GULIN v. COMMISSIONER OF SOCIAL SECURITY

Filing 21

OPINION. Signed by Judge Jose L. Linares on 4/14/14. (jd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

REYNALDO GULLN, JR.,
Civil Action No. 13-01897 (JLL)
Plaintiff,
v.

OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

LINARES, District Judge.
Before the Court is Plaintiff Reynaldo Gulin, Jr. (“Plaintiff’)’s appeal, seeking review of
a final determination by Administrative Law Judge (“AU”) Donna Krappa denying his
application for a period of disability and disability insurance benefits (“DIB”). The Court
resolves this matter on the parties’ briefs pursuant to Local Civil Rule 9.1(f). For the reasons set
forth below, the Court AFFIRMS the final decision of the Commissioner of Social Security.
I.

BACKGROUND

Plaintiff maintains that he was disabled within the meaning of the Social Security Act
from February 21, 2008, through December 31, 2012, the date of the AU’s decision. (See Pl.’s
Br. 1-2, ECF No. 17). Plaintiff was born on November 11, 1962, and was forty-five years old
when he applied for benefits in October 2008. (R. at 143).’ He is married, has three children,
and lives in an apartment with his family. (Id. at 49, 66). He is a high school graduate, served
for four years in the United States Marine Corps and one year in the United States Army

“R.” refers to the pages of the Administrative Record.

Reserve, and worked for twenty-three years with the New Jersey Department of Transportation
(“NJDOT”). (Id. at 49-51). He most recently worked as an Assistant Crew Supervisor,
supervising a highway maintenance team for the NJDOT. (Id. at 52). He took a medical
retirement from that job. (Id. at 51).
With regard to his activities of daily living, Plaintiff testified at the hearing that he
showers, shaves, cooks, cleans, launders, watches television, and socializes with his family. (See
id. at 50, 62, 66-67). He also testified that he sometimes has no desire to leave his apartment
even when it is warm outside. (Id. at 50).
A.

Plaintiff’s Impairments

Plaintiff maintains that he is disabled due to the limitations resulting from his: (1)
cardiac disorder (post stent implant); (2) back disorder; (3) knee disorder; and (4) depression. A
discussion of each of these impairments follows.
1.

Plaintiff’s Heart Disorder (Post Stent Implant)

Plaintiff suffers from a heart disorder, from which serious complications arose on
February 21, 2008. (Id. at 53-54, 239). On that date, he reported to the Bayonne Medical Center
emergency room with chest pain and numbness in his left arm. (See id. at 239). The following
day, Dr. Peter Wong operated on Plaintiff’s heart to treat his unstable angina. (Id. at 252-53)
Specifically, Dr. Wong performed a cardiac catheterization, thereby placing a stent in the left
anterior descending artery of his heart. (Id. at 448-49). Post-surgery, Dr. Wong described the
stent placement as “successful.” (Id. at 449).
Plaintiff returned to the Bayonne Medical Center emergency room five days later, on
February 27, 2008, with acute chest pain. (Id. at 255-57). Dr. Wong again performed a cardiac
catheterization, from which he concluded that Plaintiff had normal left ventricular systolic

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function and single vessel disease involving the left anterior descending artery of his heart. (Id.
at 269-70). The discharge summary from the following day notes that Plaintiff “eventually did
well with his labs, [electrocardiograms (“EKG5”)j, and chest x-ray.

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summary further notes that the “[bjottom line is, he did improve.

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(Id. at 257). That

(Id.).

Plaintiff again returned to the Bayonne Medical Center emergency room on March 21,
2008, after experiencing an approximately twenty minute episode of chest pain. (Id. at 272).
The admission note states that Plaintiff was given nitroglycerin tablets, which relieved his
symptoms. (Id.). The tests administered to Plaintiff at that time generally produced normal
results. (See Id.). Dr. Wong subsequently performed another cardiac catheterization on
Plaintiff’s heart on March 24, 2008, again concluding that Plaintiff had normal left ventricular
systolic function and single vessel disease involving the left anterior descending artery of his
heart. (Id. at 289-90). The medical center discharged Plaintiff on the following day. (Id. at
274). The discharge summary, prepared by Doctor of Osteopathic Medicine Howard Levine,

notes that the bottom line of the battery of tests performed on Plaintiff is that “he did well” and
could thus go home. (Id.).
Plaintiff returned to the Bayonne Medical Center emergency room one final time on May
8, 2008, with chest pain. (Id. at 292-93). The hospital discharged Plaintiff on the following day.
(Id. at 294). Dr. Levine’s discharge summary diagnosed him with chest pain, atherosclerosis of
the native vessel, and pure hypercholesterolemia. (Id.).
On July 7, 2008, Plaintiff reported to the Saint Barnabas Medical Center emergency room
in Livingston, New Jersey. (Id. at 312). He was experiencing chest pain at the time of
admission, and was kept under observation for twenty-four hours. (Id. at 312-13). The

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discharge summary notes that Plaintiff’s final diagnosis was angina pectoris, coronary artery
disease, and hypercholesterolemia. (Id. at 313-14).
The record includes treatment notes from Plaintiff’s treating physician, Dr. Steven M.
Levine. (Id. at 493-506). The September 2008 treatment note states that Plaintiff then had left
abdominal pain, shortness of breath when running, and angina. (Id. at 497). In January 2009,
Dr. Levine completed a Cardiac Residual Functional Capacity (“RFC”) form. (Id. at 473-87).
He noted therein that Plaintiff has coronary artery disease, characterized by chest pain and
shortness of breath. (Id. at 473). Dr. Levine also noted that Plaintiff’s heart condition causes
him to suffer from emotional difficulties, frequently interferes with his attention and
concentration even when performing simple tasks, and makes him incapable of performing “low
stress” jobs. (Id. at 474). Dr. Levine’s February 2009 treatment note states that Plaintiff had no
complaints at that time. (Id. at 494).
In July 2009, state consultant Dr. Alexander Hoffman examined Plaintiff. (Id. at 534-36).
Dr. Hoffman noted that Plaintiff’s heart had a regular rate and rhythm, and a “borderline normal
EKG.” (Id. at 534-36). Dr. Hoffman additionally noted that Plaintiff then took medication for
hypertension and elevated lipid levels. (Id. at 536).
A myocardial perftision scan and EKG were performed on Plaintiff in April 2010. (Id. at
59 1-92). Both tests produced results within “normal” limits. (Id.). At the hearing before the
AU in December 2010, Plaintiff testified that he could lift about fifteen pounds before he begins
to have chest pains, and that he cannot bend down to pick up objects. (Id. at 57).
2.

