ASADURIAN

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

K.A., : Civil Action No. 25-02757

:

Plaintiff, :

: OPINION

v. :

:

COMMISSIONER OF :

SOCIAL SECURITY, :

Defendant. :

:

:

CHESLER, District Judge

This matter comes before the Court on the appeal by Plaintiff K.A. (“Plaintiff”) of the final

decision of the Commissioner of Social Security (“Commissioner”) determining that he was not

disabled under the Social Security Act (the “Act”). This Court exercises jurisdiction pursuant to

42 U.S.C. § 405(g) and, having considered the submissions of the parties without oral argument,

pursuant to L. CIV. R. 78.1(b), finds that the Commissioner’s decision will be affirmed.

In brief, this appeal arises from Plaintiff’s application for disability insurance benefits,

alleging disability beginning October 1, 2004. A hearing was held before ALJ Marguerite Toland

(the “ALJ”) on March 28, 2023 and the ALJ issued an unfavorable decision on January 3, 2024.

After the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision became the

Commissioner’s final decision, and Plaintiff filed this appeal. Of note, Plaintiff’s date last insured

(“DLI”) was June 30, 2009, so the relevant disability period (“Disability Period”) was from

October 1, 2004 through June 30, 2009.

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In the decision of January 3, 2024, the ALJ found, at step two, that Plaintiff had the

following severe impairments: hypertension, obstructive sleep apnea (OSA) and morbid obesity.

At step three, the ALJ found that Plaintiff’s condition did not meet the requirements of any of the

Listings of Impairments. At step four, the ALJ determined that Plaintiff had the residual functional

capacity (“RFC”) to perform sedentary work with specific non-exertional limitations, and that

Plaintiff had no past relevant work. Finally, at step five, the ALJ found that there were jobs that

existed in significant numbers in the national economy that Plaintiff could perform.

On appeal, Plaintiff argues that the Commissioner’s decision should be reversed, and the

case remanded, because the ALJ’s RFC assessment was flawed for two reasons. Plaintiff contends

that the ALJ’s RFC determination was not supported by substantial evidence because: (1) the ALJ

“failed to include significant limitations resulting from Asadurian’s severe impairments and failed

to provide an adequate discussion rejecting those limitations,” (Pl.’s Br. at 5-10), and (2) the ALJ

was “unreasonable” in finding Dr. Wasserman’s opinion unpersuasive. (Pl.’s Br. at 8-9, 11-17).

In reviewing the ALJ’s determination, this Court must affirm the Commissioner’s final

decision if it is “supported by substantial evidence.” 42 U.S.C. § 405(g). “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). Further, on appeal, Plaintiff carries twin

burdens of proof. First, Plaintiff bears the burden at the first four steps of the analysis of

demonstrating how his impairments, whether individually or in combination, amount to a

qualifying disability. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Second, Plaintiff bears the

burden of showing not merely that the Commissioner erred, but also that the error was harmful.

Shinseki v. Sanders, 556 U.S. 396, 409 (2009). At the first four steps, this requires that Plaintiff

show that, but for the error, he might have proven his disability. In other words, when appealing

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a decision at the first four steps, if Plaintiff cannot articulate the basis for a decision in his favor,

based on the existing record, he is quite unlikely to show that an error was harmful.

Plaintiff argues first that the ALJ committed error in formulating the RFC by failing “to

include significant limitations resulting from [Plaintiff]’s severe impairments and fail[ing] to

provide an adequate discussion rejecting those limitations.” (Pl.’s Br. at 5-10). The ALJ

determined that Plaintiff retained the RFC to perform sedentary work with the following

limitations:

[H]e could not climb ropes, letters, scaffolds or work at heights. He

could not operate dangerous machinery (defined as machines that

cut or share). He should have no concentrated exposure to dust

fumes pulmonary irritants or temperature extremes. He was be

limited to low stress work (defined as unskilled work involving

simple, routine tasks and having no fast production rate pace such

as assembly line work).

(Tr. at 1862).

Plaintiff first focuses on what he perceives to be a lack of limitations in the RFC relating

to his obstructive sleep apnea. Plaintiff’s brief runs through the most severe of his self-reported

complaints—that he stopped working as a truck driver after he fell asleep while driving a truck,

lost a job due to falling asleep in front of his boss, and that neither his CPAP nor BiPAP machines

helped much—and then asserts that the ALJ erred by “minimiz[ing] the [e]ffects of this

impairment” and relying on “what the records did not say” in formulating the RFC. (Pl.’s Br. at

6-7). In other words, on this challenge, Plaintiff essentially takes issue with what he believes to

be insufficient weighting of his self-reported complaints.

