DELPIZZO v. COMMISSIONER OF SOCIAL SECURITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NANCY D.,

Plaintiff, Civil Action No. 22-05084 (GC)

V.

OPINION

KILOLO KIJAKAZI, ACTING

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

CASTNER, District Judge

THIS MATTER comes before the Court upon Nancy D.’s! (“Plaintiff”) appeal from the

final decision of the Commissioner of the Social Security Administration (“Defendant” or the

“Commissioner”), denying Plaintiff's application for disability insurance benefits under Title IL of

the Social Security Act, 42 U.S.C. § 423, et seq, and supplemental security income (“SSI”) benefits

under Title XVI of the Social Security Act’, 42 U.S.C. §§ 1381 to 1383f.3 The Court has

The Court identifies Plaintiff by first name and last initial pursuant to D.N.J. Standing

Order 2021-10.

2 “Supplemental security income is a federal income supplement program funded by general

tax revenues (not social security taxes). It is designed to help aged, blind and disabled individuals

who have little or no income. Insured status is irrelevant in determining a claimant's eligibility for

supplemental security income benefits.” Oldenburgh v. Astrue, Civ. No. 08-1671, 2009 WL

812010, at *1 (M.D. Pa. Mar. 26, 2009).

“The standard for determining whether a claimant is disabled is the same for both DIB and

SSL” Searles v. Comm’r of Soc. Sec., Civ. No. 18-15804, 2019 WL 6337890, at *1 n.3 (D.N.J.

Nov. 27, 2019) (citing Rutherford v. Barnhart, 399 F.3d 546, 551 n.1 (3d Cir. 2005)).

jurisdiction to review this matter pursuant to 42 U.S.C. § 405(g) and reaches its decision without

oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b).

For the reasons set forth below, and other good cause shown, the Court AFFIRMS the

Commissioner’s decision.

I. BACKGROUND

A. PROCEDURAL HISTORY

Plaintiff applied for disability insurance benefits and supplemental social security income

on December 5, 2019, alleging an onset date of November 1, 2018. (Administrative Record

(“AR”) 15%).

Plaintiff's claim was initially denied on August 21, 2020, and again upon reconsideration

on October 5, 2020. Ud.) The Administrative Law Judge (“ALJ”) conducted an Administrative

Hearing (the “Hearing”) on March 29, 2021, following which the ALJ issued a decision on

September 13, 2021, finding that Plaintiff was not disabled. (/d. at 15-33.) The Appeals Council

denied Plaintiff's request for review on July 6, 2022. (/d. at 1-3.)

On August 17, 2022, Plaintiff filed this appeal in the United States District Court for the

District of New Jersey. (See ECF No. 1.) The Commissioner filed the Administrative Record on

October 14, 2022. (See ECF No. 3.) Plaintiff filed her moving brief on January 25, 2023, pursuant

to Local Civil Rule 9.1. (See ECF No. 12.) The Commissioner filed opposition on February 27,

2023 (see ECF No. 13), and on February 20, 2023, Plaintiff filed her reply (see ECF No. 14).

The Administrative Record (“Record” or “AR”) is available at ECF No. 3-1 through 3-11.

Citations to the Record will reference only page numbers in the Record without the corresponding

ECF numbers. However, page numbers for brief cites (z.e., “ECF Nos.”’) refer to the page numbers

stamped by the Court’s e-filing system and not the internal pagination of the parties.

B. THE ALJ’S DECISION

On September 13, 2021, the ALJ issued his decision finding that Plaintiff is not disabled.

at 15-33.) The ALJ set forth the Social Security Administration’s (“SSA”) five-step sequential

process for determining whether an individual is disabled. (/d. at 16-17.) The ALJ found that

Plaintiff met the insured status requirements under the Social Security Act through December 31,

2018. Cd. at 18.)

At step one of the analysis, the ALJ found that Plaintiff had not engaged in substantial

gainful activity” since November 1, 2018, the alleged disability onset date. (Id.)

At step two, the ALJ found that Plaintiff had the following severe impairments: rheumatoid

arthritis, fibromyalgia, degenerative disc disease, degenerative joint disease, and chronic

obstructive pulmonary disease. (/d.) The ALJ found that the Record indicated several other non-

severe impairments such as: stroke/cerebrovascular accident (CVA), hypertension,

hypercholesterolemia, irritable bowel syndrome, status post-carpal tunnel surgery,

concussion/closed head injury, migraine/headache, parotid mass/nodule, “overweight” status, and

decreased visual acuity. (/d. at 19.)

At step three, the ALJ determined, after a comprehensive examination of Plaintiff's

medical conditions, that none of Plaintiff's impairments, or combination of impairments, met or

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

Appendix 1 (hereinafter, “Appendix 1”). (/d. at 24.)

5 “Substantial gainful activity is work activity that is both substantial and gainful.” 20 C.F.R.

404.1572, 416.927. Substantial work activity “involves doing significant physical or mental

activities. [A claimant’s] work may be substantial even if it is done on a part-time basis or if [she]

do[es] less, get[s] paid less, or ha[s] less responsibility than when [she] worked before.” Jd. §§

(a). “Gainful work activity is work activity that the claimant do[es] for pay or profit. Work activity

is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.”

Id. (b).

At step four, the ALJ next found that Plaintiff possessed the residual functional capacity

(“RFC”) to perform sedentary work with detailed limitations.® (Jd. at 25.)

