BOGOSKI v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION filed. Signed by Judge Joel A. Pisano on 2/13/2015. (kas, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN BOGOSKI,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendants.

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Civil Action No. 13-4753
OPINION

PISANO, District Judge.
Presently before the Court is an appeal by John Bogoski (“Plaintiff”) from the final decision
of the Commissioner of the Social Security Administration (“Commissioner”) denying his request
for a Disability Insurance Benefits (“DIB”). The Court has jurisdiction to review this matter
pursuant to 42 U.S.C. §§ 405(g), and reaches its decision without oral argument pursuant to Federal
Rule of Civil Procedure 78. For the reasons set forth below, this matter is remanded for further
proceedings consistent with this Opinion.
I.

Procedural History
Plaintiff submitted an application for DIB on July 29, 2009, alleging disability as of January

2009 due to discogenic disorders of the back. See Administrative Record (“AR”) 71. The
Commissioner denied his claims both initially and on reconsideration. Id. at 75–79, 80–81, 85–88.
Plaintiff appealed, and on March 16, 2012, a hearing was held before an Administrative Law Judge
(“ALJ”). See Compl. ¶ 6; AR 22. On March 29, 2012, the ALJ issued a written decision denying
Plaintiff's claim. Compl. ¶ 7; AR 8–18. Plaintiff requested that the Appeals Council review of the
ALJ’s decision; on September 19, 2012, the Appeals Council denied review, whereby the ALJ's

decision became the final decision of the Commissioner. Compl. ¶ 7. Subsequently, Plaintiff
appealed the decision to this Court.
II.

Background
Plaintiff was born in April 1973. He lives with his wife and two children in Union, New

Jersey. AR 145. He completed twelve grade in 1991, and received specialized training for diesel
and automotive repair as well as appliance repair in 2000. See AR 133, 140. Plaintiff previously
worked as a mechanic for a car company from 1990 to 2001. See AR 130, 137–38, 141–44. He
then worked for the PSE&G utility as a motor vehicle service specialist form March 2001 to
January 2009. Id. In this capacity, Plaintiff did labor, repair and maintenance and replacement of
gas services. He also did fleet maintenance. Id. at 31. This job required standing and walking for
eight hours a day and lifting heavy objects weighing as much as 75 to 100 pounds. Id. at 130, 137–
38, 141–44.
Before and after the alleged disability onset date, Plaintiff saw a number of treating
physicians and medical professionals. Plaintiff also saw additional medical professionals in
connection with his application for disability benefits. The relevant findings for this appeal are
detailed below.
A.

