# TAYLOR-HARMON v. COMMISSIONER OF SOCIAL SECURITY

> District Court, D. New Jersey · April 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10656024

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 16, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10656024

## How later opinions describe it (automated extraction)

- affirming ALJ’s analysis of treating physician’s opinion where inconsistent with underlying clinical findings
- explaining that for remand to be required the asserted error must “affect the outcome of the case”
- affirming ALJ’s decision, despite ALJ’s failure to explicitly address claimant’s obesity, as claimant never asserted obesity as an impairment and claimant failed to explain how ALJ’s error would “affect the outcome of the case”
- rejecting argument that ALJ erred at Step Three because claimant “never explains how, even if the ALJ’s analysis was lacking, the deficiency was harmful” and because claimant “has not affirmatively pointed to specific evidence that demonstrates he should succeed”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

VANESSA T-H.,1

Plaintiff,
Civil No. 23-2293 (RMB)
v.

COMMISSIONER OF SOCIAL OPINION
SECURITY,

Defendant.

APPEARANCES:

BROSS & FRANKEL, P.A.
By: Jennifer L. Stonage
725 Kenilworth Avenue
Cherry Hill, New Jersey 08002

On behalf of Plaintiff

SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
By: Melissa Kay Curry
6401 Security Boulevard
Baltimore, Maryland 21235

On behalf of Defendant

1 Due to the significant amount of personal information and privacy concerns
in Social Security cases, non-governmental parties are identified solely by first name
and last initial. See D.N.J. Standing Order 2021-10.
RENÉE MARIE BUMB, Chief United States District Judge:

This matter comes before the Court upon an appeal filed by Plaintiff Vanessa
T-H. (“Plaintiff”) seeking judicial review of a final determination of the
Commissioner of the Social Security Administration (the “Commissioner” and the
“SSA,” respectively). The Commissioner denied her applications for Social Security
Disability Insurance (SSDI) and Supplemental Security Income (SSI). For the reasons
set forth herein, the Commissioner’s decision will be AFFIRMED without oral

argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b).
I. PROCEDURAL HISTORY
On August 2, 2017, Plaintiff protectively filed applications for Social Security
benefits under Titles II and XVI of the Social Security Act (the “Act”), alleging an
onset date of disability beginning December 23, 2016. [Docket No. 3-3 (Administrative

Record (“R.”)), at 118.] Plaintiff’s applications were first denied on January 10, 2018,
and again denied upon reconsideration on May 19, 2018. [R. at 118.] On May 24,
2018, Plaintiff filed a written request for a hearing before an administrative law judge
(“ALJ”). [R. at 118.] That hearing took place on September 26, 2019, in Pennsauken

Township, New Jersey, before ALJ Trina Moore. [R. at 118.] Plaintiff did not timely
appear at the hearing, but she was represented by counsel. [R. at 118.] As a result, the
ALJ determined that Plaintiff had constructively waived her right to appear. [R. at
118.]
On October 16, 2019, the ALJ denied Plaintiff’s claims for benefits. [R. at 115.]
Plaintiff requested review of that decision by the Appeals Council, [see R. at 140], and
it remanded due to the ALJ’s constructive waiver determination, [R. at 140–41, 147].

The ALJ then held another hearing on April 12, 2021, via teleconference, and Plaintiff
appeared and provided testimony. [R. at 147.] During the hearing, the ALJ also heard
testimony from an impartial vocational expert (the “VE”). [R. at 147.] On August 12,
2021, the ALJ issued another unfavorable decision, finding that Plaintiff was not

disabled. [R. at 144–62.] Plaintiff requested review of that decision, which the Appeals
Council denied on February 21, 2023. [R. at 1.] The ALJ’s decision thus became final.
See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). Accordingly, on
April 25, 2023, Plaintiff timely sought this Court’s review pursuant to 42 U.S.C. §
405(g). [Compl., Docket No. 1.]

II. LEGAL STANDARDS
A. Establishing Disability under the Social Security Act.
Every qualifying individual who is under a “disability” can apply for disability
insurance benefits (SSDI), see 42 U.S.C. § 423(a)(1), and, under certain additional
conditions not relevant here, supplemental security income (SSI), see 42 U.S.C. §

1382(a). The term “disability” generally means an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A); accord id. § 1382c(a)(3)(A). “A claimant is considered unable to engage
in any substantial activity ‘only if his physical or mental impairment or impairments
are of such severity that he is not only unable to do his previous work but cannot,

considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.’ ” Plummer v. Apfel, 186
F.3d 422, 427–28 (3d Cir. 1999) (quoting 42 U.S.C. § 423(d)(2)(A)); accord 42 U.S.C.
§ 1382c(a)(3)(B). The burden of proving disability is on the claimant. Sanborn v.

