Maslowski v. Commissioner of Social Security

Filing 11

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/31/2016. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GLENN MASLOWSKI,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil No. 15-1833 (JBS/AMD)

v.
CAROLYN W. COLVIN
ACTING COMMISSIONER OF
SOCIAL SECURITY,

OPINION

Defendant.

APPEARANCES:
Alan H. Polonsky, Esq.
POLONSKY & POLONSKY
512 S. White Horse Pike
Audubon, NJ 08106
Attorney for Plaintiff
Paul J. Fishman
UNITED STATES ATTORNEY
By: Maija DiDomenico
Special Assistant U.S. Attorney
Social Security Administration
Office of the General Counsel
P.O. Box 417777
Philadelphia, PA 19101
Attorney for Defendant
SIMANDLE, Chief Judge:
I.

INTRODUCTION
In this action, Plaintiff Glenn Maslowski (hereinafter,

“Plaintiff”), seeks review pursuant to 42 U.S.C. § 405(g) of the
Commissioner of the Social Security Administration’s
(hereinafter, “Defendant”) denial of his application for

disability benefits pursuant to Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 404-34, 1381-83f (hereinafter, the
“SSA”).
Plaintiff claims he is disabled due to degenerative disc
disease of the lumbosacral and cervical spine resulting from a
car accident, and due to depression and anxiety. (See Pl.’s Br.
at 5, 7.)

On September 18, 2013, Administrative Law Judge

Joseph M. Hillegas (hereinafter, the “ALJ”) issued a 15-page
decision denying Plaintiff Social Security benefits from the
alleged onset date of disability through the date of the ALJ’s
decision. (See R. at 13-30.) The ALJ found Plaintiff’s physical
impairment of degenerative disc disease severe but ultimately
concluded that Plaintiff was “‘not disabled’” because he had a
residual functional capacity to perform a full range of light
work, and a significant number of jobs existed in the national
economy for Plaintiff.
In the pending appeal, Plaintiff argues that the ALJ’s
decision must be reversed and remanded on five grounds.
Plaintiff contends that the ALJ erred (1) in finding that
Plaintiff’s sole severe impairment was degenerative disc
disease; (2) in finding that Plaintiff was not a credible
witness; (3) in finding that Plaintiff had the residual
functional capacity to perform a full range of light work; (4)
in relying solely on the Medical-Vocational Guidelines to find

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that Plaintiff was not disabled; and (5) in failing to consider
Plaintiff disabled for a closed, 12-month period of disability.
For the reasons explained below, the Court finds that
substantial evidence supports the ALJ’s determinations, and will
affirm the ALJ’s decision.
II.

BACKGROUND

A. Procedural History
On September 10, 2011, Plaintiff Glenn Maslowski completed
an application for Social Security Disability benefits under
Titles II and XVI of the SSA. (R. at 175-187.) The claim was
initially denied on January 5, 2012. (R. at 99-103.) Upon
reconsideration, it was denied again on May 25, 2012. (R. at
133-135.) A hearing was held before the ALJ on August 8, 2013,
resulting in an unfavorable decision on September 18, 2013. (R.
at 13-30.) Plaintiff appealed the decision to the Appeals
Council, which denied review on January 16, 2015. (R. at 6.)
Following the denial of review, Plaintiff filed this Complaint
against the Commissioner of Social Security.
B. Plaintiff’s Medical Record
The following facts are relevant to the present appeal.
Plaintiff Glenn Maslowski is 52 years old and was 45 years old
when he was involved in a motor vehicle accident which allegedly
caused his present disability. Prior to the accident, he was
employed as a ramp serviceman for United Airlines, and also had

3

past relevant work experience as a limo driver, motor coach
operator, and line serviceman. (R. at 205, 218.) His disability
claim is based primarily on his neck and back pain, depression,
anxiety.
1. Initial X-Rays and MRIs
On June 15, 2008, approximately one year prior to the
alleged disability onset date, Plaintiff Glenn Maslowski was
involved in a motor vehicle accident where his stopped vehicle
was struck from behind at approximately 45 miles per hour,
resulting in injuries to the neck and lower back. (See R. at
340.) X-rays of Plaintiff’s spine were ordered in July 2008 by
Dr. Charles Kastenberg at Mt. Holly Family Practice. The X-rays
showed that Plaintiff had “mild degenerative changes” to L5-S1
in Plaintiff’s spine and a transitional vertebral body, which
appeared to be attempted lumbarization of S1, but otherwise
showed no bone destruction, intact disc spaces, and “no
significant abnormalities.” (R. at 434-35.)
An MRI of Plaintiff’s lumbar spine was done in August 2008,
which found “mild degenerative changes [] scattered through the
lumbar region,” specifically at L2-L3, L4-L5, and L5-S1. (R. at
278.) The MRI found irregular herniation across the L1-L2 disc
margin; “very large” broad herniation across the L2-L3 disc
margin; a disc bulge at L4-L5 “without narrowing of the central
canal or foramina; and “mild” herniation centrally at L5-S1.

2

(Id.) The MRI found impingement on the thecal sac at the L1-L2
and L5-S1 disc margin and “significant” impingement on the
thecal sac at the L2-L3 disc margin.1 (Id.)
In November of 2008, an MRI of Plaintiff’s cervical spine
was also performed, which found a right paracentral disc
herniation at C5-C6 and small central disc herniations at C6-C7
and T1-T2. (R. at 277.)
2. Treatment with Dr. Peter Arino and Dr. Vinent Padula
Plaintiff began regular treatment for neck and back pain at
South Jersey Pain Consultants in October 2008 with Drs. Peter
Arino and Vincent Padula. Plaintiff self-reported to Dr. Arino
in October 2008 that he experienced a “dull aching pain” in the
neck and lower back, which is present in most positions and
intensified by physical activity. He reported that the pain did
not interrupt his sleep pattern at night. (R. at 340.) Treatment
records from South Jersey Pain Consultants through 2009 show
that Plaintiff was treated with narcotics and epidural
injections but continued to report pain. In one report from
September 30, 2009, Plaintiff stated that he “cannot function at
all with his level of pain.” (R. at 322, 331.) However, the
records also show that Plaintiff was observed as being alert,

1

The radicular symptoms of these neural compromises were later
confirmed via EMG/NC study by Dr. David C. Lee on January 26,
2011. (R. at 305.)
3

oriented times three, having normal gait and extremities,
grossly intact cranial nerves, normal straight leg raising, and
no motor weakness or atrophy, although they sometimes noted that
he was tender to palpation with flexion and extension of his
lumbar spine. (R. at 320, 323, 331, 334-35, 337, 341.)
Dr. Padula noted that neither he nor Dr. Barr recommended
any surgical procedures. (R. at 322.) He did, however, certify
Plaintiff for an intradiscal electrothermal anuloplasty (“IDET”)
procedure, which was performed in December 2009. (R. at 320,
322). Plaintiff saw Dr. Padula in April of 2010, approximately
four months after the procedure, and stated that he was “doing
well” and was not experiencing any side effects. (R. at 318.)
Dr. Padula prescribed Oxycodone and a Fentanyl Patch 50 mcg for
use every two days. (Id.)
Plaintiff returned to Dr. Padula in February 2011
complaining that his pain symptoms had returned following
initial relief from the IDET procedure. (R. at 316, 318.) Dr.
Padula advised Plaintiff he would not prescribe narcotics,
instead recommending anti-inflammatory medications and an
epidural steroid injection. (R. at 316-17.)
3. Treatment with Dr. Louis Spagnoletti
Around May of 2010, Plaintiff began further treatment with
Dr. Louis Spagnoletti, a rehabilitation and sports medicine
physician. (R. at 379-415, 436-51). During the routine monthly

