SIRAVO v. COMMISSIONER OF SOCIAL SECURITY
OPINION FILED. Signed by Judge Renee Marie Bumb on 4/4/17. (js)
[Docket No. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ANTHONY A. SIRAVO, JR.,
Civil No. 15-2836 (RMB)
COMMISSIONER OF SOCIAL
Anthony A. Siravo, Jr.
Pro Se Plaintiff
Antonia Maria Pfeffer, Esq.
Social Security Administration
Office of the General Counsel
300 Spring Garden Street, 6th Floor
Philadelphia, PA 19123
Attorney for Defendant Commissioner of Social Security
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the appeal by
pro se Plaintiff Anthony A. Siravo, Jr. (the “Plaintiff”) of the
final determination of the Commissioner of Social Security (the
“Commissioner”) denying Plaintiff’s application for social
security benefits for the period January 10, 2012 through
October 22, 2012 [Docket No. 1].
For the reasons set forth
below, the Court AFFIRMS the decision of the Administrative Law
Judge (the “ALJ”).
STANDARD OF REVIEW
A reviewing court must uphold the Commissioner’s factual
findings if they are supported by “substantial evidence,” even
if the court “would have decided the inquiry differently.”
Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001); Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000); see also 42 U.S.C.
§§ 405(g), 1383(c)(3).
“‘Substantial evidence’ has been defined
as ‘more than a mere scintilla.
It means such relevant evidence
as a reasonable mind might accept as adequate to support a
Dellapolla v. Comm’r of Soc. Sec., 662 F. App’x
158, 160 (3d Cir. 2016) (quoting Smith v. Califano, 637 F.2d
968, 970 (3d Cir. 1981) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971))).
Where the evidence is susceptible to “more
than one rational interpretation, the Commissioner’s conclusion
must be upheld.”
Ahearn v. Comm’r of Soc. Sec., 165 F. App’x
212, 215 (3d Cir. 2006) (citing Monsour Med. Ctr. v. Heckler,
806 F.2d 1185, 1190-91 (3d Cir. 1986)); see also New Jersey Bd.
of Pub. Utilities v. F.E.R.C., 744 F.3d 74, 94 (3d Cir. 2014).
In addition to the “substantial evidence” inquiry, the
reviewing court must also determine whether the ALJ applied the
correct legal standards.
See Mitton v. Comm’r of Soc. Sec.,
--- F. App’x ----, 2016 WL 6933937, at *1 (3d Cir. Nov. 28,
2016); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
Court’s review of legal issues is plenary.
Mitton, 2016 WL
6933937, at *1 (citing Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 292 (3d Cir. 2012)); Sykes, 228 F.3d at 262 (citing
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir.
The Social Security Act defines “disability” as the
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.”
42 U.S.C. § 1382c(a)(3)(A).
further states that:
[A]n individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in
the national economy, regardless of whether such work
exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has promulgated a five-step, sequential
analysis for evaluating a claimant’s disability, as outlined in
20 C.F.R. § 404.1520(a)(4)(i)-(v).
The Third Circuit has
described the Commissioner’s inquiry at each step of this
analysis, as follows:
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § 404.1520(a). If a claimant is
found to be engaged in substantial activity, the
disability claim will be denied.
Bowen v. Yuckert,
482 U.S. 137, 140 (1987).
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment.
20 C.F.R. § 404.1520(c). If the claimant fails to show
that his impairments are “severe,” he is ineligible for
In step three, the Commissioner compares the medical
evidence of the claimant’s impairment to a list of
impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four and
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
The claimant bears the burden of
demonstrating an inability to return to his past
Adorno v. Shalala, 40 F.3d 43, 46
(3d Cir. 1994). If the claimant is unable to resume his
former occupation, the evaluation moves to the final
At this [fifth] stage, the burden of production shifts
to the Commissioner, who must demonstrate the claimant
is capable of performing other available work in order
to deny a claim of disability. 20 C.F.R. § 404.1520(f).
The ALJ must show there are other jobs existing in
significant numbers in the national economy which the
claimant can perform, consistent with his medical
impairments, age, education, past work experience, and
residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant’s impairments in
determining whether he is capable of performing work and
is not disabled.
See 20 C.F.R. § 404.1523.
will often seek the assistance of a vocational expert at
this fifth step.
See Podedworny v. Harris, 745 F.2d
210, 218 (3d Cir. 1984).
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
FACTUAL AND PROCEDURAL BACKGROUND
The Court recites only the facts that are necessary to its
determination on appeal.
A. Medical History
On June 15, 2010, Plaintiff underwent an MRI of his right
Dr. Allan Cummings, a board certified radiologist,
observed “a nearly complete tear of the distal supraspinatus
just proximal to its insertion onto the greater tuberosity, a
significant worsening in its appearance when compared to the
previous study of 4/07.