Comm’r of Soc. Sec., 613 F. App’x 171, 174 (3d Cir. 2015) (citing 42 U.S.C. §
423(d)(5)(A); 20 C.F.R. § 404.1512(a)).
To determine whether a claimant is disabled, the SSA, working through the
ALJs, follows a now familiar five-step sequential analysis. See 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The claimant bears the burden of proof at steps one

through four, whereas the SSA bears the burden of proof at step five. Hess v. Comm’r
of Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019); Plummer, 186 F.3d at 428. The five-step
sequential analysis proceeds as follows:
At step one, the ALJ determines whether the claimant is
performing “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i),
416.920(a)(4)(i). If he is, he is not disabled. Id. Otherwise, the ALJ moves
on to step two.

At step two, the ALJ considers whether the claimant has any
“severe medically determinable physical or mental impairment” that
meets certain regulatory requirements. Id. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). A “severe impairment” is one that “significantly limits
[the claimant’s] physical or mental ability to do basic work activities[.]”
Id. §§ 404.1520(c), 416.920(c). If the claimant lacks such an impairment,
he is not disabled. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If he has
such an impairment, the ALJ moves on to step three.

At step three, the ALJ decides “whether the claimant’s
impairments meet or equal the requirements of an impairment listed in
the regulations.” [Smith v. Comm’r of Soc. Sec.], 631 F.3d [632, 634 (3d Cir.
2010)]. If the claimant’s impairments do, he is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If they do not, the ALJ moves on
to step four.

At step four, the ALJ assesses the claimant’s “residual functional
capacity” (“RFC”) and whether he can perform his “past relevant work.”
Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). A claimant’s “[RFC] is the
most [he] can still do despite [his] limitations.” Id. §§ 404.1545(a)(1),
416.945(a)(1). If the claimant can perform his past relevant work despite
his limitations, he is not disabled. Id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If he cannot, the ALJ moves on to step five.

At step five, the ALJ examines whether the claimant “can make
an adjustment to other work[,]” considering his “[RFC,] . . . age,
education, and work experience.” Id. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). That examination typically involves “one or more
hypothetical questions posed by the ALJ to [a] vocational expert.”
Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). If the claimant can
make an adjustment to other work, he is not disabled. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). If he cannot, he is disabled.

Hess, 931 F.3d at 201–02 (some alterations omitted) (defined term added). The
sequential analysis applies identically to applications for disability insurance benefits
and supplemental security income under Title II and Title XVI of the Act, respectively.
Barnhart v. Thomas, 540 U.S. 20, 24 (2003); McCrea v. Comm’r of Soc. Sec., 370 F.3d 357,
360 n.3 (3d Cir. 2004).2

2 As a result, to the extent the Court does not provide a parallel citation to the
Title XVI regulations, the Court observes that they operate no differently in any
material way from the Title II regulations.
B. The District Court’s Standard of Review.
When reviewing a final decision of an ALJ regarding a claim for disability

benefits, a court must uphold the ALJ’s factual decisions if they are supported by
“substantial evidence.” Hess v. Comm’r of Soc. Sec., 931 F.3d 198, 208 n.10 (3d Cir.
2019); 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence” means “more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Albert Einstein Med.
Ctr. v. Sebelius, 566 F.3d 368, 372 (3d Cir. 2009). This threshold for evidentiary
sufficiency is “not high.” Biestek v. Beryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 (2019).
It is an extremely deferential standard. A district court may not overturn an ALJ’s
decision simply because it might have reached a different conclusion. See 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)).
In addition to the “substantial evidence” inquiry, the court must also ensure that

the ALJ applied the correct legal standards. See Sykes v. Apfel, 228 F.3d 259, 262 (3d
Cir. 2000); Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983). The Court’s review
of legal issues is plenary. Hess, 931 F.3d at 208 n.10 (citing Chandler, 667 F.3d at 359).
After reviewing the entire administrative record, a district court may affirm, modify,
or reverse the decision of the ALJ, with or without remand to the Commissioner for
rehearing. 42 U.S.C. § 405(g); Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

III. FACTUAL BACKGROUND
The Court recites only those facts that are necessary to its determination on
appeal. On August 3 and 29, 2017, Plaintiff applied for disability insurance benefits
and supplemental security income, respectively, based on the following asserted
impairments: fibromyalgia; anxiety; back pain; shoulder, neck, and hand pain; mitral

valve prolapse; high cholesterol; and arthritis in both knees. [R. at 322–32, 388.]
Plaintiff met the insured status requirements of the Act through March 31, 2017,
meaning that she must establish disability on or before that date to be entitled to
disability insurance benefits. [R. at 148.] Plaintiff was 53 years old at the alleged onset
date (i.e., December 23, 2016). [R. at 57.]

In her decision, the ALJ adopted the below findings in support of her conclusion
that Plaintiff has not been disabled within the meaning of the Act from the alleged
onset date through the date of the ALJ’s decision:
At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since December 23, 2016. [R. at 150.]

