SANCHEZ-ORTIZ v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STACEY S.,

Plaintiff, 1:21-cv-20433-NLH

v. OPINION

COMMISSIONER OF SOCIAL

SECURITY,1

APPEARANCES:

TIMOTHY JOSEPH MELLO

JACOBS, SCHWALBE AND PETRUZZELLI, PC

10 MELROSE AVE

SUITE 340

CHERRY HILL, NJ 08003

On behalf of Plaintiff

KRISTINA CAROL EVANS COLE

SOCIAL SECURITY ADMINISTRATION

OFFICE OF THE GENERAL COUNSEL

300 SPRING GARDEN STREET

6TH FLOOR

PHILADELPHIA, PA 19123

On behalf of the Commissioner

HILLMAN, District Judge

This matter comes before the Court pursuant to Section

205(g) of the Social Security Act, as amended, 42 U.S.C. §

405(g), regarding Plaintiff’s application for Disability

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

of the Social Security Administration.

Insurance Benefits (“DIB”)2 under Title II of the Social Security

Act. 42 U.S.C. § 423, et seq. It is also before the Court

under § 1614(a)(3)(A) of the Social Security Act, as amended 42

U.S.C. § 1382c(a)(3(A), regarding Plaintiff’s application for

supplemental security income (“SSI”)3 under Title XVI of the

Social Security Act. 42 U.S.C. § 1381 et seq.

The issue before the Court is whether the Administrative

Law Judge (“ALJ”) erred in finding that there was “substantial

evidence” that Plaintiff was not disabled at any time since her

alleged onset date of disability, March 1, 2018. For the

reasons stated below, this Court will affirm that decision.

I. BACKGROUND AND PROCEDURAL HISTORY

On June 15, 2018, Plaintiff filed an application for DIB as

well as an application for SSI, alleging that she became

disabled on March 1, 2018. Plaintiff claims that she cannot

work because of her impairments of posttraumatic stress disorder

(“PTSD”), major depressive disorder, borderline personality

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

disability benefits when a claimant with a sufficient number of

quarters of insured employment has suffered such a mental or

physical impairment that the claimant cannot perform substantial

gainful employment for at least twelve months. 42 U.S.C. § 423

et seq.

3 Supplemental Security Income is a program under the Social

Security Act that provides supplemental security income to

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

42 U.S.C. § 1381 et seq.

disorder, a neck injury, post concussive disorder, and

hyperglycemia.4 (R. at 251).

Plaintiff’s claim was denied initially and upon

reconsideration. (R. at 15). Plaintiff requested a hearing

before an ALJ which was held on February 9, 2021. (Id.) On

February April 6, 2021, the ALJ issued an unfavorable decision.

(Id.). Plaintiff’s Request for Review of Hearing Decision was

denied by the Appeals Council on October 19, 2021 making the

ALJ’s decision final. (Id. at 1-3). Plaintiff brings this

civil action for review of the Commissioner’s decision.

II. DISCUSSION

A. Standard of Review

Under 42 U.S.C. § 405(g), Congress provided for judicial

review of the Commissioner’s decision to deny a complainant’s

application for social security benefits.5 Ventura v. Shalala,

4 On the alleged onset date, Plaintiff was 18 years old, which is

defined as a “younger person (age 18-49). 20 C.F.R. § 404.1563.

5 The standard for determining whether a claimant is disabled is

the same for both DIB and SSI. See Rutherford v. Barnhart, 399

F.3d 546, 551 n.1 (3d Cir. 2005) (citation omitted). DIB

regulations are found at 20 C.F.R. §§ 404.1500-404.1599, and the

parallel SSI regulations are found at 20 C.F.R. §§ 416.900-

416.999, which correspond to the last two digits of the DIB

cites (e.g., 20 C.F.R. § 404.1545 corresponds with 20 C.F.R. §

416.945). The Court will provide citations only to the DIB

regulations. See Carmon v. Barnhart, 81 F. App'x 410, 411 n.1

(3d Cir. 2003) (explaining that because “[t]he law and

regulations governing the determination of disability are the

same for both disability insurance benefits and [supplemental

security income],” “[w]e provide citations only to the

55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold

the Commissioner’s factual decisions where they are supported by

“substantial evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3);

Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v.

Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v. Sullivan,

970 F.2d 1178, 1182 (3d Cir. 1992). Substantial evidence means

more than “a mere scintilla.” Richardson v. Perales, 402 U.S.

389, 401 (1971)(quoting Consolidated Edison Co. V. NLRB, 305

U.S. 197, 229 (1938)). It means “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Id. The inquiry is not whether the reviewing

court would have made the same determination, but whether the

Commissioner’s conclusion was reasonable. See Brown v. Bowen,

845 F.2d 1211, 1213 (3d Cir. 1988).

A reviewing court has a duty to review the evidence in its

totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.

1984). “[A] court must ‘take into account whatever in the

record fairly detracts from its weight.’” Schonewolf v.

Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks

v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th

Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S.

474, 488 (1951)).

regulations respecting disability insurance benefits”).

The Commissioner “must adequately explain in the record his

reasons for rejecting or discrediting competent evidence.”

Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing

Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). The Third

Circuit has held that an “ALJ must review all pertinent medical

evidence and explain his conciliations and rejections.” Burnett

v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).