Finally, at step five, the ALJ found Plaintiff capable of performing past relevant work as a

loan officer. (Ud. at 32.) The ALJ, accordingly, found that Plaintiff had not been disabled from

November 1, 2018, through the date of the decision. (/d. at 33.)

I. LEGAL STANDARD

A. DISABILITY DETERMINATION

An individual is “disabled” and, therefore, eligible for disability insurance benefits if he or

she is 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), 1382c(a)(3)(A). The individual’s impairment must be severe to the point that the

individual cannot engage in his previous work or in “any other kind of substantial gainful work

which exists in the national economy,” i.e., work that exists in significant numbers either in the

region where such individual lives or in several regions of the country. 42 U.S.C. §§ 423(d)(2)(A),

1382(a)(3)(B); Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir. 1999). 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.”

42 U.S.C. 8§ 423(d)(3), 1382c(a)(3)(D).

The ALJ stated that Plaintiff could perform sedentary work with the exception of

“occasional climbing, balancing, stooping, kneeling, crouching, and crawling; frequent reaching,

handling, fingering, and feeling; and frequent exposure to extreme cold and heat, wetness and

humidity, dust, fumes, odors, and pulmonary irritants, and hazards such as unprotected heights and

moving machinery.” (AR 25.)

The Commissioner employs a five-step sequential evaluation process for social security

claims. See 20 C.E.R. §§ 416.920, 404.1520(a)(4). The claimant bears the burden of proof for the

first four steps of the analysis, and the burden shifts to the Commissioner of the SSA for the fifth

step. Poulos vy. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007); Jones v. Barnhart, 364

F.3d 501, 503 Gd Cir. 2004).

First, a claimant must not have engaged in substantial gainful activity since the alleged

disability onset date. 20 C.E.R. §§ 404.1520(a)(4)G) & (b), 416.920(4)@) & (b).

Second, the Commissioner considers “the medical severity of [the claimant’s]

impairment(s).” Id. §§ 404.1520(a)(4) Gi), 416.920(a)(4)(ii). The claimant must have a “medically

determinable impairment” or combination of impairments severe enough to limit the claimant’s

ability to perform basic work activities for a continuous period of at least twelve months. Id.; id.

at § 404.1509; § 416.909. The claimant bears the burden of establishing the first two requirements,

and failure to satisfy either of the first two requirements automatically results in denial of benefits.

Bowen v. Yuckert, 482 U.S. 137, 146-47 n.5 (1987). If the claimant satisfies her burden at steps

one and two, she proceeds to the third step.

Three, the Commissioner considers the “medical severity of [the claimant’s]

impairment(s).” Jd. §§ 404.1520(a)(4)(ii), 416.920(a)(4)Gii). The impairment or impairments

must meet or equal a listing in Appendix 1 of CER. Part 404, Subpart P. Id. §§ 404.1520(d),

416.920(d). The impairment or impairments are “medically equivalent to a listed impairment □□ . if

[they are] at least equal in severity and duration to the criteria of any listed impairment.” Jd.

§§ 404.1526(a), 416.926(a). If the claimant is able to make a sufficient showing at step three, she

is deemed disabled. Id. §§ 404.1520(a)(iii), 416.909(a) (iii).

Fourth, if the claimant fails to make a sufficient showing at the third step, the analysis

proceeds to an evaluation of the claimant’s RFC and past relevant work at the fourth step. Jd. §§

404.1520(a)(4)(iv), 416.920(a)(4)(iv). RFC is the most the claimant can do in a work setting

despite her limitations. /d. §§ 404.1545(a)(1), 416.945(a)(1). The Commissioner “assess[es] [the

claimant’s RFC] based on all the relevant evidence in [his] case record,” and “‘consider[s] all of

[the claimant’s] medically determinable impairments,” including ones that are not “severe”

pursuant to §§ 404.1520(c), [416.920(c),] 404.1521, [416.921,] 404.1523], and 416.923]. Id. §§

404.1545(a)(2), 416.945(a)(2). Past relevant work is “work that [the claimant] ha[s] done within

the past 15 years, that was substantial gainful activity, and that lasted long enough for [the

claimant] to learn to do it.” Jd. §§ 404.1560(b)(1), 416.960(b)(1). “The claimant bears the burden

of demonstrating an inability to return to [her] past relevant work.” Plummer, 186 F.3d at 428

(citing Adorno y. Shalala, 40 F.3d 43, 46 (3d Cir. 1994)). If the claimant is incapable of performing

her past relevant work, the analysis proceeds to the fifth and final step. See id.

§ 404.1520(a)(4)iv)-(v); § 416.920(a)(4)(iv)-(v) Plummer, 186 F.3d at 428.

Fifth, and finally, the claimant must be unable to adjust to other work in light of her RFC,

age, education, and work experience to be considered disabled. See id. §§ 404.1520(a)(4)(v) &

(g), 416.920(a)(4)(v) & (g). Before denying a claim at step five, the Commissioner must show

that the claimant is capable of other work existing “in significant numbers in the national

economy.” Jd. §§ 404.1560(c)(2), 416.960(c)(2); see also Poulos, 474 F.3d at 92.

