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finding that the ALJ did not err when she did not comment on Plaintiff's use of a cane, because it did not affect the finding that Plaintiff was capable of a sedentary job, when considered in the context of Plaintiff's daily living activities, his doctor's assessment of his standing and walking abilities, and that his need to use a cane was based on his own testimony rather than the records of a medical treatment provider
Summary of this case from Benjamin v. Comm'r of Soc. Sec.Opinion
1:16-cv-00150-NLH
03-31-2017
JOSEPH ARTHUR SOUTHERLAND, JR., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
APPEARANCES: FREDERICK MICHAEL FRIEDMAN 340 N. LANDSDOWNE AVE. P.O. BOX 467 DREXEL HILL, PA 19026 KARL E. OSTERHOUT OSTERHOUT DISABILITY LAW, LLC 521 CEDAR WAY, SUITE 200 OAKMONT, PA 15139 On behalf of Plaintiff ANDREW CHARLES LYNCH SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL 300 SPRING GARDEN STREET PHILADELPHIA, PA 19123 On behalf of Defendant
OPINION
APPEARANCES:
FREDERICK MICHAEL FRIEDMAN
340 N. LANDSDOWNE AVE.
P.O. BOX 467
DREXEL HILL, PA 19026 KARL E. OSTERHOUT
OSTERHOUT DISABILITY LAW, LLC
521 CEDAR WAY, SUITE 200
OAKMONT, PA 15139
On behalf of Plaintiff ANDREW CHARLES LYNCH
SOCIAL SECURITY ADMINISTRATION
OFFICE OF THE GENERAL COUNSEL
300 SPRING GARDEN STREET
PHILADELPHIA, PA 19123
On behalf of Defendant HILLMAN, District Judge
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 Plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. 42 U.S.C. § 401, et seq. The issue before the Court is whether the Administrative Law Judge ("ALJ") erred in finding that there was "substantial evidence" that Plaintiff was not disabled at any time since his alleged onset date of disability, March 18, 2013. For the reasons stated below, this Court will affirm the ALJ's decision.
I. BACKGROUND AND PROCEDURAL HISTORY
On July 26, 2013, Plaintiff, Joseph Arthur Southerland, Jr., applied for benefits alleging disability since March 18, 2013. Plaintiff's impairments include HIV, history of major depressive disorder, anxiety disorder with panic attacks, obesity, dependent personality disorder, status post suicide attempt with lithium, and sequelae from lithium toxicity, including coma, status post tracheotomy, foot drop, and neuropathy affecting the feet. Plaintiff previously worked as a senior benefits specialist.
After the state agency denied Plaintiff's application twice, Plaintiff requested an administrative hearing. A hearing before an ALJ was held on January 14, 2015. On May 29, 2015, the ALJ issued her decision, which determined that Plaintiff was not disabled. On November 13, 2015, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. Plaintiff brings this civil action for review of the Commissioner's decision.
II. DISCUSSION
A. Standard of Review
Under 42 U.S.C. § 405(g), Congress provided for judicial review of the Commissioner's decision to deny a complainant's application for Disability Insurance Benefits. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold the Commissioner's factual decisions where they are supported by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). Substantial evidence means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Co. V. NLRB, 305 U.S. 197, 229 (1938)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
A reviewing court has a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). "[A] court must 'take into account whatever in the record fairly detracts from its weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Secretary of Health & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal Camera Corp. V. NLRB, 340 U.S. 474, 488 (1951)).
The Commissioner "must adequately explain in the record his reasons for rejecting or discrediting competent evidence." Ogden v. Bowen, 677 F. Supp. 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)). The Third Circuit has held that an "ALJ must review all pertinent medical evidence and explain his conciliations and rejections." Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000). Similarly, an ALJ must also consider and weigh all of the non-medical evidence before him. Id. (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)); Cotter v. Harris, 642 F.2d 700, 707 (3d Cir. 1981).