4

office visits through January 2012, Plaintiff consistently
reported pain levels of 5, 5-6, or 6, and Dr. Spagnoletti
routinely prescribed Plaintiff opioid analgesic medications.
(Id.) Dr. Spagnoletti also consistently reported that Plaintiff
experienced tenderness and trigger points in his gluteal muscles
and left paraspinal lumbar muscles, but had intact motor
strength, sensation, and proprioception; a “non-antalgic” gait
without assistive device; good balance; the ability to stand on
his heels and toes; full (5/5) muscle strength in his arms and
legs; intact deep tendon reflexes; and intact memory, normal
sensorium, and fluent speech. (R. at 379-415.)
4. Treatment with Dr. David Lee
Plaintiff stopped meeting with Dr. Spagnoletti for a few
months in late 2010 and early 2011 to get the opinion of Dr.
David C. Lee. In November of 2010, Plaintiff had a neurologic
consultation with Dr. David Lee regarding complaints of chronic
back pain, depression, and anxiety, alongside supposed sleep
apnea, sexual dysfunction, and confusion resulting from narcotic
medication use. (R. at 307-10.) Plaintiff complained of gaining
weight, suffering from fatigue, having trouble with
concentration and memory, having visual problems, having
increased pain, weakness of the extremities, depression,
anxiety, insomnia, sensitivity to temperature, gastric distress,
and daytime drowsiness as a result of the weight gain. (R. at

5

308.) However, Plaintiff also attested to cycling and lifting
weights and expressed interest in stopping pain medications and
returning to work. (R. at 308.) Plaintiff appeared anxious on
examination but had a “fairly clear” mental status and intact
memory; in other words, he did not appear over-medicated. (R. at
308.) Despite myofascial spasms and pain in his lower back and
buttocks, Dr. Lee noted that Plaintiff exhibited “good”
strength, grossly intact sensation, intact cranial functions,
normal and independent walking ability, and no dysarthria,
aphasia, or dysmetria. (R. at 308.) Dr. Lee ordered further
diagnostic testing, opining that Plaintiff had “a decent chance
to get off narcotics and Suboxone, and to be neurosurgically
repaired.” (R. at 310.)
Dr. Lee ordered a lumbar spine MRI, which revealed only a
“moderate disc herniation” at L1-L2 and “mild disc bulges” at
L2-L3, L4-L5, and L5-S1. (R. at 311-12.) Specifically, the MRI
found a central disc herniation at L1-L2; a mild diffuse disc
bulge at L2-L3 and L4-L5 with encroachment into the neural
foramina bilaterally resulting in mild to moderate bilateral
neural foraminal stenosis; and a focal disc bulge at L5-S2 which
“slightly” flattens the thecal sac and mild bilateral neural
foraminal stenosis. (Id.) The S1 vertebra was also partially
lumbarized. (Id.) An EMG and motor nerve conduction study was
also done, which revealed “left L5 radiculopathy, acute and

6

chronic, mild to moderate,” which Dr. Lee attributed to a
superior disc. (R. at 313-14.)
Dr. Lee discontinued Plaintiff’s narcotics, and in one
follow-up visit in late 2010, Plaintiff reported he was doing
“100% better” and that his sleep apnea had also resolved. (R. at
306.) Dr. Lee administered six myofascial trigger point
injections to Plaintiff’s right lower back and buttocks to treat
Plaintiff’s pain. He noted Plaintiff appeared “much clearer”
during this visit. (R. at 306.) In a second follow-up visit in
January of 2011, Dr. Lee noted that Plaintiff was essentially
off all narcotics and “looks much calmer than he did before.”
5. Treatment with Dr. Louis Spagnoletti
Nevertheless, Plaintiff went back to regular treatments
with Dr. Spagnoletti the next month, in February of 2011, and
continued regular visits for the rest of the year. Dr.
Spagnoletti. He continued to report pain levels at 5-6 and was
prescribed opioid analgesics, specifically 15 milligrams and 30
milligrams of Roxicodone, as well as a duragestic patch for the
pain. He was also prescribed medication for depression, anxiety,
and insomnia. (R. at 375-95, 436-51.)
Of particular importance, Dr. Spagnoletti’s notes reflect
that in October 2011, Plaintiff reported that he planned to
return to work at United Airlines (R. at 412), and in January
2012, he reported that he went kayaking. (R. at 436.)

7

6. Dr. Steven Rosen
With respect to work-preclusive limitations, Dr. Steven
Rosen, the Plaintiff’s treating pain management specialist,
completed a “Pain Questionnaire” on Plaintiff’s behalf in
October 2011, effective since June 8, 2009. (R. at 416-22.) In
the questionnaire, Dr. Rosen opined that (1) if the Plaintiff
were to return to his prior physically-intensive work, he would
require a ten minute rest period per hour in addition to lunch
and regular breaks; (2) that his pain seriously impairs his
ability to function; and (3) that this pain would interfere with
his ability to function satisfactorily between 34-66% of the
work day. (Id.) Dr. Rosen also opined that Plaintiff would miss
two or more days of work a month due to symptoms, and that these
limitations were consistent with objective medical evidence.
(Id.)
7. Dr. Charles Kastenberg
Plaintiff’s family physician, Dr. Kastenberg, completed a
form stating that as of April 14, 2011, Plaintiff could return
to regular duty work for United Airlines, but noted that he
should not bend, lift, or climb. (R. at 354.)
In two routine visits with Dr. Kastenberg at the end of
2011, Plaintiff reported having back pain and pain in his knee
after having knee surgery and still using crutches. (R. at 42833.) Although Plaintiff reported having “severe” back pain, he

8

also stated that he was “generally feeling good,” and that his
back pain was “moderate, controlled by meds.” (R. at 431.) Dr.
Kastenberg’s physical examination at that time revealed that
Plaintiff had tenderness and “moderate pain w/ motion” in the
right knee, and lumbar spine muscle spasms with “moderately
reduced ROM.” (R. at 430.) Dr. Kastenberg also noted that
Plaintiff had an intact memory, normal orientation, no edema,
and appropriate mood and affect. (Id.)
From March 2012 to 2013, Plaintiff attended five routine
office visits with Dr. Kastenberg. (R. at 467-76.) At
Plaintiff’s final office visit on March 29, 2013, Dr. Kastenberg
concluded that Plaintiff’s cervicalgia and back pain were
“resolved,” his depression “improved,” and his anxiety “doing
well.” (R. at 467.)
8. Psychological Counseling Reports
Plaintiff attended outpatient counseling for anxiety at
Healthmark Counseling from 2006 through September 2011. (R. at
357-72.) According to the counseling notes, prior to his alleged
disability, Plaintiff experienced anxiety associated with his
job at United Airlines, where he was being harassed by coworkers, and anxiety triggered by financial concerns. After the
accident, Plaintiff reported that although the pain continued to
hamper his physical abilities and affect his mood, the
medication was having a “positive effect” on his pain. (R. at

9

366.)
A few months after Plaintiff underwent the IDET procedure,
he stated that he was satisfied with the procedure and
effectiveness of the medications and expressed an interest in
returning to work. (Id.) The notes from early 2010 show that
Plaintiff’s mood was “stable” and that he was feeling “somewhat
more hopeful,” although his anxiety “tend[ed] to increase when
thoughts of ongoing stressors intrude.” (Id.) Plaintiff was also
hopeful about returning to work, and felt “somewhat more
organized and empowered,” and “more in control of anxiety.”
(Id.) His anxiety was triggered by thoughts of ongoing stressors
such as financial concerns and work. One counseling note dated
January 19, 2010, indicated that Plaintiff expressed concerns
about returning to the same hostile work environment, but was
also resistant to discussing alternative or lateral transitions
from United Airlines, saying “I like my job. Why should I be the
one to suffer?” (Id.)
From February 2012 to August 2013, Plaintiff attended
outpatient medication management visits with psychiatrist John
Wilkins. (R. at 477-491.) Dr. Wilkins diagnosed Plaintiff with
depression and anxiety, but routinely noted a mostly normal
mental status, observing that Plaintiff had a full range of
affect, a neat appearance, a cooperative attitude, good
comprehension, intact concentration, intact insight, good

10

judgment, either a calm or anxious mood, normal orientation,
normal psychomotor behavior, normal speech, a logical thought
process, and no suicidal ideations, delusions, or
hallucinations. (R. at 481-89, 491.) Dr. Wilkins prescribed
medications for depression and anxiety, whicsh included Effexor,
Cymbalta, and Abilify. (R. at 477-491.)
9. Plaintiffs’ Function Reports
In two Function Reports to the Social Security
Administration, submitted December 2011 and February 2012,
Plaintiff reported that he lived alone with a cat and dog. (R.
at 226, 227, 243.) Under “Household Chores,” Plaintiff listed
preparing meals, cleaning his home, doing household repairs, and
washing his laundry every two days. (R. at 228, 244.) His daily
activities included cleaning his home on a daily basis, doing
paperwork, making phone calls, and making necessary appointments
with doctors and lawyers. (R. at 226.) He needed no reminders to
care for himself, take medication, or go places. (R. at 228,
230, 243.) He also reported that once or twice a week, he went
shopping for groceries and kayak supplies and to pick things up
for his mother. (R. at 229.)
Additionally, Plaintiff reported going out on sunny days,
visiting friends, writing emails, and playing with a flight
simulator on his computer. He noted that he sometimes flies with
a friend who owns his own airplane and also joined the Civil Air

11

Patrol and flies training missions. (R. at 227-28, 230.) Under
“Hobbies and Interests,” He stated that since his disability and
because he experienced chronic pain, he could no longer work out
regularly, bike long distances, work two jobs, do house or car
repairs, or participate in many outdoor sports. He added that he
now had “some difficulty” with whitewater kayaking, although he
could still go kayaking if the water was calm. (R. at 228.)
10.

