SMITH, JR v. COMMISSIONER OF SOCIAL SECURITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

KENNETH S., JR.,

Plaintiff, Case No. 2:23-cv-22119 (BRM)

v. OPINION

MARTIN O’MALLEY,

Commissioner of the Social Security

Administration,

Defendant.

MARTINOTTI, DISTRICT JUDGE

Before the Court is Plaintiff Kenneth Smith, Jr.’s (“Plaintiff”) appeal of the final decision

of the Commissioner of the Social Security Administration (“Commissioner”1) denying his

application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act

(the “Act”), 42 U.S.C. §§ 138183, and for Disability Insurance Benefits (“DIB”) under Title II

of the Act, 42 U.S.C. §§ 402–34. (ECF Nos. 1, 9.) The Commissioner filed an Opposition. (ECF

No. 15.) As of the date of this Opinion, Plaintiff has not filed a Reply, which was due on August

5, 2024, pursuant to the Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g).

This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). Having

reviewed the submissions filed in connection with this appeal and having declined to hold oral

1 Leland Dudek became Acting Commissioner of the Social Security Administration (“SSA”) on

February 19, 2025. Therefore, pursuant to Federal Rule of Civil Procedure 25(d), Mr. Dudek is

substituted as Defendant (previously, Martin O’Malley) in this suit. See also 42 U.S.C. § 405(g)

(“Any action instituted in accordance with this subsection shall survive notwithstanding any

change in the person occupying the office of Commissioner of Social Security or any vacancy in

such office.”).

argument in accordance with Local Civil Rule 78.1(b), for the reasons set forth below and for good

cause shown, the Plaintiff’s appeal is DENIED (ECF No. 1) and the Commissioner’s decision is

AFFIRMED.

I. BACKGROUND

A. Procedural History

This case arises out of Plaintiff’s challenge to the Commissioner’s denial of his application

for SSI and DIB. (See ECF No. 1.) On October 19, 2020, Plaintiff applied for SSI and DIB, alleging

disability beginning January 1, 2017, initially based on a back condition, neuropathy, and traumatic

brain injury.2 (See ECF No. 3 (Transcript of Proceedings3 (“Tr.”)) at 294, 298, 317.) The SSA

denied Plaintiff’s claims on May 25, 2021 (Tr. 234–38), and again upon reconsideration on

October 22, 2021. (Id. 242–49.)

Plaintiff then filed, through counsel, a written request for a hearing (id. at 251–52), and on

March 22, 2022, Administrative Law Judge Sharon Allard (“ALJ Allard”) held a hearing regarding

Plaintiff’s claim (id. at 36–73). In a decision dated September 26, 2022, ALJ Allard found Plaintiff

not disabled within the meaning of the Act. (Id. at 15–28.) ALJ Allard considered the entire record

in making her decision. (Id. at 18.) The Appeals Council denied Plaintiff’s request for review on

September 12, 2023, and ALJ Allard’s decision became the final decision of the Commissioner.

(Id. at 1–7.) Having exhausted his administrative remedies, Plaintiff filed his appeal with this

Court, seeking review of ALJ Allard’s decision.

2 In his initial application, Plaintiff alleged disability beginning July 7, 2013, but at the March 22,

2022 hearing he amended the alleged onset date of disability to January 1, 2017. (Tr. at 15.)

3 The administrative record is set forth in this transcript. (See generally ECF No. 5.)

B. Factual Background

As an initial matter, ALJ Allard determined Plaintiff met the SSA’s insured status

requirements through December 31, 2018. (Tr. at 18.) At the time of ALJ Allard’s decision,

Plaintiff was a forty-four-year-old male, who completed his high school education through tenth

grade. (Id. at 27, 318.) At step one, ALJ Allard found Plaintiff had not engaged in substantial

gainful activity since January 1, 2017, which was the amended alleged onset date of Plaintiff’s

claimed disabilities. (Id. at 18.) Plaintiff had most recently been employed full-time as a custodian

in 2011 and previously as an unskilled laborer, claiming he continued working until 2013 when

the pain became too unbearable. (Id. at 22, 27, 124.) At step two, ALJ Allard found Plaintiff had

the following “severe medical impairments”: “depressive disorder, anxiety disorder, post-

traumatic stress disorder, personality disorder, sleep apnea, obesity, osteoarthritis, and

hypertension.” (Id. at 18.) At step three, ALJ Allard did not find Plaintiff had “an impairment or

combination of impairments that meets or medically equals the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,

