# LEWIS v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · January 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10655911

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- stating that substantial evidence exists only “in relationship to all the other evidence in the record”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ADRIENNE L.,1

Plaintiff,
Case No. 1:21-cv-20492
v. Magistrate Judge Norah McCann King

MARTIN J. O’MALLEY,
Commissioner of Social Security,

Defendant.

OPINION AND ORDER

This matter comes before the Court pursuant to Section 205(g) of the Social Security Act,
as amended, 42 U.S.C. § 405(g), regarding the application of Plaintiff Adrienne L. for Disability
Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Plaintiff
appeals from the final decision of the Commissioner of Social Security denying that application.2
After careful consideration of the entire record, including the entire administrative record, the
Court decides this matter pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the
reasons that follow, the Court affirms the Commissioner’s decision.
I. PROCEDURAL HISTORY
On July 21, 2019, Plaintiff filed her application for benefits, alleging that she has been
disabled since June 30, 2019. R. 110, 122, 202–03. The application was denied initially and upon
reconsideration. R. 123–28, 134–36. Plaintiff sought a de novo hearing before an administrative

1 The Committee on Court Administration and Case Management of the Judicial Conference of
the United States has recommended that, due to significant privacy concerns in social security
cases, federal courts should refer to plaintiffs in such cases by only their first names and last
initials. See also D.N.J. Standing Order 2021-10.
2 Martin J. O’Malley, the Commissioner of Social Security, is substituted as Defendant in his
official capacity. See Fed. R. Civ. P. 25(d).
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law judge (“ALJ”). R. 137–38. ALJ John Campbell held a hearing on October 15, 2020, at which
Plaintiff, who was represented by counsel, testified. R. 45–96. ALJ Karen Shelton held a second
administrative hearing on January 19, 2021, at which Plaintiff, who was again represented by
counsel, testified, as did a vocational expert. R. 675–704. In a decision dated March 5, 2021,

ALJ Shelton concluded that Plaintiff was not disabled within the meaning of the Social Security
Act from June 30, 2019, her alleged disability onset date, through the date of that decision. R.
15–26. That decision became final when the Appeals Council declined review on November 12,
2021. R. 1–6. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On
June 13, 2022, Plaintiff consented to disposition of the matter by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. ECF
No. 15.3 On that same day, the case was reassigned to the undersigned. ECF No. 16. The matter
is ripe for disposition.
II. LEGAL STANDARD
A. Standard of Review

In reviewing applications for Social Security disability benefits, this Court has the
authority to conduct a plenary review of legal issues decided by the ALJ. Knepp v. Apfel, 204
F.3d 78, 83 (3d Cir. 2000). In contrast, the Court reviews the ALJ’s factual findings to
determine if they are supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); see also 42 U.S.C. §§ 405(g). The United States Supreme Court has explained this
standard as follows:
Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains sufficien[t] evidence to support

3The Commissioner has provided general consent to Magistrate Judge jurisdiction in cases
seeking review of the Commissioner’s decision. See Standing Order In re: Social Security Pilot
Project (D.N.J. Apr. 2, 2018).
2
the agency’s factual determinations. And whatever the meaning of substantial in
other contexts, the threshold for such evidentiary sufficiency is not high.
Substantial evidence, this Court has said, is more than a mere scintilla. It means –
and means only – such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations and quotation marks
omitted); see also Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation and internal
quotations omitted); Bailey v. Comm’r of Soc. Sec., 354 F. App’x 613, 616 (3d Cir. 2009)
(citations and quotations omitted); K.K. ex rel. K.S. v. Comm’r of Soc. Sec., No. 17-2309, 2018
WL 1509091, at *4 (D.N.J. Mar. 27, 2018).
The substantial evidence standard is a deferential standard, and the ALJ’s decision cannot
be set aside merely because the Court “acting de novo might have reached a different
conclusion.” Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986); see, e.g., Fargnoli
v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (“Where the ALJ’s findings of fact are supported
by substantial evidence, we are bound by those findings, even if we would have decided the
factual inquiry differently.”) (citing Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)); K.K.,
2018 WL 1509091, at *4 (“‘[T]he district court ... is [not] empowered to weigh the evidence or
substitute its conclusions for those of the fact-finder.’”) (quoting Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992)).
Nevertheless, the Third Circuit cautions that this standard of review is not “a talismanic
or self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)
(“The search for substantial evidence is thus a qualitative exercise without which our review of
social security disability cases ceases to be merely deferential and becomes instead a sham.”);
see Coleman v. Comm’r of Soc. Sec., No. 15-6484, 2016 WL 4212102, at *3 (D.N.J. Aug. 9,
2016). The Court has a duty to “review the evidence in its totality” and “take into account
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whatever in the record fairly detracts from its weight.” K.K., 2018 WL 1509091, at *4 (quoting
Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (citations and quotations omitted));
see Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981) (stating that substantial evidence exists
only “in relationship to all the other evidence in the record”). Evidence is not substantial if “it is

overwhelmed by other evidence,” “really constitutes not evidence but mere conclusion,” or
“ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y of
Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing Kent, 710 F.2d at 114); see
K.K., 2018 WL 1509091, at *4. The ALJ’s decision thus must be set aside if it “did not take into
account the entire record or failed to resolve an evidentiary conflict.” Schonewolf, 972 F. Supp.
at 284-85 (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Although an ALJ is not required “to use particular language or adhere to a particular
format in conducting [the] analysis,” the decision must contain “sufficient development of the
record and explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d
501, 505 (3d Cir. 2004) (citing Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.

2000)); see K.K., 2018 WL 1509091, at *4. The Court “need[s] from the ALJ not only an
expression of the evidence s/he considered which supports the result, but also some indication of
the evidence which was rejected.” Cotter, 642 F.2d at 705-06; see Burnett, 220 F.3d at 121
(“Although the ALJ may weigh the credibility of the evidence, [s/]he must give some indication
of the evidence which [s/]he rejects and [the] reason(s) for discounting such evidence.”) (citing
Plummer v. Apfel, 186 F.3d 422, 429 (3d. Cir. 1999)). “[T]he ALJ is not required to supply a
comprehensive explanation for the rejection of evidence; in most cases, a sentence or short
paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent

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such articulation, the Court “cannot tell if significant probative evidence was not credited or
simply ignored.” Id. at 705. As the Third Circuit explains:
Unless the [ALJ] has analyzed all evidence and has sufficiently explained the
weight [s/]he has given to obviously probative exhibits, to say that [the] decision
is supported by substantial evidence approaches an abdication of the court’s duty
to scrutinize the record as a whole to determine whether the conclusions reached
are rational.

Gober, 574 F.2d at 776; see Schonewolf, 972 F. Supp. at 284-85.
Following review of the entire record on appeal from a denial of benefits, the Court can
enter “a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Remand is appropriate if the
record is incomplete or if the ALJ’s decision lacks adequate reasoning or contains illogical or
contradictory findings. See Burnett, 220 F.3d at 119-20; Podedworny v. Harris, 745 F.2d 210,
221-22 (3d Cir. 1984). Remand is also appropriate if the ALJ’s findings are not the product of a
complete review which “explicitly weigh[s] all relevant, probative and available evidence” in the
record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted); see
A.B. on Behalf of Y.F. v. Colvin, 166 F. Supp.3d 512, 518 (D.N.J. 2016).
B. Sequential Evaluation Process
The Social Security Act establishes a five-step sequential evaluation process for
determining whether a plaintiff is disabled within the meaning of the statute. 20 C.F.R. §
404.1520(a)(4). “The claimant bears the burden of proof at steps one through four, and the
Commissioner bears the burden of proof at step five.” Smith v. Comm’r of Soc. Sec., 631 F.3d
632, 634 (3d Cir. 2010) (citing Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007)).

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At step one, the ALJ determines whether the plaintiff is currently engaged in substantial
gainful activity. 20 C.F.R. § 404.1520(b). If so, then the inquiry ends because the plaintiff is not
disabled.
At step two, the ALJ decides whether the plaintiff has a “severe impairment” or

combination of impairments that “significantly limits [the plaintiff’s] physical or mental ability
to do basic work activities[.]” 20 C.F.R. § 404.1520(c). If the plaintiff does not have a severe
impairment or combination of impairments, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to step three.
At step three, the ALJ decides whether the plaintiff’s impairment or combination of
impairments “meets” or “medically equals” the severity of an impairment in the Listing of
Impairments (“Listing”) found at 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(d). If so, then the plaintiff is presumed to be disabled if the impairment or combination
of impairments has lasted or is expected to last for a continuous period of at least 12 months. Id.
at § 404.1509. Otherwise, the ALJ proceeds to step four.

At step four, the ALJ must determine the plaintiff’s residual functional capacity (“RFC”)
and determine whether the plaintiff can perform past relevant work. 20 C.F.R. § 404.1520(e), (f).
If the plaintiff can perform past relevant work, then the inquiry ends because the plaintiff is not
disabled. Otherwise, the ALJ proceeds to the final step.
At step five, the ALJ must decide whether the plaintiff, considering the plaintiff’s RFC,
age, education, and work experience, can perform other jobs that exist in significant numbers in
the national economy. 20 C.F.R. § 404.1520(g). If the ALJ determines that the plaintiff can do
so, then the plaintiff is not disabled. Otherwise, the plaintiff is presumed to be disabled if the

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impairment or combination of impairments has lasted or is expected to last for a continuous
period of at least twelve months.
III. ALJ DECISION AND APPELLATE ISSUES
Plaintiff met the insured status requirements of the Social Security Act through December

31, 2023. R. 17. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity between June 30, 2018, her alleged disability onset date, and the date of the decision. Id.
At step two, the ALJ found that Plaintiff’s Sjorgren’s syndrome, degenerative disc
disease, and polymyalgia rheumatica were severe impairments. Id. The ALJ also found that
Plaintiff’s stage I diastolic dysfunction, history of right shoulder arthroscopy, adhesive capsulitis,
mild degenerative changes in the left knee, hypertension, high cholesterol, depressive disorder,
and generalized anxiety disorder were not severe impairments. R. 18–19.
At step three, the ALJ found that Plaintiff did not suffer an impairment or combination of
impairments that met or medically equaled the severity of any Listing. R. 19.
At step four, the ALJ found that Plaintiff had the RFC to perform light work subject to

various additional limitations. R. 19–26. The ALJ also found that this RFC permitted the
performance of Plaintiff’s past relevant work as a teacher. R. 26. The ALJ therefore concluded
that Plaintiff was not disabled within the meaning of the Social Security Act from June 30, 2019,
her alleged disability onset date, through the date of the decision. R. 26.
Plaintiff disagrees with the ALJ’s findings at steps two and four and also challenges the
constitutionality of the appointment of the Commissioner of Social Security. Plaintiff’s
Memorandum of Law, ECF No. 14; Plaintiff’s Reply Brief, ECF No. 24. Plaintiff asks that the
decision of the Commissioner be reversed and remanded with directions for the granting of
benefits or, alternatively, for further proceedings. Id. The Commissioner takes the position that

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his decision should be affirmed in its entirety because the ALJ’s decision correctly applied the
governing legal standards, reflected consideration of the entire record, and was supported by
sufficient explanation and substantial evidence. Defendant’s Brief Pursuant to Local Civil Rule
9.1, ECF No. 21.

IV. SUMMARY OF RELEVANT MEDICAL EVIDENCE
A. J. Theodore Brown, Jr., Ph.D.
On November 12, 2019, J. Theodore Brown, Jr., Ph.D., conducted a consultative
psychological examination of Plaintiff. R. 470–75. Dr. Brown’s initial impression of Plaintiff,
who was 61 years old at the time of the examination, included the finding that “Claimant appears
to be affected by symptoms of depression, anxiety, and borderline personality disorder.” R. 470.
Plaintiff reported that she had quit her job as a teacher in June 2019 because of her health. Id.
Plaintiff reported the following symptoms:
Claimant indicates difficulty getting to sleep, staying asleep, frequent wakening.
This has been going on for about 2 years.

She indicates being depressed, process of losing a house or having to go into a
short sale, financial pressures and problems because she is not working, poor
relationships with her son and daughter-in-law, feels unappreciated and
disappointed by some of her children, family members. She has crying episodes
on a weekly basis. She denies thoughts of death or suicide.

Energy level is pretty good, functional. She does what she has to do when she can.

***

Mood is down. She gets agitated, can yell, scream, and curse at times, but denies
any physical or violent behavior.

Memory for dates, appointments, and where she places things is poor. She forgets
conversations, has poor focus and concentration.