B. STANDARD OF REVIEW

District courts may “affirm[], modify[], or revers[e] the decision of the Commissioner of

Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). In

reviewing the decision, the court determines whether the ALJ’s findings are supported by

substantial evidence. See id.; see also Poulos, 474 F.3d at 91. Substantial evidence is ‘“‘such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Reefer

v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)). “It consists of more than a mere scintilla of evidence but may be somewhat less than a

preponderance of the evidence.” Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971)

(internal quotation marks and citation omitted).

The district court is not “empowered to weigh the evidence or substitute its conclusions for

those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). Thus, this

limitation on a reviewing court’s discretion applies “even if [it] would have decided the factual

inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). 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, 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) (internal citation omitted).

il. DISCUSSION

Based on the Court’s review of the ALJ’s decision (see AR 15-33), and the Administrative

Record submitted by the Commissioner (see generally AR), the Court finds good cause to affirm

the Commissioner’s decision. In reaching a decision, an ALJ must evaluate the evidence and

explain the reasons for accepting or rejecting evidence. Cotter, 642 F.2d at 706. Here, the ALJ

provided sufficient reasoning for the Court to determine that his findings are supported by

substantial evidence.

In support of her appeal, Plaintiff advances three principal arguments why the ALJ’s

decision should be reversed: (1) “the ALJ failed to provide a proper assessment of the plaintiff's

residual functional capacity” (see ECF No. 12 at 22-35); (2) “the ALJ failed to properly evaluate

the evidence of record” (see id. at 35-43); and “the ALJ’s Step 4 finding is unsupported by

substantial evidence” (see id. at 43-45). The Court will address these arguments in turn.

A. PLAINTIFE’S RESIDUAL FUNCTIONAL CAPACITY

1. FIBROMYALGIA

Plaintiff argues that the ALJ’s RFC was improper because the ALJ did not include any

limitations from Plaintiffs fibromyalgia impairment in the RFC, even though he found it was a

severe impairment.’ (Id. at 27.)

Plaintiff must demonstrate the existence of a medically determinable impairment, however,

by objective medical evidence. A medically determinable impairment “result[s] from anatomical,

physiological, or psychological abnormalities that can be shown by medically acceptable clinical

and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). “Objective

medical evidence means signs, laboratory findings, or both.” 20 C.F.R. § 404.1502(f); §

416.902(k).

At step two, the ALJ indicated that Plaintiffs fibromyalgia was a severe impairment. (AR

18.) At step three, the ALJ found that fibromyalgia is not a listed impairment. (Ud. at 25.) Since

it is not a listed impairment, the ALJ was required to evaluate whether fibromyalgia was medically

equal to a listed impairment, or whether the fibromyalgia in combination with another medically

An impairment is severe if “it significantly limits an individual’s physical or mental

abilities to do basic work activities.” (20 C.F.R. § 404.1529(c); § 416.929(c)).

determinable impairment equaled a listed impairment.2 20 C.E.R. § 404.1526(a); § 416.926(a).

The ALJ did so. To start, the ALJ noted Plaintiff’ s fibromyalgia-related complaints in the decision.

(AR 25.) For instance, Plaintiff claimed she had constant pain and that “her brain feels like it is

not in her head, and she is confused with difficulties remembering things.” (/d. at 26.) The ALJ

found that:

the claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, the

claimant’s statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely consistent with

the medical evidence and other evidence in the record for the reasons

explained in this decision. Further, the claimant’s statements about

the intensity, persistence, and limiting effects of her symptoms are

inconsistent because they are not entirely consistent with the record,

for the reasons detailed at length below.

[Ud. at 26-27.)]

The ALJ found that Plaintiff's claims that her fibromyalgia was disabling to be inconsistent

with objective medical evidence contained in the record. The ALJ cited medical records from

Francky Merlin, M.D. (“Dr. Merlin”), a consultative examiner involved in this case, which

suggested that she was alert, oriented, and responsive; had normal strength and reflexes; her

grasping strength and manipulative functions were not impaired; and she had a normal gait, no

difficulty getting on or off the examination table, could squat, and flex her spine forward. (/d. at

949.) The ALJ further supported his finding that Plaintiff's fibromyalgia was not disabling with

8 SSR 12-2p provides guidance on fibromyalgia social security claims. Upon review of SSR

12-2p, the ALJ acted in accordance with this guidance. For instance, SSR 12-2p indicates that

fibromyalgia can be compared to inflammatory arthritis, which is considered an impairment under

listing 14.09. The ALJ compared Plaintiff's fibromyalgia and rheumatoid arthritis, singly, and in

combination, and found that it did not equal inflammatory arthritis under Listing 14.09 because

“the record does not reveal, at the level of severity contemplated by the listings, the requisite

ankylosing spondylitis, other spondyloarthropathies, a persistent inflammation or persistent

deformity, or at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise,

or involuntary weight loss.” (AR 25.)

additional objective medical records contained in the record. (See AR 28 citing (AR 372-73, 543,

548; 602, 608, 983).)

The ALJ also highlighted Plaintiff’s claims that she needed assistance with daily activities

as she is forgetful in part due to brain fog. (Id. at 29.) However, the ALJ cites contradictory record

evidence that Plaintiff is able to perform a wide variety of activities:

including performing personal care activities, doing chores (like

sweeping floors and doing laundry, albeit with her niece helping her

with “big cleaning weekly”), preparing meals (albeit with her son

helping), driving (albeit “locally”), making crafts (albeit, “is in

physical pain so it takes her a lot longer to make them’’) shopping in

stores and online with no assistance, spending time with friends in

person and via talking on the phone, participating in group texts with

her family, attending doctor’s appointments, and living with her

mother (who has “dementia”) and her son without reported

difficulty interacting with them.

