NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-2686

____________

MARIE UBALDINI, Appellant

v.

COMMISSIONER SOCIAL SECURITY ____________

On Appeal from the United States District Court For the Eastern District of Pennsylvania (District Court No. 2-20-cv-04356) Magistrate Judge: Honorable Richard A. Lloret ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 20, 2023 ____________

Before: CHAGARES, Chief Judge, PHIPPS and CHUNG, Circuit Judges

(Filed October 24, 2023) ____________

OPINION* ____________

CHUNG, Circuit Judge.

Marie Ubaldini (“Ubaldini”) appeals the District Court’s denial of her request for

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. review of an Administrative Law Judge’s (“ALJ”) decision denying her applications for

social security disability insurance benefits and supplemental security income under

Titles II and XVI of the Social Security Act (the “Act”), respectively. Having ensured

the ALJ’s decision is supported by substantial evidence, we will affirm.

I. BACKGROUND1

Ubaldini applied for benefits under the Act approximately twenty-eight months

after she was struck by an SUV on October 31, 2015, while riding her motorcycle. She

sustained injuries to her “left foot, fractured her ribs[,] and had a splenic laceration.”

Appendix (“App.”) 20. In the following years, she continued to experience pain,

particularly in her left foot, and received treatment that included physical therapy;

epidural injections; wearing a brace; aqua therapy; prescriptions for oxycodone,

prednisone, and topical lidocaine gel; and, in September 2018, a fusion of “her left mid-

foot area at the first, second, and third TMT [(tarsometatarsal)] joints.” Id. at 20–21.

When she applied for benefits under the Act in 2018, she alleged disability since the day

of her accident.

After an initial administrative denial of her benefits applications, Ubaldini sought

review by an ALJ for a determination that she was, in fact, “disabled” under the Act.

Accordingly, the ALJ performed the five-step sequential evaluation used to determine

disability under the Act and also concluded that Ubaldini was not disabled.2

1 Because we write for the parties, we recite only facts pertinent to our decision. 2 “The ALJ must review (1) the claimant’s current work activity; (2) the medical severity and duration of the claimant’s impairments; (3) whether the claimant’s 2 Ubaldini contests the ALJ’s findings at the fourth step3 that the limitations arising

from her impairments resulted in a residual functional capacity (“RFC”) permitting her to

perform sedentary work restricted to “simple, routine work,” but not to perform her past

relevant work as a photographer. Id. at 19.4 Ubaldini also challenges the ALJ’s finding

at the fifth step that she could perform other work and such work would be available to

her in the national economy. Id. at 24–25.

For purposes of step four of the analysis, where the ALJ assessed the extent of

limitations on her ability to work, Ubaldini offered medical records and testified at the

hearing about her medical impairments, symptoms, and limitations. At the hearing, the

ALJ asked Ubaldini what prevented her from performing a job where she sat for most of

the day. Ubaldini responded that she would likely not be able to perform such a job

impairments meet or equal the requirements of an impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to return to past relevant work; and (5) if the claimant cannot return to past relevant work, whether he or she can ‘make an adjustment to other work’ in the national economy.” Smith v. Comm’r of Soc. Sec.,

(3d Cir. 2010) (citing

(a)(4)(i)-(v));

(a)(4)(i)-(v); Hess v. Comm’r Soc. Sec.,

, 202 n.2 (3d Cir. 2019) (We “treat the [residual functional capacity] assessment as part of step four.”). 3 Ubaldini frames her challenge as one to the adequacy of the hypothetical relied upon by the ALJ. While challenges to a hypothetical tend to implicate an ALJ’s findings at step five, “[o]bjections to the adequacy of hypothetical questions posed to a vocational expert often boil down to attacks on the RFC assessment itself.” Rutherford v. Barnhart,

, 554 n.8 (3d Cir. 2005). Accordingly, we regard Ubaldini’s challenge as one to the ALJ’s findings at both steps four and five. 4 Sedentary work is defined as “work [that] involves lifting no more than 10 pounds at a time”; “occasionally lifting or carrying articles like docket files, ledgers, and small tools”; and only occasional “walking and standing.”

(a), 416.967(a). 3 because it would be difficult “getting to that location [of the job] in the first place.”

. When asked whether she could do such a job if she could get there, Ubaldini testified

that “[o]nce [she] g[o]t there, [her] pain would be so high that it would, it would affect

[her] … ability … and just probably concentration and mental clarity.”

. In

addition to this evidence, the ALJ also received evidence from a consultative examination

of Ubaldini that was performed by Dr. Andrea Woll after the hearing.