She describes having panic, anxiety symptoms, palpitations, sweating, trembling,
hyperventilation, and pressure on her chest, usually she gets them at home when
she is under pressure or stress. She does wake up at times periodically with night
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terrors. This has been going on for a couple years at this point in time. She bites
her lips on the inside to feel the pain and discomfort and to get relief from the
tension. This has been going on weekly for some indefinite period of time. It
seems to be a lifelong habit that she has adapted to.

Otherwise, she denies any thought disturbance or other behaviors, thoughts, or
feelings that require the attention of a psychiatrist or psychologist.

R. 471–72 (emphasis added). Upon mental status examination, Plaintiff was pleasant and
cooperative throughout the examination with an overall adequate presentation and appropriate
eye contact. R. 472. Her appearance was younger than her stated age and she dressed in casual
attire with good hygiene. Id. Her gait, posture, and motor behavior were normal. Id. She was able
to remember three of three items immediately and two of three items after five minutes. Id.
Plaintiff could not count backwards from 100 by 7s, but could count backwards from 30 by 3s.
Id. Her speech was fluent and clear and she was able to express her thoughts and feelings without
hesitation or delay. Her thought processes were coherent and goal directed with no evidence of
illusions, delusions, hallucinations, or paranoia. Id. Plaintiff’s affect was appropriate with full
range of speech associated with thought affect; her mood was neutral and her sensorium was
clear; she was oriented to person, place, and time; her cognitive/intellectual functioning was
average; her insight was fair; and she was familiar with current events. R. 472–73. Plaintiff lived
with her daughter and reported that she could dress, bathe, and groom herself, could drive, and
shared cooking, cleaning, laundry, and shopping activities with her daughter who also helped
Plaintiff manage her money. R. 473. Plaintiff’s hobbies included reading and writing. Id. She had
friends. Id. Plaintiff “usually spends her time at home moving about, taking care of her grandson,
pacing herself, negotiating her energy, pain, and discomfort to do what she can when she can.
She reads, writes, and does housework.” Id. Dr. Brown found that that his evaluation results
“appear to be consistent with Claimant’s allegations and give basis for the following diagnosis:”
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depressive disorder, unspecified; panic anxiety disorder; borderline personality disorder; and
generalized anxiety disorder. Id. According to Dr. Brown, Plaintiff’s prognosis was “very much
contingent upon Claimant continuing to receive and benefit from mental healthcare support and
treatment.” Id. If Plaintiff remained in mental healthcare and treatment, Dr. Brown opined, she

should be able to manage her own funds. Id.
B. Robin C. Wiley, L.C.S.W.
On October 1, 2020, Robin C. Wiley, L.C.S.W.,4 Plaintiff’s treating therapist, signed a
one-page letter addressed to “To Whom It May Concern[,]” stating as follows:
. . . [Plaintiff] is a client currently under my care for mental health therapy.
[Plaintiff] has been treated for Generalized Anxiety Disorder since 10/18/2018.
During this time, she has experienced periods of increased panic accompanied by
panic attacks. She is seen weekly for individual therapy utilizing Cognitive
Behavioral Therapy and Mindfulness techniques.

Her treatment plan includes goal related to increasing affect regulation,
identifying triggers for anxiety and increasing coping skills.

R. 673.
On October 16, 2020, Dr. Wiley provided a one-page clinical summary of Plaintiff’s
treatment. R. 674. Plaintiff began therapy in October 2018 with weekly individual therapy
sessions. Id. She “presented with symptoms related to increased anxiety and depression which
includes panic attacks” and “was addressing stressors related to physical health issues, work
issues and family dynamics. Her health and emotional concerns were the catalyst for her decision
to retire in an effort to mitigate some of the stress triggers.” Id. Dr. Wiley identified Plaintiff’s
treatment goals/current targeted behaviors as follows: Explore triggers for anxiety/depression;

4 Both parties and the ALJ refer to this provider as “Dr. Wiley.” The Court notes that briefing at
the administrative level refers to this provider’s credentials as “DSW” as well. R. 296. Based on
this reference, and for convenience and continuity, the Court will also refer to this provider as
“Dr. Wiley.”
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increase affect regulation; support transition to retirement; and increase appropriate coping skills
related to managing stress. Id. Plaintiff’s weekly individual sessions addressed these goals and
Dr. Wiley used “Cognitive Behavioral therapy and Mindfulness techniques to help client to
dispute negative thoughts and increase coping.” Id. According to Dr. Wiley, Plaintiff “continues

to experience anxiety accompanied by periods of depression which at times impair her ability to
function optimally. She continues to experience worry related to life stressors and occasional
panic attacks. She is open to therapeutic interventions provided by this clinician.” Id. Dr. Wiley
recommended that Plaintiff “[c]ontinue individual therapy weekly to address potential triggers
associated with anxiety/depression and increase coping skills.” Id.
V. DISCUSSION
A. Step Two
Plaintiff challenges the ALJ’s determination at step two of the sequential evaluation
process that Plaintiff’s mental impairments were not severe. Plaintiff’s Memorandum of Law,
ECF No. 14, pp. 21–23.5 Plaintiff’s argument is not well taken.

The ALJ found at step two of the sequential evaluation process that Plaintiff’s
impairments of Sjorgren’s syndrome, degenerative disc disease, and polymyalgia rheumatica
were severe, and explained why Plaintiff’s other impairments, including her mental impairments
of depressive disorder and generalized anxiety disorder, were not severe. R. 17–19. The ALJ also
went on to evaluate all of Plaintiff’s impairments, including her mental impairments and the
alleged limitations flowing from those impairments, through the remainder of the sequential
evaluation. R. 19–25. Accordingly, even if the ALJ erred by not finding other severe

5 Plaintiff raised this step two challenge in the context of her challenge to the RFC at step four.
See id. To the extent that Plaintiff argues that her mental impairments required certain limitations
in the RFC, the Court addresses that argument in the next section.
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impairments, any such error at step two is harmless based on this record. See Salles v. Comm’r of
Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007); Hicks v. Colvin, No. 2:15-cv-07221, 2016
WL 8674251, at *8 (D.N.J. Oct. 14, 2016) (“Even if the ALJ had in fact erred with respect to one
of the impairments that she found to be non-severe, such error would be harmless since she

found other impairments to be severe, engaged in the full five-step evaluation, and accounted for
related possible limitations in her RFC finding.”); Auriemma v. Colvin, No. 13-5947, 2015 WL
5097902, at *6 (D.N.J. Aug. 31, 2015)(“Because the ALJ found in [plaintiff’s] favor at Step
Two, even if he had erroneously concluded that some of her other impairments were non-severe,
any error was harmless.”).
B. RFC and Opinion Evidence
Plaintiff argues that substantial evidence does not support the ALJ’s RFC determination
of a limited range of light work because the ALJ did not account for all the Plaintiff’s severe and
non-severe impairments and failed to properly consider the opinions of Dr. Brown and Dr.
Wiley. Plaintiff’s Memorandum of Law, ECF No. 14, pp. 11–21, 23–29; Plaintiff’s Reply Brief,

ECF No. 24, pp. 1–9. Plaintiff’s arguments are not well taken.
A claimant’s RFC is the most that the claimant can do despite her limitations. 20 C.F.R. §
404.1545(a)(1). At the administrative hearing stage, it is the ALJ who is charged with
determining the claimant’s RFC. 20 C.F.R. § 404.1546(c); see also Chandler v. Comm’r of Soc.
Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The ALJ—not treating or examining physicians or State
agency consultants—must make the ultimate disability and RFC determinations.”) (citations
omitted). When determining a claimant’s RFC, the ALJ has a duty to consider all the evidence.
Plummer, 186 F.3d at 429. However, the ALJ need include only “credibly established”
limitations. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005); see also Zirnsak v. Colvin,

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777 F.3d 607, 615 (3d Cir. 2014) (stating that the ALJ has discretion to choose whether to
include “a limitation [that] is supported by medical evidence, but is opposed by other evidence in
the record” but “[t]his discretion is not unfettered—the ALJ cannot reject evidence of a
limitation for an unsupported reason” and stating that “the ALJ also has the discretion to include

a limitation that is not supported by any medical evidence if the ALJ finds the impairment
otherwise credible”).
In the case presently before the Court, the ALJ determined that Plaintiff had the RFC to
perform a limited range of light work, as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) except: can occasionally climb ramps and stairs; never climb
ladders, ropes or scaffolds. Can occasionally balance, stoop, kneel, crouch and
crawl. Can frequently handle and finger. Avoid extreme cold, heat, wetness,
humidity and pulmonary irritants.

R. 19–20. In making this determination, the ALJ detailed years of record evidence, including,
inter alia, Plaintiff’s testimony at the first administrative hearing that she stopped working in
June 2019 due to her physical and mental impairments and other factors, and her testimony at the
second administrative hearing that “she retired from teaching due to issues with the teachers and
administrative, which resulted in a class action suit”; Plaintiff’s statement in her August 2019
function report that her activities of daily living included eating breakfast, getting dressed,
watching TV or reading (although she needed to stop and refocus when reading, writing, or
watching mysteries), preparing lunch, going to the store as needed and taking care of her
grandson in the evening when his mother was at work (which involved making sure that he went
to bed and did not hurt himself); evidence that she was independent in her personal care but that
she reported difficulty washing her hair due to pain; her report that she did not need reminders,
and could drive and manage her finances; evidence that she preferred to be alone and that
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sometimes talking to people aggravated her; evidence that she had no difficulty with authority
and could ask for help if overwhelmed; Plaintiff’s testimony at the initial administrative hearing
that she did not need an assistive device for walking or balance but that she experienced constant
pain, dizziness, and loss of focus as well as right shoulder and knee pain; Plaintiff’s testimony at

the second administrative hearing that, after she last worked as a teacher in June 2019 (retiring
due to harassment regarding a class action suit by teachers against the school district), she
worked part-time (about 25 hours a week) until work for this position had “run out,” but that she
would have left that job in any event due to physical difficulties; evidence in the medical records
that reflected, inter alia, left knee effusion in March 2014 and osteoarthritis of both knees;
orthopedic treatment notes indicating adhesive capsulitis and arthralgia of the right shoulder; a
March 2016 diagnostic arthroscopy of the right shoulder noting acromioclavicular joint arthritis;
a distal clavicle excision; 2018 primary care notes reflecting complaints of sinus pain and
congestion as well as complaints of left ankle pain, increased with walking and standing, x-rays
of the ankle showing no acute findings but resulting in a diagnosis of tendonitis and a referral to

physical therapy; therapy with Dr. Wiley for generalized anxiety disorder since October 2018;
2019 imaging of the ankles showing subcutaneous lipomas of both ankles; Plaintiff’s complaint
of right shoulder pain even at rest and worse with lifting but imaging showing no acute findings;
diagnoses of hypertension and high cholesterol and a finding of elevated c-reactive protein, for
which Plaintiff was referred to a rheumatologist; July 2019 treatment notes for acute sinusitis;
treatment notes reflecting that Plaintiff presented as alert, oriented and with normal mood/affect;
cardiology treatment notes from late 2018 through early 2019 reflecting complaints of
intermittent palpitations and chest pain, but no syncope, occurring mainly when Plaintiff was
working out; a 2018 exercise stress test that showed good exercise endurance, until Plaintiff

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developed exercise limiting chest pain with ST depression, leading to a referral to an exercise
nuclear stress test; rheumatology treatment notes from early 2019 for c-reactive protein levels
and reports of right shoulder and bilateral arm pain, as well as knee pain, worse with activity;
examination findings of full range of motion with no tender points noted and normal lab results

regarding possible lupus; unremarkable x-rays of hands and wrists, with no sign of fracture or
significant arthrosis; mild degenerative changes in the bilateral patellofemoral compartment and
no acute abnormality or significant arthrosis in the feet; post operative changes in the right great
toe and unremarkable imaging of the right shoulder; a February 2019 EKG showing normal sinus
rhythm and labs showing high c-reactive protein, thought to be from a secondary cause and not
cardiac related; psychological reviews at Plaintiff’s cardiology appointments that consistently
noted that Plaintiff was alert, oriented, and showing no evidence of overt discomfort, anxiety or
depression; a March 2019 abdominal CT scan reflecting mild degenerative spondylosis of the
lumbar spine with no evidence of acute process in the abdomen or pelvis; Plaintiff’s complaints
in April 2019 of fatigue, lack of sleep, and intermittent pain and a diagnosis of possible