The remainder of the rotator cuff
On March 25, 2011, Plaintiff was examined by Dr. Matthew
Dr. Pepe noted that “Examination of his shoulder
demonstrates full motion.
Tenderness over the biceps and
Positive impingement signs.
Negative SLAP maneuvers.
sensory examination is intact.”
Skin is intact.
Dr. Pepe reviewed an MRI of
Plaintiff’s shoulder, which “demonstrate[d] a full-thickness
1 cm anterior supraspinatus tear, no retraction, no atrophy,
type II acromion, and AC arthropathy.”
Dr. Pepe diagnosed
Plaintiff with a right shoulder chronic full-thickness rotator
cuff tear and administered a platelet rich plasma injection.
noted that Plaintiff “tolerated the injection well” and “will
rest for one week and begin a gentle stretching and
Plaintiff underwent an MRI of his right shoulder on July
Dr. Cummings observed “a small, partial tear of the
distal supraspinatus,” which “represents a substantial
improvement when compared to the previous exam, where the distal
supraspinatus was nearly completely torn.”
Dr. Cummings also
noted “a probable small loose body in the posterosuperior aspect
of the glenohumeral space, which was not seen on the prior
On August 19, 2011, Daniel J. Colache, Plaintiff’s
chiropractor, completed an Examination Report.
He noted that
Plaintiff was diagnosed with a rotator cuff tear with shoulder
instability on right, with an onset date of 2008.
Dr. David Lunt also completed an Examination Report on
December 19, 2011.
He noted that Plaintiff’s primary diagnosis
is right shoulder torn rotator cuff.
He also wrote: “disabled”.
On or around March 1, 2012, Mr. Colache, in response to a
request for medical records regarding Plaintiff, wrote to the
Social Security claims adjudicator: “I have not treated in over
a year sorry cannot fill out paperwork.”
On April 4, 2012, Dr. Mark Jacknin, a State agency medical
consultant, reviewed Plaintiff’s medical records and noted that
Plaintiff’s June 15, 2010 MRI showed a nearly complete tear of
the distal supraspinatus.
The July 2011 MRI, however,
demonstrated “substantial improvement of the appearance of the
supraspinatus since prior study, w a small partial tear seen
distally in ant. supraspinatus @ current time as opposed to the
nearly complete tear of the distal supraspinatus noted prev.”
Dr. Jacknin also observed “a probable small loose body in the
posteriosuperior aspect of glenohum space, which wasn’t seen on
On April 17, 2012, Plaintiff underwent an MRI of his right
Dr. Cummings observed “once again . . . a small tear
involving the distal supraspinatus, stable since the previous
Dr. Cummings reported that “there is little overall
change since the prior study of 7/11 with a small tear of the
distal supraspinatus noted and unchanged between studies.”
did not see the loose body noted in the July 2011 MRI and noted
that it “has resolved or been removed between studies.”
On June 11, 2012, Dr. Jacknin also reviewed Plaintiff’s
April 17, 2012 MRI and observed “little overall changes since
prior study of 7/11 w a small tear of the distal supraspinatus
noted & unchanged between studies.”
He also noted that “current
MRI shoulder showing improvement including tear is ‘small’ and
prior small loose body has resolved.”
Dr. Lunt completed a second Examination Report on June 19,
2012, in which he indicated that the date of onset of
Plaintiff’s right shoulder torn rotator cuff was 2010.
He opined that Plaintiff is “unable to work.”
Dr. Lunt also
noted that “MRI shows significant damage to right rotator cuff
indicating a nearly complete tear of the distal supraspinatus.
With his current insurance it’s extremely difficult to obtain
the needed surgical repairs.”
On March 10, 2014, Plaintiff was examined by Dr. Lunt for
reevaluation of his rotator cuff tear.
The following week, on
March 17, 2014, Plaintiff underwent an MRI of his right
shoulder, which Dr. Lunt opined showed “a superimposed full
thickened tear of the distal supraspinatus measuring 2.8 x 2.5
Dr. Lunt also noted that “the groove for the long head
biceps tendon is shallow and the tendon is very poorly seen
which is consistent with a history of chronic biceps tear.”
Dr. Michael Dutka, a radiologist, also examined the
March 2014 MRI and noted moderate rotator cuff tendonosis and
bursitis, superimposed full-thickness distal supraspinatus tear
measuring 2.8 x 2.5 cm, and mild-to-moderate AC osteoarthritis
with spurring and subacromial spur.
Dr. Dutka also opined that
the “supraspinatus tear has enlarged” in comparison to previous
On May 27, 2014, Dr. Pepe submitted a letter “as an appeal
of [Plaintiff’s] disability decision.”
