HOWITSON v. COMMISSIONER OF SOCIAL SECURITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Jeff H.,

Civil Action No. 23-21384 (SDW)

Plaintiff,

OPINION

v.

August 20, 2024

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

WIGENTON, District Judge.

Before this Court is Plaintiff Jeff H.’s (“Plaintiff”)1 appeal of the final administrative

decision of the Commissioner of Social Security (“Commissioner”) with respect to Administrative

Law Judge (“ALJ”) Randolph E. Schum’s (“ALJ Schum” or “the ALJ”) denial of Plaintiff’s claim

for a period of disability and disability insurance benefits (“DIB”) under the Social Security Act

(the “Act”). This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3). Venue is proper under 28 U.S.C. § 1391(b). This appeal is decided without oral

argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the

Commissioner’s decision is AFFIRMED.

1 Plaintiff is identified in this opinion only by his first name and last initial, pursuant to Standing Order 2021-10,

issued on October 1, 2021, available at https://www.njd.uscourts.gov/sites/njd/files/SO21-10.pdf.

I. BACKGROUND

A. Procedural History

On September 17, 2020, Plaintiff applied for DIB, (D.E. 4–5, Administrative Record (“R.”)

at 244–45), alleging disability beginning on January 1, 2008, (“onset date”), due to back and right

leg pain, depression, and post-traumatic stress disorder (“PTSD”). (R. 56.) The Social Security

Administration (“SSA”) initially denied Plaintiff’s application on December 17, 2020, and upon

reconsideration on June 11, 2021. (R. 126–130, 139–145.) ALJ Schum held an administrative

hearing via telephone on January 11, 2022 (R. 32–54), where Plaintiff amended his onset date to

March 27, 2011 (“amended onset date”). (R. 52.) The ALJ found that Plaintiff last met the insured

status requirement of the Social Security Act on December 31, 2012 (“date of last insured”). (R.

22.) On March 30, 2022, the ALJ issued a written decision denying Plaintiff’s application and

found that Plaintiff was not disabled from the amended onset date to the date of last insured. (R.

19–27.) The Appeals Council denied review on April 14, 2023 (R. 5–10), making the ALJ’s

decision the Commissioner’s final determination. See 20 C.F.R. § 416.1455. Plaintiff thereafter

timely filed the instant appeal in this Court, and the parties completed briefing. (D.E. 9; D.E. 14.)

B. Factual History

i. Medical Record

From 1997 to 2007, Plaintiff was employed by CMS Services. (R. 36.) Plaintiff worked

“handling the distribution, inventory, assembly, and repair” of credit card equipment, and as an

executive vice-president of operations. (R. 36–37.) In 2003, Plaintiff was involved in a boating

accident, after which he underwent six surgeries and spent forty-four days in the hospital. (D.E. 9

at 3; R. 38–39, 1848). Plaintiff did not return to work after the accident, and progress notes from

Dr. Paul Koenig, M.D., (“Dr. Koenig”) indicate that Plaintiff was treated for multiple ailments

related to the accident. (R. 41, 1848–64.)

Plaintiff saw Dr. Koenig from August 8, 2002, to June 28, 2011. (R. 1846–63.) At

appointments preceding the relevant period, Plaintiff was treated for chronic leg pain, depression,

and sleep apnea with mixed results. (Id.) Medical records indicate that Plaintiff had anemia,

edema, antalgic gait, hypertension, extreme obesity, osteoarthrosis, and depression. (Id.)

Plaintiff was treated by Dr. Koenig for various illness and prescribed different medications

throughout the relevant period. (R. 1864–66.) On March 29, 2011, Dr. Koenig recorded that

Plaintiff had suffered a knee injury and a pain level of eight out of ten. (R. 1864.) Medical records

indicate that Plaintiff had chronic skin breakdown and effusion. He was referred to orthopedics

and prescribed Diclofenac and Oxycodone. (Id.) Dr. Koenig noted that Plaintiff’s hypertension

was benign, and his dose of Lisinopril was maintained. (Id.) At the next appointment with Dr.

Koenig, on June 28, 2011, Plaintiff’s pain was managed with Oxycodone, and his obesity was

recorded as extreme. (R. 1865–66.) At this time, Plaintiff was prescribed Morphine and the option

for bariatric surgery was discussed. (Id.)

