ALI v. COMMISSIONER OF SOCIAL SECURITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DERANIE A.,

Plaintiff, Case No. 2:23-cv-03157-BRM

v.

KILOLO KIJAKAZI,

Acting Commissioner of Social Security OPINION

Defendant.

MARTINOTTI, DISTRICT JUDGE

Before the Court is Plaintiff Deranie A.’s (“Plaintiff”) appeal (ECF No. 1) of the final

decision of the Acting Commissioner of Social Security (“Commissioner”)1 denying her

application for Social Security Disability Insurance Benefits (“SSDI”) under Title II of the Social

Security Act (“Act”). Having considered the submissions of the parties without oral argument, for

the reasons set forth below and for good cause shown, Plaintiff’s appeal (ECF No. 1) is DENIED,

and the Commissioner’s decision is AFFIRMED.

I. BACKGROUND

This case arises out of Plaintiff’s challenge to the administrative decision of the

Commissioner denying her application for SSDI benefits. (ECF No. 1; Tr. at 16–27.) Plaintiff filed

a Title II application for a period of disability and SSDI benefits on March 19, 2020, alleging onset

1 Upon the Appeals Council’s Order denying Plaintiff’s request for a review of the decision of the

Administrative Law Judge (“ALJ”), the ALJ’s decision became the final decision of the

Commissioner. (ECF No. 3 (Transcript of Proceedings (“Tr.”)) at 1.)

of disability on January 6, 2019 (Tr. at 16) based on high platelets (thrombocytopenia),

hydrocephalus, sleep apnea, osteoarthritis, and stomach polyps. (Id. at 199.)

The Social Security Administration (“SSA”) initially denied Plaintiff’s claims on October

20, 2020 (id. at 82–86) and upon reconsideration on February 26, 2021 (id. at 89–91). On February

25, 2022, Plaintiff appeared and testified at a hearing before Administrative Law Judge Kevin

Kenneally (“ALJ Kenneally”). (Id. at 32–60.) At the hearing, Plaintiff testified to her prior work

and to her history of treatment, as well as the symptoms of her conditions, including memory

issues, sleep difficulties, fatigue, incontinence, and vision impairment. (Id.) An impartial

vocational expert also appeared and testified at the hearing. (Id.)

On March 11, 2022, ALJ Kenneally issued a decision finding Plaintiff was not disabled

under the Act. (Id. at 13–27.) ALJ Kenneally considered the entire record in making his decision.

(Id. at 18.) At step one, ALJ Kenneally found Plaintiff had not engaged in substantial gainful

activity since January 6, 2019. (Id. at 19.) At step two, ALJ Kenneally found Plaintiff had the

following “severe medical impairments”: “thrombocythemia essential; major depressive disorder

and generalized anxiety disorder with panic attacks.” (Id. at 19.) At step three, ALJ Kenneally did

not find the Plaintiff to have “an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,

Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” (Id.) At step four, ALJ Kenneally

found Plaintiff had the residual functional capacity (“RFC”) to:

perform medium work as defined in 20 CFR 404.1567(c) except the

individual can frequently push, pull and operate foot controls with

the right lower extremity; she can frequently climb ramps and stairs;

she can never climb ropes, ladders or scaffolds; she can frequently

balance, stoop, kneel, crouch and crawl; the individual can never be

exposed to unprotected heights, moving mechanical parts or operate

a motor vehicle; she must have access to a bathroom at the work

site; she is limited to performing simple, routine tasks and making

simple work related decisions; she can frequently interact with the

general public, co-workers and supervisors; and in addition to

normal breaks she would be off task 5% of the time in an eight-hour

workday.

(Id. at 21–22.) Finally, at step five, ALJ Kenneally found that, based on Plaintiff’s age, education,

work experience, and RFC “there are jobs that exist in significant numbers in the national economy

that the claimant can perform.” (Id. at 26.) Specifically, ALJ Kenneally found Plaintiff could

perform the roles of “Linen Room Attendant, DOT 222.387-030 . . . Bagger, Grocery and Retail,

DOT 920.687-014 . . . [and] Hand Packager, DOT 920.587-018” among other jobs. (Id. at 26–27.)