This argument fails because the ALJ adequately considered Plaintiff’s subjective

complaints, explained why she found them somewhat overstated and unsupported by evidence of

record, and did in fact include limitations related to Plaintiff’s obstructive sleep apnea in the RFC.

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The ALJ began the RFC assessment by considering Plaintiff’s subjective statements

regarding his sleep apnea, including that he left his job as a truck driver after he fell asleep at the

wheel and got into an accident. (Tr. at 1863). The ALJ then looked to the medical records and

determined that “claimant’s statements about the intensity, persistence, and limiting effects of his

symptoms [were] inconsistent with the objective evidence.” (Id.). The ALJ considered medical

evidence as far back as back 2001, three years prior to the onset of the Disability Period.

Considering the medical record evidence from the Disability Period, the ALJ noted:

Later treatment on November 4, 2004, indicate “sleep apnea, CPAP”

(1F/17). Treatment records dated January 23, 2005, has a note

stating they tried to call the claimant and he was in the Dominican

Republic, and they would talk later (1F/9). On April 26, 2005, the

claimant’s treatment notes reveal he weighed 311 pounds, and the

notes indicates splinters in the left foot, morbid obesity, and small

abscess on his back (1F/15). On October 17, 2007, the record

indicates he had morbid obesity, hypertension, and OSA and he was

started on Benicar (for hypertension) and the notes indicate “ENT

referral for close follow up evaluation and repeat sleep study.”

Follow up treatment records on April 6, 2010, show that he was

taking Benicar, Toprol, and Norvasc for hypertension (1F/8).

(Id. at 1864). The ALJ also noted that the record included “no mention of [Plaintiff] losing his job

due to falling asleep.” (Id. at 1863).

In short, the ALJ clearly examined the medical records to look for corroboration of

Plaintiff’s self-reports, but found the medical evidence of record insufficiently strong to support

the furthest extent of Plaintiff’s subjective complaints, and accordingly, was skeptical of adopting

those complaints in their entirety. Despite Plaintiff’s objections, this was an entirely appropriate

exercise of the ALJ’s discretion. See Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999)

(“Allegations of pain and other subjective symptoms must be supported by objective medical

evidence”); Rock v. Comm’r of Soc. Sec., 2021 WL 2177512, at *5 (D.N.J. May 28, 2021)

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(explaining that the ALJ must consider the extent to which the claimant’s “self-reported symptoms

can reasonably be accepted as consistent with the objective medical and other evidence”) (quoting

20 C.F.R. § 404.1529(a)). Additionally, Plaintiff’s contention that the ALJ improperly relied on

“silence in the record” to infer inconsistency between the subjective complaints and the objective

medical evidence is incorrect. See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (“The

Secretary is entitled to rely not only on what the record says, but also on what it does not say.”).

The medical evidence from the period prior to the DLI supports the conclusion that sleep apnea

was a severe impairment, as the ALJ found at step two, but not that its impacts on Plaintiff’s ability

to function were disabling.

In any event, despite being skeptical of the disabling effect of Plaintiff’s sleep apnea, the

ALJ did include limitations relating to Plaintiff’s obstructive sleep apnea in her formulation, thus

incorporating the impairments resulting from his sleep apnea. As the ALJ explained:

The medical records show that the claimant’s obesity, obstructive

sleep apnea and hypertension, in combination, limit his ability to

perform work related activity. Thus, after reviewing all of the

medical evidence, the RFC limits the claimant to sedentary work

with the additional limitation that he could not climb ropes, letters,

scaffolds or work at heights. He could not operate dangerous

machinery (defined as machines that cut or share) due to his sleep

apnea in combination with his obesity . . . to accommodate his

complaints of fatigue due to his sleep apnea, the RFC limits the

claimant to low stress work (defined as unskilled work involving

simple, routine tasks and having a fast production rate pace such as

assembly line work).

(Tr. at 1864). In sum, the ALJ conducted a sufficient analysis of Plaintiff’s subjective complaints

relating to his sleep apnea, and, despite finding those complaints somewhat overstated, still

included multiple limitations designed to accommodate Plaintiff’s obstructive sleep apnea.