Dr. Pepe explained that
the platelet rich plasma injection into the rotator cuff tear
“was intended as a stopgap measure to help stabilize the rotator
cuff tear and prevent further progression.”
He noted that
Plaintiff’s July 2011 MRI showed improvement of the tear, but
explained that a March 2014 MRI demonstrated that the tear had
worsened into a “large tear, which necessitates repair.”
B. Function Report
On February 29, 2012, Plaintiff completed a Function Report
regarding his activities of daily living.
He noted that he
suffers from pain, inflammation, throbbing, and burning that
affect his sleep.
He also reported that he is able to
do light household chores and cooking, but that he must use his
non-dominant side due to his right shoulder injury.
Plaintiff indicated that his condition affects his ability to
Plaintiff also reported that he wears an arm
sling once in a while when his arm becomes fatigued or his pain
When asked if the sling was prescribed by a doctor,
Plaintiff noted “only by suggestion.”
explained that he “was instructed to do a rehab program such as
light stretching with bands, or weights to keep the joints from
freezing up or clotting.
be pre surgery + post.”
Reference doctor’s report.
C. Consultative Examination
Plaintiff underwent a consultative examination with
Dr. Ronald Bagner on May 22, 2012.
Plaintiff reported pain in
his right shoulder which disrupts his sleep and that he cannot
do any pushing, pulling, or lifting.
Dr. Bagner observed that
Plaintiff “ambulates without difficulty, gets on and off the
examining table without difficulty, dressed and undressed
He also noted that “there is pain on
movement of the right shoulder” and that “the right shoulder
shows 0-90 degrees forward elevation, 0-90 degrees abduction,
internal rotation is 0-50 degrees, and normal external
Dr. Bagner’s impression was “tear distal right
D. Application for Social Security Benefits
On or about January 10, 2012, Plaintiff filed applications
for Social Security disability insurance benefits (“DIB”) and
supplemental security income (“SSI”), alleging an onset date of
January 10, 2012.
on or about June 27, 2012.
The claims were denied initially
On October 23, 2012,
upon reconsideration, the Social Security Administration found
that Plaintiff was disabled as of October 23, 2012, but not as
of his alleged onset date.
Thereafter, on March 20,
2013, Plaintiff requested a hearing before an ALJ.
On December 3, 2013, ALJ Jonathan L. Wesner held a hearing,
at which Plaintiff appeared without an attorney, and provided
Plaintiff’s friend Ilene also attended and
interacted with the ALJ.
Additionally, William T. Slaven, III,
an impartial vocational expert, provided testimony.
Mr. Slaven testified that, due to Plaintiff’s overhead reaching
limitations, he would be limited to a partial range of light
Additionally, he testified that Plaintiff could
perform 60-70% of jobs in the light range and that, even if
Plaintiff completely avoided overhead reaching, Plaintiff could
still perform “300, 400 of the 1,600 light titles Social
Thereafter, on February 25, 2014,
the ALJ issued an unfavorable decision.
18, 2015, the Appeals Council denied Plaintiff’s request for
review of the ALJ’s decision, making the ALJ’s decision the
final determination of the Commissioner.
THE ALJ’S DETERMINATION
On February 25, 2014, the ALJ concluded that Plaintiff was
not disabled under the Social Security Act from his alleged
onset date, January 10, 2012, through October 22, 2012, the day
before he was found disabled by the Social Security
Administration on reconsideration.
At Step One, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity since his alleged onset
date of January 10, 2012.
At Step Two, the ALJ
determined that Plaintiff suffered from the following severe
impairment: right shoulder rotator cuff tear.
Three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.
In making this determination, the ALJ
specifically reviewed Listing 1.02.
Before turning to Step Four, the ALJ assessed Plaintiff’s
Residual Functional Capacity (“RFC”).
The ALJ determined that
Plaintiff had the RFC “to perform light work as defined in 20
CFR 404.1567(b) except overhead reaching with the right upper
extremity is limited to occasionally.”
The ALJ did not make a determination at Step Four and
instead proceeded directly to Step Five, utilizing the expedited
process outlined in 20 C.F.R. § 404.1520(h), which states, in
If we do not find you disabled at the third step, and we
do not have sufficient evidence about your past relevant
work to make a finding at the fourth step, we may proceed
to the fifth step of the sequential evaluation process.
If we find that you can adjust to other work based solely
on your age, education, and the same residual functional
capacity assessment we made under paragraph (e) of this
section, we will find that you are not disabled and will
not make a finding about whether you can do your past
relevant work at the fourth step.
20 C.F.R. § 404.1520(h).
Finally, at Step Five, the ALJ concluded that Plaintiff was
not disabled because there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform.
