JONES v. SOCIAL SECURITY ADMINISTRATION

Filing 13

OPINION. Signed by Judge Esther Salas on 12/19/2016. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
:
:
v.
:
:
CAROLYN COLVIN,
:
Acting Commissioner of Social Security, :
:
Defendant.
:
:
ELIE C. JONES,

Civil Action No. 14-6778 (ES)
OPINION

SALAS, DISTRICT JUDGE
Before the Court is pro se Plaintiff Elie C. Jones’s appeal seeking review of Administrative
Law Judge Dennis O’Leary’s (“ALJ” or “ALJ O’Leary”) decision denying his application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Title II
and Title XVI of the Social Security Act. The Court decides the matter without oral argument
pursuant to Federal Rule of Civil Procedure 78(b). The Court has subject matter jurisdiction
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons set forth below, the ALJ’s
decision is affirmed.
I.

BACKGROUND
Forty-year-old Plaintiff alleges disability due to numerous impairments, including sleep

apnea, back and knee problems, obesity, asthma, and depression. (D.E. No. 8, Administrative
Record (“Tr.”) at 47, 176-83). Plaintiff first identified as having these impairments when he was
thirty-four years old. (Id. at 176-83). Plaintiff has an associate’s degree from Berkley College in
business management and at least six years of work experience as a manager of a car rental agency.

1

(Id. at 44-46). Plaintiff stopped working in April 2006, due to his back problems and asthma. (Id.
at 45).
Plaintiff first applied for DIB and SSI with the Social Security Administration on
September 19, 2011, alleging a disability onset date of August 5, 2008. (Id. at 176-183, 199). His
claims were initially denied on February 27, 2012. (Id. at 110-15). Plaintiff’s claims were again
denied after reconsideration on May 30, 2012. (Id. at 119-20). Plaintiff then requested a hearing
with an ALJ, and on June 12, 2013, ALJ Dennis O’Leary held a hearing on the matter. (Id. at 3867). On July 12, 2013, ALJ O’Leary issued a written opinion, finding that Plaintiff’s disability
did not qualify for benefits and denying Plaintiff’s request for DIB and SSI. (Id. at 19-37).
Plaintiff requested review of the ALJ’s decision, and the Appeals Council denied his appeal
on October 7, 2014. (Id. at 1-5). Accordingly, the ALJ’s decision became the final decision of
the Commissioner of Social Security (“Commissioner”). (Id.; see also 20 C.F.R. § 404.981).
On October 29, 2014, Plaintiff appealed the Commissioner’s decision by filing the
Complaint in this action. (D.E. No. 1). The Administrative Record was filed on February 15,
2015. (D.E. No. 8). Plaintiff failed to file a brief within seventy-five days of receipt of the
Administrative Record, pursuant Local Civil Rule 9.1(e)(1). (See D.E. No. 10). Accordingly, the
Court administratively terminated Plaintiff’s appeal and instructed Plaintiff to file a brief. (See
id.). The parties subsequently briefed the issues raised on the instant appeal. (D.E. No. 11, Letter
from Elie C. Jones filed on December 21, 2015 (“Pl. Mov. Br.”); D.E. No. 12, Defendant’s Brief
Pursuant to Local Rule 9.1 filed on February 2, 2016 (“Def. Opp. Br.”)). The matter is now ripe
for resolution.

2

II.

LEGAL STANDARD
A. Standard for Awarding Benefits
To be eligible for DIB under Titles II and XVI of the Act, a claimant must establish that he

or she is disabled as defined by the Act. See 42 U.S.C. §§ 423 (Title II), 1382 (Title XVI). A
claimant seeking DIB must also satisfy the insured status requirements set forth in § 423(c).
Disability is defined 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. § 423(d)(1)(A). The individual’s physical or mental impairment(s) must be “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.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Act has established a five-step sequential evaluation process to determine whether a
plaintiff is disabled. 20 C.F.R. § 404.1520(a)(4). If at any point in the sequence the Commissioner
finds that the individual is or is not disabled, the appropriate determination is made and the inquiry
ends. Id. The burden rests on the claimant to prove steps one through four. See Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987).1 At step five, the burden shifts to the Commissioner. Id.
Step One. At step one, the claimant must demonstrate that he is not engaging in any
substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Substantial gainful activity is defined
as significant physical or mental activities that are usually done for pay or profit. Id. §§ 416.972(a),
(b). If an individual engages in substantial gainful activity, he is not disabled under the regulation,
regardless of the severity of his impairment or other factors such as age, education, and work