[Ud. at 29-30 (citing AR 126).)]

Additionally, the ALJ also did not totally discredit Plaintiffs subjective symptoms. For instance,

the ALJ stated: “the undersigned accounted for the claimant’s subjective allegations (including,

but not limited to, pain) and potential medication side effects (such as fatigue/tiredness), as well

as for the waxing and waning of fibromyalgia symptoms, when making this assessment.” (Jd. at

30.)

Plaintiff's challenge to the ALJ’s RFC finding merely asks the Court to reweigh the

evidence. But as noted earlier, the Court is not “empowered to weigh the evidence or substitute

its conclusions for those of the fact-finder.” Williams, 970 F.2d at 1182. Moreover, “Talllegations

of pain and other subjective symptoms must be supported by objective medical evidence.”

Hartranft, 181 F.3d at 362 (affirming district court’s affirmation of the ALJ’s decision because the

ALJ’s finding that the plaintiffs “testimony about the extent of his pain was exaggerated” was

based on substantial evidence). Here, the ALJ cited objective medical evidence throughout the

record that contradicted Plaintiff’s allegations that her fibromyalgia was disabling. As noted

above, the ALJ also considered Plaintiff's fibromyalgia in determining Plaintiff's RFC. (AR 30

(stating that the ALJ included Plaintiffs subjective fibromyalgia complaints when making his RFC

assessment).) As such, the ALJ did not fail to provide a proper RFC assessment. Prokopick v.

Comm’r of Soc. Sec., 272. F. App’x 196, 199 (3d Cir. 2008) (“the ALJ considered [plaintiff s]

subjective complaints together with the entire record, including all of the medical reports, and

ultimately [found] that her condition was not severe enough to prevent her from performing certain

types of sedentary work.”)

2. OTHER IMPAIRMENTS

Plaintiff next argues that the ALJ failed to address Plaintiff's stroke/CVA, post-

concussion/closed head injury, irritable bowel syndrome and chronic diarrhea, and depression and

anxiety when performing Plaintiff's RFC assessment. (ECF No. 12 at 28-32.)

At step two, the ALJ is tasked with determining whether the claimant’s impairment or

impairments are considered severe or non-severe. 20 C.E.R. § 404.1520(c); § 416.920(c). As

noted earlier, the ALJ found that Plaintiffs rheumatoid arthritis, fibromyalgia, degenerative disc

disease, degenerative joint disease, and chronic obstructive pulmonary disease were all severe.

(AR 18.) To add, the ALJ found that Plaintiff's CVA, head injuries, irritable bowel syndrome,

and mental disorders were non-severe. (/d. at 19-24.)

As a threshold matter, when an ALI explicitly indicates that he has considered both severe

and non-severe impairments in combination with one another, there is no reason to disbelieve the

ALJ absent contradicting evidence. Morrison v. Comm’r of Soc. Sec., 268 F. App’x 186, 189 (3d

Cir. 2008) (noting that where the ALJ “explicitly indicated a number of times that he was

considering the impairments in combination . . . we see no reason to not believe him.”).

Additionally, “the ALJ is not required to repetitively analyze each symptom at each step; the

requirement is that the decision be subject to ‘meaningful review’ by a reviewing court.” Trzeciak

v. Colvin, Civ. No. 15-6333, 2016 WL 4769731, at *5 (D.N.J. Sept. 12, 2016).

Here, the ALJ methodically goes through each of Plaintiff’s non-severe impairments and

provides a rationale for each of these sub-findings. (See AR 18-24.) Regarding Plaintiff's CVA,

the ALJ notes that Plaintiff suffered an acute stroke/CVA in February 2020, which resulted in a

three-day emergency room visit. (/d. at 19.) The ALJ then notes how Plaintiff was discharged

in an improved/stable condition, and that the record did not reveal an ongoing treatment for the

stroke/CVA. (Id.) The ALJ also notes that Plaintiff suffered from a concussion in May 2019 when

she fell and hit her head with hedge clippers, which resulted in an emergency room visit. □□□□

The ALJ then adds that Plaintiff was discharged from the hospital the same day in improved/stable

condition, and that Plaintiff was not receiving ongoing treatment for her head injury. Ud.) The

ALJ further states that Plaintiff suffers from irritable bowel syndrome, but that her symptoms are

controlled. (/d. at 19,21.) The ALJ also includes that Plaintiff suffers from several mental

impairments, but these impairments did not cause more than a minimal limitation in her ability to

perform basic mental work functions. (d.) In making this finding as to Plaintiff's mental

impairments, the ALJ cited objective medical evidence indicating Plaintiff has not received

specialized treatment for her mental impairments, and mental status exam results that found “no

abnormal . . . findings.” (Ud. at 23.)

