RODRIGUEZ v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

WILLIAM R.,

Plaintiff,

Civ. No. 22-00690 (KM)

v.

OPINION

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

Defendant.

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

Plaintiff William R. brings this action to review a final decision of the

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

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

Income (“SSI”). He argues that the ALJ’s determination that he is not disabled

as defined by Title II of the Social Security Act was not supported by

substantial evidence. For the reasons stated below, the Commissioner’s

decision is AFFIRMED.

I. BACKGROUND1

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

Social Security Act (“SSA”) on August 7, 2018. He claimed a period of disability

1 Citations to the record are abbreviated as follows:

“DE” = docket entry

“R. _” = Administrative Record (DE 5)

“Pl. Br.” = William R.’s moving brief (DE 8)

“Def. Br.” = SSA Commissioner’s opposition brief (DE 9)

Claimant’s moving brief was filed many months late, in response to a reminder from

the clerk. The government responded timely to the claimant’s brief. Doubtless the

claimant’s late filing resulted from an innocent oversight. As a result, however, the

Court could meet its own periodic six-month deadline under the Civil Justice Reform

Act only by filing its decision before an optional reply brief would have been due. If

beginning on June 20, 2017, based on the following physical impairments: 1)

degenerative disc disease of the lumbar spine, 2) degenerative disc disease of

the cervical spine, 3) fluctuating hearing loss of the right ear, 4) hypertension,

5) obesity, 6) diabetes mellitus, and 7) tinnitus of the right ear.2 (R. 23-24.) His

application was denied initially and upon reconsideration. (R. 61, 70.) On

February 11, 2020, he had a hearing before an Administrative Law Judge

(“ALJ”) to review his application de novo. (R. 36-60.) ALJ Beth Shillin heard

testimony from the plaintiff, who was represented by counsel, and from a

vocational expert. On March 2, 2020, ALJ Shillin issued a decision finding that

William R. has the residual functional capacity to perform medium work

activities with postural, environmental, and communicative limitations. (R. 18-

35.) The Appeals Council denied Plaintiff’s request for review on December 15,

2021, rendering the ALJ’s decision a final decision of the Commissioner. (R. 1–

6.) This appeal followed.

II. DECISION FOR REVIEW

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

To qualify for Title II DIB benefits, a claimant must meet the insured

status requirements of 42 U.S.C. § 423. To qualify, a claimant must show that

she is unable to engage in substantial gainful activity by reason of any

medically determinable physical or mental impairment that can be expected to

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

period of not less than twelve months. 42 U.S.C. §§ 423(c), 1382(a).

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

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

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

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

necessary, the Court will consider an informal motion for reconsideration

incorporating any additional arguments the claimant may wish to assert in reply.

2 William R. originally alleged disability beginning May 20, 2017, but later revised

his alleged onset date to June 20, 2017, to correspond with the date he last worked.

(R. 21.)

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

The steps may be briefly summarized as follows:

Step 1: Determine whether the claimant has engaged in substantial

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

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

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

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

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

three.

Step 3: Determine whether the severe impairment meets or equals

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

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

automatically eligible to receive disability benefits (and the analysis

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

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

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

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

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

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

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

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

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

demonstrate that the claimant, considering his age, education,

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

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

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

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

they will be awarded.

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

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

findings are reviewed “only to determine whether the administrative record

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

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

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

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

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

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

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

U.S.C. § 405(g)).

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

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

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

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

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

administrative record contains substantial evidence that the claimant is

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

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

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

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

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

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

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

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

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

disabled during the relevant period, where his decision contains significant

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

the ALJ’s findings are not the product of a complete review which “explicitly

weigh[s] all relevant, probative and available evidence” in the record. Adorno v.

Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).

B. The ALJ’s Decision

ALJ Damille undertook the necessary step-by-step inquiry.

Step 1

The ALJ concluded William R. had not engaged in substantial gainful

activity from June 20, 2017, the alleged onset date. (R. 23.)