Review of the Relevant Medical Evidence

In December 2007, Plaintiff was involved in a work-related accident in which he was struck
by a backhoe. See AR 154. Plaintiff had a past history of back injury that had also occurred in
August 2006, when he was injured when a ceiling had caved in at work. Plaintiff was treated with
physical therapy and epidural steroid injections. This December 2007 accident aggravated the
preexisting back pain. See id.
On January 31, 2008, Plaintiff sought treatment with Dr. Barry Sloan (“Dr. Sloan”) because
of headaches, neck pain radiating to the right upper extremity, and back pain radiating to both
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buttocks and lower extremity due to the December 2007 accident. Plaintiff also complained of
severe pain and weakness in his right shoulder, and that his limbs “fell asleep.” AR 154. On
examination, Dr. Sloan found bilateral paravertebral muscle spasms in the cervical spine and midthoracic region. The cervical foraminal compression test was positive bilaterally and range of
motion of the cervical spine was limited to forty percent in all directions with marked tenderness at
the extremes of motion. There was diminished sensation in the right C5-C6 and C6-C7 dermatomes
as compared to the left, and diminished sensation of the L5 and left S1 dermatomes. Dr. Sloan
found marked weakness of the right deltoid in abduction and right biceps flexion. Range of motion
of the right shoulder was performed to 65% with tenderness and weakness at the extremes, and
range of motion of the thoracic region was limited to 50% with tenderness at the extremes of
motion. There was a positive impingement sign in the right shoulder with radiation down to the
upper right extremity. Dr. Sloan found that the lumbar region was tender at the left sacrosciatic
notch and over the left L4-L5 and L5-S1 interspaces. A straight leg raising test was positive on the
left at thirty degrees with radiation of pain, numbness, and tingling down the left lower extremity.
X-rays were taken, but Dr. Sloan found no gross fractures. After the examination, Dr. Sloan
recommended physical therapy treatment, and prescribed Lidoderm patches along with the
Percocets Plaintiff was already taking for the pain. See AR 154–55.
In February 2008, Plaintiff sought treatment with Dr. Nazar Haidri. While Plaintiff returned
to work on February 19, 2008, he complained that prolonged sitting and standing, bending down, or
lifting heavy objects aggravated his back pain. He had difficulty sleeping at times from pain. His
right shoulder pain was aggravated when he reaches with his right arm, and he had difficulty
gripping with both hands. Dr. Haidri noted that he walked slowly due to pain. His right shoulder
movements were painful and he had a slight decreased grip strength in his right hand. He had
decreased pinprick over parts of his right leg and his left foot. Dr. Haidri found that there was
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tenderness to percussion of the dorsal, lumbar, and cervical spine, and spasm in the lumbar
paravertebral spine muscles. Forward flexion of the lumbar spine was limited by ten degrees, and
Tinel’s sign was positive over the median nerve of both wrists. See AR 169–70. Dr. Haidri
diagnosed Plaintiff with post-concussion syndrome, post traumatic headaches, acute cervical,
dorsal, and lumbar spine strain, right shoulder injury, and symptoms consistent with bilateral
lumbar radiculopathy and bilateral carpal tunnel syndrome. He prescribed Plaintiff Percocet for the
pain. Id. at 170.
On February 15, 2008, Plaintiff was involved in a car accident and treated in the emergency
room at Overlook Medical Center in Union County. See AR 156. On February 18, 2008, he
underwent an MRI of the lumbar spine that revealed developmentally slender spinal canal with
central spinal stenosis from L2-L3 to L4-L5, minimal to mild neural foraminal narrowing at the L2L3, L3-L5, L4-L5 level, and an apparent disc protrusion at T11-T12. See id. at 166–67.
On February 20, 2008, he sought treatment with Dr. Haidri due to lasting pain from his
accidents. Since the accident, he had daily throbbing headaches, neck pain, local right shoulder
pain, numbness of both hands (although his right hand irritated him more than his left hand), mid
and low back pain, and paresthesias in both legs. See id. at 164–65. Dr. Haidri diagnosed Plaintiff
with post-concussion syndrome, post traumatic headaches, acute cervical, dorsal, and lumbar sprain,
right shoulder injury, and symptoms consistent with left lumbar radiculopathy. He recommended
an MRI and EMG, and prescribed Darvocet. Id. at 165.
On March 6, 2008, Plaintiff sought treatment with Dr. Gregory Lawler for complaints of
mid thoracic spine pain as well as pain radiation to the left leg. Plaintiff explained that he was
experiencing a “clicking” and “popping” sensation in his neck since his most recent accident, as
well as worsening back and leg pain. He was feeling “jittery” and experienced headaches and
dizziness. Plaintiff had been working with physical therapy and a chiropractor, but still was
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suffering pain. He was taking Percocet, Flexeril, and Lyrica for pain. During examination, there
was a positive head compression test, which worsened his thoracic spine pain. There was a slight
weak reflex in the right deltoid and tricipital muscle. Plaintiff’s reflexes were 1/4 in the right and
left biceps, 2/4 in the brachioradialis, and 1/4 in the triceps bilaterally. A Spurling test was mildly
positive worse on the left with radiation down to Plaintiff’s left arm and radiation to the right
shoulder. Plaintiff had tenderness over the right thoracic area, and over the mid low back area.
Plaintiff’s straight leg raising was negative bilaterally. Dr. Lawler diagnosed cervicalgia and
lumbalgia, and recommended an MRI. He felt like Plaintiff’s injuries were compounding because
of the multiple injuries Plaintiff suffered in 2006, 2007, and 2008. See AR 254–55.
The EMG and nerve conduction testing performed on February 23, 2008, revealed normal
electrodiagnostic studies of the lower extremities. AR at 161–63. The MRI conducted on March
20, 2008 revealed mild multilevel disc disease and degenerative changes throughout the thoracic
spine. There was a small disc herniation suggested at T5-6 and a small right paracentral disc
herniation at T11–12. Id. at 158.
On March 20, 2008, Plaintiff returned to Dr. Lawler for a follow-up examination regarding
his low back and thoracic spine pain. Dr. Lawler found that most of the pain Plaintiff complained
of was thoracic pain around the T8-T9 level, which Plaintiff described as a steady and unrelenting
pain. Plaintiff also complained of left buttock and posterior thigh pain. On examination, Dr.
Lawler found that there was tenderness on the L4-L5 facet joint. He found that there was symptoms
of piriformis syndrome on Plaintiff’s left side. Dr. Lawler recommended an epidural steroid
injection, and continued the present medication and physical therapy. See AR at 253.
On March 27, 2008, Plaintiff saw Dr. Lawler and discussed his preference to put off the
epidural steroid injections. He was presently taking Percocet 5/325 three to four times a day, Soma
three times a day, and would occasionally take a Darvocet that Dr. Haidri prescribed to him. Dr.
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Lawler recommended changing to a long-term sustained released medication and prescribed Kadian
20 mg twice a day. See AR 252.
On April 17, 2008, Plaintiff returned to Dr. Lawler for a follow-up regarding his lower back
pain. Plaintiff felt essentially unchanged from the last time he saw Dr. Lawler. He felt that the use
of Kadian was not covering his back pain. He was also taking Percocet about eight times a day. Dr.
Lawler cautioned against taking that many Percocet in a day because the excessive amount of
acetaminophen that he was ingesting. Dr. Lawler switched his Percocet to 7.5/325 from 5/325, and
added Neurontin. Although Dr. Lawler counseled Plaintiff on the risks verse benefits of opioid use
and the hyperalgesic effects of the medications, Plaintiff stated that he cannot function without the
medication to help with the pain. Dr. Lawler scheduled Plaintiff for a series of thoracic epidural
injections. See AR 251.
Plaintiff underwent two MRIs on May 23, 2008. An MRI of his right shoulder revealed
moderate tendinopathy/tendinitis of the supraspinatus tendon and mild associated bursitis. There
was also mild hypertrophic changes within the acromioclavicular joint with mild shoulder
impingement. An MRI of his cervical spine revealed small posterior ridges with moderate disc
bulging at C3-C4 and C4-C5 moderately impressing on the anterior thecal sac. See AR 159–60.
On June 5 and 19, 2008, Plaintiff underwent two of the three planned epidural steroid
injections to his thoracic spine. See AR 247–50. On June 26, 2008, Plaintiff had a follow-up
examination with Dr. Lawler and reported little, if any, benefit. He continued to experience pain
radiating from his mid back area and form the lower cervical area and high thoracic area. Dr.
Lawler recommended that he may be a candidate for cervical epidural steroid injections based upon
the findings of cervical pathology. On examination, Dr. Lawler found that Plaintiff was alert, but
anxious. Plaintiff’s examination remained essentially unchanged from before. Because Plaintiff’s
primary care physician was concerned about elevated liver enzymes, Dr. Lawler recommended a
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switch from Percocet to Roxicodone 15 mg, as well as remaining on the Kadian and Soma. AR at
246.
On July 3, 2008, Plaintiff underwent an epidural steroid injection to the cervical spine. See
AR 244–45. He returned to see Dr. Lawler on September 29, 2008, when he reported that he did
not feel much benefit from the second thoracic epidural injection. Dr. Lawler was unable to
continue with the third set of injections because of insurance issues. Plaintiff complained of
increasing upper right arm pain. During the physical examination, Plaintiff was orientated and alert,
and his muscular strength and reflexes were essentially within normal limits. Dr. Lawler instructed
