RODRIGUEZ v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Susan D. Wigenton on 03/09/2017. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil Action No. 2:16-cv-02807-SDW
COMMISSIONER OF SOCIAL SECURITY,
March 9, 2017
WIGENTON, District Judge.
Before the Court is Plaintiff Joselito Rodriguez’s (“Plaintiff”) appeal of the final
administrative decision of the Commissioner of Social Security (“Commissioner”), with respect
to Administrative Law Judge Dennis O’Leary’s (“ALJ O’Leary”) denial of Plaintiff’s claim for
Supplemental Security Income (“SSI”) under 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 finds that ALJ O’Leary’s factual findings
are supported by substantial credible evidence and that his legal determinations are correct.
Therefore, the Commissioner’s decision must be AFFIRMED.
PROCEDURAL AND FACTUAL HISTORY
A. Procedural History
Plaintiff applied for SSI on September 18, 2012. (Tr. 63.) His SSI application, which was
denied both initially and upon reconsideration, claimed he suffered from “diabetes, cholesterol,
back problems, [and] depression,” with an onset date of December 15, 2011. (Tr. 63, 93, 97–98).
Plaintiff subsequently requested a hearing before an administrative law judge (“ALJ”) and a
hearing was held before ALJ O’Leary on April 30, 2014. (Tr. 33–62.) Plaintiff, as well as a
vocational expert, appeared and testified at the hearing. (Id.) ALJ O’Leary then issued a decision
finding Plaintiff not disabled and denying Plaintiff’s application for disability benefits on
September 11, 2014. (Tr. 11–28.) On March 18, 2016, the Appeals Council denied Plaintiff’s
request for review of ALJ O’Leary’s decision, making it the Commissioner’s final decision. (Tr.
1–7.) Plaintiff now requests that this Court reverse the Commissioner’s decision and remand this
matter for an award of benefits or, in the alternative, for further administrative proceedings. (Pl.
Br. at 25.)
B. Factual History
Personal and Medical History
Plaintiff was 44 years old when he filed his claim for disability benefits on September 18,
He completed tenth grade and was previously employed as a hand
packager/factory worker. (Tr. 55, 201.) The record reflects that numerous medical doctors and
healthcare practitioners examined Plaintiff in relation to his disability claim. (See 282–418.) In
addition, Plaintiff testified about his health during a hearing before ALJ O’Leary. (See Tr. 33–
54.) The following is a summary of the medical evidence.
Plaintiff alleges that he has been unable to work due to his ailments as of December 15,
2011. (Tr. 63.) Specifically, Plaintiff asserts that he has numbness in his fingertips, back pain,
diabetes, asthma, and suffers from depression, schizophrenia, and bipolar disorder. (Tr. 39.)
a. Physical Symptoms
On June 30, 2011, Plaintiff was admitted to CURA, Inc., to be treated for alcohol, cocaine,
and heroin abuse. (Tr. 431.) Yolanda I. Dagnino, M.D. (“Dr. Dagnino”), a doctor at Plaintiff’s
residential drug and alcohol treatment facility, noted that Plaintiff had lower back pain. (Tr. 430–
31.) On February 10, 2012, Ashraf Mansour, M.D. (“Dr. Mansour”), reported that Plaintiff had
no muscle pain or swelling, no obvious muscle wasting, and no edema. (Tr. 380.) Dr. Mansour
also determined that Plaintiff had no focal deficits and had a grossly intact neurological exam. (Tr.
381.) Dr. Mansour reported that the doctor’s office would “fill papers for [Plaintiff’s] disability,”
but only for one month. (Tr. 375.) Plaintiff then went to Rajaram Kandasamy, M.D. (“Dr.
Kandasamy”), on March 17, 2012, where Plaintiff reported that he had “on and off” back and leg
pain. (Tr. 376.) Dr. Kandasamy, however, reported that Plaintiff had no motor or sensory deficits
and no edema. (Tr. 377–78.)
Plaintiff saw Lucyamma Thalody, M.D. (“Dr. Thalody”), on June 27, 2012, and informed
her that he had back pain. (Tr. 371.) However, Plaintiff admitted that he had not taken any
medications in the past two months and Dr. Thalody noted no abnormal musculoskeletal or
neurological deficits. (Id.) In addition, in September 2012, Dr. Thalody told Plaintiff to stop
returning to the practice for additional pain medication. (Tr. 358.)