At Step Two, the ALJ found that Plaintiff suffered from the following severe
impairments: degenerative disc disease of the cervical spine and degenerative arthritis
of the left knee. [R. at 150.]
At Step Three, the ALJ then found that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). [R. at 153.]
At Step Four, the ALJ found that Plaintiff had the RFC: “to perform a full range

of light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b).” [R. at 154.]
In light of Plaintiff’s RFC, the ALJ found at Step Five that she was capable of
performing past relevant work as a security guard. [R. at 161.] Accordingly, the ALJ
concluded that Plaintiff was not disabled. [R. at 162.]
IV. DISCUSSION

Challenging the ALJ’s decision, Plaintiff raises two arguments in support of
remanding this case for reconsideration. First, she contends that the ALJ “erred by
omitting multiple impairments at Step Two of her determination and further
compounded that error by failing to include limitations consistent with the same in the

RFC.” [Pl.’s Br. at 2; see also id. at 15–20.] Second, she asserts that the ALJ “erred by
finding multiple impairments non-severe at Step Two and further compounded that
error by failing to include limitations consistent with the same in the RFC.” [Id. at 2;
see also id. at 20–25.] The Court addresses these arguments in turn.
A. The ALJ’s Consideration of Plaintiff’s Cervical and Lumbar
Radiculopathy, Lumbar Degenerative Disc Disease, and Obesity.
First, Plaintiff contends that the ALJ failed to consider whether her cervical and
lumbar radiculopathy, lumbar degenerative disc disease, and obesity were severe
impairments and whether these impairments were consistent with an RFC to perform

“light work.” [Pl.’s Br. at 15–20.] In response, the Commissioner argues that any
failure to identify these impairments as severe or non-severe is harmless because the
ALJ considered them in connection with her RFC analysis. [Def.’s Opp’n at 7–8.] In
any case, Plaintiff’s argument fails, the Commissioner asserts, because she has not

identified any basis to conclude that additional limitations on her RFC are required.
[Id. at 8–10.] The Court agrees: Plaintiff’s first argument lacks merit.
At Step Two, the ALJ determines whether the claimant’s asserted impairments
are “severe.” Hess, 931 F.3d 201 (citing 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii)). An impairment is “severe” if it “ ‘significantly limits [the

claimant’s] physical or mental ability to do basic work activities[.]’ ” Id. (citing 20
C.F.R. §§ 404.1520(c), 416.920(c)). When making this determination, the ALJ must
consider every impairment a claimant identifies or about which the ALJ has received
evidence. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005); see also 20 C.F.R. §

404.1512(a)(1) (“[The SSA] will consider only impairment(s) [the claimant] say[s]
[she] ha[s] or about which [it] receive[s] evidence.”); accord id. § 416.912(a)(1).
Moreover, the ALJ is required to consider the combined effect of the claimant’s
impairments, not just each asserted impairment in isolation. 42 U.S.C. § 423(d)(2)(B);
see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The inquiry is sometimes referred to as

“a de minimis screening device” to “dispose of groundless claims,” Newell v. Comm’r of
Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003); see also Bowen v. Yuckert, 482 U.S. 137, 153
(1987), as a claimant cannot be found to be disabled if she does not have at least one
severe impairment, see Hess, 931 F.3d at 201. Thus, to satisfy Step Two, a claimant
“need only demonstrate something beyond ‘a slight abnormality or a combination of
slight abnormalities which would have no more than a minimal effect on an
individual’s ability to work.’” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir.
2004) (quoting SSR 85-28, 1985 WL 56856, at *3).

Here, the ALJ found that Plaintiff had two severe impairments: degenerative
disc disease of the cervical spine and degenerative arthritis of the left knee. [R. at 150.]
In so finding, the ALJ concluded that the following impairments were non-severe:
fibromyalgia, mitral valve prolapse, hyperlipidemia, carpal tunnel syndrome, “fifth toe
amputation” residuals, depression and anxiety. [R. at 150; see also R. at 150–53

(explaining reasoning).] Omitted from the ALJ’s Step Two determination is any
finding regarding cervical and lumbar radiculopathy, lumbar degenerative disc
disease, and obesity, which Plaintiff asserts to be reversible error. [See Pl.’s Br. at 19.]
This omission is not a basis to remand for two related reasons.

First, the ALJ’s failure to identify Plaintiff’s cervical and lumbar radiculopathy,
lumbar degenerative disc disease, and obesity at Step Two is harmless. It is well
established that any omission of an impairment at Step Two is harmless error,
provided that the ALJ determines that the claimant has at least one severe impairment
and continues onto the subsequent steps of the sequential analysis. See, e.g., Salles v.

Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007) (“Because the ALJ found
in [Plaintiff’s] favor at Step Two, even if [s]he had erroneously concluded that some
of her other impairments were non-severe, any error was harmless.”) (citing Rutherford,
399 F.3d at 553). Here, as observed above, the ALJ did not end her analysis at Step
Two, so the relevant questions are whether she “considered the missing medically
determinable impairment[s] in the RFC determination” and whether the omission at
Step Two would “otherwise affect the outcome of the case.” Friday v. Comm’r of Soc.
Sec., 2021 WL 3879081, at *4 (D.N.J. Aug. 31, 2021); see also Rutherford, 399 F.3d at