Plaintiff attended La Clinica de la Raza from January 5, 2012, to June 3, 2015. (R. 1106–

1473.) On January 5, 2012, Annette Pizano, PA-C, (“PA Pizano”) prescribed various medications

to treat Plaintiff’s benign prostatic hypertrophy, hypertension, and chronic pain. (R. 1119.) PA

Pizano noted that Plaintiff’s cardiac and pulmonary assessments were normal. (Id.) At a follow

up on April 30, 2012, Plaintiff was still experiencing knee pain, and he was prescribed more

medication and referred to physical therapy. (R. 1129.) On July 9, 2012, Plaintiff was diagnosed

with depression and prescribed Prozac. (R. 1134.) On November 6, 2012, Prozac was no longer

effective, and Celexa was prescribed as an alternative. (R. 1139.) Medical records from that

appointment indicate that Plaintiff had tachycardia and that Plaintiff reported his pain was stable

with medication. (Id.) At the final appointment during the relevant period, on December 5, 2012,

Plaintiff had edema and superficial ulceration, and exercise was recommended. (R. 1140.)

In July, 2019, a Physician’s Assistant, Patrick Fink, wrote that Plaintiff was unable to work

at that time due to his ailments. (D.E. 334.) In November, 2020, Plaintiff was examined by Dr.

R. Weeks, M.D, (“Dr. Weeks”) and Dr. N. Haroun, M.D., (“Dr. Haroun”) and was diagnosed with

dysfunction – major joints, peripheral neuropathy, and depression, bipolar and related disorders.

(R. 61.) Dr. Haroun determined there were no medically determinable mental impairments and

that there were no objective findings related to physical limitations. The doctors stated that there

was insufficient evidence to evaluate Plaintiff’s DIB claim for the relevant period. (R. 63.)

On March 24, 2021, Dr. Ernest A. Bagner III, M.D., conducted a complete psychiatric

evaluation of Plaintiff and diagnosed him with Major Depressive Disorder and PTSD. (R. 847 &

849.) In June 2021, Plaintiff was examined by Dr. K. Sin, M.D., (“Dr. Sin”) and James Brown,

Ph.D., (“Dr. Brown”) to reconsider the initial findings of Drs. Weeks and Haroun. (R. 79–118.)

Plaintiff’s diagnoses were the same, and Dr. Brown noted no medically determinable mental

impairments. (R. 90.) The report includes a residual functional capacity (“RFC”) assessment

which notes that Plaintiff can lift ten pounds occasionally and less than ten pounds frequently; can

stand or walk for significantly less than two hours in a workday; can sit for about six hours in a

workday; can use his lower extremities to push and pull in a limited capacity; can climb ramps and

stairs, balance, stoop, kneel, crouch, and crawl occasionally; can never climb ladders, ropes, or

scaffolds; should avoid concentrated exposure to extreme cold, extreme heat, wetness, and

vibration; and should avoid even moderate exposure to hazardous machinery and heights.

However, there was insufficient evidence to evaluate functional limitations for the relevant period.

Consistent with these findings, the doctors concluded that Plaintiff is disabled, but disability could

only be established beginning on September 17, 2020. (R. 117.)

ii. Administrative Hearing

Plaintiff was represented by counsel at the administrative hearing that was held on January

11, 2022. (R. 32–54.) Plaintiff testified that, during the relevant period, he was overweight,

anemic, and that he had a hiatal hernia, PTSD, and asthma. (R. 37–38.) Plaintiff never returned

to work after the 2003 boating accident, but he continued to receive his salary until 2007. (R. 41.)

Plaintiff testified to the specific limitations caused by his symptoms. He stated that it is

difficult for him to concentrate on tasks, and that he suffers from motivational issues and

nightmares. (R. 43.) He testified that he could lift ten pounds, but that he cannot carry weight

over any distance. (R. 44.) He cannot sit for long periods of time because his legs would swell.

(R. 44–45.) He stated that he received psychiatric care from “various clinician’s offices in

California.” (R. 38.) He continues to have issues related to his right leg, including “chronic,

serious pain” and right drop foot. (R. 39–40.) Plaintiff used a cane and walker at the time of the

hearing. (R. 41.)

A Vocational Expert (“VE”) testified that if Plaintiff can lift fifty pounds occasionally and

twenty-five pounds frequently; can lift twenty pounds occasionally and ten pounds frequently; can

stand for six hours out of eight and sit for at least six; avoid climbing ropes, ladders, or scaffolds;

can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and should avoid

concentrated exposure to fumes, odors, dust and gases, unprotected heights, and moving dangerous

machinery, then the Plaintiff can return to past relevant work. (R. 48.)