Similarly, an ALJ must also consider and weigh all the non-

medical evidence before him. Id. (citing Van Horn v. Schweiker,

717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d

700, 707 (3d Cir. 1981).

The Third Circuit has held that access to the

Commissioner’s reasoning is indeed essential to a meaningful

court review:

Unless the [Commissioner] has analyzed all

evidence and has sufficiently explained the

weight he has given to obviously probative

exhibits, to say that his decision is

supported by substantial evidence approaches

an abdication of the court’s duty to

scrutinize the record as a whole to

determine whether the conclusions reached

are rational.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Although

an ALJ, as the factfinder, must consider and evaluate the

medical evidence presented, Fargnoli, 247 F.3d at 42, “[t]here

is no requirement that the ALJ discuss in its opinion every

tidbit of evidence included in the record,” Hur v. Barnhart, 94

F. App’x 130, 133 (3d Cir. 2004).

In terms of judicial review, a district court is not

“empowered to weigh the evidence or substitute its conclusions

for those of the fact-finder.” Williams, 970 F.2d at 1182.

However, apart from the substantial evidence inquiry, a

reviewing court is entitled to satisfy itself that the

Commissioner arrived at his decision by application of the

proper legal standards. Sykes, 228 F.3d at 262; Friedberg v.

Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris,

508 F. Supp. 791, 793 (D.N.J. 1981).

B. Standard for DIB and SSI

The Social Security Act defines “disability” for purposes

of an entitlement to a period of disability and disability

insurance benefits as the inability to engage in any substantial

gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in

death, or which has lasted or can be expected to last for a

continuous period of not less than 12 months. See 42 U.S.C. §

1382c(a)(3)(A). Under this definition, a plaintiff qualifies as

disabled only if her physical or mental impairments are of such

severity that she is not only unable to perform her past

relevant work, but cannot, given her age, education, and work

experience, engage in any other type of substantial gainful work

which exists in the national economy, regardless of whether such

work exists in the immediate area in which she lives, or whether

a specific job vacancy exists for her, or whether she would be

hired if she applied for work. 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner has promulgated regulations for

determining disability that require application of a five-step

sequential analysis. See 20 C.F.R. § 404.1520. This five-step

process is summarized as follows:

1. If the claimant currently is engaged in substantial

gainful employment, she will be found “not disabled.”

2. If the claimant does not suffer from a “severe

impairment,” she will be found “not disabled.”

3. If the severe impairment meets or equals a listed

impairment in 20 C.F.R. Part 404, Subpart P, Appendix

1 and has lasted or is expected to last for a

continuous period of at least twelve months, the

claimant will be found “disabled.”

4. If the claimant can still perform work she has done in

the past (“past relevant work”) despite the severe

impairment, she will be found “not disabled.”

5. Finally, the Commissioner will consider the claimant’s

ability to perform work (“residual functional

capacity”), age, education, and past work experience

to determine whether or not she is capable of

performing other work which exists in the national

economy. If she is incapable, she will be found

“disabled.” If she is capable, she will be found “not

disabled.”

20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is

therefore dependent upon a finding that the claimant is

incapable of performing work in the national economy.

This five-step process involves a shifting burden of proof.

See Wallace v. Secretary of Health & Human Servs., 722 F.2d

1150, 1153 (3d Cir. 1983). In the first four steps of the

analysis, the burden is on the claimant to prove every element

of her claim by a preponderance of the evidence. See id. In

the final step, the Commissioner bears the burden of proving

that work is available for the Plaintiff: “Once a claimant has

proved that he is unable to perform his former job, the burden

shifts to the Commissioner to prove that there is some other

kind of substantial gainful employment he is able to perform.”

Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v.

Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).

C. Analysis

At step one, the ALJ found that Plaintiff had not engaged

in substantial gainful activity since March 1, 2018, Plaintiff’s

alleged onset date and that Plaintiff met the insured status

requirement through December 31, 2019. (R. at 18). At step

two, the ALJ found that Plaintiff’s impairments of torticollis;

pituitary adenoma; neurocognitive disorder; traumatic brain

injury/post-concussive syndrome; postural orthostatic

tachycardia syndrome (POTS); attention-deficit hyperactivity

disorder; depressive disorder; and post-traumatic stress

disorder were severe.6 (Id.) In addition, the ALJ stated that

6 The Court notes that the list of impairments that the ALJ

analyzed is lengthier and somewhat varied compared to the list

he found Plaintiff’s impairment of refractive ametropia, with

light sensitivity and blurred vision to be non-severe. (Id.)

At step three, the ALJ determined that Plaintiff’s impairments

individually or in combination with one another did not equal

the severity of one of the listed impairments. (Id. at 18-20).

The ALJ next determined that Plaintiff had the residual

functional capacity (“RFC”) to perform work at the light level,7

with certain limitations. (Id. at 20). At steps four and five,

the ALJ determined that Plaintiff could perform work that

existed in the national economy such as the jobs of photocopy

machine operator, marker, and order caller. (Id. at 28).

Plaintiff cites to five assignments of error: (1) the ALJ

failed to conduct a full and fair hearing and failed to properly

develop the record; (2) the ALJ erred by failing to properly

incorporate Plaintiff’s severe impairments into the RFC; (3) the

of impairments that Plaintiff presented in the disability report

dated July 3, 2018 that was submitted in connection with

Plaintiff’s applications. (R. at 248-51). The Court presumes

that from his independent review of the record, the ALJ

determined that his list of impairments was most accurate.