The ALJ relied upon Medical Vocational Rule 202.14,
20 C.F.R. Part 404, Subpart P, Appendix 2, as a framework.
ALJ reasoned as follows:
In determining whether a successful adjustment to other
work can be made, I must consider the claimant’s residual
functional capacity, age, education, and work experience
in conjunction with the Medical-Vocational Guidelines,
20 CFR Part 404, Subpart P, Appendix 2. If the claimant
can perform all or substantially all of the exertional
medical-vocational rules direct a conclusion of either
“disabled” or “not disabled” depending upon the
claimant’s specific vocational profile (SSR 83-11).
When the claimant cannot perform substantially all of
the exertional demands of work at a given level of
exertion and/or has nonexertional limitations, the
medical-vocational rules are used as a framework for
decisionmaking unless there is a rule that directs a
conclusion of “disabled” without considering the
additional exertional and/or nonexertional limitations
(SSRs 83-12 and 83-14).
If the claimant has solely
nonexertional limitations, section 204.00 in the
Medical-Vocational Guidelines provides a framework for
decisionmaking (SSR 85-15).
If the claimant had the residual functional capacity to
perform the full range of light work, considering the
claimant’s age, education, and work experience, a
finding of “not disabled” would be directed by
Medical-Vocational Rule 202.14. However, the additional
limitations have little or no effect on the occupational
base of unskilled light work.
A finding of “not
disabled” is therefore appropriate under the framework
of this rule for the period from January 10, 2012 through
October 22, 2012.
The Court has labored over each of Plaintiff’s several
letters and submissions in order to identify and articulate the
legal arguments upon which Plaintiff grounds his appeal.
Although it is unclear from Plaintiff’s submissions, the Court
understands him to be challenging the ALJ’s determination based
upon alleged bias.
Plaintiff also appears to take issue with
the determination of the ALJ and the vocational expert that jobs
exist in the national economy that he can perform because he has
been unable to secure a job over the past several years, despite
his diligence in applying.
Pl. Mar. 3, 2017 Letter [Docket
Finally, Plaintiff claims that he was injured in 2008,
rather than on his alleged onset date of January 10, 2012, and
appears to argue that, as a result, he is entitled to social
security benefits prior to his alleged onset date.
A. Alleged Bias
Individuals claiming disability benefits have a right to a
full and fair hearing.
Ventura v. Shalala, 55 F.3d 900, 902
(3d Cir. 1995) (citing Richardson, 402 U.S. at 400-01).
“Essential to a fair hearing is the right to an unbiased judge.
The due process requirement of an impartial decisionmaker is
applied more strictly in administrative proceedings than in
court proceedings because of the absence of procedural
safeguards normally available in judicial proceedings.”
(internal citations omitted) (citing Hummel v. Heckler, 736 F.2d
91, 93 (3d Cir. 1984)).
“The right to an unbiased ALJ is
particularly important because of the active role played by ALJs
in social security cases.”
A claimant’s right to a full
and fair hearing “is violated where a claimant is deprived of
the opportunity to present evidence to an ALJ in support of his
or her claim, or where the ALJ exhibits bias or animus against
Bordes v. Comm’r of Soc. Sec., 235 F. App’x 853,
857-58 (3d Cir. 2007) (citing Ventura, 55 F.3d at 902-03).
Plaintiff contends that his applications “were declined for
Pl. Oct. 29, 2016 Letter [Docket No. 24]
(emphasis in original).
Plaintiff does not specify the basis
for his allegations of bias.
The Court has reviewed Plaintiff’s
correspondence with the Court and identified the following
possible bases for Plaintiff’s allegations of bias.
First, Plaintiff contends, in essence, that all ALJs are
He states: “Even the SSD/SSA denial letter said this
judge may have abused his power.
A survey and research says
that only 2% to 3% of an (ALJ) judges [sic] will grant a case.
Yes, they are BIAS and try to always deny cases for there [sic]
Pl. Mar. 3, 2017 Letter [Docket No. 32]
(emphasis in original).
Plaintiff, however, has pointed to no
evidence in the record to support his claim of systemic bias,
let alone of bias on the part of ALJ Wesner in particular.
Valenti v. Comm’r of Soc. Sec., 373 F. App’x 255, 258 (3d Cir.
2010) (rejecting claimant’s argument that ALJ was biased in her
case based upon examples of other cases in which courts held
that the same ALJ erred in his analysis of the evidence);
Santini v. Comm’r of Soc. Sec., 413 F. App’x 517, 520 (3d Cir.
2011) (“While we recognize that certain district courts in this
Circuit have questioned [ALJ’s] objectivity in other
circumstances, [claimant] fails to point to any specific
evidence of bias here.”).