The VE also testified that if Plaintiff were limited to two hours of walking and standing in

an eight-hour workday, and lifting twenty pounds occasionally and ten pounds frequently, Plaintiff

would not be able to return to work as an office machine servicer. (R. 49.) The VE also testified

that if the Plaintiff were limited to sedentary work, he could not return to past relevant work, but

he could perform the job of telephone solicitor in his industry. (Id.) However, if Plaintiff suffered

from alleged concentration issues, he would not be able to perform this role. (R. 50.) Plaintiff

testified that he never performed any sales work. In response, the VE testified that telephone

solicitor would not be a viable job. (R. 51.)

II. LEGAL STANDARD

A. Standard of Review

This Court’s review of an ALJ’s factual findings is limited to determining whether there is

substantial evidence to support his conclusions. 42 U.S.C. § 405(g) (“The findings of the

[agency] . . . as to any fact, if supported by substantial evidence, shall be conclusive[.]”); Biestek

v. Berryhill, 139 S. Ct. 1148, 1153 (2019). However, it exercises plenary review of the legal issues

decided by the ALJ, Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011).

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

as adequate to support a conclusion.” Biestek, 139 S. Ct. at 1154 (quotation marks omitted). It is

“a term of art used throughout administrative law” and notwithstanding “the meaning of

‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not high.” Id.

(quotation marks omitted). “It is more than a mere scintilla but may be somewhat less than a

preponderance of the evidence.” Zirnsak v. Colvin, 777 F.3d 607, 610–11 (3d Cir. 2014) (quotation

marks omitted). However, a “single piece of evidence ‘will not satisfy the substantiality test if the

Commissioner ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is

evidence substantial if it is overwhelmed by other evidence . . . or if it really constitutes not

evidence but mere conclusion.’” Nazario v. Comm’r of Soc. Sec., 794 F. App’x 204, 209 (3d Cir.

2019) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).

B. The Five Step Disability Test

To make a disability determination, the ALJ follows a five-step, sequential analysis. 20

C.F.R. § 404.1520(a); Hess v. Comm’r of Soc. Sec., 931 F.3d 198, 201–03 (3d Cir. 2019). The ALJ

determines whether the claimant: first, is currently engaged in substantial gainful activity (“SGA”);

second, has a “severe” and “medically determinable” impairment; and third, has an impairment or

combination of impairments that is equal to, or exceeds, one of those included in the Listing of

Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, 20 C.F.R. §§ 404.1520(a)(4)(i), (ii),

(iii). Before reaching the fourth step, the ALJ considers the claimant’s RFC, i.e., the “most [the

claimant] can still do despite [his or her] limitations” in terms of meeting the “physical, mental,

sensory, and other requirements of work.” Id. §§ 404.1520(a)(iv), 404.1545(a)(1), (e). Then, at

step four, the ALJ ascertains whether the claimant can still do his or her past relevant work, by

comparing his or her RFC to the “physical and mental demands” of that work. Id. §§

404.1520(a)(iv), (f); see id. § 404.1560(b)(1) (defining past relevant work). Finally, at step five,

the ALJ decides whether the claimant “can make an adjustment to other work,” considering his or

her RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v), (g). “The burden of proof

is on the claimant at all steps except step five, where the burden is on the Commissioner.” Hess,

931 F.3d at 201.

III. DISCUSSION

A. The ALJ’s Decision

On March 30, 2022, ALJ Schum issued a decision concluding that Plaintiff was not

disabled from the amended onset date to the date of last insured. (R. 16–27.) At step one, the ALJ

found that Plaintiff had not engaged in SGA since the amended onset date. (R. 22.) At step two,

the ALJ found that Plaintiff had two severe impairments: obesity and a history of right drop foot.

(Id.) He determined that the alleged PTSD was not a medically determinable impairment because

“there was no objective medical evidence that documented that [the PTSD diagnosis] resulted from

psychological abnormalities that were demonstrable by medically acceptable clinical or laboratory

diagnostic techniques” and that “[t]here were no medical signs or laboratory findings to

substantiate the existence of a medically determinable impairment through the date last insured.”

(Id.) He also relied on the administrative findings of Drs. Haroun and Brown, both of which found

no medically determinable mental impairments. (R. 23.) ALJ Schum also determined that

Plaintiff’s diagnoses for a hiatal hernia, hypertension, sleep apnea, anemia, and asthma were not

severe impairments. (Id.) He found that there was an “absence in the record of any diagnostic

testing reflective of significant abnormalities or the need for invasive treatment modalities,” and

that “[t]here was no probative evidence that these impairments more than minimally affected the

claimant’s ability to perform basic work functions [.]” (Id.)