Step 2

The ALJ found that through the date last insured, William R. had the

following severe impairments: mild degenerative disc disease of the lumbar

spine, degenerative disc disease of the cervical spine, and mild to moderate

high frequency fluctuating hearing loss of the right ear. (R. 23 (citing 20 CFR

404.1520(c).)

Appropriately citing to the medical evidence and administrative record,

the ALJ found that the following claimed conditions had, at most, a minimal

impact on the claimant’s ability to perform basic work activities: hypertension,

obesity, diabetes mellitus, and tinnitus of the right ear. (R. 24.)

Step 3

With respect to the impairments found to be severe, the ALJ determined

that William R. did not have an impairment or combination of impairments

that met or medically equaled the severity of the listed impairments in 20

C.F.R. Part 404, Subpart P, Appendix 1. (R. 24.) In particular, the ALJ’s

discussion of the evidence focused on Listings 1.04 (disorders of the spine)3

and 2.10 (hearing loss not treated with cochlear implantation)4.5

RFC and Step 4

3 1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal

arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis,

vertebral fracture), resulting in compromise of a nerve root (including the cauda

equina) or the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-anatomic

distribution of pain, limitation of motion of the spine, motor loss (atrophy with

associated muscle weakness or muscle weakness) accompanied by sensory or

reflex loss and, if there is involvement of the lower back, positive straight-leg

raising test (sitting and supine);

OR

B. Spinal arachnoiditis, confirmed by an operative note or pathology report of

tissue biopsy, or by appropriate medically acceptable imaging, manifested by

severe burning or painful dysesthesia, resulting in the need for changes in

position or posture more than once every 2 hours;

OR

C. Lumbar spinal stenosis resulting in pseudoclaudication, established by

findings on appropriate medically acceptable imaging, manifested by chronic

nonradicular pain and weakness, and resulting in inability to ambulate

effectively, as defined in 1.00B2b.C. Lumbar spinal stenosis resulting in

pseudoclaudication, established by findings on appropriate medically

acceptable imaging, manifested by chronic nonradicular pain and weakness,

and resulting in inability to ambulate effectively, as defined in [Listing]

1.00B2b.

4 2.10 Hearing loss not treated with cochlear implantation.

A. An average air conduction hearing threshold of 90 decibels or greater in the

better ear and an average bone conduction hearing threshold of 60 decibels or

greater in the better ear (see [Listing] 2.00B2c).

OR

B. A word recognition score of 40 percent or less in the better ear determined

using a standardized list of phonetically balanced monosyllabic words (see

[Listing] 2.00B2e).

5 Since the time of the ALJ’s decision in this case, the Social Security

Administration passed rules revising its criteria for examining spinal disorders,

replacing Listing 1.04 with two new Listings, 1.15 (Disorders of the skeletal spine

resulting in compromise of a nerve root(s)) and 1.16 (Lumbar spinal stenosis resulting

in compromise of the cauda equina).

Next, ALJ Shillin defined the claimant’s RFC:

5. After careful consideration of the entire record, I find that the

claimant has the residual functional capacity to perform medium

work as defined in 20 CFR 404.1567(c) except no ladders,

scaffolds, ropes, heavy machinery, or heights; frequent stairs,

ramps, crouching, crawling, stooping, kneeling, and balancing; and

due to hearing loss, only occasional contact with the general

public, co-workers, and supervisors.

(R. 25.) The ALJ analyzed at length the evidence supporting that RFC

determination. (R. 25-29.)

Based on the RFC, the ALJ concluded at Step 4 that William R. is

capable of performing past relevant work as a warehouse worker. (R. 29.)

As required, the ALJ considered William R.’s position both as he actually

performed it and as it is generally performed. Because the ALJ found

William R. is capable of performing past relevant work, she concluded

her analysis at Step 4 and did not move on to Step 5.

III. DISCUSSION

In his appeal, William R. asserts that the ALJ’s RFC assessment was

flawed in two ways. First, he contends that the assessment is not supported by

substantial evidence because the ALJ did not “engage in the required

functional analysis,” i.e., she did not identify William R.’s functional limitations

or restrictions and assess his work-related abilities on a function-by-function

basis. (Pl. Br. 12 (citing SSR 96-8p).) Second, and relatedly, he argues that the

assessment is unsupported because the ALJ’s decision did not “define the

tasks and abilities that must be sustained in order to perform medium work

activity.” (Id. 12-13 (citing SSR 83-10.) I address each of these arguments in

turn.