Additionally, Plaintiff contends that the ALJ “in my
opinion was somewhat biased, rude, and [condescending].”
Apr. 14, 2015 Letter [Docket No. 7].
He further claims that
“[d]uring the questioning by the [ALJ] you will clearly hear in
the transcript every time he ask[ed] me a question I was never
allow[ed] enough time to fully give my comments or statement, he
constantly and rudely interrupted me and would rush to another
question and repeat the same tactics that was very annoying and
Pl. Apr. 27, 2015 Letter [Docket No. 2].
Plaintiff also indicated that he was insulted by the ALJ’s
question as to whether Plaintiff and his friend Ilene, who
accompanied Plaintiff to the hearing, lived together.
Finally, Plaintiff complains that the ALJ took personal calls
from family members during the hearing and was “(undermining me)
rude, impolite, arrogant, interrupting me.”
Id.; Pl. Mar. 3,
2017 Letter [Docket No. 32].1
The Court has reviewed the transcript of Plaintiff’s
hearing before the ALJ.
Although the Court cannot
assess the ALJ’s demeanor or tone based upon the written
transcript alone, the transcript suggests that, at times, the
ALJ was frustrated and impatient with Plaintiff.
however, finds no fault in the ALJ’s conduct.
Nothing in the
record indicates that Plaintiff was deprived of the opportunity
to present evidence to the ALJ or that the ALJ exhibited bias
Plaintiff also complains of “all the ‘subtle’ collusion
that was going on with there [sic] in-house office staff and
protocols done against my constitutional rights.” Mar. 3, 2017
Letter [Docket No. 32]. He further states:
This was done in violation of my constitution rights
[sic], when refusing to get zapped with cancer causing
I was told to come back a second time by
there [sic] doctor to get x-rays (slight threaten) or I
would not receive my benefits, when in fact, That day of
my appoiment [sic] I had present all of my updated MRI
reports, film, cds, paper work, at which there [sic]
state doctor (he) did NOT (refused) to look at then when
I ask him to He side stepped that one.
radiologist said I was under no obligation to take them,
but said, Quote: she could lose her job, if she did not
do what she was told.
Id. There is nothing in the record before this Court that
substantiates Plaintiff’s claims of collusion or threats. Even
if the state agency doctors acted improperly or unprofessionally
towards Plaintiff, there is no evidence to suggest that the ALJ
was biased by any such misconduct on the part of those doctors.
Wanko v. Barnhart, 91 F. App’x 771, 774 (3d Cir. 2004).
against Plaintiff, such that Plaintiff was deprived of his right
to a full and fair hearing.
For example, the hearing lasted over one hour and the ALJ
permitted Plaintiff to speak at length about his alleged
condition, his past work history, and his medical records.
Plaintiff made clear that no other records exist other than
those already in the ALJ’s possession.
The ALJ nevertheless
expressed his commitment to further developing the factual
record by obtaining additional medical records from Plaintiff’s
doctors, to the extent those records existed.
ALJ repeatedly explained the benefits of obtaining counsel to
To the extent the ALJ was terse or frustrated with
Plaintiff, however, such behavior did not evince such bias that
would warrant a new hearing.
See Fraser v. Astrue, 373 F. App’x
222, 225 (3d Cir. 2010) (rejecting argument that ALJ was biased
because “[e]ven assuming, however, that the ALJ was rather
brusque, there is no indication that there was any conflict of
interest or inability to render a fair judgment.”); Ventura,
55 F.3d at 903 (granting new hearing where “ALJ’s questioning of
the claimant was coercive and intimidating, and totally
irrelevant to the question of whether claimant was disabled” and
ALJ “continuous[ly] interfere[d] with the representative’s
introduction of evidence”).
Indeed, the Supreme Court has held
that “not establishing bias or partiality, however, are
expressions of impatience, dissatisfaction, annoyance, and even
anger, that are within the bounds of what imperfect men and
women, even after being confirmed as federal judges, sometimes
A judge’s ordinary efforts at courtroom
administration--even a stern and short-tempered judge’s ordinary
efforts at courtroom administration--remain immune.”
United States, 510 U.S. 540, 555-56 (1994).