With respect to the remainder of step four and step five—that is, whether or not

Ubaldini could return to past relevant work or perform other work available in the

national economy—the ALJ heard testimony from a vocational expert. The ALJ asked

the vocational expert three hypothetical questions to understand whether any jobs would

be available in the national economy to Ubaldini if she were affected by various possible

limitations. Two hypothetical examples posited situations where Ubaldini suffered from

limitations which were more restrictive than those the ALJ ultimately found at step four.

As to both of these hypotheticals, the vocational expert testified no work would be

available. Because the ALJ did not find that these limitations accurately reflected

Ubaldini’s condition, the ALJ did not rely on these hypotheticals at step five.

The ALJ also asked the vocational expert to consider an individual who, among

other things, was “restricted to sedentary work” and who, “due to the effects of

medication[,] would be restricted to simple, routine tasks.”

. The vocational

expert testified that such an individual could not return to Ubaldini’s past work as a

photographer, but that other work would be available to her, for example, as an

“inspector,” “pack[er],” or “sort[er].”

At step five, the ALJ relied on the vocational

4 expert’s response to this hypothetical, found that work would be available to Ubaldini,

and concluded that Ubaldini was not disabled under the Act.

Ubaldini challenged the ALJ’s finding that she was not disabled before the Social

Security Administration Appeals Council and, upon their denial of her request for review,

again before the District Court.5 The District Court denied Ubaldini’s request for review

after deciding the ALJ’s decision was supported by substantial evidence and free of legal

errors. Ubaldini timely appealed.

II. DISCUSSION6

Like the District Court, we review the ALJ’s decision for substantial evidence.

Biestek v. Berryhill,

(2019). This standard for evidentiary

sufficiency is “not high.”

It requires only “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

(quoting Consol. Edison Co.

v. N.L.R.B.,

(1938)). Our review of the ALJ’s decision and record

assures us that the ALJ, at step four, found all limitations that were established by the

evidence in determining Ubaldini’s RFC. Our review also leads us to conclude that at

step five, the ALJ relied upon the hypothetical that accurately reflected Ubaldini’s

abilities as set forth in the RFC and that the vocational expert’s testimony thus constituted

substantial evidence supporting the ALJ’s decision that work was available to her.

5 With the parties’ consent, Magistrate Judge Richard A. Lloret conducted the proceedings in this matter. We refer to the Magistrate Judge as the District Court throughout this opinion. 6 The District Court had jurisdiction pursuant to

(g). We have jurisdiction pursuant to

. 5 A. The ALJ’s Conclusion that Ubaldini Could Perform Sedentary Work with Further Restriction to Simple, Routine Tasks was Supported by Substantial Evidence

A limitation is credibly established if it is “supported by medical evidence and …

‘otherwise uncontroverted in the record.’” Zirnsak v. Colvin,

, 614–15 (3d

Cir. 2014) (quoting Rutherford v. Barnhart,

(3d Cir. 2005)). Where

there is conflicting evidence in the record relevant to an alleged limitation, an “ALJ has

discretion to choose whether to include that limitation” as long as he does not “reject

evidence of a limitation for an unsupported reason.”

at 615 (citing Rutherford,

).

Ubaldini contends that her subjective complaints and descriptions of limitation

were uncontradicted and supported by medical evidence and that the ALJ was wrong to

make an RFC finding contrary to her own subjective reports. When ALJs evaluate

complaints of subjective pain, we require them to “seriously consider[]” such complaints

recognizing that pain “may be disabling,” and we further require that complaints

supported by medical evidence receive “great weight” and not be “discount[ed] …

without contrary medical evidence.” Ferguson v. Schweiker,

(3d Cir.

1985) (citations omitted).

Based on our review of the ALJ’s decision and record, we cannot agree with

Ubaldini. The ALJ accepted that Ubaldini’s “medically determinable impairments could

reasonably be expected to cause [her] alleged symptoms,” App. 22, like interfering with

her concentration and mental clarity, and the ALJ did not overlook any medical evidence

in the record that supported Ubaldini’s testimony. The record also reflects that the ALJ

6 seriously considered Ubaldini’s representations that she could not work due to pain, had

difficulty concentrating, had foot and back pain that affected mobility, and experienced

tiredness and nausea from her medications.