Plaintiff’s Back Impairment

Plaintiff has degenerative disc disease, which causes him to have back pain. (Id. at 570).
An MRI performed on Plaintiff’s lumbar spine in December 2009 revealed that Plaintiff had

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anterior and posterior bulges of the L3-L4 and L4-L5 intervertebral discs. (Id.). The MRI also
revealed that Plaintiff has mild stenosis of the bilateral L4-L5 Neural Foramina. (Id.). At the
hearing before the AU in December 2010, Plaintiff testified that his back starts to hurt him if he
sits in a chair for extended periods of time. (Id. at 55). He also testified that he has undergone
physical therapy to deal with his back pain, but that he has never required medication, injections,
or surgery to treat his back pain. (Id. at 63-64).
3.

Plaintiff’s Knee Impairment

Plaintiff suffers from a right knee impairment. (See Id. at 5 5-57). In May 2009, Dr.
Steven Levine diagnosed Plaintiff right knee pain, noting that he was positive for crepitus. (Id.
at 608). Dr. Levine referred Plaintiff to Dr. Robin B. Innella, a doctor of osteopathic medicine at
Associated Orthopedics in Bayonne, New Jersey. (See Id. at 600). Dr. Innella examined
Plaintiff’s right knee later that month. (Id.). He noted that Plaintiff had undergone four
arthroscopic knee surgeries, the most recent one being twelve years prior. (Id.). He also noted
that Plaintiff’s right knee was positive for crepitus with flexion and extension, and that x-rays of
that knee showed some patellofemoral sclerosis but were otherwise unremarkable. (Id.). Dr.
Innella diagnosed Plaintiff with chondromalacia patella with recurrent synovitis. (Id.). To treat
Plaintiff’s right knee pain, Dr. Innella scheduled Plaintiff for a course of Euflexxa injections, and
prescribed him Naprosyn. (Id.).
In December 2009, an MRI was performed on Plaintiff’s right knee. (Id. at 595). The
MRI revealed an abnormal signal in the posterior horn of the medial meniscus consistent with
degeneration, a horizontal tear in the body of the lateral meniscus, and a small knee joint
effusion. (Id.).

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In February 2010, Dr. Levine noted that Plaintiff was experiencing pain on both the
lateral and medial sides of his right knee, as well as behind the kneecap, which Plaintiff
described as a nine out often. (Id.). Dr. Levine also noted that Plaintiff’s pain worsened when
walking, and kept him up at night. (Id.). Dr. Levine’s examination revealed that Plaintiff’s right
knee was tender and had two torn ligaments, but that it had no atrophy or weakness, no
decreased range of motion, no decreased strength, and no swelling in the joint. (Id.). He
prescribed Plaintiff Vicodin. (Id.).
In September 2010, Dr. Levine noted that Plaintiff was in constant pain, and that his right
knee would cramp up while lying down. (Id. at 603). Dr. Levine also noted that Plaintiff’s right
leg shook at night, and that Plaintiff described the pain he was experiencing while walking as a
ten out often. (Id.) Dr. Levine ultimately diagnosed Plaintiff with restless leg syndrome. (Id.).
At the hearing before the AU in December 2010, Plaintiff testified that his knee stiffens
up and then begins to hurt “really bad” after a “while of sitting.” (Id. at 55). To deal with this
issue, Plaintiff testified that he has to get up and move his knee. (Id.). He also testified that he
can walk for one and a half blocks before his knee starts “giving out,” and that he can stand for
about ten to fifteen minutes if he does not place a significant amount of weight on his right leg.
(Id.).
Plaintiff suffers from depression. (See id. at 509). He has met with a psychiatrist, Dr.
Charles Carluccio, on a bi-weekly basis since February 2007. (Id.). In September 2008, Dr.
Steven Levine noted that Plaintiff was depressed due to his financial situation. (Id. at 497).
Subsequently, in June 2009, Dr. Carluccio completed a Mental Impairment Questionnaire. (Id.
at 509l 1). He assigned Plaintiff a Global Assessment Functioning (“GAF”) rating of forty at

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that time, which was also Plaintiff’s highest GAF rating throughout the past year. (Id. at 509).
2
Dr. Carluccio noted that Plaintiff had been treated with supportive psychotherapy and
psychotropic medications, specifically, Lexapro and Lunesta, and that Plaintiffs response had
been “fair.” (Id.). Ultimately, Dr. Carluccio’s prognosis of Plaintiff was guarded to poor. (Id.).
In August 2009, Dr. Gerard A. Figurelli performed a psychiatric consultative examination
of Plaintiff. (Id. at 543-46). According to Dr. Figurelli, Plaintiff reported that he had struggled
with depression since childhood, and that his depression was “manageable” while on
psychotropic medications. (Id. at 543). Plaintiff also reported a history of suicidal ideation,
intent, and plan but no actual attempt. (Id.). Additionally, he reported that he had experienced
anxiety attacks since he was about sixteen years old. (Id.). In his mental status evaluation, Dr.
Figurelli noted, among other things, that Plaintiffs judgment was adequate, and that he
manifested no deficits with immediate recall, with delayed recall, or with concentration on
structured tasks of relatively short duration. (Id. at 544). Dr. Figurelli diagnosed Plaintiff with
major depressive disorder in partial remission, and assigned him a GAF rating of sixty. (Id. at
3
546).
In August 2009, Benito Tan, a non-examining state agency consultant, completed a
Mental RFC Assessment questionnaire concerning Plaintiff. (Id. at 561-63). Tan noted therein
that Plaintiff has moderate limitations with the following abilities: (1) carrying out detailed
2