Sjorgren’s syndrome and prescription for hydroxychloroquine; diagnoses during a May 2019
cardiac appointment of Sjorgren’s syndrome, hyperlipidemia, hypertension, and abnormal c-
reactive protein, and reports of intermittent palpitations and chest pain, and a finding of lowered
c-reactive protein and, on EKG, a finding of normal sinus rhythm; findings at that appointment
of a normal gait, being alert, oriented, and active in the decision making process; Plaintiff’s
report at a July 2019 rheumatology appointment that she experienced fatigue (improving) and
lack of sleep but no pain; Plaintiff’s report of frequent dry eyes, pain in her right hand, arm and
knee, worse with activity and better with rest, arm stiffness lasting for hours and associated with
numbness, tingling and muscle weakness treated with a corticosteroid injection in the right

15
shoulder; examination findings of full range of motion of the neck, the lumbar spine and all
extremities with no sign of synovitis, swelling, warmth or tenderness; no tender points although
lab results showed a weak positive for ANA and high inflammatory markers, resulting in a
diagnosis of Sjorgren’s syndrome; findings by Dr. Brown in November 2019 that Plaintiff

presented as pleasant and cooperative with a “wide range of independence regarding activities
involving both mental and physical factors that the claimant engages in” and that, inter alia,
Plaintiff’s mental health related impairments result in no more than a mild degree of limitation
regarding daily activities; Plaintiff’s report at a cardiology appointment in November 2019 of
increased shortness of breath, fatigue, and chest pressure and denial of anxiety or depression; a
notation of exertional dyspnea for which a stress test was ordered and blood pressure medication
was also adjusted; a December 2019 stress test which was terminated due to fatigue, although
Plaintiff was noted as having “good exercise tolerance for age” with no evidence of significant
exercise induced dysrhythmia and no EKG abnormalities to suggest ischemia; January 2020
treatment notes reflecting Plaintiff’s report of increased joint pain, including in hips, shoulders

and knees as well as severe fatigue; findings during that visit of full range of motion of the spine
and all extremities, with no tender points, and full muscle strength in all extremities, clear
thought process with normal reasoning and normal and appropriate affect; Plaintiff’s complaints
at a February 2020 cardiology appointment of fatigue and chest pressure with findings of high c-
reactive protein but no finding of connective tissue disorder6; treatment notes indicating
continued “low sleep, but [Plaintiff] seems to be fine as no daytime sleepiness” and there was no
evidence of new unstable angina or worsening edema; the suggestion that Plaintiff’s worsening

6 This is conclusion appears to have been changed later as Plaintiff was eventually diagnosed
with polymyalgia rheumatica.
16
exertional dyspnea was possibly of cardiac origin; a recommendation that Plaintiff exercise 150
minutes per week and be on her feet for “400 hours a week,”7 which the ALJ found to be
consistent with an ability to perform work at a light exertional level; Plaintiff’s complaints at an
April 2020 rheumatology appointment of back, leg, and kidney pain, although kidney stones and

infection were ruled out and Plaintiff was started on methotrexate; Plaintiff’s complaints in July
2020 of worsening fatigue and muscle ache, worse with activity; Plaintiff’s complaints in August
2020 of increased fatigue, difficulty falling asleep (but not sleeping during the day), and
worsening pain; the August 2020 diagnoses of polymyalgia rheumatica due to myalgia, elevated
ESR and severe fatigue, and acute low back pain without sciatica, with prescription for
prednisone; Plaintiff’s complaints at an August 2020 cardiology appointment of dizzy spells,
muscle pain, chest pressure, and exertional dyspnea, but no palpitations, for which a Holter
monitor was prescribed and an echocardiogram was ordered; a September 2020 transthoracic
echocardiogram with findings consistent with “impaired relaxation,” and stage 1 diastolic
dysfunction; the opinions of the state agency consultants, which the ALJ found persuasive, that

Plaintiff was able to perform work at the light exertional level, including her past relevant work
as a teacher. R. 21–25. The ALJ went on to explain that “the objective evidence does not
demonstrate the existence of limitations of such severity as to have precluded the claimant from
performing all work on a regular and continuing basis at any time from the alleged onset date of
disability.” R. 25. The ALJ further explained this RFC determination as follows:
The claimant’s complaints have not been completely dismissed, but rather, have
been included in the residual functional capacity assessment, to the extent that
they are consistent with the evidence as a whole. The claimant’s degenerative disc
disease, various joint pains and diagnosed immune deficiency related conditions
have been considered in limiting the claimant to work related activity at a light

7 The ALJ assumed that the reference to “400 hours a week” was meant to be 40 hours per week.
17
exertional level with restrictions regarding climbing and postural movements.
Avoidance of temperature extremes and pulmonary irritants takes into account the
claimant’s diagnosed immune disorders.

R. 25. In the view of this Court, this record contains substantial evidence to support the ALJ’s
RFC determination. See Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554; Plummer, 186
F.3d at 429.
Plaintiff, however, raises a number of challenges to the ALJ’s RFC determination, which
the Court addresses in turn.
1. Fatigue
Plaintiff first complains that the ALJ failed to properly consider how Plaintiff’s well-
documented fatigue impacts her physical and mental stamina and time off task, particularly as it
relates to her ability to perform her past relevant work as a teacher. Plaintiff’s Memorandum of
Law, ECF No. 14, pp. 16–17 (citations omitted); Plaintiff’s Reply Brief, ECF No. 24, pp. 1–2.
Plaintiff specifically argues that a limitation to light work with no time off for unscheduled
breaks, time off task, or days absent per month does not sufficiently account for her fatigue,
which flows from her Sjogren’s syndrome and which the ALJ found to be severe along with her
degenerative disc disease and polymyalgia. Id. Plaintiff’s argument is not well taken.
As a preliminary matter, to the extent that Plaintiff suggests that the ALJ’s finding at step
two—i.e., that Plaintiff’s Sjorgren’s syndrome, degenerative disc disease, and polymyalgia
rheumatica were severe—requires additional or more significant limitations than those included
in the ALJ’s RFC, Plaintiff is mistaken. The United States Court of Appeals for the Third Circuit
has instructed that “no incantations are required at steps four and five simply because a particular
finding has been made at steps two and three. Those portions of the disability analysis serve
distinct purposes and may be expressed in different ways.” Hess v. Comm’r Soc. Sec., 931 F.3d

18
198, 209 (3d Cir. 2019). Because a claimant’s RFC is the most that the claimant can do despite
her limitations, the ALJ’s RFC “‘requires a more detailed assessment [of the areas of functional
limitation] by itemizing various functions contained in the broad [functional limitation]
categories’” and, “unlike the findings at steps two and three, the RFC ‘must be expressed in

terms of work-related functions[.]’” Id. (quoting SSR 96-8P, at *4, 6). “In short, the findings at
steps two and three will not necessarily translate to the language used at steps four and five.” Id.
In addition, as detailed above, when fashioning the RFC determination, the ALJ
expressly considered that Plaintiff indicated in July 2019 that her fatigue was improving, R. 24;
that, although a stress test performed in December 2019 was terminated due to fatigue, Plaintiff
was noted as having “good exercise tolerance for age” with no evidence of significant exercise
indued dysrhythmia and no EKG abnormalities suggesting ischema, R. 23 (internal quotation
marks omitted); that, although Plaintiff complained to her cardiologist in February 2020 of
fatigue, treatment notes indicated that Plaintiff “seems to be fine as no daytime sleepiness” and
her treating provider recommended that Plaintiff be on her feet 40 hours a week and exercise 150

minutes a week, R. 23 (internal quotation marks omitted); and the ALH found persuasive the
opinions of the state agency medical consultants that Plaintiff was capable of performing light
work, including her past relevant work as a teacher, R. 25. Moreover, as previously discussed, an
ALJ need include only “credibly established” limitations in the RFC. Rutherford, 399 F.3d at
554; see also Zirnsak, 777 F.3d at 615 (stating that the ALJ has discretion to choose whether to
include “a limitation [that] is supported by medical evidence, but is opposed by other evidence in
the record” but “[t]his discretion is not unfettered—the ALJ cannot reject evidence of a
limitation for an unsupported reason” and stating that “the ALJ also has the discretion to include
a limitation that is not supported by any medical evidence if the ALJ finds the impairment

19
otherwise credible”). Although the record in this action reflects—and the ALJ expressly
considered—Plaintiff’s complaints of fatigue, for the reasons discussed in further detail below,
the ALJ properly discounted the intensity, persistence, and limiting effects of Plaintiff’s
subjective statements. In any event, the Court “will uphold the ALJ’s decision even if there is

contrary evidence that would justify the opposite conclusion, as long as the ‘substantial
evidence’ standard is satisfied.” Johnson v. Comm’r of Soc. Sec., 497 F. App’x 199, 201 (3d Cir.
2012) (citing Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986)); see also Chandler, 667 F.3d
at 359 (“Courts are not permitted to reweigh the evidence or impose their own factual
determinations [under the substantial evidence standard].”); Hatton v. Comm’r of Soc. Sec.
Admin., 131 F. App’x 877, 880 (3d Cir. 2005) (“When ‘presented with the not uncommon
situation of conflicting medical evidence . . . [t]he trier of fact has the duty to resolve that
conflict.’”) (quoting Richardson v. Perales, 402 U.S. 389, 399 (1971)). Accordingly, Plaintiff’s
challenge to the RFC based on a failure to properly consider her fatigue will not serve as a basis
to remand this action.

2. Right shoulder and adhesive capsulitis
Plaintiff next argues that the ALJ failed to properly consider Plaintiff’s non-severe
history of right shoulder arthroscopy and adhesive capsulitis, contending “there is overwhelming
evidence that Plaintiff still experiences the symptoms resulting from these impairments.”
Plaintiff’s Memorandum of Law, ECF No. 14, pp. 17–18 (citing R. 69 (Plaintiff’s testimony from
hearing on October 15, 2020, that she is still unable to lift things over her head and it is painful to
reach for items and to hold up her arm), 72 (testimony from October 15, 2020 hearing that the
cortisone injections help her feel better for about a week or two and that she had not had an
injection in the last year and a half because she was given prednisone, which was discontinued in

20
September 2021 because it was not working), 385 (rheumatology progress notes dated July 17,
2019, reflecting, inter alia, that Plaintiff’s report that she had recently undergone a corticosteroid
injection in her right shoulder), 391 (March 2019 rheumatology progress notes reflecting, inter
alia, Plaintiff’s complaints of pain in her right shoulder and right arm), 394 (March 2019

rheumatology progress notes reflecting, inter alia, Plaintiff’s complaints of pain in her right
shoulder and bilateral arms), 428 (February 2019 family practice progress notes reflecting
Plaintiff’s complaint of right should pain radiating into her right arm), 495 (October 2017
orthopedic note, “Plaintiff’s shoulder still gets the achy pain”), 499 (April 2017 orthopedic notes
reflecting Plaintiff’s complaints of right shoulder pain and pain with lifting activities, overhead
activities, reaching behind, and associated symptoms of stiffness, weakness), 503 (January 2017
orthopedic notes reflecting Plaintiff’s complaints of difficulty writing on the board and inability
to wash her back or reach behind her), 507 (August 2016 orthopedic progress notes reflecting,
inter alia, that Plaintiff was in physical therapy and had received a cortisone injection), 509 (July
2016 orthopedic progress notes same), 515 (April 2016 record reflecting that Plaintiff had

undergone a distal clavicle excision in March 2016), 520, 524 (June and July 2016 physical
therapy progress notes), 551 (copy of March 2016 report of distal clavicle excision), 576 (August
2020 rheumatology progress notes reflecting Plaintiff’s continued complaint of shoulder pain));
Plaintiff’s Reply Brief, ECF No. 24, p. 5 (citing same). Plaintiff complains that this evidence
establishes that she had difficulty, both before and after her alleged disability onset date, in
reaching and that the ALJ failed to properly consider this impairment when crafting the RFC. Id.
Plaintiff’s arguments are not well taken.
As an initial matter, much of the evidence referred to by Plaintiff in this regard
significantly predates Plaintiff’s alleged disability onset date of June 30, 2019. See R. 495, 499,

21
503, 507, 509, 515, 524, 551. Although an ALJ may consider such evidence, Louis v. Comm’r
Soc. Sec., 808 F. App’x 114, 120 (3d Cir. 2020) (citing Pirtle v. Astrue, 479 F.3d 931, 934 (8th
Cir. 2007), and 20 C.F.R. § 416.912), such evidence is not entitled to controlling or, indeed, any
particular weight. Id. at 120 (finding that the ALJ “was entitled to discount” an opinion letter

where the opinion was written before the claimant’s application date and alleged disability onset
date and where the opinion was inconsistent with the medical record); Dennis-Orshak v.
Berryhill, No. 3:18-CV-15987, 2020 WL 4364330, at *4 (D.N.J. July 30, 2020) (finding that the
ALJ did not err in giving no weight to a report that predated the alleged disability onset date).
Moreover, additional context and evidence contained in some of these records do not persuade
this Court that the ALJ erred in failing to include a limitation for reaching in the RFC. See, e.g.,
R. 495 (reflecting, inter alia, that the provider on October 16, 2017, was “pleased with her
motion and function” and “[s]he is not taking anything for the pain. There is pain at the anterior
aspect of the [right] shoulder. There is some numbness and tingling, but has subsided a lot since
she was here last. There is no popping or clicking.”), 499 (reflecting on April 17, 2017, that