553 (explaining that for remand to be required the asserted error must “affect the
outcome of the case”). This inquiry follows because the RFC assessment requires
consideration of “all [] [the claimant’s] medically determinable impairments of which
[the ALJ] [is] aware, including [the claimant’s] medically determinable impairments
that are not ‘severe.’” 20 C.F.R. § 404.1545(a)(2); accord id. § 416.945(a)(2). So long

as the ALJ appropriately considered the claimant’s impairments in her RFC
assessment, there is not typically a basis for courts to remand to address the Step-Two
determination. See, e.g., Sara W. v. Comm’r of Soc. Sec., 2024 WL 658047, at *4 (D.N.J.
Feb. 16, 2024) (Bumb, C.J.) (determining that ALJ’s failure to consider cervical spine

impairment at Step Two was harmless because ALJ addressed it in connection with
RFC assessment).
On this score, Plaintiff argues that despite “objective medical findings,” the ALJ
“simply failed to account for the Plaintiff’s well documented impairments” and “did
not put forth a sound rationale for their outright rejection” in connection with her RFC

determination. [Pl.’s Br. at 19.] Consider Plaintiff’s radiculopathy and lumbar
degenerative disc disease first. Plaintiff did not disclose these impairments as a basis
supporting her initial applications for disability insurance benefits or supplemental
security income, [see R. at 322–32, 388], but Plaintiff believes that the ALJ nevertheless
ignored medical evidence tending to reveal their existence, namely: an April 2017
magnetic resonance imaging (MRI) test, a September 2017 electromyography (EMG)
test, a March 2021 letter from her treating physician, Dr. Peter Kuponiyi, and
Plaintiff’s own testimony on April 12, 2021. [Pl.’s Br. at 19 (citing R. at 630–31, 1099–

100, 1576, 1886).] Not so.
Beginning with the MRI and EMG, the ALJ clearly considered and discussed
this evidence. The ALJ noted that Plaintiff presented to Dr. Glenn Zuck in February
2017 complaining of neck pain and stiffness, mid and low back pain, and left shoulder,
thigh, and arm pain. [R. at 155 (citing Ex. 22F at 1).] Dr. Zuck diagnosed Plaintiff

with “cervical stenosis with radiculopathy and lumbar and thoracic sprain / strain,”
[Ex. 22F at 4], though an April 2017 MRI of the lumbar spine revealed 3 mm of
anterolisthesis with disc bulge but no stenosis, [id. at 20]. The September 2017 EMG
revealed only “mild” radiculopathy. [R. at 156 (citing Ex. 17F at 42).] Dr. Zuck’s
progress notes show that Plaintiff had a normal range of motion and that her strength

was “5/5 in all areas tested.” [R. at 155 (citing Ex. 22F at 2, 3).] Plaintiff had
unremarkable gait and no significant abnormalities in her thoracic spine. [R. at 155
(citing Ex. 22F at 4).] These findings were identified in the ALJ’s decision. [See R. at
155–61.] Considering other medical evidence, the ALJ noted that Plaintiff was likely
experiencing pain and tenderness, but no spasms or trigger points. [R. at 156, 157,

160.] She was prescribed medication for pain management. [R. at 157.] In August
2017, Plaintiff denied back pain and joint pain and, upon examination, walked with a
normal gait. [R. at 161.] The ALJ’s discussion of this evidence, in combination with
other record evidence, adequately supports her conclusion that Plaintiff could perform
light work. The Court thus cannot discern a basis to find that the ALJ “failed to
consider” whether radiculopathy or lumbar degenerative disc disease prevented
Plaintiff from performing light work.

Dr. Kuponiyi’s letter does not render the ALJ’s analysis erroneous. In his
March 9, 2021, letter, Dr. Kuponiyi writes that Plaintiff “has been a patient of [his] for
about 10 years” and that as of the date of the letter, Plaintiff is “permanently disabled
due to multiple health conditions that include, arthritis in both her hands and knees,
herniated disc in her cervical spine / lumbar spine, and fibromyalgia.” [R. at 1886

(Ex. 25 F).] The ALJ appropriately discounted this opinion as a “well-intentioned
effort to help the claimant, but . . . unpersuasive” because the substance of the opinion
regards a matter reserved to the Commissioner. [R. at 158.] See 20 C.F.R. §
404.1527(d)(1) (“A statement by a medical source that [the claimant] [is] ‘disabled’ or
‘unable to work’ does not mean that [the SSA] will determine that [the claimant] [is]

disabled.”); accord id. § 416.927(d); see also Pearson v. Comm’r of Soc. Sec., 839 F. App’x
684, 688 (3d Cir. 2020) (“[T]he ALJ is not bound by the conclusion of a treating
physician that the claimant is disabled or unable to work, as that decision is the ALJ’s
to make.”); Prokopick v. Comm’r of Soc. Sec., 272 F. App’x 196, 199 (3d Cir. 2008)