404.1526, 416.920(d), 416.925 and 416.926).” (Id. at 19.) At step four, ALJ Allard found Plaintiff

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

perform light work as defined in 20 CFR 404.1567(b) and

416.967(b) except he is limited to standing or walking four hours in

an eight hour workday. He can occasionally climb ramps and stairs,

occasionally balance on wet moving or uneven surfaces,

occasionally kneel, stoop, and crouch, and never crawl or climb

ladders, ropes or scaffolds. He can have occasional exposure to

temperature extremes of heat and cold, wetness, humidity, fumes,

odors, dusts, gases and poor ventilation. He can understand and

execute simple and routine tasks. He can have occasional contact

with coworkers, supervisors, and the public, but not with tasks that

involve direct customer service. He can make simple decisions and

adapt to occasional changes in essential work tasks.

(Id. at 22.) Finally, at step five, ALJ Allard found, based on “Plaintiff’s age, education, work

experience, and residual functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform.” (Id. at 27.) Specifically, ALJ Allard found

Plaintiff could perform “unskilled, light” work in “sedentary occupations” such as “table worker

(DOT # 739.687-182[)] . . . document preparer (DOT # 249.587-018[)] . . . and ticket counter

(DOT # 219.587-010 . . .),” among other jobs based in part on the testimony of the vocational

expert. (Id. at 27–28.)

II. STANDARD OF REVIEW

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

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

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

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

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

reviewing court if supported by “substantial evidence” in the record. 42 U.S.C. § 405(g); see Knepp

v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). A district court must affirm an administrative law judge’s

(“ALJ”) decision if it is supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted);

Newhouse v. Heckler, 753 F.2d 283, 285 (3d Cir. 1985) (citations omitted). Substantial evidence

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

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

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

(2019). To determine whether an ALJ’s decision is supported by substantial evidence, a court must

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

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

Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011). Accordingly, a court may not set an ALJ’s

“decision aside if it is supported by substantial evidence, even if [it] would have decided the factual

inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

III. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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

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

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

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

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

gainful activity,

only if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the

national economy, regardless of whether such work exists in the

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

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

42 U.S.C. § 1382c(a)(3)(B).

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

whether a claimant is disabled for purposes of SSI and DIB. 20 C.F.R. § 404.1520.4 First, the ALJ

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

gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), (b); see Bowen v. Yuckert, 482 U.S. 137, 140

4 Regulations for DIB and SSI are virtually identical. For the purposes of this appeal, further

citations will only be made to the DIB regulations regarding disability evaluation, 20 C.F.R.

§ 404.1501, et seq. The parallel SSI benefits regulations are found under 20 C.F.R. § 416.901, et

seq.

(1987). If a claimant is presently engaged in any form of substantial gainful activity, he or she is

automatically denied disability benefits. Id. Second, the ALJ determines whether the claimant has

demonstrated a “severe impairment” or “combination of impairments” that significantly limits his

or her physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), (c);

see Bowen, 482 U.S. at 140–41. Basic work activities are defined as “the abilities and aptitudes

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

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

pushing, pulling, reaching, carrying, or handling;

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

(3) Understanding, carrying out, and remembering simple

instructions;

(4) Use of judgment;

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

work situations; and

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

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

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

Third, if a claimant’s impairment(s) is found to be severe, the ALJ then determines whether

the impairment(s) meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1 (the “Impairment List”). 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates

his or her impairment(s) is equal in severity to, or meets, one of the impairments on the Impairment

List, the claimant has satisfied his or her burden of proof and is automatically entitled to benefits.

See 20 C.F.R. § 404.1520(d); see also Bowen, 482 U.S. at 141. If the specific impairment is not

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

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

404.1526. If there is more than one impairment, then the ALJ must consider whether the

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

of impairments is basically equivalent to a listed impairment if there are medical findings equal in

severity to all the criteria for the one most similar. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d

Cir. 1992).

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

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

the RFC to perform his or her past relevant work. 20 C.F.R. §§ 404.1520(e), (f); Bowen, 482 U.S.

at 141. Step four involves three sub-steps:

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

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

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

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

claimant has the level of capability needed to perform the past

relevant work.

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

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

articulated at 20 C.F.R. § 404.1527 (for claims filed before March 27, 2017) or 20 C.F.R.

§ 404.1520c (for claims filed after March 27, 2017).

Claimants are not disabled if their RFC allows them to perform their past relevant work.

