in November 2019, Plaintiff experienced a panic attack on

a plane, but was able to meditate and pray throughout the flight; the fact that, despite

experiencing anxiety about having to attend a friend’s wedding in Manhattan, was able to attend

the wedding in December 2019; and Plaintiff’s January 2020 report that she felt extremely scared

to travel to Manhattan, but nevertheless travelled by train, went to a theater, and walked around

Times Square despite feelings of paranoia and anxiety. R. 21–24. In addition, the ALJ found—a

finding that Plaintiff does not challenge—that Plaintiff’s statements “concerning the intensity,

persistence and limiting effects of these symptoms are not entirely consistent with the medical

evidence and other evidence in the record,” noting as follows:

Concerning the claimant’s panic attacks and mental health, the record appeared to

show some improvement to the claimant’s conditions with treatment. Even without

the use of medications, the claimant was able to drive and attend to the need of her

son and to her own daily activities. She was able to maintain treatment and actively

participate in her treatment. She had a stated goal to revisit the site of the 9/11

attacks and she was able to do so after returning to NYC for a wedding. While I

note the alleged emotional strain caused by going out into public and traveling, the

claimant appeared to be able to travel despite her anxiety symptoms.

17

Overall, the record did support limitations; however, it did not support limitations

to the degree alleged by the claimant.

R. 25. The ALJ went on to summarize his reasoning as follows:

In summary, as noted above, the claimant is a truly courageous individual who

survived the terrorist attack on the WTC and was fortunate to escape from the

towers. Nonetheless, despite that horrific experience she was able to work and

function with absolutely no limitations and no continuous or documented mental

health treatment or counseling whatsoever for a period of 16 years thereafter,

including starting another job in Manhattan which required the claimant to travel

by public transportation through a tunnel during rush hours. Despite her alleged

fears, including the incidents described at the Port Authority, the only reason she

stopped working was because the job terminated notwithstanding that it was

supposed to lead to a permanent position. There is simply a[] lack of any

supportable and consistent findings which would lead to the conclusion that the

claimant is unable to work because of her psychiatric condition, for the reasons

stated above.

R. 28. In the view of this Court, this record contains substantial evidence to support the ALJ’s

RFC determination. See Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554; Plummer, 186

F.3d at 429.

Plaintiff, however, challenges the ALJ’s RFC determination, contending that the ALJ

erred in considering the opinions of Dr. Maldonado and Ms. Willms. Plaintiff’s Memorandum of

Law, ECF No. 17, pp. 14–18; Plaintiff’s Reply Brief, ECF No. 19, pp. 3–4. For the reasons that

follow, Plaintiff’s arguments are not well taken.

An ALJ must evaluate all record evidence in making a disability determination. Plummer,

186 F.3d at 433; Cotter, 642 F.2d at 704. The ALJ’s decision must include “a clear and

satisfactory explication of the basis on which it rests” sufficient to enable a reviewing court “to

perform its statutory function of judicial review.” Cotter, 642 F.2d at 704–05. Specifically, the

ALJ must discuss the evidence that supports the decision, the evidence that the ALJ rejected, and

explain why the ALJ accepted some evidence but rejected other evidence. Id. at 705–06; Diaz v.

18

Comm’r of Soc. Sec., 577 F.3d 500, 505–06 (3d Cir. 2009); Fargnoli v. Massanari, 247 F.3d 34,

42 (3d Cir. 2001) (“Although we do not expect the ALJ to make reference to every relevant

treatment note in a case . . . we do expect the ALJ, as the factfinder, to consider and evaluate the

medical evidence in the record consistent with his responsibilities under the regulations and case

law.”). Without this explanation, “the reviewing court cannot tell if significant probative

evidence was not credited or simply ignored.” Cotter, 642 F.2d at 705; see also Burnett, 220

F.3d at 121 (citing Cotter, 642 F.2d at 705).

For claims filed after March 27, 2017,6 the regulations eliminated the hierarchy of

medical source opinions that gave preference to 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”). Instead, the Commissioner will consider the following factors when considering all

medical opinions: (1) supportability; (2) consistency; (3) relationship with the claimant,

including the length of the treating examination, the frequency of examinations, and the purpose

of the treatment relationship; (4) the medical source’s specialization; and (5) other factors,

including, but not limited to, “evidence showing a medical source has familiarity with the other

evidence in the claim or an understanding of our disability program's policies and evidentiary

requirements.” 20 C.F.R. § 404.1520c(c).