A. Functional Analysis

I find that ALJ Shillin engaged in an extensive functional analysis in

performing her RFC assessment and determining that William R. was capable

of performing medium work, as defined in 20 C.F.R. 404.1567(c), subject to

certain postural and environmental limitations. Her detailed examination of the

objective medical evidence pertaining to “the intensity, persistence, and limiting

effects” of William R.’s symptoms indicates that her RFC determination is

supported by substantial evidence and indeed resulted from “careful

consideration of the entire record.” (R. 25.)

First, ALJ Shillin addressed William R.’s June 20, 2017 visit to the

emergency department after a piece of marble hit him on the back and knocked

him to the ground during work. (Id.) She noted that a CT scan of William R’s

head showed no acute intracranial hemorrhage and that during follow-up

examinations in August 2017 and September 2017, William R. denied

experiencing any headaches, head injury, joint pains, tingling, numbness,

paresthesia, weakness, or dizziness. (Id.).

Second, ALJ Shillin considered the results of William R.’s primary care

examinations through the end of September 2017, finding no remarkable

physical limitations. (Id. 27.) She noted multiple occasions in which William

R.’s primary care physician, Dr. Ombola Abiodun Oji, found that William R.

had normal range of motion of the cervical and lumbar spine with normal

straight leg raise testing and no cervical or lumbar tenderness. (Id.) In addition,

ALJ Shillin noted that Dr. Oji routinely found William R. to have normal range

of motion of the lower extremities along with normal bilateral motor strength,

sensation, coordination, and gait. (Id.) In her decision, ALJ Shillin remarks that

these findings, as they relate to William R.’s functional limitations, were

consistent with those from another physical examination performed by Dr.

Anthony Tarasenko during September 2017, which demonstrated that William

R. had “full range of motion, no deformity, no tenderness, and normal strength

of his bilateral shoulders, arms, elbows, wrists, hands, fingers, lower

extremities, cervical spine, thoracic spine, and lumbosacral spine.” (Id. 27.)

Third, ALJ Shillin considered the results of William R.’s orthopedic

examinations with Dr. Patricio Grob in 2017, observing that they were

generally “benign.” (Id.) She noted that although Dr. Grob observed that

William R. had decreased range of motion of the lumbar spine with poor lower

extremity flexibility in September 2017, the following month Dr. Grob observed

that William R.’s range of motion improved. (Id.)

Fourth, ALJ Shillin considered notes from William R.’s physical therapy

sessions in late 2017, which indicated little to no physical limitation. The notes

indicate that William R. had nearly full range of motion of the cervical and

lumbar spine, intact sensation, and intact and symmetrical deep tendon

reflexes. (Id.) In addition, William R. reported to his physical therapist that his

neck and back pain improved with treatment. Moreover, the notes indicate that

William R. reported being able to go on 30 minute walks, use stairs to reach his

third-story home, and exercise with a weighted vest at home while walking. (Id.)

Most significantly, William R.’s physical therapist noted observing William R.

1) completing 10 repetitions of lifting 40 pounds, 2) pushing/pulling 110

pounds, 3) sitting for 30 minutes and ambulating for 20 minutes, and 4)

ascending and descending stairs and a ladder. (Id.)

Fifth, ALJ Shillin considered records from William R.’s medical

consultative examination with Dr. Betty Vekhins, during which William R. was

able to walk without an assistive device, walk on heels and toes, and squat.

(Id.) These records also reflected Dr. Vekhins’ observations that William R. ha a

full range of motion of the cervical spine, no vertebral tenderness, no abnormal

tilt. Dr. Vekhins also observed that William R. had nearly full range of motion

of the lumbar spine, with no worsening pain on straightening, and negative

straight leg raise testing in the seated and spine positions. (Id.) In addition,

William R. had full range of motion of his bilateral shoulders, elbows, wrists,

and hands with normal grip strength and no sensory loss, and Dr. Vekhins

also noted that he had full range of motion of his bilateral hips, knees, and

ankles, with no focal weakness, no sensory loss, and no swelling or deformity.