The GAF Scale ranges from zero to one-hundred. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. text rev. 2000) (hereinafter “DSM-IV-TR”). An individual’s “GAF rating is
within a particular decile if either the symptom severity or the level of functioning falls within the range.” Id. at 32.
“[un situations where the individual’s symptom severity and level of functioning are discordant, the final GAF
rating always reflects the worse of the two.” Id. at 33. “In most instances, ratings on the GAF Scale should be for
the current period (i.e., the level of functioning at the time of the evaluation) because ratings of current functioning
will generally reflect the need for treatment or care.” Id. A GAF rating of thirty-one through forty indicates
“[siome impairment in reality testing or communication,” or “major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood.
DSM-IV-TR 34.
A GAF rating of fifty-one to sixty indicates that an individual has “[mjoderate symptoms,” e.g., “flat affect and
circumstantial speech, [on occasional panic attacks,” or “moderate difficulty in social, occupational, or school
functioning.
DSM-IV-TR 34.
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instructions; (2) maintaining attention and concentration for extended periods; (3) working in
coordination with, or in proximity to others, without being distracted by them; (4) completing a
normal workday and workweek without interruptions from psychologically based symptoms, and
performing at a consistent pace without an unreasonable number and length of rest periods; (5)
accepting instructions and responding appropriately to criticism from supervisors; (6) getting
along with coworkers or peers without distracting them or exhibiting behavioral extremes; and
(7) responding appropriately to changes in the work setting. (Id. at 56 1-62). Tan concluded that
Plaintiff could follow instructions and that his mental factors did not severely limit his activities
of daily living and social functioning. (Id. at 563). Tan also concluded that Plaintiff could
maintain appropriate social interaction and job adaptation, as well as adequate concentration,
persistence, and pace. (Id,).
In March 2010, Dr. Michael Cannella completed a Mental Impairment Questionnaire
concerning Plaintiff. (Id. at 571-76). Dr. Cannella diagnosed Plaintiff with major depressive
disorder, and assigned him a current GAF rating of sixty-five and observed that his highest GAF
rating throughout the past year had been an eighty-five. (Id. at 571). Dr. Cannella described
4
Plaintiff as depressed with a sad mood and tired, and noted that he has occasional suicidal
thoughts. (Id.). Ultimately, Dr. Cannella gave Plaintiff a “favorable” prognosis. (Id.).
At the hearing before the AU in December 2010, Plaintiff testified that he began seeing a
psychiatrist due to his suicidal thoughts and ideations. (See Id. at 59-60). He also testified that
his medication is helpful and that his financial situation can be a trigger for some of his “bad
days.” (See id. at 60-61). Additionally, Plaintiff testified that he sometimes feels confined and
claustrophobic in his apartment and has to take medication to relax. (Id. at 61-62).
A GAF rating of sixty-one through seventy indicates “some mild symptoms,” such as a “depressed mood and mild
insomnia,” or “some difficulty in social, [or] occupational. functioning
DSM-IV-TR 34. A GAP rating of
eighty-one through ninety indicates “absent or minimal symptoms [and] good functioning in all areas.
Id.
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B.

Procedural History

Plaintiff initially filed an application with the Social Security Administration for benefits
on October 2, 2008. (Id. at 141-142). The Administration denied Plaintiff’s application and
subsequent request for reconsideration. (Id. at 85, 93). Plaintiff next requested a hearing before
an AU, which took place on December 16, 2010 before AU Donna Krappa. (Id. at 43, 103,
107),
On April 4, 2011, AU Krappa issued a decision finding that Plaintiff was not disabled
from February 21, 2008 through the date of decision. (Id. at 22- 38). Thereafter, on May 2,
2011, Plaintiff sought Appeals Council review of AU Krappa’s decision. (Id. at 18-19). The
Appeals Council denied Plaintiff’s request on January 25, 2013, rendering the AU’s decision the
final decision of the Commissioner. (Id. at 1). As a result, Plaintiff appealed to this Court on
March 25, 2013. (Compi., ECF No. 1). This Court has jurisdiction to review this matter
pursuant to 42 U.S.C.
II.

§ 405(g).

LEGAL STANDARD
A.

The Five-Step Process for Evaluating Whether a Claimant Has a Disability

Under the Social Security Act, the Administration is authorized to pay DIB to “disabled”
persons. 42 U.S.C.

§ 423(a). A person is “disabled” if he is unable “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 12 months.

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42 U.S.C.

§ 423(d)(1)(A). A person is unable to engage

in substantial gainful activity when his physical or mental impainnents are “of such severity that
he is not only unable to do his previous work but cannot, considering his age, education, and

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work experience, engage in any other kind of substantial gainful work which exists in the
national economy...

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42 U.S.C.

§ 423(d)(2)(A).

Regulations promulgated under the Social Security Act establish a five-step process for
determining whether a claimant is disabled. 20 C.F.R.

§ 404.1520(a)(1). At step one, the AU

assesses whether the claimant is currently performing substantial gainful activity. 20 C.F.R.

§

404. 1 520(a)(4)(i). If so, the claimant is not disabled and, thus, the process ends. Id. If not, the
AU proceeds to step two and determines whether the claimant has a “severe” physical or mental
impairment or combination of impairments. 20 c.F.R.