Consultative Psychological Exam by Dr. Theodore Brown

Plaintiff had a psychological consultative exam by Dr. J.
Theodore Brown, Jr., on November 29, 2011. (R. at 423-27.) He
stated that he had been seeing a psychologist for depression and
anxiety for the last four years. (R. at 423.) He reported that
he was living alone and claimed that he could care for his own
personal and grooming needs, including cooking, cleaning,
washing laundry, and shopping for himself. He managed his own
money and although his family relationships were not good, he
had some friends. He was also able to drive, and listed hobbies
such as aviation, bowling, recreations, cycling, and traveling.
(R. at 425.) He reported that he was “sad, unhappy, and
depressed,” but denied crying or thoughts of suicide. His energy
level was and mood were “okay,” and his sexual energy, interest,
and activity were “good.” He reported that his memory, focus,
and concentration were poor. (R. at 424.)
Dr. Brown observed that Plaintiff was pleasant and

12

cooperative with an adequate overall presentation, adequate
hygiene, normal motor behavior, appropriate eye contact, and a
normal gait. (Id.) He exhibited normal orientation, average
intellectual functioning, fair insight, a neutral mood, clear
sensorium, fluent and clear speech, and intact immediate memory.
(R. at 425.) He could remember three of three items immediately
and two of three items after five minutes, was able to repeat
six digits forward and three backwards, could perform simple
calculations, and was able to count backwards from 100 by
sevens. Plaintiff was also noted as being “coherent and goal
directed” and his affect was “[a]ppropriate to thought content
with full range of speech associated with thought content.”
(Id.) Nevertheless, Dr. Brown assessed Plaintiff a Global
Assessment of Functioning (GAF) score of 55 to 60. (R. at 426.)
11.

State Agency Opinions

Dr. Seung Park and Dr. Floyd Turnan reviewed Plaintiff’s
medical records. (R. at 63-85.) Dr. Park opined that Plaintiff
could occasionally lift and/or carry (including upward pulling)
a weight of 20 pounds, frequently lift and/or carry 10 pounds,
and stand for about six hours in an 8-hour workday. He noted
several postural limitations, including “occasionally” being
able to climb stairs, balance, kneel, crouch, stoop, and crawl,
and not being able to climb ladders or scaffolds. He noted that
Plaintiff had no other limitations for pushing and/or pulling,

13

and no manipulative, visual, communicative, or environmental
limitations. (R. at 67-68.)
With respect to his mental residual functional capacity,
Dr. Turnan opined that Plaintiff was not significantly limited
in his ability to remember locations and work-like procedures,
make work-related decisions, understand and remember short and
detailed instructions, sustain and ordinary routine and work
with others without being distracted. There was also no
significant limitation in Plaintiff’s ability to be aware of
normal hazards, travel to unfamiliar places, or set realistic
goals and make plans independently of others. Plaintiff also had
no social interaction limitations. (R. at 69-70.)
However, Plaintiff was said to be moderately limited in his
ability to maintain attention and concentration for extended
periods; to perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances;
and to complete a normal workday without interruptions from
psychologically-based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods.
(R. at 69-70.)
C. Plaintiff’s Testimony before the ALJ
Plaintiff testified before Administrative Law Judge Joseph
M. Hillegas, on August 8, 2013. (R. at 31-59.) He stated that he
attempted to return to his job as a ramp serviceman with United

14

Airlines from June to December 2012, where employees are
required to lift up to 70 pounds, with occasional freight pieces
weighing up to 200 pounds. (R. at 38-39.) Indeed, Plaintiff
himself described it as a “very physical job.” (R. at 43.) After
struggling with work as a result of his injuries, he visited
United’s employee assistance program, where it was recommended
that he assume a lighter position, such as customer service. (R.
at 39-41.) However, Plaintiff neither accepted nor requested
such accommodations, saying that he had not asked for the
accommodation because he wanted to see “if [he] can do ramp
service again.” (R. at 41.)
Plaintiff insisted that the pain resulting from the
accident was too severe for him to work as of 2009, but by his
own estimates, also noted that the pain had improved at least 40
percent with treatment. (R. at 41-42.) He explained that he
began with heavy opioid narcotics (OxyContin) for pain
management around June 2009, though the medications were later
discontinued when Plaintiff developed a dependency. (R. at 4445.) Plaintiff also underwent physical therapy. (R. at 42, 4647.) By winter of 2010, Plaintiff estimated he could walk about
a quarter mile before needing to take a break, and was able to
drive his car again by June 2011. (R. at 44, 49.) He also noted
that he began kayaking the summer of 2011 and would try to kayak
every couple of weeks. (R. at 50-51.) He was also exercising to

15

try and rebuild core strength.

(R. at 50-51.)

At the time of the hearing, Plaintiff was working a parttime job driving a fifty-six passenger bus. (R. at 53.) While
the job can require loading heavy items into the bus, Plaintiff
testified to not doing so. (R. at 54.) He expressed some
discomfort with sitting for extended periods of time (R. at 53),
but ultimately confirmed that he could perform the job fulltime. (R. at 55.) Plaintiff also confirmed he could work the
gate attendant job suggested by United Airlines. (Id.) At
closing, the ALJ asked Plaintiff’s attorney whether he had any
specific evidence going towards the functional limitations that
would show that Plaintiff was unable to perform a less strenuous
job at United Airlines, and Plaintiff’s counsel was unable to
list any. (R. at 57-58.)
D. The ALJ Decision
ALJ Hillegas issued a detailed 15-page written decision on
September 18, 2013, ultimately finding that Plaintiff was not
disabled within the meaning of the Social Security Act, because
he had the residual functional capacity to perform the full
range of light work. The ALJ relied at length upon Plaintiff’s
statements and testimony concerning his functional abilities and
limitations, in addition to the various consultative examiner’s
findings and observations and the testimony adduced during the
hearing. (R. at 13-30.)

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The ALJ first determined that Plaintiff’s degenerative disc
disease of the lumbosacral and cervical spines were severe
impairments, and that his mental impairments were non-severe
because they did not cause more than a minimal limitation in
Plaintiff’s ability to perform basic mental work activities. (R.
at 18-19.)
In making this finding, the ALJ considered four broad
functional areas, otherwise known as the “Paragraph B” criteria:
(1) daily living; (2) social functioning; (3) concentration,
persistence, and pace; and (4) episodes of decompensation. (R.
at 19-23.) The ALJ found mild limitation in the first three
areas, noting that despite the extent of treatment Plaintiff
undertook and its weight on his social life, Plaintiff was able
to live independently and take care of himself and two animals,
go grocery shopping, make daily meals, do laundry, do household
chores, drive, visit friends, and go to appointments with
doctors and lawyers. Although Plaintiff stated that he was
mostly housebound, the ALJ noted that Plaintiff also reported
being able to engage in a wide array of activities, such as fly
training missions, play video games, visit his mother and a few
friends, work out, and go kayaking. (R. at 19-21) He also noted
that at the hearing, Plaintiff attributed most of his
difficulties to his physical problems rather than his mental
health. (R. at 19.) The ALJ stated that the fact that Plaintiff