Plaintiff to continue taking Kadian and Roxicodone, and increased his Neurontin to 900 mg a day.
See id. at 243.
During this time, Plaintiff was also treated for gout, and was prescribed Indocin, a drug that
is prescribed for the treatment of gouty arthritis. See AR 173, 195, 219. He complained of
exhaustion and fatigue during this time. See id. at 176.
On November 17, 2008, Plaintiff returned to Dr. Lawler for a follow-up examination.
Plaintiff stated that his pain was not well relieved. Dr. Lawler found that he appeared anxious and
jittery, and is frustrated and overwhelmed with his chronic pain. He was taking Kadian and
Roxicondone, but Plaintiff felt like the pain medication was providing little help. He did not want
to have any medications increased, because he was concerning about becoming addicted to the
medication. On examination, Dr. Lawler found that there was spasm and tightness in the cervical
spine, and limited motion of the cervical spine. Plaintiff also had spasm and tightness along
multiple trigger points. Dr. Lawler reviewed the MRI, which showed disc bulges in the cervical
spine. He suggested to Plaintiff to undergo cervical spine epidural steroid injections again, and to
speak with a psychologist to help deal with the pain. Dr. Lawler decreased the Neurontin because it
did not help with Plaintiff’s pain, and also referred him to a physical rehabilitation center. See AR
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239. On December 23, 2008 and January 5, 2009, Plaintiff received two epidural steroid injections
to the cervical spine to treat his cervicalgia and disc bulge. See id. at 235–38.
He returned to Dr. Lawler on January 21, 2009 for a full examination after Plaintiff was
involved in another car accident on January 19, 2009, where he was rear-ended by another vehicle
while he was driving the company van. Plaintiff, who had been still working at PSE&G, was
placed on disability from work. Plaintiff explained that this most recent accident had worsened his
chronic neck pain and his mid low back pain. Since the accident, the pain in the right-side of his
neck—which had been improving—was now radiating into his shoulder. Plaintiff was taking
Kadian and Roxicodone. Dr. Lawler reviewed all of Plaintiff’s MRIs to date, and conducted a
physical examination. Dr. Lawler found that Plaintiff was anxious and jittery the entire
examination process. On examination, he found that Plaintiff had spasm and tightness in the
cervical area, tenderness to palpation on the mid spine side, labored flexion and backward bending
of the lumbar spine, and an antalgic gait. He diagnosed Plaintiff with cervicalgia, disc bulging at
C3-C4 and C4-C5, disc herniation at T11-T12, lumbalgia, spinal stenosis and degenerative lumbar
spine disease. See AR 233–34. Dr. Lawler recommended that Plaintiff seek counseling for his
jitteriness and his agitation. Dr. Lawler also suggested that he followed up with a psychiatrist for
treatment with antidepressant medication, as he felt Plaintiff was depressed. Dr. Lawler planned to
schedule Plaintiff for medial branch blocks on the cervical spine, and referred Plaintiff to his
partner, Dr. Thomas Ragukonis, for a possible spinal cord stimulator. Id. at 234.
On February 16, 2009, Plaintiff returned for a follow-up examination with Dr. Lawler.
Plaintiff stated that his pain had decreased greatly since being out of work, and Dr. Lawler found
him to be visibly improved with less shaking, stuttering, and anxiousness. Plaintiff told Dr. Lawler
that whenever he gets pain through the day, he was able to rest and use a heating pad, and he felt
like his quality of life had improved. Dr. Lawler stated that Plaintiff had his “100% full support” in
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placing him on long-term disability based both on his examination and his clinical findings that
there was not one type injection or medication that would help Plaintiff. AR 232. Dr. Lawler also
planned on tapering down on the medication that Plaintiff was currently taking, particularly the
Kadian. See id.
On March 23, 2009, Plaintiff saw Dr. Lawler for his multiple pain complaints. Dr. Lawler
noted that Plaintiff seemed visibly calmer, and less shaky and anxious. Plaintiff still continued to
have neck pain and low back pain. Dr. Lawler believed that Plaintiff was disabled and supported
his long-term disability claim. See AR 231.
On April 20, 2009, Plaintiff returned to Dr. Lawler for a follow-up, in which Plaintiff
reported no changes. Plaintiff informed Dr. Lawler he was in the process of going for behavioral
analysis, and Dr. Lawler hoped that Plaintiff would be placed on medication for his apparent
depression. Plaintiff was doing well with the current pain medications he was on, but wished to
come off the medication. Dr. Lawler felt it was too early for this, and supported Plaintiff’s longterm disability. See AR 230.
In June 2009, Plaintiff was directed to decrease his dosage of Kadian due to concerns of
increased liver enzymes. See id. at 202.
On June 1, 2009, Dr. Lawler examined Plaintiff, who stated that he was having a mix of
good and bad days in terms of pain. While Plaintiff was taking Kadian for his pain, he still needed
to take Roxicodone for breakthrough pain and continues to be in pain. Dr. Lawler stated the
complexity of Plaintiff’s case due to the multiple injuries Plaintiff has suffered. On examination,
Dr. Lawler found that Plaintiff was anxious and jittery. Dr. Lawler found that a head compression
test worsened thoracic pain. Plaintiff’s reflexes in the upper right extremity were 1/4, and his
Spurling’s test was mildly positive on the left with radiation down his left arm and his right
shoulder. Dr. Lawler explained how he tried to take Plaintiff off of Percocet, due to his history of
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elevated liver enzymes, and offered him steroid injections instead. When the injections did not
ultimately offer Plaintiff much relief from his pain, Plaintiff was put on Roxicodone and an
increased dosage of Neurontin. The Neurontin did not control the pain, and Plaintiff was also
taking Kadian but did not wish to take the medication. Dr. Lawler then recommended a cervical
steroid injection, but, during the course of injections, Plaintiff was involved in another car accident.
Dr. Lawler reiterated that he felt that Plaintiff should be on disability. He noted that Plaintiff had
never been a desk worker and he felt Plaintiff’s pain would prevent Plaintiff from concentrating and
focusing on any type of responsibility. Dr. Lawler recommended that Plaintiff speak with a
psychologist to cope with his concerns. See AR 226–28. Later, Dr. Lawler issued an addendum to
his note and indicated that Plaintiff could sit at a desk for a long time, but he would not be able to
concentrate for a long time in any given situation, due to his chronic pain. See id. at 221.
In July 2009, Plaintiff underwent nerve test studies that revealed moderate left S1
radiculopathy and a possible mild right L5 radiculopathy. See AR 212–16.
On July 6, 2009, Plaintiff returned to Dr. Lawler for a follow-up regarding a spike in his
elevated liver enzymes. While Dr. Lawler recommended that Plaintiff stop taking Kadian and
Roxicodone in light of the elevated liver enzymes, Plaintiff explained that he could not tolerate
daily activities without using medications. Plaintiff continued to have mid neck pain area, which
radiated down his right arm. Plaintiff stated that this pain, along with the pain in his mid back, was
the worst of his pain. On examination, Dr. Lawler found spasm and tightness of the cervical neck
areas and tenderness to palpation along the neck bilaterally and low back. Plaintiff’s reflexes of his
lower and upper extremity were essentially normal. See AR 224–25.
Plaintiff returned to Dr. Lawler on July 20, 2009, after being examined by Dr. Lawler’s
colleague, Dr. Ragukonis. Dr. Lawler took Dr. Ragukonis’s suggestion and scheduled a third
thoracic epidural steroid injection. Plaintiff reported that he was still feeling pain, with occasional
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flare-ups. Dr. Lawler decided to keep Plaintiff on Roxicodone, and ordered him to take two tablets
every six hours, instead of one tablet, for severe pain. See AR 204.
On August 7, 2009, Dr. Lawler wrote a note clarifying Plaintiff’s medical history and
condition, in which he explained that it was his medical opinion that the most recent accident
Plaintiff was involved in worsened his neck pain, causing it to radiate into his shoulder in a
descending manner, and worsened his mid low back pain. Dr. Lawler noted that, despite taking
narcotic medications of Kadian and Roxicodone, Plaintiff continued to have pain. Dr. Lawler was
going to proceed with another thoracic epidural steroid injection to try to reduce his back pain. Dr.
Lawler recommended a discogram for the neck pain, and advised that Plaintiff continue psychiatric
care. See AR 220.
On November 23, 2009, Dr. Lawler administered the thoracic epidural steroid injection. AR
300. On February 15, 2010, Plaintiff returned to Dr. Lawler. Dr. Lawler that Plaintiff appeared to
be doing quite well. Plaintiff reported some mid back pain, and stated that the injection he received
“lasted 28 days.” Id. at 299. Plaintiff reported his pain had decreased to a 5/10 from approximately
8/10. Dr. Lawler noted that this was “quite encouraging,” and felt that Plaintiff appeared wellrelaxed. Plaintiff told Dr. Lawler that he is dealing better with his pain and did not have flare-ups.
Plaintiff wished to decrease his medication and Dr. Lawler agreed; accordingly, Dr. Lawler changed
his Kadian amount and kept him on Roxicodone. Id.
On March 15, 2010, Plaintiff underwent an epidural steroid injection in his thoracic spine.
AR 297. Dr. Lawler saw him for a follow-up examination on March 22, 2010, and reported that he
felt better but was still feeling a great deal of pain in his back. Dr. Lawler noted that at one point he
felt that if Plaintiff was out on disability his pain would recede; however, Plaintiff was still
complaining of pain, particularly in his mid and low back areas. Dr. Lawler recommended new

