WILFORD v. COMMISSIONER OF SOCIAL SECURITY

Filing 12

OPINION. Signed by Judge Susan D. Wigenton on 2/7/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ALVARO WILFORD

Civil Action No. 2:16-cv-02391 (SDW)
Plaintiff,

v.
OPINION
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

February 7, 2017

WIGENTON, District Judge.
Before the Court is Plaintiff Alvaro Wilford’s (“Plaintiff” or “Wilford”) appeal of the final
administrative decision of the Commissioner of Social Security (“Commissioner”) that he is not
disabled under sections 216(i) and 223(d) of the Social Security Act (the “Act”). This appeal is
decided without oral argument pursuant to Federal Rule of Civil Procedure 78. This Court has
subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Venue is proper under 28 U.S.C.
§ 1391(b). For the reasons set forth below, this Court AFFIRMS the Commissioner’s decision.
I.

PROCEDURAL AND FACTUAL HISTORY
A. Procedural History
On September 11, 2012, Plaintiff applied for Disability Insurance Benefits (“DIB”) (R.

208-214), alleging disability as of February 4, 2009, due to morbid obesity, asthma, obstructive
sleep apnea, and diabetes (R. 32). On May 2, 2014, Plaintiff filed an application for Supplemental
Security Income (SSI).

(Id.)

Plaintiff’s application was denied both initially and upon

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reconsideration. (R. 30, 123-27, 133-138.) Plaintiff’s subsequent request for a hearing before an
administrative law judge (“ALJ”) was granted, and a hearing was held before ALJ Donna A.
Krappa (“ALJ Krappa”) on September 24, 2014. (R. 156-188.) Plaintiff, as well as a vocational
expert, appeared and testified at the hearing. (See R. 77-100.) On February 11, 2015, ALJ Krappa
issued a decision finding Plaintiff was not disabled and denying his application for disability
benefits. (R. 24-43.) On April 7, 2016, the Appeals Council denied Plaintiff’s request for review
of ALJ Krappa’s June 11, 2012 decision, making it the Commissioner’s final decision. (R. 1-7.)
Plaintiff now seeks reversal of ALJ Krappa’s decision and asks this Court to grant his request for
DIB or other relief as this Court deems appropriate. (Compl. 4.)
B. Factual History
1. Personal and Employment History
Plaintiff was born on April, 20, 1975 and was 39 at the time of ALJ Krappa’s decision.
(See R. 103.) Plaintiff’s highest level of education is the completion of the ninth grade. (R. 95,
224.) He has previously worked as a machine operator and mechanic. (R. 95, 224.) Plaintiff
alleges that he became disabled as of February 4, 2009, due to the following medical
impairments: “morbid obesity, asthma, obstructive sleep apnea and diabetes.” (Compl. ¶ 15.)
2. Medical History
Numerous medical doctors and healthcare practitioners examined Plaintiff in relation to
his disability claim. (R. 101-122.) In addition, Plaintiff testified about his health before ALJ
Krappa. (R. 77-100.) The following is a summary of the medical evidence:
Plaintiff alleges that he is unable to work due to mainly physical ailments. (R. 223.) Specifically,
Plaintiff contends that he suffers from high blood pressure, cholesterol, asthma, heart problems,
and sleep apnea. (Id.) Plaintiff visited Trinitas Regional Medical Center on several occasions
due to shortness of breath and asthma. (R. 333, 338, 409.) On December 31, 2010, he was
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brought by ambulance for shortness of breath and wheezing. (R. 409.) He was diagnosed with
asthma and acute dyspnea and discharged after treatment. (R. 409.) On December 16, 2012,
Plaintiff went to the emergency room for a cough and fever. (R. 444.) During this visit, Plaintiff
did not show any acute cardiopulmonary abnormalities, and he was diagnosed with an upper
respiratory infection. (R. 444-448.)
Other emergency room contacts, all same day discharges, were unrelated to asthma and
did not show any other severe impairment. (R. 367, 368, 492.) On March 30, 2011, Plaintiff
went to an emergency room for a rash on his arm. (R. 392.) On October 21, 2011, Plaintiff was
seen for chest pain with palpitations after eating greasy food and watching television. (R. 367.)
All cardiac testing was negative, and Plaintiff was diagnosed with “acute gastritis, anxiety,
hypertension and atypical musculoskeletal chest pain.” (R. 368.) Plaintiff also went to an
emergency room on March 15, 2012, due to pain in the left foot; his x-rays yielded negative
findings. (R. 355-356.)
In August, November and December 2012, pulmonary function testing revealed Plaintiff
had signs of small airway disease. (R. 418, 419, 454.) Plaintiff has documented sleep apnea and
receives regular treatment, including use of a CPAP machine. (R. 456.) Dr. Vipin Garg, his
treating physician, noted that Plaintiff should make efforts to lose weight. (R. 456.) Dr. Garg
also indicated that he could provide no opinion of work ability and that Plaintiff had no limiting
conditions that interfered with his ability to work. (R. 442.) In 2013, Plaintiff had several follow
up appointments with Dr. Garg for obstructive sleep apnea. (R. 458, 462, 515, 518, 522.)
Dr. Joseph DiLallo met with Plaintiff for a one-time internal consultative examination in
December 2012, and diagnosed Plaintiff with asthma, sleep apnea, high cholesterol,
hypertension, morbid obesity, and transient heart difficulty/rhythm difficulty with sinus rhythm.