Plaintiff submitted a Request for Review of the Hearing Decision to the Appeals Council

on May 4, 2022. (Id. at 175–78.) On April 10, 2023, the Appeals Council denied Plaintiff’s request

for review of ALJ Kenneally’s decision. (Id. at 1–7.) On June 8, 2023, Plaintiff filed a civil action

in the United States District Court for the District of New Jersey seeking judicial review of the

Commissioner’s final decision under 42 U.S.C. § 1383(c)(3). (ECF No. 1.)

II. STANDARD OF REVIEW

On a review of a final decision of the Commissioner, a district court “shall have power to

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

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

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

2001). The Commissioner’s decisions regarding questions of fact are deemed conclusive by a

reviewing court if supported by “substantial evidence” in the record. Id.; see Knepp v. Apfel, 204

F.3d 78, 83 (3d Cir. 2000). The Court must affirm an ALJ’s decision if it is supported by substantial

evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971); Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985). Substantial

evidence “is more than a mere scintilla of evidence but may be less than a preponderance.” Newell

v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003). The Supreme Court reaffirmed this

understanding of the substantial evidence standard in Biestek v. Berryhill, 139 S. Ct. 1148, 1154

(2019). To determine whether an ALJ’s decision is supported by substantial evidence, this Court

must review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). “Courts

are not permitted to re-weigh the evidence or impose their own factual determinations.” Chandler

v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). Accordingly, if the ALJ’s decision is

supported by substantial evidence, the Court may not set the ALJ’s decision aside “even if [it]

would have decided the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.

1999).

III. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

Under the Act, the SSA is authorized to pay SSDI to “disabled” persons. 42 U.S.C.

§ 1382(a). A person is “disabled” if “he is unable to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period of not less

than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A person is unable to engage in substantial

gainful 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, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

Regulations promulgated under the Act establish a five-step process for determining

whether a claimant is disabled for purposes of SSDI. 20 C.F.R. § 404.1520. First, the ALJ

determines whether the claimant has shown he or she is not currently engaged in “substantial

gainful activity.” 20 C.F.R. § 404.1520(b); see Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If a

claimant is presently engaged in any form of substantial gainful activity, he or she is automatically

denied disability benefits. Id.; see also Bowen, 482 U.S. at 140. Second, the ALJ determines

whether the claimant has demonstrated a “severe impairment” or “combination of impairments”

that significantly limits their physical or mental ability to do basic work activities. 20 C.F.R. §

404.1520(c); see Bowen, 482 U.S. at 140–41. Basic work activities are defined as “the abilities

and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). These activities include:

(1) Physical functions such as walking, standing, sitting, lifting,

pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple

instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual

work situations; and

(6) Dealing with changes in a routine work setting.

Id. A claimant who does not have a severe impairment is not considered disabled. 20 C.F.R.

§ 404.1520(c); see Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).

Third, if the impairment is found to be severe, the ALJ then determines whether the

impairment meets or is equal to the impairments listed in 20 C.F.R. § 404, Subpart P, App’x 1 (the

“Impairment List”). 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates his or her

impairments are equal in severity to, or meet, those on the Impairment List, the claimant has

satisfied his or her burden of proof and is automatically entitled to benefits. See 20 C.F.R.

§ 404.1520(d); see also Bowen, 482 U.S. at 141. If the specific impairment is not listed, the ALJ

will consider in his or her decision the impairment that most closely satisfies those listed for

purposes of deciding whether the impairment is medically equivalent. See 20 C.F.R. § 404.1526.

If there is more than one impairment, the ALJ then must consider whether the combination of

impairments is equal to any listed impairment. Id. An impairment or combination of impairments

is basically equivalent to a listed impairment if there are medical findings equal in severity to all

the criteria for the one most similar. Williams v. Sullivan, 970 F.2d, 1178, 1186 (3d Cir. 1992).

If the claimant is not conclusively disabled under the criteria set forth in the Impairment

List, step three is not satisfied, and the claimant must prove at step four whether he or she retains

the residual functional capacity (“RFC”) to perform his or her past relevant work. 20 C.F.R.