The Third Circuit has held that access to the Commissioner's reasoning is indeed essential to a meaningful court review:
Unless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his 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 v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Although an ALJ, as the fact finder, must consider and evaluate the medical evidence presented, Fargnoli, 247 F.3d at 42, "[t]here is no requirement that the ALJ discuss in its opinion every tidbit of evidence included in the record," Hur v. Barnhart, 94 F. App'x 130, 133 (3d Cir. 2004). In terms of judicial review, a district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams, 970 F.2d at 1182. However, apart from the substantial evidence inquiry, a reviewing court is entitled to satisfy itself that the Commissioner arrived at his decision by application of the proper legal standards. Sykes, 228 F.3d at 262; Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Curtin v. Harris, 508 F. Supp. 791, 793 (D.N.J. 1981).
B. Standard for Disability Insurance Benefits
The Social Security Act defines "disability" for purposes of an entitlement to a period of disability and disability insurance benefits as the inability 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 12 months. See 42 U.S.C. § 1382c(a)(3)(A). Under this definition, a Plaintiff qualifies as disabled only if his physical or mental impairments are of such severity that he is not only unable to perform his past relevant work, but cannot, given his age, education, and work experience, engage in any other type 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) (emphasis added).
The Commissioner has promulgated regulations for determining disability that require application of a five-step sequential analysis. See 20 C.F.R. § 404.1520. This five-step process is summarized as follows:
1. If the claimant currently is engaged in substantial gainful employment, he will be found "not disabled."
2. If the claimant does not suffer from a "severe impairment," he will be found "not disabled."
3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is therefore dependent upon a finding that the claimant is incapable of performing work in the national economy.
4. If the claimant can still perform work he has done in the past ("past relevant work") despite the severe impairment, he will be found "not disabled."
5. Finally, the Commissioner will consider the claimant's ability to perform work ("residual functional capacity"), age, education, and past work experience to determine whether or not he is capable of performing other work which exists in the national economy. If he is incapable, he will be found "disabled." If he is capable, he will be found "not disabled."
This five-step process involves a shifting burden of proof. See Wallace v. Secretary of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983). In the first four steps of the analysis, the burden is on the claimant to prove every element of his claim by a preponderance of the evidence. See id. In the final step, the Commissioner bears the burden of proving that work is available for the Plaintiff: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); see Olsen v. Schweiker, 703 F.2d 751, 753 (3d Cir. 1983).
C. Analysis
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset of disability, March 18, 2013. At step two, the ALJ found that Plaintiff's impairments of HIV, history of major depressive disorder, anxiety disorder with panic attacks, obesity, dependent personality disorder, status post suicide attempt with lithium, and sequelae from lithium toxicity, including coma, status post tracheotomy, foot drop, and neuropathy affecting the feet were severe. At step three, the ALJ determined that Plaintiff's severe impairments or his severe impairments in combination with his other impairments did not equal the severity of one of the listed impairments. For step four, the ALJ determined that Plaintiff could not perform his past work as a senior benefits specialist, but at step five the ALJ found that Plaintiff retained the residual functional capacity to work at the sedentary level with certain restrictions in jobs such as a referral clerk, host, information clerk, document preparer, order clerk, and greeter. Accordingly, the ALJ found that Plaintiff was not disabled.
Plaintiff presents four areas where he claims the ALJ erred in her analysis:
1. The ALJ erred by finding "moderate" social functioning limitations at step 3, but then failed to include any social functioning limitations in the RFC assessment.
2. The ALJ erred by failing to make a finding regarding Plaintiff's use of a cane, particularly in her RFC analysis.
3. The ALJ erred by failing to properly analyze Plaintiff's treating physicians' opinions.
4. The ALJ erred in the assessment of Plaintiff's credibility, including failing to consider Plaintiff's work history.
The Court finds that the ALJ did not err in the ways Plaintiff argues, and holds that substantial evidence supports the ALJ's decision that Plaintiff retains the residual functional capacity to perform sedentary work.