17

was able to do these activities showed that Plaintiff’s
concentration, persistence, and pace were not seriously limited,
because driving, flying, and kayaking require exceptionally good
abilities for maintaining concentration, attention, persistence,
and pace. (R. at 21.)
Additionally, the ALJ noted that although Plaintiff claimed
that his depression and anxiety were severe, he had been
receiving treatment for both beginning in 2006, and it did not
appear to have affected his ability to work in the years before
the accident. (R. at 21-23.) Plaintiff had not experienced any
episodes of decompensation. The ALJ did not credit Dr. Brown’s
GAF score, noting that a GAF score of 55 to 60, which indicates
moderate symptoms or moderate difficulty in social or
occupational functioning, was inconsistent with the rest of Dr.
Brown’s observations, including the negative findings upon the
mental status exam. (R. at 22.)
Finally, the ALJ found no corroborating evidence in support
of Plaintiff’s claim that his knee impairment was severe, noting
that Dr. Kastenberg’s October 2011 examination only noted
“tenderness” of the knee. (R. at 23.)
The ALJ next concluded Plaintiff had the residual
functional capacity to perform the full range of light work as
defined in 20 CFR 404.1567(b) and 416.967(b). In support for
this conclusion, the ALJ cited to Plaintiff’s reports that he

18

felt better after treatment and medication and had an improved
mood following surgery. He also noted that the array of hobbies
and activities Plaintiff reported demonstrated that he was
capable of adequately performing necessary tasks for light
exertional work. (R. at 25.) In addition, the ALJ carefully
examined the medical records, concluding that the objective
medical evidence consistently reflected mild and moderate
limitations and showed that Plaintiff had the capability to
perform regular and sustained light exertional work. (R. at 2529.)
The ALJ additionally noted several inconsistencies that
adversely affected Plaintiff’s credibility regarding the
intensity, persistence, and limiting effects of his symptoms.
Plaintiff’s professed physical limitations were inconsistent
with testimony that Plaintiff went kayaking eight times during
the alleged period of disability, and were also inconsistent
with Plaintiff’s Function Reports, in which he described the
array of activities he engaged in. (R. at 25.) Plaintiff had
also testified that his pain had improved with treatment. The
ALJ further noted that Plaintiff had returned to his old job for
several months in 2012, which required him to perform physical
tasks such as receive inspections, hook up ground power, and
unload aircraft, and lift as much as 200 pounds. Plaintiff had
also testified that he was likely capable of working full-time

19

at his job as a bus driver, and also likely capable of doing
customer service at United Airlines. (Id.)
The ALJ concluded that given Plaintiff’s RFC and age,2
applying the Medical-Vocational Rules directly supported a
finding of not disabled. (R. at 29 (citing SSR 82-41 and 20 CFR
Part 404, Subpart P, App. 2).) The ALJ considered Plaintiff’s
work experience and education and found there were a significant
number of light, unskilled jobs existing in the national economy
that Plaintiff could perform. (R. at 29 (citing 20 CFR 404.1569,
404.1569(a), 416.969, 416.969(a)).) The ALJ thus determined that
Plaintiff was not disabled within the meaning of the Act. (R. at
30.)
III. STANDARD OF REVIEW
The Court has jurisdiction to review the final decision
pursuant to 42 U.S.C. § 405(g). When reviewing the denial of
disability benefits, the Court must determine whether
substantial evidence supports the denial. Brown v. Bowen, 845
F.2d 1211, 1213 (3d Cir. 1988); Johnson v. Comm’r of Soc. Sec.,
529 F.3d 198, 200 (3d Cir. 2008). The requirement of substantial

2

Because Plaintiff was 45 years old on the date of onset of his
disability, the ALJ considered him a “younger individual,”
defined as ages 18-49 for the purposes of the ALJ’s disability
evaluation pursuant to 20 C.F.R. 404.1563 and 416.963. (R. at
29.) Plaintiff had reached age 50 by the time of the ALJ’s
opinion, which shifted his age category to “closely approaching
advanced age.” (Id.)
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evidence, however, constitutes a deferential standard of review,
see Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004), and
does not require “a large or [even] considerable amount of
evidence.” Pierce v. Underwood, 487 U.S. 552, 564 (1988).
Rather, substantial evidence requires “more than a mere
scintilla[,]” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999), but generally less than a preponderance. See Jones, 364
F.3d at 503. Consequently, substantial evidence supports the
Commissioner’s determination where a “reasonable mind might
accept the relevant evidence as adequate” to support the
conclusion reached by the Commissioner. Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986); Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999).
In order to facilitate this Court’s review, the ALJ must
set out a specific factual basis for each finding. Baerga v.
Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S.
931 (1975). Additionally, the ALJ “must adequately explain in
the record [the] 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)), and
must review all pertinent medical and nonmedical evidence “and
explain his conciliations and rejections.” Burnett v. Comm’r of
Soc. Sec. Admin., 220 F.3d 112, 122 (3d Cir. 2000).

However,

the ALJ need not discuss “every tidbit of evidence included in

21

the record.”

Hur v. Barnhart, 94 F. App’x 130, 133 (3d Cir.

2004). Rather, the ALJ must set forth sufficient findings to
satisfy the reviewing court that the ALJ arrived at a decision
through application of the proper legal standards, and upon a
complete review of the relevant factual record. See Friedberg v.
Schweiker, 721 F.2d 445, 447 (3d Cir. 1983).
IV. DISCUSSION
A. Legal standard for determining disability
Social security disability claims are reviewed in
accordance with the sequential five-step process set forth in 20
C.F.R. § 404.1520. In step one, the SSA determines whether the
claimant currently engages in “substantial gainful activity.”
20 C.F.R. § 1520(b). In step two, the claimant must demonstrate
that the claimant suffers from a “severe impairment.” 20 C.F.R.
§ 1520(c). Impairments lacking sufficient severity render the
claimant ineligible for disability benefits. See Plummer v.
Apfel, 186 F.3d 422, 428 (3d Cir. 1999). Step three requires the
Commissioner to compare medical evidence of the claimant’s
impairment to the list of impairments presumptively severe
enough to preclude any gainful activity. 20 C.F.R. § 1520(d). If
a claimant does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and five to
determine whether the she retains the ability to engage in
substantial gainful activity. Plummer, 186 F.3d at 428.

22

The Commissioner conducts a residual functional capacity
(RFC) assessment for steps four and five. The RFC assessment
considers all of the claimant’s medically determinable
impairments and makes a determination as to the most the
claimant can still do despite her limitations. 20 C.F.R. §
404.1545(a)(1)-(2). In step four, the Commissioner compares the
RFC to the physical and mental demands of the claimant’s past
relevant work to determine whether she can resume her former
occupation. 20 C.F.R. § 404.1520(f). If the claimant is unable
to resume her former occupation, the Commissioner will then
proceed to the final step and decide whether the claimant is
capable of performing other work existing in significant numbers
in the national economy, taking into account her RFC and
vocational factors such as age, education, and work experience.
20 C.F.R. §§ 404.1520(g), 404.1560(c).
Plaintiff presents five challenges to the ALJ’s finding,
and the Court shall address each in turn.
B. The ALJ did not err in finding that Plaintiff’s sole severe
impairment was degenerative disc disease.
Plaintiff contends that the ALJ erred in Step Two by
finding that Plaintiff’s various mental health conditions were
not severe, and argues that the ALJ’s opinion was unsupported by
the overall record. (Pl. Br. [Docket Item 7] at 14-16.)
Plaintiff, however, provides few citations to support his

23

argument. Citing the definition of a “severe” impairment found
in SSR 96-3p,3 Plaintiff states that he developed increasing
panic and lost motivation and had unbearable pain that he had to
resume the use of narcotic medication. He also notes that he was
assessed a GAF of 55-60. (Id. at 14-15.)
A severe impairment is defined as any impairment that
“significantly limits” an individual’s “physical or mental
ability to do basic work activities,” 20 C.F.R. §§ 404.1520(c),
416.920(c), including seeing, hearing, and speaking, and
“understanding, carrying out, and remembering simple
instructions.” 20 C.F.R. §§ 404.1520(c), 404.1521(b); see also
SSR 85–28, 1985 WL 56856, at *3 (Jan. 1, 1985). By contrast,
where the record demonstrates merely a “slight abnormality or a
combination of slight abnormalities” that has, individually or
in the aggregate, “‘no more than a minimal effect on an
individual's ability to work,’” the impairment is not considered
severe. Magwood v. Comm’r of Soc. Sec., 417 F. App’x 130, 132
(3d Cir. 2008) (quoting Newell v. Comm’r of Soc. Sec., 347 F.3d
541, 546 (3d Cir. 2003)).