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

doing so, or if the claimant has no past relevant work, an ALJ proceeds to the fifth and final step

of the process. 20 C.F.R. § 404.1520(a)(4)(g). The final step requires the ALJ to “show there are

other jobs existing in significant numbers in the national economy which the claimant can perform,

consistent with her medical impairments, age, education, past work experience, and [RFC].”

Plummer, 186 F.3d at 428; 20 C.F.R. § 404.1520(a)(4)(v). In doing so, “[t]he ALJ must analyze

the cumulative effect of all the claimant’s impairments in determining whether she is capable of

performing work and is not disabled.” Plummer, 186 F.3d at 428; 20 C.F.R. § 404.1523. Notably,

an ALJ typically seeks the assistance of a vocational expert at this final step. Plummer, 186 F.3d

at 428.

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

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

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

U.S. at 146 n.5. An ALJ bears the burden of proof for step five. Sykes, 228 F.3d at 263.

On appeal, the harmless error doctrine5 requires a plaintiff to show, as to the first four steps:

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

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

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

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

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

982 F. Supp. 2d 358, 38081 (D.N.J. 2013) (finding ALJ’s error harmless); Powers v. Comm’r of

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

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

error occurred amounting to harm).

5 Harmless error review, which requires the appellant to demonstrate harm, applies to

administrative appeals. Holloman, 639 F. App’x at 814. The Supreme Court explained its operation

in a similar procedural context in Shinseki v. Sanders, 556 U.S. 396, 407–11 (2009), which

concerned the review of a governmental agency determination. The Supreme Court stated: “the

burden of showing that an error is harmful normally falls upon the party attacking the agency’s

determination.” Id. at 409. In such a case, “the claimant has the ‘burden’ of showing that an error

was harmful[.]” Id. at 410.

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

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

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

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

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

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

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

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

by those determinations. See id. (citing Schaudeck, 181 F.3d at 431); 42 U.S.C. § 405(g).

IV. DECISION

Plaintiff appeals ALJ Allard and the Commissioner’s decision and requests the Court either

reverse the decision because substantial evidence exists in the administrative record to support a

finding of disability, or, in the alternative, vacate the decision and remand for reconsideration in

light of numerous alleged deficiencies in the hearing decision. (ECF No. 1 at 3.) Plaintiff argues

the decision failed to “adequately, reasonably or neutrally assess [P]laintiff’s 4 acknowledged

mental illnesses at the step 3 medical equivalence stage or in the announcement of the mental

RFC.” (Id. at 5.) Plaintiff claims he is “presumptively disabled under the mental listings at step 3

by meeting the paragraph B and C criteria.” (Id.) Given his challenge of the mental RFC, Plaintiff

is also disputing ALJ Allard’s conclusions in step four. Plaintiff is seeking the payment of benefits,

but if that is not granted, he requests remand because “meaningful judicial review [was] frustrated

at both the step 3 and RFC levels” and “a [more] comprehensible set of findings linking the actual

psychological evidence to those findings” should be provided. (Id.)

In response, the Commissioner argues ALJ Allard’s decision is adequately explained and

supported by substantial evidence because she included Plaintiff’s reports and documented

medical records, such as consultative notes, as part of the evidentiary basis of her analysis. (ECF

No. 15 at 9.) The Commissioner states, “Plaintiff’s disagreement with level of severity the ALJ

assigned each of h[is] mental impairments is not a basis for reversal or remand in this case” and

cites to the holding in Monsour Medical Center v. Heckler that a court cannot re-weigh the

evidence but must affirm if the Commissioner’s decision is supported by substantial evidence. (Id.

at 11(citing 806 F.2d 1185, 1190–91 (3d Cir. 1986)).) With regards to step four, the Commissioner

claims ALJ Allard “properly reviewed the evidence of record in formulating Plaintiff’s RFC” and

“supported her RFC findings with citations to the record evidence.” (ECF No. 15 at 13, 15.) The

Commissioner argues that although Plaintiff has attempted to claim an opposite determination is

possible due to potentially conflicting information or cherry-picked statements, ALJ Allard

“provided valid reasons pursuant to controlling agency regulations and supported by substantial

evidence to explain why [opposite] opinions were unpersuasive.” (Id. at 15.) The Commissioner

cites to Malloy v. Commissioner of Social Security as further supporting this position. (Id at

20(citing 306 F. App’x 761, 764 (3d Cir. 2009) (“The presence of evidence in the record that

supports a contrary conclusion does not undermine the [ALJ’s] decision so long as the record

provides substantial support for that decision.”)).)