Plaintiff's appeal of the ALJ's decision focuses on the ALJ's assessment of Plaintiff's RFC and her ultimate determination that Plaintiff's RFC enables him to perform sedentary work. In making that determination, the ALJ is required to do the following:
In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. By
objective medical evidence, we mean medical signs and laboratory findings . . . . By other evidence, we mean . . . statements or reports from you, your treating or nontreating source, and others about your medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how your impairment(s) and any related symptoms affect your ability to work. . . .20 C.F.R. § 404.1529.
In performing Plaintiff's RFC assessment, the ALJ primarily contrasted the medical evidence with statements from Plaintiff, his daily activities, and his efforts to work. With regard to the medical evidence, the ALJ observed:
1. Plaintiff's kidney failure was due to an overdose of lithium in April 2013, but once his lithium level was normalized he was discharged in May 2013 with normal kidney function.
2. On May 2, 2013, Plaintiff was admitted to the hospital for a suicide attempt, and was discharged six days later with normal mood, affect, and sensorium. It was noted that Plaintiff had a history of benzodiazepines and inhalant use.
3. On May 27, 2013, Plaintiff was admitted to the hospital after being found with medication and a suicide note. He was diagnosed with major depressive disorder and generalized anxiety disorder. By discharge on July 16,
2013, Plaintiff had an almost normal mental health status exam with improved insight and judgment and a Beck suicide score of zero.
4. Plaintiff's Global Assessment of Functioning (GAF) score was 25-35 at time of his suicide attempts, but 53 and 57 after discharge from the hospital.
5. Plaintiff's treating source at Garden State Infectious
Disease Associates on July 23, 2013 completed a form and checked the box for marked restrictions in activities of daily living and marked difficulties in concentration, persistence or pace.
6. Plaintiff's psychologist, Dr. Anne Carter, who discharged him in September 2013, noted that Plaintiff was not currently suicidal, and could perform activities of daily living independently. Dr. Carter noted that Plaintiff deals with depression and anxiety, has periods of withdrawal, has normal cognition but he can overthink things, has moderate difficulties in social functioning, he is not making friends, but is appropriate with those he knows, he accepts criticism well, is cooperative, verbalizes needs and has normal speech, mild difficulties in concentration, persistence and pace, with trouble concentrating on complex tasks.
7. On September 5, 2013, Plaintiff attended physical therapy and was feeling stronger but had problems with balance. He asked for an evaluation so that he could drive.
8. The progress notes of psychologist Dr. Carter, dated December 2, 2013, indicated no limitations in memory, sustained concentration, social interaction, adaption, but
did note physical limitations and continued depression.(R. at 22, 24-27.)
9. Plaintiff's HIV status is stable as shown through a normal physical exam on September 23, 2014.
10. Plaintiff's treating physician, Dr. Levin, completed a form on March 13, 2014 that states that Plaintiff can only sit for 3 hours and stand/walk for 1 hour each day. Dr. Levin completed another form on April 7, 2014 that states that Plaintiff can perform a limited range of sedentary work, lifting/carrying 5-10 pounds occasionally and 5 pounds frequently, standing/walking for less than 2 hours and sitting for 6 hours in an 8-hour work day.
11. Plaintiff's treating physician, Dr. Jermyn, completed a form on April 14, 2014 that states that Plaintiff's work restrictions included "prolonged walking" and when asked, "Is client medically cleared to work or school?" the doctor stated "No."
12. Foot drop improving with physical therapy.
The GAF Scale ranges from zero to one-hundred. An individual's "GAF rating is within a particular decile if either the symptom severity or the level of functioning falls within the range.":
A GAF of 51-60 is "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g.. few friends, conflicts with peers or co-workers)."American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000) ("DSM-IV-TR") p. 34.
A GAF of 31-40 is "Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)."
A GAF of 21-30 is "Behavior is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).