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MRIs of the lumbar spine, and then a discogram. Plaintiff explained to Dr. Lawler that he was
experiencing little benefit with the Kadian, so Dr. Lawler agreed to wean him off it. See AR 296.
On April 12, 2010, Plaintiff returned to Dr. Lawler regarding his back pain. Plaintiff had
been treated for pancreatitis second to alcohol use and medications. While Plaintiff was put on
Fentanyl and hydromorphone, which helped, Plantiff wished to reduce his medication. Dr. Lawler
agreed to do so, and made a follow-up appointment to see Plaintiff after his MRIs. See AR 295.
Thereafter, in September and October 2010, Plaintiff returned to Dr. Lawler for follow-up
examinations. In both, Plaintiff described the pain as being essentially the same. Dr. Lawler’s plan
was to wait for Plaintiff to undergo MRI testing, but Plaintiff had not yet been approved for such
MRIs. See AR 293–94. Plaintiff returned in February 2011 for a follow-up evaluation after
undergoing new MRIs. Dr. Lawler believed that Plaintiff did not need surgical intervention but
found that Plaintiff had a disc herniation at T9-T10 and disc bulging throughout the spine. He
suggested Plaintiff see a spine surgeon. See id. at 288. On May 23, 2011, Plaintiff returned to Dr.
Lawler. He reported to Dr. Lawler that his mood and affect have been improved, and he was doing
“pretty well.” Id. at 287. Dr. Lawler noted that Plaintiff continued to have the need for narcotics to
deal with his pain, and expressed concern about financial issues due to Plaintiff’s apparent lack of
insurance coverage. Dr. Lawler stated that he did not believe that injections would provide Plaintiff
long-lasting relief and, if surgery was not an opinion, he would send Plaintiff to a pain management
center. Id. On September 26, 2011, Plaintiff returned to see Dr. Lawler. Dr. Lawler described that
Plaintiff no longer had the jitters or the shakes, and appeared to be doing well under the medication.
Dr. Lawler, however, did not believe Plaintiff was capable to return to work. Id. at 286. Finally, on
January 30, 2012, Dr. Lawler examined Plaintiff and found that he was doing “pretty well,” and was
tolerating his medications well. Id. at 285. Plaintiff stated that “his pain score is approximately 5