The Court first addresses Plaintiff’s challenge to ALJ Allard’s determination under step

three and then under step four with regards to the RFC.

A. Plaintiff’s Challenge to ALJ Allard’s Step Three Determination

Plaintiff’s overarching argument is that ALJ Allard erred in the step three determination

because she failed to consider four separate psychiatric impairments according to the rubric and

criteria established in the listings themselves. (ECF No. 9 at 5.) Plaintiff argues the decision’s

rationale is deficient because it “makes no definitive reference to any medical/psychiatric

evidence, relies entirely on [P]laintiff’s self-description of his regular activities in a required form

filed in conjunction with his disability application, cherry-picks only certain statements from that

form” and fails to “articulate how the stated factors comply with the criteria set forth for the ALJ’s

consideration or bridges [P]laintiff’s statements to the ‘moderate’ conclusion.” (Id. at 1213.)

The Commissioner argues ALJ Allard’s step three determination was backed up by

substantial evidence and properly “concluded that Plaintiff’s impairments did not meet or

medically equal the criteria of any of the Listings.” (ECF No. 15 at 11.) The Commissioner states

the “Plaintiff did not meet his burden at step three of the sequential evaluation process” and that

the “disagreement with level of severity the ALK assigned each of [his] mental impairments is not

a basis for reversal or remand in this case.” (Id. at 13, 16.)

During step three, the ALJ compares the medical evidence of a claimant’s impairments

with those listed in the Impairment List, which are presumed severe enough to preclude any gainful

work. See Holley v. Colvin, 975 F. Supp. 2d 467, 476 (D.N.J. 2013), aff’d sub nom., 590 F. App’x

167 (3d Cir. 2014). The listings articulated in the Impairment List are “descriptions of various

physical and mental illnesses and abnormalities, most of which are categorized by the body system

they affect.” Sullivan v. Zebley, 493 U.S. 521, 529–30 (1990). All impairments are “defined in

terms of several specific medical signs, symptoms, or laboratory test results.” Id. at 530. “If a

claimant’s impairment meets or equals one of the listed impairments, he will be found disabled

under the [Act]. If the claimant does not suffer from a listed impairment or its equivalent, the

analysis proceeds to step four.” Holley, 975 F. Supp. 2d at 476. To be found disabled, claimants

“must present medical findings equal in severity to all the criteria for the one most similar listed

impairment.” Sullivan, 493 U.S. at 531.

Listings may be satisfied by a claimant meeting the criteria in both paragraphs A and B, or

both paragraphs A and C. 20 C.F.R. pt. 404, Subpart P, App’x 1, § 12.00(A)(2). Here, the relevant

listings are Listings 12.02 (neurocognitive disorders), 12.04 (depressive, bipolar, and related

disorders), 12.06 (anxiety and obsessive-compulsive disorders), 12.08 (personality and impulse-

control disorders), and 12.15 (trauma- and stressor-related disorders). (See Tr. at 20.) Listing 12.08

has requirements listed in paragraphs A and B, and Listings 12.02, 12.04, 12.06, and 12.15 have

requirements listed in paragraphs A, B, and C. 20 C.F.R. pt. 404, Subpart P, App’x 1,

§ 12.00(A)(2). The paragraph B criteria for Listings 12.02, 12.04, 12.06, and 12.15 are the same

and require claimants to show their mental disorder “result[s] in ‘extreme’ limitation of one, or

‘marked’ limitation of two, of the four areas of mental functioning.” Id. § 12.00(A)(2)(b). The four

“areas of mental functioning a person uses in a work setting” are: (1) understand, remember, or

apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt

or manage oneself. Id. Additionally, the paragraph C criteria for Listings 12.02, 12.04, 12.06, and

12.15 are the same and require claimants to demonstrate their mental disorder is “‘serious and

persistent’; that is, there must be a medically documented history of the existence of the disorder

over a period of at least 2 years, and evidence that satisfies the criteria in both C1 and C2.” Id. §

12.00(A)(2)(c). The criteria in C1 and C2 are as follows:

b. The criterion in C1 is satisfied when the evidence shows that you

rely, on an ongoing basis, upon medical treatment, mental health

therapy, psychosocial support(s), or a highly structured setting(s), to

diminish the symptoms and signs of your mental disorder (see

12.00D). We consider that you receive ongoing medical treatment

when the medical evidence establishes that you obtain medical

treatment with a frequency consistent with accepted medical

practice for the type of treatment or evaluation required for your

medical condition. . . .

c. The criterion in C2 is satisfied when the evidence shows that,

despite your diminished symptoms and signs, you have achieved

only marginal adjustment. “Marginal adjustment” means that your

adaptation to the requirements of daily life is fragile; that is, you

have minimal capacity to adapt to changes in your environment or

to demands that are not already part of your daily life. We will

consider that you have achieved only marginal adjustment when the

evidence shows that changes or increased demands have led to

exacerbation of your symptoms and signs and to deterioration in

your functioning; for example, you have become unable to function

outside of your home or a more restrictive setting, without

substantial psychosocial supports[.] . . .

