SPONHEIMER v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Robert B. Kugler on 9/8/2016. (TH, )
NOT FOR PUBLICATION
(Doc. No. 13)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 15–4180 (RBK)
KUGLER, United States District Judge:
This matter comes before the Court upon the appeal of Joseph Sponheimer (“Plaintiff”)
for review of the final determination of the Acting Commissioner of Social Security
(“Commissioner”). The Commissioner denied his application for Social Security Disability
Insurance (“SSDI”) benefits under Sections 216(i) and 223(d) of Title II of the Social Security
Act. For the reasons set forth below, the decision of the Commissioner is AFFIRMED.
Plaintiff applied for SSDI benefits on May 18, 2011, claiming inability to function and/or
work as of October 20, 2009 due to lumbar radiculopathy and torn meniscus requiring knee
replacement. Administrative Record (“Rec.”) at 91. At the time of filing, Plaintiff was forty-six
years old. Id. His claim was denied after initial review on January 13, 2012, and upon
reconsideration on November 28, 2012. Id. at 26. Administrative Law Judge Nicholas Cerulli
(“ALJ”) held a hearing at Plaintiff’s request on November 13, 2013 and issued a written decision
denying Plaintiff’s claim on March 10, 2014. Id. at 23. Plaintiff then requested review of the
ALJ’s decision by the Appeals Council. Id. at 1–4. The Appeals Council denied Plaintiff’s
request for review on June 10, 2015, concluding that additional treatment notes submitted by
Plaintiff did not provide a basis for changing the ALJ’s decision. Id. at 2. Plaintiff then filed a
Complaint in this Court on June 19, 2015 (Doc. No. 1).
Mr. Sponheimer’s Alleged Impairments
For background purposes, a brief medical history of Plaintiff’s ailments follows. Plaintiff
sustained injuries upon falling from a roof while at work on October 30, 2009, which aggravated
pre-existing conditions. Rec. at 454. Shortly after the injury occurred, Joan F. O’Shea, M.D. of
the Spine Institute of Southern New Jersey found that x-rays and an MRI indicated Grade II
spondylolisthesis at L4-5, degenerative disc disease at every level except for L3-4, and an old
L4-5 Grade I spondylolisthesis with bone spurs. Id. at 400, 404.
Dr. O’Shea referred Plaintiff to Adam Sackstein, M.D. of the Pain Management Center at
Voorhees for his reported low back pain radiating to the right lower extremity. Id. at 378. Dr.
Sackstein concluded that Plaintiff was suffering from lumbar radiculopathy and administered a
series of lumbar epidural steroid injections throughout the first half of 2010. Id. at 371, 375, 377,
389. Following the injections, Dr. Sackstein noted on June 29, 2010 that Plaintiff’s lumbar
radiculopathy was controlled. Id. at 370.
On May 13, 2010, Plaintiff was seen by John Mariani, D.O. of Academy Orthopedic
Associates for pain in his right knee. Id. at 324. Upon evaluation, Dr. Mariani identified rather
severe medial joint line tenderness, mild lateral tenderness, very mild effusion, crepitus on
motion with range from 5 to 110 degrees, and no evidence of knee instability. Id. at 324. Dr.
Mariani noted that Plaintiff appeared able to perform work that was sedentary or involved
limited standing and walking, but may not be able to perform activities such as climbing,
squatting, heavy lifting, or similar actions. Id. at 325.
On August 6, 2010, Plaintiff returned to Dr. O’Shea. Dr. O’Shea documented 5/5 motor
strength in bilateral upper and lower extremities, normal sensation, normal reflexes, normal
range of motion in hips and knees, and normal toe and heel walking. Id. at 395. Dr. O’Shea
indicated that Plaintiff could now perform light duty work with no lifting greater than 20 pounds.
Id. at 396. During a subsequent visit on November 2, 2010, Dr. O’Shea made similar findings
and additionally stated Plaintiff was now limited to lifting no greater than 50 pounds. Id. at 391–
On November 15, 2010, David Weiss, D.O. performed an independent medical
evaluation of Plaintiff at the request of Plaintiff’s attorney. Id. at 406–13. Dr. Weiss indicated
that Plaintiff ambulated with a noticeable right lower extremity limp and had boggyness in the
left and right knees. Id. at 411. Dr. Weiss determined Plaintiff was a candidate for a right total
knee arthroplasty. Id. at 412.