(Id.)

Sixth, ALJ Shillin discussed a series of examinations by William R.’s

orthopedist, Dr. Daniel Harrington. (Id. 28.) In October 2019, Dr. Harrington

observed that William R. had reduced range of motion of the lumbar spine with

tenderness to palpation diffusely throughout. (Id.) However, Dr. Harrington

found that William R. had intact strength, sensation, and deep tendon reflexes.

Dr. Harrington also noted that although an x-ray of William R.’s lumbar spine

showed mild degenerative changes, these changes appeared to be age-related,

as the imaging did not show any sign of previous trauma. Dr. Harrington

recommended physical therapy for generalized strengthening of the low back

and extremities. (Id.) In November 2019, William R. returned to Dr. Harrington

with additional complaints of neck and right shoulder pain. (Id.) Dr. Harrington

found that William R. had reduced range of motion of the cervical spine, but

was neurovascularly intact. (Id.) During return visits in December 2019 and

January 2020, Dr. Harrington observed similarly mild functional limitations,

again noting a reduced range of motion of the lumbar spine with midline

tenderness and left sacroiliac joint pain but documenting that William R.

possessed intact strength and sensation.6 (Id.)

Seventh, ALJ Shillin examined evidence regarding William R.’s functional

limitations resulting from his hearing disorder. September 2019 audiometry

testing demonstrated mild to moderate sensorineural hearing loss in William

R.’s right ear. (Id.) In terms of functional findings, the audiometry testing

revealed that William R.’s right ear speech reception was 96 percent and his

left ear speech reception was 100 percent. (Id.) All other findings with respect

to William R.’s hearing were normal, as he demonstrated no ear effusion, and

no speech problems. (Id.)

William R. does not contest the objective evidence ALJ Shillin considered,

nor does he argue ALJ Shillin failed to consider other evidence that does not

appear in her decision. Instead, he merely disagrees with ALJ Shillin’s ultimate

assessment that he is capable of medium work, i.e., “lifting no more than 50

6 During William R.’s January 2020 visit with Dr. Harrington, an MRI of the

lumbar spine demonstrated mild disc disease with an anterior spondylolisthesis of L4

and L5 and mild bilateral lateral recess stenosis at L4-5. (R. 28.) Notably, Dr.

Harrington’s records document that there was no significant change compared to the

findings from prior imaging in October 2017. (Id.)

pounds at a time with frequent lifting or carrying of objects weighing up to 25

pounds.” 20 C.F.R. 404.1567(c). William R. points to a handful of excerpts in

ALJ Shillin’s decision that he “regards as significant evidence contradicting a

medium work RFC,” none of which I find persuasive. (Pl. Br. 15-17.) The only

listed excerpts that bear on William R.’s functional limitations pertain to

William R.’s reduced range of motion of the lumbar and cervical spine, poor

lower extremity flexibility, tenderness to palpation, as well as neck and joint

pain, all of which ALJ Shillin considered within the context of the objective

medical record. None of these issues, which ALJ Shillin determined to be mild

in severity and persistence, indicates that William R. is incapable of medium

work. In fact, taken together, the excerpts highlighted by William R. support the

ALJ’s RFC assessment. For instance, William R. points out that his “physical

therapist observed that he could do ten repetitions of lifting 40 pounds and

pushing/puling 110 pounds; stand and sit for 30 minutes and ambulate for 20

minutes in duration; and he was able to ascend and descend stairs and a

latter.” (Pl. Br. 16 (citing R. 27).)

The objective medical record includes ample evidence demonstrating that

William R. is capable of performing medium work, consistent with the ALJ’s

RFC assessment.7 As for the process by which ALJ arrived at her RFC

determination, the excerpts William R. lists in his brief show that ALJ Shillin

engaged in the very functional analysis that William R. claims she failed to

conduct.