Based upon the
record before it, the Court finds no evidence of bias, coercive,
or intimidating conduct on the part of the ALJ or that Plaintiff
was denied the opportunity to present evidence to the ALJ.2
B. Vocational Expert Testimony
Next, Plaintiff appears to challenge the ALJ’s reliance on
the vocational expert’s testimony and, thus, the ALJ’s
The Court notes that Plaintiff believes that the ALJ
insulted his friend by asking whether she and Plaintiff lived
together. The ALJ, however, did not press the issue or make any
commentary on this point that suggests bias, partiality, or
hostility. Rimel v. Astrue, 521 F. App’x 57, 60 (3d Cir. 2013)
(“Such questions, while of a very personal nature, do not
reflect any bias by the ALJ and did not impede the ALJ’s
responsibility to help [Plaintiff] develop a full and fair
factual record.”). Likewise, Plaintiff’s complaints that the
ALJ took personal calls from his wife and daughter during the
hearing do not establish that the ALJ was biased or interfered
with Plaintiff’s ability to present evidence. In fact, prior to
the second phone call, the ALJ apologized for the interruption
and, after the call concluded, the ALJ explained that he needed
to coordinate with his wife because his mother had just been
discharged from the hospital. R. 96-97. The ALJ then asked
Plaintiff: “Are you done? I want to make sure you said
everything you wanted to say.” R. 97.
conclusion that there are jobs that exist in the national
economy that Plaintiff can perform even with his limitations.
At Step Five, the ALJ must evaluate the claimant’s ability to
adjust to other work through consideration of Plaintiff’s RFC
and “the vocational factors of age, education, and work
20 C.F.R. § 416.960(c)(1).
This other work must
exist in significant numbers in the national economy.
C.F.R. § 416.966(a).
In making this evaluation, the regulations
permit the ALJ to rely upon the Medical-Vocational Guidelines,
which “establish, for exertional impairments only, that jobs
exist in the national economy that people with those impairments
Schmidt v. Comm’r of Soc. Sec., 2013 WL 6188442,
at *10 n. 2 (D.N.J. Nov. 25, 2013); 20 C.F.R. Part 404,
Subpart P, Appendix 2, § 200.00(b).
“Where a claimant’s
qualifications correspond to the job requirements identified by
a rule, the guidelines direct a conclusion that work exists that
the claimant can perform.”
Sykes, 228 F.3d at 263.
Plaintiff cannot perform the full range of light work, the ALJ
properly obtained testimony from a vocational expert, Mr.
See 20 C.F.R. § 404.1566(e); Sykes, 228 F.3d at 273.
Mr. Slaven testified that an individual who cannot reach
overhead, with Plaintiff’s age, education, and work experience,
could perform a partial range of light work, including 300 to
400 of the titles recognized by the Social Security
Administration as light work titles, including bench work jobs.
Plaintiff attacks the ability of the Commissioner to rely
upon such data concerning the numbers of available positions, in
light of his own experience and difficulty in securing a job.
Plaintiff argues that:
They came up with theses [sic] fictitious and fatuous
numbers about job avai[l]able and yet in a clasped [sic]
economy, even if that were the case, do they think
becoming avai[l]able to look for a light duty job that
the doors will open wide with big arms, and say, sure,
we have a job waiting just for you. No, that’s because
they’ve never been in the REAL work force today to see
how tough it is not only to get a full time job (hired)
but find an employer that will accept PT disability
. . .
I would also challenge the [defendant] where did they
get theses [sic] so called reports? What are the hiring
ratios on those numbers geography? (USA) and can they
find me a PT light duty job that will cover a sustainable
income to support my monthly large expenses and debts
ratios? I’ve been doing my due diligence for the past
five years with-in [sic] my capabilities, and it’s not
out here. Besides, after an employer reviews my resume
it’s always the same thing. I get turned down for being
over qualified or there not hiring part time disabled
people. Does the defendant know I live in one of the
highest repressed areas in the country right now? That
are unemployed, or on SSD/SSI/assistance programs and
(Food Stamps) (South Jersey).
Pl. Mar. 3, 2017 Letter [Docket No. 32].
While Plaintiff’s predicament is unfortunate, the Court
nonetheless rejects this argument outright as it is contrary to
the regulations and case law, which have long recognized that an
ALJ may appropriately rely upon the testimony of a vocational
expert while utilizing the Medical-Vocational Guidelines as a
Santise v. Schweiker, 676 F.2d 925, 927-28 (3d Cir.
1982); see also SSR 83-12 (“The adjudicator will consider the
extent of any erosion of the occupational base and access its
significance. . . . Where the extent of erosion of the
occupational base is not clear, the adjudicator will need to
consult a vocational resource.”).
Moreover, the regulations
permit the use of “job information available from various
governmental and other publications,” including, for example,
the Dictionary of Occupational Titles, published by the
Department of Labor.
20 C.F.R. § 416.966(d); SSR 00-4p.
However, contrary to Plaintiff’s contention, whether Plaintiff
can actually obtain a job is irrelevant for purposes of this
Rather, the relevant inquiry is whether jobs exist in
the national economy that Plaintiff can perform “regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.”