On August 12, 2011, Plaintiff underwent back surgery performed by Dr. Testaiuti. Id. at
517–20. Between September 2011 and April 2012, Plaintiff returned to Dr. Testaiuti for regular
follow-up visits. Throughout this period, Dr. Testaiuti noted Plaintiff continued to experience
mechanical low back pain in the mid lumbar region and tolerable numbness in his left foot. Id. at
755–33. At the end of that period, Dr. Testaiuti concluded that Plaintiff could perform sedentary
or light duty work, but his right knee precluded him from climbing ladders, bending, and
stooping. Id. at 755. On July 18, 2013, almost two years after the surgery, Plaintiff reported
continued, significant improvement since the surgery. Id. at 1130.
On November 14, 2012, Plaintiff underwent a right total knee arthroplasty. Id. at 875. Dr.
Mariani performed the surgery to treat Plaintiff’s degenerative joint disease. Id. On February 14,
2013, Plaintiff returned to Dr. Mariani for a follow-up visit and showed marked improvement in
right knee pain and functional abilities but reported some difficulty with numbness in his knee,
medial ankle, and foot. Id. at 1090. Plaintiff was seen by Dr. Mariani again on March 14, 2013,
and Dr. Mariani documented no knee instability, knee range of motion from 0 to 120 degrees, no
motor deficits, excellent quadriceps and hamstrings function, no popliteal tenderness, no calf
tenderness, and no pain on passive dorsiflexion of the foot. Id. at 1087. Additionally, he noted
mild sensory neuropathy interpreted at the peroneal nerve but identified no evidence of
lumbosacral radiculopathy or other neuropathy. Id. Dr. Mariani ultimately assessed that Plaintiff
was limited to sedentary work with limited standing and walking, and was not able to kneel on
the right knee or perform heavy work such as squatting, lifting, or climbing. Id. at 1087–88.
The ALJ’s Decision
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 has lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. § 423(d)(1)(A). The Social Security Administration established a five-step evaluation
process to determine if an individual is disabled. See 20 C.F.R. § 404.1520. For the first four
steps of the evaluation process, the claimant has the burden of establishing his disability by a
preponderance of the evidence. Zirnsak v. Colvin, 777 F.3d 607, 611–12 (3d Cir. 2014). First, the
claimant must show that he was not engaged in “substantial gainful activity” for the relevant
time period. 20 C.F.R. § 404.1520(a)(4)(i) (explaining the first step); id. § 404.1572 (defining
“substantial gainful activity”). Second, the claimant must demonstrate that he had a “severe
medically determinable physical or mental impairment” that lasted for a continuous period of at
least twelve months. Id. § 404.1520(a)(4)(ii) (explaining the second step); id. § 404.1509 (setting
forth the duration requirement). Third, if the claimant shows that his condition meets or equals
one of the impairments listed by the Commissioner, he is found to be disabled; otherwise, the
analysis proceeds to step four. Id. § 404.1520(a)(4)(iii); see also id. pt. 404, subpt. P., app. 1
(listing impairments). Fourth, if the condition does not meet or equal a listed impairment, the
claimant must show that he cannot perform his past work and the ALJ must assess the claimant’s
residual functional capacity (“RFC”).1 Id. § 404.1520(a)(4)(iv).
If the claimant meets his burden, the burden shifts to the Commissioner for the fifth and
last step. Zirnsak, 777 F.3d at 612. At the last step, the Commissioner must establish the
existence of other available work that the claimant is capable of performing based on his RFC,
age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant can make
“an adjustment to other work,” he is not disabled. Id.
