VARELA v. COMMISSIONER OF SOCIAL SECURITY

Filing 10

OPINION. Signed by Judge Stanley R. Chesler on 12/20/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
JUAN A. VARELA,
:
:
Plaintiff,
:
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v.
:
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COMMISSIONER OF SOCIAL
:
SECURITY,
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Defendant.
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____________________________________:

Civil Action No. 15-7633 (SRC)
OPINION

CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Juan A. Varela (“Plaintiff”)
of the final decision of the Commissioner of Social Security (“Commissioner”) determining that
he was not disabled under the Social Security Act (the “Act”). This Court exercises jurisdiction
pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of the parties without
oral argument, pursuant to L. CIV. R. 9.1(b), finds that the Commissioner’s decision will be
affirmed.
In brief, this appeal arises from Plaintiff’s application for disability insurance benefits,
alleging disability beginning June 17, 2009. A hearing was held before ALJ Moises Penalver
(the “ALJ”) on January 31, 2014, and the ALJ issued a partially favorable decision on March 28,
2014, finding Plaintiff disabled prior to June 18, 2011 and not disabled as of June 18, 2011.
After the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision became the
Commissioner’s final decision, and Plaintiff filed this appeal. Plaintiff appeals only the
unfavorable determination, and this Opinion will address only that portion of the ALJ’s decision.

In the decision of March 28, 2014, the ALJ made the following findings for the period
beginning June 18, 2011. The ALJ found that, at step three, Plaintiff did not meet or equal any
of the Listings. At step four, the ALJ found that Plaintiff retained the residual functional
capacity to perform medium work, with certain limitations. At step four, the ALJ also found that
this residual functional capacity was not sufficient to allow Plaintiff to perform his past relevant
work as a merchant patroller or doorman. At step five, the ALJ consulted a vocational expert
and concluded that there are other jobs existing in significant numbers in the national economy
which the claimant can perform, consistent with his medical impairments, age, education, past
work experience, and residual functional capacity. The ALJ concluded that, beginning June 18,
2011, Plaintiff was not disabled within the meaning of the Act.
On appeal, Plaintiff argues that the Commissioner’s decision should be reversed because
neither the step four residual functional capacity determination nor the step five determination
are based on substantial evidence.
Plaintiff’s challenge to the ALJ’s step four determination asks the Court to re-weigh the
expert medical testimony heard by the ALJ, to discredit it, and to remand the case to get new
testimony. Plaintiff offers no legal support for this position, nor does this Court know of any.
Under Bowen, Plaintiff bears the burden of proof at the fourth step.1 Plaintiff argues as if the
Commissioner bears the burden of proof, and as if the Court may re-weigh the evidence. As the
Third Circuit stated in a decision last month:
A federal court's substantial-evidence review is “quite limited.” Rutherford v.

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Plaintiff bears the burden in the first four steps of the analysis of demonstrating how his
impairments, whether individually or in combination, amount to a qualifying disability. Bowen
v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
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Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). A court may not weigh the evidence
or substitute its own findings for the Commissioner’s. Monsour Med. Ctr. v.
Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986). [Plaintiff’s] arguments amount
to a request to reweigh the evidence and review the Commissioner’s findings and
decision de novo.
Davern v. Comm'r of Soc. Sec., 2016 U.S. App. LEXIS 20024 (3d Cir. Pa. Nov. 7, 2016). This
Court cannot re-weigh the evidence, and Plaintiff has pointed to no medical evidence that, after
June 17, 2011, he lacked the residual functional capacity to perform medium work. The
Commissioner has pointed to the testimony of medical expert Dr. Brovender to support the
determination that, as of June 18, 2011, Plaintiff had the residual functional capacity to perform
medium work. The Commissioner’s step four determination is supported by substantial
evidence.
Plaintiff tries much the same argument at step five. At step five, the Commissioner does
bear the burden of proof, but the Court is still barred from re-weighing the evidence. Plaintiff
argues that the vocational expert’s testimony “established nothing, proved nothing and was
based on nothing.” (Pl.’s Br. 30.) As the Third Circuit held in rejecting a similar argument:
[Plaintiff] also argues that the ALJ erred in finding that he had retained the ability
to return to his past relevant work, i.e., as a clerk-typist and telephone solicitor, on
the basis that the vocational expert’s testimony did not support such a finding.
This argument amounts to another request for us to reweigh the evidence, which
we must reject.
McGonigal v. Barnhart, 153 Fed. Appx. 60, 62 (3d Cir. 2005). Again, this Court cannot reweigh the evidence.
Plaintiff has not challenged the validity of the hypothetical posed at step five to the
vocational expert. In this case, as in Plummer v. Apfel:
The vocational expert’s testimony was in response to a hypothetical that fairly set
forth every credible limitation established by the physical evidence. As such, it
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can be relied upon as substantial evidence supporting the ALJ’s conclusion that
[Plaintiff] is not totally disabled.
Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999). At step five, the Commissioner based his
determination on the testimony of a vocational expert in response to an appropriately-framed
hypothetical. The determination at step five is supported by substantial evidence.
This Court has reviewed the ALJ’s decision and finds that the ALJ’s decision is
supported by substantial evidence. Plaintiff has failed to persuade this Court that the ALJ erred
in his decision or that he was harmed by any errors. This Court finds that the Commissioner’s
decision is supported by substantial evidence and is affirmed.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: December 20, 2016

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