2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-10-2015

Denise Kerdman v. Commissioner Social Security

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"Denise Kerdman v. Commissioner Social Security" (2015). 2015 Decisions. Paper 360.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-3708

___________

DENISE S. KERDMAN,

Appellant

v.

COMMISSIONER OF SOCIAL SECURITY

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.N.J. Civil Action No. 2:13-cv-04216)

District Judge: Honorable Susan D. Wigenton

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 26, 2015

Before: GREENAWAY, JR., KRAUSE, and GREENBERG, Circuit Judges.

(Opinion filed: April 10, 2015)

___________

OPINION*

___________

KRAUSE, Circuit Judge.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

Denise S. Kerdman appeals the District Court’s judgment affirming the 

Commissioner of Social Security’s denial of her application for disability insurance 

benefits. We will affirm.

I.

Kerdman is 43 years old and lives with her mother in New Jersey. She is 5’1” tall 

and weighs 238 pounds. She is a high school graduate whose past work experience 

includes employment as a teacher’s aide in a day care center. Kerdman claims disability 

primarily based on physical impairments such as a disorder of the back, exogenous 

obesity, asthma, gastrointestinal disorder, and mild bilateral carpal tunnel syndrome. She 

also claims disability based on mental impairments such as anxiety and depression. 

Kerdman’s application for disability benefits was denied both initially and upon 

reconsideration. She then requested a hearing before an Administrative Law Judge 

(“ALJ”). On November 28, 2011, the ALJ concluded that although Kerdman suffered 

from severe impairments, she nonetheless possessed the residual functional capacity to 

perform the exertional demands of sedentary work and the mental demands of unskilled 

and repetitive work. The ALJ also concluded that Kerdman’s residual functional 

capacity precluded her from returning to work as a teacher’s aide, though she could work 

as a hand mounter, carding machine operator, weight tester, and preparer. The ALJ 

found that Kerdman was not disabled and was ineligible for benefits. 

On May 17, 2013, the Appeals Council denied Kerdman’s request to review the 

ALJ’s decision. Kerdman then sought review in the District Court pursuant to 42 U.S.C. 
3

§ 405(g). On July 31, 2014, the District Court affirmed the Commissioner’s decision. 

This appeal followed.

II.

The Social Security Administration has issued a five-step process to determine 

whether an individual is disabled.1 20 C.F.R. § 404.1520(a)(4)(i)-(v). In this case, the 

ALJ found that Kerdman (1) is not currently engaged in substantial gainful activity; (2) 

has severe impairments due to a disorder of the back, exogenous obesity, asthma, 

gastrointestinal disorder, and mild bilateral carpal tunnel syndrome; (3) does not have an 

impairment that meets or is the medical equivalent of the listed impairments; (4) has the 

residual functional capacity to perform work other than her past relevant work, that is, 

sedentary work with simple and repetitive tasks; and (5) is capable of performing jobs 

 

1

“The Commissioner evaluates each case according to a five-step process until a 

finding of ‘disabled’ or ‘not disabled’ is made. See 20 C.F.R. § 404.1520(a). The 

sequence is essentially as follows: (1) if the claimant is currently engaged in substantial 

gainful employment, she will be found not disabled; (2) if the claimant does not suffer 

from a ‘severe impairment,’ she will be found not disabled; (3) if a 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 continually for at least twelve months, then the claimant will 

be found disabled; (4) if the severe impairment does not meet prong (3), the 

Commissioner considers the claimant’s residual functional capacity (“RFC”) to 

determine whether she can perform work she has done in the past despite the severe 

impairment - if she can, she will be found not disabled; and (5) if the claimant cannot 

perform her past work, the Commissioner will consider the claimant’s RFC, age, 

education, and past work experience to determine whether she can perform other work 

which exists in the national economy. See id. § 404.1520(b)-(f).” Schaudeck v. Comm’r 

of Soc. Sec., 181 F.3d 429, 431-32 (3d Cir. 1999).
4

that exist in significant numbers in the national economy. Thus, the ALJ concluded that 

Kerdman was not disabled and denied benefits.

The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g), and we have 

jurisdiction under 28 U.S.C. § 1291. We must affirm the decision of the ALJ if there is 

substantial evidence to support it. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). 

Substantial evidence is not “a mere scintilla,” but rather “such relevant evidence as a 

reasonable mind might accept as adequate.” Burnett v. Comm’r of Soc. Sec., 220 F.3d 

112, 118 (3d Cir. 2000) (quoting Plummer, 186 F.3d at 427) (internal quotations 

omitted). This is a deferential standard of review. Schaudeck, 181 F.3d at 431.

III.