Indeed, that is consistent with an ALJ’s duty to scrutinize the

record for evidence of impairments. Plummer v. Apfel, 186 F.3d

422, 433 (3d Cir. 1999) (“In all cases, however, the ALJ has

a duty to consider all evidence of impairments in the record.”).

Regardless, Plaintiff does not identify as error the ALJ’s

longer list of impairments.

7 20 C.F.R. § 404.1567 (“Physical exertion requirements. To

determine the physical exertion requirements of work in the

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

heavy, and very heavy.”).

ALJ failed to properly consider Plaintiff’s testimony regarding

her conditions; (4) the ALJ erred at step 5 by incorrectly

addressing an objection about the number of jobs available in

the economy; and (5) the appointment of the Commissioner

violates the separation of powers clause of the Constitution and

makes the ALJ’s decision constitutionally defective. (See ECF

10 at 15-38). Separately and finally, Plaintiff argues that the

evidence of the record is such that the Court need not remand

her case to the Social Security Administration, but may award

her benefits on its own. (Id. at 38). The Court takes each

argument in turn.

i. Whether the ALJ Failed to Conduct a Full and Fair

Hearing and Adequately Develop the Record

In arguing that the ALJ erred in developing the record,

Plaintiff contends that the ALJ improperly closed the record

knowing that material medical information was outstanding. (Id.

at 15). The Court disagrees. In order to explain why

Plaintiff’s argument fails, it is necessary to set forth the

timeline of events that occurred following the hearing conducted

on February 9, 2021. During the February 9, 2021 hearing,

Plaintiff indicated that there was more medical information she

was trying to obtain to add to the record and asked that the

record be kept open. (R. at 62-63). The ALJ noted reluctance

to keep the ALJ open for a long time because this was already an

“aged case” but agreed to keep the record open until February

26, 2022 and to give Plaintiff until then to let him know if

there were other records that Plaintiff reasonably thought she

could obtain. (Id.) Critically, the ALJ said that he would

only take more testimony if any new medical records indicated

that such testimony would be necessary. (Id. at 64-65).

On February 25, 2021, Plaintiff wrote to the ALJ to

indicate that she was having difficulty obtaining medical

records and to ask for the ALJ to issue subpoenas to help her

obtain them. (Id. at 383-85). The ALJ did so on March 1, 2021.

(Id. at 211-22). On March 15, 2021, an employee of the Social

Security Administration called Plaintiff’s representative on

behalf of the ALJ to indicate that they were having difficulty

getting responses to the subpoenas and stated that the ALJ was

willing to keep the record open through the close of business on

March 19, 2021. (Id. at 386). The employee also indicated that

Plaintiff needed to indicate by then if she wanted to request

that the record remain open past that date. (Id.) Plaintiff

did not write to the ALJ until March 25, 2021, and that letter

primarily focused on objections to the vocational expert’s (the

“VE”) testimony and did not directly ask for the record to be

kept open. (Id. at 390-92).

As a general matter, the “regulations require that the ALJ

solicit from the claimant any evidence that the ALJ finds useful

in making his determination in the spirit of painting a full

picture from which the ALJ can render a proper opinion about a

claimant's entitlement to disability benefits.” Leitch v. Comm'r

of Soc. Sec. Admin., No. CIV.A. 07-3863(JAG), 2009 WL 243167, at

*14 (D.N.J. Feb. 2, 2009) (citing 20 C.F.R. § 404.1512(d)(1)).

Further, is true that an ALJ has “a duty to develop a full and

fair record in social security cases,” and “an ALJ must secure

relevant information regarding a claimant's entitlement to

social security benefits.” Ventura, 55 F.3d at 902 (citations

omitted). The reason for this duty is that “[a]lthough the

burden is upon the claimant to prove his disability, due regard

for the beneficent purposes of the legislation requires that a

more tolerant standard be used in this administrative proceeding

than is applicable in a typical suit in a court of record where

the adversary system prevails.” Id. (citation omitted).

However, that general principle does not require the ALJ to

hold the record open indefinitely when to do so would be

unreasonable and where he has already held it open for a

reasonable amount of time. Leitch, 2009 WL 243167 at *15

(holding that where an ALJ held the record open for a

significant amount of time after the hearing to close the record

was not error and that “[t]o require more from the ALJ places

the onus on the ALJ to not only ask for additional evidence, but

to amass and submit that same evidence for his consideration.

Raising the duty of the ALJ to this level clearly conflicts with

Congress' intention to impose responsibilities on all

parties[.]”).

Here, the ALJ kept the record open for over a month after

the hearing, issued subpoenas, and gave Plaintiff a chance to

ask that the record be held open even longer. Plaintiff did not

write to the ALJ asking for an extension by the March 19, 2021

deadline and this Court cannot say that the ALJ erred by closing

the record thereafter. See Sullen v. Astrue, No. C 10-5898 CW,

2012 WL 851126, at *5 (N.D. Cal. Mar. 13, 2012) (where a

claimant was given 30 days after the hearing to submit more

evidence but chose not to do so, the ALJ satisfied the duty to

develop the record).