The ALJ also sufficiently discusses whether Plaintiff's impairments singly and in

combination met or equaled any of the listed impairments contained in federal regulations. (Jd. at

24-25.) At the end of the ALJ’s step two analysis, he states that “he reviewed and considered all

severe and non-severe impairments in formulating the residual functional capacity below, and,

where appropriate, the undersigned has included limitations to address the claimant’s non-severe

impairments and subjective complaints.” (Id. at 24.) Plaintiff fails to cite contradictory evidence

that would support a finding that the ALJ did not consider all-severe and non-severe impairments

in conjunction with one another when determining Plaintiff's RFC. See Morrison, 268 F. App’x

at 189. As indicated above, the ALJ was not required to “repetitively analyze each symptom at

each step.” Trzeciak, 2016 WL 4769731, at *5. Instead, the ALJ is required to provide sufficient

information in his decision to allow the reviewing court to perform a “meaningful review.” Id.

The ALJ did so by detailing his findings as to each of Plaintiffs impairments with citations to the

record evidence. (AR 18-24.) The ALJ then considered each impairment singly and in

combination with another to determine if they met or equaled a listing. (Id. at 24-25.) Finally,

the ALJ incorporated all symptoms into his RFC “to the extent ... [the] symptoms can reasonably

be accepted as consistent with objective medical evidence” including the symptoms caused by

Plaintiff’s stroke/CVA, post-concussion/closed head injury, irritable bowel syndrome and chronic

diarrhea, and depression and anxiety. (Id. at 25.)

As such, the ALJ’s RFC assessment was not erroneous.

3. MENTAL IMPAIRMENTS

Next, Plaintiff takes issue with the ALJ’s findings that Plaintiff's anxiety “does not cause

more than minimal limitation in the claimant’s ability to perform basic mental work activities and

is therefore non-severe.” (AR 22.)

The ALJ is instructed to use the “special technique” designed for the evaluation of mental

impairments, outlined in the regulations, to first determine whether the claimant has a medically

determinable mental impairment. 20 C.F.R. §§404.1520a(b)(1), 416.920a(b)(1). To do this, the

ALJ must “evaluate [the claimant’s] pertinent symptoms, signs, and laboratory findings.” Id.

(citing 20 C.F.R. §§ 404.1521 & 416.921). If this evaluation shows that the claimant has a

medically determinable mental impairment, the ALJ must “specify the symptoms, signs, and

laboratory findings that substantiate the presence of the impairment(s) and document [the] findings

in accordance with paragraph (e) of this section,” see id., and “incorporate the pertinent findings

and conclusions based on the technique” into the written decision, see id. §§ (e)(4). “The decision

must show the significant history, including examination and laboratory findings, and the

functional limitations that were considered in reaching a conclusion about the severity of the

mental impairment(s)” and “must include a specific finding as to the degree of limitation in each

of the functional areas described in paragraph (c) of this section.” Id. According to paragraph (c),

there are “four broad functional areas in which [the ALJ] will rate the degree of [the claimant’s]

functional limitation: [uJnderstand, remember, or apply information, interact with others;

concentrate, persist, or maintain pace; and adapt or manage oneself.” Id. §§ (c)(3) (citing 12.00E

of the Listing of Impairments in Appendix 1).

The ALJ properly followed these steps. First, the ALJ notes that Plaintiff testified that she

“forgets questions in the middle of answering them... . that she is unable to pay attention or follow

a conversation ... that she has difficulties remembering things ... that she needs assistance with

daily activities . . . and that there is something going on in her brain.” (AR 23.) The ALJ then

noted how some of these symptoms were contradicted by evidence in the record. (d.) For

instance, the ALJ states:

However, the claimant also reported graduating from high school,

never being in special education, having no problems with attention

span, having no problems following directions, and having no

difficulties getting along with family, friends, neighbors, or the

public []. She additionally reported performing a wide variety of

activities, including performing personal care activities, doing

chores (like sweeping floors and doing laundry, albeit with her niece

helping her with “big cleaning weekly”), preparing meals (albeit

with her son helping), driving (albeit “locally”), making crafts

(albeit, “is in physical pain so it takes her a lot longer to make

them”), shopping in stores and online with no assistance, spending

time with friends in person and via talking on the phone,

participating in group texts with her family, attending doctor’s

appointments, and living with her mother (who has “dementia”) and

her son without reported difficulty interacting with them []. Further,

despite symptoms, the claimant performs the above-stated activities

without reported difficulty in planning these activities, avoiding

normal hazards while pursing these activities (like avoiding cars

while crossing a street) or dealing with changes (like a changed

appointment time or traffic pattern) [].”

[Ud.)]

The ALJ further noted that the record was devoid of any evidence indicating that Plaintiff received

any emergency mental health treatment, a psychiatric hospitalization, mental health treatment with

a specialist, or even mental health treatment at a free or community clinic. (/d.) Evidence in the

record such as mental status exams indicate that Plaintiff was “alert, fully oriented, cooperative,

“and/or not in any noted distress and having a normal or appropriate mood/affect, normal speech,

normal cognition, normal memory, good judgment, and/or no noted abnormal mental status exam

findings.” (Id.)

Based on the evidence in the record, the ALJ found that Plaintiff had a mild limitation in

understanding, remembering, or applying information; a mild limitation in interacting with others;

4 mild limitation in concentrating, persisting, or maintaining pace, and a mild limitation in a

adapting or managing oneself.’ (Id. at 22.)

