VILLANUEVA v. COMMISSIONER OF SOCIAL SECURITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FRANCISCO V.,

Plaintiff,

V. Civil Action No. 22-3395 (RK)

COMMISSIONER OF SOCIAL SECURITY, MEMORANDUM OPINION

Defendant.

KIRSCH, District Judge

THIS MATTER comes before the Court on Francisco V.’s (“Francisco”)! appeal from the

Commissioner of the Social Security Administration’s (the “Commissioner”) final decision, which

denied Francisco’s request for disability insurance benefits. (ECF No. 1.) The Court has

jurisdiction to review this appeal under 42 U.S.C. § 405(g) and reaches its decision without oral

argument under Local Civil Rule 78.1. For the reasons below, the Court affirms the

Commissioner’s decision.

I. BACKGROUND

In this appeal, the Court must answer two questions. First, does substantial evidence

support Administrative Law Judge Ricardy Damille’s (“Judge Damille”) Step Three determination

that no impairment or combination of impairments met the criteria of any listed impairment?

Second, does substantial evidence support Judge Damille’s determination of Francisco’s residual

functional capacity?

' The Court identifies Plaintiff by first name and last initial only. See D.N.J. Standing Order 2021-10.

A. PROCEDURAL POSTURE

Francisco filed an application for a period of disability and disability insurance benefits

on May 24, 2012, alleging an onset date of October 18, 2010. (Administrative Record (“AR”) at

175~76.)” The Social Security Administration (the “Administration”) denied the request both

initially and on reconsideration by medical consultants with the Disability Determination

Services, (dd. at 66-96.) Francisco requested a hearing before an Administrative Law Judge

(“ALJ”) (id. at 102), who thereafter held an in-person hearing on October 15, 2014 (id. at 30-

65). The ALJ issued a written opinion finding that Francisco was not disabled. (/d. at 12-29) The

Administration’s Appeals Council affirmed the determination on appeal (id at 1~7), and

Francisco appealed to the United States District Court (id. at 932). While the appeal was pending

before the District Court, Francisco filed a subsequent claim for disability benefits on September

24, 2016. Ud. at 1050-51). By Consent Order dated July 21, 2017, the District Court remanded

the case to the Commissioner for further proceedings. Ud. at 937-38). The Appeals Council

ordered Francisco’s later-filed claim for disability benefits consolidated with his first claim. (Jd.

at 941-45.)

On remand, the ALJ held a hearing on August 2, 2018. (/d. at 880-906.) The ALJ issued a

written opinion again finding Francisco not disabled. (/d. at 860-72.) Francisco appealed again to

the United States District Court, and on October 30, 2020, the Honorable Michael A. Shipp remanded

the case for the ALJ to further evaluate Francisco’s impairments in combination at Step Three. (/d.

at 1139-46.)

On November 16, 2021, Judge Damille conducted a hearing during which a vocational expert

* The Administrative Record (“Record” or “AR”) is available at ECF No. 4-1 through 4-18. This opinion

will reference only page numbers in the Record without the corresponding ECF numbers.

and Francisco (who was represented by counsel) testified. 7d. at 1107-32.) On February 9, 2022,

Judge Damille issued a written decision finding Francisco not disabled. (Jd. at 1087-99.) This appeal

followed. (ECF No. 1.) The Administrative Record was filed on July 26, 2022 (ECF No. 4),

Francisco filed his moving brief on March 8, 2023 (ECF No. 11), and the Commissioner filed an

opposition brief on April 24, 2023 (ECF No. 12).

B. JUDGE DAMILLE’S DECISION

In his February 9, 2022 opinion, Judge Damille held that Francisco was not disabled

under the prevailing Administration regulations. (See generally AR at 1084-99.) To reach this

decision, Judge Damille set out the five-step process for determining whether an individual is

disabled set forth in 20 C.F.R. § 404.1520(a). Ud. at 1088—.) At Step One, Judge Damille found

that Francisco had not engaged in substantial gainful activity between the alleged onset date,

October 18, 2010, and the date last insured, September 30, 2017, shortly after which Francisco

returned to full-time work. Ud. at 1089-90 (citing 20 C.F.R. §§ 404.1520(b), 404.1571).) At Step

