BONGIARDINO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Chief Judge Jose L. Linares on 12/6/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-720 (JLL)
COMMISSIONER OF SOCIAL SECURITY,
LINARES, Chief District Judge.
This matter comes before the Court upon the appeal of Jesse Bongiardino (“Plaintiff’) from
the final decision of the Commissioner (“Defendant”) upholding Administrative Law Judge
(“AU”) Dennis O’Leary’s denial of Plaintiffs application for disability insurance benefits
(“DIBs”) and supplemental security income (“551”) under Titles 11 and XVI of the Social Security
Act (“the Act”). The Court resolves this matter on the parties’ briefs pursuant to Local Civil Rule
9.1(0. The Court has reviewed the parties’ submissions, and, for the following reasons, affirms
the AU’s decision.
Plaintiff applied for DIBs and SSI in May 2013, alleging disability due to scoliosis
beginning in June 2011. (R. at 156—69). At the onset of his alleged disability, Plaintiff was 29
years old. (R. at 183). The state agency denied his claims and Plaintiff then requested a hearing
before AU O’Leary. (R. at 12, 70). At the hearing, Plaintiff and a vocational expert (“yE”) both
“R.” refers to the Administrative Record, which uses continuous pagination and can be found at ECF No. 7.
testified. (R. at 12). After considering the medical record and the VE’s testimony, the AU found
at Step Five that Plaintiff could perform a significant number ofjobs in the national economy. (R.
at 19—20). Based on this finding, the AU concluded that Plaintiff was not disabled. (R. at 20).
The Appeals Council denied Plaintiffs request for review. (R. at 1—4). Accordingly, Plaintiff
filed this appeal of the AU’s deteniiination.
STANDARD OF REVIEW
A reviewing court will uphold the Commissioner’s factual decisions if they are supported
by “substantial evidence.” 42 U.S.C.
§ 405(g), 1383(c)(3); Sykes v. Apfet, 22$ F.3d 259, 262 (3d
Cir. 2000). “Substantial evidence means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion,” and “[i]t is less than a preponderance of the evidence but
more than a mere scintilla.” Jones e. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). Additionally,
under the Act, disability must be established by objective medical evidence. To this end, “[am
individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of
disability as defined in this section.” 42 U.S.C.
§ 423(d)(5)(A). Instead, a finding that one is
[M]edical signs and findings, 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 and which, when considered with all evidence required to be
furnished under this paragraph.
would lead to a conclusion that
the individual is under a disability.
Id.; see also 42 U.S.C.
Factors to consider in determining how to weigh evidence from medical sources include:
(1) the examining relationship; (2) the treatment relationship, including the length, frequency,
nature, and extent of the treatment; (3) the supportability of the opinion; (4) its consistency with
the record as a whole; and (5) the specialization of the individual giving the opinion. See 20 C.F.R.
The “substantial evidence standard is a deferential standard of review.” Jones, 364 F.3d at
The AU is required to “set forth the reasons for his decision” and not merely make
conclusory unexplained findings. Burnett v. Comm ‘r of Soc. Sec., 220 F.3d 112, 119 (3d Cir.
But, if the AU’s decision is adequately explained and supported, the Court is not
“empowered to weigh the evidence or substitute its conclusions for those of the fact-finder.”
Williams v. Sullivan, 970 F.2d 1178. 1182 (3d Cir. 1992) (citing Eark’ v. Heckler, 743 f.2d 1002,
1007 (3d Cir. 1984)). It does not matter if this Court “acting de novo might have reached a different
conclusion” than the Commissioner. Monsotur Med. Ctr. v. Heckler, 806 f.2d 1185, 1190—91 (3d
Cir. 1986) (quoting Hunter Dottgtas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). finally,
the Third Circuit has made clear that “Burnett does not require the AU to use particular language
or adhere to a particular fonnat in conducting his [or her] 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, 364 f.3d at 505.
THE FIVE STEP PROCESS AND THE AU’S DECISION
A claimant’s eligibility for benefits is governed by 42 U.S.C.
§ 1382. Pursuant to the Act,
a claimant is eligible for benefits if he meets the income and resource limitations of 42 U.S.C.
13$2(a)(I)(A)—(B) and demonstrates that he is disabled based on an “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)(l)(A). A person is disabled
only if his physical or mental impairment(s) are “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 work which exists in the national economy.” 42 U.S.C.