The governing regulation emphasizes that “the most important factors [that the ALJ and

the Commissioner] consider when [] evaluat[ing] the persuasiveness of medical opinions and

prior administrative medical findings are supportability (paragraph (c)(1) of this section) and

6 As previously noted, Plaintiff’s claim was filed on November 13, 2018.

19

consistency (paragraph (c)(2) of this section).” Id. at § 404.1520c(a). As to the supportability

factor, the regulation provides that “[t]he more relevant the objective medical evidence and

supporting explanations presented by a medical source are to support his or her medical

opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions

or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). As to the consistency

factor, the regulation provides that “[t]he more consistent a medical opinion(s) or prior

administrative medical finding(s) is with the evidence from other medical sources and

nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior

administrative medical finding(s) will be.” Id. § 404.1520c(c)(2).

The applicable regulation further requires the ALJ to articulate his “consideration of

medical opinions and prior administrative medical findings” and articulate in the “determination

or decision how persuasive [he] find[s] all of the medical opinions and all of the prior

administrative medical findings in [the claimant’s] case record.” Id. at § 404.1520c(b).

“Specifically, the ALJ must explain how he considered the ‘supportability’ and ‘consistency’

factors for a medical source’s opinion. . . . The ALJ may—but is not required to—explain how

he considered the remaining factors.” Michelle K. v. Comm’r of Soc. Sec., No. 1:19-CV-01567,

2021 WL 1044262, at *4 (W.D.N.Y. Mar. 19, 2021) (citing 20 C.F.R. §§ 404.1520c(b)(2),

416.920c(b)(2)).

In the case presently before the Court, the ALJ considered Dr. Maldonado’s opinion as

follows:

A DDS opinion was provided by Jeanette Maldonado, Psy.D. (Exhibit 3A). While

Dr. Maldonado did not have the opportunity to directly examine the claimant, Dr.

Maldonado had an opportunity to review the record as it appeared on the date the

opinion was made. Specifically, Dr. Maldonado opined the claimant had moderate

restrictions to understanding, remembering, and applying information (Id. at 11).

She had mild restriction to interaction, adaptation, and managing herself. She had

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moderate restriction to concentration, persistence, and maintain pace. She was

capable of managing her funds and capable of doing skilled and unskilled work (Id.

at 12). She was able to perform simple tasks within the weekly demands of pace

and concentration for at least two hours and sustain tasks. She would not be able to

interact with the general public continually, but she could relate with peers and

accept supervision and criticism (Id. at 14). She was moderately limited in changes

in work settings and she was able to travel alone selectively. This opinion is also

internally inconsistent as she found only mild limitations in interacting, suggesting

a non-severe impairment in this criterion, yet she also opined that the claimant

could not interact with the public, which would suggest at least a moderate

limitation. Accordingly, I find it persuasive that the claimant does have a severe

medically determinable mental limitation which, based upon limits in

concentration, persistence and pace, as well as some anxiety in public (but most

notably in Manhattan), I have limited her to low public contact and low production

work.

R. 26. Plaintiff contends that this discussion is insufficient under the regulation because “the ALJ

has failed to meaningfully address supportability and consistency findings” because “there was

no discussion of the elements of Dr. Maldonado’s and LPC Willm’s opinions that were

consistent.” Plaintiff’s Memorandum of Law, ECF No. 17, at 18, 20 (citing “Argument 1

supra”); see also Plaintiff’s Reply, ECF No. 19, p. 3 (complaining that “the ALJ failed to discuss

the consistency between Dr. Madonado’s and LPC Willm’s opinions”).

Plaintiff’s argument is not well taken. As set forth above, after detailing years of medical

evidence, the ALJ explained that Dr. Maldonado’s opinion was not supported by her own

findings because this psychologist found only mild limitations in Plaintiff’s ability to interact yet

also found that Plaintiff could not interact with the public. R. 26. The ALJ also explained how he

accommodated Plaintiff’s credible limitations in this regard. Id. Notably, the ALJ found that

Plaintiff had a moderate limitation in this area and crafted a RFC that required no close

interpersonal contact with the general public. R. 21, 26. Moreover, and as summarized above, the

ALJ’s discussion also implicitly reflects his consideration of the inconsistency of Dr.

Maldonado’s opinion with other evidence in the record. R. 22–28; see also 20 C.F.R. §

21

404.1520c(c)(2); cf. Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293, at *2 (2d Cir. June 17,

2022) (stating that “the ALJ committed procedural error by failing to explain how it considered

the supportability and consistency of medical opinions in the record[,]” but that “[d]espite the

ALJ’s procedural error, we could affirm if ‘a searching review of the record’ assures us ‘that the

substance of the [regulation] was not traversed’”) (quoting Estrella v. Berryhill, 925 F.3d 90, 95

(2d Cir. 2019)) (cleaned up); Serrano v. Kijakazi, No. CV 20-3985, 2021 WL 4477137, at *3–4

(E.D. Pa. Sept. 30, 2021) (“In this case, the ALJ discussed and analyzed the evidence extensively

before determining the persuasiveness of the medical opinions. . . . The ALJ was not required to

repeat this information for the sake of elaborating on her findings of persuasiveness.”).