Ubaldini’s testimony was not the only evidence the ALJ was required to weigh

and consider, however, and ultimately, he determined that evidence in the record did not

support her statements regarding symptom intensity and resulting limitations. In addition

to Ubaldini’s own statements, the ALJ considered evidence of Ubaldini’s post-accident

hospitalization and subsequent treatment of fractures in her foot, including Ubaldini’s

treatment at the Pain Institute starting in March 2017; evidence from the following year

that included the results of diagnostic imaging; evidence from later that year reflecting

additional diagnoses and a fusion procedure undertaken in response; and evidence from

2019, including the post-hearing consultative examination. The ALJ also considered

medical source statements from, among others, Dr. Wen Chao, Dr. Lauren McFadden,

and Dr. Woll (the consultative examiner). Finally, the ALJ considered evidence of

Ubaldini’s daily activities, which included making small meals, online shopping,

showering, bathing, dressing, reading, socializing, and watching television.

Weighing all the evidence before him, the ALJ determined that the record did not

support a finding that Ubaldini’s abilities were as severely limited as she claimed. He

explained the sedentary work restriction was justified by Ubaldini’s “multiple surgical

procedures … and the additional pain that she reports even with medication and therapy.”

App. 24. Moreover, he included the “simple, routine tasks” restriction to accommodate

the “side effects that [Ubaldini] reported to have with her pain medications.”

He

7 supported his assessment with evidence of consultative examination findings within

normal limits: Ubaldini had no pain or spasm in her spine; her lower extremity joints

were stable; she had good lower-extremity strength; she was able to ambulate with a

cane; and she was able to get up and down from the exam table without issue. Id. at 22.

The ALJ also noted that the record contained no evidence that Ubaldini’s pain affected

her ability to sit, id., and it was permissible for the ALJ to rely on the absence of such

evidence in evaluating Ubaldini’s complaint of disabling pain. See Dumas v. Schweiker,

(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 ALJ correctly rejected as

unpersuasive Dr. Chao’s and Dr. McFadden’s “disabled” and “temporarily disabled”

opinions because that determination is reserved to the Commissioner. App. 23; see

.1520b(c)(3)(i); 416.920b(c)(3)(i) (a medical source’s statement that a

claimant is or is not disabled is “inherently neither valuable nor persuasive”). In light of

the above, we find the ALJ supported Ubaldini’s RFC with substantial evidence—that is,

evidence that would satisfy a reasonable mind. Biestek,

.

B. The ALJ’s Conclusion that Work was Available to Ubaldini was Supported by Substantial Evidence

When ALJs assess whether a claimant can return to past work or adjust to other

work, they often rely on “the testimony of vocational experts and specialists.” Zirnsak,

. A vocational expert’s testimony often “centers upon, one or more

hypothetical questions posed by the ALJ to the vocational expert.”

at 614 (quoting

Podedworny v. Harris,

(3d Cir. 1984)). An ALJ’s mere inclusion of

8 certain alleged limitations among the hypothetical questions does not reflect the ALJ’s

acceptance that a claimant suffers from such limitations. See Podedworny,

(“[T]he ALJ may proffer a variety of assumptions to the expert ….”). But a

vocational expert’s assessment of a hypothetical situation and conclusion that work is

available is only reliable evidence of work availability when a hypothetical “accurately

portray[s] a claimant’s impairments,” by “includ[ing] all ‘credibly established

limitations’ in the hypothetical.” Zirnsak,

(quoting Rutherford,

); see also Chrupcala v. Heckler,

(3d Cir. 1987).

Ubaldini argues that the ALJ improperly omitted her constant and severe pain and

the effects of pain medication from the hypothetical upon which the ALJ ultimately relied

at step five.7 She argues that instead, the ALJ should have relied on the expert’s finding

that no work was available to her based on the other two hypotheticals posited. But it

was appropriate for the ALJ not to rely on this testimony as the limitations posited therein

were not credibly established. Because the ALJ relied upon a hypothetical that accurately

reflected his finding regarding the extent of Ubaldini’s limitations,8 the vocational

7 The Commissioner argues that Ubaldini only offered the District Court a conclusory argument concerning the ALJ’s reliance on vocational expert testimony. Because this matter is easily resolved on the merits in the Commissioner’s favor, we will not address the alleged inadequacy of Ubaldini’s presentation of her argument to the District Court. 8 In addition, in determination of said limitations, the ALJ fully considered Ubaldini’s subjective reports of constant and severe pain as well as the effects of pain medication upon her. 9 expert’s testimony in response—that work was available—constituted substantial

evidence to support the ALJ’s non-disability determination.

III. CONCLUSION

For the foregoing reasons, we will affirm the order entered August 11, 2022,

denying Ubaldini’s request for review and dismissing her case with prejudice.

10