DOKA v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JENNIFER D.,1

Case No. 23–cv–12320–ESK

Plaintiff,

v.

OPINION

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

KIEL, U.S.D.J.

THIS MATTER is before the Court on plaintiff Jennifer D,’s appeal (ECF

No. 1) from the final decision of the Commissioner of the Social Security

Administration denying plaintiff’s application for Social Security Disability

Insurance Benefits (ECF No. 3–2 pp. 19–34). For the following reasons, the

Commissioner’s decision will be AFFIRMED.

I. BACKGROUND

Because the record is voluminous, I set forth only those facts that are

necessary for context and are relevant to the issues on appeal.

On December 10, 2017, plaintiff filed her application for benefits, alleging

disability on multiple impairments, including “depression, anxiety, [post-

traumatic stress disorder], fibromyalgia, [irritable bowel syndrome], mood

disorder, Hashimoto’s, and back pain.” (ECF No. 3–3 pp. 17, 18.) The

application was denied initially and on reconsideration. (ECF No. 3–4 pp.5–9,

1 Due to the significant privacy concerns in Social Security cases, any

nongovernmental party will be identified and referenced solely by first name and last

initial in opinions issued in the United States District Court for the District of New

Jersey. See D.N.J. Standing Order 2021-10.

11–13.) On October 18, 2019, an Administrative Law Judge (ALJ) held a

hearing at which plaintiff and a vocational expert testified. (ECF No. 3–2

pp. 41–72.) In a decision dated January 2, 2020, the ALJ concluded that

plaintiff was not disabled within the meaning of the Social Security Act (Act)

from her alleged disability onset date of May 17, 2017 through June 30, 2018,

the date on which plaintiff was last insured. (ECF No. 3–3 pp. 36–59.)

The Appeals Council vacated that January 2020 decision and remanded

the case, directing the ALJ to “[c]onsider the issue of the disability beginning

with the alleged onset date … through the earlier of the hearing date or

[September 30, 2020,] the updated date last insured.” (Id. pp. 66, 67.) On

February 7, 2022, the ALJ held another hearing at which plaintiff and a

different vocational expert testified. (ECF No. 3–3 pp. 72–103.) In a decision

dated July 29, 2022, the ALJ again concluded that plaintiff was not disabled

within the meaning of the Act. (ECF No. 3–2 pp. 19–24.) On July 25, 2023,

the Appeals Council denied plaintiff’s request for review, making the July 2022

decision the Commissioner’s final decision.

II. LEGAL STANDARD

A. Standard Governing Benefits

The 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). The analysis

proceeds as follows:

At step one, the ALJ determines whether the claimant is

performing “substantial gainful activity.” 20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If [the claimant] is,

[the claimant] is not disabled. Id. Otherwise, the ALJ

moves on to step two.

At step two, the ALJ considers whether the claimant has

any “severe medically determinable physical or mental

impairment” that meets certain regulatory requirements.

Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A “severe

impairment” is one that “significantly limits [the

claimant’s] physical or mental ability to do basic work

activities.” Id. §§ 404.1520(c), 416.920(c). If the

claimant lacks such an impairment, [the claimant] is not

disabled. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If

[the claimant] has such an impairment, the ALJ moves on

to step three.

At step three, the ALJ decides “whether the claimant’s

impairments meet or equal the requirements of an

impairment listed in the regulations” [(Listings)]. Smith,

631 F.3d at 634. If the claimant’s impairments do, [the

claimant] is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If [the claimant does] not, the ALJ

moves on to step four.

At step four, the ALJ assesses the claimant’s “residual

functional capacity” (RFC) and whether he can perform his

[or her] “past relevant work.” Id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv). A claimant’s “[RFC] is the most [the

claimant] can still do despite [the claimant’s] limitations.”

Id. §§ 404.1545(a)(1), 416.945(a)(1). If the claimant can

perform … past relevant work despite [the claimant’s]

limitations, [the claimant] is not disabled. Id.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If [the claimant]

cannot, the ALJ moves on to step five.

At step five, the ALJ examines whether the claimant “can

make an adjustment to other work[,]” considering his

“[RFC,] … age, education, and work experience.” Id.

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That examination

typically involves “one or more hypothetical questions

posed by the ALJ to [a] vocational expert.” Podedworny

v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). If the

claimant can make an adjustment to other work, [the

claimant] is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If [the claimant] cannot, he is disabled.

Hess v. Comm’r of Soc. Sec., 931 F.3d 198, 201 (3d Cir. 2019).