The ALJ recounted the following regarding Plaintiff's daily living activities and his own statements:
1. Plaintiff spends his days eating and cleaning his house, including vacuuming and laundry, taking naps throughout the
day. Plaintiff has no trouble with personal care, he can prepare his own meals, he does not need reminders to take his medication. Plaintiff's partner stated that Plaintiff goes to the diner, shopping and church. Plaintiff judges cheering shows.
2. Plaintiff states that he only goes outside rarely and can walk for only 10 minutes due to leg pain, but he is able to go food shopping once a week for 1 hour at a time.
3. Plaintiff states that he has trouble with concentration, does not handle stress well, he has depression and anxiety, HIV causes him nightsweats and trouble sleeping, along with abdominal cramping and nausea in the morning, but the medication Bentyl helps.
4. Under oath, Plaintiff denied a history of substance abuse, but there is evidence in the record the he has a history of "huffing" and used "Maximum Impact," an inhaler. When he was admitted to the hospital for a suicide attempt on May 2, 2013, he was using the inhaler, and urine and drug tests were positive for benzodiazepines. When he was admitted again on July 19, 2013, Plaintiff admitted he had an addiction to inhalants and sex.
5. When Plaintiff was questioned at the hearing about huffing
and the use of the inhaler, Plaintiff stated that his partner told the hospitals that information, but that he had used them "many years ago."(R. at 24-28.)
Based on the foregoing, the ALJ determined that Plaintiff retained the residual functional capacity to perform sedentary work, except that he requires low stress work, must avoid concentrated exposure to dust, fumes, pulmonary irritants and temperature extremes, and he would be off-task five percent of the workday in addition to normal breaks. Noting that Plaintiff was considered, at 46 years old, a "younger individual" on the alleged disability onset date, that Plaintiff has a B.A. in music and a B.S. in business administration, and that Plaintiff previously worked as a senior benefits specialist, the ALJ posed the question to a vocational expert whether jobs exist in the national economy that Plaintiff was capable of when considering Plaintiff's age, education, work experience, and RFC. The VE determined that such a person could perform sedentary, semi-skilled jobs, such as a referral clerk, information clerk, and host. The VE also stated that such a person could perform sedentary, unskilled jobs, such as a document preparer, order clerk, and greeter. The ALJ therefore concluded that Plaintiff was not disabled.
See 20 C.F.R. §404.1567(a) ("Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.")
As noted above, Plaintiff challenges the ALJ's decision in several ways. Plaintiff contends that the ALJ should have included Plaintiff's social functioning limitations, and his need to use a cane, in the RFC and resulting hypothetical to the VE. Plaintiff also argues that the ALJ improperly discounted the opinions of his treating physicians, Drs. Levin and Jermyn, and she imposed her lay interpretation of the medical evidence. Plaintiff finally takes issue with the ALJ's assessment of Plaintiff's credibility, particularly her failure to recognize his excellent work history of working for 30 years straight at a high level position.
The Court does not find that the ALJ erred as alleged. With regard to the ALJ's assessment of the medical evidence, the ALJ properly articulated the weight she afforded each record and why she reached that conclusion. See Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (citations omitted) ("When a conflict in the evidence exists, the ALJ may choose whom to credit but cannot reject evidence for no reason or for the wrong reason. The ALJ must consider all the evidence and give some reason for discounting the evidence she rejects."); see also Diaz v. Commissioner, 577 F.3d 500, 505-06 (3d Cir. 2009) ("In evaluating medical reports, the ALJ is free to choose the medical opinion of one doctor over that of another.").