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(R. 424.) Plaintiff had no positive neurological or musculoskeletal findings. (Id.) Dr. DiLallo
noted that due to obesity, all pulses were difficult to evaluate; however, Plaintiff did not show
extreme coldness or evidence for inflammation or edema of the lower extremities. (R. 424.)
Plaintiff reported that his blood pressure was controlled, and his asthma and sleep apnea were
successfully being treated. (R. 422.) Based on his evaluation, Dr. DiLallo opined Plaintiff’s
physical functions were considerably limited due to his morbid obesity, and as such, he would
not be able to engage in “hard labor” or “drive a truck” as Plaintiff had previously done. (R.
425.)
Plaintiff also visited Dr. Michel-Ange Ferdinand of La Familia Medical Care on August
13, 2012. (R. 419.) A pulmonary function test showed small airway disease and an EKG was
significant for left ventricular dysfunction. (R. 419.) Dr. Ferdinand diagnosed Plaintiff with
asthma, obstructive sleep apnea, and morbid obesity upon examination. (Id.) He did not report
any opinions of disability or functional limitation. (Id.)
Beginning in June 2013 and continuing through December, Plaintiff developed
nephrolithiasis and was seen on several occasions for kidney stones. (R. 462.) During this time,
he underwent a cystoscopy for a preoperative diagnosis of a ureteral stent found on his left
abdomen. (R. 467.) No abnormalities of the urethra were noted and the stent was not removed.
(R. 467-468.) Plaintiff also underwent extracorporeal shock wave lithotripsy for kidney stones.
(R. 493.) During a follow up evaluation on September 30, 2013, he was encouraged to continue
with decreased activity with regard to lifting and straining, but to increase walking and other
forms of gentle exercise. (R. 573.)

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3. Hearing Testimony
At the hearing held before ALJ Krappa on September 24, 2014, Plaintiff testified about
his previous employment, physical conditions, and treatments. (R. 82.) He testified he worked
as a machine operator and mechanic but was laid off in 2008. (R. 84.) He said he weighs over
350 pounds and is five feet, eleven inches tall. (R. 86.)
Plaintiff also testified that he could walk no more than two blocks, stand for fifteen
minutes, and sit for thirty minutes. (R. 87.) He said he would not be able to lift twenty pounds
because he would become short of breath and need to sit down. (R. 88.) Furthermore, Plaintiff
testified that he was unable to do certain physical activity, such as bringing in the grocery bags,
putting on socks, or tying his shoes. (R. 88.) He described his activities of daily living as
consisting of heating up food in a microwave oven, taking medication, and making his bed. (R.
89.)
Vocational Expert Rocco J. Meola (“Meola”) also testified at the hearing and opined that
Plaintiff would be unable to return to his prior work because of the superior exertional level it
required.
II.