Plaintiff did not explain then and does not explain now

what those additional records would show and why they were

needed for the ALJ to make a decision. Hickey v. Saul, No. CV

19-1571, 2020 WL 5816965, at *1 n.1 (W.D. Pa. Sept. 30, 2020)

(“Under these circumstances, the ALJ was well within her

discretion in not keeping the record open for the submission of

this evidence, and she fulfilled her duty to develop the

record.”); Rumpf v. Astrue, No. 11-125-GMS, 2015 WL 4126740, at

*7 (D. Del. July 8, 2015) (noting that a showing a prejudice is

needed to prevail on a claim that an ALJ failed to adequately

develop the record). To the extent that Plaintiff argues that

she did not receive a full and fair hearing and was entitled to

a further hearing, she does not explain how or why that would

have affected the outcome in this matter. Rumpf, 2015 WL

4126740 at *7. Thus, the Court rejects Plaintiff’s first

assignment of error.

ii. Whether the ALJ Erred in Formulating the RFC.

In arguing that the ALJ erred in formulating the RFC,

Plaintiff contends that the analysis is deficient because it

does not account for her severe impairments, particularly her

mental impairments. Specifically, Plaintiff contends that the

ALJ’s conclusion at step 3 that Plaintiff had moderate mental

limitations using the Psychiatric Review Technique (the “PRT”)8

is not accounted for in the RFC. (ECF 10 at 17-24). In that

vein, Plaintiff argues that the ALJ should have addressed “time

off task, absences or changes in the work setting” and that the

ALJ’s RFC conclusion was inconsistent with the medical opinions

8 To properly consider Plaintiff's mental impairments at steps 2

and 3, an ALJ is required to undertake a “Paragraph B”

assessment. See Marrollo v. Commissioner of Social Security,

2020 WL 3046317, at *5 (D.N.J. 2020) (“In considering a

claimant's mental impairments, an ALJ is required to review

paragraph B areas of mental functioning, which include: (1)

understand, remember, or apply information; (2) interact with

others; (3) concentrate, persist, or maintain pace; and (4)

adapt or manage oneself. A marked limitation is where a

claimant's functioning in an area independently, appropriately,

effectively, and on a sustained basis is seriously limited. An

extreme limitation is where a claimant is not able to function

in an area independently, appropriately, effectively, and on a

sustained basis.”).

of Dr. Marks and Strauchler, which the ALJ found to be

“generally persuasive.” (Id.)

The Court disagrees. First, despite Plaintiff’s

protestations to this contrary, this issue falls squarely within

the ambit of Hess v. Comm'r Soc. Sec., 931 F.3d 198 (3d Cir.

2019). In Hess, the Third Circuit said that “as long as the ALJ

offers a ‘valid explanation,’ a ‘simple tasks’ limitation is

permitted after a finding that a claimant has ‘moderate’

difficulties in ‘concentration, persistence, or pace.’” Id. at

211. This statement encapsulates exactly what happened in the

case at bar. Here, in the step 3 PRT, the ALJ found that

Plaintiff had a moderate limitation in “understanding,

remembering or applying information” and “concentrating,

persisting or maintaining pace.” (R. at 19-20). The ALJ made

clear that he was accounting for this limitation in his RFC

analysis. (Id. at 20 (“The following residual functional

capacity assessment reflects the degree of limitation I have

found in the ‘paragraph B’ mental function analysis.”)).

In addition, in the RFC analysis, the ALJ explicitly

referenced other evidence related to cognition and mental

health. (See id. at 24 (“Neuropsychological exam in May 2019

reflected clear speech, without significant word-finding

difficulty and intact comprehension. . . Subsequent mental status

exams reflected cooperative behavior, and appropriate or good

mood and affect[.]”)). The ALJ explained the “simple task”

limitation by examining the evidence related to Plaintiff’s

other abilities and inabilities and explaining what he found

persuasive and why. (Id. at 22-27); Hess, 931 F.3d at 210 (the

step 2 and 3 “findings need only be ‘adequately conveyed’ in the

ALJ’s statement of the limitation, not recited verbatim”). That

is sufficient.

Plaintiff’s other arguments regarding the ALJ’s failure to

make enumerated findings regarding time off task and similar

issues is in effect an argument that the ALJ did not adequately

conduct a function-by-function analysis. First, the ALJ

explicitly noted that he “considered all symptoms and the extent

to which these symptoms can reasonably be accepted as consistent

with the objective medical evidence and other evidence... [and]

the medical opinions and prior administrative medical

findings[.]” (R. at 21). The Court finds that representation

to be borne out in the RFC analysis with the ALJ’s rather

exhaustive discussion of the examinations and treatment

Plaintiff has received as well as his discussion of how

Plaintiff’s mental and neurological impairments affected her

daily functioning. (Id. at 22-27). The ALJ specifically

discussed Plaintiff’s mental conditions and her desire post-

onset date to return to school full-time. (Id. (“Overall, the

evidence shows she retains the ability to understand, remember

and sustain basic simple tasks with simple instructions.”)).

In order for the ALJ to conduct a proper RFC analysis, no

magic set of words or order of analysis is required. Hur, 94 F.