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to 6/10, though he does have good days, as well as bad days.” Id. at 285. Dr. Lawler advised that
Plaintiff continue on his current treatment.
B.

Consultative Medical Evidence
1.

Dr. Vasudev Makhija

Plaintiff was examined by Dr. Vasudev Makhija on November 5, 2009 at the request of the
Social Security Administration. After examining Plaintiff, Dr. Makhija found that Plaintiff
appeared to be depressed and anxious, but he was orientated as to time, person, and place. Dr.
Makhija found that Plaintiff’s thoughts were goal orientated, and noted that he had fine tremors of
his hands. He diagnosed Plaintiff with chronic posttraumatic stress disorder and a depressive
disorder not otherwise specified. See AR 257–59.
2.

Dr. Jane Shapiro

On December 17, 2009, Dr. Jane Shapiro, a psychiatrist employed by the New Jersey
Division of Disability Determinations, reviewed Plaintiff’s file. She found that Plaintiff had an
affective disorder and an anxiety-related disorder. She found that these impairments imposed
“moderate” functional limitations in activities of daily living, social functioning, and in maintaining
concentration, persistence, or pace. She also indicated that there was one or two episodes of
decompensation. AR 260–63.
Dr. Shapiro also completed a mental residual functional capacity assessment. While Dr.
Shapiro found that Plaintiff was not significantly limited in most of the listed mental activities, she
found that Plaintiff was moderately limited in (1) the ability to maintain attention and concentration
for extended periods; (2) the ability to perform activities with a schedule, maintain regular
attendance, and be punctual within customary tolerances; (3) the ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of rest periods; (4) the ability to
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interact appropriately with the general public; (5) the ability to accept instructions and respond
appropriately to criticism from supervisors; (6) the ability to respond appropriately to changes in the
work setting; and (7) the ability to travel in unfamiliar places or use public transportation. See AR
264–66. She concluded that Plaintiff could understand, remember, and execute instructions. She
further stated that Plaintiff could concentrate and respond appropriately to supervision, but not to
the general public. She finally concluded that Plaintiff could adapt to routine change in the
workplace. Id. at 266.
3.

Dr. Betty Vekhinis

Dr. Betty Vekhinis examined Plaintiff on May 12, 2010. Plaintiff’s chief complaint was mid
back pain, which he rated as a 4-5/10. On examination, she found that Plaintiff had a normal heel
to toe gait, and could squat. His cervical spine showed no tenderness or muscle spasms, and his
ranges were full. His thoracic spine showed tender paraspinal at T6-10 level. His lumbar spine
revealed forward flexion limited to 40 degrees and limited straight leg raising. Plaintiff’s left
shoulder was tender, but not inflamed, and his left elbow was hot, very tender and red. Ranges of
motion were extremely tender, and his grip was reduced due to pain. Dr. Vekhinis found that
Plaintiff had non-radicular thoracic and low back pain. She found evidence of an acute gouty attack
in the left elbow with diminished range of motion and grip strength. See AR 267–68.
4.

Dr. James Paolino

On May 21, 2010, Dr. James Paolino, a physician employed by the New Jersey Division of
Disability Determinations, examined Plaintiff’s file and completed a physical residual functional
capacity assessment. He opined that Plaintiff could frequently lift and carry ten pounds, could
stand and/or walk with normal breaks for at least two hours in an eight-hour workday, could sit with
normal breaks for about six hours in an eight-hour workday, and had unlimited ability to push
and/or pull, including operation of hand or foot controls. He found that Plaintiff could occasionally
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climb stairs, balance, stoop, and knell, but could never climb a ladder, rope, or scaffold, or crouch,
or crawl. He found Plaintiff was limited in his ability to use his hands for reaching in all directions,
for handling, and for fingering. See AR 274–81.
C.

Testimonial Evidence
1.

Plaintiff Bogoski

On March 16, 2012, Plaintiff testified at a hearing in front of the ALJ. He testified that he
has a driver’s license, but has not driven since January 2009 because of his medication and the
anxiety he feels when he drives. Plaintiff described how he suffered pain in his mid back, his neck,
his lower back, his legs, as well as lower pain down his legs. AR 33. He said that most of his pain
is in his mid back, where it “feels like it’s a belt around my ribcage all the time,” making it feel like
it is hard to breathe. Id. at 43. Plaintiff said that the pain that shoots down his legs, arms, and neck
is also bad. Id. He does experience lower back pain, but the mid back pain is “24/7”. Id. at 45.
About once or twice or month, or if he tries to exert himself too much, Plaintiff experiences pain
“flare-ups,” which he describes as being when “the pain becomes totally unbearable, it’s 10 out of
10 and nothing helps.” Id. at 47. Plaintiff stated that he would get a “sharp stabbing” pain in his
buttocks that would radiate down both his legs, but particularly his left leg. Id. He stated that his
wrists hurt, and his “hand lock up, cramp up.” Id. at 33. Plaintiff described how if he “writ[es] a
letter or something, [his] hands cramp up and they get numb or tingly and it feels like they’re
burning.” Id. at 45. He also described how he has depression issues and gets migraines about 2-3
times a week for about 4-6 hours at a time. See Id. at 33, 44.
Plaintiff described how he had done injections to help with his back pain, but that he
currently was in pain management and treating with medication. He was currently taking Fentanyl,
Dilaudid, Xanas, and Nexium. He described that he tried taking Cymbalta for his depression, but he