On September 6, 2012, Rajeswari Pingle, M.D. (“Dr. Pingle”), reported that Plaintiff had
a normal gait, normal neurological exam, normal range of motion in his lower extremities, intact
sensation, and normal muscle strength. (Tr. 288, 294–95.) Dr. Dagnino, on October 22, 2012,
wrote a prescription for a wooden cane. (Tr. 314.) During a consultative exam on November 13,
2012, Rambhai Patel, M.D. (“Dr. Patel”), indicated that Plaintiff was walking with a cane, but
noted that he had normal reflexes and sensation, had no gross neurological deficits, and had no
localized tenderness or edema. (Tr. 387.) Dr. Patel also noted that Plaintiff had no vascular or
neurological involvement from his diabetes and that he had no asthma. (Id.) An x-ray showed
that Plaintiff’s lumbar spine had no fractures or dislocations and no spondylosis or
spondylolisthesis. (Id.) Plaintiff also indicated to Dr. Patel that he could lift 20 to 25 pounds. (Tr.
On December 3, 2012, Mary Ann Nicastro, M.D. (“Dr. Nicastro”), a state agency medical
consultant, opined that Plaintiff could complete the following: occasionally lift and/or carry ten
pounds, frequently lift and/or carry ten pounds, stand, walk, and sit for about six hours in an eighthour workday and push and/or pull without any limitation. (Tr. 69.) Nikolaos Galakos, M.D. (“Dr.
Galakos”), affirmed Dr. Nicastro’s December 3 opinion on February, 29, 2013. (See Tr. 82–83.)
In addition, on December 10, 2012, Sunita Sood, M.D. (“Dr. Sood”), documented that Plaintiff
had a normal range of motion. (Tr. 396–97.)
b. Mental Symptoms
During Plaintiff’s visit on March 17, 2012, Dr. Kandasamy indicated that Plaintiff’s mood
and mentation were normal. (Tr. 377.) During his visit with Dr. Rajeswari Pingle on September
6, 2012, Plaintiff had a normal psychiatric exam, and Dr. Pingle noted that Plaintiff was oriented
to person, place, and time and had a normal affect and memory. (Tr. 288.) Plaintiff also denied
suicidal ideation. (Tr. 286–88.) A nurse from CURA, Inc., also indicated that in October 2012,
Plaintiff stated that he was sleeping well and denied suicidal ideation. (Tr. 310.) On November
13, 2012, Plaintiff underwent a psychological examination with Paul Fulford, Ph.D. (“Dr.
Fulford”). (See Tr. 382.) Plaintiff stated that he had auditory hallucinations and felt like others
were watching him. (Tr. 384.) Plaintiff also stated that “[he tries] not to socialize too much,” but
that having a girlfriend in his life was “nice.” (Id.) Dr. Fulford found that Plaintiff had clear and
goal-directed speech, and “[n]o looseness of association, circumstantial or tangential thinking was
noted.” (Tr. 383.) Dr. Fulford assigned a Global Assessment of Functioning (GAF) score of 60,
indicating mild to moderate symptomology.1
On November 26, 2012, Seymour Bortner, M.D. (“Dr. Bortner”), a state agency medical
consultant, determined that Plaintiff’s limitations in activities of daily living and social functioning
were mild and that his limitations in maintaining concentration, persistence, or pace were
moderate. (Tr. 67.) In addition, Dr. Bortner indicated that Plaintiff had one or two episodes of
decompensation. (Id.) Dr. Bortner also opined that Plaintiff would have difficulty dealing with
difficult instructions, however, Plaintiff could understand and execute simple instructions as well
as “make work related decisions, interact with others and adapt to workplace change.” (Tr. 71.)
On March 10, 2013, Thomas Yared, M.D. (“Dr. Yared”), affirmed Dr. Bortner’s November
26 opinion. (See Tr. 81.) Dr. Yared determined that Plaintiff is not significantly limited in his
ability to carry out simple instructions, to work in coordination with or in proximity to others
without being distracted by them, and to make simple work-related decisions. (Tr. 84–85.) Dr.