Based on this record, any failure of the ALJ to further discuss the regulatory factors of

consistency and supportability is harmless. See Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009)

(“[T]he burden of showing that an error is harmful normally falls upon the party attacking the

agency’s determination. . . . [T]he party seeking reversal normally must explain why the

erroneous ruling caused harm.”).

Although Plaintiff insists that the ALJ erred by failing to discuss those portions of Dr.

Maldonado’s opinion that were consistent with Ms. Willms’ opinions, she does not identify the

portions to which she refers. Plaintiff’s Memorandum of Law, ECF No. 17, p. 20 (referring only

to “Argument 1 supra” when complaining the ALJ did not discuss “the elements of these

opinions that were consistent”); Plaintiff’s Reply Brief, ECF No. 19, p. 3 (citing “Dkt. No. 17 at

23 (referencing Dkt. No. 17 at 19)”). Nor does Plaintiff explain why any such an error, if indeed

any, worked to her prejudice. See Shinseki, 556 U.S. at 409–10. See also Atkins v. Comm’r Soc.

Sec., Atkins v. Comm’r Soc. Sec., 810 F. App’x 122, 129 (3d Cir. 2020) (“Lacking any direction

from [the claimant] as to the specific [evidence] at issue, we will not scour the record to attempt

22

to discern [the claimant’s] position.”). Moreover, Plaintiff’s reference to “Dkt No. 17 at 19”

(Plaintiff’s Memorandum of Law, ECF No. 17, p. 16, PAGEID 6327), refers merely to a page

that discussed only Plaintiff’s alleged difficulty carrying out detailed instructions, but no less

than a fair ability to carry out simple job instructions. See id. In light of the ALJ’s RFC

determination that limited Plaintiff to, inter alia, jobs requiring only simple instructions without

high volume or fast-paced production quotas, R. 21, this limitation was adequately

accommodated. See Hess v. Comm’r Soc. Sec., 931 F.3d 198, 208–14 (3d Cir. 2019) (finding

that a “simple tasks” limitation can be said to fairly reflect a claimant’s “moderate” difficulties in

concentration, persistence, or pace where there is a “valid explanation” for such limitation); Berg

v. Berryhill, No. CV 17-04452, 2019 WL 3387209, at *6 (E.D. Pa. July 26, 2019) (finding that

RFC limitation to no “fast-paced production environment” adequately accommodated Plaintiff’s

moderate limitations in concentration, persistence, or maintaining pace). Notably, Plaintiff does

not identify any new or different limitations that the ALJ should have included to accommodate

these limitations. See generally Plaintiff’s Memorandum of Law, ECF No. 17; Plaintiff’s Reply

Brief, ECF No. 19. Any failure, then, to expressly compare the consistency between these

opinions is, at most, harmless error. See Shinseki, 556 U.S. at 409–10. Based on this record,

Plaintiff has not persuaded this Court that the ALJ failed to satisfy the standards of 20 C.F.R. §

404.1520c when analyzing Dr. Madonado’s opinion.

Turning next to the opinions of Ms. Willms, the ALJ considered those opinions as

follows:

Nicole Williams [sic], LPC provided an assessment on August 6, 2019 (Exhibit

11F). She had no limitation to understanding and memory (Id. at 7). She was limited

7 The Court presumes that Plaintiff refers to the page numbers that appear at the top right-hand

corner of her brief rather than to the page numbers on the bottom center of each page, as no

discussion of Dr. Maldonado’s opinion appears on the page with bottom-center page number 19.

23

in her concentration and persistence. She was limited in social interaction. She had

difficulty in public places. She was limited in her adaptation. She could not use

public transportation due to fear and she could not respond calmly to sudden

changes or hazards. Limitations to sustained concentration were not documented in

the treatment records. The claimant’s panic attacks appeared infrequent. Further,

she reported being able to do all activities of daily living to Dr. Brown (Exhibit 3F).

Despite the limits to travel, she noted she could drive and she was able to travel to

Florida. Overall, this assessment was persuasive to the extent it supports the

limitations which I have incorporated in the above residual functional capacity.

Ms. Williams [sic] provided a subsequent assessment on February 21, 2020

(Exhibit 18F). The claimant had a fair ability to follow work rules, relate to co-

workers, deal with the public, use judgment, interact with supervisors, deal with

work stresses, function independently, and maintain attention and concentration

(Id. at 1). She was often very suspicious of others and had difficulty maintaining

focus. She felt constantly overwhelmed. She had poor or no ability to understand,

remember and carry out complex job instructions (Id. at 2). She had poor or no

ability to understand, remember and carry out detailed but complex job instructions.