In the present case, the ALJ first concluded that Plaintiff did not engage in substantial
gainful activity during the period from his alleged onset date of October 30, 2009 through his
date last insured of December 31, 2013. Rec. at 28. Next, the ALJ found that through the date
last insured Plaintiff had severe impairments, namely degenerative disc disease, degenerative
joint disease, obesity, status post lumbar fusion, status post right total knee arthroplasty, and
panic disorder, but he did not have an impairment or combination of impairments that met or
equaled the severity of one of the listed impairments. Id. at 28–30. Based on a review of the
record, the ALJ determined that Plaintiff had the RFC to perform sedentary work as defined in
1 A claimant’s RFC is used to determine if the claimant can return to his past work, but
also to measure “the most you can still do despite your limitations.” 20 C.F.R. § 404.1545(a)(1).
20 C.F.R. § 404.1567(a) except he can perform occasional pushing and pulling with the lower
extremities, climbing of ramps and stairs, balancing, stooping, kneeling, crouching, and
crawling; Plaintiff can never climb ropes, ladders, or scaffolds and should avoid concentrated
exposure to hazards such as unprotected heights and moving machinery; and Plaintiff is limited
to performing unskilled work involving routine and repetitive tasks with occasional changes in
the work setting; and occasional interaction with coworkers, supervisors, and the public. Id. at
30. Lastly, after considering Plaintiff’s age, education, work experience, and RFC, the ALJ
determined that there were jobs that existed in significant numbers in the national economy that
Plaintiff could perform. Id. at 35–36. Therefore, the ALJ decided that Plaintiff was not disabled
under the Social Security Act’s definition of disability. Id. at 36.
Standard of Review
When reviewing the Commissioner’s final decision, this Court is limited to determining
whether the decision is supported by substantial evidence. Zirnsak, 777 F.3d at 610 (citing 42
U.S.C. § 405(g)). Substantial evidence means “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir.
1999). The evidence must be “more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” See, e.g., Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.
2005). If the Commissioner’s decision is supported by substantial evidence, the court may not set
it aside, even if the court “would have decided the factual inquiry differently.” Fargnoli v.
Massanari, 247 F.3d 34, 38 (3d Cir. 2001). The court must be wary of treating the determination
of substantial evidence as a “self-executing formula for adjudication.” Kent v. Schweiker, 710 F.
2d 110, 114 (3d Cir. 1983).
The court must set aside the Commissioner’s decision if it did not take into account the
entire record or failed to resolve an evidentiary conflict. Schonewolf v. Callahan, 972 F. Supp.
277, 284–85 (D.N.J. 1997) (citing Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)).
Evidence is not substantial if “it really constitutes not evidence but mere conclusion,” or if the
ALJ “ignores, or fails to resolve, a conflict created by countervailing evidence.” Wallace v. Sec’y
of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (quoting Kent, 710 F.2d at 114).
A district court’s review of a final determination is a “qualitative exercise without which our
review of social security disability cases ceases to be merely deferential and becomes instead a
sham.” Kent, 710 F.2d at 114.
The ALJ decided Plaintiff was not disabled and therefore not entitled to SSDI benefits at
any point during the relevant time period. This Court finds that substantial evidence supports the
Commissioner’s determination. Accordingly, the Commissioner’s decision is affirmed.
Analysis of Medical Evidence of Record
Plaintiff alleges that the ALJ failed to analyze the entire evidence of record and
sufficiently explain the bases for his conclusions, in particular regarding the opinions of
Plaintiff’s treating source providers. Pl.’s Br. at 9–14. The treating physicians, Drs. Mariani and
Testaiuti, opined at various points that Plaintiff is unable to climb ladders; unable to bend or
stoop; restricted to lifting between 10 and 30 pounds; unable to crawl, bend, twist, or kneel; and
limited in the ability to stand and walk. Id. at 12–13.
The determination of a claimant’s disability is reserved for the ALJ. 20 C.F.R. §
404.1527(d)(1). The ALJ is responsible for “evaluat[ing] all relevant evidence and to explain the
basis for his or her conclusions.” Fargnoli, 247 F.3d at 42. If evidence is rejected, “an
explanation from the ALJ of the reason why probative evidence has been rejected is required so
that a reviewing court can determine whether the reasons for rejection were improper.” Cotter v.