The Third circuit has sui-nrnarized “the five step sequential evaluation for determining
whether a claimant is under a disability, as set forth in 20 C.F.R.
§ 404.1520” as follows:
In Step One, the Commissioner must determine whether the claimant is currently
engaging in substantial gainftil activity. 20 C.F.R. § 404.1520(a). If a claimant is
found to be engaged in substantial activity, the disability claim will be denied.
Bowen 1’. Yuckert, 482 U.S. 137. 140 (1987).
In Step Two, the Commissioner must determine whether the claimant is suffering
from a severe impainrient. 20 C.F.R. § 404.1520(c). If the claimant fails to show
that her impairments are “severe,” she is ineligible for disability benefits.
In Step Three, the Commissioner compares the medical evidence of the claimant’s
impairment to a list of impairments presumed severe enough to preclude any
gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not suffer from a listed
impainuent or its equivalent, the analysis proceeds to steps four and five.
Step Four requires the AU to consider whether the claimant retains the residual
functional capacity [(“Rf C”)] to perform her past relevant work. 20 C.F.R. §
404.1520(d). The claimant bears the burden of demonstrating an inability to return
to her past relevant work. Adorno 1’. S/iota/a, 40 F.3d 43, 46 (3d Cir.1994).
If the claimant is unable to resume her former occupation, the evaluation moves to
the final step [(Step_Five)1. At this stage, the burden of production shifts to the
Commissioner, who must demonstrate the claimant is capable of performing other
available work in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The
AU must show there are other jobs existing in significant numbers in the national
economy which the claimant can perform, consistent with her medical impairments.
age, education, past work experience, and residual functional capacity. The AU
must analyze the cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled.
Burnett, 220 F.3d at 118—19 (formatting and emphasis added).
“The claimant bears the burden of proof for steps one, two, and four of this test. The
Commissioner bears the burden of proof for the last step.” Sykes, 228 F.3d at 263 (citing Bowen,
482 U.S. at 146 n.5). Neither party bears the burden of proof at step three. Id. at 263 n.2.
The AU engaged in the above five-step sequential evaluation and found: at Step One, that
Plaintiff has not engaged in substantial gainful activity since the alleged onset date, (R. at 14); at
Step Two, that Plaintiff has the severe impairments of thoracic scoliosis, mild degenerative disc
disease, and psoriatic arthropathy, (R. at 14); at Step Three, that Plaintiff does
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Sub. P, App’x. 1, (R. at 14); at RFC, that Plaintiff can
perform sedentary work with the additional limitation that he perform simple and repetitive tasks,
(R. at 15); at Step Four, that Plaintiff is unable to perform any past relevant work, (R. at 19); and
at Step five, that there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform, such as an assembler, preparer, or table worker, (R. at 19). for these reasons,
the AU found Plaintiff not to be disabled. (R. at 20). Plaintiff challenges only the AU’s RFC
detennination. (ECF No. 1.1 (‘Pl.’s Br.”) at 1).
The AU’s RFC determination limits Plaintiff to sedentary work involving simple and
repetitive tasks, such as one and two step processes. (R. at 15). Plaintiff attacks the AU’s RFC
determination on three grounds: (1) the AU did not base his opinion on substantial evidence in
the medical record; (2) the RFC fails to incorporate Plaintiffs subjective pain complaints; and (3)
the RFC fails to consider Plaintiffs obesity. (Pl.’s Br. at 7—15).
A. The AU’s use of the Medical Record
Plaintiff argues that the AU’s Rf C determination was not based on substantial evidence
because the AU incorporated only some, and not all, of the findings of Plaintiffs treating
physicians. (Pl.’s Br. at 8—li). However, the AU is not required to adopt all limitations laid out
by a medical opinion, even if the AU affords the medical opinion significant weight.
Wilkinson v. Comm ‘r of Soc. Sec., 558 F. App’x 254, 256 (3d Cir. 2014); see also Chandler v.
Comm ‘r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“The AU—not treating or examining
physicians or State agency consultants—must make the ultimate disability and RFC
determinations.”) (citing 20 C.F.R.