1

Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

3

experience. Id. § 404.1520(b). If the claimant demonstrates he is not engaging in substantial
gainful activity, the analysis proceeds to the second step.
Step Two. At step two, the claimant must demonstrate that his medically determinable
impairment or the combination of impairments is “severe.” Id. § 404.1520(a)(4)(ii). A “severe”
impairment significantly limits a plaintiff’s physical or mental ability to perform basic work
activities. 20 C.F.R. § 404.1520(c). Slight abnormalities or minimal effects on an individual’s
ability to work do not satisfy this threshold. See Leonardo v. Comm’r of Soc. Sec., No. 10-1498,
2010 WL 4747173, at *4 (D.N.J. Nov. 16, 2010).
Step Three. At step three, the ALJ must assess the medical evidence and determine
whether the claimant’s impairment or combination of impairments meet or medically equal an
impairment listed in the Social Security Regulations’ “Listings of Impairments” in 20 C.F.R. Part
404, Subpart P, Appendix 1. See 20 C.F.R. § 404.1520(a)(4)(iii). Upon a finding that the claimant
meets or medically equals a listing, the claimant is presumed to be disabled and is automatically
entitled to benefits. Id. § 416.920(d).
When evaluating medical evidence in step three, an ALJ must give controlling weight to,
and adopt the medical opinion of, a treating physician if it “is well-supported . . . and is not
inconsistent with the other substantial evidence in [the] case record.” Id. §§ 404.1527(c)(2),
416.927(c)(2). Not inconsistent does not mean that the opinion must “be supported directly by all
of the other evidence [i.e., it does not have to be consistent with all the other evidence] as long as
there is no other substantial evidence that contradicts or conflicts with the opinion.” Williams v.
Barnhart, 211 F. App’x 101, 103 (3d Cir. 2006). Even where the treating physician’s opinion is
not required to be given controlling weight, the opinion is not necessarily rejected and may still be
entitled to deference “depending upon the extent to which supporting explanations are provided.”

4

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). If there is conflicting medical evidence, “the
ALJ may choose whom to credit but cannot reject evidence for no reason or for the wrong reason.”
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). “In choosing to reject the treating physician’s
assessment, an ALJ may not make speculative inferences from medical reports and may reject a
treating physician’s opinion outright only on the basis of contradictory medical evidence and not
due to his or her own credibility judgments, speculation or lay opinion.” Id.
Step Four. If a claimant is not found to be disabled at step three, the analysis continues to
step four, in which the ALJ determines whether the claimant has the residual functional capacity
(“RFC”) to perform his past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant lacks
the RFC to perform any work he has done in the past, the analysis proceeds.
Step Five. In the final step, the burden shifts to the Commissioner to show that there is a
significant amount of other work in the national economy that the claimant can perform based on
his RFC and vocational factors. Id. § 404.1520(a)(4)(v).
B. Standard of Review
The Court must affirm the Commissioner’s decision if it is “supported by substantial
evidence.” 42 U.S.C. §§ 405(g), 1383(c)(3); Stunkard v. Sec’y of Health & Human Servs., 841
F.2d 57, 59 (3d Cir. 1988). “Substantial evidence does not mean a large or considerable amount
of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). Although substantial evidence requires “more than a mere
scintilla, it need not rise to the level of a preponderance.” McCrea v. Comm’r of Soc. Sec., 370
F.3d 357, 360 (3d Cir. 2004). While failure to meet the substantial evidence standard normally

5

warrants remand, such error is harmless where it “would have had no effect on the ALJ’s decision.”
Perkins v. Barnhart, 79 F. App’x 512, 515 (3d Cir. 2003).
The Court is bound by the ALJ’s findings that are supported by substantial evidence “even
if [it] would have decided the factual inquiry differently.” Hartranft, 181 F.3d at 360. Thus, this
Court is limited in its review because it cannot “weigh the evidence or substitute its conclusions
for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
Regarding the ALJ’s assessment of the record, the Third Circuit has stated, “[a]lthough the
ALJ may weigh the credibility of the evidence, he must give some indication of the evidence which
he rejects and his reason(s) for discounting such evidence.” Burnett v. Comm’r of Soc. Sec., 220
F.3d 112, 121 (3d Cir. 2000). The Third Circuit noted, however, that “Burnett does not require
the ALJ to use particular language or adhere to a particular format in conducting his analysis.
Rather, the function of Burnett is to ensure that there is sufficient development of the record and
explanation of findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d
Cir. 2004).
III.