She had a fair ability to understand, remember and carry out simple job instructions.

She had unlimited or very good ability to maintain personal appearance. She had a

good ability to demonstrate reliability. She had a fair ability to behave in an

emotional stable manner and relate predictably in social situations. She often

experienced panic being around large groups of people and in new environments.

She was not able to function the way she had in the past. The limitations had been

present since September 11, 2001. While the record supported the claimant had

some limitations, the finding that the claimant had these restrictions going back to

2001 is totally contradicted by the record and suggests that Ms. Williams [sic] was

not fully aware of the claimant’s work and treatment history, as there is no rational

basis for that conclusion. She was able to return to work and she only stopped

working when her consultant job ended in April 2016. Further, the record did not

document substantial limits. This assessment noted a generally fair ability to

participate in work activity and problems with detailed and complex understanding.

Overall, this assessment was persuasive to the extent it supports the limitations

which I have incorporated in the above residual functional capacity.

R. 26–27. To the extent that Plaintiff again complains that the ALJ failed to consider the

consistency between the opinions of Ms. Willms and Dr. Maldonado, see Plaintiff’s

Memorandum of Law, ECF No. 17, p. 20, Plaintiff’s Reply Brief, ECF No. 19, pp. 3–4, that

argument is unavailing for the reasons previously discussed.

Plaintiff next argues that the ALJ improperly considered Plaintiff’s activities when

assessing Ms. Willms’ opinions, contending that the ALJ overstated those activities (including

24

the activities identified in Dr. Brown’s report) and arguing that the activities “do not suggest

transferability to a work setting or performance of activity throughout a normal work schedule.”

Plaintiff’s Memorandum of Law, ECF No. 17, pp. 20–21; see also Plaintiff’s Reply Brief, ECF

No. 19, pp. 3–4. Plaintiff’s arguments are not well taken. As a preliminary matter, the Court is

not persuaded that the ALJ overstated Plaintiff’s activities when assessing Ms. Willms’ opinions.

Although Plaintiff complains that the ALJ considered her “ability to travel to Florida once during

the relevant period[,]" Plaintiff’s Memorandum of Law, ECF No. 17, p. 21, the ALJ also

considered, as Plaintiff concedes, see id., Plaintiff’s ability to “do all activities of daily living[.]”

R. 26; see also R. 323–24 (reflecting Dr. Brown’s statements that Plaintiff could, inter alia,

dress, bathe, groom herself, and do the cooking, cleaning, laundry, shopping, as well as manage

money). Plaintiff also complains that the ALJ improperly relied on Plaintiff’s ability to drive in

order to discount Ms. Willms’ opinions, because the record also reflects that Plaintiff used car

services for at least two trips to New York and that she “held onto a friend during her visit to

Times Square[,]” Plaintiff’s Memorandum of Law, ECF No. 17, p. 21, The ALJ did not overstate

or improperly consider Plaintiff’s ability to drive (or ability to drive to New York, specifically).

The ALJ specifically noted that Plaintiff “could drive, but did so selectively[,]” R. 23, that a co-

worker drove her to work in Jersey City from her home in Staten Island, R. 22, and that she took

a bus from her temporary job in 2016 between New Jersey and the Port Authority in New York,

id., but also noted that Plaintiff was able to drive to visit her mother on occasion and was able to

drive to her appointments. R. 22, 24. The ALJ also acknowledged that Plaintiff “reported having

felt extremely paranoid and scared” when she traveled to Manhattan over a weekend and

“reported feeling paranoia and anxiety” when going into a theater and walking around Times

Square. R. 24. The ALJ specifically considered that Plaintiff has “some anxiety in public (but

25

most notably in Manhattan)” and therefore “limited her to low public contact and low production

work.” R. 26. The Court finds no error with the ALJ’s characterization or consideration of

Plaintiff’s activities in this regard.8 Finally, to the extent that Plaintiff argues that these activities

were irrelevant to her ability to perform in a work setting or to perform throughout a normal

work schedule, that argument is also unavailing. See Celento v. Comm’r Soc. Sec., 613 F. App’x

205, 206–07 (3d Cir. 2015) (noting that daily activities such as, inter alia, driving “require at

least some . . . mental concentration”); Cunningham v. Comm’r of Soc. Sec., 507 F. App’x 111,

118 (3d Cir. 2012) (“[I]t is appropriate for an ALJ to consider the number and type of activities

in which a claimant engages when assessing his or her residual functional capacity.”); Lowrey v.