Two, Judge Damille found that Francisco suffered from several severe impairments, including

cervical disc herniation, right shoulder injury, carpal tunnel in the hands, history of right elbow

ulnar nerve release, left arm ulnar and median nerve impingement, and a history of right trigger

finger release. Ud. at 1090 (citing 20 C.F.R. § 404.1520(c)).) At Step Three, Judge Damille

determined that Francisco did not have “an impairment or combination of impairments” that

qualified under the Administration’s listed impairments, Ud. at 1090-92 (citing 20 C.F.R. §§

404.1520(d), 404.1525, 404.1526).) As a precursor to Step Four, Judge Damille concluded that

Francisco had the residual functional capacity (“RFC”) to perform “light work” but that any job

he performed must be limited in specified ways, including only “occasional pushing and pulling

with the upper extremities,” “occasional[] finger[ing] with the right hand,” and “never reach[ing |

overhead with the upper extremities.” (/d. at 1092-97.) At Step Four, Judge Damille concluded

that Francisco “is unable to perform any past relevant work.” (/d. at 1097 (citing 20 C.F.R. §

404.1565).) Finally, at Step Five, Judge Damille heard testimony from a vocational expert and

concluded that “there were jobs that existed in significant numbers in the national economy” that

Francisco could have performed. (/d. at 1097-98 (citing 20 C.F.R. §§ 404.1569, 404.1569a).)

This appeal concerns Judge Damille’s Step Three and RFC determinations. At Step

Three, Judge Damille considered whether Francisco met the requirements for Listing 1.15

(“Disorders of the skeletal spine resulting in compromise of a nerve root(s)”), Listing 1.18

(‘Abnormality of a major joint(s) in any extremity”), and Listing 11.14 (“Peripheral

neuropathy”). (AR at 1090-92 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1).) After setting forth

the standard he applied for each Listing, Judge Damille explained what medical evidence

supported his conclusion that Francisco had not presented evidence sufficient for any Listing.

To support this analysis, Judge Damille cited and discussed medical imaging (/d. at 1091

(citing Ex. 10F)), medical opinion evidence (/d. at 1092 (citing Ex. 7F)), and treatment records

at 1091 (citing Exs. 6F, 14F, 21F)). In concluding, Judge Damille noted that he had similarly

“considered the totality of the claimant’s impairments” and found that “the record does not

establish the medical signs, symptoms, laboratory findings or degree of functional limitation

required to meet or equal the criteria of any listed impairment.” (/d. at 1092). He concluded that

“no acceptable medical source designated to make equivalency findings has concluded that the

claimant’s impairments medically equal a listed impairment.” (/d.)

In explaining his RFC determination at the precursor to Step Four, Judge Damille

acknowledged Francisco’s subjective complaints and claimed functional limitations. Ud. at

1093.) He found Francisco’s claims were “not entirely consistent with the medical evidence and

other evidence in the record” and explicated how his RFC determination found support in the

medical records he reviewed. (/d. at 1093.) An MRI of Francisco’s right shoulder in October

2010 was “normal” and Francisco’s “cervical spine had normal ranges of motion, he had no

spasms, he had 5/5 strength, and he had a negative Spurling sign.” (/d. at 1093 (citing Exs. 5F/3-

4, 19F/10, 21F/37, 24F, 17).) The following month, medical records reflected that Francisco “had

a normal gait” and “normal alignment of his shoulders, elbows, and wrists” and “was able to

perform normal activities with his gait and manipulation of articles of clothing, he had full ranges

of motion.” Ud. at 1093-94 (citing Exs. 6F/1, 22).) Recounting Francisco’s treatment history,

Judge Damille observed that he “treated with multiple modalities including medication, physical

therapy, surgery, and injections with some relief from his symptoms.” (/d. at 1094 (citing Exs.

8F, 13F, 16F, 21F).)

Judge Damille’s RFC analysis likewise examined the decisions of Francisco’s treating

and consulting physicians in depth. Judge Damille cited the findings of state medical consultants,

who described Francisco as capable of “a range of light work with never climbing on ladders,

ropes, or scaffolds” or “reach[ing] right overhead.” Ud. at 1095 (citing Exs. 1A, 4A).) Judge

Damille assigned partial weight to the opinion of Dr. Shawn Sieler that Francisco could “perform

light to medium category work of up to 35 pounds” with limitations on reaching up. (AR at 1095

(citing Ex. 14F/3-5)) and the opinion of Dr. Steven Reich that Francisco could “perform light to

medium work” of “occasional lifting and work up to 35 pounds ... with precautions on right

upper extremity activities.” (Id. at 1095 (citing Ex. 14F/1).) Judge Damille explained why he only

partially credited each opinion, which medical evidence undermined the physicians’ opinions,

and which physical limitations justified his RFC determination. (/d. at 1095.)

