United States District Court, D. New Jersey
MCNULTY United States District Judge.
Popovich brings this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3) to review a final decision
of the Commissioner of Social Security
("Commissioner") denying her claims for Disability
Insurance Benefits ("DIB") and Supplemental
Security Income ("SSI") under Titles II and XVI of
the Social Security Act, 42 U.S.C. §§ 401-434 and
1381-1385. For the reasons set forth below, the decision of
the Administrative Law Judge ("ALJ") is AFFIRMED.
Popovich seeks to reverse an ALJ's finding that she was
not disabled from October 1, 2010, the alleged onset date,
through January 13, 2015, the date of the ALJ's decision.
Popovich completed her applications for DIB and SSI on
February 21, 2103, claiming that she was disabled since
October 1, 2010, as a result of atrial fibrillation, chronic
heart failure, dizziness, light-headedness, numbness in her
limbs, and cold sweat breakouts after long walks. (R. 11, 94,
261-68) Her application was denied initially on March 23,
2013 (R. 126, 136), and upon reconsideration on June 24, 2013
(R. 146, 156). On September 2, 2014, Popovich appeared and
testified at a hearing before ALJ Michal L. Lissek. (R. 11,
58-82) Subsequently, at a supplemental hearing held on
December 10, 2014, before ALJ Beth Shillin,  at which Popovich
was represented by Walter J. Curtis, Esq., medical expert Dr.
Martin Fechner and vocational expert Jackie L. Wilson
testified. (R. 24-53) Following the supplemental hearing, ALJ
Shillin found that Popovich was not under a "disability,
" as defined in the Social Security Act. (R. 11-19) On
April 8, 2016, the Appeals Council denied Popovich's
request for review (R. 1-5), rendering the ALJ's decision
the final decision of the Commissioner. Popovich then
appealed to this Court, challenging the ALJ's
determination that she was not disabled from October 1, 2010,
through January 13, 2015. Popovich now appeals that decision.
qualify for Title II DIB benefits, a claimant must meet the
insured status requirements of 42 U.S.C. § 423(c). To be
eligible for Title XVI SSI benefits, a claimant must meet the
income and resource limitations of 42 U.S.C. § 1382. To
qualify under either statute, a claimant must show that she
is unable to engage in substantial gainful activity by reason
of any medically determinable physical or mental impairment
that can be expected to result in death or that has lasted
(or can be expected to last) for a continuous period of not
less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); see, e.g., Diaz v. Comm'r of Soc.
Sec, 577 F.3d 500, 503 (3d Cir. 2009).
Five-Step Process and this Court's Standard of
the authority of the Social Security Act, the Social Security
Administration (the "Commissioner") has established
a five-step evaluation process for determining whether a
claimant is entitled to benefits. 20 C.F.R. §§
404.1520, 416.920. This Court's review necessarily
incorporates a determination of whether the ALJ properly
followed the five-step process prescribed by regulation. The
steps may be briefly summarized as follows:
1: Determine whether the claimant has engaged in
substantial gainful activity since the onset date of the
alleged disability. 20 C.F.R. §§ 404.1520(b),
416.920(b). If not, move to step two.
2: Determine if the claimant's alleged
impairment, or combination of impairments, is
"severe." Id. §§ 404.1520(c),
416.920(c). If the claimant has a severe impairment, move to
3: Determine whether the impairment meets or equals
the criteria of any impairment found in the Listing of
Impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A.
(Those Part A criteria are purposely set at a high level, to
identify clear cases of disability without further analysis.)
If so, the claimant is automatically eligible to receive
benefits; if not, move to step four. Id.
§§ 404.1520(d), 416.920(d).
4: Determine whether, despite any severe impairment,
the claimant retains the Residual Functional Capacity
("RFC") to perform past relevant work. Id.
§§ 404.1520(e)-(f), 416.920(e)-(f). If not, move to
5: At this point, the burden shifts to the
Commissioner to demonstrate that the claimant, considering
his age, education, work experience, and RFC, is capable of
performing jobs that exist in significant numbers in the
national economy. 20 C.F.R. §§ 404.1520(g),
416.920(g); see Poulos v. Comm'r of Soc.
Sec, 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits
will be denied; if not, they will be awarded.
all legal issues, this Court conducts a plenary review.
See Schaudeck v. Comm'r of Soc. Sec,
181 F.3d 429, 431 (3d Cir. 1999). As to factual findings,
this Court adheres to the ALJ's findings, as long as they
are supported by substantial evidence. Jones v.
Bamhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42
U.S.C. § 405(g)). Where facts are disputed, this Court
will "determine whether the administrative record
contains substantial evidence supporting the findings."
Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Zirnsak
v. Colvin, 111 F.3d 607, 610 (3d Cir. 2014) (internal
quotation marks and citation omitted). Substantial evidence
"is more than a mere scintilla but may be somewhat less
than a preponderance of the evidence." Id.
(internal quotation marks and citation omitted).