DISCUSSION
On appeal, pro se Plaintiff requests that his social security application be approved.2 (Pl.

Mov. Br. at 2). Plaintiff does not allege any specific errors in the ALJ’s decision. Rather, Plaintiff
merely lists the reasons why his impairments—sleep apnea, obesity, herniated disks, depression,
and arching of the spine—prevent him from working. (Id. at 1-2). Defendant focuses on Plaintiff’s
RFC and counters that substantial evidence supports the ALJ’s RFC findings. (Def. Opp. Br. at
12).
The Court finds that the record contains substantial evidence to support the ALJ’s

2

Because it is unclear from Plaintiff’s brief whether he is challenging the ALJ’s conclusion that he was not
disabled or the ALJ’s RFC determination, the Court will address both conclusions. (See Pl.’s Mov. Br. at 1-2).

6

conclusions regarding Plaintiff’s impairments and RFC. The Court addresses each conclusion
below.
A. Plaintiff’s Impairments
On appeal, Plaintiff contends that he suffers from numerous impairments that prevent him
from working. (Pl. Mov. Br. at 1-2).
1. Step Two
At step two, the ALJ reached a decision in Plaintiff’s favor. There, the ALJ identified that
Plaintiff suffered from several severe impairments, including back disorders, obesity, sleep apnea,
degenerative joint disease, asthma, and depression. (Tr. at 24). The ALJ observed that “these
impairments impose more than a slight vocational limitation on the claimant’s ability to perform
work related activity for 12 consecutive months and are ‘severe’ as defined in the Regulations.”
(Id.). But the ALJ also determined that Plaintiff’s mental impairments did not meet or medically
equal the Social Security Administration’s listing requirements of severity for Listing Sections
12.04 (affective disorders) or Section 12.09 (substance addiction disorders). (Id.). The ALJ further
determined that Plaintiff’s mental impairments only caused mild limitations to Plaintiff’s daily
living, social functioning, and concentration, and did not cause any episodes of decompensation.3
(Id. at 24-26).
The ALJ’s step-two conclusion is supported by substantial evidence. Regarding Plaintiff’s
daily living, the ALJ noted that Plaintiff uses public transportation, drives a car, cares for his two
minor children, manages his personal care with assistance, shops for food once a month, does

3
These four criteria, the “Paragraph B” criteria, are used to alternatively show that a mental impairment is
severe. See 20 C.F.R. §§ 404.1520a(c)-(d), 416.920a(c)-(d). Each criterion requires a showing of a “marked
limitation,” meaning an impact that is “more than moderate but less than extreme.” 20 C.F.R. Part 404, Subpt. P,
App. 1. Because the ALJ found only mild impacts for the first three criteria, and no impact for the fourth criterion,
the ALJ concluded that Plaintiff’s mental impairment was “nonsevere.” (Tr. at 25-26; see also 20 C.F.R. §§
404.1520a(d)(1), 416.920a(d)(1)).

7

laundry, and watches television. (Id. at 25). As to Plaintiff’s social functioning, the ALJ concluded
that the limitation was mild because Plaintiff has a relationship with his children, mother, and
girlfriend, is able to socialize on the phone and computer, and has no problem getting along with
family, friends, and neighbors. (Id.). Regarding Plaintiff’s concentration, persistence, or pace, the
ALJ considered Plaintiff’s depression. (Id.). The ALJ concluded, however, that the limitation was
mild because Plaintiff did not require recurrent hospital visits, he reported improvement in his
conditions with medication, and his Global Assessment of Functioning was 70 (which is consistent
with mild symptoms). (Id.). Finally, the ALJ determined that Plaintiff did not experience episodes
of decompensation.

(Id.).