Id. § 12.00(G)(2). “For a claimant to show his [or her] impairment matches a listing, it must meet

all of the specified medical criteria. An impairment that manifests only some of those criteria, no

matter how severely, does not qualify.” Jones, 364 at 504 (quoting Sullivan, 493 U.S. at 530).

ALJs are not required “to use particular language or adhere to a particular format in

conducting [their] analysis.” Id. at 505. Rather, they must “ensure that there is sufficient

development of the record and explanation of findings to permit meaningful review.” Id. ALJs’

decisions are read as a whole to determine whether they “considered the appropriate factors in

reaching the conclusion that [the claimant] did not meet the requirements for any listing.” Id. ALJs

satisfy this standard by “clearly evaluating the available medical evidence in the record and then

setting forth that evaluation in an opinion, even where [they] did not identify or analyze the most

relevant Listing.” Scatorchia v. Comm’r of Soc. Sec., 137 F. App’x 468, 470–71 (3d Cir. 2005).

To conclude an applicant is not disabled under the step three analysis, the ALJ must “set

forth the reasons for [her] decision.” Burnett, 220 F.3d at 119. Conclusory statements have been

found to be “beyond meaningful judicial review.” Id. In Burnett, the Third Circuit vacated the

ALJ’s decision and remanded the matter because the ALJ made “only a conclusory statement

without mentioning any specific listed impairments or explaining his reasoning” which the court

found was “beyond meaningful judicial review.” Id. at 119–20. Although “conclusory statements”

that an impairment does not meet a certain listing are insufficient, courts have held an ALJ’s

reasoning to be sufficient when the ALJ’s analysis considers the specific medical requirements of

the listing(s) and the relevant medical evidence in evaluating whether the claimant has met the

requirements for that listing(s). See Parrotta v. Kijakazi, Civ. A. No. 21-13602, 2022 WL 2289554,

at *9–11 (D.N.J. June 24, 2022). An ALJ’s decision at step three need not address every single

piece of medical evidence in the record. See Jose L. v. Comm’r of Soc. Sec., Civ. A. No. 20-09749,

2022 WL 603001, at *5 (D.N.J. Mar. 1, 2022). ALJs are entitled to focus on the evidence they

deem most probative; “[t]here is no requirement that the ALJ discuss in its opinion every tidbit of

evidence included in the record.” Frederick F. v. Comm’r of Soc. Sec., Civ. A. No. 20-11500, 2022

WL 445538, at *2 (D.N.J. Feb. 14, 2022) (alteration in original) (quoting Hur v. Barnhart, 94 F.

App’x 130, 133 (3d Cir. 2004)).

Here, the Court finds substantial evidence supports ALJ Allard’s step three determination

because she made specific findings and cited to specific evidence in finding the severity of

Plaintiff’s mental impairments, both individually and in combination, did not satisfy the paragraph

B criteria for Listing 12.08 or the paragraphs B and C criteria for Listings 12.02, 12.04, 12.06, and

12.15. ALJ Allard first considered whether Plaintiff met the “paragraph B” criteria for the relevant

listings and explained:

The severity of the claimant’s mental impairments, considered

singly and in combination, do not meet or medically equal the

criteria of listings 12.02, 12.04, 12.06, 12.08, and 12.15. In making

this finding, the undersigned has considered whether the “paragraph

B” criteria are satisfied. To satisfy the “paragraph B” criteria, the

mental impairments must result in one extreme limitation or two

marked limitations in a broad area of functioning. An extreme

limitation is the inability to function independently, appropriately,

or effectively, and on a sustained basis. A marked limitation is a

seriously limited ability to function independently, appropriately, or

effectively, and on a sustained basis.