§ 404.1520(e)–(f); Bowen, 482 U.S. at 141. Step four involves three sub-steps:

(1) the ALJ must make specific findings of fact as to the claimant’s

[RFC]; (2) the ALJ must make findings of the physical and mental

demands of the claimant’s past relevant work; and (3) the ALJ must

compare the [RFC] to the past relevant work to determine whether

claimant has the level of capability needed to perform the past

relevant work.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted). When

determining RFC, an ALJ’s consideration of medical opinion evidence is subject to the framework

articulated at Section 404.1527 (for claims filed before March 27, 2017) or Section 404.1520c (for

claims filed after March 27, 2017).

The claimant is not disabled if their RFC allows them to perform their past relevant work.

20 C.F.R. § 404.1520(a)(4)(iv). However, if the claimant’s RFC prevents him or her from doing

so, an ALJ proceeds to the fifth and final step of the process. Id. The final step requires the ALJ to

“show there are other jobs existing in significant numbers in the national economy which the

claimant can perform, consistent with her medical impairments, age, education, past work

experience, and [RFC].” Plummer, 186 F.3d at 428; 20 C.F.R. § 404.1520(a)(4)(v). In doing so,

“[t]he ALJ must analyze the cumulative effect of all the claimant’s impairments in determining

whether she is capable of performing work and is not disabled.” Id.; 20 C.F.R. § 404.1523.

Notably, an ALJ typically seeks the assistance of a vocational expert at this final step. Id. (citation

omitted).

The claimant bears the burden of proof for steps one, two, and four. Sykes v. Apfel, 228

F.3d 259, 263 (3d Cir. 2000). Neither side bears the burden of proof for step three “[b]ecause step

three involves a conclusive presumption based on the listings[.]” Id. at 263 n.2; see Bowen, 482

U.S. at 146–47 n.5. An ALJ bears the burden of proof for step five. Id. at 263.

On appeal, the harmless error doctrine2 requires a plaintiff to show, as to the first four steps:

(1) an error occurred; and (2) but for that error, they might have proven their disability. Holloman

v. Comm’r of Soc. Sec., 639 F. App’x 810, 814 (3d Cir. 2016). In other words, when reviewing an

appeal based on the first four steps, a court considers whether the plaintiff articulated a basis for a

decision in their favor, based on the existing record. If the plaintiff cannot, it is unlikely they will

meet their burden of showing an error was harmful. See, e.g., Lippincott v. Comm’r of Soc. Sec.,

982 F. Supp. 2d 358, 380 (D.N.J. 2013) (finding ALJ’s error was harmless); Powers v. Comm’r of

Soc. Sec., Civ. A. No. 19-21970, 2021 WL 1207793, at *7 (D.N.J. Mar. 31, 2021) (finding the

plaintiff had not demonstrated she was prejudiced by the ALJ’s decision and had not shown an

error occurred amounting to harm).

The court’s review of legal issues within this appeal is plenary. See Schaudeck v. Comm’r

of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). Factual findings are reviewed “only to determine

whether the administrative record contains substantial evidence supporting the findings.” Sykes,

228 F.3d at 262. Substantial evidence is “less than a preponderance of the evidence but more than

2 The Supreme Court explained its operation in a similar procedural context in Shinseki v. Sanders,

556 U.S. 396, 408–11 (2009) which concerned review of a governmental agency determination.

The Supreme Court stated: “the burden of showing that an error is harmful normally falls upon the

party attacking the agency’s determination.” Id. at 409. In such a case, “the claimant has the

‘burden’ of showing that an error was harmful.” Id. at 410.

a mere scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted).

Substantial evidence also “means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (citation and internal quotation marks omitted). When

substantial evidence exists to support the Commissioner’s factual findings, this Court must abide

by those determinations. See id. (citing 42 U.S.C. § 405(g)).

IV. DECISION

A. Step Two Exclusion of Hydrocephalus

Plaintiff argues ALJ Kenneally committed reversible error by failing to consider her

hydrocephalus in his step two findings. (ECF No. 5-1 at 9.) Plaintiff claims the hydrocephalus is

“clearly a medically determinable impairment (MDI) . . . as it is conclusively noted on the CT scan

and the MRI of the brain.” (Id.) Plaintiff asserts that because the hydrocephalus was an MDI, it

must be considered as part of the RFC determination and at step two. (Id. at 10.)