Kijakazi, No. CV 21-176, 2022 WL 2133568, at *1 n.1 (W.D. Pa. June 14, 2022) (granting the

Acting Commissioner’s motion for summary judgment where “the ALJ found that Plaintiff is

less limited than what Dr. Schiller found considering her activities, noting that Plaintiff ‘is able

to take care of personal needs and grooming, exercise, go for walks, take care of household pets,

prepare meals, complete household chores such as cleaning and laundry, shop in stores, go to the

zoo, use public transportation, spend time with others, get along with family, friends, neighbors,

and/or authority figures, use a computer, pay bills, count change, handle a savings and/or

checking account, read, play games on her iPad, and watch television’”); Newcomb v. Kijakazi,

No. 3:20-CV-01552, 2022 WL 178820, at *9 (M.D. Pa. Jan. 18, 2022) (affirming ALJ’s denial

of benefits where, inter alia, where the ALJ considered an opinion in conjunction with the

8 Notably, Dr. Brown also reported that Plaintiff’s hobbies and interests included “art,

photograph, and travel.” R. 324 (emphasis added). In addition, Plaintiff does not challenge the

ALJ’s finding that Ms. Willms’ opinion that Plaintiff’s restrictions date back to 2001 because it

is “totally contradicted by the record and suggests that Ms. Williams [sic] was not fully aware of

the claimant’s work and treatment history,” and Plaintiff “was able to return to work and she

only stopped working when her consultant job ended in April 2016. Further, the record did not

document substantial limits.” R. 27.

26

claimant’s “activities of daily living, including caring for his young son, managing his own

personal care, shopping, mowing, cooking, cleaning, and driving, the ALJ found that ‘[w]hile

none of these activities alone [are] dispositive, taken together they suggest that [the claimant] is

capable of performing work activity on a sustained and continuous basis within the above

parameters’”) (citations omitted); cf. Scheel v. Comm’r of Soc. Sec., No. CV 20-5077, 2021 WL

4477163, at *5 (E.D. Pa. Sept. 30, 2021) (concluding that the ALJ’s assessment that certain

medical opinions were persuasive “was amply supported by the record” where, inter alia, “the

ALJ’s determination was supported by the daily activities that [the claimant] was still capable of

performing, including doing laundry, shopping, driving, crafting, and running”); D.C. v. Comm’r

of Soc. Sec., No. CV 20-2484, 2021 WL 1851830, at *6 (D.N.J. May 10, 2021) (“Her ability to

drive, prepare meals, manage funds, shop, and take a cruise also contradicted her claims that she

had difficulty concentrating, remembering information, and engaging in social activities.”).

In short, Plaintiff has not persuaded this Court that the ALJ’s assessment of the opinions

of Dr. Maldonado and Ms. Willms violated the standards of 20 C.F.R. § 404.1520c.

B. Step Five

Plaintiff also challenges the ALJ’s s step five determination, arguing that the

Commissioner failed to carry his burden at that stage because the mental RFC determination “is

inconsistent with the jobs identified by the vocational expert and the ALJ did not resolve this

discrepancy.” Plaintiff’s Memorandum of Law, ECF No. 17, pp. 14–18; see also Plaintiff’s Reply

Brief, ECF No. 19, pp. 1–3. Plaintiff’s argument is not well taken.

At step five, an ALJ must decide whether the claimant, considering the claimant’s RFC,

age, education, and work experience, can perform other jobs that exist in significant numbers in

the national economy. 20 C.F.R. § 404.1520(g). Unlike at the first four steps of the sequential

27

evaluation, the Commissioner bears the burden of proof at step five. Hess, 931 F.3d at 201;

Johnson v. Comm’r of Soc. Sec., 529 F.3d 198, 205 (3d Cir. 2008) (citing Rutherford v.

Barnhart, 399 F.3d 546, 551 (3d Cir. 2005)). “‘Advisory testimony from a vocational expert is

often sought by the ALJ for that purpose [of determining whether other jobs exist in significant

numbers in the national economy that the claimant could perform] . . . and factors to be

considered include medical impairments, age, education, work experience and RFC.’” Id. at

205–06 (quoting Rutherford, 399 F.3d at 551). “Testimony of vocational experts in disability

determination proceedings typically includes, and often centers upon, one or more hypothetical

questions posed by the ALJ to the vocational expert.” Podedworny,, 745 F.2d at 218. “Usually,

the ALJ will ask whether a hypothetical claimant with the same physical and mental impairments

as the claimant can perform certain jobs that exist in the national economy.” Zirnsak, 777 F.3d at

614 (citing Podedworny, 745 F.2d at 218). “While ‘the ALJ must accurately convey to the

vocational expert all of a claimant’s credibly established limitations,’ . . . ‘[w]e do not require an

ALJ to submit to the vocational expert every impairment alleged by a claimant.’” Smith v.

Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d Cir. 2010) (quoting Rutherford, 399 F.3d at 554).