In understanding, remembering, or applying information, the

claimant has a moderate limitation. [Plaintiff] reported difficulty

with memory, as well as understanding and following instructions

(Ex. 4E at 6). [Plaintiff] did not report associated problems with

cooking, household chores, following TV shows, or managing his

money (Ex. 4E). Consultative examiner reports note deficits in

memory, while treatment do not reflect observed persistent deficits

in memory. In light of the foregoing, the undersigned finds the

claimant has no more than a moderate limitation in understanding,

remembering, or applying information.

In interacting with others, the claimant has a moderate limitation.

[Plaintiff] reported no difficulty getting along with others, but

reported he was fired for problems interacting with his boss (Ex. 4E

at 6). [Plaintiff] reported socializing several times a week, but

experiencing frequent panic attacks (Ex. 4E). Treatment notes

indicate [Plaintiff] is cooperative with medical staff and do not

indicate abnormal behavior. In light of the foregoing, the

undersigned finds the claimant has no more than a moderate

limitation in interacting with others.

With regard to concentrating, persisting, or maintaining pace, the

claimant has a moderate limitation. [Plaintiff] reported difficulty

with concentration and completing tasks (Ex. 4E at 6). He did not

report difficulty with focusing on TV shows, household chores, or

building model cars (Ex. 10F). Consultative examiner reports note

deficits in concentration while treatment notes do not reflect

observed deficits in focus. Based on all of the foregoing, the

undersigned finds that the claimant has a moderate limitation in his

ability to concentrate, persist or maintain pace.

As for adapting or managing oneself, the claimant has a moderate

limitation. [Plaintiff] reported problems handling stress and changes

in routine (Ex. 4E at 7). However, treatment notes reflect that

[Plaintiff] is generally appropriately dressed and groomed for

appointments, cooperative with medical staff, and compliant with

prescribed treatment. [Plaintiff] reported he can perform personal

care, do household chores, prepare meals, shop for groceries, and

manage his finances (Ex. 4E; 5F; 8F; 10F). Based on the foregoing,

the undersigned finds the claimant has no more than a moderate

limitation in his ability to adapt or manage himself.

Because the claimant’s mental impairments do not cause at least two

"marked" limitations or one "extreme" limitation, the "paragraph B"

criteria are not satisfied.

(ECF No. 5 at 2021.)

ALJ Allard similarly considered whether the “paragraph C” criteria were satisfied for the

relevant listings and stated:

The undersigned has also considered whether the "paragraph C"

criteria are satisfied. In this case, the evidence fails to establish the

presence of the "paragraph C" criteria. The record does not establish

that the claimant has only marginal adjustment, that is, a minimal

capacity to adapt to changes in the claimant’s environment or to

demands that are not already part of the claimant’s daily life. For

example, the claimant reported he can perform personal care, do

household chores, prepare meals, shop for groceries, and manage his

finances (Exs. 4E; 5F; 8F; 10F). The record does not contain

evidence or allegations regarding a need for a highly structured

setting nor does it establish that the claimant has a minimal capacity

to adapt to changes.

(Id. at 21.)

Because ALJ Allard found Plaintiff failed to satisfy the criteria of the relevant listings at

step three, she continued the analysis process and assessed Plaintiff’s RFC during the relevant

period. (Id. at 2228.) Although ALJ Allard could have provided more pincites, precision, and

explanation in the step three analysis as is demonstrated by her more fulsome RFC determination

in step four, this Court is still able to conduct a meaningful review and conclude there is substantial

evidence that all limitations were “limited” at best. See Jones, 364 F.3d at 505 (“[T]he ALJ’s

decision, read as a whole, illustrates that the ALJ considered the appropriate factors in reaching

the conclusion that [the plaintiff] did not meet the requirements for any listing. . . .”); (ECF No. 5

at 8285, 10104, 11920, 12930, 13940, 14951, 328335, 63249, 64650.). ALJ Allard

went through the appropriate requirements in her step three analysis and her decision in step four,

infra, also provides ample evidence that she relied upon the entire record in making all

determinations.

Accordingly, this Court must affirm the ALJ, instead of reevaluating the evidence or

substituting in its own judgment. See Chandler, 667 F.3d at 359 (holding that reviewing courts

“are not permitted to reweigh the evidence or impose their own factual determinations”); see also

Malloy, 306 F. App’x at 764.

B. Plaintiff’s Challenge to ALJ Allard’s Step Four RFC Determination

Plaintiff argues “the mental RFC is not based on substantial evidence and arrives without

a comprehensible rationale for its extremely convenient conclusions.” (ECF No. 9 at 34.) Plaintiff

contends the RFC determination does not consider his mental limitations appropriately, in

particular by not sufficiently incorporating the “moderate limitations” previously determined in

step three. (Id. at 4346.) As such, Plaintiff states there is not substantial evidence for the RFC

determination nor an adequate explanation for how his limitations allow for him to perform the

specified jobs. (Id. 4546.)