The ALJ properly compared the medical evidence, and based her assessment on the substance of those records which were consistent, while discounting notes and opinions that lacked support or conflicted with Plaintiff's own statements. (See R. at 26, giving Dr. Levin's two reports some weight in that they support that Plaintiff was capable of performing sedentary work, but discounting the internal inconsistencies; R. at 27, giving Dr. Jermyn's opinion that Plaintiff cannot perform prolonged walking significant weight, but discounting the statement that Plaintiff was not cleared for work because the doctor provided no explanation and that conclusion is not supported by the record; id., giving some weight to the GSDA report because it was consistent relative to time of Plaintiff's discharge from the hospital, but discounting it for questions about its acceptability as a medical source, and because it did not show the proper 12-month duration of level of limitation; id., rejecting Dr. Carter's notes that Plaintiff had no limitation in concentration, persistence, pace, social interaction, and adaption, because the evidence clearly showed that Plaintiff has mild to moderate limitations in those areas).
See, e.g., Zonak v. Commissioner of Social Sec., 290 F. App'x 493, 497 (3d Cir. 2008) (affirming the ALJ's rejection of the plaintiff's treating physician's opinion because it was provided on a check-box form and no reasons were given in support of the doctor's conclusion) (citing Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (declaring that "[f]orm reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best")).
The ALJ also properly considered Plaintiff's GAF. The ALJ noted that Plaintiff's GAF was low at the times he was admitted to the hospital in May 2013, but that after treatment and since that time, Plaintiff's GAF is in accord with his daily living activities. (R. at 27.) See Gulin v. Commissioner, 2014 WL 1466488, 4 n.2 (D.N.J. 2014) (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000) ("DSM-IV-TR")) ("In most instances, ratings on the GAF Scale should be for the current period (i.e., the level of functioning at the time of the evaluation) because ratings of current functioning will generally reflect the need for treatment or care."); see also Forster v. Colvin, --- F. Supp. 3d ---, 2015 WL 1608741, at *9 (M.D. Pa. 2015) (finding that the ALJ properly addressed the plaintiff's GAF scores in totality with the remaining medical evidence of record, given that the ALJ accounted for the GAF scores in addition to evidence from medical source opinions, testimony, Plaintiff's activities of daily living, and the record as a whole). The record shows that Plaintiff's GAF after discharge from the hospital indicated Plaintiff suffered from moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers), which is the 51-60 range. The ALJ properly recognized this finding by Plaintiff's psychologist, and did not impose that GAF score herself.
Further, despite Plaintiff's argument to the contrary, the ALJ properly considered Plaintiff's limitations in social functioning in her RFC analysis, in addition to her observation of this limitation at step three. The ALJ rejected Dr. Carter's notation that Plaintiff did not suffer from a limitation in this area, and observed that his limitations in social functioning was in the moderate range when discussing Plaintiff's GAF. The ALJ also discussed Plaintiff's social functioning limitations when assessing Plaintiff's statements about his daily living activities.
The ALJ is required to assess all of Plaintiff's impairments - even ones that are not "severe" - in combination when making the RFC determination. See 20 C.F.R. § 404.1545(a)(2) ("We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not 'severe,' as explained in §§ 404.1520(c), 404.1521, and 404.1523, when we assess your residual functional capacity."). --------
At this point, the ALJ recognized Plaintiff's impairments and his inability to perform his previous work, but she also found Plaintiff's lack of credibility to detract from his claims that he is unable to work at all. The ALJ noted that Plaintiff was not truthful at the hearing when he testified under oath that he had not abused substances, such as an inhaler, for many years, since his medical records from May and July 2013 recorded his admissions of using the inhaler, and drug tests confirmed his use of those substances. (R. at 26.) The ALJ noted that even though Plaintiff testified that he rarely left the house, Plaintiff continued to judge cheering competitions, went out to dinner and shopping, and attended church. (R. at 25.)