The Commissioner argues it is Plaintiff’s burden to furnish evidence “supporting the

existence of [a] condition and the effect of that condition on the claimant’s ability to work on a

sustained basis.” (ECF No. 7 at 5 (quoting Wimberly v. Barnhart, 128 F. App’x 861, 863 (3d Cir.

2005)). Here, the Commissioner claims Plaintiff has failed to furnish evidence regarding the

impact of the alleged symptoms of the hydrocephalus. (Id. at 5–6.) Rather, Plaintiff references a

website listing potential symptoms of hydrocephalus without showing how the condition

significantly limited her work activities. (Id. at 6.) The Commissioner claims MRIs showed

Plaintiff’s hydrocephalus was largely stable and did not warrant the placement of a shunt. (Id.)

Moreover, the Commissioner asserts Plaintiff did not complain of fatigue or weakness, had

generally normal memory, “had largely intact strength, ambulated independently, could heel and

toe walk with a normal station, and had normal reflexes and coordination.” (Id.) Therefore, the

Commissioner claims Plaintiff did not show how her hydrocephalus limited her basic work

activities. (Id.)

Plaintiff responds that her appeal of ALJ Kenneally’s decision is not primarily a step two

challenge, although Plaintiff does argue ALJ Kenneally should have found the hydrocephalus

severe. (ECF No. 8 at 2.) Plaintiff further argues ALJ Kenneally’s failure to explain why he did

not include symptoms from the hydrocephalus in the RFC is reversible error. (Id.)

To the extent Plaintiff asserts, either explicitly or by implication, a challenge to ALJ

Kenneally’s decision based on his failure to consider Plaintiff’s hydrocephalus at step two, the

Court finds any such failure is not reversible error, as it well-established that the failure to identify

a condition at step two is harmless error where other severe impairments are identified, and all

MDIs are ultimately accounted for in the RFC. See Richards v. Astrue, Civ. A. No. 3:2008–284,

2010 WL 2606523, at *6 (W.D. Pa. June 28, 2010) (“Where at least one impairment is found to

be ‘severe’ and all limitations (including those resulting from ‘non-severe’ impairments) are

reflected in the ultimate residual functional capacity determination, any error committed at the

second step of the sequential evaluation process can fairly be characterized as harmless.”);

Alvarado v. Colvin, 147 F. Supp. 3d 297, 311 (E.D. Pa. 2015) (“Accordingly, not finding certain

impairments severe at step two does not affect the ultimate disability determination. Where an ALJ

finds in a claimant’s favor at step two, ‘even if he . . . erroneously concluded that some of [the

claimant’s] other impairments were non-severe, any error [is] harmless.’” (quoting Salles v.

Comm'r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir.2007))); Donna M. v. O’Malley, Civ. A.

No. 23-1760, 2024 WL 2130694, at *7 (D.N.J. May 13, 2024) (“Normally, when an ALJ finds at

least one severe medical impairment at step two and continues onto the other steps, the ALJ’s

failure to consider other medically determinable impairments or find that a particular impairment

to be non-severe is a harmless error.”). Here, although ALJ Kenneally did not discuss the

hydrocephalus at step two, he considered the condition in formulating the RFC. (Tr. at 22.)

Therefore, to the extent ALJ Kenneally did not consider hydrocephalus at step two, the Court finds

this is harmless error.

B. Whether Substantial Evidence Supported the RFC Determination

1. Briefing

Plaintiff claims ALJ Kenneally’s RFC determination was not supported by substantial

evidence because there was no physician assessment of Plaintiff’s basic strength functions. (ECF

No. 5-1 at 11–12.) Plaintiff argues ALJ Kenneally did not give a clear explanation for concluding

Plaintiff could perform medium work. (Id. at 12.) Plaintiff asserts she was not asked questions

regarding her strength and there was no medical evidence presented on the issue. (Id. at 13.)

Plaintiff claims ALJ Kenneally made no attempt to connect the medical evidence to his conclusion

that Plaintiff could perform medium work. (Id.) Plaintiff asserts ALJ Kenneally’s “decision simply

lacks any articulation whatsoever as to how or what evidence supports the RFC found.” (Id.)