B. Standard of Review

When reviewing an ALJ’s final decision as to disability benefits, the Court

exercises plenary review and reviews factual findings for “substantial

evidence.” See 42 U.S.C. §1383(c)(3); Chandler v. Comm’r of Soc. Sec., 667 F.3d

356, 359 (3d Cir. 2011). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Morales

v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000) (quoting Plummer v. Apfel, 186 F.3d

422 (3d Cir. 1999)). It is “more than a mere scintilla but may be somewhat less

than a preponderance of the evidence.” Rutherford v. Barnhart, 399 F.3d 546,

552 (3d Cir. 2005) (quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d

Cir.1971)).

“[E]ven if [the Court] would have decided the factual inquiry differently,”

the ALJ’s decision may not be set aside if it is supported by substantial

evidence. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999); Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (holding that when reviewing an

ALJ’s decision, the Court “weigh the evidence or substitute its conclusions for

those of the fact-finder”). While 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). “Where evidence in the record is susceptible to more than one

rational interpretation, [the Court] must accept the Commissioner’s

conclusions.” Izzo v. Comm’r of Soc. Sec., 186 F. App’x 280, 284 (3d Cir. 2006).

III. THE ALJ DECISION

At step one, the ALJ found that plaintiff had not engaged in any

substantial gainful activity. (ECF No. 3–2 pp. 21, 22.)

At step two, the ALJ determined that plaintiff had the following severe

impairments: obesity, fibromyalgia, major depressive disorder, anxiety

disorder, bipolar disorder, attention deficit hyperactivity disorder,

gastroenteritis, asthma, and chronic obstructive pulmonary disease. (Id.

p. 22.) The ALJ further concluded that plaintiff’s sleep apnea, irritable bowel

syndrome, urinary incontinence, and Hashimoto’s thyroiditis were non-severe

impairments because “[t]here is no indication in the record of the need for

invasive modalities” and that “[t]here is no probative evidence that [these]

impairments more than minimally affect[] the [plaintiff’s] ability to perform

basic work functions.” (Id. pp. 22, 23.) Before proceeding to step three, the

ALJ noted that all of plaintiff’s impairments—severe and non-severe—were

considered in assessing plaintiff’s RFC. (Id. p. 23.)

At step three, the ALJ considered various Listings and determined that

plaintiff “did not have an impairment or combination of impairments that met

or medically equaled the severity” of any of the impairments listed by the

regulations. (Id. pp. 23–26.)

At step four, the ALJ concluded that plaintiff had the RFC to perform

sedentary work, with certain exceptions. (Id. pp. 27–32). “Sedentary work”

involves “lifting no more than [ten] pounds at a time and occasionally lifting or

carrying articles like docket files, ledgers, and small tools.” 20 C.F.R.

§ 416.967(a). “Although a sedentary job is defined as one which involves

sitting, a certain amount of walking and standing is often necessary in carrying

out job duties.” Id. As to the exceptions, the ALJ found that plaintiff: (a) was

limited to lifting and/or carrying ten pounds; (b) could “never climb ladders,

ropes, or scaffolds”; (c) occasionally climb ramps and stairs, balance, bend,

stoop, kneel, crouch, and crawl but can never work at unprotected heights; (d)

could engage in “simple repetitive work at a constant pace “but not at a

production rate pace where each task must be completed within a struct time

deadline.” (Id.) Based on the record, the ALJ determined that while plaintiff

had past relevant work, she can no longer perform such work “as actually or

generally performed.” (Id. pp. 29, 30).

At step five, the ALJ considered plaintiff’s background, RFC, and

vocational expert testimony to determine that “there were jobs that existed in

significant numbers in the national economy” that plaintiff could perform,

including work as a: (a) document preparer (about 35,000 jobs in the national

economy); (b) order clerk (about 40,000 jobs in the national economy); and (c)

scale operator (about 50,000 jobs in the national economy). (Id. pp. 33, 34.)

Accordingly, the ALJ found that plaintiff was not disabled as defined by the Act.

(Id. p. 34.)

IV. DISCUSSION

Plaintiff argues that the ALJ’s determination should be reversed and

remanded because: (1) at step two, the ALJ failed to find certain impairments

as severe; and (2) the ALJ gave improper weight to the opinions of Dr. Anan

Haija and Dr. Leslie Madrak. (ECF No. 10 (Mov. Br.) pp. 19–31.) The

Commissioner opposes, arguing that the ALJ’s decision is supported by

substantial evidence. (ECF No. 14.) In further support of her position,

plaintiff filed a reply brief. (ECF No. 16.)

Since plaintiff is challenging whether her impairments amount to a

qualifying disability under the first four steps of the sequential evaluation

process, she bears the burden of demonstrating that not only did the ALJ err,

but that the error was harmful. Shinseki v. Sanders, 556 U.S. 396, 409–10

(2009) (holding that “the burden of showing that an error is harmful normally

falls upon the party attacking the agency’s determination”); Bowen v. Yuckert,

482 U.S. 137, 146 n.5 (1987). In other words, plaintiff bears the burden of

demonstrating that but for the error, she might have proven her disability.