3

SSR 96-3p provides in relevant part that “an impairment or
combination of impairments is considered ‘severe’ if it
significantly limits an individual’s physical or mental
abilities to do basic work activities; an impairment(s) that is
‘not severe’ must be a slight abnormality (or a combination of
slight abnormalities) that as no more than a minimal effect on
the ability to do basic work activities.” SSR 96-3p.
24

In evaluating severity, the ALJ must consider the available
medical evidence “in order to assess the effects of the
impairment(s) on [the individual’s] ability to do basic work
activities.” SSR 85–28, 1985 WL 56856, at *4. Because the
plaintiff bears a minimal burden on the issue of severity,
“[r]easonable doubts on severity” be resolved in favor of the
claimant. Newell, 347 F.3d at 546.
The ALJ’s finding that Plaintiff’s mental health conditions
were not severe was supported by substantial evidence. The ALJ
relied on Plaintiff’s own testimony, which demonstrated that
Plaintiff’s depression, anxiety, and insomnia did not prevent
him from doing basic work and daily activities. For example,
Plaintiff reported that he lived alone, regularly cleaned his
home and did laundry, organized his things, took care of
paperwork, attended appointments with his doctor and lawyers,
drove his car, went shopping, cared for his personal needs, and
cared for his dog and cat. He reported enjoying visiting
amusement parks and waterparks, traveling, visiting some
friends, kayaking, and occasionally flying training missions.
Plaintiff also told Dr. Lee that he lifted weights and cycled
and was trying to get in shape. The ALJ accurately noted that
driving, flying, and kayaking require exceptionally good
abilities for maintaining concentration, attention, persistence,
and pace, and the fact that Plaintiff participated in these

25

activities indicated that these mental functions were not
significantly impaired. (R. at 21.)
Although Plaintiff stated at the hearing that he suffered
from depression and anxiety, he attributed his functional
limitations to chronic back pain and not to his mental
conditions. Similarly, in the Function Reports, Plaintiff stated
that it was his back pain that prevented him from participating
in more strenuous physical activities and hobbies.
Counseling records and other medical records support that
Plaintiff’s mental conditions were not the primary cause for his
limitations. First, the counseling records show that Plaintiff
had been in treatment for anxiety and depression since 2006 yet
continued to work at his job for the next three years with no
problem. The ALJ thus correctly noted that it was the car
accident and the physical symptoms manifested by Plaintiff’s
degenerative disc disease, and not Plaintiff’s anxiety and
depression, that caused Plaintiff to stop working in 2009. The
same records from after the accident indicate that Plaintiff’s
anxiety was triggered by stressors related to his physical
condition, including financial concerns brought on by his
inability to return to his previous job.
Moreover, the medical exam records show that Plaintiff’s
mental and cognitive functioning was not severely limited by his
mood disorders. Despite confirming the diagnosis of depression

26

and anxiety, Dr. Brown observed that Plaintiff’s mood was
neutral, his memory was intact, and his speech was fluent and
clear. (R. at 425.) Psychiatrist Dr. Wilkins routinely noted
that Plaintiff had a cooperative attitude, good comprehension,
intact concentration and insight, intact insight, normal speech,
and logical thought process. (R. at 481-89, 491.) Based on this
evidence, the state agency mental health experts who reviewed
the record opined that Plaintiff’s mental conditions only mildly
limited his ability to perform activities of daily living and
maintain social functioning. (R. at 65-66.)
In support for his position, Plaintiff cites mainly to his
own statements reporting increased panic, lost sleep, fatigue,
and anxiety, which alone are not persuasive. Allegations of pain
and other subjective symptoms advanced by a claimant must be
supported by objective medical evidence. See 20 C.F.R. §
404.1529. In evaluating Plaintiff’s statements, the ALJ must
consider a number of factors, including but not limited to the
claimant’s daily activities, the intensity of the claimant’s
pain, the medication taken, and any other treatment the claimant
receives for pain. SSR 96-7p, 1996 WL 374186, at *3 (July 2,
1996). As will be discussed in more detail below, the ALJ found
that Plaintiff’s various complaints concerning the extent of his
pain and his mental impairments were not credible in light of
the overall objective medical record, and the Court finds

27

substantial support in the record for his determination. The ALJ
was correct in affording this evidence little weight.
In addition, Plaintiff notes that Dr. Brown gave Plaintiff
a GAF score of 55 to 60. There was, however, nothing in the
record to support that Plaintiff had moderate symptoms or
moderate difficulty in social or occupational functioning, as
the Court has already explained. Dr. Brown’s score not only
conflicted with the record as a whole, it also conflicted with
his own reported observations from his psychological
examination.4
Accordingly, the Court finds that the ALJ’s determination
that Plaintiff’s various mood disorders did not constitute
severe impairments was supported by substantial evidence.5

4

The Court also rejects any argument that the ALJ erred in
failing to find that Plaintiff’s knee injury constituted a
severe impairment. As the ALJ correctly noted, the record is
devoid of any evidence, medical or otherwise that Plaintiff’s
knee impairment significantly limited his ability to perform
basic work activities. Although Dr. Kastenberg’s examination
revealed that Plaintiff had some tenderness and “moderate pain”
with motion in his right knee, the examination occurred shortly
after Plaintiff underwent knee surgery, and Plaintiff was still
in crutches. (R. at 429.) There is little in the record to
support that Plaintiff’s knee problems were severe, nor did
Plaintiff testify that it impaired his ability to perform daily
tasks or engage in exercise and sports.
5 The Court additionally notes that even if the ALJ had erred in
finding that Plaintiff’s mood disorders non-severe, the error
was harmless. The ALJ determined that Plaintiff’s degenerative
disc disease qualified as a severe ailment, found in Plaintiff’s
favor at Step Two, and continued with the inquiry. See Salles v.
Comm’r of Soc. Sec., 229 F. App’x 140, 145 n.2 (3d Cir. 2007)
(“Because the ALJ found in Salles’ favor at Step Two, even if he
28

C. The ALJ’s determination that Plaintiff was not a credible
witness was supported by substantial evidence.
Plaintiff next asserts that the ALJ erred when he found
Plaintiff’s testimony regarding his level of pain and his
inability to perform certain work not entirely credible.
Plaintiff argues that the ALJ should have credited Plaintiff’s
statements that his pain was “severe” and, based on Plaintiff’s
testimony, found that he was unable to perform any work. (Pl.
Br. at 17-19, R. at 24-25.)
The Court readily disagrees. Plaintiff is, of course,
correct that “[a]n ALJ must give great weight to a claimant’s
subjective testimony of the inability to perform even light or
sedentary work when this testimony is supported by competent
medical evidence.” Schaudeck v. Commissioner of Soc. Sec., 181
F.3d 429, 432 (3d Cir. 1999). Here, however, Plaintiff’s own
testimony was that he could likely perform a job that required
light work. At the hearing, Plaintiff testified that although he
could no longer go back to his previous job as a ramp
serviceman, he could probably work as a gate attendant, as was
suggested by his employer. (R. at 55.) He did not pursue the
gate attendant job not because he was functionally unable to
perform the duties, but because he hoped that he could go back

had erroneously concluded that some of her other impairments
were non-severe, any error was harmless.”) (citing Rutherford v.
Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)).
29

to being a ramp serviceman. Plaintiff testified:
A. They offered a reasonable accommodation process, . .
. where, if you can’t do your job, they find you another
job –
Q. Yes, sir.
A. – and that would maybe be customer service. So I might
be able to do that. It’s not my first choice of jobs,
but you know, that’s the only job I think I could do
otherwise.
Q. And what does that job entail, sir, do you know?
A. That’s mostly on your feet standing. That’s checking
in customers. There is some baggage handling if you’re
working at the lobby . . . .
. . . .
Q. Did you ask for the accommodation? Or did you ask for
that job through your union people?
A. I haven’t yet. I want to see if I can do ramp service
again.
(R. at 40-41.)6 At the time of the hearing, Plaintiff was also
working a part-time job driving a fifty-six passenger bus. When
asked whether he had problems with his back while driving, he
noted only that “long runs” lasting six straight hours were
“uncomfortable.” When the ALJ asked whether he could work as a
bus driver full-time, Plaintiff testified that he “imagined so.”
(R. at 53-54.) Plaintiff’s own statements directly contradict
the argument he now makes in his brief -- that his pain was so
severe that he was totally disabled and unable to perform any
substantial gainful activity.