Il. LEGAL STANDARD

A. STANDARD OF REVIEW

On appeal from the final decision of the Commissioner, a district court “shall have power

to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or

reversing the decision of the Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g); Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001)

(“If the Appeals Council denies the request for review, the ALJ’s decision is the Commissioner’s

final decision.” (citation omitted)). To survive judicial review, the Commissioner’s decision must

be supported by substantial evidence. Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consol. Edison

Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938)). It is “more than a mere scintilla but

may be somewhat less than a preponderance of the evidence.” Rutherford v. Barnhart, 399 F.3d

546, 552 (3d Cir. 2005) (citation omitted).

In reviewing the record for substantial evidence, the court “may not ‘weigh the evidence

or substitute [its own] conclusions for those of the fact-finder.’” Jd. at 552 (quoting Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992)). Even if the court would have decided differently,

it is bound by the ALJ’s decision if it is supported by substantial evidence. Fargnoli y.

Massanari, 247 F.3d 34, 38 (3d Cir. 2001). The court must “review the record as a whole to

determine whether substantial evidence supports a factual finding.” Zirnsak v. Colvin, 777 F.3d

607, 610 (3d Cir. 2014) (citing Schaudeck v. Comm’ r of Soc. Sec. Admin., 181 F.3d 429, 431

(3d Cir. 1999)). “Since it is apparent that the ALJ cannot reject evidence for no reason or for the

wrong reason, an explanation from the ALJ of the reason why probative evidence has been

rejected is required so that a reviewing court can determine whether the reasons for rejection

were improper.” Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981) (citation omitted).

B. ESTABLISHING ELIGIBILITY FOR DISABILITY INSURANCE BENEFITS

To be eligible for disability insurance benefits, a claimant must be unable to “engage in

any substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be expected to

last for a continuous period of not less than [twelve] months.” 42 U.S.C. § 423(d)(1)(A). A

claimant is disabled only if their physical or mental impairments are “of such severity that he is

not only unable to do his previous work but cannot, considering his age, education, and work

experience, engage in any other kind of substantial gainful work which exists in the national

economy.” Jd. § 423(d)(2)(A). A physical or mental impairment is one “that results from

anatomical, physiological, or psychological abnormalities which are demonstrable by medically

acceptable clinical and laboratory diagnostic techniques.” Jd. § 423(d)(3).

Administration regulations provide a five-step evaluation procedure to determine whether

an individual is disabled. See 20 C.F.R. § 404.1520(a)(4). At Step One, a claimant must establish

that they have not engaged in any substantial gainful activity since the onset of their alleged

disabilities. Id. § 404.1520(a)(4)(i). For Step Two, the claimant must establish that they suffer

from a “severe .. . impairment” or “combination of impairments.” Id. § 404.1520(a)(4)(h). Step

Three requires that a claimant provide evidence that their impairments are equal to at least one

of the impairments listed in Appendix 1 of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If a

claimant demonstrates that they suffer from a listed impairment or that their severe impairment

is equal to a listed impairment, they are presumed to be disabled and entitled to disability

insurance benefits. Id. If they cannot so demonstrate, the eligibility analysis proceeds to the next

step. As a precursor to Step Four, the ALJ must determine whether the claimant’s RFC permit

them to resume previous employment. Jd. § 404.1520(a)(4)(iv). If a claimant’s RFC permits

previous employment, the claimants is not “disabled” and not entitled to disability insurance

benefits. Jd. § 404.1520). The burden of persuasion rests with claimants in the first four steps.

Malloy v. Comm'’r of Soc. Sec., 306 F. App’x 761, 763 (3d Cir. 2009) (non-precedential). At Step

Five, the burden shifts to the Commissioner to demonstrate that the claimant can perform other

work consistent with their medical impairments, age, education, past work experience, and RFC.

Id. Jf the Commissioner cannot satisfy this burden, the claimant will receive disability insurance

benefits. 20 C.F.R. § 404.1520(g).