At step three, ALJ Schum determined that Plaintiff’s impairments, individually and in

combination, did not meet or medically equal the severity of any Listing. (Id.) He noted that “the

functional limitations caused by the medically determinable impairment of obesity, alone or in

combination with another impairment(s), may medically equal a listing[.]” (R. 24.) Accordingly,

the ALJ “fully considered obesity in the context of the overall record.” (Id.)

ALJ Schum then moved to the RFC determination necessary before step four. He

determined that the medically determinable impairments could reasonably be expected to cause

some of the alleged symptoms, but that the alleged intensity of the symptoms was inconsistent

with medical evidence. (R. 25.) The decision notes a lack of evidence indicating that Plaintiff’s

limitations were work preclusive, that Plaintiff was encouraged to exercise, and that he was not

prescribed a handheld device, nor was there evidence that he needed one. (Id.) The ALJ found

the administrative findings of Drs. Weeks and Sin persuasive, but he was not persuaded by the

findings of Patrick Fink, who concluded that Plaintiff was not able to work. (R. 25.) After

reviewing the record, ALJ Schum found some limitations caused by the symptoms, but that the

limitations were less than Plaintiff alleged at the hearing. (R. 25– 26.) He concluded that Plaintiff:

[H]ad the residual functional capacity to perform medium work . . . except

[Plaintiff] should never climb ropes, ladders or scaffolds; could occasionally climb

ramps and stairs, balance, stoop, kneel, crouch, and crawl; and should avoid

concentrated exposure to fumes, odors, dust and gases, unprotected heights, and

moving and dangerous machinery.

(R. 24.)

At step four, he determined that Plaintiff’s past relevant work was as an office machine

servicer and sales representative for office machines. (R. 27.) Based on testimony from Plaintiff

and the VE, and relying on his RFC determination, ALJ Schum determined that Plaintiff could

perform his past relevant work as customarily performed in the national economy. (Id.) Therefore,

he determined that Plaintiff was not disabled at this step. (Id.)

B. Analysis

On appeal, Plaintiff argues principally that the ALJ’s RFC determination is not based on

substantial evidence because the ALJ failed to develop the record. (R. 9.) Specifically, he argues

that the record did not contain a medical opinion as to the existence or severity of physical

limitations during the relevant period. (R. 12.) Plaintiff argues that because the ALJ was able to

establish impairments, he was required to obtain a medical opinion to determine the severity, rather

than interpreting medical evidence himself. (R. 11.) He avers that the ALJ did not adequately

explain his determination that Plaintiff could perform medium work. (R. 14.) Plaintiff then argues

that the ALJ failed to pose a hypothetical that reflected the correct RFC to the VE, and this failure

affected the VE’s testimony so much that it cannot be considered substantial at step four. (R. 15.)

i. The RFC Determination

ALJ Schum has the exclusive responsibility of making an RFC determination. 20 C.F.R.

§§ 404.1545(a) & 404.1546(c); see Chandler, 667 F. 3d at 359 (“The ALJ–not treating or

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

determinations.”). This is true even when there is no medical opinion which corroborates the ALJ’s

finding. See Pintal v. Comm’r of Soc. Sec., 602 F. App’x 84, 87 (3d Cir. 2015) (“To the extent he

suggests that the ALJ was obligated to obtain medical evidence that decides the ultimate question,

[Plaintiff] is wrong.”).

While the ALJ has the sole responsibility for the determination, he must consider “all

relevant evidence.” 20 C.F.R § 404.1545. The ALJ also has a duty to develop the record to satisfy

the standard of substantial evidence and to resolve inconsistencies in the record. See Rutherford

v. Barnhart, 399 F. 3d 546, 557 (3d Cir. 2005) (describing the “well-established . . . obligation of

an ALJ to develop the record during an administrative hearing.”); Plummer v. Apfel, 186 F. 3d 422,

434 (3d Cir. 1999) (stating that the ALJ has a duty to “[develop] the record when there is a

suggestion of . . . impairment by inquiring into the present status of impairment and its possible

effects on the [Plaintiff’s] ability to work.”). While an ALJ “is not permitted to interpret raw

medical data when evaluating a claimant’s functional capacity,” there is no requirement that the

ultimate decision is supported by a medical opinion. Bylsma v. Kijakazi, No. 3:20-CV-1377, 2021

WL 4978444, at *8 (M.D. Pa. Sept. 16, 2021); see Pintal, 602 F. App’x at 87. The need to rely on

medical records from the relevant period does not trigger an obligation to develop the record

further with a medical opinion. Craig M. v. Comm’r of Soc. Sec. Admin., Civ. No. 23-3407, 2024

WL 2750880 (D.N.J. May 29, 2024) (stating that the ALJ did not err by interpreting medical data

where the ALJ identified clinical notes, medications, and diagnoses in the medical record which

speak to the RFC).