“[T]o accurately portray a claimant’s impairments, the ALJ must include all ‘credibly established

limitations’ in the hypothetical. Zirnsak, 777 F.3d at 614 (citing Rutherford, 399 F.3d at 554).

Credibly established limitations are limitations “that are medically supported and otherwise

uncontroverted in the record.” Rutherford, 399 F.3d at 554. “Limitations that are medically

supported but are also contradicted by other evidence in the record may or may not be found

credible—the ALJ can choose to credit portions of the existing evidence but cannot reject

evidence for no reason or for the wrong reason.” Id. (cleaned up). A “vocational expert’s

testimony concerning a claimant’s ability to perform alternative employment may only be

28

considered for purposes of determining disability if the [ALJ’s hypothetical] question accurately

portrays the claimant’s individual physical and mental” limitations. Podedworny, 745 F.2d at

218. Stated differently, “[a] hypothetical question must reflect all of a claimant’s impairments

that are supported by the record; otherwise the question is deficient and the expert’s answer to it

cannot be considered substantial evidence.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir.

1987).

In the case presently before the Court, the hypothetical question posed by the ALJ to the

vocational expert assumed a claimant with Plaintiff’s vocational profile and the RFC found by

the ALJ. R. 21, 62–64. The vocational expert responded that the jobs of hand packager, laundry

worker, and warehouse worker would be appropriate for such an individual. R. 63–64. For the

reasons discussed earlier in this decision, this hypothetical sufficiently captured Plaintiff’s

credibly established limitations and therefore supported the ALJ’s determination at step five. See

Rutherford, 399 F.3d at 554; Podedworny, 745 F.2d at 218.

Plaintiff contends that the ALJ erred by relying on the vocational expert’s testimony,

because, Plaintiff argues, that testimony conflicts with the general educational development

(“GED”) reasoning levels contained in the Dictionary of Occupational Titles (“DOT”).9

Plaintiff’s Memorandum of Law, ECF No. 17, pp. 14–18; Plaintiff’s Reply Brief, ECF No. 19,

pp. 2–3. By way of background, “[t]he qualification categories listed by the DOT for each job

include the job’s Strength level, General Educational Development (“GED”) level, and its

Specific Vocational Preparation (“SVP”) level.” Zirnsak, 777 F.3d at 616 (quoting Appendix C,

9 The DOT is a “publication of the United States Department of Labor that contains descriptions

of the requirements for thousands of jobs that exist in the national economy,” and which ALJs

generally consult to determine whether there are any jobs that a claimant can perform. Burns v.

Barnhart, 312 F.3d 113, 119 (3d Cir. 2002).

29

DOT). “GED measures ‘those aspects of education (formal and informal) which are required of

the worker for satisfactory job performance.’” Id. “GED is broken into three categories: (1)

reasoning development, (2) mathematical development, and (3) language development. . . .

Reasoning levels in the DOT range from level 1 to level 6.” Id. (citing Appendix C, DOT). GED

reasoning level 1 applies “commonsense understanding to carry out simple one- or two-step

instructions” in “standardized situations with occasional or no variables in or from these

situations encountered on the job.” Appendix C, 1991 WL 688702. Reasoning level 2 applies

“commonsense understanding to carry out detailed but uninvolved written or oral instructions” in

“problems involving a few concrete variables in or from standardized situations.” Id. “SVP

levels, on the other hand, measure the skill level necessary to perform a particular job.” Zirnsak,

777 F.3d at 616 (citing SSR 00–4p, 2000 WL 1898704, at *3 (Dec. 4, 2000)). “SVP levels in the

DOT range from level 1 to level 9” and “[t]he DOT skill levels correspond with the second

source of information relied on by the Commissioner: the CFR.” Id. (citing SSR 00–4p). The

CFR categorizes occupations into three classes: unskilled, semi-skilled, and skilled. 20 C.F.R. §

404.1568(a)–(c). “Unskilled work is work which needs little or no judgment to do simple duties

that can be learned on the job in a short period of time[,]” while “[s]emi-skilled work is work

which needs some skills but does not require doing the more complex work duties,” and

“[s]killed work requires qualifications in which a person uses judgment to determine the machine

and manual operations to be performed in order to obtain the proper form, quality, or quantity of

material to be produced.” Id. at § 404.1568(a), (b), (c). “[U]nskilled work corresponds to an

SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an

SVP of 5-9 in the DOT.” SSR 00-4p, 2000 WL 1898704, at *3.

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Finally, “[a]s a general rule, occupational evidence provided by a [vocational expert]

should be consistent with the occupational evidence presented in the DOT[,]” Zirnsak, 777 F.3d

at 617, but vocational experts may also “rely on their experiences rather than solely on the

DOT[.]” Butler v. Colvin, No. CIV. 13-7488, 2015 WL 570167, at *9 (D.N.J. Feb. 11, 2015).