See Shinseki, 556 U.S. at 409–10. If plaintiff cannot articulate, based on the

existing record, the basis for a decision in her favor, then she is unlikely to show

that an error was harmful. See id.

A. Step Two

Plaintiff argues that the ALJ failed to properly consider the severity of

several of her physical impairments and failed to consider the impairments

designated as non-severe when assessing her RFC. (Mov. Br. pp. 19–25.) In

particular, plaintiff argues that the non-severity “determination specific to [her]

urinary incontinence is flawed” because “a review of the record demonstrates”

that the ALJ’s findings are “factually incorrect.” (Id. p. 20.) Plaintiff notes

that in contrast to the ALJ’s finding, she “has been treating her urinary

incontinence since August 2020” and has “underwent multiple forms of

treatment.” (Id. p. 21.) Plaintiff indicates that she has had to resort to adult

diapers, and given that medications have been unsuccessful, she was interested

in treatment with Botox injections. (Id. pp. 20, 21; ECF No. 3–8 p. 111, 127,

129.) Without pointing to any evidence in the record, plaintiff asserts “[t]he

same applies to [her] Hashimoto’s and irritable bowel syndrome” and that

“despite finding … [p]laintiff’s asthma and chronic obstructive pulmonary

disease to be severe medically determinable impairments, the RFC is silent for

limitations consistent with the same.” (Id. pp. 21, 24.)

The Third Circuit has held that “[t]he step-two inquiry is a de minimis

screening device to dispose of groundless claims.” Newell v. Comm’r of Soc.

Sec., 347 F.3d 541, 546 (3d Cir. 2003). As such,

[a]n impairment or combination of impairments can be

found “not severe” only if the evidence establishes a slight

abnormality or a combination of slight abnormalities

which have “no more than a minimal effect on an

individual’s ability to work.” SSR 85-28, 1985 SSR

LEXIS 19 at *6-8. Only those claimants with slight

abnormalities that do not significantly limit any “basic

work activity” can be denied benefits at step two. See

Bowen, 482 U.S. at 158. If the evidence presented by the

claimant presents more than a “slight abnormality,” the

step-two requirement of "severe" is met, and the

sequential evaluation process should continue. See

Smolen v. Chater, 80 F.3d 1290 (9th Cir. 1996).

Reasonable doubts on severity are to be resolved in favor

of the claimant.

Id.; accord McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004)

(holding “[t]he burden placed on an applicant at step two is not an exacting

one,” but that “[a]ny doubt as to whether this showing has been made is to be

resolved in favor of the applicant”).

Regardless of whether the ALJ erred by designating some of plaintiff’s

impairments as severe, the key question here is whether plaintiff has

sufficiently demonstrated that she was harmed by this error. I find that

plaintiff has failed to do so. See Fed.R.Civ.P. 61 (“At every stage of the

proceeding, the court must disregard all errors and defects that do not affect

any party’s substantial rights.”) The ALJ found that plaintiff suffered from

nine severe impairments and five non-severe impairment. (ECF No. 3–2

pp. 22, 23.) Had the total count of severe impairments been greater, it would

not have made any difference to the outcome. See Weitzel v. Colvin, 967 F.

Supp. 2d 1089, 1097 (M.D. Pa. 2013) (noting that “[a] failure to find a medical

condition severe at step two will not render a decision defective if some other

medical condition was found severe at step two”); Williams v. Comm’r of Soc.

Sec. Admin., No. 12-5637, 2013 WL 4500335, at *17 (D.N.J. Aug. 21, 2013)

(finding that “if the ALJ finds in a plaintiff’s favor at step two, ‘even if [the ALJ]

had erroneously concluded that some of [the plaintiff’s] other impairments were

non-severe, any error [is] harmless’” (quoting Salles v. Comm’r of Soc. Sec., 229

Fed. Appx. 140, 145 n. 2 (3d Cir. 2007))).

As to plaintiff’s urinary incontinence and related gastroenterology-related

issues, plaintiff explained during the February 2022 hearing that she stopped

working in 2017 because she “was having a lot of health issues” and “was put

on disability.” (ECF No. 3–2 p. 84.) Plaintiff alleges that it was at that time

that she was diagnosed with irritable bowel syndrome and could not control

herself from going to the bathroom, so much so that she was relying on adult

diapers. (Id.) At the hearing, plaintiff indicated that between the hours of a

9 a.m. to 5 p.m. work day, she uses the bathroom six to seven times for anywhere

between five to 15 minutes. (Id. pp. 84, 85.) Most of the references in the

record to plaintiff’s urinary frequency do not describe how often and how long

plaintiff must use the restroom, and the few specifics that are contained in the

record, which the ALJ expressly referenced, do not specifically support a finding

of a severe limitation. See (ECF No. 3–2 pp. 21–30.) Cf. Williams v. Comm’r

of Soc. Sec., No. 18–13465, 2019 WL 4574502 at *2, 3 (D.N.J. Sep. 20, 2019)

(reversing and remanding the action because the ALJ “simply said nothing

about[the] evidence” relating to plaintiff’s overactive active bladder).