Plaintiff also asserts that the ALJ’s failure to incorporate or discuss limitations related to

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his edema, which he stated began before 2004 and required that he elevate his legs while sitting

and wear special stockings, dooms the RFC. (Pl.’s Br. at 9). At the hearing, Plaintiff testified that

before 2004, he had leg swelling which required him to raise his legs when sitting and that he was

given special compression stockings. (Id. at 1890). Plaintiff now argues that the ALJ erred in not

discussing or incorporating this limitation into the RFC. The primary problem with Plaintiff’s

argument is that he fails to point to medical evidence of record which supports his claim. Here,

and elsewhere, it is the responsibility of Plaintiff, not the Court, to scour the record for evidence

to support his claim of disability. Amy F. v. Comm'r of Soc. Sec. Admin., No. CV 20-11613

(ZNQ), 2022 WL 1748010, at *5 (D.N.J. May 31, 2022) (“[T]he Third Circuit has warned

claimants that they ‘bear the responsibility to comb the record and point the Court to the facts that

support their arguments.’”) (quoting United States v. Claxton, 766 F.3d 280, 307 (3d Cir. 2014)).

If there is medical evidence which supports the proposition that Plaintiff had a disabling edema

during the Disability Period, the Court has not seen it, and Plaintiff needed to have pointed it out

to the Court, not the reverse.

In fact, even the testimony to which Plaintiff cites also fails to establish this harm occurred

during the Disability Period of October 2004 through June 2009. (See Id. at 1890).1 And though

1 See the following exchange:

[Counsel]: Do you remember when you were taken to a hospital?

[Plaintiff]: I would say like early 2000’s, late 90’s.

. . .

[Counsel]: When you sat down, do you recall if your doctor told you, around that time, if you were supposed to

elevate your legs?

[Plaintiff]: Yes, definitely. I had to elevate my legs. They gave me special stockings to put on . . .

ALJ: Counsel, I don’t see any of this in Dr. Wasserman’s notes, about the leg swelling . . .”

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counsel promised to provide supporting documentation to the ALJ following the hearing, as far as

the Court can tell, counsel has not done so—and if counsel has done so, it has not been brought to

the attention of the Court, as Plaintiff’s brief on this point cites only to Plaintiff’s testimony as

evidence of his claim. (See Pl.’s Br. at 9).

Plaintiff’s second broad attack on the ALJ’s RFC is that she erred in finding Dr.

Wasserman’s treating source opinion from 2020 unpersuasive. Plaintiff contends that the ALJ

erred because she “failed to provide adequate rationale for finding Dr. Wasserman’s opinion[]

unpersuasive. (Pl.’s Br. at 17). The Court disagrees.

In formulating an RFC, an ALJ must articulate her determination of the persuasiveness of

a medical provider’s opinion, with a focus on its supportability and consistency. See 20 C.F.R. §

404.1520c(b), (b)(2) (“We will articulate in our determination or decision how persuasive we find

all of the medical opinions . . . . The factors of supportability . . . and consistency. . . are the most

important factors we consider . . . .”). An ALJ “need not reiterate the magic words ‘support’ or

‘consistent’ for each doctor,” and may “weave [discussion of] supportability and consistency

through her analysis of which doctors were more persuasive.” Zaborowski v. Comm’r of Soc. Sec.,

115 F.4th 637, 639 (3d Cir. 2024). The ALJ complied with her regulatory requirement to explain

her consideration of Dr. Wasserman’s opinion, and even if she had erred, that error would be no

more than harmless and Plaintiff’s argument would fail under Shinseki.

The ALJ analyzed Dr. Wasserman’s opinion as follows:

I find the opinion of Dr. Wasserman not persuasive (32F). The post

hearing Medical Source Statement appears to be dated June 9, 2020,

and indicates he has treated claimant for "30 years" but does not

indicate exact dates of treatment. He indicates diagnosis of "severe

[Counsel]: [indicates that he will get evidence to the ALJ in the future]

( Tr. at 1890).

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apnea, bipolar, morbid obesity" and list symptoms are severe

sleepiness and depression. He notes that "pt had 2 sleep studies in

2002 and 2010. They showed severe sleep apnea that caused him to

fall asleep and be fired from work" (32F/3). However, this is a

repeated statement of claimant's, not the doctor's opinion. He notes

that the claimant can walk 2 city blocks; can sit no more than 2

hours; stand no more than one hour; and can sit, stand, and walk less

than two hours total per day. Dr. Wasserman notes that in addition

to normal breaks every two hours, patient sometimes need to take

unscheduled breaks during the workday? This question is not

answered with yes/no, Dr. Wasserman just instigates "falls asleep".