(“While a treating physician’s opinion is certainly evidence of a patient’s ability to
work, it is neither conclusive nor binding on the ALJ.”). Additionally, the ALJ
observed that his opinion was inconsistent with the preponderance of the evidence,
which “consistently shows relatively benign clinical findings.” [R. at 158.] She also
observed that his treatment notes demonstrate “a record of ongoing management and
evaluation with exacerbations and remissions in the claimant’s condition.” [R. at 158
(citing Ex. 27F).] The Court discerns no error here. See, e.g., Sanborn v. Comm’r of Soc.
Sec., 613 F. App’x 171, 175 (3d Cir. 2015) (affirming ALJ’s analysis of treating

physician’s opinion where inconsistent with underlying clinical findings). The ALJ’s
discussion of this letter further demonstrates that she explicitly considered whether
Plaintiff’s diagnoses required more substantial limitations on her RFC, even if she did
not identify at Step Two whether they were severe or non-severe.
Furthermore, Plaintiff’s own testimony does not persuade the Court to conclude

that the ALJ failed to consider her radiculopathy diagnosis or lower back disc disease
in assessing her RFC. For example, during the April 2021 hearing before the ALJ,
Plaintiff testified that she was unable to work in part because of herniated discs in her
neck and back, “nerve damage that radiates up [her] arm,” and “a lot of pain in . . .

[her] knees and [] ankles.” [R. at 39.] She testified to feeling a tingling, burning pain
“[a]ll the time.” [R. at 40.] On their own, however, Plaintiff’s statements cannot
establish the existence or severity of an impairment. See 20 C.F.R. § 404.1529(a)
(“[S]tatements about [the claimant’s] pain or other symptoms will not alone establish
that [the claimant] [is] disabled. There must be objective medical evidence from an

acceptable medical source that shows [the claimant] ha[s] a medical impairment(s).”).
“An ALJ is permitted to reject a claimant’s subjective testimony as long as he or she
provides sufficient reasons for doing so.” Prokopick, 272 F. App’x at 199 (first citing
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999); then citing SSR 96-
7p, 1996 WL 374186).
Here, the ALJ considered Plaintiff’s testimony together with the other medical
record evidence, including that discussed above, and determined that her subjective
complaints concerning the severity, frequency, and duration of pain were overstated

and did not require more substantial limitations on her RFC. [See R. at 154, 155, 158–
61.] For instance, the ALJ noted that Plaintiff worked as a ticket taker until the third
quarter of 2018, albeit not at substantial gainful activity levels. [R. at 159–60.] The
ALJ permissibly determined that this activity required more movement and
functioning than Plaintiff alleges she could perform. [R. at 160.] See 20 C.F.R. §

404.1571 (“The work . . . that [the claimant] ha[s] done during any period in which
[the claimant] believe[s] [she] [is] disabled may show that [she] [is] able to work at the
substantial gainful activity level. . . . Even if the work [the claimant] ha[s] done was
not substantial gainful activity, it may show that [she] [is] able to do more work than

[she] actually did.”). The ALJ also noted that treatment of Plaintiff’s allegedly
disabling impairments was “relatively conservative,” as she did not undergo surgery
or hospitalizations during the applicable period. [R. at 160.] Therefore, the ALJ
sufficiently explained her reasoning for finding Plaintiff’s complaints to be inconsistent
with the objective medical evidence. See Prokopick, 272 F. App’x at 199–200.

Second, Plaintiff’s argument concerning the ALJ’s asserted failure to consider
her radiculopathy and lumbar disc disease must be rejected for a related reason.
Plaintiff has failed to explain that these diagnoses would result in any specific
functional limitations. See Salles, 229 F. App’x at 145 (identifying diagnoses is
insufficient to establish severity at Step Two, because the claimant must also
demonstrate that diagnoses resulted in significant limitation on ability to do basic work
activities) (citing 20 C.F.R. §§ 404.1520(c), 404.1521(a)); Phillips v. Barnhart, 91 F.
App’x 775, 780 (3d Cir. 2004) (“A diagnosis of impairment, by itself, does not establish

entitlement to benefits under the Act. Rather, a claimant must show that the
impairment resulted in disabling limitations.”) (citing Petition of Sullivan, 904 F.2d 826,
845 (3d Cir. 1990)). In other words, she has failed to connect the dots between an
omitted medically determinable impairment (or condition) and resulting limitations
on her functional capacity, consistent with her burden. See Louis v. Comm’r of Soc. Sec.,

808 F. App’x 114, 117 (3d Cir. 2020) (“[A] claimant bears the burden of establishing
her RFC[.]”); Hess, 931 F.3d at 201 (same); see also 20 C.F.R. §§ 404.1512(a),
416.912(a). Plaintiff merely asserts that “[h]ad the ALJ properly considered [her]
medical impairments,” a reduction in her RFC to the sedentary level would be

warranted, based on the Medical Vocational Guidelines. [Pl.’s Br. at 20.] This general
and speculative statement is insufficient. A claimant must “affirmatively point[] to
specific evidence that demonstrates [s]he should succeed.” Woodson v. Comm’r of Soc.
Sec., 661 F. App’x 762, 766 (3d Cir. 2016). Gesturing in the direction of remand will
not do.