§ 404.1 520(a)(4)(ii). Absent such

impairment, the claimant is not disabled. Id. Conversely, if the claimant has such impairment,
the AU proceeds to step three. Id. At step three, the AU evaluates whether the claimant’s
severe impairment either meets or equals a listed impairment. 20 C.F.R.

§ 404.1 520(a)(4)(iii). If

so, the claimant is disabled. Id. Otherwise, the AU moves on to step four, which involves three
sub-steps:
(1) the AU must make specific findings of fact as to the claimant’s [RFC]; (2) the
AU must make findings of the physical and mental demands of the claimant’s
past relevant work; and (3) the AU must compare the [RFC] to the past relevant
work to determine whether claimant has the level of capability needed to perform
the past relevant work.
Burnett v. Comm ‘r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000) (citations omitted).

The claimant is not disabled if his RFC allows him to perform his past relevant work. 20 C.F.R.

§ 404.1 520(a)(4)(iv). However, if the claimant’s RFC prevents him from doing so, the AU
proceeds to the fifth and final step of the process. Id.
The claimant bears the burden of proof for steps one through four. Poulos v. Comm r of
Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007) (citing Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir.
2004)). “At step five, the burden of proof shifts to the Social Security Administration to show

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that the claimant is capable of performing other jobs existing in significant numbers in the
national economy, considering the claimant’s age, education, work experience, and [RFCI.” Id.
(citing Ramirez, 372 F.3d at 551).
B.

5
The Standard of Review: “Substantial Evidence”

This Court must affirm an AU’s decision if it is supported by substantial evidence. See
42 U.S.C.

§. 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). To determine whether an AU’s decision is supported by substantial evidence,
this Court must review the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.
1984). However, this Court may not “weigh the evidence or substitute its conclusions for those
of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted).
Consequently, this Court may not set an AU’s decision aside, “even if [itj would have decided
the factual inquiry differently.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations
omitted).
Ii!.

DISCUSSION
At step one, the AU found that Plaintiff had not engaged in substantial gainful activity

during the period at issue. (R. at 28). At step two, the AU determined that Plaintiff suffered
from the following severe impairments: (1) a back disorder; (2) a knee disorder; (3) a heart
disorder (status post stent implant); and (4) depression. (Id.). At step three, the AU determined
that Plaintiff did not have an impairment or combination of impairments that met or medically

Because the regulations governing supplemental security income—20 C.F.R. § 416.920—are identical to those
covering disability insurance benefits—20 C.F.R. § 404.1 520—this Court will consider case law developed under
both regimes. Rutherford v. Barnhart, 399 F.3d 546, 551 n. 1 (3d Cir. 2005) (citation omitted).

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equaled one of the listed impairments. (Id. at 28-29). At step four, the AU determined that
Plaintiff had the RFC to perform:
[T]he exertional demands of a combination of a range of sedentary
work as defined under the Regulations; specifically, he is able to:
lift/carry 20 lbs. occasionally and 10 lbs. frequently; stand/walk 2
hours in an eight hour work day; sit for 6 hours in an eight hour
work day—if given the opportunity at the 45-lhr. mark to stand
and stretch for 3-5 minutes) [sic]; and perform unlimited pushing
and pulling with the weight restriction given. Regarding the
postural and environmental demands of work, I find that [Plaintiff]
is able to perform jobs: that require no use of ladders, ropes, or
scaffolds; that require only occasional use of ramp or stairs; that
require occasional balancing, stooping, kneeling, crouching, and/or
crawling; that require no exposure to unprotected heights, hazards
or dangerous machinery; that involve no concentrated exposure to
temperature extremes, wetness, and/or humidity; that involve no
concentrated exposure to undue amounts of dust or known
chemical irritants; and that permit ready access to a restroom. As
to the mental demands of work, I find that [Plaintiff] is able to
perform jobs: that are unskilled, and repetitive; that permit at least
three breaks during the work day—each of at least 15 minutes
duration; that are low stress[]; that require no work in close
proximity to others (closer than 3-5 feet) to avoid distraction; and
that require only occasional contact with supervisors, co-workers,
and no contact with the general public.
(Id. at 30 (emphasis in the original)). At step five, the AU determined that there were jobs
existing in significant numbers in the national economy that Plaintiff could perform. (Id. at 36).
Thus, the AU concluded that Plaintiff was not disabled. (Id. at 37). Plaintiff contends that this
Court should remand the AU’s decision because: (1) her step three analysis is deficient; (2) she
did not properly assess Plaintiff’s credibility at step four; and (3) the hypothetical she posed to
the Vocational Expert (“yE”) at step five was deficient. (Pl.’s Br. 11-20).
A.

Whether the AU’s Analysis at Step Three is Based on Substantial Evidence

Plaintiff argues that the AU’s step three analysis is deficient because she did not properly
assess whether the combination of Plaintiff’s severe impairments medically equaled a listed

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impairment. (Pl.’s Br. 12). Specifically, Plaintiff argues that the AU “failed to consider
whether the combination of Plaintiffs impairments medically equaled one of the Listings.”
(P1. ‘s Br. 13). Defendant counters that “the AU explicitly evaluated whether plaintiff’s
impairments medically equaled a listing.” (Def.’s Br. 6, ECF No. 20). Defendant further
counters that, regardless, “it was plaintiffs burden to establish that his impairments were severe
enough to satisfy the criteria of a Listed impairment,” and that Plaintiff failed to do so. (Id.
(citation omitted)). The Court concludes that the AU adequately considered whether the
combination of Plaintiff’s impairments medically equaled a listing, and, thus, affirms the
Commissioner’s step three finding. The Court now explains its conclusion.
At step three, an AU must “fully develop the record and explain [her] findings.
including an analysis of whether and why [each of the claimant’s] impairments, or those
impairments combined, are or are not equivalent in severity to one of the listed impairments.”
Burnett, 220 F.3d at 120. In conducting such an analysis, there is no formal requirement that an

AU “use particular language or adhere to a particular format.