Yared also determined that Plaintiff was moderately limited in his ability to carry out detailed
instructions, to maintain attention and concentration for extended periods, and to sustain an
ordinary routine without special supervision. (Id.)
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 34 (4th ed. 1994).
Plaintiff submitted a function report in support of his application for SSI. (Tr. 208–15.)
Plaintiff stated that his daily activities consist of taking a shower, getting dressed, going to
counseling, reading, and watching television. (Tr. 208.) Plaintiff also stated that he is in pain
when dressing himself, bathing, shaving, and using the toilet, but is able to care for his hair and
feed himself without being in pain. (Tr. 209.) Furthermore, Plaintiff reported that he is not able
to prepare his own meals and perform household chores. (Tr. 210.) Plaintiff stated that he goes
shopping for food and clothing twice every month. (Id.) Plaintiff also reported that he has
difficulty walking, sitting, and using his hands, but is able to lift light objects. (Tr. 212–13.) In
addition, Plaintiff noted that he does not handle stress and changes in routine well and that he is
afraid to go out alone. (Tr. 214.)
At the hearing before ALJ O’Leary on April 30, 2014, Plaintiff testified about his
debilitating conditions, daily activities at home, previous employment, and medication/treatment.
(See Tr. 32–49.) Plaintiff referenced multiple physical and psychiatric ailments that contributed
to his request for SSI, including a stab wound in his back from 2010, diabetes, asthma, depression,
schizophrenia, and bipolar disorder. (Tr. 38–54.)
Vocational expert Pat Greene (“Greene”) testified at the hearing by telephone and stated
that someone with Plaintiff’s limitations would be unable to perform his past work as a hand
packager. (Tr. 55–56.) Greene, however, also testified that there existed representative jobs in the
national economy that an individual with Plaintiff’s conditions could perform, such as a shoe
packer, a garment sorter, a final assembler, an order clerk, a stuffer, and a telephone quotation
clerk. (Tr. 56–59.)
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 reasonable mind might accept as adequate to support a conclusion.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal citation and quotations omitted). Thus,
substantial evidence is “less than a preponderance of the evidence, but ‘more than a mere
scintilla.’” 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)
(internal quotation marks omitted)). “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) (internal
quotation marks omitted). Indeed, a 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, 244 F. App’x at 480. 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
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; Social Security Rule (“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
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, at step five the Social Security Administration (“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).
ALJ O’Leary applied the Five-Step Disability Test to the facts comprising Plaintiff’s
application for SSI and determined that Plaintiff was not disabled under the relevant portions of
the Act. (See Tr. 17–28.) Specifically, ALJ O’Leary determined that Plaintiff “does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1” and that “there are jobs that
exist in significant numbers in the national economy that [Plaintiff] can perform.” (Tr. 19, 27.)
These factual findings are supported by substantial credible evidence in the record. Therefore, this
Court affirms ALJ O’Leary’s denial of SSI. The following is an outline of ALJ O’Leary’s fivestep analysis:
At step one of the disability analysis, ALJ O’Leary properly found that Plaintiff had not
engaged in SGA since September 18, 2012, the application date. (Tr. 19); see 20 C.F.R. § 416.971
et seq. ALJ O’Leary accordingly proceeded to step two to determine what, if any, severe
impairments Plaintiff suffered. See 20 C.F.R. § 416.920(a)(4)(ii).
At step two, ALJ O’Leary properly considered the entire medical record in finding that
Plaintiff suffered from the following severe impairments: “lumbar degenerative disc disease,
asthma, diabetes mellitus, depression.” (Tr. 19); see 20 C.F.R. § 416.920(c). ALJ O’Leary found
that these severe impairments “cause significant limitation on [Plaintiff’s] ability to perform work
activities during the period being adjudicated.” (Tr. 19.) ALJ O’Leary’s findings of severe
impairments are supported by substantial evidence in the record. Once ALJ O’Leary determined
which of Plaintiff’s impairments qualified as “severe,” ALJ O’Leary considered, under step three,
whether Plaintiff’s severe impairments equal or exceed those in the Listing of Impairments in the
Act. See C.F.R. § 416.920(a)(4)(iii).