Finally, consider Plaintiff’s argument concerning obesity. [Pl.’s Br. at 19.]
Plaintiff contends that the ALJ erred because she failed to consider whether Plaintiff’s
body weight affected her ability to perform light work. [See id. at 18–20.] According
to Plaintiff, her medical records “document ongoing issues with being overweight,
including a [body mass index (BMI)] ranging between 25–30 at various points.” [Id.
at 19 (citing R. at 630, 814, 822).] These records refer to a BMI ranging from 25.1 to
27.04, [R. at 630, 814, 822], and as the Commissioner notes, the record elsewhere
discloses a maximum BMI of 29.79 in June 2019, [Def.’s Opp’n at 9 (citing R. at

1914)]. The ALJ did not identify obesity as a medically determinable impairment and
did not address any functional limitations resulting from obesity either. [See generally
R. at 144–62.]
As explained above, an ALJ must consider every impairment a claimant
identifies or about which the ALJ has received evidence. Rutherford, 399 F.3d at 552;

see also 20 C.F.R. § 404.1512(a)(1) (“[The SSA] will consider only impairment(s) [the
claimant] say[s] [she] ha[s] or about which [it] receive[s] evidence.”); accord id. §
416.912(a)(1). There is no dispute that obesity, when established by objective medical
evidence, is a medically determinable impairment and that obesity “in combination

with another impairment(s) may or may not increase the severity or functional
limitations of the other impairment(s).” SSR 19-2p, 2019 WL 2374244, at *2. When
determining whether a person has the medically determinable impairment of obesity,
the ALJ must consider the claimant’s weight over time, as disclosed by record
evidence. See id. at *3. According to the SSA, however, the medical community

defines obesity as a BMI of 30.0 or higher. Id. at *2.
Here, there was no reason for the ALJ to discuss this “impairment.” First, it
was not disclosed as a basis supporting Plaintiff’s applications for disability insurance
benefits or supplemental security income, [see R. at 322–32, 388], nor did she mention
obesity (or, more generally, her body weight) during her April 2021 hearing as a
condition that prevented her from working, [see R. at 39–48]. Second, the objective
medical evidence of record never disclosed a BMI exceeding 30.0, the threshold that
the medical community uses to designate a person “obese.” See SSR 19-2p, 2019 WL

2374244, at *2. As a result of these two reasons, the Court concludes that the ALJ had
an insufficient basis to consider whether Plaintiff’s body weight affected her ability to
work. Compare Rutherford, 399 F.3d at 552 (affirming ALJ’s decision, despite ALJ’s
failure to explicitly address claimant’s obesity, as claimant never asserted obesity as an

impairment and claimant failed to explain how ALJ’s error would “affect the outcome
of the case”), with Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009)
(remanding case based on ALJ’s failure to analyze cumulative effects of obesity where
ALJ had cited medical reports by doctors who were aware of claimant’s obesity,
specifically determined that claimant was severely obese, and yet omitted any

discussion of combined effect of claimant’s impairments despite “common sense”
notion that morbid obesity would exacerbate joint dysfunction). See also Neff v. Astrue,
875 F. Supp. 2d 411, 422 (D. Del. 2012) (“[A] claimant’s failure to allege obesity
initially does not absolve the ALJ from addressing it if the ALJ is on notice of the
issue.”). Here, in other words, the ALJ was never placed on notice that Plaintiff’s

body weight was a material issue.
Two more points. The ALJ’s other findings are inconsistent with Plaintiff’s
post-hoc argument that her body weight affected her ability to work. For instance, the
ALJ repeatedly credited medical evidence that Plaintiff was fully weight bearing, able
to ambulate unassisted, and had normal coordination and gait. [E.g., R. at 151, 156–
57, 158.] This evidence supports the inference that the ALJ had no reason to believe
that obesity prevented Plaintiff from working. Relatedly, Plaintiff has failed to provide
any specific evidence (or argument, for that matter) explaining how her body weight

affects her ability to perform light work, consistent with the applicable requirements.
See, e.g., 20 C.F.R. § 404.1512(a)(1) (explaining that it is the claimant’s obligation to
prove disability with competent evidence addressing how the claimant’s impairments
affect her ability to work); id. § 404.1521 (“[A] physical or mental impairment must be
established by objective medical evidence from an acceptable medical source.”); id. §

404.1545(a)(3) (“In general, [the claimant] [is] responsible for providing the evidence
[the SSA] will use to make a finding about [the claimant’s] residual functional
capacity.”); accord id. §§ 416.912(c), 416.921, 416.945(a)(3). Therefore, for all of these
reasons, Plaintiff’s argument that the ALJ erred by failing to consider obesity is wholly

unconvincing. See Woodson, 661 F. App’x at 766 (rejecting argument that ALJ erred
at Step Three because claimant “never explains how, even if the ALJ’s analysis was
lacking, the deficiency was harmful” and because claimant “has not affirmatively
pointed to specific evidence that demonstrates he should succeed”); see also Rutherford,
399 F.3d at 552–53 (rejecting argument that ALJ’s failure to mention obesity required

remand, as claimant failed to address how obesity impairment would affect sequential
analysis and claimant’s functional limitations and impairments had otherwise been
supported by “voluminous medical evidence”).
Accordingly, because the ALJ sufficiently discussed the evidence and explained
her reasoning, see Diaz, 577 F.3d at 504 (“The ALJ must provide a ‘discussion of the
evidence’ and an ‘explanation of reasoning’ for his conclusion sufficient to enable
meaningful judicial review.”) (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120
(3d Cir. 2000)), and because the ALJ’s decision is supported by substantial evidence,