App’x at 133 (stating that the ALJ is not required to recite

every tidbit of evidence); Lorie H. v. Comm'r of Soc. Sec., No.

1:20-CV-13192-NLH, 2022 WL 2803168, at *6 (D.N.J. July 18, 2022)

(“[A]n ALJ does not need to use particular language or adhere to

a particular format in conducting her RFC analysis.”). The

Court finds no error with the ALJ’s thorough discussion of

Plaintiff’s severe and non-severe impairments.

Plaintiff’s argument that the ALJ failed to conduct a

function-by-function analysis is similarly misplaced. Plaintiff

appears to base her argument on SSR 96-8p. SSR 96-8p requires a

narrative of how the evidence supports the ALJ’s conclusion

regarding the RFC. See SSR 96-8p. At a high level, the RFC is

a function-by-function assessment based on all of the relevant

evidence of an individual's ability to do work-related

activities, but an ALJ need not use particular language or

adhere to a particular format in conducting her RFC analysis.

Ungemach v. Commissioner of Social Security, 2019 WL 3024858, at

*4 (D.N.J. 2019) (citing Jones v. Barnhart, 364 F.3d 501, 505

(3d Cir. 2004)). SSR 96-8p requires that each function "must be

considered," but it does not require every function to be

specifically delineated in the RFC. Indeed, SSR 96-8p

contemplates that in her "final RFC assessment," an ALJ may

assess the functions in combination rather than individually.

While a neat organization of the analysis around each

function is preferable, failure by an ALJ to do so is not

reversible error where the ALJ explains her RFC findings and

those findings are supported by substantial evidence. Malcolm

v. Commissioner of Social Security, 2017 WL 5951703, at *19 n.14

(D.N.J. 2017) (noting "where, as here, the ALJ's RFC

determination is supported by substantial evidence, and is

accompanied by a clear and satisfactory explication of the basis

on which it rests, the Third Circuit does not require strict

adherence to the function-by-function analysis set forth in

Social Security Ruling 96-8p") (internal citation omitted);

Chiaradio v. Comm'r of Soc. Sec., 425 F. App'x 158, 161 (3d Cir.

2011) (affirming the ALJ's RFC determination, despite the fact

that "the ALJ did not make a task by task analysis," where the

ALJ's RFC finding was supported by substantial evidence in the

record, and the ALJ's "overall review carefully considered [the

claimant's] past relevant work and the ALJ assessed what [the

claimant] could reasonably do."); Garrett v. Comm'r of Soc.

Sec., 274 F. App'x 159, 164 (3d Cir. 2008) (affirming the ALJ's

RFC determination, despite the ALJ's failure to perform the

precise function-by-function assessment outlined in SSR 96-8p,

where the ALJ questioned the claimant about the physical

limitations of her prior work, and substantial evidence

supported the ALJ's findings); Bencivengo v. Comm'r of Soc.

Sec., 251 F.3d 153 (Table), [published in full-text format at

2000 U.S. App. LEXIS 38785 at *5] (3d Cir. Dec. 19, 2000)

("Although a function-by-function analysis is desirable, SSR 96-

8p does not require ALJs to produce such a detailed statement in

writing.")).

The Court also disagrees with Plaintiff’s characterization

of the ALJ’s analysis of Plaintiff’s limitations in the RFC

analysis, particularly with the contention that the conclusion

that Plaintiff could perform simple tasks is at odds with his

statement that he found the medical opinions of Drs. Marks and

Strauchler “generally persuasive.” Plaintiff specifically says

that the conclusion is at odds with both doctors’ conclusions

that Plaintiff would have difficulty with things like

maintaining pace and being punctual. (ECF 10 at 23).

But those statements were not made by those doctors —

rather they were made by a different medical evaluator,

apparently named Annamaria Pruscino, and in a very conclusory

manner to boot. (See R. at 138). Drs. Marks and Strauchler

opined on Plaintiff’s vision and other physical limitations and

nothing in the ALJ’s RFC analysis of their opinions is

inconsistent with the ALJ’s conclusions on mental limitations.

(Id. at 131-33, 135-37). It appears that Plaintiff is really

asking this Court to weigh the evidence surrounding Plaintiff’s

mental impairments differently than the ALJ.

iii. Whether the ALJ Properly Considered Plaintiff’s

Statements

Plaintiff argues that the ALJ improperly discounted her

subjective statements regarding the symptoms of her conditions

such as the fact that she has issues with her vision, focusing,

and neck pain and in doing so failed to follow SSR 16-3p. (ECF

10 at 27-28). While an ALJ must explain why he discounted

subjective accounts of pain or functional limitations, such

accounts must be supported by objective medical records.

Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d

Cir. 1999) (explaining that allegations of pain and

other subjective symptoms must be supported by objective medical

evidence, and an ALJ may reject a claimant's subjective

testimony if he does not find it credible as long as he explains

why he is rejecting the testimony); SSR 16-3p (“In determining

whether an individual is disabled, we consider all of the

individual's symptoms, including pain, and the extent to which

the symptoms can reasonably be accepted as consistent with the

objective medical and other evidence in the individual's record

... Under our regulations, an individual's statements of

symptoms alone are not enough to establish the existence of a

physical or mental impairment or disability.”); 20 C.F.R. §

416.929(c)(4) (“We will consider whether there are any

inconsistencies in the evidence and the extent to which there

are any conflicts between your statements and the rest of the

evidence....”).