The Commissioner argues substantial evidence supports the ALJ’s mental RFC

determination and that she “reasonably found that Plaintiff could understand and execute simple

and routine tasks.” (ECF No. 15 at 17.) The Commissioner states “[a]lthough Plaintiff attempts to

discredit the rationale of the ALJ’s September 26, 2022, decision, he retains the burden of proving

that his condition is disabling.” (Id. at 18.) The Commissioner contends Plaintiff’s argument

should be dismissed because “Plaintiff had failed to prove that he had additional functional

limitations not accounted for in the RFC” and “the record demonstrates that Plaintiff’s mental

impairments were not disabling.” (Id.)

After evaluating all the evidence in the record, ALJ Allard determined Plaintiff has the

RFC “to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is limited

to standing or walking four hours in an eight hour workday,” but with certain non-exertional

limitations—namely, that Plaintiff (1) “can understand and execute simple and routine tasks,” (2)

“can make simple decisions and adapt to occasional changes in essential work tasks,” and (3) “can

have occasional contact with coworkers, supervisors, and the public, but not with tasks that involve

direct customer service.” (Id. at 22.) ALJ Allard’s process in determining Plaintiff’s RFC was

twofold: first, she considered whether there was an underlying medically determinable physical or

mental impairment that could reasonably be expected to produce Plaintiff’s claimed symptoms;

and second, she evaluated the intensity, persistence, and limiting effects of Plaintiff’s symptoms

to determine whether, and the extent to which, they limit Plaintiff’s work-related activities, based

upon objective medical evidence and other evidence available in the record, as well as opinion

evidence in accordance with the requirements of 20 CFR 404.1520c, 404.1529, 416.920c, and SSR

16-3p. (Id.)

ALJ Allard considered all the evidence in the record—including Plaintiff’s testimony,

Plaintiff’s medical records, prior administrative medical findings, the opinions of Plaintiff’s

treating and examining/consulting physicians, a vocational expert’s testimony, and Plaintiff’s

function report—and concluded Plaintiff was not disabled within the meaning of the Act. (Id. at

1928.) ALJ Allard found Plaintiff’s “[m]edical records are not consistent with the degree of

functional limitation alleged,” but “[w]ith regard to mental impairments, records reflect deficits in

mood, irritability, poor insight and judgment, and impaired memory and concentration (See Exs.

2F at 7; 4F at 27; 5F; 11F at 9).” (Id. at 25.)

In reaching her conclusion, ALJ Allard appropriately weighed the opinions of the medical

experts and examining/consulting physicians. Focusing on the challenged mental aspects of the

RFC determination, the relevant step four analysis is supported by substantial evidence and the

various disabilities and related limitations were appropriately considered. For example, ALJ Allard

found the opinion of state agency consultants Melanie Callender and Mercedes DeCubas

unpersuasive since it was “not consistent with the medical record.” (Id. at 26.) She stated “[t]heir

review of the evidence noted no current psychiatric treatment, a history of substance abuse, and

below average cognitive functioning, generally supporting a limitation to simple work,” while

making sure to adequately note “records reflect deficits in mood, irritability, poor insight and

judgment, and impaired memory and concentration, warranting additional limitations (See Exs. 2F

at 7; 4F at 27; 5F; 11F at 9).” (Id.)

Directly relevant to Plaintiff’s challenge, ALJ Allard recites and weighs medical

determinations she utilized that are specific to mental functioning and the step four conclusion:

Consultative examiner Nadine Gardner Psy.D., opined in December

of 2019 that the claimant has a mild to moderate impairment in

understanding, remembering, and carrying out simple directions,

moderate impairment in complex directions, moderate impairments

in sustaining attention and concentration, working at a reasonable

pace, maintaining appropriate social interaction with supervisors,

coworkers, and the public and reacting appropriately to normal work

pressure (Ex. 8F at 7). The undersigned finds limitations to simple

tasks and on interacting with others persuasive, as they are

supported by the medical record. Her examination noted the

claimant was cooperative and well groomed, with poor insight and

judgment, made errors with basic calculations, and could not

perform serial sevens or threes, supporting her opinion (Ex. 8F).