Accordingly, when a vocational expert “provides evidence about the requirements of a job or

occupation, the [ALJ] has an affirmative responsibility to ask about any possible conflict

between that [vocational expert] evidence and information provided in the DOT.” SSR 00-4p,

2000 WL 1898704, at *4. The ALJ will ask the vocational expert “if the evidence he or she has

provided conflicts with information provided in the DOT” and, if the vocational expert’s

evidence appears to conflict with the DOT, the ALJ “will obtain a reasonable explanation for the

apparent conflict.” Id. The ALJ “must resolve this conflict before relying on the [vocational

expert] evidence to support a determination or decision that the individual is or is not disabled[,]”

explaining “in the determination or decision how he or she resolved the conflict. The [ALJ] must

explain the resolution of the conflict irrespective of how the conflict was identified.” Id.

In the case at bar, Plaintiff appears to argue that the record reflects a conflict between the

DOT and the jobs identified by the vocational expert and that the ALJ did not resolve that

conflict. Specifically, Plaintiff argues that the RFC’s limitation to carrying out simple

instructions and making simple work-related decisions equates to a GED reasoning level 1, but

that the jobs identified by the vocational expert require a GED reasoning level 2. Plaintiff’s

Memorandum of Law, ECF No. 17, pp. 14–18; Plaintiff’s Reply Brief, ECF No. 19, pp. 2–3.

Plaintiff’s arguments are not well taken.

The vocational expert stated that her testimony was consistent with the DOT except that

the DOT does not address contact with co-workers or the public, on which point she relied on her

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own experience and familiarity with the identified jobs. R. 64–65. Plaintiff’s counsel never

objected to or challenged the vocational expert’s testimony as inconsistent with the DOT. R. 62–

66. Plaintiff’s current attempt to raise a discrepancy between the vocational expert’s testimony

and the DOT therefore comes too late and the ALJ reasonably relied on her testimony, which

provided substantial support for the ALJ’s step five determination. See Tonti v. Saul, No. CV 20-

92, 2021 WL 518178, at *3 (W.D. Pa. Feb. 11, 2021) (“Here, [the plaintiff] neither objected to

the VE’s testimony at the hearing nor obtained any agreement from the ALJ either prior to the

hearing to hold the proceedings open for post-hearing submissions. Consequently, she waived

the right to object to that testimony.”); Brown v. Comm’r of Soc. Sec., No. CV 19-2110, 2020

WL 1244186, at *5 (E.D. Pa. Mar. 16, 2020) (“Brown’s counsel did not object to either the VE’s

qualifications or to her testimony in this respect. . . . Therefore, the ALJ did not err in relying on

the VE’s testimony.”) (citations omitted); O’Neill v. Comm’r of Soc. Sec., No. CV 18-0698, 2019

WL 413539, at *9 (D.N.J. Jan. 31, 2019) (declining to remand the matter where the plaintiff’s

challenge to an alleged discrepancy between the vocational expert’s testimony and the DOT

listings was unexplored during the hearing and later raised by the plaintiff in challenging the

ALJ’s ruling).

In any event, however, the Court is not persuaded that remand on this basis is required.

The United States Court of Appeals for the Third Circuit has held that a job with a reasoning

level 2 does not “contradict the mandate that [the claimant’s] work be simple, routine and

repetitive.” Money v. Barnhart, 91 F. App’x 210, 215 (3d Cir. 2004); see also Jones v. Astrue,

570 F. Supp. 2d 708, 716 (E.D. Pa. 2007) (finding no conflict between simple and routine tasks

and the definition of reasoning level 2) aff’d, 275 F. App’x 166, 168 (3d Cir. 2008)). The Third

Circuit has also held that “there is no bright-line rule stating whether there is a per se conflict

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between a job that requires level 3 reasoning and a finding that a claimant should be limited to

simple and routine work.” Zirnsak, 777 F.3d at 618.

In the present case, the jobs identified by the vocational expert—i.e., hand packager,

laundry worker, and warehouse worker—are unskilled with a GED reasoning level 2 and a SVP

level 2. R. 29, 63–64; Packager, Hand, DICOT 920.587-018; Laundry Worker I, DICOT

361.684-014; Laborer, Stores (alternate title Warehouse Worker), DICOT 922.687-058. As

discussed above, the vocational expert testified that her testimony was consistent with the DOT

except on that point at which she relied on her experience and familiarity with the identified

positions. R. 64–65. Moreover, as previously noted, Plaintiff’s counsel did not object to the

vocational expert’s testimony nor did she otherwise identify a conflict between such testimony

and the DOT. See generally R. 60–66. Therefore, there is uncontroverted evidence in the record

that the vocational expert’s testimony was consistent with the DOT standards. Under these

circumstances, to remand this action would require that the Court disregard this uncontroverted

evidence and—contrary to Third Circuit authority—establish a bright-line rule in this area. See

Zirnsak, 777 F.3d at 618. This, the Court declines to do. Based on the record presently before

this Court and the applicable law, the Court concludes that the ALJ in this case was entitled to

rely on the vocational expert’s uncontroverted testimony at step five. See id.; cf. Money, 91 F.

