FAHRION v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DONNA F.,1

Plaintiff,

Case No. 2:22-cv-2503

v. Magistrate Judge Norah McCann King

MARTIN 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 Donna F. 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 6, 2019, Plaintiff filed her application for benefits, alleging that she has been

disabled since December 7, 2018. R. 64, 75, 140–41.3 The application was denied initially and

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 O’Malley, the Commissioner of Social Security, is substituted as Defendant in his

official capacity. See Fed. R. Civ. P. 25(d).

3 The SSA awarded benefits to Plaintiff in connection with a second application filed by her,

finding her disabled as of January 1, 2021, i.e., the day after the ALJ issued the decision at issue

1

upon reconsideration. R. 87–96. Plaintiff sought a de novo hearing before an administrative law

judge (“ALJ”). R. 97–98. ALJ Gina Pesaresi held a hearing on November 12, 2020, at which

Plaintiff, who was represented by counsel as well as a non-attorney representative, testified, as

did a vocational expert. R. 20, 38–63. In a decision dated December 31, 2020, the ALJ concluded

that Plaintiff was not disabled within the meaning of the Social Security Act from December 7,

2018, Plaintiff’s alleged disability onset date, through the date of that decision. R. 20–33. That

decision became final when the Appeals Council declined review on March 15, 2022. R. 1–7.

Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No. 1. On June 20, 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. 6.4 On June

21, 2022, the case was reassigned to the undersigned. ECF No. 7. 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

in this case. See Exhibit 1, attached to Plaintiff’s Reply Brief, ECF No. 23; Plaintiff’s Notice of

Supplemental Authority, ECF No. 24. As Plaintiff concedes, the “period at issue before this

Court is from Plaintiff’s alleged onset date of December 7, 2018, until December 31, 2020.”

Plaintiff’s Notice of Supplemental Authority, ECF No. 24, p. 1.

4The 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

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 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, 587 U.S. 97, 102-03 (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.”);

3

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

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 the 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

4

paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981). Absent

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)).

5

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

6

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. 22. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful

activity between December 7, 2018, her alleged disability onset date, and the date of the

decision. R. 23.

At step two, the ALJ found that Plaintiff suffered from the following severe impairments:

coronary artery disease status post stent placement; degenerative disc disease of the cervical and

lumbar spine with radiculopathy; plantar fasciitis; bunion; tendinopathy and tears of the

supraspinatus and infraspinatus of the left shoulder, with residuals status post rotator cuff repair;

arthritis; residuals from resection of osteochondroma of the fifth metatarsal of the right foot; and

obesity. R. 23. The ALJ also found that gastroesophageal reflux disease (“GERD”), anxiety

disorder, depressive disorder, and sleep apnea were not severe impairments. R. 23–25.

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. 25–27.

At step four, the ALJ found that Plaintiff had the RFC to perform sedentary work subject

to various additional limitations. R. 27–33. The ALJ also found that this RFC permitted the

performance of Plaintiff’s past relevant work as an office worker. R. 32–33. The ALJ therefore

concluded that Plaintiff was not disabled within the meaning of the Social Security Act from

December 7, 2018, her alleged disability onset date, through the date of the ALJ’s decision. R.

33.

Plaintiff disagrees with the ALJ’s findings at step 4 and also contends that the case should

7

be remanded for consideration of new and material evidence. Plaintiff’s Memorandum of Law,

ECF No. 17; Plaintiff’s Reply Brief, ECF No. 23. The Commissioner takes the position that 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. 20. The Commissioner also disagrees with Plaintiff’s request for remand under

sentence six of 42 U.S.C. § 405(g).

IV. SUMMARY OF RELEVANT MEDICAL EVIDENCE

Arden Fusman5 conducted an initial review of Plaintiff’s medical record on behalf of the

state agency on January 14, 2020. R. 65–74. According to Dr. Fusman, Plaintiff could

occasionally (one-third or less of an eight-hour day) lift and/or carry 20 pounds and frequently

(more than one-third up to two-thirds of an eight-hour day) lift and carry 10 pounds, could stand

and/or walk about 6 hours in an eight-hour day, and could sit for about 6 hours in an eight-hour

day. R. 70–71. Plaintiff could occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and

crawl, but could never climb ladders/ropes/scaffolds. R. 71. Plaintiff was limited in her ability to

reach to the left in front and/or laterally and left overhead. Id. Asked to explain Plaintiff’s

manipulative limitations and how the evidence supports his opinions in this regard, Dr. Fusman

responded, “LUE occasional[.]” R. 72. He denied that Plaintiff had visual or communicative

limitations, but opined that Plaintiff should avoid concentrated exposure to extreme cold,

extreme heat, wetness, humidity; moderate exposure to fumes, odors, dusts, gases, poor

5 Dr. Fusman’s credentials do not appear in the record; however, the ALJ referred to this

consultant as “Arden Fusman, M.D.” R. 31. The Court will therefore also refer to this consultant

as “Dr. Fusman.”

8

ventilation, etc.; and all exposure to hazards; but she had no limitation in connection with noise

and vibration. Id. Dr. Fusman stated further under the heading, “RFC – Additional Explanation,”

as follows:

54 yo female alleges RTC surgery, cardiac disease, back pain,

1. s/p removal osteochondroma plantar aspect right 5th toe May 2019, per note of

6/24/19;

2. left shoulder pain per note of 8/15/19-complete RTC tear of left shoulder, s/p left

shoulder arthroscopic repair, decreased rom, should not be causing this much pain

especially after 8 months of PT - refer to pain management.

3. cardiac - s/p drug eluding stent 6/11/18

ADLs she is independent in her self care, she can prepare meals and do housework,

she can drive and shop and walk a few blocks,

EOD 8/15/19

R. 72–73. According to Dr. Fusman, Plaintiff could perform her past relevant work as it was

actually performed and was not disabled. R. 73.

Arthur Pirone, M.D., reviewed Plaintiff’s medical record upon reconsideration for the

state agency on May 29, 2020. R. 76–81. Dr. Pirone agreed with Dr. Fusman that Plaintiff could

occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds, could stand/walk

for about 6 hours, and could sit for about 6 hours in an eight-hour workday. R. 79. However,

unlike Dr. Fusman, Dr. Pirone opined that Plaintiff had no postural, visual, communicative, or

environmental limitations. R. 79–80. Plaintiff’s only manipulative limitation was a limitation to

only occasionally reaching overhead with her left upper extremity. R. 79. Like Dr. Fusman, Dr.

Pirone concluded that Plaintiff could perform her past relevant work as it was actually performed

and that she was therefore not disabled. R. 80.

V. DISCUSSION

A. RFC and Opinion Evidence

Plaintiff contends that substantial evidence does not support the RFC because the ALJ

erred in considering Dr. Fusman’s opinion regarding Plaintiff’s ability to reach. Plaintiff’s Brief,

9

ECF No. 17, pp. 11–19; Plaintiff’s Reply Brief, ECF No. 23, pp. 1–7. For the reasons that follow,

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 Dr.s—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

v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). 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, 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 sedentary work, as follows:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform sedentary work as defined

in 20 CFR 404.1567(a) except that the claimant can never climb ladders, ropes or

scaffolds, can occasionally climb ramps or stairs, occasionally stoop, crouch, kneel

and balance, never crawl, can occasionally reach overhead and frequently reach in

all directions with the left upper extremity.