Harris, 642 F.2d 700, 711 (3d Cir. 1981). The explanation need not be comprehensive; “in most
cases, a sentence or short paragraph would probably suffice.” Cotter v. Harris, 650 F.2d 481,
482 (3d Cir. 1981). Where the record is voluminous, the ALJ is not required to reference every
relevant treatment note. Fargnoli, 247 F.3d at 42.
The Court finds that the ALJ evaluated all relevant evidence and adequately explained
the bases for his conclusions. The decision contained a thorough review of the medical evidence
of record. Rec. at 32–33. It surveyed numerous clinical findings, which noted that Plaintiff had
5/5 motor strength in his lower extremities, normal gait, no right leg instability, no evidence of
knee instability, intact sensation and reflexes, normal toe and heel walking, and excellent right
knee range of motion. Id. The ALJ also reviewed Plaintiff’s activities of daily living, which
included completing home exercises, walking the dog, making the bed, attending his son’s
baseball games and practices, fishing once a week for four hours, and playing Bocce ball three
times a month. Id. at 32. Records provided by Drs. Mariani and Testaiuti are specifically
referenced at several parts of the decision. The ALJ noted that Dr. Testaiuti’s treatment records
following Plaintiff’s back surgery concluded that Plaintiff “appeared to do quite well” and only
“minimal mechanical low back pain” remained. Id. Similarly, the ALJ mentioned that Dr.
Mariani found Plaintiff to be “doing quite well with no right knee pain, no motor deficits, and
merely a mild sensory neuropathy” after the right knee replacement. Id. It appears that the ALJ
conducted a thorough review of the medical evidence of record and adequately analyzed all
Where the ALJ accorded little weight to the opinions of medical source providers, he
provided the reasoning for his decisions. In reviewing the opinions of Drs. Mariani, Demetriades,
and O’Shea, the ALJ explicated that he assigned little weight to some portions because they were
not supported by the record. Id. at 34. Such an explanation is sufficient. Although the Court
recognizes the decision could have proffered a lengthier discussion for why it rejected each of
the medical opinions, for example Dr. Testaiuti’s, such detail was not required. The ALJ
provided an extensive account of medical evidence that conflicted with portions of Dr.
Testaiuti’s opinion and was not obligated to address every treatment record particularly
considering record’s volume. Accordingly, the Court finds there is substantial evidence to
support the ALJ’s evaluation of the medical evidence of record.
Evaluation of Opinions of Treating Source Providers
Plaintiff alleges the RFC determination was not supported by substantial evidence
because the ALJ should have accorded greater weight, if not controlling weight, to the opinions
of Plaintiff’s treating physicians. Pl.’s Br. at 14–18. The ALJ is responsible for assigning weight
to the medical opinions of record. See 20 C.F.R. § 404.1527. In general, opinions from treating
sources receive more weight because they are most likely to be able to provide a “detailed,
longitudinal picture of [a claimant’s] medical impairment(s)” and “unique perspective to the
medical evidence.” Id. § 404.1527(c)(2). If an opinion from a treating physician is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with other substantial evidence in the record, the opinion is accorded controlling
weight. Id. If not, the ALJ determines how much weight to assign the opinion based on the
length of the treatment relationship, frequency of examination, nature and extent of the treatment
relationship, level of evidentiary support, consistency with the record, specialization of the
physician, and other factors. See id. § 404.1527(c). Furthermore, the ALJ can reject a treating
physician’s opinion if its findings are inconsistent with other medical evidence in the record. See
Plummer, 186 F.3d at 429; 20 C.F.R. § 404.1527(c).
Here, the ALJ states that he accorded “some weight” to Dr. Mariani’s opinion that the
Plaintiff was able to perform sedentary work with limited standing, limited walking, no climbing,
and no heavy lifting, but “little weight” to the doctor’s opinion of no squatting and complete
inability to work because it was not supported by the record. Rec. at 34. The ALJ accorded
“some weight” to Dr. Testaiuti’s opinion that Plaintiff could perform sedentary to light work “to
the extent that it is consistent with the claimant’s assigned residual functional capacity.” Id.