Plaintiff claims the lack of “more aggressive” treatment or the lack of “more serious signs, findings

or symptoms” do not sufficiently support the RFC determination, as the lack of contrary evidence

does not constitute “substantial evidence” supporting the ALJ’s findings. (Id.) Plaintiff speculates

the RFC determination may have been “designed to deny” her claim, noting that an RFC for light

work along with the other limitations would have led to a favorable disability determination. (Id.)

Specifically, Plaintiff argues the ALJ failed to consider the symptoms of her hydrocephalus

in the RFC. (Id. at 14–15.) For instance, although ALJ Kenneally stated that there was evidence

from the treatment notes suggesting Plaintiff did not have substantial difficulty walking, Plaintiff

argues this was a “cherry picking” of the evidence that does not constitute substantial evidence.

(Id. at 15.) Plaintiff also asserts ALJ Kenneally failed to consider the relationship of Plaintiff’s fall

to her hydrocephalus. (Id.) Plaintiff further claims there is “no articulation as to how a person with

[her] history of falling and difficulty ambulating could sustain the standing and walking required

of medium work, and of course the same is even more true for the lifting and carrying

requirements.” (Id.) Plaintiff also argues ALJ Kenneally did not address her complaints of fatigue

and memory loss from the hydrocephalus. (Id. at 16.) Therefore, Plaintiff claims ALJ Kenneally

failed to indicate the medical evidence he relied upon in making his strength determination. (Id.)

Finally, Plaintiff asserts ALJ Kenneally failed to support his off-task percentage with substantial

evidence, as “[t]here is no indication how or why he came up with 5% off task, though it is

conveniently less than the 10% that the vocational witness found would be work preclusive.” (Id.

at 17.)

The Commissioner emphasizes that the RFC determination reflects the most a claimant can

still do despite their impairments. (ECF No. 7 at 6.) The Commissioner asserts an ALJ may make

findings “implicitly” in a disability determination. (Id. at 7.) The Commissioner argues ALJ

Kenneally considered Plaintiff’s medical history and other evidence in determining the RFC,

including “Plaintiff’s reports of balance and gait difficulties, minimal weight lifting, fatigue, and

memory trouble.” (Id. at 7–8.) The Commissioner claims ALJ Kenneally considered treatment

notes regarding Plaintiff’s walking, including notes indicating an unstable gait and others

indicating a normal gait, as well as treatment notes from the John Theurer Cancer Center reporting

Plaintiff as generally “feeling well” without “complaints of significant fatigue, headaches, fevers,

chills, weight loss, early satiety or abdominal distention.” (Id. at 8.) The Commissioner further

argues ALJ Kenneally considered evidence regarding Plaintiff’s alleged leg weakness, including

notes that by the time she received treatment, she was feeling “much better” and was not

experiencing difficulty ambulating. (Id.) The same notes further found Plaintiff “had full strength

in all four extremities, normal muscle bulk and tone, normal reflexes and coordination, and a

normal sensory examination.” (Id.) Therefore, the Commissioner claims the treatment notes

showed the “overall record” was “largely unremarkable” and did not demonstrate significant

complications from Plaintiff’s hydrocephalus or thrombocytosis. (Id.)

Overall, the Commissioner argues that, based on the medical evidence, ALJ Kenneally

reasonably found Plaintiff was not disabled. (Id.) In particular, the Commissioner notes ALJ

Kenneally found that “[i]f the claimant’s physical and mental conditions were disabling, it would

be expected that her treatment would be more aggressive and the medical evidence of record would

document more serious signs, findings and symptoms.” (Id. at 9 (quoting Tr. at 25).) The

Commissioner further notes ALJ Kenneally considered Plaintiff’s daily activities in determining

the RFC, including that she “prepared simple meals, handled light cleaning and laundry, walked . . .

drove a car . . . shopped in stores and talked on the phone.” (Id.) The Commissioner argues ALJ

Kenneally found Plaintiff had severe impairments with resulting limitations despite state agency

opinions finding Plaintiff’s conditions were not severe. (Id.)