After properly using the “special technique” designed for the evaluation of mental

impairments, the ALJ then applied his findings to the RFC assessment. (/d. at 24 (stating “the

? While the Court notes that Plaintiff was prescribed Cmybalta for her anxiety from a non-

mental health specialist, this does not contradict the ALJ’s findings that Plaintiff's anxiety was not

severe. See Walker v. Comm’r of Soc. Sec., 61 F. App’x 787, 789 (3d Cir. 2003) (noting that

medication alone is not enough to contradict an ALJ’s finding that a mental illness is not severe).

undersigned has reviewed and considered all severe and non-severe impairments in formulating

the residual functional capacity below”). In his RFC assessment, the ALJ did not include any

restrictions for Plaintiffs mental illness as the ALJ concluded that “[Plaintiff] is not as limited as

she alleged from a... mental health standpoint.” (/d. at 30.) The ALJ did not err by doing so. See

Smith v. Comm’r of Soc. Sec., Civ. No. 15-7525, 2016 WL 3912850, at *9 (D.N.J. July 19, 2016)

(Simandle, C.J.) (“The Court disagrees with Plaintiffs assertion that the ALJ failed to account for

Plaintiff's non-severe mental limitations in formulating her RFC. The ALJ clearly considered

Plaintiff’s depression at step four, but concluded that Plaintiff's symptoms did not significantly

limit her basic work activities.”). Since the ALJ provided substantial evidence as to why he found

Plaintiff only suffered mild mental limitations, the ALJ’s RFC assessment was not erroneous.

Correa v. Comm’r of Soc. Sec., Civ. No. 20-00367, 2022 WL 17622967, at *6 (D.N.J. Dec. 13,

2022) (finding the ALJ’s RFC assessment was not erroneous because it was based on substantial

evidence).

B. WEIGHT AFFORDED TO MEDICAL OPINIONS

Next, Plaintiff argues that the ALJ did not properly weigh the medical evidence of

rheumatologist, James Fischkoff, M.D. (“Dr. Fischkoff’) and Dr. Merlin.

Since Plaintiff's claim was filed after March 27, 2017, new medical opinion regulations

apply to this case. After March 27, 2017, a “medical opinion” is defined as “a statement from a

medical source about what you can still do despite your impairment(s) and whether you have one

or more impairment-related limitations or restrictions in the following abilities.’ Compare 20

CER. §§ 404.1513(a)(2), 416.920(a)(2) (listing the following categories of abilities: “ability to

perform physical demands of work activities,” id. §§ (a)(2)(i)(A); “ability to perform mental

demands of work activities,” id. §§ (a)(2)(ii); “ability to perform other demands of work,” id. §§

(a)(2)(iii); and “ability to adapt to environmental conditions,” id. §§ (a)(2)(iv)), with 20 C.F.R.

§§ 404.1527(a)(1), 416.927(a)(1) (defining “medical opinion” for applications filed prior to Mar.

27, 2017).

The “treating physician rule” or “treating source rule” originates from the prior regulatory

scheme, under which, if the ALJ found that “a treating source’s medical opinion on the issue(s) of

the nature and severity of [the claimant’ s] impairment(s) is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in [the] case record, [the ALJ] will give it controlling weight.” 20 C.E.R.

§§ 404.1527(c)(2), 416.927(c)(2). The new regulatory scheme instructs that the ALJ “will not

defer or give any specific evidentiary weight, including controlling weight, to any medical

opinion(s) or prior administrative finding(s), including those from [the claimant’s] medical

sources.” 20 C.F.R. §§ 404.1520c(a), 920c(a). “The most important factors [the ALJ will]

consider when [he] evaluates the persuasiveness of medical opinions and prior administrative

medical findings are supportability'® and consistency''.” Id. (citing id. §§ (€)(1)-(@)).

1. DR. FISCHKOFF

The ALJ found Dr. Fischkoff’s evidence to be “not persuasive” because

While Dr. Fischkoff is a treating specialist, his opinion consists of

conclusory statements on a checkbox-type form without an adequate

written explanation containing citation to objective evidence.

Further, while the claimant generally having exertional, postural,

and reaching/manipulative limitations is generally consistent with

10 In considering the “supportability” of a medical opinion, “[t]he more relevant the objective

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

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

opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1).

i “The more consistent a medical opinion(s) or prior administrative finding(s) is with the

evidence from other medical sources and nonmedical sources in the claim, the more persuasive the

medical opinion(s) or prior administrative filings will be.” 20 C.F.R. § 404.1520c(c)(2).

the record, and while the claimant having an occasional climbing

limitation is generally consistent with the record, the extent of

limitation suggested or otherwise suggested in this opinion is

inconsistent with the record. For example, despite the above-

detailed abnormal objective findings since the alleged onset date,

the record fails to document, since the alleged onset date, any noted

nerve root impingement or tearing upon diagnostic imaging study,

or exam findings of assistive device use, atrophy, pain behaviors

(such as shifting in a chair while seated, having to stand/walk after

sitting for a short period, having to sit after standing/walking for a

short period, having to lie down after sitting/standing/walking for a

short period, etc.), or any noted deficits in terms of alertness,

orientation, mental status, or motor function []. Therefore, in light

of the above, this opinion is not persuasive.

[(AR 31.)]

“A treating source’s opinion is not entitled to controlling weight if it is inconsistent with the other

substantial evidence in [the] case record.” Hubert v. Comm’r Soc. Sec., 746 F. App’x 151, 153

(3d Cir. 2018) (internal quotations and citation omitted). “In choosing to reject the treating

physician’s assessment, an ALJ may not make speculative inferences from medical reports and

may reject a treating physician’s opinion outright only on the basis of contradictory medical

evidence and not due to his or her own credibility judgments, speculation or lay opinion.” Deborah

P. v. Kijakazi, Civ. No. 20-12797, 2022 WL 1165698, at *6 (D.N.J. Apr. 19, 2022) (citation

omitted). Following this, the ALJ “may choose whom to credit but cannot reject evidence for no

reason or the wrong reason.” Sutherland v. Comm’r Soc. Sec., 785 F. App’x 921, 928 (3d Cir.