Ur. DISCUSSION

Francisco appeals the Administration’s Appeals Council’s affirmance of Judge Damille’s

decision. He argues that Judge Damille committed legal error by failing to adequately explain his

reasoning in making his Step Three and RFC determinations.

A. STEP THREE — IMPAIRMENT

Francisco agrees with Judge Damille that none of his impairments on their own are severe

enough to meet the severity of any of the regulation’s listed impairments. (ECF No. 11 at 12

[T]he ALJ adequately considered individual impairments against their designated listings.”

Francisco argues in a footnote that Judge Damille’s Step Two finding that Francisco’s Insulin-dependent

diabetes was not a “severe impairment” ran afoul of the Commissioner’s controlling ruling governing the

consideration of diabetes. (ECF No. 11 at 12 n.2 (citing AR at 1090).) Even assuming this constituted legal

error, it is harmless because Judge Damille found multiple other severe impairments and proceeded to Step

Three. See Salles v. Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (non-precedential)

(“Because the ALJ found in [claimant’s] favor at Step Two, even if he had erroneously concluded that some

of [his] other impairments were non-severe, any error was harmless.” (citing Rutherford, 399 F.3d at 553));

Theresa S. vy. Kijakazi, No. 21-19997, 2022 WL 17959581, at *12—13 (D.N.J. Dec. 27, 2022) (“[E]ven if

the ALJ’s determination that [claimant’s] diabetes is not severe was in error, it would be a harmless error

because the ALJ did not decide against [claimant] at Step 2.”).

(emphasis in original)).) His sole contention on appeal regarding Judge Damille’s Step Three

analysis is that Judge Damille ignored Judge Shipp’s prior instruction on remand for the ALJ to

consider whether Francisco’s impairments in combination met any listing. Ud. at 12-13 (“But

when the decision turns to the Court-ordered consideration of all severe impairments in

combination, it defies the remand order by issuing a templated, evidence-free solitary and

singular conclusory statement... .”).)

At the outset, the Court does not agree that Francisco properly defines the scope of this

Court’s review. A remand order “terminate[s] the civil action challenging the Secretary’s final

determination that [the claimant] was not entitled to benefits.” Sudlivan v. Finkelstein, 496 U.S.

617, 624-25 (1990). “[E]ach final decision of the Secretary [is] reviewable by a separate piece

of litigation.” Jd. Thus, although prior orders to the ALJ are relevant, the Court’s review is not

limited to determining whether the ALJ complied with the previous remand order. Rather, the

Court reviews the “final decision of the Commissioner of Social Security,” 42 U.S.C. § 405(g)

(emphasis added), and determines for itself whether the ALJ’s findings of fact are supported by

substantial evidence, Morales, 225 F.3d at 316 (3d Cir. 2000) (holding that a reviewing court is

“bound to the Commissioner’s findings of fact if they are supported by substantial evidence in

the record”); see also Correa v. Comm’r of Soc. Sec., No. 20-00367, 2022 WL 17622967, at *6

(D.N.J. Dec. 13, 2022) (“[O]ur review does not hinge on whether the ALJ arrived at an RFC

determination different than the initial decision, rather, as discussed below, this Court must

evaluate whether the ALJ based her RFC determination on substantial evidence.”).

On review of Judge Damille’s decision and the record, the Court finds that substantial

evidence supports Judge Damille’s Step Three determination, including his conclusion that none

of Francisco’s impairments in combination met any listing. As noted above, Francisco agrees that

none of his impairments are alone severe enough to meet any listing. (ECF No. 11 at 12.) Indeed,

the Court concludes that substantial evidence supports Judge Damille’s determination that Listing

1.15, 1.18, and 11.14 were not met. (AR at 1091-92.) With respect to considering the impairments

in combination, Judge Damille noted at the outset his instruction on remand: “The District Court

remanded the case for further analysis regarding the combined effects of the claimant’s

impairments at Step 3.” Ud. at 1087.) After spelling out in five paragraphs his analysis of why

Francisco’s impairments did not meet the requirements for Listing 1.15, 1.18 or 11.14, Judge

Damille concluded that he “considered the totality of the claimant’s impairments” and found that

“the record does not establish the medical signs, symptoms, laboratory findings or degree of

functional limitation required to meet or equal the criteria of any listed impairment.” (/d. at 1092.)