R. 27. In making this determination, the ALJ detailed years of record evidence, including, inter

alia, Plaintiff’s history of cardiac procedures in May and June 2018 and subsequent stabilization

10

of her cardiovascular status later in 2018 and in 2019; Plaintiff’s medical records that reflected

no additional cardiac treatment until May 2020; a September 2020 myocardial infarction and

cardiac catheterization that revealed 100% stenosis in the right coronary artery, for which

Plaintiff underwent a stenting procedure; and Plaintiff’s denial later that month of chest pain or

shortness of breath. R. 28. As for her musculoskeletal impairments, the ALJ also considered

Plaintiff’s history of right foot pain; February 2019 examination findings that, despite Plaintiff’s

complaints of right foot pain, she ambulated with a non-antalgic gait, had equal and normal

muscle power, normal deep tendon reflexes, and intact sensation, and was fully weightbearing;

evidence that, in June 2019 and following continuing complaints of right foot pain, Plaintiff

underwent resection of an osteochondroma/hypertrophic bone from the plantar aspect of the 5th

metatarsal of her right foot, and removal of two screws from her right foot; reports of only

minimal pain postoperatively with only minimal pain to palpation at the surgical site, and, later

the same month, Plaintiff reported that she was feeling “great,” had only minimal pain, was

ambulating comfortably with sneakers and with a non-antalgic gait, and could gradually begin

normal activity as tolerated; a finding in August 2019 by Gregory Pinkowsky, M.D., that

Plaintiff had a normal gait; evidence that Plaintiff sought no further treatment of her foot

impairment until July 2020, when she reported that she had numbness and tingling in her feet,

although no abnormalities were documented upon exam; findings that Plaintiff had normal motor

strength in her lower extremities, and had no focal neurologic deficits; an October 2020 MRI of

Plaintiff’s lumbar spine that revealed minimal disc protrusion at T11-T12; small disc herniation

at L1-L2; minimal disc bulge at L2-L3 with mild right foraminal stenosis; disc degeneration at

L3-L4 with minimal disc bulge and mild left foraminal stenosis; minimal disc bulge at L4-L5

with moderate right foraminal stenosis and mild central stenosis; no evidence that Plaintiff

11

required any type of assistive device to ambulate; and no evidence of significant spinal stenosis,

positive straight leg raising, nerve root impingement, sensory or reflex loss, or decreased strength

in her lower extremities. R. 28–29. As for Plaintiff’s left shoulder and neck impairments, the

ALJ considered that Plaintiff reported in October 2018 that she had experienced pain in her left

shoulder for the prior six months; evidence that, in December 2018, Plaintiff underwent surgical

repair of a torn left rotator cuff; that she reported to Dr. Pinkowsky in January 2019 that, overall,

she had been doing well, that her pain was controlled, and she was doing well in physical

therapy; Dr. Pinkowsky’s finding on examination that Plaintiff had intact sensation, and

recommendation that Plaintiff could discontinue her use of a sling and should continue physical

therapy; Plaintiff report to Dr. Pinkowsky in March 2019 that she was doing well and her pain

was controlled; Dr. Pinkowsky’s findings upon examination that Plaintiff had 4+/5 strength in

her left shoulder and intact sensation; Plaintiff’s report in April 2019 that she had been doing

well until a physical therapist stretched her left arm too quickly, following which she had been

experiencing pain; Dr. Pinkowsky’s findings upon examination that, despite this setback,

Plaintiff had very good strength and good range of motion; Plaintiff’s report in May 2019 that

her pain was controlled and that, overall, she was doing well; examination revealed 5/5 strength

and intact sensation; Dr. Pinkowsky’s findings in June 2019 that Plaintiff had regained full range

of motion in her left shoulder; Plaintiff’s complaint to Dr. Pinkowsky in August 2019 that she

had recently experienced sharp pain in her left shoulder that had radiated down her arm; Dr.

Pinkowsky’s examination findings that Plaintiff had 5/5 strength, and intact sensation, but had

limited flexion and extension in her cervical spine; an August 2019 MRI of Plaintiff’s left

shoulder that revealed moderate tendinopathy of the supraspinatus and infraspinatus, and a small

to moderate partial thickness tear of the infraspinatus with an associated small near full thickness

12

tear; an MRI of Plaintiff’s cervical spine performed that same day that revealed minimal disc

bulge at C2-C3 and C7-T1, mild disc degeneration at C3-C4 through C6-C7, and facet

arthropathy at C7-T1, but no significant central canal stenosis or foraminal stenosis at any level;

evidence that Plaintiff underwent a cortisone injection in her left shoulder in September 2019;

the October 2019 findings of intact sensation and 5/5 strength; evidence that, despite Plaintiff’s

complaint of pain in her left shoulder, she sought no treatment for her neck or shoulder

impairments after October 2019 until July 2020; evidence that, in July 2020, Plaintiff presented

to Galdi Balazs, M.D., complaining of pain in her left shoulder with occasional tingling in her

fingers; Dr. Balazs’ examination findings that Plaintiff had tenderness to palpation in her left

shoulder, 4/5 strength to forward elevation and external rotation, and 5/5 strength to internal

rotation; an August 2020 MRI of Plaintiff’s left shoulder that revealed a tear of the supraspinatus

tendon and examination findings that revealed normal motor strength in her upper extremities

with no focal neurologic deficits. R. 29–30 (stating further that there is no evidence Plaintiff

“lacks the ability to perform fine or gross movements with her upper extremities. Treatment

notes since her most recent shoulder surgery show normal range of motion and muscle strength,

and no sensory or reflex loss” and noting that Plaintiff’s “treatment since her surgery has been

conservative, with large gaps in the record with no evidence of any treatment”) (emphasis

added). The ALJ also expressly considered Plaintiff’s obesity, which the ALJ factored into

Plaintiff’s RFC. R. 30–31.

The ALJ went on to explain her reasoning for the RFC determination, as follows:

The record reflects that the claimant has performed a generally normal range of

functional abilities, which is inconsistent with a finding of disability. Although the

claimant testified at her hearing that her impairments severely restricted h[er]

functional ability, the claimant indicated on an Adult Function Report that she can

prepare simple meals, wash laundry, can drive a car, and shops in stores for

groceries (Exhibit B-4E). The claimant did not testify that her alleged mental

13

impairments cause any limitations in her ability to perform her activities of daily

living.

Finally, the medical record as a whole supports a conclusion that the claimant can

perform sedentary work with acknowledged limitations. The undersigned

considered the claimant’s obesity, coronary artery disease, arthritis, cervical and

lumber degenerative disc disease, left shoulder impairment, and right foot

impairments in assigning a sedentary residual functional capacity. A limitation that

the claimant can never climb ladders, ropes or scaffolds, can occasionally climb

ramps or stairs, occasionally stoop, crouch, kneel and balance, never crawl, was

assigned to consider the claimant’s obesity, coronary artery disease, arthritis,

cervical and lumber degenerative disc disease, left shoulder impairment, and right

foot impairments. A limitation that the claimant can occasionally reach overhead,

and frequently reach in all directions with the left upper extremity was assigned to

consider the claimant’s left shoulder impairment and cervical degenerative disc

disease.

R. 31. 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, argues that the ALJ erred in her consideration of Dr. Fusman’s

opinion, leading to a flawed RFC determination. Plaintiff’s Brief, ECF No. 17, pp. 11–19;

Plaintiff’s Reply Brief, ECF No. 23, pp. 1–7. 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. 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 v. Massanari, 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

14

in the record 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, 2017,6 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 applicable 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

6 As previously noted, Plaintiff’s claim was filed on July 6, 2019.

15

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).

In crafting the RFC determination at step four of the sequential evaluation, the ALJ in

this case found, inter alia, that Dr. Fusman’s opinion was “partially persuasive[,]” reasoning as

follows:

Arden Fusman, M.D., a State agency medical Dr., completed a Physical Residual

Functional Capacity Assessment form on January 14, 2020 (Exhibit B-2A). Dr.