2019).

Here, substantial evidence supports the ALJ’s decision to deem Dr. Fischkoff’s evidence

“not persuasive.” Upon the Court’s review of Dr. Fischkoff’s questionnaire, his opinion is largely

checkbox type answers with conclusory statements. (AR 818.) Additionally, the ALJ also cites

contradictory evidence included in Dr. Fischkoff’s opinion. (Id. at 31.) For example, the ALJ

highlights that Dr. Fischkoff notes Plaintiff has exertional, postural, and reaching/manipulative

limitations, however, the ALJ states:

The record fails to document, since the alleged onset date, any noted

nerve root impingement or tearing upon diagnostic imaging study,

or exam findings of assistive device use, atrophy, pain behaviors

(such as shifting in a chair while seated, having to stand/walk after

sitting for a short period, having to sit after standing/walking for a

short period, having to lie down after sitting/standing/walking for a

short period, etc.), or any noted deficits in terms of alertness,

orientation, mental status, or motor function.

[(AR 31.)]

The ALJ discredits Dr. Fischkoff for a permissive reason and provides an adequate explanation;

Dr. Fischkoff’s opinion is contradicted by other evidence in the record. See Sutherland, 785 F.

App’x at 928; see also Brunson v. Comm’r of Soc. Sec., 704 F. App’x 56, 60 (3d Cir. 2017)

(affirming district court’s finding to give less weight to treating physician because it was

contradicted by other evidence in the record). As such, the ALJ did not err by finding Dr.

Fischkoff’s opinion “not persuasive.”

2. DR. MERLIN

Plaintiff also contends that the ALJ erred by not considering Dr. Merlin’s opinion when

assessing her RFC. This is factually inaccurate based on the record as the ALJ notes that while he

did consider Dr. Merlin’s report, Dr. Merlin did not prepare an opinion for the ALJ to analyze

when determining Plaintiffs RFC. (AR 31.) Indeed, the ALJ is correct. Upon the Court’s review

of Dr. Merlin’s notes, Dr. Merlin did provide a detailed report, but the report does not opine on

Plaintiff's work-related functional limitations. (See id. at 948-50.) While Dr. Merlin does include

some physical restrictions such as “she was able to flex spine forward 0-90 degrees and squat, but

she walks on her heels and toes with difficulty,” this does not constitute a medical opinion under

20 CER. § 404.1513(a)(2); § 416.913(a)(2). Pursuant 20 C.F.R. § 404.1513(a)(2) and §

416.913(a)(2), a medical opinion

is a statement from a medical source about what [a claimant] can

still do despite [her] impairment(s) and whether [the claimant has]

one or more impairment-related limitations or restrictions” in her

ability to perform the physical demands of work activities, such as

sitting, standing, walking, lifting, carrying, pushing, pulling, or

other physical functions (including manipulative or postural

functions); ability to perform mental demands of work activities,

such as understanding, remembering, maintaining concentration,

persistence, or pace, carrying out instructions, or responding

appropriately to supervision, co-workers, or work pressures in a

work setting; ability to perform other demands of work, such as

seeing, hearing, or using other senses; and ability to adapt to

environmental conditions.

(Jennifer B. v. Kijakazi, Civ. No. 20-20364, 2022 WL 577960, at

*10 (D.N.J. Feb. 25, 2022) (citing 20 C.F.R. § 404.1513(a)(2)).]

Dr. Merlin’s report lacks any such statements about Plaintiffs restrictions in work-related

activities as required by the regulations to constitute a medical opinion. See id. at 11 (noting that

an ALJ is not required to evaluate medical reports that are not considered “medical opinions” under

the relevant regulations). As a result, even though the ALJ evaluated Dr. Merlin’s report, he was

not required to do so. Id.

3. PasT RELEVANT WORK AS A LOAN OFFICER

Finally, Plaintiff argues that the ALJ erred at step four by concluding that Plaintiff could

return to her past relevant work (PRW) as a loan officer (DOT #186.267-018). (ECF No. 12 at 43

citing (AR 32).) Plaintiff takes issue with the ALJ concluding that Plaintiff could return to her

PRW because the ALJ provides “no specific findings or analysis regarding the physical and mental

demands of this work as required by SSR 82-62.” (Id.) Moreover, Plaintiff argues that the

Vocational Expert’s (VE) testimony that Plaintiffs PRW requires her to perform job duties outside

of the definition of a loan officer which means that her work is a composite job, and the ALJ was

required to perform a composite job analysis at step 4 and 5.'7 (Id. at 44-45.)