App’x at 215; Dance v. Comm’r of Soc. Sec., No. 1:20-CV-03141-NLH, 2021 WL 3144696, at

*9 (D.N.J. July 26, 2021) (stating that “[t]his Court has also addressed - and rejected - ” the

claimant’s argument that “the ALJ erred by finding Plaintiff to be capable of performing two of

the jobs . . . because the DOT lists these jobs as having a reasoning level of 2, which is a higher

level than the RFC’s requirement that Plaintiff be limited to jobs with only simple instructions

and tasks”) (citations omitted); Soto v. Comm’r of Soc. Sec., No. CV 18-14165, 2020 WL

33

7022652, at *8 (D.N.J. Nov. 30, 2020) (“Where, as here, plaintiffs were limited to simple,

repetitive tasks, courts have repeated[ly] found that the plaintiffs are at least suited for jobs that

require Reasoning Level 2.”) (citations omitted); Rafine v. Comm’r of Soc. Sec., No. 1:19-CV-

14215, 2020 WL 3073829, at *8 (D.N.J. June 10, 2020) (“Short of the ALJ repeating the exact

phrase used by the DOT in its definition of GED level 2, something which the ALJ is not

required to do, Plaintiff offers no other way the ALJ could have articulated the ‘simple, routine

tasks’ limitation differently so that the limitation would align with a GED level 2 job.”); Molina

Virola v. Comm’r of Soc. Sec., No. 18-CV-4778, 2020 WL 362747, at *4 (E.D. Pa. Jan. 22,

2020) (“The reasoning level determined by the ALJ was not limited to the ability to follow

simple one or two-step instructions, which might trigger concern about her ability to perform

jobs that require reasoning level 2. . . . Instead, the ALJ determined that [the claimant] can

perform routine tasks and make simple work-related decisions. Such a limitation does not

disqualify the plaintiff from work that requires reasoning level 2[.]”) (citations omitted);

Montgomery v. Berryhill, No. CV 17-0770, 2018 WL 1317856, at *5 (D.N.J. Mar. 14, 2018)

(finding that “the ALJ’s reliance on vocational expert testimony was “inherently reasonable”

even though the claimant argued that “the ALJ needed an explanation from the [vocational

expert] as to how the identified jobs—all with a DOT reasoning level of two, and thus allegedly

beyond Plaintiff’s mental abilities—comported with Plaintiff’s deficiencies” because “Third

Circuit precedent has established that level two jobs do not outright conflict with a requirement

for simple, routine, and repetitive work”) (citations omitted).10

10 It is true that this and other district courts in this circuit have remanded actions because of an

inconsistency between the identified jobs and the DOT’s reasoning levels, but those cases are

distinguishable. See, e.g., Susan A. v. Comm’r of Soc. Sec., No. CV 21-07949, 2022 WL

2304666, at *8–10 (D.N.J. June 27, 2022) (remanding where the vocational expert testified that a

limitation to simple instructions would preclude the ability to carry out detailed written and oral

34

In short, the Court finds that the Commissioner has carried the burden at step five of the

sequential evaluation.

VI. CONCLUSION

For these reasons, the Court AFFIRMS the Commissioner’s decision.

The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42

U.S.C. § 405(g).

IT IS SO ORDERED.

Date: August 11, 2022 s/Norah McCann King

NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

instructions and the vocational expert identified jobs with a reasoning level 2); Thomas v.

Kijakazi, No. CV 21-5153, 2022 WL 1747024, at *2 (E.D. Pa. May 31, 2022) (remanding where

the vocational expert testified that the claimant, “who was limited to simple, routine tasks, would

not be able to carry out detailed written and oral instructions” and the jobs identified by the

vocational expert and adopted by the ALJ “all carry reasoning levels of at least two” thus “may

be precluded by the ALJ’s own RFC assessment”); Vickers v. Comm’r of Soc. Sec., No. CV 21-

1093, 2022 WL 1620076, at *2 (W.D. Pa. May 23, 2022) (reflecting a RFC that limited the

claimant to “unskilled work at the SVP 1 or 2 levels” and “to one or two step instructions” and

remanding where jobs identified by the ALJ have a GED reasoning level 2” and “at the very

least, [] the record presents a potential conflict that must be resolved”).

35