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.

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Jones v. Barnhart, 364 F.3d

501, 505 (3d Cir. 2004). Rather, an AU’s decision, “read as a whole,” must permit meaningful
judicial review. Id.; Cosby v. Comm ‘r ofSoc. Sec., 231 F. App’x 140, 146 (3d Cir. 2007)
(citations omitted). With regard to an AU

‘S

duty to consider a claimant’s impairments in

combination with one another, the Third Circuit has suggested that an AU fulfills that duty if
she indicates that she has done so, and there is “no reason to not believe h[erj.” Morrison cx. rd.
Morrison

Comm ‘r ofSoc. Sec., 268 F. App’x 186, 189 (3d Cir. 2008). Moreover, a number of

district courts in this Circuit have concluded that an AU fulfills her obligation to consider a
Plaintiffs impairments in combination with one another when she states that she has done so and

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offers a thorough review of the evidence in the record. Mason v. Astrue, No. 09-5553, 2010 WL
3024849 at *6 (D.N.J. Aug. 2, 2010).
Here, the AU began her step three analysis with her determination that Plaintiff “does
not have an impairment or combination of impairments that meets or medically equals one of the
listed impairments.

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(R. at 28). She then noted that in reaching that determination, she paid

particular attention to the Listings pertaining to the musculoskeletal system (section 1.00), the
cardiovascular system (section 4.00), and mental disorders (section 12.00). (Id. at 29); see 20
C.F.R. Pt. 404, Subpt. P, App’x 1. The Court now considers whether the AU’s analysis of each
of these listings, when coupled with her discussion of the evidence, permits meaningful judicial
review.
1.

Whether the AU’s Finding That Plaintiffs Back and Knee Impairments
Did Not Meet the Musculoskeletal Listings Permits Meaningful Judicial
Review and is Based on Substantial Evidence

With regard to the musculoskeletal system listings (section 1.00), the AU concluded at
step three that Plaintiffs severe musculoskeletal impairments—his back and knee impairments—
were not accompanied by the specific clinical abnormalities or diagnostic test results necessary
to meet those listings. (Id. at 29). Elsewhere in her decision, the AU provided a thorough
discussion of the medical evidence concerning Plaintiffs musculoskeletal impairments, which
supports her conclusion.

As to Plaintiffs back impairment, the AU noted at that step that “there is no evidence of
disc herniation or nerve root involvement.

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.

.“

(Id.). She later noted that “MRIs taken [of

Plaintiffs lumbar spine] in December 2009 showed disc bulges at L3-4, L4-5 and L5-S1 with
only mild stenosis and no cord involvement.

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.

.“

(Id. at 33). She noted, however, that

Plaintiffs disc bulges had not required any invasive forms of treatment—”[he] has had physical

14

therapy, but no injections for pain or surgery.” (Id. at 31). Thus, “read as whole,” the AU’s
decision permits meaningful judicial review and offers substantial evidence that Plaintiff’s back
impairment did not meet any of the musculoskeletal listings, including the listing for spinal
disorders (Listing l.04).6 See, e.g., Jaafar v. Astrue, No. 09-2903, 2010 WL 3001899 at *6..7
(D.N.J. July 28, 2010) (holding that substantial evidence supported AU’s conclusion that
plaintiff’s back condition did not meet the requirements of Listing 1.04 where plaintiff “did not
present evidence indicating that either the nerve root or spinal cord were compromised.”).
As to Plaintiff’s right knee impairment, the AU noted that Plaintiff had a meniscus tear

with degeneration in that knee. (R. at 33). The AU further noted that Plaintiff had complained
of knee pain during his visits to Dr. Steven Levine from July 2009 through February 2010, and
that Dr. Levine had “noted tenderness of the joint without any decrease in range of motion or in
strength and without any swelling.

.

.

.“

(Id.). As such, the AU’s decision “read as a whole”

permits meaningful judicial review and supports her finding that Plaintiff’s knee impairment did
not meet any of the musculo skeletal listings, including the listing for the major dysfunction of a
joint (Listing l.02). See generally Jaafar, 2010 WL 3001899 at *7 (“Although the AU’s
discussion at Step Three was concise, in combination with the medical findings discussed
elsewhere in the opinion it was sufficient to meet the Burnett requirement.”).

6

To meet the listing for spinal disorders (Listing 1.04), as is relevant here, a claimant must show that his
degenerative disc disease results in “compromise of a nerve root. or the spinal cord,” with evidence of nerve root
compression, spinal arachnoiditis, or lumbar spinal stenosis. 20 C.F.R. Pt. 404, Subpt. P, App’x 1.
To meet the listing for the major dysfunction of a joint (Listing 1.02), a claimant must show “gross anatomical
deformity” in a joint as well as “chronic joint pain and stiffness with signs of limitation of motion or other abnormal
motion of the affected joint[], and findings on appropriate medically acceptable imaging ofjoint space narrowing,
bony destruction, or ankylosis of the affected joint[j.” 20 C.F,R. Pt. 404, Subpt. P, App’x 1.
.

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.

2.

Whether the AU’s Finding That Plaintiff’s Heart Disorder (Post Stent
Implant) Did Not Meet the Cardiovascular System Listings Permits
Meaningful Judicial Review and is Based on Substantial Evidence

With regard to the cardiovascular system listings (section 4.00), the AU concluded at
step three that Plaintiff’s heart disorder (post stent implant) was not accompanied by the specific
clinical abnormalities, impaired myocardial function, or specific clinical abnormalities required
by those listings. (R. at 29). She noted that “cardiac testing done after the stent placement
showed good heart functioning.” (Id.). She later referenced the April 2010 myocardial perfusion
test and EKG, which were both within normal limits. (Id. at 33). Consequently, the AU’s
analysis permits meaningful judicial review, and the AU has provided substantial evidence in
support of her conclusion.
3.