Fusman opined that the claimant could lift and carry 20 pounds occasionally, 10

pounds frequently, can stand and walk for 6 hours in an 8-hour workday, sit for 6

hours in an 8-hour workday, with an unlimited ability to push and pull. Dr. Fusman

opined further that the claimant can occasionally climb ramps and stairs, never

climb ladders, ropes, or scaffolds, occasionally balance, stoop, kneel, crouch, and

crawl, can occasionally reach overhead, in front and/or laterally with the left upper

extremity, must avoid concentrated exposure to temperature extremes, wetness, and

humidity, avoid even moderate exposure to fumes, odors, dusts, gases, and poor

ventilation, and avoid all exposure to hazards. Dr. Fusman’s opinion is found

partially persuasive. Dr. Fusman’s opinion that the claimant can lift and carry 20

pounds occasionally, 10 pounds frequently, can stand and walk for 6 hours in an 8-

hour workday, is inconsistent with subsequent treatment notes which support a

finding that the claimant is more limited in these areas than he opined. Dr. Fusman’s

opinion that the claimant can sit for 6 hours, occasionally climb ramps and stairs,

never climb ladders, ropes, or scaffolds, occasionally balance, stoop, kneel, crouch,

and crawl, can occasionally reach overhead, is persuasive, as it is consistent with

Dr. Pinkowsky’s treatment notes which indicate that the claimant had 5/5 strength,

intact sensation, and had regained full range of motion in her left shoulder (Exhibit

16

B-5F/16). Dr. Fusman’s opinion that the claimant must avoid concentrated

exposure to temperature extremes, wetness, and humidity, avoid even moderate

exposure to fumes, odors, dusts, gases, and poor ventilation, and avoid all exposure

to hazards is not persuasive, as there are no treatment notes in the record which

support assigning these environmental limitations. Dr. Fusman’s opinion that the

claimant can occasionally reach in front and/or laterally with the left upper

extremity is also unpersuasive as it is inconsistent with Dr. Pinkowsky’s treatment

notes which indicate that the claimant had 5/5 strength, intact sensation, and had

regained full range of motion in her left shoulder (Exhibit B-5F/16). This part of

Dr. Fusman’s opinion is also inconsistent with Dr. Balazs’ treatment notes which

stated that the claimant had 4/5 strength in her left shoulder to forward elevation

and external rotation and 5/5 strength to internal rotation (Exhibit B-14F).

R. 31–32 (emphasis added). The Court finds no error with the ALJ’s reasoning in this regard. See

20 C.F.R. § 404.1520c(c); cf. Peters v. Saul, No. 3:19-CV-01672, 2020 WL 6799927, at *8

(M.D. Pa. Nov. 19, 2020) (affirming denial of benefits where, inter alia, the ALJ supported the

RFC limitations with objective medical evidence that revealed, among other things, “generally

normal strength and ranges of motion with occasional restriction due to the pain that improved[;]

routine and conservative care that included medication as well as injections that stabilized and

improved her symptoms[; and an examination that] showed normal strength and mild decreases

in range of motion despite her alleging extreme pain”).

Plaintiff, however, contends that the ALJ selectively cited to the record evidence when

discounting Dr. Fusman’s opined shoulder limitations and that the records of Dr. Pinkowsky and

Dr. Balazs support, and are consistent with, Dr. Fusman’s opined reaching limitations. Plaintiff’s

Brief, ECF No. 17, pp. 15–19. The Court is not persuaded that these issues require remand.

In support of this argument, Plaintiff notes that, in May 2019, Dr. Pinkowsky “related

that although [Plaintiff’s] shoulder was doing well, her left clavicle and elbow were both

painful.” Id. at 16 (citing R. 494). However, and as the ALJ observed, R. 30 (noting that Plaintiff

“admitted that her pain was controlled, and overall was going well”), Dr. Pinkowsky also

expressly noted at that time that Plaintiff reported that “[o]verall she has been doing well. Pain is

17

controlled. She has been doing well with physical therapy. No pain in the shoulder.” R. 494

(emphasis added). Plaintiff also concedes that the ALJ noted Dr. Pinkowsky’s findings that

Plaintiff had limited flexion and extension in her cervical spine and 5/5 strength and intact

sensation. Plaintiff’s Brief, ECF No. 17, p. 16 (citing R. 30); see also Messina v. Comm’r of Soc.

Sec., 844 F. App’x 586, 589–90 (3d Cir. 2021) (“Yet we cannot reweigh the evidence or make

our own factual determinations.”) (citations omitted); 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].”).

Plaintiff also complains that her condition worsened in August 2019, with pain radiating

down her left arm with possible cervical radiculopathy, decreased range of motion in her left

arm, and a positive Spurling’s test. Plaintiff’s Brief, ECF No. 17, pp. 15–16 (citing R. 30, 488).

She also points to “a partial medical source statement dated August 23, 2019” authored by Dr.

Pinkowsky that reflected a small full-thickness tear of the infraspinatus and which mentioned

cortisone injections, medication, and physical therapy. Id. at 16 (citing R. 478). Plaintiff further

emphasizes that Dr. Pinkowsky “supplied a passive range of motion chart on which he placed Xs

apparently to indicate a lack of left shoulder motion in the areas of forward elevation, abduction,

and external rotation.” Id. (citing R. 483) (emphasis added). However, any error in the ALJ’s

failure to expressly acknowledge this evidence is, at most, harmless. As an initial matter,

Plaintiff implicitly concedes that Dr. Pinkowsky’s findings on the passive range of motion chart

are vague; this physician did not specify the extent to which Plaintiff’s range of motion was

limited. See id.; see also R. 483. Significantly, Dr. Pinkowsky did not identify in his August

2019 medical source statement—a document upon which Plaintiff relies—any limitation in her

ability to perform work-related activities flowing from this impairment. R. 479. Additionally,

18

Plaintiff does not explain why the ALJ’s RFC determination failed to accommodate any

limitation related to this impairment. See generally Plaintiff’s Brief, ECF No. 17, pp. 15–16; 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.”). Accordingly,

any error on the part of the ALJ in her failure to expressly consider this evidence, if indeed any

such error actually occurred, does not require remand. See Pierznik v. Comm’r Soc. Sec., No. 22-

2369, 2023 WL 4014468, at *1 (3d Cir. June 15, 2023), cert. denied sub nom. Pierznik v.

O’Malley, No. 23-6428, -- U.S. --, -- S.Ct. --, 2024 WL 899292 (U.S. Mar. 4, 2024) (concluding

that substantial evidence supported the RFC determination and the ALJ’s underlying decision to

reject some medical opinions because they were “vague” and did not address the claimant’s

functional abilities in vocational terms); Anderson v. Comm’r of Soc. Sec., No. 21-2009, 2022

WL 1635628, at *4 (3d Cir. May 24, 2022) (finding that, in discounting a medical opinion, the

ALJ's explanation that the opinion “was vague and failed to identify ‘any specific work related

functional limitations” “suffices under the substantial-evidence standard”); cf. Rutherford, 399

F.3d at 553 (finding that “a remand is not required here because it would not affect the outcome

of the case”).

Plaintiff acknowledges that the ALJ noted Dr. Pinkowsky’s finding that Plaintiff had

intact sensation and 5/5 strength in September 2019 and complained of pain in October 2019, but

points to the ALJ’s failure to discuss Plaintiff’s positive Spurling’s test in October 2019.

Plaintiff’s Brief, ECF No. 17, p. 17 (citing R. 30 (citing R. 629 –30). According to Plaintiff,

these findings “are significant abnormal objective evidence which supports the limitations found

by Dr. Fusman.” Id. However, Plaintiff does not explain how a positive Spurling’s test

19

establishes that the ALJ’s RFC determination failed to accommodate Plaintiff’s shoulder

impairment. See generally Plaintiff’s Brief, ECF No. 17; Plaintiff’s Reply Brief, ECF No. 23. See

Padgett v. Comm’r of Soc. Sec., No. CV 16-9441, 2018 WL 1399307, at *2 (D.N.J. Mar. 20,

2018) (“[B]ecause Plaintiff has articulated no analysis of the evidence, the Court does not

understand what argument Plaintiff has made here. Plaintiff has done no more than throw down a

few pieces of an unknown jigsaw puzzle and left it to the Court to put them together. The Court

does not assemble arguments for a party from fragments.”). 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; 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));

Similarly, Plaintiff fails to explain how Dr. Pinkowsky’s October 2019 discussion with

Plaintiff about arthroscopic rotator cuff repair “further supports Dr. Fusman’s finding limiting

[Plaintiff] to occasional reaching of the left arm.” Plaintiff’s Brief, ECF No. 17, pp. 17–18 (citing

R. 630). It is significant in this regard that Plaintiff makes no mention of Plaintiff’s failure to

seek “treatment for her neck or shoulder impairments after October 2019 until July 2020” when

she went to see Dr. Balazs. R. 30; see generally Plaintiff’s Brief, ECF No. 17; Plaintiff’s Reply

Brief, ECF No. 23. In short, Plaintiff has not persuaded this Court that this evidence undermines

the ALJ’s consideration of Dr. Fusman’s opinion or otherwise requires remand.