Biestek, 139 S. Ct. at 1154, the Court can conclude that she appropriately considered
Plaintiff’s cervical and lumbar radiculopathy and lumbar degenerative disc disease in
finding that Plaintiff could perform “light work.” There was an insufficient basis for
the ALJ to address obesity, so her omission of this condition was warranted. In any
case, the Court determines in the alternative that this omission is harmless. See

Rutherford, 399 F.3d at 552–53.
B. The ALJ’s Consideration of Plaintiff’s Carpal Tunnel Syndrome,
Depression, and Anxiety.
Next, Plaintiff argues that the ALJ erred in determining that Plaintiff’s carpal
tunnel syndrome, depression, and anxiety were non-severe impairments consistent
with an RFC to perform light work. [Pl.’s Br. at 20–25.] In other words, she challenges
the ALJ’s RFC determination with respect to these medically determinable
impairments.3 The Commissioner contends that substantial evidence supports the

ALJ’s analysis, [Def.’s Opp’n at 11–15], and this Court agrees.
A claimant’s RFC is the “most [she] can do despite [her] limitations.” 20 C.F.R.
§ 404.1545(a)(1). This determination is the sole responsibility of the ALJ, not treating

3 Plaintiff does not challenge the ALJ’s discussion of her other impairments—
i.e., fibromyalgia, mitral valve prolapse, hyperlipidemia, and fifth toe amputation
residuals—which the ALJ concluded were non-severe and consistent with an RFC to
perform light work. [R. at 150–53.]
physicians. Breen v. Comm’r of Soc. Sec., 504 F. App’x 96, 99 (3d Cir. 2012) (citing 20
C.F.R. §§ 404.1546(c), 416.946(c)). When determining the claimant’s RFC, the ALJ
must include only “credibly established limitations.” Rutherford v. Barnhart, 399 F.3d

546, 554 (3d Cir. 2005). “Limitations that are medically supported but are also
contradicted by other evidence in the record may or may not be found credible—the
ALJ can choose to credit portions of the existing evidence but ‘cannot reject evidence
for no reason or for the wrong reason.’ ” Id. (quoting Mason v. Shalala, 994 F.2d 1058,

1066 (3d Cir. 1993)). Ultimately, the ALJ must give “some indication” of the evidence
that she rejects and her “reason(s) for discounting such evidence.” Burnett v. Comm’r of
Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Cotter v. Harris, 642 F.2d 700, 705
(3d Cir. 1981)). While the ALJ need not discuss “every tidbit of evidence included in
the record,” Hur v. Barnhart, 94 F. App’x 130, 133 (3d Cir. 2004), she must consider

all relevant evidence and provide a sufficient discussion for the court to engage in a
meaningful review, Fargnoli v. Massanari, 247 F.3d 34, 41–42 (3d Cir. 2001).
Begin with Plaintiff’s carpal tunnel syndrome. The ALJ observed that a
September 2017 EMG revealed Plaintiff’s carpal tunnel syndrome. [R. at 150 (citing
Ex. 17F).] However, the ALJ concluded that this diagnosis did not support “lasting

functional loss” because other evidence in the record—both before and after the
EMG—revealed that Plaintiff had a “normal” range of motion and digit strength. [R.
at 150.] She cites progress notes from a February 2017 visit to Dr. Zuck, which
identifies that cubital and carpal tunnel Tinel’s testing was negative bilaterally, and a
May 2019 medical record that identifies no musculoskeletal issues (i.e., “normal”
range of motion). [See R. at 1560 (Ex. 22F), 1386 (Ex. 20F).] Plaintiff contends that
the ALJ impermissibly relies on “current” medical evidence after her date last insured
to discount her diagnosis, [Pl.’s Br. at 21], but this is plainly wrong.

Also, as noted above, the ALJ concluded that carpal tunnel syndrome was not
a severe impairment because Plaintiff was working part-time as a ticket taker until the
third quarter of 2018, albeit not at substantial gainful activity levels. [R. at 150.]
Principally citing her testimony at the April 2021 hearing regarding the severity of her
pain, Plaintiff contends that her part-time work is not a basis to discount her diagnosis.

[Pl.’s Br. at 22.] The Court is not persuaded. The ALJ permissibly determined that
the extent of movement and functioning associated with her part-time job weighed
against her, as it involved “handling, grabbing, and grasping objects.” [R. at 150.] See
20 C.F.R. § 404.1571 (“The work . . . that [the claimant] ha[s] done during any period
in which [the claimant] believe[s] [she] [is] disabled may show that [she] [is] able to

work at the substantial gainful activity level. . . . Even if the work [the claimant] ha[s]
done was not substantial gainful activity, it may show that [she] [is] able to do more
work than [she] actually did.”).
Plaintiff also suggests that the ALJ ignored critical evidence. For instance, a
November 2017 medical record written by Dr. Richard Domsky reveals a

recommendation that Plaintiff consider bilateral carpal tunnel injections. [R. at 1088
(Ex. 17F).] The Court has no reason to believe that the ALJ failed to consider this
evidence, and she need not discuss “every tidbit of evidence included in the record.”
Hur, 94 F. App’x at 133. Therefore, the Court identifies no basis to disturb the ALJ’s
conclusion that Plaintiff’s carpal tunnel syndrome was non-severe and resulted in no
lasting functional limitations.
Consider next Plaintiff’s mental health impairments—depression and anxiety.