At step three, ALJ O’Leary 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 C.F.R. §§ 416.920(d), 416.925, and 416.926). Specifically, ALJ O’Leary found
that the requirements of listing 1.04A, disorders of the back, were not met because there was no
evidence of sensory or reflex loss, or positive straight leg raising. (Tr. 19–20.) ALJ O’Leary also
determined that the elements of listing 1.04B were not met because an operative report or
pathology report of spinal arachnoiditis was absent from the medical record. (Tr. 20.) In addition,
ALJ O’Leary properly determined that the elements of listing 1.04C were not met because the
record did not show that Plaintiff required two crutches or a walker to ambulate. (Id.) Next, ALJ
O’Leary adequately considered listing 3.03, asthma, and found “that the precise criteria [was] not
met, as there [were] no pulmonary function tests in the record.” (Id.) ALJ O’Leary’s determination
that listing 3.03B was not met was also correct because “the evidence fail[ed] to establish the
number of attacks in spite of prescribed treatment and requiring physician intervention, occurring
at least once every two months or at least six times a year[.]” (Id.) Moreover, ALJ O’Leary
determined Plaintiff’s mental impairments did not meet or exceed the severity requirements set
forth in listing 12.04. ALJ O’Leary then held that the Paragraph B requirements were not satisfied
because Plaintiff’s mental impairments do not cause at least two marked limitations or one marked
limitation and repeated episodes of decompensation, each of extended duration. (Id.); see 20 C.F.R.
§§ 416.920(d), 416.925, 416.926. In reaching this conclusion, ALJ O’Leary properly found that
Plaintiff only has mild restriction in his activities of daily living. (Tr. 19.) In addition, ALJ
O’Leary cited to evidence and stated that Plaintiff “was able to do chores within his residential
community [as well as] shower, use public transportation, and shop in stores for food and
clothing.” (Tr. 20.) ALJ O’Leary also found that Plaintiff has moderate difficulties in social
functioning, and cited to Plaintiff’s testimony and the record that Plaintiff “does not like to
socialize with others,” but that he “has no problems getting along with family, friends, or authority
figures.” (Tr. 21.) Next, ALJ O’Leary found that Plaintiff only has mild difficulties with regard
to concentration, persistence or pace, citing to the record that the Plaintiff can pay bills and enjoys
reading and doing puzzles. (Id.) Lastly, ALJ O’Leary properly found that the record evidence
reflects that Plaintiff has not experienced any episodes of decompensation lasting for an extended
duration. (Id.) ALJ O’Leary also found that the evidence failed to establish the presence of the
Paragraph C criteria. (Id.) Therefore, ALJ O’Leary 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. Accordingly, Plaintiff was not disabled under step three analysis, leading
ALJ O’Leary to step four to determine whether Plaintiff can perform any of his past relevant work.
See 20 C.F.R. §§ 416.920(a)(4)(iv), 416.920(e).
Before undergoing the analysis in step four, ALJ O’Leary determined Plaintiff’s RFC. (Tr.
21–27); see 20 C.F.R. §§ 416.920(e), 416.945. ALJ O’Leary properly concluded that Plaintiff has
the RFC “to perform light work as defined in 20 CFR 416.967(b) except that [Plaintiff] can
frequently perform fine fingering manipulation, but cannot be exposed to undue concentration of
dust, smoke, fumes, or other pulmonary irritants or extremes of temperature, and would be
precluded from jobs with direct contact with the public and can have only minimal contact with
supervisors and coworkers.” (Tr. 21–22.) In making this determination, ALJ O’Leary considered
both objective medical evidence and other evidence, based on the requirements of 20 C.F.R. §
416.929 and SSRs 96-4p and 96-7p. (Tr. 22.) He 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 his finding, ALJ O’Leary cited extensively to Plaintiff’s testimony, the treatment and
evaluative records of Dr. Mansour, Dr. Kandasamy, Dr. Thalody, Dr. Pingle, Dr. Patel, Dr. Sood,
Dr. Dagnino, Dr. Fulford, and the state agency medical consultants. (See Tr. 21–27.)