20

Turning to the ALJ’s reliance on Dr. Balazs’ notes when discounting Dr. Fusman’s

opined reaching limitations, Plaintiff complains that this physician’s strength findings are not

necessarily inconsistent with Dr. Fusman’s opinion. Plaintiff’s Brief, ECF No. 17, p. 18 (citing

R. 32 (citing R. 714–19)). Even assuming that Plaintiff is correct and that the ALJ erred to the

extent that the ALJ equated strength with an ability to reach, Plaintiff has not established that this

error is anything other than harmless. For example, Plaintiff does not argue that Dr. Balazs found

that Plaintiff had a limitation in her range of motion in her left arm or shoulder. See id.

Plaintiff argues that Dr. Balazs’ report that Plaintiff suffered from left shoulder pain for

which he contemplated a repeat MRI of Plaintiff’s left shoulder, combined with the evidence

discussed above, “documents that [Plaintiff’s] left shoulder impairment did not improve as the

ALJ claimed. (Tr. 30).” Plaintiff’s Brief, ECF No. 17, pp. 18–19. In fact, however, the ALJ did

not find that Plaintiff’s shoulder impairment had improved. R. 30. Instead, as detailed above, the

ALJ stated, inter alia, that Dr. Balazs noted in July 2020 tenderness to palpation in Plaintiff’s left

shoulder and that an MRI of the left shoulder in August 2020 revealed a tear of the supraspinatus

tendon and normal muscle strength in her upper extremities with no neurologic defects. Id.

Absent some explanation from Plaintiff, it is not clear to the Court how this evidence establishes

that the ALJ erred in discounting Dr. Fusman’s opined limitations in Plaintiff’s ability to reach.

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. Fusman’s opinion.

B. Past Relevant Work

Plaintiff next argues that the ALJ committed reversible error in finding that Plaintiff

could perform her past relevant semi-skilled work as an office worker despite her mild mental

21

impairments. Plaintiff’s Brief, ECF No. 17, pp. 20–26; Plaintiff’s Reply Brief, ECF No. 23, pp.

7–9. For the reasons that follow, this Court disagrees.

As set forth above, the ALJ found at step two that Plaintiff’s medically determinable

mental impairments of anxiety disorder and depressive disorder were not severe. R. 23–25. In

making this finding, the ALJ considered the requisite four broad areas of mental functioning,

finding that Plaintiff had no limitation in her ability to interact with others and only “mild” or

“mild, if any” limitations in the remaining three areas, reasoning as follows:

As for the claimant’s anxiety and depression, the undersigned notes that there is

very little evidence of these impairments in the record. On May 7, 2019, the

claimant denied having symptoms of depression (Exhibit B-5F/20). Upon exam,

Dr. Pinkowsky noted that the claimant had a normal mood and affect. Dr. Balazs

noted on July 13, 2020, that the claimant’s mood and affect were normal (Exhibit

B-14F/3). The claimant admitted that she just started seeing a therapist, and has

only met with her twice. There is no evidence that the claimant takes any

medication for her alleged anxiety and depression. There is also no evidence of any

significant symptomatology such as memory deficits, mood fluctuations,

hallucinations, or delusions. As there is no evidence that the claimant’s alleged

mental impairments have caused more than a minimal impact on her ability to

perform work related activities, the undersigned concludes that they are non-severe

impairments.

In making this finding, the undersigned has considered the broad functional areas

of mental functioning set out in the disability regulations for evaluating mental

disorders and in the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix

1). These four broad functional areas are known as the “paragraph B” criteria.

The first functional area is understanding, remembering or applying information.

In this area, the claimant has mild limitation. The claimant testified that she has

problems with her memory sometimes. The undersigned notes that the claimant did

not have any problems understanding the questions that were presented to her

during her hearing. The claimant admitted on an Adult Function Report that she has

no problems following written and spoken instructions, and is able to finish what

she starts (Exhibit B-4E). She noted that she can pay bills, count change, handle a

savings account, and use a checkbook. The undersigned concludes that the claimant

has only mild, if any, limitation in understanding, remembering or applying

information.

The next functional area is interacting with others. In this area, the claimant has no

limitation. The claimant did not testify that she has any problems getting along with

22

others. The claimant indicated on an Adult Function Report that she does not have

problems getting along with family, friends, or others (Exhibit B-4E). She admitted

that she has never been fired from a job because of problems getting along with

others. She noted that she spends times with others twice a week when her friend

picks her up. None of the claimant’s treatment notes document any problems

getting along with the medical providers at these facilities. The undersigned

concludes that the claimant has no limitations interacting with others.

The third functional area is concentrating, persisting or maintaining pace. In this

area, the claimant has mild limitation. The claimant testified that she sometimes

has problems with her concentration. The claimant admitted on an Adult Function

Report that she has no problems following written and spoken instructions, has no

problems paying attention, and is able to finish what she starts (Exhibit B-4E). The

undersigned concludes that the claimant has only mild, if any limitation in

concentrating, persisting or maintaining pace.

The fourth functional area is adapting or managing oneself. In this area, the

claimant has mild limitation. The claimant indicated on an Adult Function Report

that she can prepare simple meals, wash laundry, can drive a car, and shops in stores

for groceries (Exhibit B-4E). The claimant did not testify that her alleged mental

impairments cause any limitations in her ability to perform her activities of daily

living. The undersigned concludes that the claimant has only mild, if any limitations

in adapting to managing oneself.

Because the claimant’s medically determinable mental impairments cause no more

than “mild” limitation in any of the functional areas and the evidence does not

otherwise indicate that there is more than a minimal limitation in the claimant’s

ability to do basic work activities, they are nonsevere (20 CFR 404.1520a(d)(1)).

The limitations identified in the “paragraph B” criteria are not a residual functional

capacity assessment but are used to rate the severity of mental impairments at steps

2 and 3 of the sequential evaluation process. The mental residual functional

capacity assessment used at steps 4 and 5 of the sequential evaluation process

requires a more detailed assessment. The following residual functional capacity

assessment reflects the degree of limitation the undersigned has found in the

“paragraph B” mental function analysis.

R. 24–25 (emphasis added).

Plaintiff argues that the ALJ, having found mild mental limitations at step two, erred by

failing to both translate these findings into functional restrictions in the RFC finding and to

explain in the RFC assessment why no related limitations were included. Plaintiff’s Brief, ECF

No. 17, pp. 20–26; Plaintiff’s Reply Brief, ECF No. 23, pp. 7–9 (arguing, inter alia, that “it is

23

apparent that the reversible error here flowed from the ALJ’s failure to give any consideration to

her acknowledged mental impairments of anxiety and depression during the RFC assessment”)

(emphasis in the original). Plaintiff specifically complains that this error is not harmless because

the ALJ focused on physical impairments in the RFC and did not address whether Plaintiff’s

mild mental impairments precluded her ability to perform her past relevant semi-skilled work as

an office worker. Id. Plaintiff’s arguments are not well taken.

The ALJ expressly considered these mild mental limitations when crafting Plaintiff’s

RFC:

The limitations identified in the “paragraph B” criteria [at step two of the sequential

evaluation] are not a residual functional capacity assessment but are used to rate the

severity of mental impairments at steps 2 and 3 of the sequential evaluation process.

The mental residual functional capacity assessment used at steps 4 and 5 of the

sequential evaluation process requires a more detailed assessment. The following

residual functional capacity assessment reflects the degree of limitation the

undersigned has found in the “paragraph B” mental function analysis.

R. 19. Notably, at step four, the ALJ also specifically considered that Plaintiff “did not testify

that her alleged mental impairments cause any limitations in her ability to perform her activities

of daily living.” R. 31 (noting further that Plaintiff stated that “she can prepare simple meals,

wash laundry, can drive a car, and shops in stores for groceries”);7 see also 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., No. CV 20-2484 (RBK), 2021 WL 1851830,

7 To the extent that Plaintiff challenges this finding, the Court addresses this challenge later in

this decision when analyzing the ALJ’s consideration of Plaintiff’s subjective complaints.

24

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.”). “This discussion and incorporation by reference

is sufficient to satisfy the requirement that the ALJ consider all of the Plaintiff’s impairments in

formulating the RFC.” D.C., 2021 WL 1851830, at *5; see also id. at *6 (“[A]n RFC assessment

does not need to contain an 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”); Gita P. v.