LEGAL STANDARD
A. Standard of Review
In Social Security appeals, this Court has plenary review of the legal issues decided by the

Commissioner. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Yet, this Court’s review of the
ALJ’s factual findings is limited to determining whether there is substantial evidence to support
those conclusions. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence
“does not mean a large or considerable amount of evidence, but rather such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487
U.S. 552, 565 (1988) (internal citation and quotations omitted).
Substantial evidence is “less than a preponderance of the evidence, but ‘more than a mere
scintilla’; it is ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Bailey v. Comm’r of Soc. Sec., 354 F. App’x. 613, 616 (3d Cir. 2009) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Importantly, “[t]his standard is not met if the
Commissioner ‘ignores, or fails to resolve, a conflict created by countervailing evidence.’” Bailey,
354 F. App’x. at 616 (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). However, if
the factual record is adequately developed, “‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding from being
supported by substantial evidence.’” Daniels v. Astrue, No. 4:08-cv-1676, 2009 WL 1011587, at
*2 (M.D. Pa. Apr. 15, 2009) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)).
“The ALJ’s decision may not be set aside merely because [a reviewing court] would have reached
a different decision.” Cruz v. Comm’r of Soc. Sec., 244 F. App’x. 475, 479 (3d Cir. 2007) (citing
Hartranft, 181 F.3d at 360). This Court is required to give substantial weight and deference to the
ALJ’s findings. See Scott v. Astrue, 297 F. App’x. 126, 128 (3d Cir. 2008). Nonetheless, “where
there is conflicting evidence, the ALJ must explain which evidence he accepts and which he
rejects, and the reasons for that determination.” Cruz, 244 F. App’x. at 479 (citing Hargenrader
v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)).
In considering an appeal from a denial of benefits, remand is appropriate “‘where relevant,
probative and available evidence was not explicitly weighed in arriving at a decision on the
plaintiff’s claim for disability benefits.’” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.
1979) (quoting Saldana v. Weinberger, 421 F. Supp. 1127, 1131 (E.D. Pa. 1976)). Indeed, a

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decision to “award benefits should be made only when the administrative record of the case has
been fully developed and when substantial evidence on the record as a whole indicates that the
claimant is disabled and entitled to benefits.” Podedworny v. Harris, 745 F.2d 210, 221–22 (3d
Cir. 1984) (citations omitted).
B. The Five–Step Disability Test
A claimant’s eligibility for social security benefits is governed by 42 U.S.C. § 1382. An
individual will be considered disabled under the Act if the claimant is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment” lasting continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A). The
impairment must be severe enough to render the individual “not only unable to do his previous
work but [unable], considering his age, education, and work experience, [to] engage in any kind
of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). A
claimant must show that the “medical signs and findings” related to his or her ailment have been
“established by medically acceptable clinical or laboratory diagnostic techniques, which show the
existence of a medical impairment that results from anatomical, physiological, or psychological
abnormalities which could reasonably be expected to produce the pain or other symptoms alleged
. . . . ” 42 U.S.C. § 423(d)(5)(A).
To make a disability determination, the ALJ follows a five-step sequential analysis. 20
C.F.R. §§ 404.1520(a), 416.920(a); see also Cruz v. Comm’r of Soc. Sec., 244 F. App’x 475, 480
(3d. Cir. 2007). If the ALJ determines at any step that the claimant is or is not disabled, the ALJ
does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Step one requires the ALJ to determine whether the claimant is engaging in substantial
gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as

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work that “[i]nvolves doing significant and productive physical or mental duties . . . for pay or
profit.” 20 C.F.R. §§ 404.1510, 416.910. If the claimant engages in SGA, the claimant is not
disabled for purposes of receiving social security benefits regardless of the severity of the
claimant’s impairments. See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the individual is
not engaging in SGA, the ALJ proceeds to step two.
Under step two, the ALJ determines whether the claimant suffers from a severe impairment
or combination of impairments that meets the duration requirement found in Sections 404.1509
and 416.909. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or a combination
of impairments is not severe when medical and other evidence establishes only a slight abnormality
or combination of abnormalities that would have a minimal effect on an individual’s ability to
work.