After determining Plaintiff’s RFC, at step four ALJ O’Leary properly found that Plaintiff
has no past relevant work under 20 C.F.R. § 416.965. (Tr. 27.) Because ALJ O’Leary determined
that Plaintiff had no past relevant work, ALJ O’Leary continued to step five to determine whether
there exists work in the national economy Plaintiff could perform. See C.F.R. §§ 416.920(a)(4)(v),
At step five, ALJ O’Leary properly found that Plaintiff can perform work that exists in
significant numbers in the national economy. (Tr. 27); see 20 C.F.R. §§ 416.969, 416.969a. ALJ
O’Leary considered Plaintiff’s age, education, work experience and RFC, as well as the vocational
expert’s testimony. (Tr. 27–28.) The vocational expert determined that Plaintiff was capable of
satisfying the requirements of the representative occupations of a shoe packer, garment sorter, final
assembler, order clerk, stuffer, and telephone solicitation clerk, which exist in the aggregate of
thousands of jobs nationally. (Tr. 27.) Thus, ALJ O’Leary’s factual findings that Plaintiff is
capable of performing work that exists in significant numbers in the national economy are
supported by substantial credible evidence. Accordingly, ALJ O’Leary was correct in determining
that Plaintiff is not disabled under section 1614(a)(3)(A) of the Social Security Act. (Tr. 28); see
20 C.F.R. §§ 416. 920(a)(4)(v), 416.920(g).
On appeal, Plaintiff now challenges ALJ O’Leary’s RFC determination on two grounds.
(See Pl.’s Br. at 19, 21.) First, Plaintiff argues that ALJ O’Leary’s RFC determination “does not
encompass all of the limitations that the ALJ found.” (See Pl.’s Br. at 19.) Aside from Plaintiff’s
argument that ALJ O’Leary did not consider Plaintiff’s use of a cane, Plaintiff fails to sufficiently
outline what ALJ O’Leary overlooked. Plaintiff briefly argues that ALJ O’Leary “should have
included limitations regarding his findings to deficits in activities of daily living and concentration,
persistence or pace [,]” but fails to specifically mention which limitations were not considered.
(See Pl.’s Br. at 20.)
Second, Plaintiff argues that ALJ O’Leary “should not have found [Plaintiff] capable of a
narrow range of light work[,]” and bases this assertion on ALJ O’Leary’s decision to not address
Plaintiff’s use of a cane in determining his RFC. (See Pl.’s Br. at 21–24.) However, in addressing
a claimant’s RFC, the ALJ need only consider “medically required” devices. SSR 96-9p, 1996 WL
374185, at *7 (S.S.A.). Moreover:
To find that a hand-held assistive device is medically required, there must be
medical documentation establishing the need for a hand-held assistive device to aid
in walking or standing, and describing the circumstances for which it is needed.
Id. In addition, a prescription for a cane is not enough to demonstrate that the cane is medically
necessary. See Howze v. Barnhart, 53 F. App’x 218, 222 (3d Cir. 2002) (demonstrating that the
mention of Plaintiff’s use of a cane throughout the record and a physician’s “script” for a cane is
“insufficient to support a finding that the [Plaintiff’s] cane was medically necessary.”)
Here, Dr. Dagnino, Plaintiff’s doctor at CURA, Inc., prescribed a wooden cane. (See Tr.
314). However, the treatment record does not indicate that the cane is in fact medically necessary.
(See Tr. 306–11, 316–18, 331, 424, 430–32). In addition, various other medical reports indicated
that Plaintiff’s gait was normal. (See Tr. 288, 294–95, 383, 387.) Plaintiff also admitted that he
is able to walk two to three blocks without the cane. (See Tr. 386.) This evidence counters
Plaintiff’s claim that the cane was medically necessary. See Dyler v. Colvin, No 3:14-CV-1962,
2015 WL 3953135, at *18 (M.D. Pa June 29, 2015) (suggesting that contradictory evidence such
as steady gait findings may suggest that the cane is not medically necessary). ALJ O’Leary was,
therefore, not required to include the use of a cane in Plaintiff’s RFC. Thus, in light of the
substantial evidence supporting ALJ O’Leary’s RFC holding, this Court finds that ALJ O’Leary
properly determined Plaintiff’s RFC.
Because this Court finds that ALJ O’Leary’s factual findings were supported by
substantial credible evidence in the record and that ALJ O’Leary’s legal conclusions were correct,
the Commissioner’s determination is AFFIRMED.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
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