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had a bad reaction to it and stopped taking it. He explained that he tried seeing a psychiatrist, but
could not afford one. He currently used a TENS Unit two to three times a week. See AR 37.
Plaintiff described a typical day to the ALJ. He stated that he cannot sleep very well
because he cannot get comfortable in bed; accordingly, he will go to bed at 10:00 p.m., but not be
able to fall asleep between 5-7:30 a.m. During the day, he usually lies in the recliner with a heating
pad for the majority of the day. He states that he spends about 95% of the day in the recliner, and
cannot do ay other hobbies that he used to enjoy, such as cooking. He cannot help around the
house, or with the kids. Plaintiff only gets out of the house once every couple of weeks. He will
occasionally leave the house to go on a quick errand with his wife, and his wife does not usually
leave him alone with the kids. He does not leave the house to see friends or attend religious
ceremonies, but he will go with his wife to pick up his prescriptions once a month. He can sit for
about twenty minutes without feeling pain, and stand for about ten minutes without feeling pain.
Plaintiff stated that after about fifteen minutes of sitting, his lower back will start to hurt him, and
that the pain in his mid back and neck becomes unbearable after twenty minutes, at which point he
has to lay down with a heating pad. He can walk about four blocks before he has a pain flare-up.
He has not been told by a doctor to exercise. He cannot carry more than eight pounds. He can
bend, but squatting hurts his knees and back. See AR 38–42, 45. It is difficult for Plaintiff to write
for any length of time, because he gets headaches and finds it hard to concentrate. Plaintiff stated
that it was, in general, hard for him to concentrate and perform tasks, and that he has memory loss.
Id. at 46. He can complete tasks if he is given instructions, but he may need several reminders to do
the task because it is hard for him to remember to do things. Id. at 46–47.
2.

Dr. Martin Fechner

At the hearing, Dr. Martin Fechner testified as a medical expert. After reviewing Plaintiff’s
medical records and listening to his testimony, Dr. Fechner opined that none of Plaintiff’s
16

impairments met the listings described in the listing of impairments. When asked if Plaintiff had
any functional limitations or restrictions resulting from the impairments he does have, Dr. Fechner
first stated that Plaintiff was experiencing a lot of pain and had a lot of procedures, and had
radiculopathy in the lowers. Dr. Fechner did feel like there was medical evidence that supported at
least some of the allegations of pain described by Plaintiff. See AR 54–55. Dr. Fechner agreed that
there was medical evidence of some type of deep tendon reflexes abnormality on the right upper
bicep of Plaintiff based upon the finding by Dr. Sloan that Plaintiff had a 1/4 weakness in the right
bicep and right brachioradialis. When asked if that would be in accord with Plaintiff’s testimony
regarding his inability to use his hands, Dr. Fechner stated that bicep weakness would not really
affect the hands, but if the hands had half the strength of what they should have “then there could be
some problems. That’s correct.” AR 57. Dr. Fechner then concluded that this finding by Dr. Sloan
would be consistent with Plaintiff’s inability to use his hands, but only as to his right hand. Id. He
also agreed that it was possible that the medication Plaintiff takes could interfere with his ability to
concentrate. Id. at 59.
Overall, Dr. Fechner felt that Plaintiff could do a full range of sedentary activity, lift ten
pounds occasionally, walk and stand in the aggregate of two hours in an eight-hour day, sit for six
hours, and stretch every hours for two or three minutes. Plaintiff could not use ladders, scaffolding,
or crawl spaces, but he could occasionally bend and crouch. Dr. Fechner felt that Plaintiff could
rotate his neck to the right and to the left to sixty degrees on a frequent basis. See AR 53. When the
ALJ questioned him about handling restrictions, such as were indicted in the residual functional
capacity from the DDS level, Dr. Fechner said there was no medical evidence to support any
limitations in handling or fingering. Id. at 64, 65. Dr. Fechner, however, did say that Plaintiff’s
neck problems would affect his overhead reaching, and limited Plaintiff to overhead reaching to

17

ninety degrees. He did not think that Plaintiff could work in any occupation that has overhead
reaching. See AR 64–65.
3.

Mr. Rocco Meola

At the administrative hearing, Mr. Rocco Meola testified as a vocational expert. The ALJ
posed a hypothetical individual to Mr. Meola of claimant’s age, education, and work history, that
could only work in a sedentary capacity, meaning that they could occasionally lift 10 pounds; sit for
six hours and stand or walk for two hours of an eight-hour work day with normal breaks;
occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; occasionally balance,
stoop, and kneel; limited to frequently rotating the neck to sixty degrees to both the left and the
right; limited to reaching to only ninety degrees with both hands; simple routine tasks involving no
more than simple one- or two-step instructions and simple work-related decisions with few
workplace changes. The ALJ asked if such a hypothetical could perform any work. Mr. Meola
found that, with such limitations, the hypothetical could work as a table worker, a dial marker, and a
preparer – all sedentary jobs. He found that there were about 750 such positions in Northern New
Jersey/metro New York area, and 20,000 jobs nationally. When the ALJ asked if such an individual
could find work if this individual needed to be absent three or four times a month, Mr. Meola
thought that no such individual would be able to find a job. When asked by counsel if the
hypothetical individual could find an appropriate job if he or she was limited in his or her ability to
handle, manipulate, finger, or reach, Mr. Meola found that there was no such job that the
hypothetical person could perform because all of the jobs he mentioned required some degree of
handling and fingering.
III.