§ 1382c(a)(3)(B) (emphasis added); 20 C.F.R. § 416.966(a) (“It
does not matter whether--(1) Work exists in the immediate area
in which you live; (2) A specific job vacancy exists for you; or
(3) You would be hired if you applied for work.”).
C. Entitlement to Social Security Benefits Prior to
The only issue before the ALJ was whether Plaintiff was
disabled from his alleged onset date, January 10, 2012, through
October 22, 2012, the day before he was found disabled by the
Social Security Administration upon reconsideration.
Plaintiff now appears to contend that he was originally injured
in 2008 and that he is, therefore, entitled to benefits for at
least two years prior to his alleged onset date.
2016 Letter [Docket No. 24].
Pl. Oct. 29,
Plaintiff writes: “In conclusion I
would like to exercise my onset rule considering the pre
application two year injurie[s] dates 2009 to 2012 for pain and
suffering at your discretion.”
Finally, Plaintiff seems to
argue that he is entitled to disability benefits for two years
prior to his application date because his “protective filing
date” was in 2008.
Specifically, Plaintiff contends:
Protective filing date pre injuries/disability 2008
then- 2010-2012 approved late 2012 (this was stated
by SSD/SSA own admission.
(A live call was placed by me to confirm this rule)
Nine moths waiting time before approval.
In almost every case where a claimant is awarded
Social Security benefits based on disability, past
due disability benefits, or disability “back pay” will
also be received, back to when the disability
application was filed, or sometimes even earlier. The
reason for this is plain: Social Security disability
claims take a long time to process. If the claims
examiner or judge determines that the onset date is
17 months prior to the application date, or more, the
claimant should be entitled to the entire 12 months
of retroactive benefits prior to the date of the
An applicant may potentially receive benefits back to
the first of month after which he or she filed the
disability application. Alternatively, if you have a
“protective filing date” that’s earlier than the date
you filed your disability application, you can get
disability benefits going back to that date as if it
were your application date.
Pl. Mar. 3, 2017 Letter [Docket No. 32] (underlining and bullets
As a preliminary matter, the Court notes that Plaintiff’s
unsupported statement that he was disabled as of 2008 is of no
Regardless of whether Plaintiff now claims he was
disabled as of 2008, Plaintiff protectively applied for DIB and
SSI on January 10, 2012, alleging an onset date of January 10,
R. 256-71, 279.
A claimant does not become eligible to receive SSI benefits
until the claimant has applied for SSI benefits and is found to
20 C.F.R. § 416.202.
Moreover, once a claimant
meets all other eligibility requirements for SSI, “the earliest
month for which [the Social Security Administration] can pay
[the claimant] benefits is the month following the month [the
claimant] filed the application.”
20 C.F.R. § 416.501.
20 C.F.R. § 416.335; see also
Thus, a claimant cannot receive SSI
payments retroactively for time prior to his application for SSI
benefits regardless of when he is deemed disabled.
DIB, on the
other hand, may be paid retroactively, but only “for up to 12
months immediately before the month in which [the claimant’s]
application is filed.”
20 C.F.R § 404.621(a)(1).
Critically, however, a claimant does not become eligible to
receive either DIB or SSI until he becomes disabled.
U.S.C. § 423(a) (“Every individual who--”, among other criteria,
“is under a disability . . . shall be entitled to a disability
insurance benefit . . . .”); 42 U.S.C. 1382(a) (defining
“eligible individual” for SSI purposes as “each aged, blind, or
disabled individual,” who meets certain other criteria).
other words, as a matter of law, Plaintiff was not eligible to
receive DIB or SSI until he became disabled.
Court must first consider whether the ALJ’s determination that
Plaintiff was not disabled from January 10, 2012 through October
22, 2012 is supported by substantial evidence.
Plaintiff’s medical records are not particularly
The records regarding Plaintiff’s rotator cuff tear
during the relevant period include documentation from Dr. Pepe,
Dr. Lunt, consultative examiner Dr. Bagner, and state agency
examiner Dr. Jacknin.
The record also includes the MRI reports
by Dr. Cummings regarding Plaintiff’s June 2010, July 2011, and
April 2012 MRIs.
The ALJ addressed each of the medical records
in his decision and noted the weight given to the various
The ALJ incorporated the medical opinions
into his findings as he deemed appropriate and developed
Plaintiff’s RFC based upon the credible medical evidence and
Plaintiff’s reports of his limitations and activities of daily
Based upon the record, the Court finds that the
ALJ fulfilled his obligation to consider all pertinent medical
and non-medical evidence and “explain [any] conciliations and
Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 122
(3d Cir. 2000).
Moreover, as the Court explained in further detail above,
see supra Section IV.B., the ALJ’s determination at Step Five of
the sequential analysis is also supported by substantial
evidence and should not be disturbed.