Medical records reflect deficits in mood, irritability, poor insight

and judgment, and impaired memory and concentration, consistent

with limitations to simple tasks and on interacting with others (See

Exs. 2F at 7; 4F at 27; 5F; 11F at 9).

Judy Iturmendi, Psy.D., wrote that the claimant may struggle to

function effectively in day to day tasks and various job settings (Ex.

5F at 4). The undersigned finds her opinion unpersuasive, as it is not

supported by her examination and does not provide specific work

related functional limitations. Her exam noted the claimant was

euthymic and anxious, occasionally circumstantial, with logical

thought content, mildly impaired recent memory, intact remote

memory, seriously impaired attention and concentration, intact

social insight and judgment, and limited overall insight and

judgment, failing to support the degree of limitation suggested (Ex.

5F). Medical records reflect deficits in mood, irritability, poor

insight and judgment, and impaired memory and concentration,

more consistent with limitations to simple tasks and limited

interactions with others (See Exs. 2F at 7; 4F at 27; 5F; 11F at 9).

(Id. at 26.) Based on the above analysis from the decision, vocational expert testimony, and the

administrative record, it is clear to this Court that the four areas of mental functioning a person

uses in a work setting were appropriately considered. In other words, the decision provides a “clear

and satisfactory explication of the basis on which it rests.” Cotter v. Harris, 642 F.2d 700, 704 (3d

Cir. 1981).

The Court finds ALJ Allard adequately determined Plaintiff’s RFC, and her decision

appropriately considered Plaintiff’s mental disabilities and related limitations. ALJ Allard

considered all medical evidence in the record, weighed each as she found appropriate, and

explained how and why she arrived at her decision. She considered and incorporated into her

reasoning and analysis Plaintiff’s testimony, Plaintiff’s treatment history, Plaintiff’s available

medical records, and the opinions and findings of Plaintiff’s treating and examining/consulting

physicians, which are consistent with her decision. Plaintiff’s disagreement with ALJ Allard’s

conclusion does not compel reversal here, as ALJ Allard’s decision is based on “more than a mere

scintilla of evidence.” Newell, 347 F.3d at 545. To the extent ALJ Allard did not explicitly consider

specific details of certain reports, this is not reversible error, as her decision only needs to be

supported by substantial evidence. See Jose L., 2022 WL 603001, at *5; Frederick F., 2022 WL

445538, at *2 (citation omitted).

Moreover, contrary to Plaintiff’s claim that there must be a “more detailed assessment of

mental functioning” explicit in the RFC determination, not every aspect considered in the analysis

must be listed out. It is sufficient for the RFC determination to be supported by “substantial

evidence” in the entire record, and it is unnecessary for the ALJ to engage in an explicit “function-

by-function” analysis where the reasoning for the decision is implicit in the record. Malcolm v.

Comm'r of Soc. Sec., Civ. A. No. 16-8646, 2017 WL 5951703, at *19 n.14 (D.N.J. Nov. 30,

2017) (finding that “the Third Circuit does not require strict adherence to the function-by-function

analysis set forth in Social Security Ruling 96–8p”); Donna R. v. Kijakazi, Civ. A. No. 20-15449,

2022 WL 13009149, at *12 (D.N.J. Oct. 21, 2022) (“Although the ALJ did not expressly weigh

Dr. Brown’s opinions at step four, the ALJ’s discussion at step two demonstrates that he implicitly

discounted that examiner's opinions when assessing Plaintiff's limitations in her ability to

understand, remember, or apply information and to concentrate, persist, or maintain pace.”);

Sheppard v. Comm’r of Soc. Sec., Civ. A. No. 19-18206, 2020 WL 5652450, at *5 (D.N.J. Sept.

23, 2020) (“Here, the RFC did not specifically reference the four non-exertional functions, but that

does not mean the ALJ did not consider those functions, singularly or in combination with

Plaintiff's other limitations from her various impairments.”); Glass v. Comm’r of Soc. Sec., Civ.

A. No. 18-15279, 2019 WL 5617508, at *8 (D.N.J. Oct. 31, 2019) (“Contrary to Plaintiff’s

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

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

evidence in the record.”).

Accordingly, the Court affirms ALJ Allard’s determination in step four of the five-step

evaluation process.

V. CONCLUSION

For the reasons set forth above, the Court finds Plaintiff failed to show ALJ Allard erred in

determining Plaintiff was not entitled to SSI and/or DIB benefits under the Act. Therefore, the

Commissioner’s decision is AFFIRMED. An appropriate Order follows.

/s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

Dated: March 19, 2025