Here, ALJ Schum found that Plaintiff had two severe impairments on which to base his

RFC determination: obesity and right drop foot. The ALJ was free to reject the medical opinions

and find functional limitations during the relevant period, as these limitations clearly existed from

other evidence. See Doty v. Colvin, No. 13-80-J, 2014 WL 29036, at *1, n.1 (W.D. Pa. Jan. 2,

2014); see 20 C.F.R. 404.1520b(c). The ALJ relied on Plaintiff’s testimony about his condition

during the relevant period, the medical diagnoses, and medical notes and records. He noted that

there was no prescription for a handheld assistive device or evidence that Plaintiff needed one;

Plaintiff had normal physical findings with the exception of edema, ulceration, and tachycardia;

and Plaintiff was treated conservatively, had a good response to medication, and was advised to

lose weight. The ALJ conducted a diligent survey of the evidence and the events from the period

which speak to the existence of Plaintiff’s physical limitations. He pointed to substantial evidence

that functional limitations did exist including the medical record and Plaintiff’s testimony about

how his leg pain and obesity limited his function. Therefore, the ALJ adequately developed the

record at the hearing and then outlined “all relevant evidence” he considered in his written

decision. 20 C.F.R § 404.1545.

ii. Explanation of Determination

As to Plaintiff’s argument that the ALJ did not provide an adequate explanation as to how

the evidence supported his conclusion that Plaintiff could perform medium work, to allow for

meaningful judicial review, an ALJ must adequately consider and assess the persuasiveness of

relevant medical evidence, and explain the reasons for his decision, on the record. 42

U.S.C. § 405(b)(1); 20 C.F.R. § 416.920c; Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).

“Where there is conflicting probative evidence,” there is “a particularly acute need for an

explanation of the reasoning behind the ALJ’s conclusions,” and failure to provide that explanation

warrants remand. Fargnoli, 247 F.3d at 42.

ALJ Schum explained that he used a two-step process to determine: (i) whether Plaintiff’s

medically determined impairments could be reasonably expected to produce his alleged symptoms;

and (ii) whether the intensity and limiting effect of the symptoms made them work preclusive.

After finding that obesity and right drop foot could reasonably produce the symptoms alleged, the

ALJ turned to the second step. At this step, the ALJ clearly described the discrepancies in the

record as to work preclusion. He then outlined substantial evidence from which he could conclude

that the severity of the symptoms is consistent with his given RFC. The ALJ is not required to

explain the relationship between the evidence and the determination in any particular way. See

Millard v. Saul, No. 3:19-cv-00850, 2020 WL 1849719, at *5 (M.D. Pa. Apr. 13, 2020); Jones v.

Barnhart, 364 F. 3d 501, 505 (3d Cir. 2004) (stating that an ALJ need not “use particular language

or adhere to a particular format in conducting his analysis”). Because the decision identifies the

discrepancies in the evidence and which evidence led to the determination, this Court is satisfied

that the ALJ’s explanation is adequate for meaningful judicial review.

iii. VE’s Testimony

Finally, as to Plaintiff’s argument that the ALJ failed to pose a sufficient hypothetical to

the VE because the RFC determination was deficient, ALJs must pose a hypothetical that includes

all credibly established limitations experienced by a claimant. See Burns v. Barnhart, 312 F. 3d

113, 123 (3d Cir. 2002) (“Where there exists in the record medically undisputed evidence of

specific impairments not included in a hypothetical question to a vocational expert, the expert’s

opinion is not considered substantial evidence.”). However, an ALJ is not required “to submit to

the vocational expert every impairment alleged by a claimant.” Rutherford, 399 F. 3d at 554.

Instead, the ALJ must pose “all of a claimant's credibly established limitations.” Id. (emphasis in

original).

The ALJ posed two hypotheticals to the VE, which established that a person with Plaintiff’s

RFC would be able to perform his past relevant work. Importantly, the limitations included in the

hypothetical were not undisputed. Because the RFC determination is supported by substantial

evidence in the record and reflected in the hypothetical, this Court finds the VE’s testimony to be

substantial at step four.

IV. CONCLUSION

For the reasons set forth above, the Commissioner’s decision is AFFIRMED. An

appropriate order follows.

s/ Susan D. Wigenton__________________

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc: Parties