7 William R. also appears to take issue with the ALJ’s finding that his obesity is

not a severe medically determinable impairment. (Pl. Br. n. 7.) However, the only

evidence he proffers to suggest that this finding was erroneous is a treatment plan Dr.

Harrington prescribed to William R. that consisted of “low impact exercise and weight

loss.” (Id.) The fact that a medical professional directed William R. to exercise and lose

weight does not warrant a finding that his obesity is severe. In fact, ALJ Shillin

specifically observed that the objective medical record contained “no evidence of any

specific or quantifiable impact on pulmonary, musculoskeletal, endocrine, or cardiac

functioning.” (R. 24.) Substantial evidence supports the ALJ’s finding that William R.’s

obesity, considered alone or in combination with other impairments, is not severe.

B. Defining Medium Work Tasks and Abilities

I find that ALJ Shillin did not err by declining to specifically define all the

“tasks and abilities that must be sustained in order to perform medium work.”

(Pl. Br. 12-13.) In addition to 1) “lifting no more than 50 pounds at a time with

frequent lifting or carrying of objects weighing up to 25 pounds,” these tasks

and abilities include 2) “standing or walking, off and on, for a total of

approximately 6 hours in an 8-hour workday;” 3) “use of the arms and hands []

to grasp, hold, and turn objects; 4) “frequent bending [and] stooping; and 5)

“flexibility of the knees and torso.” (Pl. Br. 13-14 (citing SSR 83-10).) William R.

contends that the ALJ’s RFC assessment is not supported by substantial

evidence because it does not articulate William R.’s ability to perform each of

these tasks. Although ALJ Shillin did not list each of these tasks and abilities

in her decision, her examination of the objective medical evidence clearly

addressed all five categories:

First, ALJ Shillin addressed William R.’s lifting ability when she

examined his 2019 physical therapy records that documented William R. being

able to complete “ten repetitions of lifting 40 pounds and pushing/pulling 110

pounds.” (R. 27.)

Second, ALJ Shillin addressed William R.’s walking ability when she

examined his 2017 physical therapy records noting that William R. “reported

that he was able to go on 30 minute walks, use stairs to get to his third story

home, and exercise with [a] weighted vest at home while walking,” as well as

being able to “ascend and descend stairs and a ladder.” (Id.) The ALJ also

reviewed evidence from William R.’s medical consultative examination with Dr.

Vekhins during which William R. “walked without an assistive device and

walked on heels and toes.” (Id.)

Third, ALJ Shillin also addressed William R.’s ability to grasp and hold

objects when she reviewed the evidence from his visit with Dr. Vekhins, during

which William R. had “full range of motion of his bilateral shoulders, elbows,

wrists, and hands with normal grip strength and no sensory loss.” Id.

Finally, ALJ Shillin addressed William R.’s bending and stooping ability,

as well as the flexibility of his knees and torso, when she considered Dr.

Vekhins’ notes that William R. was able to squat and had “full range of motion

of his bilateral hips, knees, and ankles, no focal weakness, no sensory loss,

and no swelling or deformity.” (Id.) These findings were corroborated by

additional evidence ALJ Shillin considered, including notes from William R.’s

physical therapy sessions, during which he climbed stairs and a ladder, as well

as routine normal straight leg raise testing. (Id. 27-28.)

Given that ALJ Shillin’s RFC assessment addressed all of the tasks and

abilities associated with medium work, her failure to refer to those tasks and

abilities by name did not constitute error.

* * *

In sum, I find that ALJ Shillin conducted a thorough functional analysis

based on the objective medical record and, in doing so, addressed the five

categories of tasks and abilities listed in SSR 83-10 as being associated with

medium work. While the claimant disagrees with the ALJ’s assessment and

cites contrary evidence, the ALJ’s decision is supported by substantial evidence

and therefore will be upheld.

IV. CONCLUSION

For the reasons set forth above, the Commissioner’s decision is

AFFIRMED. A separate order will issue.

Dated: March 30, 2023

/s/ Kevin McNulty

___________________________________

Hon. Kevin McNulty

United States District Judge