“Patient is doing the best I have seen her in a while we will go ahead and have her continue to
work on the flexibility stretching strengthening and conditioning and I will see her back again as
needed”), 503–04 (January 9, 2017, orthopedic progress notes f reflecting, inter alia, that
Plaintiff has diffuse shoulder tenderness, but full active and passive range of motion in her
shoulders with pain at end ranges).
In addition, the evidence recited by the ALJ and detailed above provides substantial
support for the RFC for light exertion found by the ALJ, including, inter alia, imaging of the
right shoulder in 2019 that showed no acute findings, R. 22; an early 2019 examination that
revealed full range of motion and no tender points despite Plaintiff’s complaints of shoulder and

22
bilateral arm pain, and unremarkable imaging of the right shoulder, R. 23; findings in January
2020 of full range of motion of the spine and all extremities with no tender points observed and
full muscle strength in all extremities despite Plaintiff’s report of increased pain in the shoulders,
R. 24; the state agency consultants’ opinions that Plaintiff could perform light exertional work,

including past relevant work as a teacher, R. 25; Plaintiff’s reported activities of daily living,
including, inter alia, driving, grocery shopping, doing laundry and other housework, and being
independent with personal care despite some reported difficulties with such care, R. 20, 21, 24;
and the ALJ’s finding that Plaintiff’s subjective statements concerning the intensity, persistence,
and limiting effects of her alleged symptoms were not entirely consistent with the record
evidence, R. 21, 25, a finding that is supported by substantial evidence for the reasons discussed
in more detail below; cf. Johnson v. Comm’r of Soc. Sec., 263 F. App’x 199, 203 (3d Cir. 2008)
(rejecting the claimant’s challenge to the RFC that the Plaintiff “retains the residual functional
capacity to lift and carry up to twenty pounds occasionally and ten pounds frequently, sit for six
hours and stand and/or walk for two hours in an eight hour workday, and occasionally climb

stairs, balance, kneel, crouch, crawl or stoop” where, inter alia, it was noted that the claimant
“did not use a cane or crutches, was able to dress and undress herself, was not uncomfortable
while seated, experienced no motor abnormality, and had normal range of motion in her
shoulders, elbows, forearms, wrists, hips, knees, and ankles” and the Plaintiff reported that she
“could take care of her personal needs, drive her car, and walk two blocks before resting” and,
during examination, “she could dress and undress without assistance, get on and off the
examination table without difficulty, successfully toe-and-heel walk, and demonstrate full range
of motion”).

23
To the extent that Plaintiff points to evidence that she believes supports her position that
the RFC required additional limitations to accommodate her shoulder impairment, this Court has
already explained that, as long as the substantial evidence standard is met, the Court “will uphold
the ALJ’s decision even if there is contrary evidence that would justify the opposite

conclusion[.]” Johnson, 497 F. App’x at 201; see also Chandler, 667 F.3d at 359; Hatton, 131 F.
App’x at 880. For these reasons, then, the Court is not persuaded that the ALJ committed
reversible error when considering Plaintiff’s non-severe history of right shoulder arthroscopy and
adhesive capsulitis in crafting the RFC.
3. Stage 1 diastolic dysfunction / heart palpitations / chest pain and
pressure

Plaintiff further argues that the ALJ should have taken “into consideration in the RFC”
her stage 1 diastolic dysfunction, intermittent heart palpitations, and chest pain/chest pressure
because light exertion “requires a good deal of walking or standing.” Plaintiff’s Memorandum of
Law, ECF No. 14, pp. 18–19 (quoting SSR 83-10, and citing, inter alia, R. 90, 92, 312, 315–16,
320, 323, 327, 346, 587, 595, 622, 632, 640, 662) (internal quotation marks omitted); see also
Plaintiff’s Reply Brief, ECF No. 24, pp. 2–3. Plaintiff complains that the evidence establishes
that she experienced chest pains over a two-year period, and not just when she was working, as
the ALJ found. Id. Plaintiff’s argument is not well taken.
To the extent that Plaintiff relies on evidence that predates her alleged disability onset
date of June 30, 2019, R. 320 (progress notes dated October 30, 2018), 323 (same), 327 (progress
notes dated August 21, 2018), 346 (HeartStride Final Report dated August 21, 2018), this Court
has already explained that this evidence is not entitled to controlling—or to any particular—
weight. See Louis, 808 F. App’x at 120; Dennis-Orshak, 2020 WL 4364330, at *4. In fact, the
ALJ expressly considered this evidence. R. 22. Notably, and contrary to Plaintiff’s suggestion,
24
the ALJ also considered evidence from May 2019 of intermittent palpitations and chest pain, R.
22; as well as complaints of palpitations and chest pressure in November 2019, R. 23–24; and
complaints of chest pressure in February and August 2020, R. 23. Although the ALJ noted these
complaints and findings, the ALJ also considered contrary evidence that supported the RFC

determination. R. 22 (referring to February 2018 and May 2019 EKGs that showed normal sinus
rhythm), 23 (referring to a December 2019 stress test that was terminated due to fatigue, but
during which Plaintiff was noted to have “good exercise tolerance for age,” and there was no
evidence of significant exercise induced dysrhythmia, or abnormalities to suggest ischemia; and
referring to a February 2020 cardiology appointment at which Plaintiff’s exertional dyspnea was
characterized as stable and following which it was recommended that Plaintiff exercise for 150
minutes a week and be on her feet for 40 hours a week, which the ALJ noted was consistent with
the ability to perform work at a light exertional level). To the extent that Plaintiff insists that her
cited evidence requires additional—otherwise unspecified—RFC limitations, her contention in
this regard boils down to simply a disagreement with the ALJ—who has the duty to craft the

RFC—and whose decision the Court has already explained is supported by substantial evidence.
See Chandler, 667 F.3d at 361; Perkins v. Barnhart, 79 F. App’x 512, 514–15 (3d Cir. 2003)
(“Perkins’s argument here amounts to no more than a disagreement with the ALJ’s decision,
which is soundly supported by substantial evidence.”); Markoch v. Comm’r of Soc. Sec., No.
1:20-CV-00417, 2020 WL 7586953, at *4-5 (D.N.J. Dec. 22, 2020) (“With regard to their impact
on the RFC determination even when those impairments are considered not severe, Plaintiff does
not articulate what additional restrictions should have been implemented. It is Plaintiff's burden
to establish the severity of her impairments, and Plaintiff's challenge to the ALJ's consideration
of her non-severe impairments amounts to mere disagreement with his analysis rather than

25
showing any substantive error.”). The Court therefore declines Plaintiff’s invitation to re-weigh
the evidence or to impose her—or this Court’s—own factual determination. See Chandler, 667
F.3d at 359; Zirnsak, 777 F.3d at 611.
4. Right knee and left ankle

Plaintiff also complains that the ALJ failed to properly consider the pain in her right knee
and left ankle when crafting the RFC. Plaintiff’s Memorandum of Law, ECF No. 14, pp. 19–20;
Plaintiff’s Reply Brief, ECF No. 24, pp. 5–6. Plaintiff specifically argues that the record contains
“overwhelming evidence that she has further limitations climbing stairs” because of her right
knee. Id. Plaintiff further argues that the ALJ’s failure to discuss whether she considered
Plaintiff’s tendonitis or bilateral subcutaneous lipomas in her ankles when crafting the RFC or
how it impacted Plaintiff’s ability to perform work functions constituted harmful error. Id. This
Court disagrees.
As detailed above, the ALJ considered, inter alia, the following evidence: Plaintiff does

not use an assistive device for balance or walking, R. 19, 21; in 2018, Plaintiff complained of left
ankle pain but x-rays of the ankle showed no acute findings and she was diagnosed with
tendonitis and referred to physical therapy (which was the only recorded treatment for this
condition), R. 22; in early 2019, Plaintiff complained of, inter alia, knee pain that was worse
with activity, but examination revealed full range of motion with no tender points noted, R. 23;
in May 2019, Plaintiff walked with a normal gait, R. 22; in July 2019, imaging of the ankles
revealed subcutaneous lipomas in both ankles, R. 22; in July 2019, Plaintiff complained of, inter
alia, pain in her knees that was worse with activity, but examination revealed full range of
motion of all neck, lumbar spine, and all extremities with no sign of synovitis, swelling, warmth,
or tenderness, and no tender points, R. 24; a December 2019 stress test was ultimately terminated

26
due to fatigue, but it was noted that Plaintiff had a “good exercise tolerance of age”, R. 23; in
January 2020, Plaintiff again had full range of motion of the spine and all extremities with no
tender points observed and she retained full muscle strength in all extremities, R. 24; and in
February 2020, it was recommended that Plaintiff exercise 150 minutes a week and be on her

feet for 40 hours a week, R. 23. This evidence provides substantial support for the RFC
determination for light work with, inter alia, occasional climbing of stairs. R. 19–20.
Although Plaintiff insists that she has “further limitations climbing stairs” than the ALJ’s
RFC accommodated, Plaintiff’s contention in this regard is based on simple rank speculation
unsupported by any medical opinion. Plaintiff’s Memorandum of Law, ECF No. 14, pp. 19–20;
Plaintiff’s Reply Brief, ECF No. 24, pp. 5–6. As previously discussed, an ALJ need include only
“credibly established” limitations. Rutherford, 399 F.3d at 554; see also Grella v. Colvin, No.
3:12-cv-2115, 2014 WL 4437640, at *18 (M.D. Pa. Sept. 9, 2014) (“[T]he ALJ cannot
accommodate limitations which do not exist, or which cannot be found in the medical record.”).
Finally, although Plaintiff complains that the ALJ should have more fully discussed Plaintiff’s

tendonitis, “[t]here is no requirement that the ALJ discuss in its opinion every tidbit of evidence
included in the record. Even in Fargnoli, the court conceded that it did not expect the ALJ to
make reference to every piece of relevant information.” Hur v. Barnhart, 94 F. App’x 130, 133
(3d Cir. 2004) (citing Fargnoli, 247 F.3d at 38) (emphasis in the original). In any event, Plaintiff
concedes that the ALJ did in fact acknowledge a diagnosis of tendonitis. Plaintiff’s
Memorandum of Law, ECF No. 14, p. 20 (citing R. 22). Notably, even presuming for present
purposes that the ALJ erred in failing to more fully discuss Plaintiff’s tendonitis, Plaintiff has not
explained—particularly in light of evidence recounted herein—how any such error harmed her.
See id. (pointing to evidence that Plaintiff attended physical therapy only in September 2018,

27
before her alleged disability onset date; that Plaintiff had mild soft tissue swelling over the lateral
inframalleolar region and posterior tibial tendinitis in her left leg and pain in her left ankle and
her joints in the left foot in September 2018; and pointing to subjective complaints of pain)
(citing R. 72–73, 664 667, 669, 670); see also Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009)

(“[T]he burden of showing that an error is harmful normally falls upon the party attacking the
agency’s determination. . . . [T]he party seeking reversal normally must explain why the
erroneous ruling caused harm.”); Rutherford, 399 F.3d at 553 (finding that “a remand is not
required here because it would not affect the outcome of the case”). For these reasons, Plaintiff
has not shown that the ALJ’s consideration of Plaintiff’s right knee and left ankle conditions
requires remand.
5. Dr. Brown and Dr. Wiley
Plaintiff also argues that the ALJ erred in her consideration of the opinions of Dr. Brown
and Dr. Wiley, resulting a flawed RFC. Plaintiff’s Memorandum of Law, ECF No. 14, pp. 22–29;
Plaintiff’s Reply Brief, ECF No. 24, pp. 6–9. Plaintiff’s arguments are not well taken.