Accordingly, the ALJ’s determination as to Plaintiff’s mental

impairments at step two is supported by substantial evidence.
2. Step Three
At step three, the ALJ determined that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of the listed impairments.
(Id. at 26). At this step, an ALJ must determine the medical severity of an alleged disability by
comparison to the impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(a)(4)(iii). Claimants must present sufficient evidence to show that their impairment, or
combination of impairments, is equivalent to a listed impairment. Williams, 970 F.2d at 1186.
Furthermore, “[t]he ALJ must provide a ‘discussion of the evidence’ and an ‘explanation of
reasoning’ for his conclusion sufficient to enable meaningful judicial review.” Diaz v. Comm’r of
Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009). “Conclusory statements that a condition does not
constitute the medical equivalent of a listed impairment are insufficient.” Id. For the reasons
below, the Court concludes that the ALJ’s step-three determination is supported by substantial
evidence.

8

a. Spinal Impairments: Listing 1.04
At step two, the ALJ determined that Plaintiff’s back disorders were severe. (Id. at 24).
But at step three, the ALJ considered Plaintiff’s spinal impairments under Listing 1.04 and
concluded that the impairments failed to meet the listing. (Id. at 26). In particular, the ALJ noted
that “the evidence fail[ed] to demonstrate the existence of a ‘herniated nucleus pulposis, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, or vertebral
fracture’ which results in the compromise of a nerve root or the spinal cord along with the
requirements of A, B, or C of this listing.” (Id.).
Although the evidence demonstrates that Plaintiff suffered from mild bulging discs and
mild spinal stenosis (id. at 28), the record fails to disclose any evidence of the requisite findings
under Listing 1.04A, B, or C, which require a showing of “nerve root compression characterized
by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss . . . and . . .
positive straight-leg raising test,” “spinal arachnoiditis,” or “lumbar spinal stenosis resulting in
pseudoclaudication,” respectively. 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.04. Specifically,
Plaintiff’s October 27, 2011 MRI showed two mild disc bulges with mild stenosis, with no showing
of nerve damage or compression. (Tr. at 372-73). Likewise, Dr. Hoffman’s internal medicine
examination of Plaintiff also found bulging disks, but concluded that although Plaintiff walks with
a cane, he appears to be able to walk without it. (Id. at 432). Thus, the record displayed no
evidence of Listing 1.04’s A, B, or C criteria. As such, the Court finds that substantial evidence
supports the ALJ’s conclusion on Listing 1.04.
b. Degenerative Joint Disease: Listing 1.02
At step two, the ALJ determined that Plaintiff’s degenerative joint disease was a severe
impairment. At step three, the ALJ concluded that Plaintiff’s knee-joint impairment failed to

9

medically equal the requirements of Listing 1.02. In particular, the ALJ determined that, pursuant
to the requirements of Listing 1.02, there was no evidence of
gross anatomical deformity and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected joint(s), and findings
on appropriate medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint with involvement of one major
peripheral weight-bearing joint resulting in the inability to ambulate effectively.
(Id. at 26). Substantial evidence supports the ALJ’s determination. Specifically, the ALJ
highlighted Dr. Hoffman’s internal medicine examination, which stated that (i) Plaintiff “walk[ed]
with a cane, but appear[ed] to be able to walk without it”; (ii) “[f]lexion and extension at the knee
appear to be slightly diminished . . . but there is no swelling and . . . no crepitus”; (iii) Plaintiff was
“able to put weight on either leg”; and (iv) Plaintiff had “full range of motion” in his upper
extremities and “can bend at the knees maybe about halfway.” (Id. at 432-33). Thus, the record
supports only mild joint impairments, and the ALJ’s conclusion on Listing 1.02 is supported by
substantial evidence.
c. Asthma: Listings 3.02 and 3.03
At step two, the ALJ determined that Plaintiff’s asthma was a severe impairment. At step
three, the ALJ concluded that Plaintiff did not meet the testing requirements for chronic pulmonary
insufficiency (Listing 3.02), and did not have the required number of attacks for an asthma
disability (Listing 3.03). (Id. at 26). Dr. Hoffman stated that Plaintiff’s pulmonary function test
showed a total vital capacity at one-hundred percent of the expected value, and that Plaintiff’s onesecond forced expiratory volume was at eighty-one percent of the expected value. (Id. at 433).
Indeed, Dr. Hoffman concluded that those tests constituted “better than normal pulmonary function
test response.” (Id.). Furthermore, the record does not demonstrate that Plaintiff suffered
asthmatic attacks as frequently as required by Listing 3.03. See 20 C.F.R. Part 404, Subpt. P, App.