20 C.F.R. §§ 404.1521, 416.921; SSR 85-28, 96-3p, 96-4p.

An impairment or a

combination of impairments is severe when it significantly limits the claimant’s “physical or
mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If a severe
impairment or combination of impairments is not found, the claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the ALJ finds a severe impairment or combination of
impairments, the ALJ then proceeds to step three.
Under step three, the ALJ determines whether the claimant’s impairment or combination
of impairments is equal to, or exceeds, one of those included in the Listing of Impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If an
impairment or combination of impairments meets the statutory criteria of a listed impairment as
well as the duration requirement, the claimant is disabled and entitled to benefits. 20 C.F.R. §§
404.1520(d), 416.920(d). If, however, the claimant’s impairment or combination of impairments
does not meet the severity of the listed impairment, or if the duration is insufficient, the ALJ

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proceeds to the next step.
Before undergoing the analysis in step four, the ALJ must determine the claimant’s residual
functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(a), 404.1520(e), 416.920(a), 416.920(e). An
individual’s RFC is the individual’s ability to do physical and mental work activities on a sustained
basis despite limitations from his or her impairments. 20 C.F.R. §§ 404.1545, 416.945. The ALJ
considers all impairments in this analysis, not just those deemed to be severe. 20 C.F.R. §§
404.1545(a)(2), 416.945(a)(2); SSR 96-8p. After determining a claimant’s RFC, step four then
requires the ALJ to determine whether the claimant has the RFC to perform the requirements of
his or her past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the claimant is able
to perform his or her past relevant work, he or she will not be found disabled under the Act. 20
C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). If the claimant is unable
to resume his or her past work, the disability evaluation proceeds to the fifth and final step.
At step five, the ALJ must determine whether the claimant is able to do any other work,
considering his or her RFC, age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). Unlike in the first four steps of the analysis where the
claimant bears the burden of persuasion, the burden shifts to the ALJ at step five to determine
whether the claimant is capable of performing an alternative SGA present in the national
economy. 20 C.F.R. §§ 404.1520(g)(1) (citing 404.1560(c)), 416.920(g)(1) (citing 416.960(c));
Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). At this point in the analysis, the SSA is
“responsible for providing evidence that demonstrates that other work exists in significant
numbers in the national economy that [the claimant] can do, given [the claimant’s RFC] and
vocational factors.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). If the claimant is unable to do
any other SGA, he or she is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

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III.

DISCUSSION
On February 11, 2015, after performing the five-step disability test, ALJ Krappa found

that from February 4, 2009 though the date of his decision, Plaintiff was not disabled as defined
by the Act. (R. 38.) At step one of the disability analysis, ALJ properly found that Plaintiff had
not engaged in SGA since February 4, 2009, the alleged onset date of Plaintiff’s disability. (R.
32.)
At step two, ALJ Krappa properly considered the entire medical record in making a
finding that Plaintiff suffered from the following severe impairments: “morbid obesity (currently
5’11” and 346 lbs); asthma; obstructive sleep apnea; and diabetes.” (Id.) She found that these
severe impairments “more than minimally effect[] [Plaintiff’s] mental and physical abilities to do
one or more basic work activities. In addition, . . . [Plaintiff’s] impairments have lasted at a
‘severe’ level for a continuous period of more than 12 months.” (Id.) These findings of severe
impairments are supported by substantial evidence in the record. Furthermore, ALJ Krappa
correctly determined that Plaintiff’s history of renal stones did not rise to the durational
requirements for a finding that this impairment is “severe” under the Regulations. (R. 32-33.)
At step three, ALJ properly determined that Plaintiff’s impairments did not equal or
exceed the impairments included in the Listing of Impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).
First, she properly found that the evidence in this case does not support a finding that Plaintiff
has impairments involving the respiratory system as defined in 3.02A, 3.02B, 3.03, and 3.10. (R.
33.) When addressing Listing 3.02A, 3.02B, and 3.03, ALJ found that the record is devoid of
evidence that meets the FEV1 levels required under 3.02A, or the number of attacks as described
in 3.02B. (Id.) In considering Listing 3.10, ALJ Krappa noted the evidence does not establish