Plaintiff’s argument here is again just a request for this

Court to weigh the evidence differently than the ALJ did. In

her brief, Plaintiff lists multiple statements that she made

during the hearing related to the gravity of her conditions

which she contends should have prompted the ALJ to issue a

finding of disability. (ECF 10 at 27-28). In his Opinion, the

ALJ specifically mentioned the limitations that Plaintiff

outlined in her testimony but weighed them against other

evidence in the record. (R. at 22-24). For instance, he

discounted Plaintiff’s statement that she had headaches that

prevented her from working on the basis that her medical records

indicated that medication helped to significantly manage them.

(Id.) Plaintiff is simply asking this Court to reconsider her

subjective statements without any deference to the ALJ, which

the Court is not permitted to do on this record. Williams, 970

F.2d at 1182.

iv. Whether the ALJ Improperly Found that Plaintiff Could

Perform Work in the Economy

Plaintiff argues that the ALJ failed to properly rule on

her objection in her March 25, 2021 letter that the VE

calculated the wrong number of jobs for the jobs that he

proposed in the national economy and that shows that the VE

testimony was not reliable. (ECF 10 at 32-35). Specifically,

the VE testified that there were 15,783 photocopy machine

operator positions, 226,956 marker positions, and 20,044 order

caller positions available nationally. (R. at 58-59).

Plaintiff’s post-hearing submission shows that the VE, using an

acceptable search engine to get job numbers, provided the

numbers for the amount of full and part-time positions for each

job rather than just full-time positions. (Id. at 391-96). The

number of full-time jobs according to Plaintiff were 9,805

photocopy machine operator jobs, 129,337 marker jobs, and 13,057

order caller jobs. (Id.)

However, Plaintiff cites no authority for the proposition

that the VE may not cite to the number of part-time positions

when coming to a number of jobs in the national economy.

Indeed, that position seems to be against the position of the

courts that have addressed the issue. Pitts v. Colvin, No. CV

16-434, 2016 WL 6217068, at *4 (W.D. Pa. Oct. 25, 2016)

(“[C]ourts have held that ALJs are not limited to considering

full-time work in making their determinations. . . Part-time

work may also be considered.”) (internal citation omitted);

Liskowitz v. Astrue, 559 F.3d 736, 745 (7th Cir. 2009) (“Ruling

96–8p does not say, nor do we interpret it to imply, that a VE

may permissibly testify only as to the availability of full-time

jobs.”).

In addition, assuming without deciding that the inclusion

of part-time jobs by the VE was error, the Court finds that it

was harmless. Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011)

(“An error is ‘harmless’ when, despite the technical correctness

of an appellant's legal contention, there is also ‘no set of

facts’ upon which the appellant could recover.”). Even

accepting Plaintiff’s numbers, there are hundreds of thousands

of jobs available in the national economy and that is more than

enough for the ALJ to satisfy the step 5 burden. Indeed, the

Third Circuit has found that 200 and 569 jobs to be

“significant,” which shows that the hundreds of thousands of jobs

that the VE proposed for Plaintiff were “significant.” Craigie

v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987) (200 jobs); Ahmad v.

Comm'r of Soc. Sec., 531 F. App'x 275, 278 (3d Cir. 2013) (569

jobs); see also Young v. Astrue, 519 F. App'x 769, 772 (3d Cir.

2013) (“[T]here is no precise estimate for what constitutes

‘significant numbers’ of jobs under the Social Security Act.”).9

9 Because it is the case that even if Plaintiff were correct that

the ALJ cannot consider the part-time jobs for the step 5

analysis, there would not be reversible error on this basis, it

is also true that any failure by the ALJ to address an objection

on that basis would not constitute reversible error. Rutherford

v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)(“[R]emand is not

required here because it would not affect the outcome of the

case.”).

Separately, the jobs selected by the ALJ are not at odds

with the ALJ’s conclusion that Plaintiff can do simple tasks

because those jobs contain a Reasoning Level 2. Reasoning Level

2 only requires that a claimant be able to “[a]pply commonsense

understanding to carry out detailed but uninvolved written or

oral instructions[; d]eal with problems involving a few concrete

variables in or from standardized situations.”10 One panel of

the Third Circuit has held that there is nothing contradictory

between jobs with reasoning level two and a limitation to only

simple tasks. Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir.

2004) (“Working at reasoning level 2 would not contradict the

mandate that her work be simple, routine and repetitive.”); Lisa

C. M. v. Kilolo Kijakazi, No. 3:20-CV-14153, 2022 WL 3273953, at

*14 (D.N.J. Aug. 11, 2022) (same). Indeed, the Third Circuit

has declined to craft a bright-line rule in this area. See

Zirnsak v. Colvin, 777 F.3d 607, 618 (3d Cir. 2014) (“The review

of the aforementioned cases demonstrates that there is no

bright-line rule stating whether there is a per se conflict

between a job that requires level 3 reasoning and a finding that

a claimant should be limited to simple and routine work.”).