Standard of Review
A reviewing court must uphold the Commissioner’s factual determinations if they are

supported by “substantial evidence.” 42 U.S.C. §§ 405(g); 1383(c)(3); Sykes v. Apfel, 228 F.3d 259,
18

262 (3d Cir. 2000). Substantial evidence is “more than a mere scintilla . . . but may be less than a
preponderance.” Woody v. Sec’y of Health & Human Servs, 859 F.2d 1156, 1159 (3d Cir. 1988).
Substantial evidence “does not mean a large or considerable amount of evidence, but rather such
relevant evidence which, considering the record as a whole, a reasonable person might accept as
adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citation
omitted). The inquiry is not whether the reviewing court would have made the same determination,
but rather whether the Commissioner's conclusion was reasonable. Brown v. Bowen, 845 F. 2d
1211, 1213 (3d Cir. 1988).
On review, a court must read the evidence in its entirety, “tak[ing] into account whatever in
the record fairly detracts from its weight.” Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J.
1997) (internal quotation omitted). Because the ALJ has an obligation to provide an adequate basis
so that the reviewing court can determine whether the administrative decision is based on
substantial evidence, ALJ is required to explain clearly his or her reasons for rejecting or
discrediting competent evidence when the record shows conflicting evidence. See Cotter v. Harris,
642 F.2d 700, 706–07 (3d Cir. 1981) (“[T]here is a particularly acute need for some explanation by
the ALJ when s/he has rejected relevant evidence or when there is conflicting probative evidence in
the record. We have emphasized our concern in a long line of cases.”); Brewster v. Heckler, 786
F.2d 581, 585 (3d Cir. 1986). Additionally, the reviewing court is not empowered to weigh the
evidence or substitute its conclusions for those of the fact finder. See Early v. Heckler, 743 F.2d
1002, 1007 (3d Cir. 1984). A court, however, 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)
(citing Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984)). A 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 v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
19

A.

Establishing Disability

To be eligible for disability insurance benefits (“DIB”), a claimant must demonstrate 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)(1)(A). A person is disabled for these purposes only if his physical and mental impairments
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 substantial gainful work which
exists in the national economy. . . .” 42 U.S.C. § 423(d)(2)(A).
The Social Security Administration has established a five-step process for determining
whether a claimant is disabled. See 20 C.F.R. § 404.1520. For the first two steps, the claimant
must establish both (1) that she has not engaged in “substantial gainful activity” (SGA) since the
onset of her alleged disability, and (2) that she suffers from a “severe impairment” or “combination
of impairments.” 20 C.F.R. § 404.1520(b)-(c). Because the claimant bears the burden of
establishing these two requirements, a failure to meet this burden automatically results in the denial
of benefits, ending the court’s inquiry. Bowen v. Yuckert, 482 U.S. 137, 146-47 n. 5 (1987)
(delineating the burdens of proof at each step of the disability determination); Plummer v. Apfel,
186 F.3d 422, 428 (3d Cir. 1999). These first two steps “involve threshold determinations that the
claimant is not presently working, and has an impairment which is of the required duration and
which significantly limits his ability to work.” Williams, 970 F.2d at 1180.
In the third step, the medical evidence of the claimant’s impairment compared to a list of
impairments presumed severe enough to preclude gainful work. 20 C.F.R. § 404.1520(d). If the
claimant’s impairment either matches or is equal to one of the listed impairments, he qualifies for

20

benefits. Conversely, “[i]f a claimant does not suffer from a listed impairment or its equivalent, the
analysis proceeds to step four and five.” Plummer, 186 F.3d at 428.
If the claimant does not have a listed impairment, the Commissioner will evaluate and make
a finding about the claimant’s Residual Functioning Capacity (“RFC”) before proceeding onto the
fourth stage. 20 C.F.R. § 404.1520(a)(4), (e). A claimant’s RCF is “that which an individual is still
able to do despite the limitations caused by his or her impairment(s).” Hartranft, 181 F.3d at 359
n.1 (citing 20 C.F.R. § 404.1545(a)). “In making a residual functional capacity determination, the
ALJ must consider all evidence before him. Although 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. Admin., 220 F.3d 112, 121 (3d Cir.
2000).
At the fourth step of the analysis, the Commissioner must analyze whether the claimant’s
RCF sufficiently permits her to resume her past relevant work. 20 C.F.R. § 404.1520(e)-(f). The
burden remains on the claimant to show that she is unable to perform her past work. See Plummer,
186 F.3d at 428 (citing Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994)). If the claimant is capable
of returning to her previous line of work, she is not “disabled” and the inquiry goes no further.
If, however, the claimant is unable to return to her former occupation, the evaluation moves
to the fifth and final step. At this stage, the burden shifts to the Commissioner, who now must
demonstrate that the claimant is capable of performing other substantial, gainful work in order to
deny a claim of disability. 20 C.F.R. § 404.1520(f). The ALJ 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 RFC. The ALJ must
analyze the cumulative effect of all the claimant's impairments in determining whether she is
capable of performing work and is not disabled. See 20 C.F.R. § 404.1523. If the Commissioner
21

cannot satisfy this burden, then the plaintiff is entitled to disability benefits. Yuckert, 428 U.S. at
146–47 n.5.
B.