It does not clearly indicate how much he can lift.

Dr. Wasserman indicates he would have good days and bad days;

and that his impairments are reasonably consistent with his

symptoms and functional limitations; lastly it notes that he "suffers

from stress". The rest of the form is not clearly marked. I find that

this RFC assessment is not persuasive. There is no clinical evidence

referred to and Dr. Wasserman does not even mention the use of a

CPAP machine [in fact, exhibit 1F/9 indicates he was not using

CPAP]; and there is no sleep study report. The date of Dr.

Wasserman’s report of June 9, 2020, is 11 years past the DLI and

the statements made are vague and are insufficient in “bridging the

gap” and establishing causality between claimant sleep apnea and

his inability to work. “Falls asleep” is too vague. Dr. Wasserman

does not indicate for how long, how often, does it happen during the

workday? There is no specificity in the MSS, so these limitations

can’t be relied on. Lastly, the opinion is inconsistent with

subsequent evidence (2F, 3F).

(Tr. at 1864-65). This thorough explanation provides more than enough for this Court to discern

why the ALJ found Dr. Wasserman’s opinion unpersuasive. The ALJ rightly found Dr.

Wasserman’s opinion vague, undeveloped, lacking in evidentiary support, and not consistent with

any other evidence. For example, Dr. Wasserman indicated that Plaintiff could not sit and stand

or walk for more than two total hours in an eight-hour working day. (Tr. at 61). But, as the ALJ

notes, this assessment is not supported by any “clinical evidence.” (Tr. at 1865). Plaintiff counters

that Dr. Wasserman’s opinion is fully supported by clinical evidence because it refers to two sleep

studies which showed severe sleep apnea, but neither of these studies occurred during the

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Disability Period, and neither appears in the record nor in Dr. Wasserman’s clinical notes in the

record. (Pl.’s Br. at 13). Plaintiff bears the burden of proof of disability at step four and has cited

no medical evidence of record that supports his claims of limitations to his ability to sit, stand, or

walk during the disability period. The focus at this step is not on whether Plaintiff had sleep

apnea—which the ALJ agreed he did—but instead on what functional limitations flowed from that

impairment. Plaintiff has not pointed to specific medical evidence from the Disability Period

which supports Dr. Wasserman’s highly restrictive opinion that was written over ten years later.

Not only has Plaintiff failed to point out medical evidence from the disability period that

supports his claims of functional limitations at step four, but also, a look through Dr. Wasserman’s

treatment records shows that the ALJ’s determination—that Dr. Wasserman’s 2020 opinion is

unsupported and not consistent with any medical evidence—is itself supported by substantial

evidence. For example, in 2009, Dr. Wasserman saw Plaintiff for an annual check-up and reported

that Plaintiff continued to have apnea, but the treatment notes make no mention of an inability to

function during the daytime. (Tr. at 287). Additionally, despite Dr. Wasserman’s 2020 statement

that Plaintiff was “fired from work” due to his sleep apnea, (Tr. at 60), nothing in Dr. Wasserman’s

treatment record from the Disability Period substantiates this claim, nor does Plaintiff point to any

contemporaneous evidence which does so. As a general matter, none of Dr. Wasserman’s

treatment records from the Disability Period appear to support the opinion he provided eleven

years later. (See Tr. 287-295). Plaintiff has pointed to no evidence of record that supports a

challenge to the ALJ’s determination, during the persuasiveness analysis, that Dr. Wasserman’s

opinion was not persuasive for lack of supporting clinical evidence. The ALJ’s determination that

Dr. Wasserman’s opinion was not persuasive is supported by substantial evidence. Ultimately, the

ALJ determined that Plaintiff’s self-reports of disability were not fully supported by the medical

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evidence of record, and this determination is supported by substantial evidence.

Plaintiff has failed to persuade this Court that the ALJ erred in her decision, or that Plaintiff

was harmed by any errors. This Court finds that the Commissioner’s decision is supported by

substantial evidence and is affirmed.

s/ Stanley R Chesler

STANLEY R. CHESLER, U.S.D.J.

Dated: August 19, 2026

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