The Commissioner also claims the RFC off-task percentage was calculated “to avoid

exacerbation of [Plaintiff’s] complaints.” (Id. at 10.) The Commissioner argues ALJ Kenneally did

not “cherry-pick” from the record, but rather summarized the evidence on which his findings were

based, including evidence regarding Plaintiff’s fall. (Id.) Finally, the Commissioner argues ALJ

Kenneally implicitly considered record evidence regarding Plaintiff’s strength, including notes

suggesting “largely intact strength in all four extremities and normal muscle bulk and tone.” (Id.

at 10–11.)

Plaintiff replies that the standard ALJ decision format is insufficient because it does not

specifically cite to record evidence and link the ALJ’s findings to the evidence. (ECF No. 8 at 1–

2.) Plaintiff claims that although ALJ Kenneally’s RFC determination mentions her

hydrocephalus, it does not explain why it was ultimately not included in the final RFC

determination. (Id. at 2.) Plaintiff argues ALJ Kenneally never made a clear connection between

the record evidence and his RFC determination, despite claiming to have considered the entire

record. (Id.) Plaintiff asserts that the language of ALJ Kenneally’s decision could support a variety

of time-off percentages and does not make clear why a time-off percentage of 5% was selected.

(Id. at 3.)

2. Analysis

The ALJ is responsible for making the ultimate determination of an individual’s RFC. 20

C.F.R. § 404.1546; see Chandler, 667 F.3d at 361 (“The ALJ—not treating or examining

physicians or State agency consultants—must make the ultimate disability and RFC

determinations.”). “[I]n making a[n] [RFC] determination, the ALJ must consider all evidence

before him,” and, although the ALJ may weigh the credibility of the evidence, he must “give some

indication of the evidence which he rejects and his reason(s) for discounting such evidence.”

Burnett, 220 F.3d at 121; Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

Although an ALJ is required to “consider all evidence before him” and “give some

indication of the evidence which he rejects and his reason(s) for discounting such evidence”

Burnett, 220 F.3d at 121, the indication of the ALJ’s reasoning may be “implicit” in the decision.

See Smith v. Astrue, 961 F. Supp. 2d 620, 652 (D. Del. 2013) (“Plaintiff is correct that the ALJ

failed to explicitly assess the credibility of Mrs. Smith’s testimony or assign her testimony a

particular amount of weight. However, a fair reading of the ALJ’s decision suggests that the ALJ

did implicitly make these judgments.”); Diciano v. Comm’r of Soc. Sec., Civ. A. No. 18-17383,

2019 WL 6696523, at *5 (D.N.J. Dec. 9, 2019) (finding that, although the RFC did not specifically

mention the “functions of sitting, standing, walking, lifting, carrying, or pushing . . . that does not

mean the ALJ did not ‘consider’ those functions. This is because implicit in the finding that

Plaintiff is capable of performing work at all exertional levels is that Plaintiff has no limitations in

those areas”); Wise v. Comm’r of Soc. Sec., 626 F. App’x 357, 360 (3d Cir. 2015) (“We conclude

that . . . the ALJ’s discussion of the evidence in the record that implicitly supported Dr. Rohar’s

criticism provided a reasonable basis for the ALJ not to include a limitation in the RFC about

Wise’s inability to adapt to normal work pressures or changes.”). Therefore, it is sufficient for the

RFC determination to be supported by “substantial evidence” in the entire record, and it is

unnecessary for the ALJ to engage in an explicit “function-by-function” analysis where the

reasoning for the decision is implicit in the record. Glass v. Comm’r of Soc. Sec., Civ. A. No. 18-

15279, 2019 WL 5617508, at *8 (D.N.J. Oct. 31, 2019) (“Contrary to Plaintiff’s assertion

otherwise, the . . . Third Circuit does not require an ALJ to perform a ‘function-by-function’

analysis at step four, so long as the ALJ’s RFC determination is supported by substantial evidence

in the record.”); Donna R. v. Kijakazi, Civ. A. No. 20-15449, 2022 WL 13009149, at *12 (D.N.J.