The ALJ determined that these impairments were non-severe at Step Two and did not
result in any mental limitations on Plaintiff’s ability to work. [R. at 151, 153.]
Plaintiff claims that the ALJ erred because she failed to “meaningfully consider” her
mental health treatment plan, including treatment notes from counselors at Family
Services Association. [Pl.’s Br. at 23.] The Court disagrees.

The ALJ specifically recognized that Plaintiff sought treatment for depression
at Family Services Association on April 18, 2018, and that a licensed counselor
diagnosed a mood disorder. [R. at 151.] The ALJ further observed that various
counselors treated Plaintiff, but that most of the sessions focused on her physical pain
and financial problems, not on her mental health. [R. at 151.] Although a Family

Services Association counselor diagnosed Plaintiff with a mood disorder, Dr. Barbara
Kelly, Ph.D., a psychologist, determined that Plaintiff had no psychiatric diagnosis,
following a December 2017 examination. [R. at 151.] However, she opined that
Plaintiff would eventually require oversight managing her funds. [R. at 151.] The
ALJ found this latter opinion unpersuasive because Dr. Kelly concluded that Plaintiff

did not have a psychiatric diagnosis and because it was inconsistent with Plaintiff’s
own claim that she could handle her finances. [R. at 151–52.]
The ALJ also considered other medical records in determining that Plaintiff’s
mental health impairments caused no more than minimal limitation on her ability to
perform basic work activities. [R. at 152.] The ALJ noted that, in April 2018, Plaintiff
began mental health therapy and was eventually prescribed Cymbalta. [R. at 152.]
She continued treatment until at least July 2019. [R. at 152.] According to a Family

Services Association record, Plaintiff reported that the Cymbalta was helpful. [See R.
at 1978 (Ex. 29F) (Plaintiff stating that Cymbalta was “helpful” and that she felt
“slightly less depressed”); see also R. at 151 (ALJ citing this record).] Other records
indicate that Plaintiff “was cooperative, had appropriate mood and affect, and had
normal judgment.” [R. at 152 (citing Exs. 7F, 8F, 14F).]

After discussing this evidence, the ALJ concluded that Plaintiff’s depression and
anxiety were non-severe impairments. [R. at 152.] Adopting this finding, the ALJ
indicated that she considered the “paragraph B” criteria for evaluating the impact of
Plaintiff’s mental disorders. [R. at 152.] When assessing the severity of a claimant’s

mental health impairments, the ALJ must rate the claimant’s degree of limitation in
four functional areas: (i) understanding, remembering, or applying information; (ii)
interacting with others; (iii) concentrating, persisting, or maintaining pace; and (iv)
adapting or managing oneself. 20 C.F.R. § 404.1520a(c)(3). These are often referred
to as the “paragraph B” criteria. An ALJ will generally find a claimant’s mental

impairment non-severe if the limitations are rated as “none” or “mild.” 20 C.F.R. §§
404.1520a(d)(1), 416.920a(d)(1).
Here, the ALJ set forth a detailed analysis of the “paragraph B” criteria and
concluded that each functional area resulted in a mild limitation, except for (ii)
“interacting with others,” which resulted in no limitation. [R. at 152–53.] Having
reviewed the ALJ’s analysis, the Court finds no support for Plaintiff’s claim that she
failed to meaningfully consider the record evidence. The ALJ’s analysis is supported
by substantial evidence. See, e.g., Sara W. v. Comm’r of Soc. Sec., 2024 WL 658047, at

*5 (D.N.J. Feb. 16, 2024) (Bumb, C.J.) (ruling that substantial evidence supported
ALJ’s conclusion that claimant’s mental impairments were non-severe where
“paragraph B” criteria adequately considered); J.L.B. v. Comm’r of Soc. Sec., 2022 WL
17039305, at *5 (D.N.J. Nov. 17, 2022) (Bumb, J.) (same); see also 20 C.F.R. §§

404.1520a(d)(1), 416.920a(d)(1). As a result, the ALJ’s decision to exclude any mental
limitations as to Plaintiff’s RFC was warranted. See Holley v. Comm’r of Soc. Sec., 590
F. App’x 167, 169 (3d Cir. 2014) (holding that when an ALJ finds that the claimant
“had—at most—minor mental impairments,” the ALJ did not err when the RFC
included no mental limitations).

V. CONCLUSION
For the reasons expressed above, the ALJ’s decision will be AFFIRMED. An
accompanying Order shall issue.

April 16, 2024 s/Renée Marie Bumb
Date Renée Marie Bumb
Chief United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10656024. Public record. Not legal advice.