There is substantial evidence to support the ALJ’s evaluation of the treating source
opinions and RFC assessment. The ALJ decided to give little weight to Dr. Mariani’s opinion of
no squatting and complete inability to work because, as the ALJ noted, other medical records
contradicted these conclusions. Multiple clinical finding stated that Plaintiff had 5/5 motor
strength in his lower extremities, no knee instability, normal knee range of motion, and normal
reflexes. Id. at 32–33. Dr. Mariani himself, in treatment notes, observed that Plaintiff was “doing
quite well” following a total right knee replacement and had no right knee pain, no motor
deficits, and marked improvement in his functional abilities. Id. at 33. In regards to Dr.
Testaiuti’s opinion, the ALJ assigned “some weight” only to the determination that Plaintiff
could perform sedentary to light work and not to his other remarks that Plaintiff is unable to
climb ladders, bend, or stoop; his lifting is restricted to between 10 and 30 pounds; and he is not
to crawl, bend, twist, or keel. See, e.g., id. at 755, 757, 761. However, the restrictions alleged by
Dr. Testaiuti are contradicted by clinical findings that Plaintiff had full motor strength in his legs,
normal knee stability and range of motion, and intact sensation and reflexes. Id. at 32–33. Dr.
Testaiuti himself wrote that, following back surgery, Plaintiff “appeared to do quite well” and
experienced minimal low back pain, negative straight leg raise, and 5/5 motor strength. Id. at 33.
Thus, the record shows that there was substantial evidence that failed to consist with parts of the
treating providers’ opinions. Where a treating physician’s opinion does not have controlling
weight, the ALJ is charged with assigning weight based on several factors, which include the
opinion’s level of evidentiary support and consistency with the overall record. 20 C.F.R. §
404.1527(c). Given that the decision identified conflicts between the treating providers’ opinions
and other medical evidence, the Court finds that the ALJ properly weighed the treatment
Moreover, Plaintiff has not shown that the ALJ’s decision would be different if he had
accorded greater weight to the opinions of Plaintiff’s treating physicians. Where an error by an
ALJ is harmless, the court will not grant remand. Rutherford, 399 F.3d at 553. Here, the
vocational expert testified that Plaintiff would have been able to perform unskilled sedentary
jobs, such as final assembler of optical goods, addressing clerk, and rating clerk, which exist in
significant numbers in the national economy. Rec. at 36. The Commissioner has ruled that ability
to perform unskilled sedentary work is usually not considered eroded by limitations or
restrictions related to balancing, kneeling, crouching, or crawling. SSR 96-9p. Stooping is not an
activity required by the jobs mentioned by the vocational expert, final assembler, addresser, and
rating clerk. U.S. Dept. of Labor, Dictionary of Occupational Titles 713.687-018 (4th ed. 1991),
1991 WL 679271 (final assembler); id. 209.587-010, 1991 WL 671797 (addresser); id. 214.587010, 1991 WL 671894 (rating clerk). Even if the ALJ did err in assigning little weight to the
limitations and restrictions mentioned by the treating providers, such error would be harmless
and would not serve as a basis for remand.