An ALJ must evaluate all record evidence in making a disability determination. Plummer,
186 F.3d at 433; Cotter, 642 F.2d at 704. Moreover, the ALJ’s decision must include “a clear and
satisfactory explication of the basis on which it rests” sufficient to enable a reviewing court “to
perform its statutory function of judicial review.” Cotter, 642 F.2d at 704–05. Specifically, the
ALJ must discuss the evidence that supports the decision, the evidence that the ALJ rejected, and
explain why the ALJ accepted some evidence but rejected other evidence. Id. at 705–06; Diaz v.
Comm’r of Soc. Sec., 577 F.3d 500, 505–06 (3d Cir. 2009); Fargnoli, 247 F.3d at 42) (“Although
we do not expect the ALJ to make reference to every relevant treatment note in a case . . . we do
expect the ALJ, as the factfinder, to consider and evaluate the medical evidence in the record

28
consistent with his responsibilities under the regulations and case law.”). Without this
explanation, “the reviewing court cannot tell if significant probative evidence was not credited or
simply ignored.” Cotter, 642 F.2d at 705; see also Burnett, 220 F.3d at 121 (citing Cotter, 642
F.2d at 705).
For claims filed after March 27, 2017,8 the Commissioner’s regulations eliminated the

hierarchy of medical source opinions that gave preference to treating sources. Compare 20
C.F.R. § 404.1527 with 20 C.F.R. § 404.1520c(a) (providing, inter alia, that the Commissioner
will no longer “defer or give any specific evidentiary weight, including controlling weight, to
any medical opinion(s) or prior administrative medical finding(s), including those from [the
claimant’s] medical sources”). Instead, the Commissioner will consider the following factors
when considering all medical opinions: (1) supportability; (2) consistency; (3) relationship with
the claimant, including the length of the treating examination, the frequency of examinations,
and the purpose of the treatment relationship; (4) the medical source’s specialization; and (5)
other factors, including, but not limited to, “evidence showing a medical source has familiarity

with the other evidence in the claim or an understanding of our disability program's policies and
evidentiary requirements.” 20 C.F.R. § 404.1520c(c).
The regulation emphasizes that “the most important factors [that the ALJ and
Commissioner] consider when [] evaluat[ing] the persuasiveness of medical opinions and prior
administrative medical findings are supportability (paragraph (c)(1) of this section) and
consistency (paragraph (c)(2) of this section).” Id. at § 404.1520c(a). As to the supportability
factor, the regulation provides that “[t]he more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or her medical

8 As previously noted, Plaintiff’s application for benefits was filed on July 21, 2019.
29
opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions
or prior administrative medical finding(s) will be.” Id. at § 404.1520c(c)(1). As to the
consistency factor, the regulation provides that “[t]he more consistent a medical opinion(s) or
prior administrative medical 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 medical finding(s) will be.” Id. at § 404.1520c(c)(2).
The applicable regulation further requires the ALJ to articulate her “consideration of
medical opinions and prior administrative medical findings” and articulate in the “determination
or decision how persuasive [she] find[s] all of the medical opinions and all of the prior
administrative medical findings in [the claimant’s] case record.” Id. at §§ 404.1520c(b).
“Specifically, the ALJ must explain how [she] considered the ‘supportability’ and ‘consistency’
factors for a medical source’s opinion. . . . The ALJ may—but is not required to—explain how
[she] considered the remaining factors.” Michelle K. v. Comm’r of Soc. Sec., No. 1:19-CV-
01567, 2021 WL 1044262, at *4 (W.D.N.Y. Mar. 19, 2021) (citing 20 C.F.R. §§

404.1520c(b)(2), 416.920c(b)(2)).
In the present case, the ALJ crafted an RFC for a limited range of light work. R. 19–20.
In making this determination, the ALJ found, inter alia, Dr. Brown’s assessment “not
persuasive[,]” reasoning as follows:
Regarding the claimant’s mental health, in November 2019, psychologist J.
Theodore Brown, Jr. PhD provided a consultative examination at the request of
the State agency. The claimant drove herself to the appointment, and presented as
pleasant and cooperative. She indicated she was seeing a therapist weekly since
2018. She reported difficulty with sleep for the past two years. She indicated she
was depressed, with stressors including the loss of her house, financial pressures
and a poor relationship with her son. She stated her energy level was “pretty
good,” that she was “functional” and did “what she has to do when she can.” She
reported poor focus, concentration and memory. She indicated she would get
agitated and yell at times, but did not engage in physical or violent behavior. The
30
claimant described symptoms of panic, anxiety, palpitations and chest pressure,
occurring usually at home when stressed. Her thought process was described as
coherent and goal directed, with appropriate affect and neutral mood. She was
oriented, with average cognitive function and fair insight. The claimant stated she
cold cook, clean, do laundry and shop. She reported her daughter helped with
managing finances. She stated she paced herself with housework. She stated she
took care of her grandson. She reported that she had friends. Dr. Brown provided
a diagnosis of depressive disorder, unspecified, panic anxiety disorder; borderline
personality disorder and generalized anxiety disorder. (Exhibit 5F). This
assessment, which does not provide an analysis of the claimant’s work related
abilities and/or limitations, is not persuasive. However, it does show the wide
range of independence regarding activities involving both mental and physical
factors that the claimant engages in. Overall it supports a conclusion that the
claimant’s mental health related impairments result in no more than a mild
degree of limitation regarding daily activities, and are therefore non severe. It is
also noted that the diagnosis of borderline personality disorder, assessed from a
single encounter with Dr. Brown, is not noted by her treating psychologist.

R. 24–25 (emphasis added). The Court finds no error with the ALJ’s evaluation in this regard. In
discounting Dr. Brown’s assessment, the ALJ appropriately noted that this psychologist had
provided no opined functional abilities or limitations. See id.; see also 20 C.F.R. §
404.1513(a)(2) (“A medical opinion is 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” certain listed abilities); Scheel v. Comm’r of Soc. Sec., No. CV 20-
5077, 2021 WL 4477163, at *4 (E.D. Pa. Sept. 30, 2021) (“Dr. Shipkin’s letter does not qualify
as a medical opinion that the ALJ was required to evaluate. Indeed, Dr. Shipkin never opined on
Scheel’s functional limitations or what activities she could or could not perform in a work
setting, or otherwise articulated Scheel’s work-based limitations. Accordingly, Dr. Shipkin’s
letter does not contain an ‘opinion’ as defined in the regulations.”); Perry v. Saul, No. 1:19-CV-
1923, 2021 WL 1701300, at *17 (M.D. Pa. Apr. 29, 2021) (finding that the ALJ “adequately
discussed” the medical opinions and weight assigned to such opinions where, inter alia, the ALJ
considered an opinion from a treating physician “but she concluded that it had little evidentiary
31
weight due to the fact that no specific functional limitations were noted”). It was also proper for
the ALJ to consider other record evidence, including Plaintiff’s daily life activities, when
analyzing Dr. Brown’s findings and the extent of Plaintiff’s mental impairments. See 20 C.F.R. §
404.1520c(c)(2); Newcomb v. Kijakazi, No. 3:20-CV-01552, 2022 WL 178820, at *9 (M.D. Pa.

Jan. 18, 2022) (affirming ALJ’s denial of benefits where, inter alia, where the ALJ considered an
opinion in conjunction with the claimant’s “activities of daily living, including caring for his
young son, managing his own personal care, shopping, mowing, cooking, cleaning, and driving,
the ALJ found that ‘[w]hile none of these activities alone [are] dispositive, taken together they
suggest that [the claimant] is capable of performing work activity on a sustained and continuous
basis within the above parameters’”) (citations omitted); cf. Louis v. Comm’r Soc. Sec., 808 F.
App’x 114, 121 (3d Cir. 2020) (finding ALJ was “entitled to discount” a treating source’s earlier
assessment “where it was undermined by the more ‘detailed, longitudinal picture” provided by
his later medical assessments[,]” which revealed that the claimant was “consistently calm and
cooperative upon exam, and her prognosis was ‘good’” and objective evidence supported the

ALJ’s finding that mental impairments did not prevent the claimant from engaging in substantial
gainful activity where “she was consistently noted to be calm and cooperative, reportedly got
along with immediate family, friends, and neighbors, could shop in stores by herself, attended
community events, and had consistently normal findings with her cognition, memory, speech,
judgment and insight”); Celento v. Comm’r Soc. Sec., 613 F. App’x 205, 206–07 (3d Cir. 2015)
(noting that daily activities such as, inter alia, driving “require at least some . . . mental
concentration”); Cunningham v. Comm’r of Soc. Sec., 507 F. App’x 111, 118 (3d Cir. 2012)
(“[I]t is appropriate for an ALJ to consider the number and type of activities in which a claimant
engages when assessing his or her residual functional capacity.”); D.C. v. Comm’r of Soc. Sec.,

32
No. CV 20-2484, 2021 WL 1851830, at *6 (D.N.J. May 10, 2021) (“Her ability to drive, prepare
meals, manage funds, shop, and take a cruise also contradicted her claims that she had difficulty
concentrating, remembering information, and engaging in social activities.”). The ALJ also
implicitly considered Dr. Brown’s normal or mild findings when considering this assessment and

whether these findings imposed any mental limitations on Plaintiff’s ability to function. R. 24–
25; see also 20 C.F.R. § 404.1520c(1). In the view of this Court, the ALJ’s discussion contains
substantial evidence to support the ALJ’s consideration of Dr. Brown’s assessment as well as the
effect of Plaintiff’s mental impairments on her ability to function and the ultimate RFC
determination.
Plaintiff, however, contends that the ALJ engaged in prohibited cherry picking when
concluding that Dr. Brown’s assessment shows Plaintiff’s ability to engage in a wide range of
independence regarding activities involving both mental and physical factors, asserting that
Plaintiff “shares in” the cooking, cleaning, laundry and shopping with her daughter and that
Plaintiff must pace herself and accommodate her energy, pain, and discomfort when performing

activities. Plaintiff’s Memorandum of Law, ECF No. 14, p. 28. Plaintiff’s argument is not well
taken. Although the ALJ did not expressly state that Plaintiff “shares in” the cooking, cleaning,
laundry, and shopping with her daughter, the Court is not persuaded that this fact undermines the
ALJ’s consideration of the evidence, nor does it otherwise require remand.
As an initial matter, nothing in the evidence definitively establishes that Plaintiff is
unable to complete these activities without assistance; the evidence simply suggests that Plaintiff
and her daughter both participate in these tasks.9 Moreover, the statements of both Plaintiff and

9 Notably, Plaintiff’s daughter specified in a function report that Plaintiff spends, inter alia, half
an hour ironing and three to five hours doing laundry, depending on the loads and the washing
and drying tims. R. 232.
33
her daughter further establish that Plaintiff was capable of independently, inter alia, driving,
preparing lunch, going to the store, doing laundry, ironing, going grocery shopping on a weekly
basis, and managing her finances. R. 20–21. As detailed above, Plaintiff represented to Dr.
Brown that her energy level was “pretty good,” that she was “functional,” and that she did “what

she has to do when she can”; according to Dr. Brown, Plaintiff’s thought processes were
coherent and goal directed; she had an appropriate affect and her mood was neutral; she was
oriented and had average cognitive functioning and fair insight. R. 24. Finally, as previously
explained, as long as the substantial evidence standard is met, the Court “will uphold the ALJ’s
decision even if there is contrary evidence that would justify the opposite conclusion[.]”
Johnson, 497 F. App’x at 201; see also Chandler, 667 F.3d at 359; Hatton, 131 F. App’x at 880.
In light of this evidence, Plaintiff has not established that the ALJ engaged in prohibited cherry
picking.
In continuing to criticize the ALJ’s consideration of Dr. Brown’s findings, Plaintiff
complains that the ALJ failed to consider Dr. Brown’s personal examination of Plaintiff, his

understanding of the Agency’s definition of disability and special program knowledge, and his
specialty in the field. Plaintiff’s Memorandum of Law, ECF No. 14, pp. 28–29. The Court
disagrees. Even assuming that Dr. Brown’s assessment qualified as a medical opinion, the only
regulatory factors that the ALJ was then required to consider were supportability and
consistency. 20 C.F.R. § 404.1520c(a), (b)(2), (c)(1), (2). The ALJ implicitly considered these
factors when she noted Dr. Brown’s own examination findings as well as Plaintiff’s statements
about her daily life activities and evidence from a treating source. R. 24–25; cf. Diaz, 577 F.3d at
504 (“The ALJ, of course, need not employ particular ‘magic’ words: ‘Burnett does not require
the ALJ to use particular language or adhere to a particular format in conducting his analysis.’”)