Defendant contests this argument and argues that the ALJ acted in accordance with SSA

regulations and guidelines because “the vocational expert testified that Plaintiff’s past relevant

work as a loan officer was not a composite job because although the DOT definition of the job

does not specifically state that a loan officer sell warranties and assist in the sales of motor vehicles,

these activities are generally part of the job.” (ECF No. 13 at 26-27 (citing AR 32).) Defendant

further argues in the alternative that “even if Plaintiffs past relevant work as a loan officer were a

composite job, the ALJ’s step four finding remains valid because the ALJ found that Plaintiff could

perform the loan officer job both as generally and as actually performed.” (Id. at 27 (citing AR

32).) During the Hearing, Plaintiff testified that she previously worked as a finance manager at an

automobile dealership. (AR 69-70.) In addition to her paperwork duties as a finance manager,

Plaintiff testified that she also sold “products,” participated in getting loans approved, and “stuff

like that.” (Id. at 69.) Plaintiff further testified that there was a sales component to her job, and

that she frequently worked deals and helped people get approved for loans, especially when a deal

was about to fall apart. (/d. at 70.) Plaintiff admitted that she did not receive commissions on any

sales and was only paid her salary as a finance manager. (/d.) Moreover, in one of Plaintiffs past

job as a supervisor, she also had supervisory powers such as hiring and firing people. (/d.)

V2 Pursuant Soc. Sec. Ruling 82-61, 1982 WL 31387, at *2, “composite jobs have significant

elements of two or more occupations and, as such, have no counterpart in the DOT.” Moreover,

according to the SSA Program Operations Manual System DI 25005.020, “[w]hen comparing the

claimant’s RFC to a composite job as the claimant performed it, [the ALJ can] find the claimant

capable of performing the composite job only if he or she can perform all parts of the job. A

composite job does not have a DOT counterpart, so [the ALJ should not] evaluate it at the part of

step 4 considering work “as generally performed in the national economy.”

The ALJ then consulted the Vocational Expert (VE), who testified that Plaintiff’s past work

as a “finance manager with an auto dealership comes under the heading of a loan officer [DOT

No. 186.267-018.” (id. at 78.) The VE then testified that a hypothetical individual with Plaintiff s

RFC could perform Plaintiff's PRW as described by the DOT and as specifically described by

Plaintiff. (/d. at 79.) Plaintiff’ s counsel then asked the VE “where in the definition for loan officer

is it found that the individual is responsible for selling warranties or assisting in the sales of motor

vehicles?” (Id. at 80.) The VE testified that “there’s nothing specifically in the definition for a

loan officer that says that they sell warranties, but they do, as part of a car dealership, generally do

that. So, anyone who is financing or doing the loans has responsibility for also upselling. That’s

just part of the job” and that he did not see Plaintiff’s past work as a composite job. (/d. at 80-81.)

However, the VE soon after admitted that there were aspects of Plaintiff's particular job hat fell

outside of the DOT definition for loan officer. (/d. at 81.)

The ALJ accepted the VE’s testimony because the VE’s testimony was consistent with “the

information contained in the DOT and that the [VE] expert was well qualified to testify as to Loan

Officer duties/responsibilities as part of a car dealership based on this expert’s professional

experience, education, and training.” (AR 32.)

“To qualify as a composite job, the job must contain substantial elements of two or more

occupations and lack any counterpart in the DOT.” Reed v. Berryhill, 337 F. Supp. 3d 525, 529

(E.D. Pa. 2018) (affirming the ALJ PRW assessment because Plaintiff “has not demonstrated his

past work included significant variations with main duties included in another DOT position.”)

Meaning, “the position must also involve additional main duties from another DOT position, rather

than merely excessive function with the job duties from one DOT position.” Giddings v. Berryhill,

Civ. No. 16-6060, 2018 WL 4252426, at *4 (E.D. Pa. Sept. 5, 2018) (citation and quotations

omitted).

Here, the ALJ provided a detailed justification as to why he relied on the VE’s testimony

that Plaintiff did not have a composite job — the “[VE] expert was well qualified to testify as to

Loan Officer duties/responsibilities as part of car dealership based on this expert’s professional

experience, education, and training.” (AR 32.) In so testifying, the VE stated: “there’s nothing

specifically in the definition for a loan officer that says that they sell warranties, but they do, as

part of a car dealership, generally do that. So, anyone who is financing or doing the loans has

responsibility for also upselling. That’s just part of the job.” (/d. at 80-81.) Additionally, upon

the Court’s review of the record, the Court is not aware of any evidence or testimony from Plaintiff

suggesting that the sales function of her job was a “main duty” of her role as finance supervisor.

See Reed, 337 F. Supp. 3d at 529 (finding that for a job to be composite, the position must involve

additional main duties from another DOT position); Giddings, 2018 WL 4252426, at *4 (same).!?

Following this, the ALJ’s PRW determination was based on substantial evidence. Peter R. v.

Comm’r of Soc. Sec., Civ. No. 22-05268, 2023 WL 4102891, at *5 (D.N.J. June 20, 2023) (finding

ALJ’s PRW was based on substantial evidence because the ALJ considered the VE’s and

claimant’s testimony when providing her PRW assessment).

18 The Court also notes that the VE told the ALJ that a hypothetical individual with Plaintiff’ s

RFC could perform Plaintiff's PRW as described by the DOT and as specifically described by

Plaintiff, which indicates that the ALJ accounted for the specific nuances of Plaintiffs prior work.

(AR 79) ((emphasis added).)

IV. CONCLUSION

For the foregoing reasons, and for good cause shown, the Commissioner’s decision to deny

Plaintiff benefits shall be AFFIRMED. An appropriate Order follows.

Dated: Septembertay , 2023 ORGEETE CASTNER

ited States District Judge

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