§ 404.1527(e)(1), 404.1546(c)). In this case, the AU
adequately reviewed the objective medical evidence and the opinions of Plaintiffs treating
physicians, which both indicated that Plaintiff could perform sedentary work. (R. at 15—18). For
objective medical evidence, the AU
noted that neither Plaintiffs MRI, nor his clinical
examinations showed significant spinal abnormalities. (R. at 16—18). This medical evidence was
in line with the opinions of the treating physicians, including one observation that Plaintiff
exhibited normal motor strength and a full range of motion. (R. 17—18). The AU relied on another
treating physician who had concluded that Plaintiff “basically limited to sedentary work” based on
his pain and range of motion. (R. at 17). Furthermore, the AU noted that his RFC determination
was more beneficial to Plaintiff than the determination of the state agency physicians, who opined
that Plaintiff could perfonn light work activity, (R. at 17). See 20 C.F.R. §sS 404.1527(e)(2)(i)
(stating that state agency physicians merit significant consideration in the disability analysis).
Upon reviewing this record, the Court concludes that the AU’s reliance on both the objective
medical evidence and the findings of the treating physicians provided substantial evidence for his
B. The AU’s Consideration of Plaintiff’s Subjective Pain Complaints
Plaintiff further argues that the AU wrongfully discredited Plaintiffs subjective pain
complaints without properly explaining his reasoning. (Pl.’s Br. at 14). The AU has discretion
to evaluate Plaintiffs credibility and render an independent judgment in light of the medical
findings and other evidence regarding the true extent of the alleged symptoms. Mallov v. Comm ‘r
of Soc. Sec., 306 F. App’x. 761, 765 (3d Cir. 2009) (“Credibility determinations as to a claimant’s
testimony. regarding pain and other subjective complaints are for the AU to make.”) (citing Van
Horn v. Schweiker, 717 f.2d 871, 873 (3d Cir. 1983). Here, the AU did find Plaintiffs subjective
pain complaints credible but “to the extent that they purport an inability to perfonn any manner of
work activity, [Plaintiffs complaints] are not found to be fully credible or consistent with the
medical evidence.” (R. at 12).
The AU then explained that, though Plaintiff has chronic back pain, Plaintiffs MRIs
showed mostly “mild” disc bulging. (R. at 18). Plaintiff conceded in his testimony that he had
worked off the books since the onset of his impairment. (R. at 18). The AU also explained that
his credibility determination was based on Plaintiffs physical examination, which reflected full
range of motion, and clinical findings, none of which “would come close to support the degree of
inability alleged.” (R. at 18). Furthermore, to the extent that Plaintiffs complaints were supported
by the record, the AU accounted for that when he limited Plaintiff to sedentary work.
Simmoncis v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986) (holding that the AU accorded due weight to
assertions of pain where he credited those complaints to the extent that he matched the claimant’s
work ability to the level asserted in the claimant’s complaints). Therefore. the Court concludes
that the AU’s explanation was sufficient and that his credibility determination was based upon
C. The AU’s Consideration of Obesity
Plaintiff s final argument is that the AU committed reversible error by failing to discuss
his obesity, which has a significant impact on his other limitations. (P1.’s Br. at 12). However,
the AU is only required to include the plaintiffs “credibly established limitations” in determining
the plaintiffs RFC. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). In Rutherford, the
Third Circuit determined that the AU’s failure to discuss obesity did not require remand because
the plaintiff made no allegations at the administrative level that her functioning was affected by
her weight. Id. at 553.
Here, Plaintiffs credibly-established limitations were his thoracic scoliosis, mild
degenerative disc disease, and psoriatic arthropathy. (R. at 14). The AU’s RFC determination
accounted for these limitations by reducing him to performing sedentary work, (R. at 14), which
is the most accommodating classification for scoliosis under the Commissioner’s guidelines. See
§ 404.1567 (classifying work as sedentary, light, medium, heavy, and very heavy).
Plaintiffs obesity is not one of these credibly established limitation, and thus the AU did not
discuss it. See Rttthe;jord, 399 F.3d at 554. Akin to the plaintiff in Rutherford, Plaintiff did not
make any allegations concerning his obesity at the administrative level, despite the opportunity to
do so at the hearing. (R. at 28—48). Therefore, the Court concludes that the AU was not required
to consider Plaintiffs obesity because Plaintiff made no showing that his weight affected his
functional capacity. Based on this reasoning, the Court rejects Plaintiffs arguments and upholds
the AU’s RFC determination.
For the foregoing reasons, the Court affirms the AU’s decision. An appropriate Order
follows this Opinion.
Dated: December Ii”
E L. LINARE S
ief Judge, United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?