6

Plaintiff’s statement was similar to one that he expressed to
his counselor in 2011. When asked to discuss alternative or
lateral positions he could pursue following his car accident,
Plaintiff resisted, saying “I like my job. Why should I be the
one to suffer?” (R. at 366.)
30

Plaintiff contends only that he was placed on “very large
amounts of narcotics to the point where they were causing
confusion and sleep apnea,” and that he tried to go off the
narcotic medication but had to resume despite the negative side
effects because the pain was “unbearable.” (Pl. Br. at 18-19.)
However, the mere fact that Plaintiff chose to take opioid
analgesics to control his pain in no way establishes, as
Plaintiff argues, that he was suffering from pain so severe that
he could not perform “modest activities of daily living.” (Id.
at 19.) It demonstrates only that Plaintiff weighed the risks
associated with taking the doctor-prescribed pain medication and
concluded that controlling his pain was worth the side effects
and discomfort. Indeed, at the hearing, Plaintiff noted that
with treatment and medication, his pain had been decreased by 40
percent. (R. at 41-42.)
To the extent Plaintiff makes a separate argument that the
ALJ erred in finding Plaintiff’s testimony regarding the
intensity of his pain not credible, the Court also disagrees. A
claimant’s allegations alone will not establish disability, 20
C.F.R. § 404.1529(a), and allegations of pain and other
subjective symptoms advanced by a claimant must be supported by
objective medical evidence. Id. The ALJ must decide “the extent
to which a claimant is accurately stating the degree of pain or
the extent to which he or she is disabled by it” by looking at

31

all of the evidence in the record. Hartranft v. Apfel, 181 F.3d
358, 362 (3d Cir. 1999). When evaluating a claimant’s
credibility, the ALJ must consider the extent to which the
claimant’s self-reported symptoms can “reasonably be accepted as
consistent with the objective medical evidence and other
evidence,” and a claimant’s treatment history and daily
activities are relevant factors in assessing credibility. 20
C.F.R. §§ 404.1529(a), (c)(3). As the factfinder, the ALJ may
discount subjective complaints that are not supported by the
evidence. 20 C.F.R. § 404.1529(c)(4).
Here, the ALJ’s determination of Plaintiff’s credibility
was supported by substantial evidence. The medical record showed
that with treatment, Plaintiff experienced improvement in
mobility, pain, and sleep from the alleged disability onset date
in June 2009. (R. at 26, 305-06, 366-72.) The diagnostic studies
within the record also failed to signify abnormal findings. (R.
at 26, 277-78, 311-14, 434-35.) Although Plaintiff reported
sometimes feeling tender in his lumbar spine, the vast majority
of medical records noted that Plaintiff exhibited normal gait,
normal neck range of motion, normal range of motion in his arms
and legs, normal sensation, normal motor strength, intact
cranial nerves, normal straight leg-raising, and no cerebellar
deficits. (R. at 292, 308, 320, 323, 331, 334-35, 337, 341, 430,
432.)

32

Furthermore, the ALJ correctly weighed the evidence of
Plaintiff’s activities against Plaintiff’s subjective
statements, see 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i)
(explaining that the ALJ will consider claimant’s daily
activities when evaluating symptoms, including pain), noting
that Plaintiff’s activities were inconsistent with claims of
disabling pain. The ALJ pointed out that at one point, Plaintiff
went back to work as a ramp serviceman, which required lifting
objects as heavy as 200 pounds. The fact that Plaintiff was able
to perform the very strenuous functions of his old job, even for
a few months, suggested that his subjective claims of pain were
exaggerated. As already discussed, the record also showed that
Plaintiff regularly kayaked, flew training missions as part of
the Civil Air Patrol, lifted weights, cycled, played a flight
simulator on his computer, cared for personal needs, did
household chores, did home repairs, returned to work as a ramp
serviceman, and worked as a bus driver, among numerous other
activities. (R. at 24-29, 35.) There is little indication that
Plaintiff experienced significant pain while doing any of these
activities. The Court agrees that engaging in these tasks, and
particularly in exercise and sports, requires a degree of
flexibility and movement that is inconsistent with a claim of
“unbearable” pain.
The Court accordingly finds that the ALJ did not err in

33

assigning little weight to Plaintiff’s subjective statements of
pain.
D. The ALJ did not err in finding that Plaintiff had the
residual functional capacity to perform the full range of
light work.
Plaintiff also contends that substantial evidence does not
support the ALJ’s determination that Plaintiff had the RFC to
perform the full range of light work. In particular, he argues
that the ALJ erred in assigning little weight to the opinion of
Dr. Rosen, who testified, among other things, that Plaintiff had
a moderately severe impairment which seriously affected his
ability to function; suffered from pain that would frequently
interfere with the ability to maintain attention and
concentration to sufficiently complete tasks in a timely manner;
and would be expected to be absent from work more than two days
per month due to his impairment and treatment. (R. at 28.)
Plaintiff contends that had the ALJ credited Dr. Rosen’s
opinion, Plaintiff would have been found disabled. (Pl. Br. at
21.)
Again, the Court finds Plaintiff’s argument unpersuasive.
When a conflict in the evidence exists, the ALJ retains
significant discretion in deciding whom to credit. Plummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The ALJ is entitled to
weigh all evidence in making its finding, and is not required to
accept the opinion of any medical expert. Brown v. Astrue, 649

34

F.3d 193, 196 (3d Cir. 2011). In discounting evidence, the ALJ
must give a clear explanation for why it is doing so. Plummer v.
Apfel, 186 F.3d 422, 429 (3d Cir. 1999); Cotter v. Harris, 642
F.2d 700, 704-05 (3d Cir. 1981).
The Court finds no fault with the ALJ’s decision to give
little weight to Dr. Rosen’s opinion, because there is
substantial evidence in the record inconsistent with Dr. Rosen’s
conclusions. As the ALJ fully explained, Plaintiff’s physical
examination records consistently showed mostly normal results.7
Furthermore, Plaintiff’s own testimony regarding the activities
that he could engage in after his injury, as well as his
continued ability to perform everyday activities with little
difficulty, showed that his impairment did not “seriously
affect[] his ability to function.” Finally, the ALJ noted that
Dr. Rosen’s statement that Plaintiff had an antalgic gait was
also contradicted by findings from Dr. Spagnoletti, who observed
on a dozen or more occasions that Plaintiff’s gait was “nonantalgic.” (R. at 379-415.) In short, the ALJ gave a clear
explication of why it was discounting Dr. Rosen’s opinion, and
its decision finds substantial support from the rest of the

7

Testing from Dr. Spagnoletti, for example, showed a normal
neurological examination, no atrophy, good balance, normal motor
functions and reflexes, and full muscle strength. (R. at 379415.) Dr. Kastenberg had also observed that Plaintiff
experienced only a moderately reduced range of motion, and noted
no other abnormalities. (R. at 430.)
35

record. See Richardson v. Perales, 402 U.S. 389, 401 (1971)
(findings must be affirmed if supported by substantial
evidence).
The Court also readily rejects Plaintiff’s vague contention
that the ALJ failed to take into account the MRI records. To the
contrary, even a cursory review of the ALJ’s 15-page opinion
reveals that the ALJ examined the records in detail and took
them into careful consideration in determining Plaintiff’s RFC.
(See R. at 26-27.) Plaintiff also mischaracterizes the ALJ’s
opinion by arguing that the ALJ found a “lack of evidence of
neurological compromise” from the MRI results. (Pl. Br. at 21.)
The ALJ’s statement referred only to the results of the November
2008 MRI and accurately reflected the conclusions from that one
MRI. (See R. at 26 (noting “no evidence of cord compression and
no mention of spinal stenosis” in the November 2008 MRI) and R.
at 277 (MRI results, noting “no evidence of cord compression”).)
In addition to discussing the November 2008 MRI, the ALJ
discussed other MRI documents cited by Plaintiff, and noted
various disc herniations, radiculopathy, and “impingement on the
thecal sac at several levels.” (R. at 26.)
Plaintiff’s challenge to the RFC determination rests on
these two arguments, which the Court has now rejected. But even
if the ALJ had erred by giving little weight to Dr. Rosen’s
testimony and by concluding from the MRI reports that there was