10

1, § 3.03 (requiring asthma attacks “at least once every 2 months or at least six times year”). Thus,
the ALJ’s determination as to Plaintiff’s asthma is supported by substantial evidence.
d. Sleep Apnea: Listing 3.10
At step three, the ALJ concluded that Plaintiff’s sleep-related breathing disorders did not
meet the requirements of Listing 3.10. (Tr. at 26). In particular, the ALJ determined that the
record failed to contain clinical evidence of “cor pulmonale” or “organic mental disorders,” as
required to show a sleep-related breathing disorder disability. (Id.). Although Plaintiff has an
extensive medical history regarding sleep apnea (see Tr. at 27-29), the condition was “adequately
treated” with the CPAP mask (id. at 31-32; see also id. at 252, Holy Name Medical Center, Center
for Sleep Medicine Sleep Study (stating that Plaintiff exhibited “improved sleep architecture” with
use of CPAP)). Accordingly, the ALJ’s determination as to Plaintiff’s sleep apnea is supported by
substantial evidence.
e. Obesity
At step two, the ALJ determined that Plaintiff’s obesity was a severe impairment. (Id. at
24).

Although obesity is not a listed disability, “an individual with obesity ‘meets’ the

requirements of a listing if he or she has another impairment that, by itself, meets the requirements
of a listing.” Social Security Ruling (“SSR”) 02-1P, 67 Fed. Reg. 57859, 57862 (Sept. 12, 2012).
Furthermore, the Social Security Administration “will also find that a listing is met if there is an
impairment that, in combination with obesity, meets the requirements of a listing.” Id. Thus, “an
ALJ must meaningfully consider the effect of a claimant’s obesity, individually and in
combination with her impairments, on her workplace function at step three and at every subsequent
step.” Diaz, 577 F.3d at 504.
Here, ALJ O’Leary considered Plaintiff’s obesity both individually and in combination

11

with his other impairments. Plaintiff points to no evidence in the record to illustrate that the ALJ
failed to appropriately consider obesity. Indeed, the ALJ, in accordance with several sections
throughout Appendix 1, namely 1.00Q, 3.00I, and 4.00I(1), “fully considered obesity in the context
of the overall record in making” a determination at step three. (Tr. at 26). Accordingly, the ALJ
did not err in considering obesity.
Based on the foregoing, the Court concludes that the ALJ’s step-three determinations are
supported by substantial evidence.
B. Plaintiff’s RFC
The Court turns to the ALJ’s conclusion that Plaintiff had the RFC to engage in “light work
as defined in 20 CFR 404.1567(b).” (Id. at 27). In evaluating an individual’s RFC, an ALJ “must
have evaluated all relevant evidence.” Martin v. Comm’r of Soc. Sec., 547 F. App’x 153, 160 (3d
Cir. 2013). The ALJ must further have “explained [his] reasons for rejecting any such evidence”
and “also must have given the claimant’s subjective complaints serious consideration.” Id.
In reaching his RFC determination, the ALJ followed a two-part test: (i) the ALJ considered
whether Plaintiff had “medically determinable . . . impairment(s) that could reasonably be expected
to produce [his] symptoms”; and (ii) the ALJ evaluated “the intensity, persistence, and limiting
effects of [Plaintiff’s] symptoms to determine the extent to which they limit his functioning.” (Tr.
at 27; see also 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). The ALJ added that he had
“considered all symptoms and the extent to which these symptoms could reasonably be accepted
as consistent with the objective medical evidence and other evidence.” (Id.).
ALJ O’Leary’s light work RFC determination is supported by substantial evidence. Light
work is defined as “lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.” 20 C.F.R. § 404.156(b). In addition, the ALJ added that