Whether the AU’s Finding That Plaintiff’s Depression Did Not Meet the
Mental Disorder Listings Permits Meaningful Judicial Review and is
Based on Substantial Evidence

With regard to the mental disorder listings (section 12.00), the AU concluded at step
three that Plaintiff’s depression was not accompanied by the specific clinical abnormalities or
specific clinical abnormalities necessary to meet those listings. (Id. at 29). She then provided an
exhaustive explanation that permits meaningful judicial review of why Plaintiff’s mental
impairment did not meet or medically equal the listing for affective disorders (Listing 1 2.04).8
(Id.). In doing so, the AU explained exactly why Plaintiff’s depression did not satisfy the
paragraph B or C criteria of that listing. The Court briefly recaps the AU’s explanation
concerning the paragraph B criteria.
To satisfy the paragraph B criteria of Listing 12.04, a claimant must demonstrate that his
affective disorder results in at least two of the following:
S

A claimant’s affective disorder meets or medically equals listing 12.04 when it either satisfies both the paragraph
A and paragraph B criteria, or satisfies the paragraph C criteria of that listing. 20 C.F.R. Pt. 404, Subpt. P. App’x 1,
§ 12.04 (emphasis added).

16

I. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence,
or pace; or
4. Repeated episodes of decompensation, each of extended
duration.
20 C.F.R. Pt. 404, Subpt. P, App’x 1,

§ 12.04. A limitation is “marked” when it is “more than

moderate but less than extreme.” Id. Here, the AU determined that Plaintiffs mental
impairment did not cause at least two “marked” limitations or one “marked” limitation and
“repeated” episodes of decompensation, each of extended duration. (Id.).
As to Plaintiff’s activities of daily living, the AU found that Plaintiff had only mild
restrictions with such activities since he cooks, showers, dresses himself, shaves, watches
television, socializes with his family, and drives occasionally. (R. at 29). As to Plaintiffs social
functioning, the AU found that Plaintiff had only moderate difficulties with such functioning
since he did not report any problems with relationships in his small social circle. (Id.). The AU
next found that Plaintiff had moderate difficulties in concentration, persistence and pace because:
(I) the evidence from his treating physician showed intact cognitive functioning; (2) he was able
to maintain the concentration required to perform his somewhat limited activities of daily living;
and (3) he answered all questions asked of him in a timely and appropriate manner at the hearing
before the AU, demonstrating the ability to concentrate. (Id.). Lastly, the AU found that a
review of the record indicates that Plaintiff had not experienced any episodes of decompensation.
(Id.). By making the above findings, the AU offered substantial evidence in support of her

decision that Plaintiffs depression did not meet the listing for affective disorders (Listing 12.04).
4.

Conclusion

Because the AU adequately explained why Plaintiffs impairments did not meet the
relevant listings and provided a thorough discussion of the evidence, the Court concludes that the
17

AU’s determination that Plaintiff “does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments” is supported by substantial
evidence. See e.g., Mason, 2010 WL 3024849 at *2 (finding such a determination sufficient
where the AU provided a thorough review of all the evidence in the record); see also Jimenez v.
Astrue, No. 07-3556, 2008 WL 5377781 at *10 (D.N.J. Dec. 19, 2008) (finding the same).

Moreover, Plaintiff fails to point to any evidence ignored by the AU suggesting that his
combined impairments would medically equal a listing. See Cosby, 231 F. App’x at 146 (findin
g
this shortcoming significant). As such, Plaintiff’s reliance on this Court’s holding in Clark v.
Astrue is misplaced since there was competent evidence in that case that the plaintiff’s

impairments medically equaled Listing 1.04. No. 10-4470, 2011 WL 3444144 at *9 (D.N.J.
Aug. 5,2011).
B.

Whether the AU Properly Assessed Plaintiff’s Credibility at Step Four

An AU must make a finding concerning the credibility of a claimant’s statements about
his symptoms and their functional effects at step four. S.S.R. 96-7p. In doing so, the AU must
articulate the reasons for her credibility finding and consider the following evidence in the
record:
(1) The objective medical evidence;
(2) The claimant’s daily activities;
(3) The location, duration, frequency, and intensity of the
claimant’s pain or other symptoms;
(4) Factors that precipitate or aggravate the symptoms;
(5) The type, dosage, effectiveness, and side effects of any
medication the claimant takes or has taken to alleviate pain or
other symptoms;
(6) Treatment, other than medication, the claimant receives or has
received for relief of pain or other symptoms;
(7) Any measures other than treatment the claimant uses or has
used to relieve pain or other symptoms; and
(8) Any other factors concerning the claimant’s functional
limitations and restrictions due to pain or other symptoms.
18

S.S.R. 96-7p. Notably, a claimant’s “[sjubjective complaints cannot alone establish disability.”
Gantt v. Comm ‘r ofSoc. Sec., 205 F. App’x 65, 67 (3d Cir. 2006) (citing 20 C.F.R.

§

404.1529(a)).
Here, the AU found that Plaintiff’s impairments could reasonably be expected to cause
his stated symptoms arising from his knee pain, back pain, and depression, but that those
statements were not credible to the extent that they were inconsistent with her RFC finding.
9
(See R. at 32). Plaintiff argues that the AU’s credibility finding is not based on substantial
evidence because: (1) she improperly relied on his activities of daily living to discredit him; (2)
she improperly relied on a speculative inference—i.e., that he aimed to secure disability benefits
to end his financial woes—as a basis to discredit him; and (3) she ignored his exemplary work
history in articulating the reasons for her credibility finding. (Pl.’s Br. 13-17). The Court now
considers each of Plaintiff’s arguments in turn.
1.