34
(quoting Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004)). A fair reading of the ALJ’s
decision makes clear that the ALJ implicitly considered these factors—i.e., Dr. Brown’s personal
examination of the Plaintiff; his understanding of the definition of disability and special program
knowledge, and field specialty—when considering Dr. Brown’s assessment. In particular, the

ALJ expressly noted Dr. Brown’s specialty. R. 24 (noting that Dr. Brown was a psychologist
with a “PhD”), and also recognized that Dr. Brown had personally examined Plaintiff at the
request of the State agency. See id. Based on this record, remand is not required on this basis.
Plaintiff also contends that the ALJ failed in her duty to develop the record and should
have recontacted Dr. Brown if the ALJ “feels the opinion is too vague.” Plaintiff’s Memorandum
of Law, ECF No. 14, p. 29 (citing 20 C.F.R. § 404.1519p(b)). This Court disagrees. This
regulation provides that, if a consultative examination report “is inadequate or incomplete, we
will contact the medical source who performed the consultative examination, give an explanation
of our evidentiary needs, and ask that the medical source furnish the missing information or
prepare a revised report.” 20 C.F.R. § 404.1519p(b). As this Court has already explained in

another decision, the “[k]ey here is the meaning of ‘inadequate or incomplete.’ Multiple courts in
the Third Circuit have explained that a report by a consultative examiner is not ‘inadequate or
incomplete’ if it clearly outlines the medical examination but the ALJ disagrees with the
consultative examiner's ultimate conclusion.” John G. v. Comm’r of Soc. Sec., No. 1:21-CV-
17256, 2022 WL 3678108, at *8 (D.N.J. Aug. 25, 2022) (collecting cases). In this case, as
previously detailed, the ALJ considered Dr. Brown’s underlying examination findings when
discounting Dr. Brown’s assessment and crafting the RFC. Accordingly, Dr. Brown’s
“examination was not ‘inadequate or incomplete’ such that the ALJ was required to contact the
doctor for clarification.” Id.

35
Plaintiff also contends that the ALJ erred in discounting Dr. Wiley’s opinion. Plaintiff’s
Memorandum of Law, ECF No. 14, pp. 22–27; Plaintiff’s Reply Brief, ECF No. 24, pp. 6–9. This
Court again disagrees. At step four, the ALJ expressly considered Dr. Wiley’s opinions, but
found them of “limited persuasive value[,]” explaining as follows:

The claimant has been engaging in therapy for generalized anxiety disorder since
October 2018, with therapist Dr. Robin C. Wiley, LCSW. In a statement from
October 2020, Dr. Wiley indicated that they were addressing stressors related to
physical health, work issues and family dynamics. Triggers for anxiety and
depression were being explored. The claimant’s goals included increasing coping
skills related to managing stress and supporting transition to retirement. The
claimant was described as continuing to experience anxiety accompanied by
periods of depression, which “at times impair her ability to function optimally.”
She was noted as continuing to experience worry related to life stressors and
occasional panic attacks. (Exhibits 11F and 12F). These letters are of limited
persuasive value. While they are not functional opinions, have been considered.
These summarize the circumstances for which the claimant sought counseling and
the type of help she’s receiving. However, there is no function by function
analysis regarding the claimant’s work related abilities and/or limitations. There
are no mental health assessments provided indicating there are any cognitive,
memory, concentration or social interaction issues interfering with the claimant’s
ability to function in a work-like setting. Therefore, they are of limited persuasive
value.

As noted above, at multiple medical appointments, the claimant has denied
anxiety or depression and presents as alert, oriented, with no overt symptoms of
anxiety or depression, and fully precipitating [sic] regarding medical decision
making. (Exhibits 2F, 4F, 6F and 9F).

R. 25. In other words, although the ALJ properly found that Dr. Wiley had not provided
functional opinions, she went on to consider Dr. Wiley’s findings and reports and implicitly
considered the supportability and consistency of those findings and reports, as well as Plaintiff’s
treating relationship with Dr. Wiley and that provider’s specialty. Id. Moreover, the ALJ
properly noted that the record contained no mental health assessments indicating any cognitive,
memory, concentration or social interaction issue interfering with Plaintiff’s ability to function in
a work-like setting. Id. Indeed, the ALJ expressly considered that Plaintiff denied anxiety and
36
depression and presented as alert, oriented, with no symptoms of anxiety or depression and fully
participating in the medical decision-making. Id. The Court finds no error with the ALJ’s
consideration in this regard. See 20 C.F.R. §§ 404.1513(a)(2), 404.1520c(c)(1), (2), (3), (4);
Scheel, 2021 WL 4477163, at *4; Perry, 2021 WL 1701300, at *17; cf. Louis, 808 F. App’x at

121.
Plaintiff insists that Dr. Wiley rendered an opinion on “how Plaintiff’s mental health
impairments interfere with her ability to function in a work-like setting and should have been
properly considered.” Plaintiff’s Memorandum of Law, ECF No. 14, p. 26. As detailed above by
the ALJ, R. 25, and as this Court has already quoted in detail, Dr. Wiley did not in fact offer a
function-by-function analysis of Plaintiff’s work-related abilities and/or limitations. R. 673–74.
To the extent that Plaintiff contends that Dr. Wiley’s statement that Plaintiff “continues to
experience anxiety accompanied by periods of depression which at times impair[s] her ability to
function optimally” qualifies as a functional limitation, the ALJ expressly considered this
statement. R. 25. Even assuming that the ALJ erred in failing to more fully discuss this portion of

Dr. Wiley’s statement, any such error is harmless. Dr. Wiley’s statement is, at best, ambiguous
and lacks any specification as to how or in what degree Plaintiff’s mental conditions impair her.
See id. Under these circumstances, the Court concludes that the ALJ did not err in discounting
any opinion of Dr. Wiley and in failing to include otherwise unidentified limitations in the RFC
in light of any such opinion. See Perry, 2021 WL 1701300, at *17.
Plaintiff goes on to complain that the ALJ erred in relying on the opinions of the state
agency reviewing consultants rather than on Dr. Brown and Dr. Wiley, who personally examined
Plaintiff. Plaintiff’s Reply Brief, ECF No. 24, pp. 8–9. Because, for the reasons already
discussed, substantial evidence supports the ALJ’s consideration of the findings of Dr. Brown

37
and Dr. Wiley, Plaintiff’s argument is not well taken. Moreover, the state agency consultants
expressly considered Dr. Brown’s report and concluded that his findings “[we]re contraindicative
of [the] presence of any diagnosable mental [disorder] beyond mild adjustment [disorder].” R.
104, 106. Notably, as set forth in the ALJ’s recitation of the evidence at step four, including

normal or only mild mental status examination findings, the ALJ ultimately found no functional
limitations flowing from those impairments, a determination that is supported by substantial
evidence. R. 20–25; see also D.C. v. Comm’r of Soc. Sec., No. CV 20-2484, 2021 WL 1851830,
at *6 (D.N.J. May 10, 2021) (“[T]he Commissioner is correct that an RFC assessment does not
need to contain in-depth analysis on mental impairments when the ALJ finds earlier in his
opinion that a claimant’s mental impairments are no greater than mild. . . . Thus, even if the
ALJ’s failure to analyze the mild mental limitations constituted an error, a dubious proposition, it
still does not warrant reversal.”); cf. Younge v. Berryhill, No. CV 16-5271, 2017 WL 2978758, at
*13 (E.D. Pa. May 31, 2017) (“The ALJ adequately discussed why plaintiff’s mental impairment
was not severe, and was therefore not required to discuss the mental impairment in the RFC

evaluation. As such, we find that the ALJ properly formulated the RFC assessment” that did not
include any mental limitations); Marchionna v. Comm’r of Soc. Sec., No. 13-329, 2015 WL
12550917, at *2 (W.D. Pa. Jan. 29, 2015) (finding “no error with respect to the failure to include
social functioning limitations in the RFC” where the Plaintiff had only “mild difficulties” in
social functioning and a medical opinion to which the ALJ assigned great weight found that
“Plaintiff was not significantly limited in any area of social interaction or adaptation”). While
Plaintiff disagrees with the ALJ’s failure to include any mental limitations in the RFC, Plaintiff’s
disagreement with the ALJ—whose duty it isto craft the RFC and whose decision the Court has
already explained is supported by substantial evidence—will not serve as a basis for remand of

38
this matter. See Chandler, 667 F.3d at 361; Perkins, 79 F. App’x at 514–15; Markoch, 2020 WL
7586953, at *4–5. The Court therefore declines Plaintiff’s invitation to re-weigh the evidence or
to impose her—or this Court’s—own factual determination in this regard. See Chandler, 667 F.3d
at 359; Zirnsak, 777 F.3d at 611.

In short, for all these reasons, the Court concludes that the ALJ’s findings regarding
Plaintiff’s RFC are consistent with the record evidence and enjoy substantial support in the
record, as does her consideration of Dr. Brown’s assessment and Dr. Wiley’s opinions.
C. Plaintiff’s Subjective Statements
Plaintiff also challenges the ALJ’s consideration of her subjective complaints, contending
that her testimony—particularly regarding her complaints of dizziness, fatigue, and mental
impairments—is consistent with the ecord evidence. Plaintiff’s Memorandum of Law, ECF No.
14, pp. 29–32; Plaintiff’s Reply Brief, ECF No. 24, p. 9. Plaintiff’s arguments are not well taken.
“Subjective allegations of pain or other symptoms cannot alone establish a disability.”

Miller v. Comm’r of Soc. Sec., 719 F. App’x 130, 134 (3d Cir. 2017) (citing 20 C.F.R. §
416.929(a)). Instead, objective medical evidence must corroborate a claimant’s subjective
complaints. Prokopick v. Comm’r of Soc. Sec., 272 F. App’x 196, 199 (3d Cir. 2008) (citing 20
C.F.R. § 404.1529(a)). Specifically, an ALJ must follow a two-step process in evaluating a
claimant’s subjective complaints. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). First, the ALJ
“must consider whether there is an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an individual’s symptoms, such as
pain.” Id. “Second, once an underlying physical or mental impairment(s) that could reasonably
be expected to produce an individual’s symptoms is established, [the ALJ] evaluate[s] the
intensity and persistence of those symptoms to determine the extent to which the symptoms limit

39
an individual’s ability to perform work-related activities[.]” Id. See also Hartranft v. Apfel, 181
F.3d 358, 362 (3d Cir. 1999) (“[Evaluation of the intensity and persistence of the pain or
symptom and the extent to which it affects the ability to work] obviously requires the ALJ to
determine the extent to which a claimant is accurately stating the degree of pain or the extent to

which he or she is disabled by it.”) (citing 20 C.F.R. § 404.1529(c)). In conducting this
evaluation, an ALJ must consider the objective medical evidence as well as other evidence
relevant to a claimant’s subjective symptoms. 20 C.F.R. § 404.1529(c)(3) (listing the following
factors to consider: daily activities; the location, duration, frequency, and intensity of pain or
other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side
effects of any medication you take or have taken to alleviate pain or other symptoms; treatment,
other than medication, currently received or have received for relief of pain or other symptoms;
any measures currently used or have used to relieve pain or other symptoms; and other factors
concerning your functional limitations and restrictions due to pain or other symptoms). Finally,
an “ALJ has wide discretion to weigh the claimant’s subjective complaints, Van Horn v.

Schweiker, 717 F.2d 871, 873 (3d Cir. 1983), and may discount them where they are unsupported
by other relevant objective evidence.” Miller, 719 F. App’x at 134 (citing 20 C.F.R. §
416.929(c)); see also Izzo v. Comm’r of Soc. Sec., 186 F. App’x 280, 286 (3d Cir. 2006) (“[A]
reviewing court typically defers to an ALJ’s credibility determination so long as there is a
sufficient basis for the ALJ’s decision to discredit a witness.”).
Here, the ALJ followed this two-step evaluation process. The ALJ specifically considered
Plaintiff’s subjective complaints. R. 20–25. The ALJ found that Plaintiff’s medically
determinable impairments could reasonably be expected to cause symptoms, but that Plaintiff’s
statements “concerning the intensity, persistence and limiting effects of these symptoms are not

40
entirely consistent with the medical evidence and other evidence in the record for the reasons
explained in this decision.” R. 21. As previously discussed, the ALJ detailed years of medical
evidence and record testimony to support her findings, including, inter alia, Plaintiff’s testimony
at the initial hearing that she stopped working as a teacher in June 2019 due to impairments and

other reasons, but testified at the subsequent administrative hearing that she retired from teaching
due to issues with teachers and the administration; her daily activities; the fact that she did not
need an assistive device for walking or balance and walked with a normal gait; shoulder imaging
that showed no acute findings or unremarkable findings; the fact that Plaintiff presented at
appointments as alert and oriented, with normal mood/affect or no evidence of overt discomfort,
anxiety or depression, and was active in the decision making process; findings that she had
average cognitive function and fair insight; the finding that Plaintiff had “good exercise tolerance
for her age”; the recommendation that Plaintiff exercise 150 minutes a week and be on her feet
40 hours a week; Plaintiff’s statement in July 2019 that her fatigue was improving and the
February 2020 notation by her cardiologist that Plaintiff continued to “have low sleep but seems

to be fine as no daytime sleepiness”; and examination findings of full range of motion, full
muscle strength, and no noted tender points. R. 21–25. The ALJ also explained that she did not
completely dismiss Plaintiff’s complaints; instead, she explained that she fashioned an RFC that
took into consideration Plaintiff’s conditions:
In summary, while the claimant has medically determinable impairments that
could reasonably cause some symptoms and limitations, the allegations are
considerably broader and more restricted than is established by the medical
evidence. This is not to say that the claimant was symptom free or did not
experience difficulty performing some tasks. However, the objective evidence
does not demonstrate the existence of limitations of such severity as to have
precluded the claimant from performing all work on a regular and continuing
basis at any time from the alleged onset date of disability.