Here, the ALJ extensively explained why any apparent

10 Appendix C: Components of the Definition Trailer, DICTIONARY

OF OCCUPATIONAL TITLES, available at https://occupationalinfo

.org/appendxc_1.html.

conflict between the limitation to simple tasks and the

designation of the jobs at Reasoning Level 2 was not a true

conflict. He explained that when cross-referencing a

designation to simple tasks in the regulations against the

designations in the Dictionary of Occupational Titles (the

“DOT”), he found no conflict. (R. at 28 (“Using the skills

level definitions in 20 CFR 404.1568 and 416.968, unskilled work

corresponds to an SVP of 1-2 in the DOT. Although there may be a

reason for classifying an occupation's skill level differently

than in the DOT, the regulatory definitions of skill levels are

controlling”)). The Court finds this analysis sufficient to

satisfy its review. Further, it fits with the ALJ’s discussion

of Plaintiff’s abilities and limitations in the rest of his

opinion. (See id. at 22-27). Thus, the Court discerns no error

at step 5.

v. Whether the Appointment of the Commissioner Was

Unconstitutional Such that the Decision by the Social

Security Administration in this Case Was

Constitutionally Defective

The Plaintiff alleges that the Social Security proceedings

in their entirety were constitutionally defective because of the

appointment of Andrew Saul as Commissioner of the Social

Security Administration. (ECF 10 at 36). The parties agree

that 42 U.S.C. § 902(a)(3) violates the separation of powers

clause to the extent that it is construed as limiting the

President’s authority to remove the Commissioner without cause.

(ECF 11 at 25). Plaintiff argues that because of this

violation, the appointed ALJ and the Appeals Council did not

have constitutional authority to render a decision on

Plaintiff’s case. (ECF 10 at 36-37).

While Plaintiff argues to the contrary, the Supreme Court

has already stated that there is no basis to conclude that an

appropriately appointed official does not have the authority to

carry out the functions of the office, even if his or her

position was designed by Congress to impermissibly impinge on

the President’s right to removal at will. Collins v. Yellen,

141 S. Ct. 1761, 1787-88, 1788 n.23 (2021) (plurality opinion)

(“As we have explained, there is no basis for concluding that

any head of the FHFA lacked the authority to carry out the

functions of his office.”).

The Appointment Clause cases do not help the

shareholders either. These cases also ask whether an

officer can lawfully exercise the statutory power of

his office at all in light of the rule that an office

must be properly appointed before he can legally act

as an officer. . . Here, “[a]ll the officers who

headed the FHFA during the time in question were

properly appointed.” There is thus no barrier to them

exercising power in the first instance.

Id. at 1793 (Thomas, J. concurring) (citations omitted).

Similarly, the Court addressed that the idea that the

“taint” of the “mere existence” of the offending removal

provision flows down through the executive power exercised by

the officer was unavailing. Id. at 1788, 1793 (“[W]e have not

held that a misunderstanding about authority results in a

constitutional defect where the action was otherwise lawful.”).

The plurality opinion addresses the most pressing issue:

that there must be an adequate nexus between the

unconstitutional provision and the case at bar. See id. at 1779

(“for purposes of traceability, the relevant inquiry is whether

the plaintiffs’ injury can be traced to ‘allegedly unlawful

conduct’ of the defendant, not to the provision of the law that

is challenged.”). So too do the concurring opinions of Justices

Thomas and Kagan: “I write separately because I worry that the

Court and the parties have glossed over a fundamental problem

with removal-restriction cases such as these: The Government

does not necessarily act unlawfully even if a removal

restriction is unlawful in the abstract.” Id. at 1789 (Thomas,

J. concurring). Similarly, “[w]hen an agency decision would not

capture a President’s attention, his removal authority could not

make a difference — and so no injunction should issue.” Id. at

1802 (Kagan, J. concurring). See also Mor v. Kijakazi, No. 21-

1730, 2022 2022 WL 73510, at *4-5 (D.N.J. Jan. 6, 2022).

The Court must now consider, then, whether Plaintiff has

sufficiently established a concrete injury inflicted by 42

U.S.C. § 902(a)(3) upon Plaintiff through the ALJ’s final

decision of finding the Plaintiff not disabled and the Appeals

Council’s denial of review. Without standing, there is no “case

or controversy” to be decided. Spokeo, Inc. v. Robins, 578 U.S.

330, 338 (2016). Plaintiff argues that both the ALJ and the

Appeals Council have inflicted the harm of unconstitutional

proceedings against Plaintiff and the subsequent denial of

benefits. (ECF 10 at 6-7).

First, the Third Circuit has already expressly stated that

“[n]o statutory authority, (the source of the district court’s

review) authorizes [district courts] to review the Appeals

Council decision to deny review,” because the Appeals Council

exercises “‘certiorari-type jurisdiction,’” and renders an ALJ’s

decision final under the Social Security Act. Kwasnik v.

Kijakazi, No. 21-08573, 2022 U.S. Dist. LEXIS 116234, at * 30

(D.N.J. Jun. 30, 2022); see also Matthews v. Apfel, 239 F.3d

589, 594 (3d Cir. 2001). Thus, this Court does not have the

authority to examine the Appeals Council’s decision.

