# DELPIZZO v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · September 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10655901

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** September 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10655901

## How later opinions describe it (automated extraction)

- noting that medication alone is not enough to contradict an ALJ’s finding that a mental illness is not severe
- affirming district court’s finding to give less weight to treating physician because it was contradicted by other evidence in the record
- 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.”
- finding that for a job to be composite, the position must involve additional main duties from another DOT position
- affirming the ALJ PRW assessment because Plaintiff “has not demonstrated his past work included significant variations with main duties included in another DOT position.”

## Opinion text

NOT FOR PUBLICATION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

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655901. Public record. Not legal advice.