Function-By-Function Assessment of Limitations and Restrictions
Plaintiff also argues that the ALJ failed to perform a function-by-function assessment of
Plaintiff’s limitations and restrictions. Pl.’s Br. at 16–18. Social Security Ruling 96-9p requires
that a RFC assessment “include a narrative that shows the presence and degree of any specific
limitations and restrictions, as well as an explanation of how the evidence in file was considered
in the assessment.” The Third Circuit has found a function-by-function assessment to be
adequate where the ALJ evaluated specific activities or reviewed all relevant evidence in the
record. See Garrett v. Commissioner of Social Sec., 274 Fed. Appx. 159, 163 (3d Cir. 2008);
Tuohy v. Commissioner of Social Sec., 127 Fed. Appx. 62, 66 (3d. Cir. 2005). In this dispute, the
ALJ determined that Plaintiff had the RFC to perform sedentary work; could occasionally push
and pull with the lower extremities, climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl; and could never climb ropes, ladders, or scaffolds. Rec. at 34. The ALJ reached that
determination after reviewing Plaintiff’s testimony, activities of daily living, medical records,
and opinions from medical sources. Id. at 31–34. The ALJ’s RFC assessment also references
specific work-related functions. Thus, the function-by-function assessment fully complies with
Evaluation of Plaintiff’s Testimony
Plaintiff asserts that the ALJ failed to properly evaluate Plaintiff’s testimony regarding
his symptoms. Pl.’s Br. at 18–20. Plaintiff further contends that this Court should remand the
matter for further proceedings in light of SSR 16-3p, see id., which supersedes SSR 96-7p and
alters that standard by which ALJs are to evaluate symptoms. SSR 16-3p became effective on
March 16, 2016, after the ALJ rendered decision in this case on March 10, 2014. Thus, the ALJ
was not bound by SSR 16-3p but by the previous SSR 96-7p.2 SSR 96-7p requires that the ALJ’s
decision “contain specific reasons for the finding on credibility, supported by the evidence in the
case record.” A conclusory statement that “the individual’s allegations have been considered” or
that “the allegations are (or are not) credible” does not suffice. SSR 96-7p. In determining
credibility, the ALJ must examine the entire case record, including objective medical evidence,
the individual’s statements, information provided by physicians, and other relevant evidence in
the record. Id.
Here, the ALJ did not adopt all of Plaintiff’s statements regarding the intensity,
persistence, and limiting effects of his symptoms because Plaintiff testified to impairments and
limitations not fully supported by the record. Rec. at 32. Plaintiff stated that he experiences
stabbing pain in his back, numbness in the right knee, inability to lift heavy objects, inability to
squat, difficulty sitting and standing for long periods of time, and problems sleeping. Id. at 31.
However, as noted by the ALJ, Plaintiff’s activities of daily living included doing ninety percent
of the cooking, completing the majority of the grocery shopping, playing on a bocce team,
getting into a hot tub, and walking his dog. Id. at 32. Furthermore, the medical evidence showed
that Plaintiff exhibited full motor strength, stability, normal reflexes, and normal range of motion
in his lower extremities, and marked improvement following back and knee surgeries. Id. The
ALJ’s decision discussed the particulars of Plaintiff’s testimony, assessed it in light of the case
record, and explained that Plaintiffs’ statements failed to fully cohere. Therefore, the Court is
2 Even if the ALJ was bound by SSR 16-3p, this Court’s analysis of Plaintiff’s subjective
symptoms remains the same. SSR 16-3p states that an ALJ must evaluate a claimant’s symptoms
based on all evidence in the record and not claimant’s character. In this dispute, the ALJ partially
discounted Plaintiff’s testimony because portions conflicted with the record, not because of
Plaintiff’s character. Rec. at 32. The ALJ’s decision thus comports with the new standard
promulgated in SSR 16-3p.
satisfied that the ALJ’s evaluation of Plaintiff’s statements regarding his symptoms is supported
by substantial evidence.
Error by Appeals Council
Plaintiff additionally alleges the Appeals Council erroneously failed to remand to
consider additional documents Plaintiff submitted on August 13, 2014. Pl.’s Br. at 8–9. Plaintiff
represents those documents to be treatment records by Drs. Paul and Testaiuti from April 15,
2014 through August 7, 2014. Rec. at 267–68. The pertinent period for assessing Plaintiff’s
alleged disability is October 30, 2009 through Plaintiff’s date last insured of December 31, 2013.
Id. at 28. The additional records postdate Plaintiff’s last insured date by more than six months.
Although Plaintiff alleges that “the underlying medical conditions giving rise to the doctors’
present recommendations are the same as those arising out of [Plaintiff’s] disability onset date,”
Plaintiff pleads no specific evidence that the records speak to Plaintiff’s disability during the
relevant time period. Id. at 268. The Court is not persuaded of the Appeals Council’s alleged
For the foregoing reasons, the Commissioner’s decision is AFFIRMED.
s/ Robert B. Kugler
ROBERT B. KUGLER
United State District Judge
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