Second, the Plaintiff fails to establish a causal

connection between the harm of the ALJ’s decision and the

impermissible removal provision. As discussed above, and as

found by other courts, the mere “taint” of the head of an agency

does not establish a sufficient nexus for standing. See Kwasnik

v. Kijakazi, No. 21-08573, 2022 U.S. Dist. LEXIS 116234, at *33-

34 (D.N.J. Jun. 30, 2022) (citing Andino v. Kijakazi, No. 21-

2852, 2022 WL 1135010, at *6-7 (E.D. Pa. April 18, 2022)

(“Justice Alito specified in Collins that Seila Law’s holding on

standing ‘does not mean that actions taken by such an officer

are void ab initio and must be undone.’ . . . [I]t is not

difficult to see that Collins requires Andino to demonstrate a

nexus between the decision denying her disability benefits and

42 U.S.C. § 902(a)(3).”); Mor v. Kijakazi, No. 21-1730, 2022 WL

73510, at *5 (D.N.J. Jan. 7, 2022) (“Plaintiff fails to point to

any connection between the Commissioner’s removal under Section

902(a)(3) and the ALJ’s decision (or any other action in this

case). As a result, the requisite nexus is not met, and the

Court denies Plaintiff’s appeal on this ground.”); see also Ford

v. Kijakazi, No. 21-1432, 2022 WL 1203731, at *6 (E.D. Pa. Apr.

22, 2022) (denying separation of powers claim because plaintiff

failed to show “harm caused by Saul exercising authority he

retained by virtue of the unconstitutional removal clause.”).

As Justice Kagan noted in Collins, for the Court to redress

an injury due to an agency decision made by an agency headed by

a single executive subject to an impermissible for-cause removal

protection, that agency’s decision would need to “capture a

President’s attention.” Collins, 141 S. Ct. at 1801-02.

Justice Kagan specifically noted that the “mass” of Social

Security Administration decisions would likely not create a harm

that would allow for redress. Id. (“[O]nly when the President’s

inability to fire an agency head affected the complained-of

decision. Only then is relief needed to restore the plaintiffs

to the position they ‘would have occupied in the absence’ of the

removal problem.”).

Plaintiff points to a statement by President Biden which

purports to indicate that President Biden wanted to fire

Commissioner Saul early on in his tenure as president. (ECF 14

at 9-10). Plaintiff points to the below quote in particular to

demonstrate that President Biden wanted to fire the Commissioner

from the time of the President’s inauguration on January 20,

2021:

Since taking office, Commissioner Saul has

undermined and politicized Social Security

disability benefits, terminated the agency’s

telework policy that was utilized by up to 25

percent of the agency’s workforce, not repaired

the SSA’s relationships with relevant Federal

employee unions including in the context of

COVID-19 workplace safety planning, reduced due

process protections for benefits appeals

hearings, and taken other actions that run

contrary to the mission of the agency and the

President’s policy agenda.

Id.11

11 The Court notes that this quote came from a Washington Post

article dated July 11, 2021. The quote itself, credited to the

White House, was not dated within the article. See Lisa Rein,

Biden fires head of Social Security Administration, a Trump

holdover who drew the ire of Democrats, WASHINGTON POST, July 11,

2021 at https://www.washingtonpost.com/politics/andrew-saul-

social-security-/2021/07/09/c18a34fa-df99-11eb-a501-

0e69b5d012e5_story.html.

First, these harms listed in the news article quote are

general and do not show the required concrete, personal, and

causal harm required to establish standing. To establish

standing, “a plaintiff must show that it has suffered ‘an injury

in fact’ that is ‘fairly traceable’ to the defendant’s conduct

and would likely be ‘redressed by a favorable decision.’”

Collins, 141 S. Ct. at 1779 (quoting Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992)). “[F]or purposes of

traceability, the relevant inquiry is whether the plaintiffs’

injury can be traced to ‘allegedly unlawful conduct’ of the

defendant, not to the provision of law that is challenged.”12

Id. (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)); see

also Kwasnik v. Kijakazi, No. 21-08537, 2022 WL 2358424, at *11

(D.N.J. Jun. 30, 2022).

Plaintiff does not point to a specific legal application,

policy, or decision that the ALJ or Appeals Council rendered

that had any effect on this case except for the overall denial

of benefits, which as explained above was sufficiently supported

by the record. See Johnson v. Kijakazi, No. 21-2372, 2022 U.S.

Dist. LEXIS 114766, at *36 (E.D. Pa. Jun. 28, 2022) (“Plaintiff

12 The fact that President Biden ultimately fired Commissioner

Saul in July of 2021, (ECF 14 at 9-10), does not change the

calculus because Plaintiff has not pointed to an injury that can

be traced to the unlawful appointment of Commissioner Saul.

has not identified any new regulations, agency policies or

directives Commissioner Saul installed that may have affected

her claims. Plaintiff thus fails to show how or why [the

unlawful] removal clause possibly harmed her.”) (internal

citations omitted).

The unconstitutionally of 42 U.S.C. § 902(a)(3)’s removal

restriction simply does not void the ALJ’s decision in this

mine-run case. The adjudication process and determination by

the Social Security Administration remains valid.13

III. Conclusion

For the reasons expressed above, the Court will affirm the

decision of the ALJ.

An accompanying Order will be issued.

Date: November 8, 2022 s/ Noel L. Hillman

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

13 Because the Court finds no error warranting remand in the

ALJ’s decision, the Court rejects Plaintiff’s argument that the

Court should summarily grant her benefits. (ECF 10 at 38-39).