Comm’r of Soc. Sec. Admin., No. CV 21-6087 (MAS), 2022 WL 1683834, at *6 (D.N.J. May 26,

2022) (explaining that “[m]any courts in this District, however, have concluded that ALJs do not

err when giving short shrift to non-severe mental impairments in RFC determinations” and that

“the trend from these cases is clear: [the ALJ] did not reversibly err by relying on his thorough

step-two findings in crafting [the claimant’s] RFC. In so affirming, the Court joins the chorus of

cases holding the same”); Grice v. Saul, No. CV 20-02804 (FLW), 2021 WL 4551357, at *8

(D.N.J. Oct. 5, 2021) (noting that the ALJ recognized that the step two analysis is separate and

distinct from the RFC assessment; that he included specific language that incorporated his step

two findings into the RFC; that he expressly stated that he considered all symptoms when

crafting the RFC; and that the plaintiff did not offer any opinions regarding, inter alia, her

mental RFC, and concluding that this discussion “demonstrates that the ALJ considered the

effects of all of Plaintiff’s credibly-established and uncontradicted medical conditions in his RFC

assessment, including the mild mental limitations discussed during his step two analysis” and

that “[w]hile the ALJ did not discuss Plaintiff’s mild mental limitations any further in his RFC

analysis, this is far from reversible error. Rather, it can be attributed to the ALJ’s decision to

minimize discussion of conditions that ‘do not cause more than minimal limitation in the

25

[Plaintiff’s] ability to perform basic mental work activities’” and that “the ALJ’s decision

sufficiently considers how Plaintiff's mental impairments affect her RFC and her capability to

perform past relevant work”) (citations to the record omitted).8

In any event, even assuming for the sake of argument that the ALJ erred in her failure to

more fully discuss Plaintiff’s mild mental impairments at step four—and the Court is not

persuaded that she did err in this regard—any such error is harmless. Plaintiff has not identified

any specific limitations flowing from her mild mental impairments, nor has she identified any

evidence supporting any such unidentified limitations that would prevent her from performing

her past relevant semi-skilled work as an office worker. See generally Plaintiff’s Brief, ECF No.

17; Plaintiff’s Reply Brief, ECF No. 23; see also Holloman v. Comm’r Soc. Sec., 639 F. App’x

810, 814 (3d Cir. 2016) (stating that a harmless error review requires that the claimant explain

how the error to which he points could have made any difference); Simon v. O’Malley, No. 1:23-

CV-1363, 2024 WL 2303894, at *8 (M.D. Pa. May 21, 2024) (“Here, the record with respect to

Simon’s anxiety and depression is sparse. The records during the relevant time consistently

document that Simon’s anxiety and depression were well controlled with her medications, and

there are no records indicating that Simon suffers from limitations that impair her ability to work

due to these impairments. Accordingly, we conclude that any failure to include mild limitations

8 In this regard, Plaintiff’s reliance on Rosario v. Kijakazi, No. CV 21-15609, 2022 WL 2714010

(D.N.J. July 13, 2022), and Kich v. Colvin, 218 F. Supp.3d 342 (M.D. Pa. 2016) is misplaced.

Plaintiff’s Brief, ECF No. 17, pp. 22–25. In Rosario, the Court found insufficient the ALJ’s

“conclusory statement” that she considered all the claimant’s medically determinable

impairments when crafting the RFC. Rosario, 2022 WL 2714010, at *11. In Kich, the Court

could not conclude that substantial evidence supported the RFC determination where, inter alia,

“the ALJ essentially eliminated mental health related limitations without explanation[.]” Kich,

218 F. Supp.3d. at 357. In the present case, on the contrary, the ALJ adequately explained her

consideration of Plaintiff’s mild mental limitations when crafting the RFC. R. 24–25, 27, 31; see

also D.C., 2021 WL 1851830, at *5–6; Gita P., 2022 WL 1683834, at *6; Grice, 2021 WL

4551357, at *8. Rosario and Kich are therefore inapposite.

26

from Simon's mental impairments is harmless.”); Hernandez v. Kijakazi, No. CV 22-01556

(FLW), 2022 WL 17751355, at *8–10 (D.N.J. Dec. 19, 2022) (“Plaintiff takes issue with the

ALJ’s use of ‘boilerplate language’ here to explain the relationship between the step two analysis

and the RFC analysis. . . . However, other courts in this Circuit have addressed nearly identical

language in holding that the step four RFC analysis adequately reflected the ALJ’s step two in-

depth analysis of mental limitations. . . . [E]ven if the ALJ’s consideration of Plaintiff’s mild

mental impairments was incomplete, any error was harmless. . . . The record contains sparse

evidence pertaining to Plaintiff’s depression and anxiety and any resulting work-related

impairments.”) (citations omitted); D.C., 2021 WL 1851830, at *6 (“[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.”). Notably, the

United States Court of Appeals for the Third Circuit has instructed that “the findings at steps two

and three will not necessarily translate to the language used at steps four and five[,]” Hess v.

Comm’r Soc. Sec., 931 F.3d 198, 209 (3d Cir. 2019), and an ALJ need include only “credibly

established” limitations in the RFC, Rutherford, 399 F.3d at 554. Accordingly, the Court cannot

conclude that the ALJ committed reversible error when crafting Plaintiff’s RFC, in light of the

ALJ’s consideration of the mild limitations flowing from Plaintiff’s mental impairments and

conclusion that Plaintiff can perform her past relevant semi-skilled work as an office worker. Cf.

Grice, 2021 WL 4551357, at *8 n.2 (“The Court reiterates that the mental limitations at issue

here were found to be mild, and that Plaintiff does not challenge the ALJ's classification of those

limitations. Further, the Court notes that the ALJ's decision sufficiently considers how Plaintiff's

27

mental impairments affect her RFC and her capability to perform past relevant work.”);

Makowski v. Comm’r of Soc. Sec., No. CV 16-1656 (JBS), 2017 WL 3151243, at *6–7 (D.N.J.

July 24, 2017) (“Plaintiff has not offered any support for her position that someone with a mild

limitation in three broad functional areas . . . is incapable of performing a job rated with a skill

level of six, as her past relevant work as a bookkeeper is. . . . Because the ALJ need only include

credible limitations in the RFC, and because there is substantial evidence supporting the ALJ’s

conclusion that Plaintiff's mental impairments would cause only mild limitations on her daily life

and not impact her work, the Court will not remand on this basis.”).

In continuing to challenge the ALJ’s finding that Plaintiff could perform her past relevant

work as an office worker, Plaintiff complains that the ALJ committed reversible error when she

failed to more fully discuss the physical requirements of that work. Plaintiff’s Brief, ECF No. 17,

pp. 26–32.9 As background, the ALJ concluded that Plaintiff’s past relevant work as an office

worker did not require the performance of work-related activities precluded by her RFC:

The claimant has past relevant work as an office worker (DOT 219.362-010). The

vocational expert testified that such work is light and semiskilled SVP4 work, but

was performed at both the sedentary exertional level. A review of the claimant’s

earning record indicates that the claimant worked as an office worker from 1993 to

2014, and from 2016 until 2018 (Exhibit B-3E). This work was thus clearly

performed within the past fifteen years; and was of long enough duration to allow

the claimant to fully learn all duties of the job. A review of the claimant’s earnings

queries reveals that the claimant’s past work as an office worker was performed at

or above the level of substantial gainful activity (Exhibit B-3D). Specifically, the

claimant’s earnings record shows that in 2005 through 2008, and in 2017 and 2018,

the claimant earned at least $30,000 per year at her past work as an office helper.

This income greatly exceeds the regulatory limits to constitute substantial gainful

activity.

9 To the extent that Plaintiff challenges the ALJ’s purported failure to properly evaluate Dr.

Fusman’s opinion, particularly the opined limitation of occasional reaching, that attack boils

down to an attack on the RFC determination, which the Court has already explained is supported

by substantial evidence.

28

Since this job was performed within the past fifteen years; was of long enough

duration to allow the claimant to fully learn all duties of the job; and was performed

at the level of substantial gainful activity, the undersigned finds it qualifies as past

relevant work.