To carry his burden at
Step Five, the ALJ may utilize the Medical-Vocational Guidelines
set forth in 20 C.F.R. Part 404, Subpart P, Appendix 2.
Third Circuit has explained, “[t]he grids [in the
The ALJ did not specifically address the August 2011
Examination Report submitted by Mr. Colache, Plaintiff’s
chiropractor. The Court, however, sees no error in this
omission. First, a chiropractor is not an “acceptable medical
source” for purposes of the ALJ’s analysis. Hartranft v. Apfel,
181 F.3d 358, 361 (3d Cir. 1999) (citing 20 C.F.R. § 416.913).
Additionally, the entire substance of Mr. Colache’s report was
that Plaintiff had a “rotator cuff tear w/ shoulder instability
on right” as of 2008. R. 373. No treatment notes were provided
to the ALJ or this Court from Mr. Colache. In fact, the record
indicates that Mr. Colache returned a request for medical
records on or about March 1, 2012 and explained that “I have not
treated [Plaintiff] in over a year sorry cannot fill out
paperwork.” R. 376.
Medical-Vocational Guidelines] consist of a matrix of four
factors--physical ability, age, education, and work experience-and set forth rules that identify whether jobs requiring
specific combinations of these factors exist in significant
numbers in the national economy.”
Sykes, 228 F.3d at 263.
“Where a claimant’s qualifications correspond to the job
requirements identified by a rule, the guidelines direct a
conclusion that work exists that the claimant can perform.”
If, however, a claimant cannot perform substantially all of the
exertional demands of work at a given level of exertion or has
both exertional and non-exertional impairments, the ALJ may use
the Medical-Vocational Guidelines as a framework, but must
determine whether the additional limitations significantly erode
the occupational base through, for example, the testimony of a
See SSR 83-12; Sykes, 228 F.3d at 273.
Here, the vocational expert testified that there are jobs
that exist in significant numbers in the national economy that
someone with Plaintiff’s age, education, and work experience,
and who was limited to no overhead reaching could perform.
In his decision, the ALJ utilized the Medical-Vocational
Guidelines as a framework for his disability determination and,
in light of the vocational expert’s testimony at the hearing,
determined that Plaintiff was not disabled because there were
jobs that existed in significant numbers in the national economy
that Plaintiff could perform despite his limitation to only
occasional overhead reaching.4
disturb this finding.
The Court sees no reason to
Accordingly, for the foregoing reasons,
the Court finds that the ALJ’s determination that Plaintiff was
not disabled from January 10, 2012 through October 22, 2012 is
supported by substantial evidence.
As a result of the ALJ’s determination, Plaintiff did not
become eligible for DIB or SSI until he was found to be disabled
by the Social Security Administration on reconsideration as of
October 23, 2012.
Plaintiff has not established that he should
have been found disabled as of some date prior to October 23,
Therefore, contrary to Plaintiff’s contentions,
Plaintiff’s eligibility for benefits began on October 23, 2012,
the date he became disabled, and no earlier.
20 C.F.R. § 416.202 (“You are eligible for SSI benefits if you
The ALJ found that Plaintiff was not disabled at Step
Five, reasoning that Plaintiff’s limitation to only occasional
overhead reaching had “little or no effect on the occupational
base of unskilled light work.” R. 41. The ALJ did not,
however, specifically state in his opinion how he arrived at
this conclusion. To the extent this may constitute error, the
Court finds it to be harmless error given the vocational
expert’s testimony that there are jobs that exist in significant
numbers that someone with Plaintiff’s profile could perform
while completely avoiding overhead reaching. Remand for the
sole purpose of having the ALJ explicitly identify the
vocational expert as support for this finding is unnecessary.
See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)
(holding that “remand is not required [where] it would not
affect the outcome of the case.”).
meet all of the following requirements: . . . (a) You are -(3) Disabled. . . . (g) You file an application for SSI
benefits.”); 20 C.F.R. § 416.501 (“Payment of SSI benefits will
be made for the month after the month of initial eligibility and
for each subsequent month provided all requirements for
eligibility and payment are met.”) (internal citations omitted);
20 C.F.R. § 404.315(a) (“You are entitled to disability benefits
. . . if . . . (2) You apply; (3) You have a disability, as
defined in §404.1505, or you are not disabled, but you had a
disability that ended within the 12-month period before the
month you applied . . . .”); 20 C.F.R. § 404.621(a)(1) (“If you
file an application for disability benefits . . . after the
first month you could have been entitled, you may receive
benefits for up to 12 months immediately before the month in
which your application was filed.”).
Accordingly, for the foregoing reasons, the Court affirms
the ALJ’s determination that Plaintiff was not disabled during
the period January 10, 2012 through October 22, 2012.
appropriate Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: April 4, 2017
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