Whether the AU Improperly Relied on Plaintiff’s Activities of Daily
Living in Making Her Credibility Finding

Plaintiff argues that the AU improperly relied on his activities of daily living in
discounting his subjective testimony and making her credibility finding. (See id. at 13-14).
Social Security Ruling 96 explicitly states that an AU must consider a claimant’s “daily
p
7
activities” when assessing his credibility. Likewise, the Third Circuit has clarified that while
“disability does not mean that a claimant must vegetate in a dark room excluded from all forms
of human and social activity

...

{ijt is nonetheless appropriate for the AU to consider the number

and type of activities in which the claimant engages.” Turby v. Barnhart, 54 F. App’x 118,121
n.1 (3d Cir. 2002) (internal quotation marks and citations omitted). As such, in considering

The AU ‘s RFC is quoted above at the beginning of Part III of this Opinion.

19

Plaintiff’s activities of daily living when assessing his credibility, the
AU complied with the
obligations that the law imposes on her. In doing so, she did not comm
it reversible error.
2.

Whether the AU Improperly Relied on a Speculative Inference as Basis
a
to Discredit Plaintiff

Plaintiff next argues that the AU improperly relied on a speculative
inference as a basis
to discredit him. (See Pl.’s Br. 14-16). Specifically, Plaintiff argues
that the AU improperly
speculated that his financial woes motivated him to exaggerate his
symptoms. (Id. at 14). He
also argues that the AU improperly speculated that his treating physic
ians and psychiatrists may
have been tempted to overstate the severity of his limitations out of
sympathy for his financial
circumstances. (Id. at 14-1 5).
The Court agrees with Plaintiff that the AU should not have includ
ed such unnecessary
speculation in her opinion. Indeed, “an AU may not make specul
ative conclusions without any
supporting evidence [that go] beyond the contradicted evidence
in the case.

.

.

.“

Burnett, 220

F.3d at 125; see also Nahory v. Colvin, No. 12-932, 2013 WL 39435
12 at *5 (W. D. Pa. July 30,
2013) (noting that S.S.R. 96-7p does not authorize an AU to consid
er a claimant’s motivation to
work or incentive not to work). There is simply no supporting
evidence in this case
substantiating the AU’s speculation. That said, this error does not
require remand since the
Court is satisfied that the AU has otherwise provided suffici
ent evidence in support of her
credibility finding. See Nahory, 2013 WL 3943512 at *5 (affirm
ing the AU’s decision
“notwithstanding the AU ‘s isolated comments regarding plainti
ff’s [financial motives]”).
To begin with, as S.S.R. 96-7p requires, the AU thoroughly
considered of the “objective
medical evidence.” (R. at 33-35). Among other things, the
AU considered: (1) the hospital
records from the Bayonne Medical Center concerning Plainti
ff’s heart condition; (2) the
treatment notes prepared by his treating physician, Dr. Steven
Levine, throughout the relevant
20

time period; (3) the MRIs taken of his lumbar spine and right
knee in December 2009; (4) the
Mental Impairment Questionnaire and treatment notes prepar
ed by his treating psychologist, Dr.
Carluccio; and (5) the available consultative examinations.
(Id.). In addition, as S.S.R. 96-7p
requires, the AU considered Plaintiff’s daily activities. She
noted that Plaintiff showers, shaves,
cooks, cleans, launders, watches television, drives a car, and
socializes with his family. (Id. at
31).
As S.S.R. 96-7p requires, the AU also considered the locatio
n, duration, frequency, and
intensity of the pain produced by each of Plaintiff’s impairments.
With regard to Plaintiff’s heart
disorder, the AU noted that Plaintiff testified that he though
t he could lift up to fifteen pounds
before he would experience chest pain. (Id. at 31). She ultima
tely discounted this testimony to
the extent that it was inconsistent with her RFC finding that
Plaintiff could lift or carry twenty
pounds occasionally and ten pounds frequently. In doing so,
she noted that Dr. Levine’s
treatment notes contain few complaints pertaining to that disord
er—in April 2008 Plaintiff
denied having chest pain and in February 2009 he had no compl
aints—and that a myocardial
perfusion test and EKO administered in April 2010 were within
normal limits. (Id. at 33). She
also noted that “[Plaintiff] has required only medication manag
ement since the stent placement.”
(Id. at 35).

With regard to the location, duration, frequency, and intensi
ty of the pain produced by
Plaintiff’s degenerative disc disease, the AU noted that
Plaintiff testified that his back starts to
hurt him after a while of sitting and that he needs to get
up about every forty-five minutes. (Id. at
31). The AU’s RFC finding accounted for this symptom
by permitting Plaintiff to stand up after
sitting for forty-five minutes to an hour so that he could
stand and stretch for three to five
minutes. (Id. at 30).

21

With regard to the location, duration, frequency, and intensity
of the pain produced by
Plaintiff’s right knee impairment, the AU noted that Plain
tiff testified that after a while of sitting
his knee stiffens up and that he needs to get up about ever forty
y
-five minutes. (Id. at 31). She
also noted that Plaintiff had testified that he is able to walk
about one-and-a-half blocks before
his knee gives out, and that he is able to stand for about ten
to fifteen minutes at a time. (Id.).
She discounted this testimony to the extent that it was inco
nsistent with her RFC finding that
Plaintiff could stand or walk for two hours in an eight hour
workday, and sit for six hours in an
eight hour workday if permitted to stand up every forty
-five minutes to an hour in order to stand
and stretch for three to five minutes. (Id. at 30). In doing
so, she noted that although Plaintiff’s
right knee had a meniscus tear with degeneration and tend
erness in the joint, Dr. Levine
observed in February 2010 that the knee did not exhibit
any decreases in its range of motion or
strength, and that the joint did not exhibit any swelling.
(Id. at 33). She also noted that
Plaintiff’s activities of daily living were inconsistent with
his testimony that he could not stand
for more than fifteen minutes or walk for more than oneand-a-half blocks. (Id. at 35).
With regard to the duration, frequency, persistence, and inten
sity of the symptoms
stemming from Plaintiff’s depression, the AU noted that
Plaintiff had testified that he
experiences some bad days and that he sometimes will
not leave his apartment for weeks. (Id. at
31). The AU discounted this testimony to the exten
t that it was inconsistent with her RFC
finding that Plaintiff is capable of performing low stres
s, unskilled and repetitive jobs that permit
three fifteen minute breaks during the workday, and requ
ire: no work in close proximity to
others; only occasional contact with supervisors and
coworkers; and no contact with the general
public. (Id. at 30, 31). In doing so, the AU discu
ssed the Mental Impairment Questionnaires
prepared by Dr. Carluccio and Dr. Cannella, explainin
g how they supported her RFC finding.