The vocational expert testified that although the Dictionary of Occupational Titles

does not address an overhead reaching limitation, she was relying on her experience

and knowledge as a vocational expert in the field in concluding that the position of

an office worker can be performed with a limitation of occasional overhead

reaching with the left, non-dominant upper extremity. The undersigned finds that

the vocational expert has provided a reasonable explanation for how her testimony

differs from the Dictionary of Occupational Titles.

The undersigned finds, after a review of the evidence and a comparison between

the claimant’s residual functional capacity and the physical and mental demands of

her past relevant work as an office worker, that the claimant is able to perform this

work as actually performed.

R. 33.

Plaintiff complains that the ALJ made only cursory findings regarding Plaintiff’s past

work and that, although the ALJ relied on the vocational expert’s testimony, that testimony is

unclear because the vocational expert testified that Plaintiff performed her past work at both the

sedentary and light levels. Plaintiff’s Brief, ECF No. 17, pp. 30–31. The ALJ’s error in failing to

discuss the requirements for Plaintiff’s past work is not harmless, Plaintiff contends, because the

Grids would direct a finding of disability if Plaintiff—aged 52 at the time of her alleged

disability onset date, with a high school education and no transferable skills—were limited to

sedentary work. Id. at 31–32 (citing Grid Rule 201.14).

The Court is not persuaded that this issue requires remand. The ALJ expressly asked

Plaintiff about the physical requirements for her past relevant work as an office worker. R. 45–

47. Plaintiff denied that she was required to lift or carry anything at her most recent job and

agreed that she was seated most of the day, using a computer or telephone. Id. The

29

work that she performed prior to that job also involved clerical work and lifting 10 to 20 pounds.

R. 45–47. The vocational expert was present during Plaintiff’s testimony and had access to

Plaintiff’s work history reports, see R. 129, but indicated that she needed no additional

vocational information. R. 58–59. In her testimony, the vocational expert classified and

described Plaintiff’s past relevant work as “an office worker, [DICOT] 219.362-010. That is an

SVP [specific vocational preparation] of 4, light per DOT [Dictionary of Occupational Titles],

however, performed both at the sedentary and light level.” Id. The ALJ asked the vocational

expert to assume a hypothetical individual with the RFC ultimately found by the ALJ and asked

whether this hypothetical individual could perform Plaintiff’s past work, and the following

exchange occurred between the vocational expert and the ALJ:

A Yes, they could perform her job as an office worker, performed at the

sedentary level.

Q So as she performed it?

A Yes, that’s correct.

Q Okay. And this hypothetical was for occasional reaching. All other reaching

with the left upper extremity, would that exclude that work?

A It would.

Q Okay. And is your testimony consistent with the DOT?

A It is.

Q Okay. Is reaching specified in the DOT?

A It is not.

Q Okay.

A For that, I based that on my 30 years of education, training and work

experience as a vocational counselor.

30

R. 59–60. This testimony reflects that the ALJ sufficiently developed the testimony of Plaintiff

and the vocational expert to classify and describe Plaintiff’s past relevant work and the abilities

necessary to perform it, which are reflected in the RFC.

Plaintiff, however, insists that the ALJ’s finding that Plaintiff can perform her past

relevant work is unclear because the ALJ “omitted the reference that this job was also performed

at the light level.” Plaintiff’s Brief, ECF No. 17, p. 31. Plaintiff’s argument is not well taken. A

fair reading of the relevant hearing testimony above and the ALJ’s decision reflects that the ALJ

adopted the vocational expert’s testimony that an individual with the same hypothetical

limitations ultimately included in the RFC could perform Plaintiff’s past relevant work as an

office helper as it was actually performed at the sedentary level. R. 33, 59–60. As detailed

above, the ALJ explained that the vocational expert relied on her experience and knowledge in

the field when that expert testified that this past relevant work could be performed with a

limitation to occasional overhead reaching. R. 33.

In short, substantial evidence supports the ALJ’s finding that Plaintiff had the mental and

physical abilities to perform her past relevant work as an office worker as she actually performed

that work at the sedentary level.

C. Subjective Complaints

Plaintiff also challenges the ALJ’s consideration of her subjective complaints, contending

that medical evidence supports these complaints and that the ALJ erred in failing to invoke

contrary medical evidence sufficient to discount Plaintiff’s complaints. Plaintiff’s Brief, ECF No.

17, pp. 32–36; Plaintiff’s Reply Brief, ECF No. 23, pp. 9–10. For the reasons that follow,

Plaintiff’s arguments are not well taken.

31

“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

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

32

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. 28. 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 entirely

consistent with the medical evidence and other evidence in the record for the reasons explained

in this decision.” R. 28. As previously noted, the ALJ detailed years of medical evidence and

record testimony to support her findings, including large gaps in Plaintiff’s treatment records

regarding her cardiac care, foot impairment, and neck and shoulder impairments; the fact that she

required any type of assistive device to ambulate; the lack of evidence of sensory, reflex loss,

and decreased strength in her lower extremities; the finding of full range of motion in her left

shoulder in June 2019 and findings of normal motor strength in her upper extremities with no

focal neurologic deficits and no sensory loss or reflex loss; Plaintiff’s activities of daily living

that included preparing simple meals, doing laundry, driving a car, and grocery shopping; and no

evidence that Plaintiff’s alleged mental impairments caused any limitation in her ability to

perform her activities of daily living. R. 28–32. In the view of this Court, this record provides

substantial support for the ALJ’s decision to discount Plaintiff’s subjective statements as

33

inconsistent with the record evidence. See Miller, 719 F. App’x at 134; Hoyman v. Colvin, 606 F.

App’x 678, 681 (3d Cir. 2015) (“The evidence from [the claimant’s] doctors and the evidence

regarding his daily activities . . . support the ALJ's finding with respect to [the claimant’s]

credibility.”); Izzo, 186 F. App’x at 286; Van Horn, 717 F.2d at 873; Davis v. Saul, No. CV 18-

4288, 2019 WL 2525447, at *5 (E.D. Pa. June 18, 2019) (“Contrary to Plaintiff's assertion, it was

not improper for the ALJ to consider evidence of gaps in treatment when assessing the limiting

effects of Plaintiff’s impairments. The ALJ reasonably considered this evidence because

treatment history is a relevant factor in evaluating the intensity, persistence, and limiting effects

of Plaintiff’s subjective complaints.”); Morel v. Colvin, No. 14-2934, 2016 WL 1270758, at *6

(D.N.J. Apr. 1, 2016) (“The claimant need not be pain-free to be found ‘not disabled.’”).

Plaintiff nevertheless points to evidence that she believes supports her subjective

statements and undermines the ALJ’s decision to discount such statements. Plaintiff’s Brief, ECF

No. 17, pp. 34–35 (citations omitted). Plaintiff specifically complains that the ALJ overstated her

daily activities and did not consider “caveats and qualifications[,]” as follows:

(1) she is unable to take her dog to the park and so her friends do it for her; (2) her

arthritis sometimes interferes with her sleep; (3) she stays in bed and does not get

dressed or bathe if her pain is bad (Tr. 181); (4) she sometimes needs help or

reminders to take medications; (5) previously she cooked all the time but now this

activity was limited; (6) she does not clean or do yard work, only laundry and she

sometimes needs help with the activity (Tr. 182); and (7) she does not handle stress

well and becomes very anxious. (Tr. 186).

Id. The Court is not persuaded that this evidence undermines the ALJ’s finding that Plaintiff was

able to “prepare simple meals, wash laundry, can drive a car, and shops in stores for groceries.”

R. 31. Most of the evidence referred to by Plaintiff is unrelated to these activities and her

testimony that her cooking is now “limited” and that “she sometimes needs help with” doing

laundry is notably vague. In any event, the Court “will uphold the ALJ’s decision even if there is

34

contrary evidence that would justify the opposite conclusion, as long as the ‘substantial

evidence’ standard is satisfied.” Johnson, 497 F. App’x at 201 (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, 131 F. App’x at 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. at 399).