Furthermore, “no acceptable medical source designated to make equivalency findings has

concluded that the claimant’s impairments medically equal a listed impairment.” (id)

Specifically, Judge Damille stated: “I considered all of the claimant’s severe and non-severe

impairments in determining the claimant’s residual functional capacity, and appropriate

exertional, postural, reach, environmental, and mental limitations have been included to address

the claimant’s severe and non-severe impairments.” (/d. at 1090.)

The Court finds that Judge Damille’s decision provides sufficient information to provide

meaningful review. An ALJ’s step three analysis need not use “particular language or adhere to

particular form,” but must only provide a “sufficient development of the record and explanation

of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (d Cir. 2004).

“[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.” Ochs vy. Comm’r of Soc.

Sec., 187 F. App’x 186, 189 (3d Cir. 2006) (non-precedential) (quoting Cotter, 650 F.2d at 482)

tn

(affirming non-disability finding in which ALJ did not identify the specific listing considered at

Step Three). Thus, between Judge Damille’s in-depth explanation of each listing he considered,

the evidence he considered with respect to each listing, and his recognition of his task on remand

and clear consideration of the impairments in combination, substantial evidence supports his

conclusion.

Furthermore, assuming arguendo Francisco’s contention that Judge Damille committed

legal error, either by ignoring Judge Shipp’s remand order, see Correa, No. 2022 WL 17622967,

at *5, or by failing to consider whether a combination of Francisco’s impairments was severe

enough to meet any Listing, Francisco has not carried his burden to establish that the error is

harmful. An ALJ’s determination at Step Three is subject to ordinary harmless error review, under

which the claimant “bears the burden to demonstrate harm.” Holloman v. Comm’r Soc. Sec.,

639 F. App’x 810, 814—15 Gd Cir. 2016) (non-precedential). The plaintiff must therefore explain

“Show the... error to which he points could have made any difference.’” Jd. As the Third Circuit

summarized in a non-precedential opinion affirming an ALJ’s finding of non-disability:

[Claimant] repeatedly states that his circumstances were not

compared to the listings. But he never explains how, even if the

ALJ’s analysis was lacking, the deficiency was harmful to his

claims. [Claimant] only says in very vague terms that an actual

discussion of his impairments would lead to the conclusion that he

was disabled at step three. This is unconvincing. [Claimant]has not

affirmatively pointed to specific evidence that demonstrates he

should succeed at step three. In other words, any error would be

harmless.

Woodson v. Comm’r Soc. Sec., 661 F. App’x 762, 766 (3d Cir. 2016) (non-precedential) (citations

omitted); see also Rivera v. Comm’r, 164 F. App’x 260, 263 (3d Cir. 2006) (non-precedential)

(affirming an ALJ’s conclusory Step Three analysis because the error was “harmless’”’).

Francisco’s brief offers neither argument nor evidence that suggest what combination of

11

Francisco’s disabilities would have allowed Judge Damille to find in Francisco’s favor at Step

Three. Francisco’s five-paged argument on the alleged legal error at Step Three focuses solely on

what Judge Damille did not do, namely that he allegedly did not discuss in depth whether any

combination of impairments met the Listings. (ECF No. 11 at 9-14.) Francisco fails to marshal

the record or legal citations necessary to show the Court that one of the listings could have been

met accepting the argument that Judge Damille failed to consider Francisco’s disabilities in

combination. Therefore, even if the Court were to find that the ALJ committed legal error at Step

Three, it would be unable to find that any harm flows from the error. See Lopez v. Comm’r of

Soe. Sec., No. 17-8461, 2020 WL 3118748, at *2 (D.N.J. June 12, 2020) (“[E]ven if Plaintiff

succeeded in persuading that the ALJ erred at step three, Plaintiff also bears the burden of

showing that this error was harmful, and Plaintiff has not done so.” (citing Shinseki v. Sanders,

556 U.S. 396, 409 (2009))).

B. STEP FOUR — RFC DETERMINATION

Francisco’s second argument is that Judge Damille’s RFC determination was issued “in

an evidentiary vacuum” without “expla[nation of] the rationale upon which each or any of its

particular findings is or are predicated.” (ECF No. 11 at 20.) Francisco poses a series of questions

he contends Judge Damille does not answer. (/d. at 22-23.) Francisco argues that the RFC

determination lacked a “function-by-function analysis making factual findings regarding sitting,

standing, walking, lifting and carrying and offering a rationale for these findings.” (/d. at 23.)