Similarly, plaintiff’s qualms with the other impairments the ALJ found non-

severe and the ALJ’s analysis of her asthma and chronic obstructive pulmonary

disease (see Mov. Br. pp. 21, 24) are merely cursory and not supported by any

evidence that the ALJ may have failed to consider.

The ALJ's decision is thus supported by substantial evidence and contains

sufficient discussion of the evidence and explanation of reasoning to enable

meaningful review. See Wellington W. v. Kijakazi, No. 22-05042, 2023 WL

5551030, at *6 (D.N.J. Aug. 29, 2023) (“[T]he ALJ did not merely announce her

RFC determination without providing any support or explanation. She

appropriately evaluated the objective medical record.”); Jose S. v. Kijakazi, No.

19-19077, 2023 WL 5125533, at *4 (D.N.J. Aug. 9, 2023) (finding that the ALJ’s

discussion of the objective medical evidence “indicates that his RFC

determination is supported by substantial evidence and that it resulted from

his ‘careful consideration of the entire record’”).

B. Weight of Medical Experts

Plaintiff next challenges the ALJ’s treatments of the medical opinions of

Dr. Haija and Dr. Madrak. (Mov. Br. pp. 25–31.) Plaintiff argues that

“[w]hile the ALJ cites to medical evidence to support her findings, [the ALJ]

ignored other significant portions of the medical evidence.” (Id. p. 28.) In

particular, plaintiff notes that as to Dr. Madrak, her treating psychiatrist, the

ALJ only cited to two medical notes and disregarded the symptoms she

reported. (Id. p. 29.) As to Dr. Haija, plaintiff’s rheumatologist, plaintiff

similarly argues that the ALJ erred when rejecting his opinion as inconsistent

with orthopedic findings. (Id.) Plaintiff argues that because Dr. Haija and

Dr. Madrak were “treating source[s],” they were entitled to “more weight.”

(Id.)

For claims filed on or after March 27, 2017, the “treating source rule” has

been eliminated. 20 C.F.R. § 404.1520c(b)(2). Under this new regulation, an

ALJ need not “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 plaintiff’s own] medical sources.” 20

C.F.R. § 404.1520c(a). Instead of assigning weight to medical opinions, the

ALJ now considered the persuasiveness of a medical opinion or finding. Id.

Consistent with this regulation, the ALJ provided an analysis of the opinions

submitted by Dr. Haija and Dr. Madrak. (ECF No. 3–2 pp. 30–32.)

While “an ALJ must clearly set forth the reason for his [or her] decision”

and “provide a ‘discussion of the evidence,’” there are no “magic” words the ALJ

must use. Diaz v. Comm’r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009) (first

quoting Burnett v. Comm’s of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000) (second

quoting Jones, 364 F.3d at 505). The ALJ discussed Dr. Haija and Dr.

Madrak’s medical opinions in detail and in summarizing their content, the ALJ

explained that neither doctor’s report was well-supported by the referenced

objective evidence. For example, while Dr. Haija stated that plaintiff would be

off task for 25% of the workday, Dr. Haija supported this opinion by noting

plaintiff’s need to lie down or recline and her difficulty focusing. As the ALJ

noted, plaintiff’s physical examination demonstrated that plaintiff had no

tenderness of the extremities, walked with a normal fair, and had full motor

strength, normal coordination and range of motion. (ECF No. 30–2 pp. 30, 31.)

The ALJ similarly noted that Dr. Madrak’s own treatment notes and

examinations failed to support plaintiff’s limitations. (Id. pp. 31, 32.) While

Dr. Madrak opined that plaintiff has a limited concentration span and that her

anxiety impairs her ability to respond to changes in work settings, upon

reviewing Dr. Madrak’s reports, the ALJ determined that these findings were

inconsistent with a finding of extreme mental functional limitation. (Id.)

Beyond reiterating what Dr. Haija’s and Dr. Madrak’s reports stated, plaintiff

fails to establish how she was harmed by any errors.

V. CONCLUSION

For the reasons stated above, the Commissioner’s decision denying

plaintiff’s application for benefits is AFFIRMED.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Dated: November 27, 2024