12

Plaintiff “must avoid exposure to dust, fumes, odor and pulmonary irritants due to asthma; and he
must avoid exposure to heights and dangerous machinery due to residuals of his sleep apnea.” (Tr.
at 27). In reaching the RFC determination, the ALJ considered the full breadth of Plaintiff’s
medical history, as well as Plaintiff’s presence and testimony at the hearing. (Id. at 27-29). Indeed,
Plaintiff does not point this Court to any evidence in the record that the ALJ left unturned.
Importantly, the ALJ noted that Plaintiff might have difficulties performing heavy work, but noted
that the record was devoid of any evidence that would preclude Plaintiff from performing light
work. (Id. at 31).
To start, the ALJ considered Plaintiff’s subjective testimony regarding his impairments.
The ALJ determined that Plaintiff’s “impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning intensity, persistence and
limiting effect of those symptoms are not entirely credible.” (Id. at 30). Plaintiff testified that he
suffers from significant back pain, rating his pain at a nine. (Id. at 29). But the ALJ concluded
that the evidence failed to support the degree of pain alleged. (Id. at 30). Indeed, a 2011 MRI
revealed “mild” disc bulges, and Plaintiff’s doctors opined that conservative therapy was adequate
to treat his pain. (Id. at 30, 372). Moreover, Plaintiff testified that he never had surgery or epidural
injections. (Id.).
Plaintiff also testified that he had marked difficulties with standing, walking, sitting, lifting,
and carrying, which the ALJ found to be “in variance with the medical evidence.” (Id.). Plaintiff
testified, and the medical evidence shows, that he walks with a cane. Dr. Hoffman noted, however,
that Plaintiff was also able to walk without a cane. (Id. at 432). Nevertheless, the ALJ considered
the injury sustained to Plaintiff’s knee during an automobile accident, but ultimately concluded
that it was adequately treated with medication and physical therapy. (Id. at 30). Moreover, Dr.

13

Hoffman noted a full range of motion in Plaintiff’s upper extremities with no evidence of deficits.
(Id. at 433).
The ALJ also considered the effects of Plaintiff’s sleep apnea. In particular, the ALJ noted
that Plaintiff appeared to “close his eyes a lot” at the beginning of the hearing, but ten minutes
later, Plaintiff appeared to be alert and able to stay awake. (Id. at 31). Moreover, the ALJ again
noted that Plaintiff’s sleep apnea is adequately treated with the CPAP mask and that Plaintiff is
able to live alone, use public transportation, and drive a car, thus indicating that his daily activities
are not “significantly compromised” by his sleep apnea. (Id.). Ultimately, the ALJ “incorporated
any limitations this impairment might impose” on Plaintiff’s RFC. (Id.).
Similarly, the ALJ considered Plaintiff’s asthma and stated that, “[b]ased on the evidence,
and giving the claimant the benefit of the doubt,” any limitations derived from Plaintiff’s asthma
would be considered in the RFC. (Id.).
Furthermore, the ALJ properly weighed and considered the conflicting expert testimony,
giving Dr. Paul Cummo’s4 and Dr. Kenneth Conte’s expert reports less weight because they were
inconsistent with other medical reports and were unsupported by any clinical findings. (Id. at 32).
Dr. Cummo’s report, for example, opined that Plaintiff suffered from moderate-to-extreme
limitation with respect to work-related mental activities. (Id. at 490-92). Evidence in the record,
however, contradicts Dr. Cummo’s conclusion—namely, the treatment records from the
Hackensack University Medical Center, which showed a GAF of 70, and Plaintiff’s improvement
with prescription medication. (Id. at 32; see also id. at 459-64). Likewise, Dr. Conte’s opinion
that Plaintiff had work limitations with respect to walking, climbing, stooping, bending, and lifting

4

The ALJ mistakenly refers to Dr. Cummo as Dr. Casano. It is clear from the record that the ALJ is referencing
Dr. Cummo because the ALJ cites the June 10, 2013 Medical Source Statement at Exhibit 14F (which was
administered by Dr. Cummo, not Dr. Casano).

14

(id. at 495), is contradicted by other evidence in the record—as detailed above. The ALJ was well
within his discretion to afford these reports less weight. See, e.g., Sherman v. Colvin, No. 15-281,
2015 WL 4727298, at *14 (M.D. Pa. Aug. 10, 2015) (finding no error where the ALJ “provided
reasons for his determination,” including inconsistencies in the record).
Accordingly, the ALJ’s determination that Plaintiff has an RFC to perform light work is
also supported by substantial evidence.
IV.

CONCLUSION
For the foregoing reasons, the Court affirms ALJ O’Leary’s decision. An appropriate

Order accompanies this Opinion.
s/Esther Salas
Esther Salas, U.S.D.J.

15