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the requisite mean pulmonary artery pressure or arterial hypoxemia, or the loss of specific
cognitive abilities or affective changes required. (Id.)
Moreover, ALJ considered Plaintiff’s obesity in combination with his respiratory
impairments when determining whether Plaintiff’s impairments met or medically equaled a listed
impairment. (Id.) She properly found that the combination of Plaintiff’s impairments did not
medically equal a listing. (Id.) In support of her finding, ALJ Krappa correctly stated:
While the [Plaintiff’s] obesity when considered in conjunction with his other
impairments would not allow him to perform the exertional demands of work at
the very heavy, or heavy, levels . . . it would not prevent him from performing the
demands of medium work with the other limitations . . ..
(R. 34.) Therefore, ALJ Krappa properly found that Plaintiff’s impairments did not equal or
exceed the impairments in the Listing of Impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1.
Before undergoing the analysis in step four, ALJ Krappa determined Plaintiff’s RFC. (R.
14–18.) She properly found that Plaintiff has the RFC to perform medium work as defined in 20
C.F.R. 404.1567(a), with additional limitations of no use of ladders, ropes, or scaffolds; and no
concentrated exposure to undue amounts of dust or known chemical irritants. (R. 34.) In
making this determination, she considered all of Plaintiff’s symptoms to the extent they could be
accepted as consistent with the objective medical evidence and all other evidence based on the
requirements of 20 C.F.R. 416.929 and SSRs 96-4p and 96-7p. (Id.) ALJ Krappa also
considered opinion evidence in accordance with the requirements of 20 C.F.R. 416.927 and
SSRs 96-2p, 96-5p, 96-6p and 06-3p. (Id.) In support of her findings, she cited extensively to
Plaintiff’s testimony, the treatment and evaluative records of Dr. Garg, Dr. DiLallo, and Dr.
Ferdinand, as well as the records from Trinitas Regional Medical Center. (R. 36.) In light of the

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substantial evidence reviewed, this Court finds that ALJ Krappa properly determined Plaintiff’s
RFC.
At step four, ALJ Krappa properly found that Plaintiff cannot perform his past relevant
work under 20 C.F.R. 404.1565 and 416.965. (Id.) She cited to the vocational expert’s
testimony that Plaintiff cannot perform the work of a machine operator and noted that Plaintiff’s
past relevant work was performed at the medium level, and thus based on his RFC, he is unable
to perform such work. (Id.)
Lastly, at step five, ALJ Krappa properly found that Plaintiff can perform work that exists
in significant numbers in the national economy. (R. 37.) ALJ Krappa considered Plaintiff’s age,
education, work experience and RFC, as well as the vocational expert’s testimony. (R. 37.) The
vocational expert determined that Plaintiff was capable of satisfying the requirements of the
representative occupations of a sealing machine operator and ticketer, which exist in the
aggregate of thousands of jobs nationally. (Id.) Because Plaintiff is capable of performing work
that exists in significant numbers in the national economy, Plaintiff is not deemed disabled under
sections 216(i) and 223(d) of the Social Security Act. (R. 38.)

IV.

CONCLUSION
Because this Court finds that ALJ Krappa’s decision is supported by substantial evidence

in the record, the Commissioner’s determination is AFFIRMED.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Orig: Clerk
cc:
Parties

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