[I]n evaluating whether substantial evidence supports the
ALJ's findings . . . leniency should be shown in
establishing the claimant's disability, and . . . the
Secretary's responsibility to rebut it should be strictly
construed. Due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in
this administrative proceeding than is applicable in a
typical suit in a court of record where the adversary system
Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003)
(internal citations and quotations omitted). When there is
substantial evidence to support the ALJ's factual
findings, however, this Court must abide by them. See
Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g));
Zirnsak, 111 F.3d at 610-11 ("[W]e are mindful
that we must not substitute our own judgment for that of the
Court may, under 42 U.S.C. §§ 405(g) and
1383(c)(3), affirm, modify, or reverse the Commissioner's
decision, or it may remand the matter to the Commissioner for
a rehearing. Podedworny v. Harris, 745 F.2d 210, 221
(3d Cir. 1984); Bordes v. Comm'r of Soc. Sec,
235 F.App'x 853, 865-66 (3d Cir. 2007) (not
is proper if the record is incomplete, or if there is a lack
of substantial evidence to support a definitive finding on
one or more steps of the five step inquiry. See
Podedworny, 745 F.2d at 221-22. Remand is also proper if
the ALJ's decision lacks adequate reasoning or support
for its conclusions, or if it contains illogical or
contradictory findings. See Burnett v. Comm'r of Soc.
Sec, 220 F.3d 112, 119-20 (3d Cir. 2000). It is also
proper to remand where 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).
The ALJ's Decision
Shillin (the "ALJ") properly followed the five-step
process in determining that Popovich was not disabled for the
period from October 1, 2010, through January 13, 2015. Her
findings may be summarized as follows.
1 At step one, the ALJ determined that Popovich had
not engaged in substantial gainful activity in the relevant
period. (R. 13 ¶ 2)
2 At step two, the ALJ found that Popovich had the
following severe impairments: "heart failure,
arrhythmias, pulmonary vascular congestion, atrial
fibrillation, obesity, hypertension, cardiomyopathy, and
tingling in hands and fingers." (R. 13 ¶ 3)
3 At step three, the ALJ determined that, through
January 13, 2015, Popovich's impairment or combinations
of impairments did not meet or medically equal the severity
of one of the listed impairments, 20 C.F.R. Pt. 404, Subpt.
P, App. 1. (R. 14 ¶ 4)
4 - RFC /Ability to Perform Past Work At step four,
"[a]fter careful consideration of the entire record,
" the ALJ found that, through the date last insured,
Popovich had "the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except the claimant: is precluded from climbing
ladders and scaffolds, is precluded from exposure to moving
machinery, and must have reasonable access to restroom
breaks." (R. 14 ¶ 5) The ALJ found that the
specific demands of Popovich's past relevant work as an
executive assistant at a painting company exceed her RFC.
However, Popovich retained the ability to meet the demands of
past relevant work as an administrative assistant as
generally performed in the national economy. (R. 17 ¶ 6)
5 At step five, the ALJ considered Popovich's
age, education, work experience, and residual functional
capacity, as well as the Medical-Vocational Guidelines, and
determined that Popovich is able to perform other jobs
existing in significant numbers in the national economy. (R.
17-18 ¶ 6) Relying on the testimony of a vocational
expert ("VE"), Jackie L. Wilson, the ALJ identified
several representative unskilled, light jobs that Popovich
could perform despite her limitations: (1) inspector and hand
packager (Dictionary of Occupational Titles ("DOT")
# 559.687-074); (2) photocopy machine operator (DOT #
207.685-014); and (3) sealing and canceling machine operator
(DOT # 208.685-026). According to the VE, collectively, more
than 200, 000 such jobs exist nationally. (R. 18 ¶ 6)
The ALJ noted that there would be other work in the national
economy that Popovich could perform even if a limitation for
only occasional fingering and handling were added to
Popovich's RFC. (Id.)
ALJ Shillin concluded that Popovich was not under a
disability, as defined in the Social Security Act, from
October 1, 2010, through January 13, 2015. (R. 19 ¶ 7)
Analysis of Popovich's Appeal
Popovich challenges ALJ Shillin's determination that she
was not disabled during the relevant period, arguing that the
ALJ committed errors at steps three and four. In addition,
Popovich alleges several procedural irregularities. At step
three ALJ Shillin purportedly did not herself consider, or
ask the medical expert, whether Popovich's eight severe
impairments in combination were the medical equivalent of a
listed impairment. (PI. Br. 15-16) At step four, Popovich
contends that the ALJ did not properly support her RFC
determination. Popovich argues that the RFC determination is
contradicted by Popovich's testimony, her excellent work
record, and the opinion of her treating cardiologist. (PI.
Br. 13) Also at step four, Popovich contends, the ALJ
improperly accepted the allegedly incomplete and conclusory
RFC opinion of medical expert Dr. Fechner. (PI. Br. 15)
also argues that her case was subjected to several procedural
irregularities. ALJ Shillin issued the decision in
Popovich's case even though it was ALJ Lissek who heard
Popovich testify about her subjective complaints. Popovich
calls this a "decision by committee" and argues
that the substitution did not conform to the guidelines in
HALLEX 1-2-840. Similarly, the medical expert never heard
Popovich testify, and "was not given any synopsis or
particulars of that testimony. This was in contradiction to
HALLEX 1-2-539, which instructs the ALJ to summarize the