Oct. 21, 2022) (“Although the ALJ did not expressly weigh Dr. Brown’s opinions at step four, the

ALJ’s discussion at step two demonstrates that he implicitly discounted that examiner’s opinions

when assessing Plaintiff’s limitations in her ability to understand, remember, or apply information

and to concentrate, persist, or maintain pace.”); Sheppard v. Comm’r of Soc. Sec., Civ. A. No. 19-

18206, 2020 WL 5652450, at *5 (D.N.J. Sept. 23, 2020) (“Here, the RFC did not specifically

reference the four non-exertional functions, but that does not mean the ALJ did not consider those

functions, singularly or in combination with Plaintiff’s other limitations from her various

impairments.”).

Here ALJ Kenneally both implicitly and explicitly considered the symptoms of Plaintiff’s

hydrocephalus, the impact of her fall, and her strength diagnoses in the RFC determination. ALJ

Kenneally begins his decision by noting that he considered the “entire record” in the case and

clearly states the RFC was based on this consideration. (Tr. at 18, 21.) ALJ Kenneally further

indicates he considered “all symptoms and the extent to which these symptoms can reasonably be

accepted as consistent with the objective medical evidence and other evidence” and “medical

opinion(s) and prior administrative medical finding(s).” (Id. at 22.) ALJ Kenneally also

specifically notes Plaintiff’s allegation of “hydrocephalus” in his RFC decision. (Id.) He further

discusses Plaintiff’s concern about walking alone without support, and Plaintiff’s assertion that

“she could lift less than ten pounds and cannot squat.” (Id.) ALJ Kenneally ultimately does not

fully accept these allegations due to finding that Plaintiff’s subjective account of her symptoms is

not “entirely consistent with the medical evidence and other evidence in the record for the reasons

explained in this decision.” (Id. at 23.) The decision, per 82 FR 15263, does not provide articulation

on medical opinions discussing issues reserved for the Commissioner’s decision. (Id. at 24.) The

decision indicates the time-off percentage, along with other limitations, is calculated to “avoid

exacerbation of [Plaintiff’s] complaints.” (Id. at 25.) ALJ Kenneally supports his ultimate finding

that Plaintiff is not disabled by noting “[i]f the claimant’s physical and mental conditions were

disabling, it would be expected that her treatment would be more aggressive and the medical

evidence of record would document more serious signs, findings and symptoms.” (Id.)

The Court finds ALJ Kenneally’s RFC determination is supported by substantial evidence,

as a fair reading of the decision shows that he did consider Plaintiff’s walking ability,

hydrocephalus symptoms, and strength ability in his assessment. ALJ Kenneally’s discussion of

the entire record (id. at 18, 21), noting of Plaintiff’s hydrocephalus complaints (id. at 22),

assessment of Plaintiff’s concern about walking alone and ability to lift (id.), evaluation of

treatment records regarding Plaintiff’s walking and leg strength (id.), and other considerations of

the record, show that all of Plaintiff’s symptoms were implicitly and explicitly considered in the

RFC determination. See Smith 961 F. Supp. 2d at 652; Diciano, 2019 WL 6696523, at *5; Wise,

626 F. App’x at 360. To the extent Plaintiff alleges ALJ Kenneally did not engage in a detailed

“function-by-function” assessment in his RFC analysis, such an assessment is unnecessary where,

as here, there are implicit and explicit indications of the ALJ’s reasoning in the record. Glass, 2019

WL 5617508, at *8; Donna R., 2022 WL 13009149, at *12; Sheppard, 2020 WL 5652450, at *5;

Malcolm v. Comm’r of Soc. Sec., Civ. A. No. 16-8646, 2017 WL 5951703, at *19 n.14 (D.N.J.

Nov. 30, 2017) (finding that “the Third Circuit does not require strict adherence to the function-

by-function analysis set forth in Social Security Ruling 96–8p”).

Accordingly, the Court finds there is substantial evidence supporting ALJ Kenneally’s

RFC determination and does not vacate the decision on this basis.