The ALJ did not err, therefore, when she did not comment on Plaintiff's use of a cane, because it did not affect the finding that Plaintiff was capable of a sedentary job, when considered in the context of Plaintiff's daily living activities, his doctor's assessment of his standing and walking abilities, and that his need to use a cane was based on his own testimony rather than the records of a medical treatment provider. See, e.g., Smelly v. Commissioner of Social Sec., 2013 WL 3223000, at *7 (D.N.J. 2013) (citing S.S.R. 96-9p) (stating that a cane does not automatically erode a claimant's sedentary occupational base significantly); Dye v. Commissioner of Social Sec., 2009 WL 3242078, at *6 (D.N.J. 2009) ("In making the step five determination, the ALJ considered that Plaintiff would be capable of only sedentary jobs, thus reflecting a view of Plaintiff's difficulties consistent with the prescription of a cane in April of 2004.").
The ALJ also did not err when she did not specifically mention Plaintiff's "exemplary" work history, as it did not impact Plaintiff's current credibility, including his testimony at the hearing. See Wanko v. Barnhart, 91 F. App'x 771, 774 (3d Cir. 2004) (noting that "[w]e afford the credibility determinations of the ALJ great weight because he had the opportunity to observe the demeanor and hear the testimony given by [the claimant]," and finding that because the ALJ gave legally sufficient reasons in support of his finding that the plaintiff's testimony was not entirely credible, the ALJ's decision to discount the plaintiff's testimony was supported by substantial evidence); Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014) ("[T]he ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility"; "[h]owever, the ALJ must specifically identify and explain what evidence he found not credible and why he found it not credible."); Marquez v. Astrue, 2011 WL 835604, at *9 (D.N.J. 2011) (citing Wier v. Heckler, 734 F.2d 955, 962 (3d Cir. 1984) (declining to substitute its own determination of credibility for that of the ALJ, given that the ALJ had the opportunity to observe the plaintiff first-hand).
Finally, the ALJ did not err when she did not specifically include any social limitations in her hypothetical to the VE. That limitation was recognized in relation to the finding that Plaintiff was no longer capable of being a senior benefits specialist. It was also implicit in the ALJ's hypothetical when she informed the VE of Plaintiff's prior job, his education, and the limitation to sedentary work. Moreover, Plaintiff's attorney questioned the VE at the hearing, and specifically discussed one of the possible jobs Plaintiff's RFC allowed him to perform - the host/greeter position - and counsel did not ask the VE whether Plaintiff's social impairments would preclude him from that type of job or similar jobs that require interaction with others, and instead only focused on whether such a job could be performed while seated. (R. at 85-86.)
An ALJ is not required "to submit to the vocational expert every impairment alleged by a claimant." Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (citations omitted). Instead, "hypotheticals posed must accurately portray the claimant's impairments and [] the expert must be given an opportunity to evaluate those impairments as contained in the record." Id. (internal quotations and citations omitted). Here, the ALJ's hypothetical to the VE accurately portrayed Plaintiff's impairments as she found them to be based on the medical evidence, Plaintiff's daily living activities, including that Plaintiff judged cheering competitions and attended church, and Plaintiff's testimony. Cf. Myers v. Commissioner of Social Sec., 340 F. App'x 819, 821 (3d Cir. 2009) (finding that the following hypothetical "encompassed all of Myers's credibly established limitations, including, and despite Myers's assertions to the contrary, her deficiencies in concentration": "retained the residual functional capacity to perform medium and light work involving no greater than simple, repetitive tasks[ ] in an environment free of excessive pulmonary irritants[ ] not involving supervision by a particularly authoritative or harsh supervisor"); Chanbunmy v. Astrue, 317 F. App'x 195, 196 (3d Cir. 2009) (finding that the hypothetical the ALJ posed to the vocational expert accurately portrayed the claimant's impairments because the ALJ adequately explained her treatment of the medical opinion evidence, the claimant's Global Assessment of Functioning scores, and her determination of the claimant's residual functional capacity").
III. Conclusion
For the reasons expressed above, the ALJ's determination that Plaintiff is not totally disabled is supported by substantial evidence. The decision of the ALJ is therefore affirmed.
An accompanying Order will be issued. Date: March 31, 2017
At Camden, New Jersey
s/NLH
NOEL L. HILLMAN, U.S.D.J.