The “sole issue” presented by Kerdman on appeal is “whether the District Court 

erred in determining that there was substantial evidence in the . . . record to support” the 

ALJ’s finding that Kerdman “is not disabled and is . . . able to perform ‘substantial 

gainful activity’ as defined in 20 C.F.R. § 404.1505.” (Appellant’s Br. 3.) Specifically, 

Kerdman argues that the ALJ did not give enough weight to her treating physician’s 

reports and failed to consider the totality of the impact of her impairments on her ability 

to perform substantial gainful activity.2 Her arguments are without merit. 

 

2 Kerdman also argues that the ALJ erred in discrediting her testimony. Because 

this issue was not “squarely argued” before the District Court, it is waived. John Wyeth 

& Brother Ltd. v. Cigna Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (citation 

omitted). 
5

The ALJ must not “reject evidence for no reason or for the wrong reason,” but 

“may choose whom to credit” when considering conflicting evidence. Plummer, 186 

F.3d at 429 (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)). An 

appellate tribunal may not re-weigh the evidence. Williams v. Sullivan, 970 F.2d 1178, 

1182 (3d Cir. 1992). The ALJ’s decision to accord little weight to the opinion of Dr. 

Oleg Frank, Kerdman’s treating physician, is supported by substantial evidence. First, 

Dr. Frank declared that Kerdman was either disabled or unable to work. However, the 

ALJ “must make the ultimate disability and [residual functional capacity] 

determinations.” Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011); see 

also Knepp v. Apfel, 204 F.3d 78, 85 (3d Cir. 2000) (finding of disability under the Act is 

a legal determination to be made by the ALJ). Dr. Frank’s statements that Kerdman was 

disabled and unable to work are therefore not dispositive. Second, substantial evidence 

supports the ALJ’s conclusion that Dr. Frank’s opinion was not well-supported, as Dr. 

Frank failed to reference any objective medical evidence supporting his statements of 

disability or articulate any specific functional limitations suffered by Kerdman. 20 

C.F.R. §§ 404.1527(c)(2); 416.927(c)(2) (more weight given to an opinion that is wellsupported). 

Further, the extreme degree of limitation assessed by Dr. Frank was inconsistent 

with the substantial medical evidence of record. Dr. Rahel Eyassu, a consultative 

examiner and a board certified internist, examined Kerdman and rendered an opinion 

inconsistent with Dr. Frank’s assessment of total disability. Dr. Eyassu’s findings 
6

strongly support the ALJ’s finding that Kerdman could perform a range of sedentary 

work. The ALJ also relied on the opinion of Dr. Martin Fechner, an impartial medical 

expert and board certified internist. Dr. Fechner reviewed all of the medical evidence 

and, in his testimony, carefully detailed the bases for his opinion that Kerdman was 

limited to a range of sedentary work. The ALJ reasonably relied on Dr. Fechner’s 

opinion. See 20 C.F.R. § 416.927(e)(2)(iii); see also Brown v. Astrue, 649 F.3d 193, 196 

(3d Cir. 2011) (ALJ entitled to weigh all evidence, including expert opinions, in reaching 

her findings). Finally, the ALJ relied on the reports of two New Jersey state agency 

medical consultants, Drs. Nancy Simpkins and Ibrahim Housri, who reviewed the 

medical evidence independently and concluded that Kerdman could perform a reduced 

range of light exertional work. The ALJ did not ignore or wrongly interpret evidence, but 

comprehensively considered the record and balanced all of the evidence before her. 

The ALJ also properly considered Kerdman’s established mental impairments and 

fully accounted for the functional limitations resulting from those impairments in 

assessing Kerdman’s residual functional capacity. The ALJ’s residual functional 

capacity assessment includes both exertional and mental health related nonexertional 

functional limitations, including limitations to performing jobs that are unskilled and 

repetitive, require only occasional changes in workplace setting, and require only 

occasional contact with supervisors and co-workers.3 (J.A. 22.) Finally, the ALJ’s 

 

3 The ALJ made specific findings with respect to Kerdman’s mental impairments, 

consistent with 20 C.F.R. Part 404, Subpart P, Appendix 1. Substantial evidence 
7

mental residual functional capacity findings are supported by substantial evidence, 

namely, the assessments of psychiatric consultative examiner Dr. Alec Roy and New 

Jersey state agency psychological consultants Drs. Benito Tan and Leslie Williams. 

IV.

Because there is substantial evidence supporting the ALJ’s denial of benefits to 

Kerdman, we will affirm the District Court’s decision.

 

supports the ALJ’s conclusion that Kerdman is able to take care of her personal needs; 

maintain her personal relationships; retain the concentration to perform the activities of 

daily living; and that Kerdman did not experience any episodes of decompensation. (J.A. 

26.)