Plaintiff also argues that the ALJ erred in asserting that Plaintiff did not testify that her

alleged mental impairments caused any limitation in her ability to perform activities of daily

living. Plaintiff’s Brief, ECF No. 17, p. 35. Plaintiff specifically alleges that she testified that she

“has difficulties with both anxiety and depression, and prior to the administrative hearing she

started seeing a therapist for these problems. (Tr. 51). She is constantly beset by worries and

there are times during the day when she has problems maintaining attention/concentration or

memory. (Tr. 54).” Id. Plaintiff asserts that this testimony “conveyed that her mental

impairments were interfering with her daily life.” Id.

Plaintiff’s argument is not well taken. While it is true that Plaintiff testified that she had

begun therapy for her anxiety and depression, R. 51, a fair reading of her testimony reflects that

Plaintiff did not testify that her mental impairments caused “problems maintaining

attention/concentration or memory”:

Q Okay. Let’s go on to some -- are there any other reasons besides your back that

you don’t feel you could go back to your jobs?

A Just arthritis basically, I mean it’s like all through my body, and that causes pain

also. And then I worry about my heart too.

Q Do you have -- and what are the symptoms that your heart condition gives you

that would affect your duties that you had at your job?

35

A Well, I’ve already said, like if I’m driving and I get chest pain or something, you

know, I worry about if I’m having another heart attack. I mean I have had three

heart attacks already.

Q Yeah. And could you lift files right now?

A No.

Q Do you have any problems maintaining attention and concentration or problems

with your memory?

A There are times, yes.

R. 54 (emphasis added). The Court is not persuaded that this vague and unspecific testimony

establishes that her mental impairments caused problems with her ability to maintain attention

and concentration or with her memory. See id. As previously explained, the Court must include

in the RFC only “credibly established” limitations. See Pierznik, 2023 WL 4014468, at *1;

Anderson, 2022 WL 1635628, at *4; Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554 (3d

Cir. 2005). This Court concludes that the ALJ did not err in declining to include in Plaintiff’s

RFC limitations arising from undefined “problems” experienced by Plaintiff at “times.”

Finally, to the extent that Plaintiff argues in reply that the ALJ did not invoke sufficient

“contrary medical evidence” to discount Plaintiff’s complaints in accordance with the relevant

standard, Plaintiff’s Reply Brief, ECF No. 23, pp. 9–10, this Court has already explained why

substantial record evidence supports the ALJ’s consideration of Plaintiff’s subjective complaints.

For all these reasons, the Court concludes that the ALJ sufficiently explained her

reasoning in assessing Plaintiff’s subjective complaints, and that 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

36

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

not serve as a basis for remand of this action. Id.

D. Request for Remand Under Sentence Six

Finally, Plaintiff seeks remand of the action pursuant to sentence six of 42 U.S.C. §

405(g) for consideration of alleged new and material evidence. Plaintiff’s Brief, ECF No. 17, pp.

25–27; Plaintiff’s Reply Brief, ECF No. 23, pp. 11–14. For the reasons that follow, Plaintiff’s

request is not well taken.

It is axiomatic “that evidence that was not before the ALJ cannot be used to argue that the

ALJ’s decision was not supported by substantial evidence.” Matthews v. Apfel, 239 F.3d 589,

594 (3d Cir. 2001). “[W]hen the claimant seeks to rely on evidence that was not before the ALJ,

the district court may remand to the Commissioner but only if the evidence is new and material

and if there was good cause why it was not previously presented to the ALJ (Sentence Six

review).”Id. at 593; see also 42 U.S.C. § 405(g) (providing, inter alia, that a court may remand

the case to the Commissioner and “may at any time order additional evidence to be taken before

the Commissioner of Social Security, but only upon a showing that there is new evidence which

is material and that there is good cause for the failure to incorporate such evidence into the

record in a prior proceeding”). Evidence is “new” if it is “not merely cumulative of what is

already in the record.” Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831, 834 (3d Cir.

1984) (citations omitted). “To be material, there ‘must be a reasonable probability that the new

37

evidence would have changed the outcome’ of the Commissioner’s decision.” Miller v. Comm'r

Soc. Sec., 732 F. App’x 162, 165–66 (3d Cir. 2018) (quoting Beety-Monticelli v. Comm’r of Soc.

Sec., 343 F. App’x 743, 747 (3d Cir. 2009) and Szubak, 745 F.2d at 833). Finally, a finding of

“good cause” “requires ‘some justification for the failure to acquire and present such evidence to

the [Commissioner].’” Szubak, 745 F.2d at 833 (quoting Brown v. Schweiker, 557 F. Supp. 190,

192 (M.D. Fla. 1983)).

In the case presently before the Court, Plaintiff cites to therapy notes from Pooja Tandon,

M.D., and neurology records from Vinod Kapoor, M.D., as the basis for her request to remand

pursuant to sentence six of the statute. See Plaintiff’s Brief, ECF No. 17, pp. 25–27, and exhibits

attached thereto; Plaintiff’s Reply Brief, ECF No. 23, pp. 11–14.

1. Dr. Tandon’s therapy notes

Dr. Tandon’s therapy notes reflect treatment sessions on December 4, 2020, and

December 23, 2020, Plaintiff’s Brief, ECF No. 17, p. 36, and Exhibit 1, attached thereto as ECF

No. 17-1 (containing Dr. Tandon’s notes), i.e., sessions that occurred before the ALJ rendered

her decision on December 31, 2020. See id. Plaintiff has not alleged, nor has she otherwise

explained, why she did not provide those notes to the ALJ. See generally Plaintiff’s Brief, ECF

No. 17; Plaintiff’s Reply Brief, ECF No. 23. At a minimum, Plaintiff has not explained why she

did not ask the ALJ to keep the record open for any such evidence. Accordingly, this Court

concludes that Dr. Tandon’s therapy notes are not new. See Sullivan v. Finkelstein, 496 U.S. 617,

626 (1990) (explaining that evidence is “new” if the evidence is “not in existence or available to

the claimant at the time of the administrative proceeding”); Boucher v. Kijakazi, No. CV 20-

1341, 2022 WL 3920933, at *1 (W.D. Pa. Aug. 31, 2022) (finding that records were not “new”

even though they were not part of the record considered by the ALJ because “they clearly existed

38

at the time of the administrative hearing, and Plaintiff has offered no explanation as to why they

were not presented to the ALJ at that time”).

Moreover, the Court is not persuaded that this evidence is material. Plaintiff argues that

the evidence shows that Plaintiff was taking Zoloft, which would have made a difference to the

ALJ who found at step two that there was no evidence that Plaintiff took medication for her

anxiety and depression. Plaintiff’s Brief, ECF No. 17, p. 37 (citing R. 24). Plaintiff also contends

that the new evidence documents symptoms of “depressed mood, excessive worry, insomnia,

irritability, nervous/anxious behavior, palpitations and restlessness,” which is contrary to the

ALJ’s finding that the record failed to document “any significant symptomatology”. Id. (citing R.

24) (citing Exhibit 1, ECF No 17-1, p. 3); see also Plaintiff’s Reply Brief, ECF No. 23, p. 12.

However, the ALJ’s observation that there was no evidence that Plaintiff took any medication for

her anxiety and depression was but one factor that the ALJ noted at step two. R. 24. Plaintiff has

not explained, and it is not apparent to the Court, how taking this medication would alter any of

the ALJ’s specific findings at step when the ALJ concluded that Plaintiff had no, or at most mild,

limitations in the four broad areas of mental functioning. See Plaintiff’s Brief, ECF No. 17, p. 37;

R. 24–25. Although Plaintiff also refers to the mention of symptoms in Dr. Tandon’s notes, that

mention appears to refer only to Plaintiff’s subjective reports to Dr. Tandon. See Exhibit 1, ECF

No 17-1, p. 3 (list of symptoms under the heading “Subjective” and under the sub-headings of

“Anxiety” and “Depression”). However, the mere memorialization of a claimant’s subjective

complaints in a medical record will not serve to transform those complaints into objective

findings or medical opinion. Hatton, 131 F. App’x at 879 (“[A] medical source does not

transform the claimant’s subjective complaints into objective findings simply by recording them

in his narrative report[.]”) (summarizing Craig v. Chater, 76 F.3d 585, 590 n. 2 (4th Cir. 1996));

39

Morris v. Barnhart, 78 F. App’x 820, 824–25 (3d Cir. 2003) (“[T]he mere memorialization of a

claimant’s subjective statements in a medical report does not elevate those statements to a

medical opinion.”) (citations omitted); Famularo v. Comm’r of Soc. Sec., No. CV 20-1655, 2021

WL 613832, at *7 (D.N.J. Feb. 17, 2021) (“[A] a claimant’s own subjective report about her

symptoms[] does not become a medical opinion by virtue of being recorded in treatment notes.”)