41
The claimant’s complaints have not been completely dismissed, but rather, have
been included in the residual functional capacity assessment, to the extent that
they are consistent with the evidence as a whole. The claimants degenerative disc
disease, various joint pains and diagnosed immune deficiency related conditions
have been considered in limiting the claimant to work related activity at a light
exertional level with restrictions regarding climbing and postural movements.
Avoidance of temperature extremes and pulmonary irritants takes into account the
claimant’s diagnosed immune disorders.

R. 25. In the view of this Court, the record in this action provides substantial support for the
ALJ’s decision to discount somewhat Plaintiff’s subjective statements. See Van Horn, 717 F.2d
at 873; Miller, 719 F. App’x at 134; Izzo, 186 F. App’x at 286.
Plaintiff challenges the ALJ’s reasoning in this regard, arguing first that the ALJ erred in
failing to provide any analysis as to how Plaintiff’s statements were considered; Plaintiff
specifically contends that her testimony and the record were, in fact, consistent. Plaintiff’s
Memorandum of Law, ECF No. 14, pp. 31–32 (citations omitted). This Court disagrees. The
ALJ’s detailed account of the record evidence as well as her explanation of her consideration of
this evidence belies Plaintiff’s assertion. In any event, the Court has already explained that it
must affirm the ALJ’s decision where, as here, that decision is supported by substantial evidence;
this is true, moreover, even if Plaintiff points to evidence that supports the opposite conclusion.
See Johnson, 497 F. App’x at 201.
Plaintiff also complains that the ALJ erred in failing to consider Plaintiff’s “outstanding
work history” prior to the alleged disability onset date, as required by 20 C.F.R. §
404.1529(c)(3). Plaintiff’s Memorandum of Law, ECF No. 14, p. 32. Plaintiff’s argument is not
well taken. As previously noted, the ALJ was not required to discuss every piece of evidence and
every regulatory factor. See Lewis v. Comm’r of Soc. Sec., No. CV 15-1587, 2016 WL 4718215,
at *7 (D.N.J. Sept. 9, 2016) (“The fact that the ALJ did not discuss all of the § 404.1529 factors
does not warrant remand, given that his credibility determination was supported by substantial
42
evidence.”); Mason v. Colvin, No. 15-1861, 2015 WL 6739108, at *6 (D.N.J. Nov. 3, 2015)
(“The list [of factors contained in 20 C.F.R. § 404.1529(c)] is not comprehensive, nor is it
mandatory for ALJs to go through each factor on the list in their opinions.”) (citing 20 C.F.R. §
404.1529(c)(3)). Notably, the United States Court of Appeals for the Third Circuit has upheld an

ALJ’s evaluation of a claimant’s subjective complaints where the ALJ did not “explicitly discuss
his years of uninterrupted employment[,]” but where the ALJ did explain why other evidence in
the record belied the claimant’s subjective complaints. Sanborn v. Comm’r of Soc. Sec., 613 F.
App’x 171, 177 (3d Cir. 2015); see also Forcinito v. Comm’r of Soc. Sec., No. CIV. 12-6940,
2014 WL 252095, at *9 (D.N.J. Jan. 23, 2014) (“[W]ork history is only one of many factors the
ALJ may consider in assessing claimant’s credibility. . . . Work history is not dispositive of
credibility and the question of credibility is left to the ALJ’s discretion after considering all of
the relevant factors.”) (citations omitted). In the present case, as discussed, the ALJ detailed why
other record evidence undermined Plaintiff’s subjective complaints. R. 21–25.
For all these reasons, the Court concludes that the ALJ sufficiently explained her

reasoning in assessing Plaintiff’s subjective complaints, and the ALJ’s findings in this regard are
supported by substantial evidence in the record and are therefore entitled to this Court’s
deference. See SSR 16-3p; Miller, 719 F. App’x at 134; cf. Malloy v. Comm’r of Soc. Sec., 306
F. App’x. 761, 765 (3d Cir. 2009) (“Credibility determinations as to a claimant’s testimony
regarding pain and other subjective complaints are for the ALJ to make.”) (citing Van Horn, 717
F.2d at, 873); Davis v. Comm’r Soc. Sec., 105 F. App’x 319, 322 (3d Cir. 2004) (finding that the
ALJ sufficiently evaluated the plaintiff’s testimony where “the ALJ devoted two pages to a
discussion of claimant’s subjective complaints and cited Claimant’s daily activities and objective
medical reports”). Accordingly, the ALJ’s assessment of Plaintiff’s subjective complaints will

43
not serve as a basis for remand of this action. Id.
D. Third Party Statement
Plaintiff contends that the ALJ “fail[ed] to consider” a function report completed by
Plaintiff’s daughter; Plaintiff also contends that the ALJ improperly considered that report.

Plaintiff’s Memorandum of Law, ECF No. 14, pp. 32–33.
Plaintiff’s first contention is unavailing. When crafting the RFC, the ALJ expressly
considered a function report completed by Plaintiff’s daughter, explaining as follows:
Also in August 2019, the claimant’s daughter, . . . provided a third party function
report. The claimant was noted as cooking daily, needing assistance with
overhead reaching such as for cabinets; did laundry, ironing, grocery shopped
weekly and managed her own finances. The claimant was noted as not needing
reminders for personal care or taking medication, and going outside daily
unaccompanied. The claimant was described as resting between activities, and not
going anywhere on a regular basis, preferring to stay to herself. The claimant was
described as not able to do a lot of exercise or go to the gym. Writing was also
noted as difficult. The claimant was described as able to lift about ten pounds,
getting dizzy with standing , and knee pain if walk[ing] too long. Kneeling,
squatting and stairs were noted as hurting the claimant’s knees. Some difficulty
with memory, resulting in tasks not being completed was described, as well as
difficulty with concentration. The claimant was noted as handling stress as well as
anyone else, asking for help if things got too much. The claimant was noted as not
changing her routine. (Exhibit 4E). This assessment has been read and considered,
and reflects that the claimant is capable of performing a wide range of daily tasks.

R. 21. Plaintiff’s first contention in this regard is without merit.
In her second contention, Plaintiff argues that the ALJ failed to properly consider the
report of Plaintiff’s daughter because the ALJ cherry picked portions “to show that Plaintiff is
not disabled at the exclusion of evidence therein which supports a finding of disability.”
Plaintiff’s Memorandum of Law, ECF No. 14, p. 33. In advancing this argument, Plaintiff
concedes that Plaintiff can in fact cook, do laundry, iron, read, watch TV, and write, but she
notes that her daughter also stated that Plaintiff needed assistance in reaching overhead while
cooking; used the microwave for cooking because it was too painful to pick up pots and pans,
44
wash dishes, or reach in cabinets; that Plaintiff finds it difficult to remember things, so tasks are
not always completed and she needs instructions to be repeated and cannot concentrate; that she
rests between activities and goes nowhere regularly. Id. (citations omitted). The Court is not
persuaded that this issue requires remand. As detailed above and contrary to Plaintiff’s assertion

of cherry picking, the ALJ expressly considered the statements by Plaintiff’s daughter that
Plaintiff needed assistance with overhead reaching in cabinets while cooking; that Plaintiff rested
between activities; that Plaintiff went nowhere on a regular basis; and that Plaintiff had “[s]ome
difficulty with memory, resulting in tasks not being completed . . . as well as difficulty with
concentration.” R. 21. To the extent that these statements conflicted with the daughter’s other
statements regarding Plaintiff’s abilities and functions, i.e., that Plaintiff cooked daily, did
laundry, ironing, weekly grocery shopping, and managing her own finances, needed no
reminders for personal care or taking medication, went outside daily unaccompanied, and
handled stress as well as anyone else and asked for help if things got too much, the ALJ properly
resolved that conflict. See id.; see also Hatton., 131 F. App’x 880 (“When ‘presented with the

not uncommon situation of conflicting medical evidence . . . [t]he trier of fact has the duty to
resolve that conflict.’”) (quoting Richardson, 402 U.S. 399). Accordingly, substantial evidence
supports the ALJ’s statement that she read and considered the report of Plaintiff’s daughter,
which “reflects that the claimant is capable of performing a wide range of daily tasks.” R. 21; see
also Chandler, 667 F.3d at 359; Perkins, 79 F. App’x at 514–15.
E. Past Relevant Work
Plaintiff also challenges the ALJ’s finding that Plaintiff could perform her past relevant
work as a teacher. Plaintiff’s Memorandum of Law, ECF No. 14, pp. 33–36; Plaintiff’s Reply
Brief, ECF No. 24, pp. 9–10. Plaintiff specifically argues that the ALJ did not provide specific

45
findings or analysis regarding the physical and mental demands of this work as required by SSR
82-62; that Plaintiff’s subjective complaints show that she cannot perform the physical and
mental requirements of her past relevant work; and that the ALJ improperly rejected the
established mild mental impairments that would preclude the performance of her past relevant

work as a teacher. Id. Plaintiff’s arguments are not well taken.
At step four of the sequential evaluation, “[t]he claimant bears the burden of
demonstrating an inability to return to [her] past relevant work.” Plummer, 186 F.3d at 428.
“Past relevant work is work that [the claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it.” 20
C.F.R. § 404.1560(b)(1). An ALJ must consider whether the claimant has the RFC to perform
her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). In making this assessment, the ALJ must
do three things:
(1) the ALJ must make specific findings of fact as to the claimant’s residual
functional capacity; (2) the ALJ must make findings of the physical and mental
demands of the claimant’s past work; and (3) the ALJ must compare the residual
functional capacity to the past relevant work to determine whether claimant has
the level of capability needed to perform the past relevant work.

Garibay v. Comm’r of Soc. Sec., 336 F. App’x 152, 158 (3d Cir. 2009) (quoting Burnett, 220
F.3d at 120). SSR 82-62 identifies the evidence that the ALJ should consider in making this
determination:
The claimant is the primary source for vocational documentation, and statements
by the claimant regarding past work are generally sufficient for determining the
skill level, exertional demands and nonexertional demands of such work.
Determination of the claimant’s ability to do PRW requires a careful appraisal of
(1) the individual’s statements as to which past work requirements can no longer
be met and the reason(s) for his or her inability to meet those requirements; (2)
medical evidence establishing how the impairment limits ability to meet the
physical and mental requirements of the work; and (3) in some cases,
supplementary or corroborative information from other sources such as
46
employers, the Dictionary of Occupational Titles, etc., on the requirements of the
work as generally performed in the economy.

SSR 82-62; see also Garibay, 336 F. App’x at 158.
In the present case, the ALJ questioned the vocational expert about Plaintiff’s past
relevant work, which the vocational expert classified as a high school teacher, a light exertional
job. R. 693. The ALJ also asked the vocational expert to assume an individual with the RFC
ultimately found by the ALJ and Plaintiff’s vocational profile; in response, the vocational expert
testified that such an individual could perform that teaching job. R. 695–96, 698. Relying on that
testimony, the ALJ determined that Plaintiff could perform her past relevant work as a teacher,
explaining as follows:
6. The claimant is capable of performing past relevant work as a
teacher. This work does not require the performance of work-related
activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565).

The vocational expert provided testimony regarding the claimant’s past relevant
work as a teacher, Dictionary of Occupational Titles (DOT) # 091.227-010, with a
specific vocational preparation level (SVP) of seven, performed at a light
exertional level. As required by SSR 82-62, this work was substantial gainful
activity, was performed long enough for the claimant to achieve average
performance, and was performed within the relevant period. (Exhibits 2E, 6E and
testimony).

In comparing the claimant’s residual functional capacity with the physical and
mental demands of this work, the undersigned finds that the claimant is able to
perform it as actually and generally performed. Pursuant to SSR 00-4p, the
vocational expert's testimony is found to be consistent with the information
contained in the Dictionary of Occupational Titles (DOT). The portion of
testimony not discussed in the DOT, such as information regarding absenteeism,
breaks and time on task, is based on the vocational expert’s knowledge,
education, training and experience. (Exhibit 15E).