36

no evidence of cord compression and neurological compromise, the
error was harmless. Contrary to Plaintiff’s contention (see Pl.
Br. at 21), the evidence does not support a finding that
Plaintiff was totally disabled and “unable to do any substantial
gainful activity.” 20 C.F.R. § 404.1527(a)(1). There was
overwhelming evidence to support the ALJ’s determination that
Plaintiff had the RFC to perform the full range of light work.
An individual’s RFC is an assessment of the most he can
still do, despite the limitations caused by his impairments. 20
C.F.R. §§ 404.1545(a), 416.945(a). “Light work” is defined as
work which involves “lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10
pounds,” and a “good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling
of arm or leg controls.” To be capable of performing the full
range of light work, a claimant must be able to do “do
substantially all of these activities.” 20 C.F.R. §§
404.1567(b), 416.967(b). The ALJ makes an RFC finding based on
all relevant evidence, including the medical records, medical
source opinions, and the individual’s subjective allegations and
descriptions of his own limitations. Chandler v. Comm’r of Soc.
Sec., 667 F.3d 356, 361 (3d Cir. 2011).
In the present case, the ALJ took all of this information
into account before determining the RFC. The ALJ credited

37

Plaintiffs’ statements of his symptoms based on the medically
determinable impairments where they were supported by the
objective record. In particular, the ALJ noted (1) the MRI
reports revealing multiple disc herniations and radiculopathy;
(2) the various treatments and medications administered by
Plaintiff’s doctors for pain; and (3) the minor abnormalities
and limitations noted by Plaintiff’s doctors, such as trigger
points, lumbar tenderness, and muscle spasms. However, the ALJ
also noted that neither the objective medical evidence nor
Plaintiff’s self-reported activities supported a finding that
Plaintiff had totally disabling impairments and limitations.
In particular, the ALJ noted that the physical examination
records showed mostly mild physical limitations. In addition to
the records from Dr. Kastenberg and Dr. Spagnoletti discussed
above, the ALJ considered records from Dr. Padula. (R. at 26.)
Like Plaintiff’s other doctors, Dr. Padula recommended against
surgical intervention, and his examination also revealed that
Plaintiff had normal gait and extremities, grossly intact
cranial nerves, normal straight leg raising, and no motor
weakness or atrophy, although he was tender to palpation with
flexion and extension of his lumbar spine. (R. at 320, 323, 331,
334-35, 337, 341.) Likewise, Dr. Lee observed that Plaintiff
exhibited “good” strength, grossly intact sensation, intact
cranial functions, normal and independent walking ability, and

38

no dysarthria, aphasia, or dysmetria. (R. at 308.)
There is also substantial evidence in the record that
Plaintiff felt significantly better after his IDET procedure in
December 2009. In counseling, approximately one month after his
procedure, Plaintiff noted that he was satisfied with the
procedure and effectiveness of the medications and expressed an
interest in returning to work. Plaintiff testified at his
hearing that his pain had improved at least 40 percent with
treatment. (R. at 41-42.) One year after his procedure, in late
2010, Plaintiff still reported that he was “doing well,”
expressing an interest in stopping pain medications and in
returning to work. In March of 2013, approximately four months
before his hearing before the ALJ, Plaintiff saw Dr. Kastenberg,
who noted that Plaintiff’s cervicalgia and back pain were
“resolved,” his depression “improved,” and he was “doing well”
with managing his anxiety. (R. at 467.)
Finally, the ALJ credited Plaintiff’s own statements
regarding the activities he was able to engage in, including
exercising, cycling, kayaking, and lifting weights. (R. at 5051, 308.) The ALJ also noted that Plaintiff returned to work as
a line serviceman for several months in 2012, a job which
required the performance of tasks far more strenuous than those

39

required by light exertional employment.8 Here, the ALJ credited
Plaintiff’s statement that he missed work due to his
impairments, but nevertheless noted that “[t]he fact that the
claimant would even attempt to do this work indicates that he
certainly believes that he is capable of at least light
exertional work on a regular and sustained basis.” (R. at 25.)
The ALJ further noted Plaintiff’s testimony that he would
probably be capable of working full-time, either as a bus driver
or at United Airlines doing customer service.9
The ALJ plainly reviewed all of the relevant evidence and
provided a clear explanation of the reasons for his

8

Specifically, Plaintiff testified to the following:
A. I worked all the way up until December [2012] – midDecember [as a ramp serviceman] until I was – I
recommended to go to [the employee assistance program]
or to save my job.
. . .
Q. Okay. And basically you’re good enough to go back and
do this job, is that correct [phonetic]?
A. Yeah.
Q. Do you think you can do it?
A. I feel good – better now, but lifting is still painful
and I – you know, I can only speculate that I would – I
have to give it a try.
(R. at 39.)
9 The Court has already noted Plaintiff’s various statements
indicating his ability to engage in daily household activities
and various hobbies without difficulty, and will not repeat them
here. The Court notes that the ALJ took these statements into
account, observing that Plaintiff’s self-reported activities
“further demonstrate that the claimant has been capable of
adequately performing the necessary tasks for light exertional
work, including but not limited to the necessary amount of
lifting, carrying, pushing, pulling, walking, standing, sitting,
climbing, crouching, stooping, and kneeling.” (R. at 25.)
40

determination that Plaintiff retained the RFC to perform a full
range of light work. See Jones v. Barnhart, 364 F.3d 501, 505
(3d Cir. 2004); Fargnoli, 247 F.3d at 41 (3d Cir. 2001). Based
on all of the above, the Court has no trouble concluding that
substantial evidence supports the ALJ’s RFC determination. See
Lane v. Comm’r of Soc. Sec., 100 F. App’x 90, 95-96 (3d Cir.
2004) (citation omitted) (finding that without medical evidence
on behalf of a claimant describing his or her work-related
functional limitations, the claimant “cannot establish
disability under the Social Security Act”).
E. The ALJ did not err in finding that there were a
significant number of alternate jobs that Plaintiff was
able to perform.
In step five, the ALJ considered whether Plaintiff
possessed the capacity to perform other work existing in
significant numbers in the national economy, given the
Plaintiff’s residual functional capacity, age, education, and
work experience. See 20 C.F.R. §§ 1520(g), 404.1560(c). The ALJ
evaluated the Medical-Vocational Guidelines (“Guidelines” or
“Grids”) set forth in 20 C.F.R. Part 404, Subpart P, Appendix 2,
and noted that, because Plaintiff possessed the RFC to perform
the full range of light work, the Guidelines directed a finding
of “not disabled.” (R. at 29.)
Citing Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000),
Plaintiff argues that the ALJ should not have relied exclusively

41

on the Medical-Vocational Guidelines to find that Plaintiff was
able to perform “other work.” (Pl. Br. at 23-26.) Plaintiff’s
argument, however, rests on the premise that the ALJ erred in
his RFC determination by failing to find nonexertional
impairments. For the reasons that follow, the Court finds the
ALJ’s reliance appropriate.
In order to determine whether jobs exists in the national
economy for a particular plaintiff, the ALJ examines the
Medical-Vocational Guidelines and considers a claimant’s age,
education, work experience, and residual functional capacity. If
the claimant has nonexertional limitations that limit the work
permitted by his exertional limitations, the Guidelines will not
accurately determine disability status. In these situations, the
ALJ cannot simply rely on the Medical-Vocational Guidelines to
make a finding; the ALJ must support his determination by
relying on vocational testimony or similar evidence to determine
the manner in which the claimant’s nonexertional impairments
affect his residual functional capacity. See Sykes v. Apfel, 228
F.3d 259, 273 (3d Cir. 2000); Hall v. Comm’r of Soc. Sec., 218
F. App’x. 212, 217 (3d Cir. 2007). If, however, the Plaintiff
exhibits “only exertional (i.e. strength) impairments, the ALJ
may properly rely in step five solely upon the Grids.” Padilla
v. Comm’r of Soc. Sec., No. 14-007, 2015 WL 1006262, at *12
(D.N.J. Mar. 6, 2015) (Simandle, J.) (internal quotations and