C. Whether the ALJ Adequately Completed the Record

Plaintiff argues ALJ Kenneally failed to adequately complete the record because he did not

question her regarding her ability to “sit, stand, walk, or carry” and the written forms she filled

also did not elicit this information. (ECF No. 5-1 at 17.) Plaintiff also argues ALJ Kenneally should

have obtained further opinion evidence regarding these strength functions. (Id. at 18.) Plaintiff

claims it was impossible for ALJ Kenneally to determine her RFC without adequate lay or medical

evidence regarding her baseline functional capacity. (Id.) Plaintiff asks the Court to remand the

matter to the ALJ with the instruction to “undertake one or more of the options available to him

under 20 CFR §1520b(2), specifically, recontacting a treating source, sending the plaintiff for a

consultative exam, or obtaining an opinion from a medical advisor either by interrogatories or at a

supplemental hearing.” (Id.) Plaintiff asserts ALJ Kenneally had a duty to complete the record

despite her being represented by counsel, as the administrative hearing is not an adversarial

proceeding. (Id.)

The Commissioner notes that Plaintiff’s counsel stated there was “nothing outstanding”

after reviewing the record at the administrative hearing. (ECF No. 7 at 11.) The Commissioner

asserts ALJ Kenneally’s decision was based on a substantial record including hundreds of pages

of medical evidence. (Id.) The Commissioner argues the burden of production and proof in a

disability determination lies with the claimant, as the claimant is best placed to produce evidence

about their own medical condition. (Id.) Moreover, when a claimant is represented by counsel, the

ALJ is “entitled to assume that the applicant is making his [or her] strongest case for benefits.” (Id.

(quoting Glenn v. Sec’y of Health & Hum. Servs., 814 F.2d 387, 391 (7th Cir. 1987)). The

Commissioner asserts the record contained hundreds of pages of generally unremarkable

examination results, as well as Plaintiff’s treatment history, incomplete physical therapy, and

testimony about Plaintiff’s hobbies and daily activities. (Id. at 11–12.) Therefore, the

Commissioner argues there was no reason for ALJ Kenneally to seek additional evidence. (Id. at

12.)

Plaintiff replies that the response of her counsel that there was “nothing outstanding” in the

record “does not override the ALJ’s duty to complete the record” because the statement was made

in response to a question regarding whether the record should be held open, not if the record was

complete. (ECF No. 8 at 3–4.) Therefore, the question does not provide an opportunity for counsel

to request the ALJ to seek additional opinion evidence, as the question only refers to evidence that

has been requested but not received. (Id. at 4.) Ultimately, Plaintiff argues it was the responsibility

of ALJ Kenneally, not Plaintiff’s counsel, to ensure the record was adequate. (Id.)

Here, the Court has found that substantial evidence supported ALJ Kenneally’s RFC

determination, meaning that ALJ Kenneally did not need to request additional evidence before

reaching his decision. Courts have consistently held that an ALJ need not request additional

evidence where the ALJ’s decision is otherwise supported by substantial evidence. See Hubbard

v. Comm’r of Soc. Sec., Civ. A. No. 20-00206, 2021 WL 3891598, at *10 (E.D. Tenn. Aug. 31,

2021) (holding that the ALJ need not have requested additional evidence as “the ALJ’s thorough

opinion demonstrates that he considered the entire record before he determined that there was

[in]sufficient evidence to conclude that Plaintiff did qualify as disabled”); Campbell v. Kijakazi,

Civ. A. No. 22-00013, 2023 WL 2139217, at *7 (E.D. Mo. Feb. 21, 2023) (holding that “a

claimant’s failure to provide medical evidence should not be held against the ALJ when there is

medical evidence that supports the ALJ’s decision”); Sam v. Comm’r of Soc. Sec., Civ. A. No. 20-

00658, 2021 WL 2174788, at *7 (W.D. La. May 4, 2021) (“In other words, if the record contains

sufficient evidence for the ALJ to make an informed decision, the ALJ need not develop the record

further.”). Therefore, because the Court already held ALJ Kenneally’s RFC determination was

based on sufficient evidence, the Court does not find ALJ Kenneally should have requested

additional evidence for the record.

V. CONCLUSION

For the reasons set forth above, the Court finds Plaintiff failed to show ALJ Kenneally

erred in determining Plaintiff was not disabled under the Social Security Act. Therefore, Plaintiff’s

appeal (ECF No. 1) is DENIED, and the Commissioner’s decision is AFFIRMED. An appropriate

Order follows.

Date: August 5, 2024 /s/ Brian R. Martinotti___________

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE