WHITE v. COMMISSIONER OF SOCIAL SECURITY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN W.,1

Plaintiff,

Case No. 2:23-cv-3400

v. Magistrate Judge Norah McCann King

FRANK BISIGNANO,

Commissioner of Social Security,2

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 John W. for Supplemental

Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff

appeals from the final decision of the Commissioner of Social Security denying that application.

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 November 24, 2020, Plaintiff filed his application for benefits, alleging that he has

been disabled since October 6, 2013. R. 56, 66, 128–36. 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 Frank Bisignano, the current Commissioner of Social Security, is substituted as Defendant in

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

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upon reconsideration. R. 74–77, 81–82. Plaintiff sought a de novo hearing before an

administrative law judge (“ALJ”). R. 83–86. ALJ Theresa Merrill held a hearing on April 26,

2022, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. R.

32–55. In a decision dated July 19, 2022, the ALJ concluded that Plaintiff was not disabled

within the meaning of the Social Security Act from November 24, 2020, the date on which the

application was filed, through the date of that decision. R. 10–21. That decision became the final

decision of the Commissioner of Social Security when the Appeals Council declined review on

April 21, 2023. R. 1–6. Plaintiff timely filed this appeal pursuant to 42 U.S.C. § 405(g). ECF No.

1. On April 10, 2024, 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. 11.3 On April 11, 2024, the case was reassigned to the undersigned. ECF

No. 12. 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. § 1383(c)(3). The United States Supreme Court has explained this

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

3The 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).

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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.”);

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

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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 an 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

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

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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. §

416.920(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)).

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At step one, the ALJ determines whether the plaintiff is currently engaged in substantial

gainful activity. 20 C.F.R. § 416.920(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. § 416.920(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. §

416.920(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 § 416.909. 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. § 416.920(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. § 416.920(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

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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 was 35 years old on the date on which he filed the application. R. 20. At step

one, the ALJ found that, although Plaintiff had worked after that date, this work did not rise to

the level of substantial gainful activity. R. 13. Accordingly, the ALJ found that Plaintiff had not

engaged in substantial gainful activity between November 24, 2020, the application date, and the

date of the ALJ’s decision. R. 13.

At step two, the ALJ found that Plaintiff’s schizophrenia spectrum; anxiety disorder; and

substance addiction disorder (alcohol) were severe impairments. R. 13. The ALJ also found that

Plaintiff’s lumbago and obesity were not severe. R. 13–14.

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. 14–16.

At step four, the ALJ found that Plaintiff had the RFC to perform a full range of work at

all exertional levels work subject to various non-exertional limitations. R. 16–20. The ALJ also

found that this RFC did not permit the performance of Plaintiff’s past relevant work as a

construction worker. R. 20.

At step five and relying on testimony of the vocational expert, the ALJ found that a

significant number of jobs—e.g., jobs as a kitchen helper, a cleaner, and a mail clerk—existed in

the national economy and could be performed by Plaintiff with this RFC. R. 20–21. The ALJ

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

from November 24, 2020, the application date, through the date of the decision. R. 21–22.

Plaintiff disagrees with the ALJ’s findings at step four and asks that the decision of the

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Commissioner be reversed and remanded for further proceedings. Plaintiff’s Social Security

Brief, ECF No. 8. 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, ECF No. 10.

IV. SUMMARY OF RELEVANT MEDICAL EVIDENCE

A. Theodore Brown, Jr., Ph.D.

Theodore Brown, Jr., Ph.D., conducted a consultative psychological examination of

Plaintiff on March 1, 2021. R. 699–703. Plaintiff, who was cooperative and pleasant throughout

the examination, reported that he had a high school education and was employed part-time

loading trucks, having worked at that job for five days at the time of the examination. R. 699.

Plaintiff also reported two psychiatric hospitalizations in 2013, each lasting two weeks. Id. Dr.

Brown noted that Plaintiff “drinks some alcohol, smoked marijuana until 2013. Ambiguous as to

whether or not and to what extent it is still ongoing.” Id. Dr. Brown also noted a prior criminal

history involving drugs and a gun, and Plaintiff’s release from detention in November 2020. R.

699–700. Upon mental examination, Dr. Brown noted as follows:

MENTAL STATUS EXAMINATION: Claimant was pleasant and cooperative

throughout the Examination. Overall presentation was adequate.

Appearance was same as stated age. Dress was in leisure attire. Hygiene was

adequate. Prosthetic devices - none. Gait, posture, and motor behavior - normal.

Eye contact - appropriate.

Proverb Interpretation: When asked to interpret proverbs, Claimant’s responses

were as follows: You shouldn’t judge a book by its cover – “Don’t judge someone

based upon the way they look.” Don’t count your chickens before they hatch –

“Don't count on something you don’t have yet.” No need to cry over spilled milk –

“It’s over. It’s done with. Move on.” Information: Claimant’s responses to

information were as follows: Number of months in a year – “12.” A thermometer

is for “temperature.” Direction of the sunrise – “To the west.” Memory: He could

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remember three of three items immediately and two of three after five minutes.

Digit Span: Six digits forward and three digits backwards. Calculations: 4 + 3 =

7, 11 – 5 = 6, 3 x 4 = 12, and 18 ÷ 3 = 6. Serial 7s/3s: He could not count backwards

from 100 by 7s. He could count backwards from 30 by 3s. Judgment: If he saw

smoke coming from his neighbor’s house – he would “call 911.” Wallet found on

the floor in the store – “Turn it in to customer service.” Names in the phonebook

being in alphabetical order – “Make things easy to find.” Similarities and

Differences: Apples and oranges are “fruit.” Table and chairs are “furniture.” Piano

and guitar – “musical instruments.” Speech: Fluent and clear. He was able to

express his thoughts and feelings with no hesitation or delay. Thought Processes:

Coherent and goal directed. No evidence of illusions, delusions, hallucinations, or

paranoia in the Evaluation setting. Affect: Appropriate to thought content with full

range of speech associated with thought affect. Mood: During the Examination was

neutral. Sensorium: Clear. Orientation: He was oriented to person, place, and

time. He knew the day, the month, and the year. General Fund of Information:

He knew Biden is president, 52 weeks in a year, and Trenton is the capital of New

Jersey. Insight: Fair.

MODE OF LIVING (Current Level of Functioning): Claimant lives by himself.

He can dress, bathe, and groom himself. He gets some help with cooking, cleaning,

laundry, shopping from his family. He doesn’t drive. He manages his own money.

He has no friends. Family relationships are okay. Hobbies and interests - reading,

listening to music, studying. He spends his time at home reading, listening to music,

and/or studying.

The results of the present Evaluation appear to be consistent with Claimant’s

allegations and give basis for the following diagnoses:

DIAGNOSTIC IMPRESSION:

Schizophrenia, Paranoid Type.

Anxiety Disorder, Unspecified.

Rule Out Panic, Anxiety Disorder.

Alcohol Abuse/Dependency Disorder.

R. 701–02. Dr. Brown stated that Plaintiff’s prognosis was “[u]ndetermined, very much

dependent upon Claimant receiving appropriate mental healthcare support and treatment and

benefiting from the same.” R. 702. Dr. Brown recommended that “until Claimant is at least

receiving mental healthcare support and treatment he not be allowed to manage his own funds.”

Id.

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B. State Agency Reviewing Consultants

Steven Reed4 conducted an initial review of the record on behalf of the state agency on

March 22, 2021. R. 57–65. Consultant Reed specifically considered years of medical evidence as

it appeared in the record at that time, which included, inter alia, reports of visual, tactile, and

auditory hallucinations; paranoia; and anxiety. R. 58–60. The record documented the following

medically determinable impairments: schizophrenia spectrum and other psychotic disorders;

anxiety and obsessive-compulsive disorders; and substance addiction disorders (alcohol). R. 60.

In considering the paragraph B criteria of Listing 12.06, Consultant Reed opined, inter alia, that

Plaintiff had no limitation in his ability to understand, remember, or apply information, but was

moderately limited in the remaining three functional areas, namely, ability to interact with

others; ability to concentrate, persist, or maintain pace; and ability to adapt or manage oneself. R.

61. Under the heading “MRFC Additional Explanation,” Consultant Reed concluded as follows:

35 YOM, initial T16, alleging “Bipolar disorder; Schizophrenia; Psychotic

breakdown”;

-Prior Allow (2013);

-Educ: 1 year of college;

-Hx of DAA and incarceration;

-CL with apparent Hx of perceptual disturbances, was closely monitored by psych

staff for several years within NJDOC correctional system where he managed to

function adequately without medication. Per 11/2020 D/C dx from Bayside prison,

CL had no active psych Dx and had no psych Rx;

-ADLs: Despite self-reported Sx, CL is able to function independently;

-No current OP psych Tx MER is available (CL reportedly recently began receiving

counseling);

4 The record does not reflect this consultant’s specific qualifications, but his specialty is

psychology. R. 64–65.

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-No current psych Rx;

-DDS tele-claim ob: “Nh sounded calm. Nh sounded lucid and coherent. Nh was

cooperative and answered all questions accordingly. NH voice was low and his

speech was slow.”;

-CEMSE, Dr. Brown: Self-report: Numerous Sx--including psychotic Sx such as

AH--are interfering with his capacity to function; Overt behavior / observations:

AOx3; “...well-groomed, well-dressed... pleasant, cooperative...impression of

mental status (1-10 scale, where 10 = worst) is a 6 or 7... lives alone...employed p/t

loading trucks... overall presentation was adequate... hygiene adequate... gait,

posture, and motor behavior--normal. Eye contact appropriate...” On cognitive

screening, CL performed adequately across all areas including abstract reasoning;

FOK; memory (3/3, 2/3 @ 5”; DF/DB 6/3); and Math calculations (e.g., S3s

correct); TP coherent, relevant; no overt signs of psychosis; Mood neutral; per CE,

Dx impression = Paranoid Schizophrenia; Unspecified Anxiety d/o; Alcohol Use

d/o; Prognosis: “very much dependent upon receiving appropriate mental

healthcare. . .”;

CL’s mental functional capacity is Moderately impaired. Despite CL’s reported

psych Sx, in a work-like setting with simple interpersonal requirements he would

be able to understand, recall, and execute instructions and simple tasks with

adequate CPP, relate adequately, and adapt to minor changes in a routine.

These findings complete the medical portion of the disability determination.

R. 63–64 (emphasis added).

Janet Anguas-Keiter, Psy.D., reviewed Plaintiff’s medical record upon reconsideration

for the state agency on October 13, 2021. R. 67–73. Dr. Anguas-Keiter specifically noted that

“[o]verall evidence reviewed. NO updated MER or ADLS to support worsening or change in

MH MDI. Appears congruent with initial assessment. SEE MRFC.” R. 69; see also R. 68

(stating that “upon reconsideration claimant states there has been no change in condition nor new

conditions”). Under the MRFC additional explanation on reconsideration, Dr. Anguas-Keiter

stated: “Case reviewed. Overall evidence supports moderate impairments and limitations. MER

suggests moderate impairments, ADLs and current work support mild to moderate limitations.

Overall, clmt is capable of completing srts in a socially limited setting, per ADLs, PRW, and

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MER.” R. 72; see also R. 71–72 (including the evidentiary summary set forth in the MRFC

explanation in the initial state agency review).

V. DISCUSSION

The ALJ determined that Plaintiff had the RFC to perform a full range of work at all

exertional levels subject to certain non-exertional limitations:

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

claimant has the residual functional capacity to perform a full range of work at all

exertional levels but with the following non-exertional limitations: He is able to

understand remember and carry out simple routine and repetitive instructions;

perform work that does not require specific production rates such as assembly line

work or hourly quotas; tolerate occasional contact with supervisors and coworkers

but would be unable to work with the public. The claimant would be able to adapt

to routine changes in the workplace that are occasional. Due to lapses in

concentration focus or memory, the claimant would be off task 5% of the day.

R. 16. Plaintiff argues that substantial evidence does not support the ALJ’s RFC determination

because the ALJ erred in her consideration of the opinions of the state agency reviewing

consultants. Plaintiff’s Social Security Brief, ECF No. 8, pp. 14–24. Plaintiff also argues that the

ALJ failed to consider his physical impairments of lumbago and obesity, resulting in a flawed

RFC. Id. at 24–28. Plaintiff’s arguments are not well taken.

A claimant’s RFC is the most that the claimant can do despite his limitations. 20 C.F.R. §

416.945(a)(1). At the administrative hearing stage, it is the ALJ who is charged with determining

the claimant’s RFC. 20 C.F.R. § 416.946(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

consultants—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

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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 finding that Plaintiff had the RFC for a full range of work at all exertional levels

subject to only non-exertional limitations, the ALJ considered years of record evidence regarding

Plaintiff’s impairments, including, inter alia, Plaintiff’s activities of daily living, including his

ability to manage his personal care independently (although he was sometimes neglectful due to

his symptoms), prepare simple meals, do his own laundry, use public transportation, shop in

stores, speak with his church pastor three times a week, see a therapist weekly, and see a

psychiatrist every two weeks; the April 2020 physical examination that revealed a body mass

index (“BMI”) of 39.7, but all other findings within normal limits, including mental status

findings of full orientation with intact judgment and insight; the August 2020 physical

examination, which also revealed a BMI of 39.7 and a blood pressure reading of 122/82, but with

all remaining findings within normal limits, including a normal respiratory effort without rales,

rhonchi, or wheezes, and full mental orientation; Dr. Brown’s examination findings, including,

inter alia, that Plaintiff pleasant and cooperative throughout, had a normal gait, posture, and

motor behavior, and appropriate eye contact and demonstrated no difficulty with abstraction,

interpreting proverbs, performing simple mathematical calculations, and counting backwards

from 30 by threes, although he could not count backwards from 100 by sevens; the finding of

fluent and clear speech and the ability to express his thoughts and feelings with no hesitation or

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delay, coherent and goal directed thought processes with no evidence of illusions, delusions,

hallucinations, or paranoia during the examination; neutral mood and appropriate affect, with a

full range of speech associated with thought, he was fully oriented, with a clear sensorium,

adequate fund of information, and fair insight; a January 18, 2022, assessment of behavioral

health level of care from Rutgers University Behavioral Health Care that reflected a primary

diagnosis of schizophrenia, and the notation that, although Plaintiff presented with some

psychiatric decompensation that impaired his functioning, he was agreeable to participating in

therapy, attending groups, and undergoing medication management; behavioral health care

records from Rutgers University Behavioral Health Care dated March 15, 2022, that reflected

mental status examination findings that Plaintiff was fully oriented, with abstraction capacity that

looked chronically decreased, but his memory was grossly intact, and Plaintiff reported that he

was compliant with his medication (paliperidone), and that his symptoms of depression, anxiety,

and hearing voices had improved; and the state agency opinions, which the ALJ found to be

“persuasive” because “they are supported by explanation and citations to evidence and are

consistent with the relevant medical evidence of record[.]” R. 17–19. In the view of this Court,

this record contains substantial evidence to support the ALJ’s RFC determination. See Hess v.

Comm’r Soc. Sec., 931 F.3d 198, 210 (3d Cir. 2019) (“A limitation to ‘simple tasks’ is

fundamentally the same as a limitation ‘to jobs requiring understanding, remembering, and

carrying out only simple instructions and making only simple work-related decisions[.]’”)

(citations omitted); Zirnsak, 777 F.3d at 615; Rutherford, 399 F.3d at 554; Bonner v. Saul, No.

1:19-CV-1370, 2020 WL 4041052, at *15 (M.D. Pa. July 17, 2020) (finding substantial evidence

supported the ALJ’s RFC for, among other limitations, unskilled work involving only simple,

routine tasks that are not performed at a production rate pace where the record reflected, inter

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alia, “relatively normal mental status findings, including that Bonner exhibited coherent thought

processes, a normal attitude and affect, good insight, normal thought content, intact recent and

remote memory, and intact cognitive functioning”).

Plaintiff, however, challenges the ALJ’s RFC determination, complaining that the ALJ

improperly relied on the state agency opinions when neither of those consultants had Plaintiff’s

“complete medical record at the time of their evaluations.” Plaintiff’s Social Security Brief, ECF

No. 8, pp. 14–24 (citing, inter alia, Cadillac v. Barnhart, 84 F. App’x 163 (3d Cir. 2003);

Nazario v. Comm’r Soc. Sec., 794 F. App’x 204, 210–11 (3d Cir. 2019)). Plaintiff’s argument is

not well taken. As an initial matter, state agency physicians are experts in Social Security

disability programs. SSR 96-6p, 1996 WL 374180, at *1 (July 2, 1996). An ALJ may rely on a

state agency consultant’s findings and opinions even where there is a lapse of time between the

consultant’s report and the ALJ’s decision and where additional medical evidence is later

submitted. Chandler, 667 F.3d at 361 ((“The Social Security regulations impose no limit on how

much time may pass between a report and the ALJ’s decision in reliance on it. Only where

‘additional medical evidence is received that in the opinion of the [ALJ] . . . may change the

State agency medical . . . consultant’s finding that the impairment(s) is not equivalent in severity

to any impairment in the Listing,’ is an update to the report required.”) (emphasis in original)

(citations omitted); Wilson v. Astrue, 331 F. App’x 917, 919 (3d Cir. 2009) (“Generally, an ALJ

is required to consider the reports of State agency medical consultants; however, there is no

requirement that an ALJ must always receive an updated report from the State medical experts

whenever new medical evidence is available.”).

Moreover, Plaintiff’s reliance on Cadillac and Nazario are unavailing. In Cadillac, the

United States Court of Appeals for the Third Circuit found that the ALJ had erred in rejecting the

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opinion of a physician who had access to a claimant’s complete medical record (including, inter

alia, a CT scan of the claimant’s back taken during a subsequent hospitalization) but instead

giving controlling weight to the opinions of the reviewing state agency physicians who did not

have the benefit of the entire record, including the CT scan. Cadillac, 84 F. App’x at 168–69.

Conversely, in the present case, there is no competing medical opinion that the ALJ improperly

rejected. Plaintiff also relies on Nazario for the proposition that “‘[t]he reports of non-examining

physicians are generally given less weight than those of examining and treating physicians.’”

Plaintiff’s Social Security Brief, ECF No. 8, p. 15 (quoting Nazario, 794 F. App’x at 210–11).

However, Plaintiff does not explain how this proposition applies where no competing opinion—

treating or otherwise—exists in the record. See id. In any event, for claims filed after March 27,

2017,5 the Commissioner’s regulations eliminated the hierarchy of medical source opinions that

previously gave preference to treating sources. Compare 20 C.F.R. § 416.927 with 20 C.F.R. §

416.920c(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”).6

Plaintiff goes on to insist that mental health records from Rutgers University dated after

the state agency review are significant because these records “document[] Plaintiff’s various

symptoms, including auditory hallucinations, racing thoughts, ruminating thoughts, irritability,

5 As previously noted, Plaintiff’s application was filed on November 24, 2020.

6 While the Commissioner considers 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, 20 C.F.R. §

416.920c(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 § 416.920c(a).

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poor concentration, depression, anxiety, and limited insight.” Plaintiff’s Social Security Brief,

ECF No. 8, p. 16 (citing R. 709; 713; 715; 717; 719-720; 723; 729; 732; 735; 737; 739; 741;

751-752; 769; 809). Plaintiff’s argument is not well taken. As set forth above, the state agency

reviewing consultants considered medical evidence that included, inter alia, Plaintiff’s reports of

visual, tactile, and auditory hallucinations; paranoia; and anxiety. R. 58–60, 69, 72. Notably,

Plaintiff fails to explain how the evidence referred to by him should result in new or different

RFC limitations or an award of benefits. See generally Plaintiff’s Social Security Brief, ECF No.

8, pp. 16–17; 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.”); 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 thrown 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.”). Plaintiff’s

failure in this regard is particularly telling where the ALJ noted that Plaintiff reported in March

2022 that his symptoms had improved. R. 19.

In continuing to challenge the RFC determination, Plaintiff complains that the ALJ

engaged in cherry picking, arguing that, although the ALJ made “quick reference to only two

treatment notes from Rutgers University dated January 18, 2022, and March 15, 2022”, she did

“not even reference . . . that he experiences auditory hallucinations.” Plaintiff’s Social Security

Brief, ECF No. 8, pp. 17–18 (citing, inter alia, R. 19). Plaintiff is mistaken. As detailed above,

the ALJ expressly noted that the record dated March 15, 2022, reflected that Plaintiff was

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“hearing voices” but that this symptom—as well as other symptoms—had improved. R. 19. To

the extent that Plaintiff intends to rely on the other symptoms referred to by him, this Court has

already explained why such evidence does not amount to reversible error. At bottom, Plaintiff

has not shown that the ALJ engaged in prohibited cherry picking.

Plaintiff goes on to complain that “the ALJ was not equipped, as a layperson, to interpret

Plaintiff’s records and assess limitations without the help of a trained medical professional’s

Assessment”; that the ALJ improperly interpreted “raw medical data”; and that the absence of an

examining medical opinion regarding Plaintiff’s functional limitations requires remand.

Plaintiff’s Social Security Brief, ECF No. 8, pp. 18–24. These complaints are not persuasive. The

ALJ did not rely on simply her own “lay opinion,” nor did she otherwise improperly interpret

“raw medical data”: As Plaintiff acknowledges, the ALJ relied on the findings of the state agency

reviewing consultants when crafting the RFC determination. R. 19. Moreover, as this Court has

already explained, it is the ALJ—not a medical or psychological expert—who is charged with

making the ultimate disability and RFC determinations. Chandler, 667 F.3d at 361. Accordingly,

“[t]here is no legal requirement that a physician have made the particular findings that an ALJ

adopts in the course of determining an RFC.” Titterington v. Barnhart, 174 F. App’x 6, 11 (3d

Cir. 2006); see also Mays v. Barnhart, 78 F. App’x 808, 813 (3d Cir. 2003) (“Primarily, the ALJ

is responsible for making a residual functional capacity determination based on the medical

evidence, and he is not required to seek a separate expert medical opinion.”). Notably, “the ALJ

is not precluded from reaching RFC determinations without outside medical expert review of

each fact incorporated into the decision.” Chandler, 667 F.3d at 362.

In his final challenge, Plaintiff contends that the ALJ failed to consider Plaintiff’s non-

severe physical impairments of lumbago and obesity “at subsequent steps of the sequential

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evaluation[,]” including when crafting the RFC determination. Plaintiff’s Social Security Brief,

ECF No. 8, pp. 24–28. Plaintiff’s arguments are not well taken. After finding that Plaintiff’s

medically determinable impairments of lumbago and obesity were non-severe, the ALJ expressly

considered at step three of the sequential evaluation, inter alia, Listing 1.15, which addresses

disorders of the skeletal spine; Listing 1.16, which addresses lumbar spinal stenosis; and obesity.

R. 14–15. Although the ALJ did not specifically refer to lumbago and obesity by name, the ALJ

considered at step four, inter alia, Plaintiff’s allegations of back pain, his alleged difficulty in

walking and sitting, and his BMI of 39.7, but the ALJ also considered the other findings that fell

within normal limits, including normal respiratory effort without rales, rhonchi, or wheezes; and

Plaintiff’s normal gait, posture, and motor behavior during his consultative examination on

March 1, 2021. R. 17–18. After considering this evidence, and indeed all the record evidence, the

ALJ reasonably concluded that Plaintiff was capable of performing a full range of work at all

exertional levels. R. 16–20. Notably, “[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”); Putman v. Colvin, No. 3:15-CV-

412, 2016 WL 1301048, at *7–8 (M.D. Pa. Apr. 4, 2016) (affirming denial of benefits where the

claimant “has failed to point to any evidence that the diagnoses identified above [non-severe

physical impairments of hypertension, diabetes mellitus, obesity, degenerative disc disease of the

cervical spine, and carpal tunnel syndrome] actually resulted in any limitation or restriction

related to any functional capacity”). Plaintiff cites to no medical evidence documenting how his

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lumbago and obesity impair his functioning or result in greater or different restrictions than those

found by the ALJ and which would lead to a different outcome. See Plaintiff’s Social Security

Brief, ECF No. 8, pp. 24–28; see also Grella v. Colvin, No. 3:12-cv-2115, 2014 WL 4437640, at

*18 (M.D. Pa. Sept. 9, 2014) (“[T]he ALJ cannot accommodate limitations which do not exist, or

which cannot be found in the medical record.”). Plaintiff’s argument, therefore, boils down to

nothing more than a disagreement with the ALJ’s decision, which the Court has already

explained is supported by substantial evidence. See Perkins v. Barnhart, 79 F. App’x 512, 514–

15 (3d Cir. 2003) (“Perkins’s argument here amounts to no more than a disagreement with the

ALJ's decision, which is soundly supported by substantial evidence.”); Markoch v. Comm’r of

Soc. Sec., No. 1:20-CV-00417, 2020 WL 7586953, at *4-5 (D.N.J. Dec. 22, 2020) (“With regard

to their impact on the RFC determination even when those impairments are considered not

severe, Plaintiff does not articulate what additional restrictions should have been implemented. It

is Plaintiff’s burden to establish the severity of her impairments, and Plaintiff's challenge to the

ALJ's consideration of her non-severe impairments amounts to mere disagreement with his

analysis rather than showing any substantive error.”). Accordingly, based on this record, the

ALJ’s failure to expressly mention lumbago and obesity at step four is, at most, harmless error

and does not require remand. See Shinseki, 556 U.S. at 409–10; Rutherford, 399 F.3d at 553

(finding that “a remand is not required here because it would not affect the outcome of the

case”).

In short, 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 the opinions of the state agency reviewing consultants.

VI. CONCLUSION

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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).

IT IS SO ORDERED.

Date: June 10, 2025 s/Norah McCann King

NORAH McCANN KING

UNITED STATES MAGISTRATE JUDGE

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