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citation omitted); see also Bapp v. Bowen, 802 F.2d 601, 605 (2d
Cir. 1986) (“If the guidelines adequately reflect a claimant’s
condition, then their use to determine disability status is
appropriate.”).
The Court has already examined at length why the ALJ’s RFC
determination was supported by substantial evidence, and need
not repeat the analysis here. Instead, the Court will rely on
its discussion in the preceding sections to hold that, for
purposes of the inquiry at step five, the ALJ properly
determined that Plaintiff could perform the full range of light
work with no additional nonexertional limitations.10
Plaintiff himself admits that the Third Circuit’s direction
to consider evidence beyond the Grids applies only if a
plaintiff exhibits nonexertional impairments. (Pl. Br. at 24

10

Specifically, in Part IV.B, the Court found that substantial
evidence supported the ALJ’s determination that Plaintiff’s mood
disorders did not constitute severe ailments. Having reviewed
the evidence cited in that section and by the ALJ (see R. at 1923), the Court finds that it does not “demonstrate the existence
of significant psychological limitations . . . inconsistent with
a full range of work at any level of exertion,” as Plaintiff
argues. (Pl. Br. at 25.) Likewise, in reviewing the explanation
in Parts IV.C & D for why the ALJ was correct in not crediting
Plaintiff’s statements regarding the limiting effects of his
pain, the Court finds that the evidence does not support
Plaintiff’s claim of “numerous postural limitations . . .
inconsistent with a full range of work at any level of
exertion.” (Id.) The evidence as a whole substantially supports
the ALJ’s finding, clearly explicated in the opinion, that
Plaintiff had the residual functional capacity for a full range
of light work, with no nonexertional limitations.
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(“‘The regulations do not purport to establish jobs that exist
in the national economy at the various functional levels when a
claimant has a nonexertional impairment’” (quoting Sykes, 228
F.3d at 269)).) Because the ALJ found that Plaintiff had only
the exertional limitation of light work, the ALJ was permitted
to rely only on the Grids to determine whether there are jobs in
the national economy for Plaintiff. See Jefferson v. Comm’r of
Soc. Sec., No. 13-5204, 2014 WL 4828225, at *9 (D.N.J. Sept. 29,
2014) (ALJ may rely solely on Medical-Vocational Guidelines
“[w]hen a plaintiff has purely exertional limitations”); Nieves
v. Comm’r of Soc. Sec., No. 12-5590, 2013 WL 3811645, at *4
(D.N.J. July 22, 2013) (citing Sykes, 228 F.3d at 269); EshSheikh v. Bowen, 1989 WL 281946, at *16 n.3 (D.N.J. Oct. 25,
1989).11
Having reviewed the Medical-Vocational Guidelines, the
Court also finds that the ALJ correctly applied the Guidelines
to Plaintiff. “Where a claimant’s qualifications correspond to
the job requirements identified by a rule, the guidelines direct

11

The Court also rejects Plaintiff’s objection to the ALJ’s
citation to SSR 85-15. (Pl. Br. at 25.) The ALJ cited several
Social Security Rulings (SSRs) in a standard paragraph that
merely described when and how the Medical-Vocational Guidelines
should be used. (R. at 29-30.) The citation to SSR 85-15 was
solely for the proposition that the Guidelines provide a
framework for decisionmaking “[i]f the claimant has solely
nonexertional limitations.” (R. at 30.) The ALJ did not actually
apply the rule to Plaintiff’s case since Plaintiff clearly did
not fall into that category.
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a conclusion as to whether work exists that the claimant could
perform.” Heckler v. Campbell, 461 U.S. 458, 462 (1983). The ALJ
correctly noted that Plaintiff could be considered a “younger
individual aged 18-49” because he was 45 years old on the
alleged disability onset date in 2009. Because Plaintiff had
turned 50 by the time the ALJ rendered his decision, Plaintiff
could also be considered an individual “closely approaching
advanced age,” encompassing individuals between the ages of 50
and 54. (R. at 29.) Furthermore, since Plaintiff had completed
one year of college, he would be considered a “high school
graduate or more.” (Id.) Based on Rules 202.14 and 202.21 of the
Guidelines, corresponding to younger individuals and individuals
closely approaching advanced age, respectively, the ALJ properly
concluded that Plaintiff was not disabled under either age
category. See 20 C.F.R. Part 404, Subpart P, App. 2, 202.14,
202.21.
The Court therefore finds that the ALJ’s use of the
Medical-Vocational Guidelines was not in error.
F. The ALJ did not err in failing to consider Plaintiff
disabled for a closed period of disability.
Error was also committed by the ALJ, according to
Plaintiff, because the ALJ failed to consider whether Plaintiff
was disabled for any closed 12-month period following the
alleged onset of disability. He notes that because the

45

definition of “disability” requires only that a claimant be
unable to engage in gainful work for a continuous period of 12
months, a claimant may be eligible for benefits “during a closed
period of disability if impairments prevented substantial
gainful activity for at least 12 continuous months and
disability ceased before the date of adjudication . . . .” (Pl.
Br. at 26 (citing POMS DI 25510.010).) He argues that Plaintiff
would have met these conditions had the ALJ considered a closed
period of disability.
The Court is not convinced that any error was committed by
the ALJ. First, there is no indication from the record that
Plaintiff ever took the position that his disability ceased
before the date of adjudication, and he was seeking a closed
period of disability. To the contrary, Plaintiff specifically
argued before the ALJ that he’s “been disabled since the alleged
onset date of June 2009” and was still disabled at the time of
the ALJ hearing on August 8, 2013. (R. at 36, 39, 41, 57-58.)
Voluminous medical records spanning more than four years were
also submitted before this Court, and Plaintiff has argued
throughout that his disability continues to this day. (See,
e.g., Pl. Br. 18-19.) Plaintiff contends that the ALJ failed to
consider a closed period of disability, but nothing suggests
that Plaintiff even requested such a determination. Cf. Nelson
v. Astrue, 32 Fed. App’x 195, 197 (3d Cir. 2009) (noting that

46

attorney had consulted with claimant and had authority to accept
a closed period of disability); Plaza v. Barnhart, 218 Fed.
App’x 204, 205 (3d Cir. 2007) (noting that claimant had amended
his claims before ALJ to request a closed period of disability).
Nor does the Court agree that the ALJ failed to consider
whether Plaintiff was disabled for any consecutive twelve-month
from the date of alleged onset of his disability. On the
contrary, the ALJ’s statements at the hearing and the ALJ’s
opinion show that the ALJ considered Plaintiff’s condition each
year and determined that Plaintiff was not disabled for any
sustained period of time between June 2009 and the September
2014. At the hearing, the ALJ asked Plaintiff to describe his
impairments year by year and paid close attention to the months
after the onset of alleged disability. For example, he asked
Plaintiff why he stopped working in 2009, whether there came a
time after June 2009 when he felt some gradual improvement, when
Plaintiff began physical therapy after his accident, and how
long Plaintiff could stand on his feet in 2009. (See R. at 42,
44, 46, 50.)
Additionally, contrary to Plaintiff’s contention, the ALJ’s
opinion specifically addressed the multitude of records dated
between 2009 and 2011. The ALJ pointed out that (1) medical
records showed Plaintiff reporting a stable mood, improved
sleep, and “minimal side effects” from pain medication as early

47

as September and October of 2009; (2) Plaintiff reported
improvement in his symptoms after his surgery in December 2009;
(3) Plaintiff reported in January 2010 that he was experiencing
increased mobility and reduction in physical pain, and reported
further improvements in mobility to Dr. Lee in November and
December of 2010; (4) MRI reports from 2008, 2009, 2010 all
reflected modest findings; (5) counseling records showed that
Plaintiff believed that he was able to return to his previous
job as early as January 2010; (6) Plaintiff began exercising and
cycling in November 2010; (7) Plaintiff joined the Air Patrol in
2011 to fly training missions; and (8) Plaintiff began kayaking
in the summer of 2011. (R. at 20, 21, 25, 26, 27, 28.)
Additionally, based on his own statements in the Function
Reports and his testimony before the ALJ, Plaintiff appeared to
have been independent and mobile throughout the relevant time
period, including in 2009 and 2010. Nothing in the record
suggests that Plaintiff was prevented from performing daily
activities and chores in the first two years after the alleged
onset of disability.
Based on the above, the Court finds no error in the ALJ’s
evaluation of the record evidence.
IV. CONCLUSION
The Court finds that substantial evidence supports the
ALJ’s determination that Plaintiff did not have a qualifying

48

disability under the Social Security Act. The Court,
accordingly, affirms the ALJ’s decision. An accompanying Order
will be entered.

March 31, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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