The Court “examine[s] the ALJ’s conclusions as to a claimant’s RFC with ‘the deference

required of the substantial evidence standard of review.’” Martin v. Comm’r of Soc. Sec.,

547 F. App’x 153, 160 (3d Cir. 2013) (non-precedential) (quoting Burns v. Barnhart, 312 F.3d

113, 129 (3d Cir. 2002)). The Court finds that substantial evidence supports each component of

44

Judge Damille’s RFC decision. The determination that Francisco could perform “light work as

defined in 20 C.F.R. § 404.1567(b) except the claimant is limited to occasional pushing and

pulling with the upper extremities” (AR at 1092) is supported by the findings of Dr. Sieler that

Francisco could “perform light to medium category work of up to 35 pounds” (id. at 1095 (citing

Ex. 14F/3-5)) and Dr. Reich that Francisco could “perform light to medium work” (id. at 1095

(citing Ex. 14F/1)). The determination that Francisco could “never reach overhead with the upper

extremities” (7d. at 1092) finds support in medical determinations that Francisco had “right

shoulder injury” and recommendation “that his work height for his right upper extremity be

limited to shoulder level and below” (7d. at 1095 (citing Ex. 14F/1).) The determination that

Francisco could “frequently handle with the hands but occasionally finger with the right hand”

(id. at 1092) is buoyed by findings that Francisco had a “history of right trigger finger release”

and that he had “some pain and weakness and range of motion deficits” (id. at 1095 (citing Exs.

14F/6-14, 25F).)

In short, each capability and limitation described in Judge Damille’s RFC determination

was adequately supported by substantial evidence included in the record and considered by Judge

Damille and set forth in his extensive RFC discussion.

Francisco does not explain how he believes the RFC falsely represents his capabilities or

how the alleged error was harmful. “[I]n order for an error to be harmful, the attacking party must

affirmatively identify evidence that the impairment imposes additional limitations on his or her

functional capabilities.” Gullace v. Colvin, No. 15-7630, 2017 WL 714356, at *10 (D.N.J. Feb.

23, 2017). This requirement applies with equal force when a plaintiff challenges the ALJ’s RFC

determination. See, e.g., Stibgen v. Comm’r of Soc. Sec., No. 20-568, 2021 WL 457886, at *3

(D.N.J. Feb. 9, 2021) (finding that plaintiff failed to establish what harm resulted from the ALJ’s

14

alleged error because she “largely only repeats the medical evidence that she believes best

supports her case” and “argues globally that the evidence of record does not support the RFC

determination”); Nova v. Comm’r of Soc. Sec., No. 15-7728, 2017 WL 1365005, at *9 (D.N.J.

Apr. 10, 2017) (“Plaintiff does not explain why her obesity should have resulted in a different

RFC; Plaintiff simply states that the ALJ failed to consider it—a contention that, in any event, is

refuted by a plain reading of the ALJ’s decision.”).

Francisco argues that the ALJ “may not disregard an otherwise credible medical opinion

based solely on the ALJ’s own ‘amorphous impressions’” (ECF No. 11 at 18 (quoting Morales,

225 F.3d at 318)), but nowhere identifies the “credible medical opinion” Judge Damille

supposedly disregarded. Francisco asks a series of hypothetical questions at this Step which he

contends Judge Damille’s decision should have answered (ECF No. 11 at 22-23), but he fails to

point to any evidence on the record that would explain what he believes the proper RFC

determination would be.*

* Francisco even argues that the Court should “reverse and award benefits rather than remand for a new

hearing” because here “disability is clearly established.” (ECF No. 11 at 25.) However, a reviewing court

should only award benefits rather than remand a case “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 y. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984). Because

Francisco discusses no medical evidence and cites no portions of the record demonstrating his disability,

the Court has no way to make that conclusion for itself, short of conducting an independent review of the

twelve-hundred-paged Administrative Record.

1A

IV. CONCLUSION

Having reviewed the record as a whole, the Court affirms the affirmance of Judge

Damille’s decision by the Administration’s Appeals Council. The Court issues an order consistent

with this Memorandum Opinion.

OS Lo

ROBERT KIRSCH —

UNITED STATES DISTRICT JUDGE

Dated: July 31, 2023