(citations omitted). Even if these symptoms were found by Dr. Tandon, it is significant that

Plaintiff also reported to Dr. Tandon that she “is feeling a little better.” Exhibit 1, ECF No 17-1,

p. 3. Moreover, Plaintiff’s assertion that these mental symptoms would impact the ALJ’s finding

that there was no significant symptomatology is not well taken. The ALJ specifically explained

that functional limitations arising from symptomatology would be “memory deficits, mood

fluctuations, hallucinations, or delusions.” R. 24. As previously explained, Plaintiff has not

shown that she had any functional limitations flowing from her depression or anxiety.

Accordingly, the Court cannot conclude that Dr. Tandon’s therapy records are material for

purposes of a sentence six remand.

Finally, and in any event, Plaintiff has not shown “good cause” for failing to present this

evidence to the ALJ. See Miller, 732 F. App’x at 165–66. Plaintiff argues for the first time in

reply that good cause exists because she “was not represented by an attorney but a non-attorney

representative until the ALJ issued her December 31, 2020 decision” and did not secure her

present counsel until February 24, 2021. Plaintiff’s Reply Brief, ECF No. 23, p. 13. Plaintiff

argues that the “change in counsel provides the requisite good cause.” Id. (citing Digiovanni v.

Apfel, No. 97-245-Civ-FTM-21D, 1999 WL 33601325 (M.D. Fla. Feb. 8, 1999)). Plaintiff’s

argument is not well taken. Although a non-attorney apparently represented Plaintiff through

some of the administrative proceedings, an attorney, Edward Rao, appeared on Plaintiff’s behalf

40

at the administrative hearing on November 12, 2020. R. 20, 38–63; see also R. 240 (reflecting a

notice of updated contact number for Attorney Edward Rao dated November 3, 2020). Attorney

Rao asked the ALJ to hold the record open so that he could obtain and submit additional records,

a request that the ALJ granted. R. 42–43, 62. There is no evidence that Attorney Rao asked the

ALJ to continue to hold open the record so that counsel could obtain and submit the evidence

from Dr. Tandon. Based on this record, the Court cannot conclude that Plaintiff has established

good cause for her failure to submit this evidence from Dr. Tandon to the ALJ. See Szubak, 745

F.2d at 834; Matos v. Kijakazi, No. CV 21-02024 (FLW), 2022 WL 1134995, at *8 (D.N.J. Apr.

18, 2022) (“Ultimately, Plaintiff’s good cause argument appears to boil down to either that

current counsel disagrees with prior counsel’s legal strategy to not obtain Dr. Paris’s report, or

that prior counsel was somehow negligent. Neither reason is adequate justification for submitting

new evidence, and, in turn, is not good cause.”).

2. Dr. Kapoor’s neurology records

Plaintiff also submits neurology records from Dr. Kapoor dated February 10 and 21,

2021. Exhibit 2 attached to Plaintiff’s Brief, ECF No. 17-2. The Commissioner does not dispute

that this evidence is new. Defendant’s Brief Pursuant to Local Civil Rule 9.1, ECF No. 20, p. 27.

However, the parties disagree whether this information is material. Plaintiff argues that this

information indicates that: (1) Plaintiff “reported a nine-month history of numbness and pain in

the feet, used a cane to ambulate and felt off-balance. Exhibit 2”; (2) Dr. Kapoor reviewed a July

20, 2020, X-ray of the lumbar spine and an October 30, 2020, MRI of the lumbar spine; (3) Dr.

Kapoor performed an EMG/NCV study on February 10, 2021, and diagnosed sensory peripheral

neuropathy at the left sural nerve (left calf) and polyneuropathy; and (4) “[t]he only treatment

that Dr. Kapoor was able to provide was Gabapentin 300 mg twice a day.” Plaintiff’s Brief, ECF

41

No. 17, p. 38; see also Plaintiff’s Reply Brief, ECF No. 23, pp. 12–13. Plaintiff contends that this

evidence contradicts the ALJ’s finding that there was no evidence that Plaintiff lacked the ability

to perform fine or gross movements with her upper extremities and the ALJ’s finding of no

abnormal examination findings. Plaintiff’s Brief, ECF No. 17, p. 38 (citing R. 30); see also

Plaintiff’s Reply Brief, ECF No. 23, p. 13. According to Plaintiff, “[t]his evidence may well have

made a difference had it been reviewed by the ALJ. At the very least, the evidence in

combination creates a reasonable probability that it would change the administrative result.”

Plaintiff’s Brief, ECF No. 17, p. 38 (citing R. 30); see also Plaintiff’s Reply Brief, ECF No. 23, p.

13.

For his part, the Commissioner argues that this evidence, dated two months after the

ALJ’s decision, is not material because, although EMG testing showed sensory peripheral

neuropathy of the left sural nerve, the report also recommended clinical correlation. Defendant’s

Brief Pursuant to Local Rule 9.1, ECF No. 20, p. 27 (citing Exhibit 2, ECF No. 17-2, pp. 8–10).

The Commissioner also emphasizes that this examination showed that Plaintiff had normal

strength in all muscle groups, normal range of motion in all joints, equal 2/4 deep tendon

reflexes, and no focal deficits. Id. (citing Exhibit 2, ECF No. 17-2, pp. 8–10). The Commissioner

therefore contends that these essentially normal findings would not change the outcome of the

Commissioner’s decision and are therefore not material. Id.

The Court is not persuaded that Dr. Kapoor’s records contain “material” evidence. As

previously noted, evidence is “material” if there is “a reasonable probability that the new

evidence would have changed the outcome of the Commissioner’s decision.” Miller, 732 F.

App’x at 165–66 (internal quotation marks and citations omitted). Even assuming that Dr.

Kapoor’s records relate to the relevant time period, Plaintiff has not persuaded the Court that this

42

evidence would present a reasonable probability of changing the Commissioner’s decision. Dr.

Kapoor’s diagnoses of sensory peripheral neuropathy at the left sural nerve (left calf) and

polyneuropathy are simply that: diagnoses. “A diagnosis alone . . . does not demonstrate

disability.” Foley v. Comm’r of Soc. Sec., 349 F. App’x 805, 808 (3d Cir. 2009) (citing Petition

of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990)); see also Phillips v. Barnhart, 91 F. App’x 775,

780 (3d Cir. 2004) (“[The claimant’s] argument incorrectly focuses on the diagnosis of an

impairment rather than the functional limitations that result from that impairment. A diagnosis of

impairment, by itself, does not establish entitlement to benefits under the Act”). Moreover, as the

Commissioner highlighted, Dr. Kapoor recommended clinical correlation and while his

examinations revealed back pain, poor balance, and numbness, Plaintiff also had, inter alia,

normal strength in all muscle groups, normal range of motion in all joints, equal 2/4 deep tendon

reflexes, and no focal deficits. Exhibit 2, ECF No. 17-2, pp. 3–4 (noting further, inter alia,

grossly normal psychiatric findings), 8–11. Notably, Plaintiff has simply described this evidence,

and has not offered any explanation as to why it “may well have made a difference” in the ALJ’s

decision. Plaintiff’s Brief, ECF No. 17, p. 38; see also Plaintiff’s Reply Brief, ECF No. 23, p. 13.

Accordingly, for all these reasons, Plaintiff’s request for remand pursuant to sentence six

of 42 U.S.C. § 405(g), for consideration of new and material evidence is not well taken.

VI. CONCLUSION

For these reasons, the Court AFFIRMS the Commissioner’s decision.

The Court will issue a separate Order issuing final judgment pursuant to Sentence 4 of 42

U.S.C. § 405(g).

Date: August 12, 2024 s/Norah McCann King

NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

43