R. 26. This discussion, as well as the ALJ’s detailed consideration of the record evidence,
including Plaintiff’s statements and hearing testimony and the ALJ’s reliance on the testimony of
the vocational expert at step four, R. 20–25, R. 693–703 (vocational expert testimony at
47
supplemental administrative hearing) contradicts Plaintiff’s assertion that the ALJ failed to
properly consider the evidence or otherwise provide specific findings or analysis regarding the
physical and mental demands of work as required by SSR 82-62.
To the extent that Plaintiff challenges the finding that Plaintiff could perform her past

relevant work as a teacher, on the ground that Plaintiff’s has greater limitations than those found
by the ALJ, this Court has already explained that substantial evidence supports the ALJ’s
determination that Plaintiff had no additional or different physical or mental limitations other
than those included in the RFC determination. Accordingly, the Court is not persuaded that the
ALJ erred in determining that Plaintiff could perform her past relevant work as a high school
teacher.
F. Constitutionality of Appointment of Commissioner
Finally, Plaintiff challenges the constitutionality of the appointment of a former
Commissioner of Social Security, arguing that the appointment violated the constitutional
separation of powers. Plaintiff’s Memorandum of Law, ECF No. 14, pp. 36–38; Plaintiff’s Reply

Brief, ECF No. 24, pp. 11–17. This Court has previously rejected similar challenges, reasoning
as follows:
The Plaintiff alleges that the Social Security proceedings in their entirety were
constitutionally defective because of the appointment of Andrew Saul as
Commissioner of the Social Security Administration. (ECF 10 at 31). The parties
agree that 42 U.S.C. § 902(a)(3) violates the separation of powers clause to the
extent that it is construed as limiting the President’s authority to remove the
Commissioner without cause. (ECF 15 at 36). Plaintiff argues that because of this
violation, the appointed ALJ and the Appeals Council did not have constitutional
authority to render a decision on Plaintiff's case. (ECF 10 at 32).

While Plaintiff argues to the contrary, the Supreme Court has already stated that
there is no basis to conclude that an appropriately appointed official does not have
the authority to carry out the functions of the office, even if his or her position
was designed by Congress to impermissibly impinge on the President’s right to
removal at will. Collins v. Yellen, ––– U.S. ––––, 141 S. Ct. 1761, 1787-88, 1788
48
n.23, 210 L.Ed.2d 432 (2021) (plurality opinion) (“As we have explained, there is
no basis for concluding that any head of the FHFA lacked the authority to carry
out the functions of his office.”).

The Appointment Clause cases do not help the shareholders either. These
cases also ask whether an officer can lawfully exercise the statutory power
of his office at all in light of the rule that an office must be properly
appointed before he can legally act as an officer.... Here, “[a]ll the officers
who headed the FHFA during the time in question were properly
appointed.” There is thus no barrier to them exercising power in the first
instance.

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

Similarly, the Court addressed that the idea that the “taint” of the “mere
existence” of the offending removal provision flows down through the executive
power exercised by the officer was unavailing. Id. at 1788, 1793 (“[W]e have not
held that a misunderstanding about authority results in a constitutional defect
where the action was otherwise lawful.”).

The plurality opinion addresses the most pressing issue: that there must be an
adequate nexus between the unconstitutional provision and the case at bar. See id.
at 1779 (“for purposes of traceability, the relevant inquiry is whether the
plaintiffs’ injury can be traced to ‘allegedly unlawful conduct’ of the defendant,
not to the provision of the law that is challenged.”). So too do the concurring
opinions of Justices Thomas and Kagan: “I write separately because I worry that
the Court and the parties have glossed over a fundamental problem with removal-
restriction cases such as these: The Government does not necessarily act
unlawfully even if a removal restriction is unlawful in the abstract.” Id. at 1789
(Thomas, J. concurring). Similarly, “[w]hen an agency decision would not capture
a President’s attention, his removal authority could not make a difference—and so
no injunction should issue.” Id. at 1802 (Kagan, J. concurring). See also Mor v.
Kijakazi, No. 21-1730, 2022 WL 73510, at *4-5 (D.N.J. Jan. 6, 2022).

The Court must now consider, then, whether Plaintiff has sufficiently established
a concrete injury inflicted by 42 U.S.C. § 902(a)(3) upon Plaintiff through the
ALJ's final decision of finding the Plaintiff not disabled and the Appeals Council's
denial of review. Without standing, there is no “case or controversy” to be
decided. Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d
635 (2016). Plaintiff argues that both the ALJ and the Appeals Council have
inflicted the harm of unconstitutional proceedings against Plaintiff and the
subsequent denial of benefits. (ECF 10 at 32).

First, the Third Circuit has already expressly stated that “[n]o statutory authority,
(the source of the district court's review) authorizes [district courts] to review the
Appeals Council decision to deny review,” because the Appeals Council exercises
49
“‘certiorari-type jurisdiction,’” and renders an ALJ’s decision final under the
Social Security Act. Kwasnik v. Kijakazi, No. 21-08573, 2022 WL 2358424, at
*10, 2022 U.S. Dist. LEXIS 116234, at * 30 (D.N.J. Jun. 30, 2022); see also
Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001). Thus, this Court does not
have the authority to examine the Appeals Council’s decision.

Second, the Plaintiff fails to establish a causal connection between the harm of the
ALJ’s decision and the impermissible removal provision. As discussed above, and
as found by other courts, the mere “taint” of the head of an agency does not
establish a sufficient nexus for standing. See Kwasnik v. Kijakazi, No. 21-08573,
2022 WL 2358424, at *––––, 2022 U.S. Dist. LEXIS 116234, at *33-34 (D.N.J.
Jun. 30, 2022) (citing Andino v. Kijakazi, No. 21-2852, 2022 WL 1135010, at *6-
7 (E.D. Pa. April 18, 2022) (“Justice Alito specified in Collins that Seila Law's
holding on standing ‘does not mean that actions taken by such an officer are void
ab initio and must be undone.’ ... [I]t is not difficult to see that Collins requires
Andino to demonstrate a nexus between the decision denying her disability
benefits and 42 U.S.C. § 902(a)(3).”); Mor v. Kijakazi, No. 21-1730, 2022 WL
73510, at *5 (D.N.J. Jan. 7, 2022) (“Plaintiff fails to point to any connection
between the Commissioner’s removal under Section 902(a)(3) and the ALJ’s
decision (or any other action in this case). As a result, the requisite nexus is not
met, and the Court denies Plaintiff’s appeal on this ground.”); see also Ford v.
Kijakazi, No. 21-1432, 2022 WL 1203731, at *6 (E.D. Pa. Apr. 22, 2022)
(denying separation of powers claim because plaintiff failed to show “harm
caused by Saul exercising authority he retained by virtue of the unconstitutional
removal clause.”).

As Justice Kagan noted in Collins, for the Court to redress an injury due to an
agency decision made by an agency headed by a single executive subject to an
impermissible for-cause removal protection, that agency’s decision would need to
“capture a President’s attention.” Collins, 141 S. Ct. at 1801-02. Justice Kagan
specifically noted that the “mass” of Social Security Administration decisions
would likely not create a harm that would allow for redress. Id. (“[O]nly when the
President’s inability to fire an agency head affected the complained-of decision.
Only then is relief needed to restore the plaintiffs to the position they ‘would have
occupied in the absence’ of the removal problem.”).

Plaintiff points to a statement by President Biden which purports to indicate that
President Biden wanted to fire Commissioner Saul. (ECF 16 at 18). Plaintiff
points to the below quote in particular to demonstrate that President Biden wanted
to fire the Commissioner from the time of the President’s inauguration on January
20, 2021:

Since taking office, Commissioner Saul has undermined and politicized
Social Security disability benefits, terminated the agency’s telework
policy that was utilized by up to 25 percent of the agency’s workforce, not
repaired the SSA’s relationships with relevant Federal employee unions
50
including in the context of COVID-19 workplace safety planning, reduced
due process protections for benefits appeals hearings, and taken other
actions that run contrary to the mission of the agency and the President’s
policy agenda.

Id.

First, these harms listed in the news article quote are general and do not show the
required concrete, personal, and causal harm required to establish standing. To
establish standing, “a plaintiff must show that it has suffered ‘an injury in fact’
that is ‘fairly traceable’ to the defendant’s conduct and would likely be ‘redressed
by a favorable decision.’” Collins, 141 S. Ct. at 1779 (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
“[F]or purposes of traceability, the relevant inquiry is whether the plaintiffs’
injury can be traced to ‘allegedly unlawful conduct’ of the defendant, not to the
provision of law that is challenged.” Id. (quoting Allen v. Wright, 468 U.S. 737,
751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)); see also Kwasnik v. Kijakazi, No.
21-08537, 2022 WL 2358424, at *11 (D.N.J. Jun. 30, 2022).

Plaintiff does not point to a specific legal application, policy, or decision that the
ALJ or Appeals Council rendered that had any effect on this case except for the
overall denial of benefits, which as explained above was sufficiently supported by
the record. See Johnson v. Kijakazi, No. 21-2372, 2022 WL 2342569 at *13, 2022
U.S. Dist. LEXIS 114766 at *36 (E.D. Pa. Jun. 28, 2022) (“Plaintiff has not
identified any new regulations, agency policies or directives Commissioner Saul
installed that may have affected her claims. Plaintiff thus fails to show how or
why [the unlawful] removal clause possibly harmed her.”) (internal citations
omitted).
The unconstitutionally of 42 U.S.C. § 902(a)(3)’s removal restriction simply does
not void the ALJ’s decision in this mine-run case. The adjudication process and
determination by the Social Security Administration remains valid.

John G. v. Comm’r of Soc. Sec., No. 1:21-CV-17256-NLH, 2022 WL 3678108, at *10–12
(D.N.J. Aug. 25, 2022). This decision is consistent with decisions rendered in other cases in this
District. See, e.g., Sheree J. v. Kijakazi, No. 1:21-CV-05477-NLH, 2022 WL 3211415, at *8–11
(D.N.J. Aug. 9, 2022) (same); Rebecca L. v. Comm’r of Soc. Sec., No. 1:21-CV-13848, 2022 WL
3025908, at *13–14 (D.N.J. July 31, 2022) (“Accordingly, Plaintiff has not alleged any
connection between the unconstitutional removal provision in § 902(a)(3) and the ALJ’s decision
denying Plaintiff benefits, and nothing commands us to vacate the decisions below on that
51
ground. . . . Thus, while the removal clause in § 902(a)(3) violates the separation of powers, it
does not independently require the Court to remand or reverse the ALJ’s decision absent a
showing of compensable harm.”) (internal quotation marks and citations omitted); Daniel M. v.
Comm’r of Soc. Sec., No. CV 21-10533 (RMB), 2022 WL 2952912, at *5–7 (D.N.J. July 26,

2022) (“Plaintiff has failed to show a sufficient nexus between the unconstitutional removal
restriction and the ALJ’s decision.”) (internal quotation marks and citations omitted); Margaret
S. v. Kijakazi, No. CV 21-13556 (SDW), 2022 WL 2753475, at *8–9 (D.N.J. July 14, 2022)
(“Plaintiff has offered no evidence demonstrating that 42 U.S.C. § 902(a)(3)’s removal
restriction caused the denial of her benefits claim or affected the determination of her benefits in
any way. . . . As such, further consideration from this Court on Plaintiff’s ‘separation of powers’
argument is not necessary. Accordingly, the final decision of the ALJ is not constitutionally
defective and remand is not warranted.”); Kwasnik v. Kijakazi, No. 3:21-CV-08573, 2022 WL
2358424, at *8–11 (D.N.J. June 30, 2022) (“Plaintiff has failed to show a sufficient nexus
between the unconstitutional removal restriction and the ALJ’s decision.”); Mor v. Kijakazi, No.

CV 21-1730 (JMV), 2022 WL 73510, at *3–5 (D.N.J. Jan. 7, 2022) (“Plaintiff fails to point to
any connection between the Commissioner’s removal under Section 902(a)(3) and the ALJ’s
decision (or any other action in this case.”)). Nothing in Plaintiff’s briefing in the instant case
persuades this Court that the reasoning in these cases was erroneous. The Court therefore adopts
that reasoning and concludes that Plaintiff has not established that remand is appropriate on this
basis.
VI. CONCLUSION
For these reasons, the Court AFFIRMS the Commissioner’s decision.

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The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42
U.S.C. § 405(g).
IT IS SO ORDERED.

Date: January 19, 2024 s/Norah McCann King
NORAH McCANN KING
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655911. Public record. Not legal advice.