22

(Id. at 35). Crucially, Plaintiff has not pointed to any relevant medica
l evidence overlooked by
the AU in assessing his credibility. See Burns, 312 F.3d at 129 (findin
g this shortcoming
significant).
3.

Whether the AU Properly Considered Plaintiff’s Work History
in Making
her Credibility Finding

Plaintiff argues that the AU’s Credibility finding is deficient becaus
e she did not discuss
his twenty-three year work history with the NJDOT. (Pl.’s Br.
16-17). Plaintiff contends that
when a claimant has a long work history, the claimant’s testimony
concerning his ability to work
is entitled to substantial credibility on that basis alone. (Id.). Plainti
ff’s contention is inapposite.
A claimant’s testimony of subjective pain is not entitled to absolu
te credibility solely
because he has an exemplary work history. See Christ! v. Astrue
, No. 08-290, 2008 WL
4425817 at *12 (W. D. Pa. Sept. 28, 2008) (citation omitted)
(“[Am AU is not required to

equate a long work history with credibility.”); see also Polardino
v. Colvin, No. 12-806, 2013
WL 4498981 at *5 (W.D. Pa. Aug. 19, 2013) (noting that “work
history is only one of many
factors an AU may consider in assessing a claimant’s subjective
complaints.”). At bottom,
competent medical evidence must support the AU’s testimony
of subjective pain in order for an
AU to find it credible. See Craigv. Astrue,No. 11-215J, 2013
WL 322516 at *3 (W. D. Pa. Jan.
28, 2013) (“The testimony of a claimant with a long, produc
tive work history may be given
substantial credibility with regard to her work-related limitations
but only when those limitations
are supported by competent medical evidence.”).
Here, as discussed above, the AU properly evaluated Plainti
ff’s credibility based on the
entire record, including the available objective medical eviden
ce. In doing so, she did not
entirely ignore Plaintiff’s work history. While she did not
explicitly state that Plaintiff had
worked for the NJDOT for twenty-three years, she did note
that Plaintiff had worked for the
23

NJ DOT and that he took a medical retirement. (R. at 23). Ultimately, the
AU’s decision read as
a whole illustrates that the AU considered Plaintiffs testimony and the
objective medical
evidence in fashioning her RFC. Thus, the Court concludes that the
AU’s credibility finding is
based on substantial evidence. See generally Gantt, 205 F. App’x
at 67 (internal quotation marks
and citations omitted) (“fAin AU has discretion to evaluate the credibi
lity of a claimant and
arrive at an independent judgment in light of medical findings and
other evidence..

. .“);

see

also Woods v. Astrue, No. 07-252, 2009 WL 1177086 at *7 (D. Del. Apr.
30, 2009) (finding that
the AU’s analysis of the Plaintiffs credibility was sufficient where
the AU expressly
considered the objective medical evidence in the record).
C.

Whether the AU’s Hypothetical Question to the Vocational Expert was
Deficient

Plaintiff argues that the AU’s hypothetical question to the vocational
expert (“yE”) at
step five was deficient because she did not mention Plaintiffs compl
aints of pain. (Pl.’s Br. 17).
Defendant counters that “the AU was not obligated to include in
his hypothetical question
limitations that he reasonably rejected.” (Def. ‘s Br. 24). The Court
agiees with Defendant for
the reasons that follow.
An AU

‘5

hypothetical question to a VE “must reflect all of a claimant’s impair
ments that

are supported by the record.

. .

.“

Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)

(internal citations omitted). Thus, a hypothetical question is suffici
ent if it reflects “all of a
claimant’s credibly established limitations.” Rutherford, 399
F.3d at 554 (3d Cir. 2005)
(emphasis in the original and citation omitted).
Here, the AU’s hypothetical question to the VE virtually mirror
s her RFC finding at step
four. (See R. at 30, 73-74). As discussed in Part III. B. of this
Opinion, the AU reasonably
assessed Plaintiffs credibility at step four, discounting his compla
ints of pain, when making her

24

RFC finding. Consequently, the AU was entitled to rely upon the VE’s respon
ses as substantial
evidence for her step five determination. See Izzo v. Comm ‘r ofSoc. Sec.,
186 F. App’x 280,
287-88 (3d Cir. 2006) (finding that the AU’s hypothetical question to the
VE provided
substantial evidence to support the AU’s step five finding where “the AU
properly considered
[the plaintiff’s] non-exertional limitations and her subjective complaints of
pain and fatigue in
making his RFC finding.”); see also Millan v. Comm ‘r ofSoc. Sec., No.
09-1065, 2010 WL
1372421 at *12 (D.N.J. Mar. 31, 2010) (holding that where “the AU’s finding
s in his RFC
determination were indeed supported by substantial evidence,” the hypoth
etical posed to the VE
which incorporated those findings “accurately conveyed

...

Plaintiff’s clearly established

limitations.”).
IV.

CONCLUSION
The Court has reviewed the entire record and, for the reasons discussed
above, finds that

substantial evidence supports the AU

‘5

determination that Plaintiff was not disabled.

Accordingly, the Court affirms the AU’s decision. An appropriate Order
accompanies this
Opinion.

ISTRICT JUDGE
DATED: Apri1{, 2014

25