Objective Medical Evidence

Under Title II of the Social Security Act, a claimant is required to provide objective medical
evidence in order to prove his disability. See 42 U.S.C. § 423(d)(5)(A). Consequently, a plaintiff
cannot prove that she is disabled based on solely her subjective complaints of pain and other
symptoms. See Hartranft,181 F.3d at 362 (“Allegations of pain and other subjective symptoms
must be supported by objective medical evidence.”); Green v. Schweiker, 749 F.2d 1066, 1069–70
(3d Cir. 1984). (“[S]ubjective complaints of pain, without more, do not in themselves constitute
disability.”). Rather, a plaintiff must provide medical findings that show that she has a medically
determinable impairment. 42 U.S.C. §§ 423(d)(1)(A); Green, 749 F.2d at 1069-70.
IV.

The ALJ’s Decision
In a written opinion dated March 29, 2012, the ALJ applied the five-step analysis to the facts

from the record and determined that Plaintiff was not entitled to disability insurance benefits
because Plaintiff had not been under a disability from January 20, 2009 through the date of the
opinion. See AR 11–18. The ALJ found that Plaintiff satisfied the first step of the analysis because
he had not engaged in substantial gainful activity since January 20, 2009, the alleged onset date.
Moving to step two, the ALJ concluded that Plaintiff had showed severe impairments with his
multilevel disc herniation and back pain, as well as depression. See id. at 13.
At step three, the ALJ concluded that Plaintiff’s impairment did not meet or medically equal
any of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. The ALJ found that
Plaintiff’s physical back limitations did not meet the requirements of Listing 1.04—disorders of the
spine. The ALJ found that the medical evidence did not support a finding of nerve root
compression, spinal arachnoiditis, or lumbar spinal stenosis, which is necessary to establish that the
22

claimant suffers from a disorder of the spine. See AR 13–14. The ALJ also found that the severity
of Plaintiff’s mental impairment did not meet or medically equal the criteria of Listing 12.04—
affective disorders. See id. at 14.
Before reaching step four, the ALJ concluded that Plaintiff has the RFC to perform
sedentary work, except that Plaintiff can occasionally lift ten pounds, six for approximately six
hours and stand/walk for two hours of an eight-hour work day, occasionally climb ramps or stairs
and occasionally balance or knee. The ALJ found that Plaintiff could never climb ladders, ropes, or
scaffolds, and could never crouch or crawl. The ALJ also found that Plaintiff had unlimited pull
and push ability, but was limited to reaching only ninety degrees with both hands, and was limited
to frequently rotating the neck to sixty degrees on both the left and the right. Plaintiff was also
limited to simple routine tasks involving no more than simple instructions and simple work-related
decisions with few work place instructions. See AR 15. In making this determination, the ALF
followed the required two-step process. Id. Accordingly, the ALJ found, after considering the
evidence, found that Plaintiff’s medical impairments could reasonably be expected to cause the
alleged symptoms, but found that Plaintiff’s statements “concerning the intensity, persistence, and
limiting effects of these symptoms are not credible to the extent that they are inconsistent with the
[RFC].” Id. In reaching this conclusion, the ALJ considered at length Plaintiff’s medical record,
and concluded that the objective evidence did not support a finding of total disability by Plaintiff.
In particular, the ALJ noted that Dr. Lawler had indicated in January 2012 that Plaintiff appeared to
be doing well, was tolerating medications well, and was feeling less pain. He also stressed that the
orthopedic consultative examination revealed that Plaintiff had normal gait, could walk on his heles
and toes, could squat, had no tenderness of the cervical spine, and exhibited full range of motion as
well as normal motor and sensory functioning. The ALJ found that “[d]espite the evidence
demonstrating that [Plaintiff] has suffered from medically determinable ‘severe’ impairments, the
23

evidence also establishes that [Plaintiff] retains the capacity to function adequately to perform many
basic activities associated with work.” Id. at 16. The ALJ concluded that Plaintiff retains the
residual functional capacity to perform sedentary work with some limitations. Id.
In analyzing step four, the ALJ found that Plaintiff was unable to perform his past relevant
work as a mechanic and laborer. Id. at 17. Finally, at step five, the ALJ considered Plaintiff’s age,
education, work experience, and RFC, and found that jobs exist in significant numbers in the
national economy that Plaintiff can perform. Therefore, the ALJ concluded that Plaintiff was not
disabled, as defined in the Social Security Act, from January 20, 2009, through the date of her
decision. Id. at 18.
V.

Discussion
Plaintiff raises several challenges to the ALJ’s decision. First, he argues that the ALJ

ignored medical evidence establishing Plaintiff’s functional limitations in reaching, handling, and
fingering. Next, Plaintiff argues that the ALJ ignored the opinion of Plaintiff’s treating physician,
Dr. Lawler, regarding his ability to work. Plaintiff further argues that the ARJ failed to adequately
acknowledge Plaintiff’s need for narcotic pain medications. Finally, Plaintiff asserts that the
vocational expert’s testimony is unreliable.
A.

The ALJ’s Determination of Plaintiff’s RFC
1.

Plaintiff’s Functional Limitations

First, Plaintiff argues that the ALJ ignored medical evidence establishing Plaintiff’s
functional limitations in reaching, handling, and finger. It asserts that the ALJ improperly
concluded that “it did not appear that there was any medical evidence to support any limitations
regarding the use of the hands” because there was treating source and consultative medical records
confirming limitations in Plaintiff’s hands. See Pl.’s Br. at 23 (quoting AR 16). The Commissioner

24

asserts that the ALJ reasonably relied upon Dr. Fechner’s testimony that Plaintiff’s impairments did
not impose handling or fingering limitations. See Def.’s Br. at 7.
Plaintiff’s argument has merit. The ALJ has an obligation to consider all of the evidence in
front of him or her when making a residual functional capacity determination. See Burnett v.
Commissioner of SSA, 220 F.3d 112, 121 (3d Cir. 2000). “Although 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.” Id. In other words, “the ALJ’s finding of residual
functional capacity must be accompanied by a clear and satisfactory explication of the basis on
which it rests.” Fargnoli v. Halter, 247 F.3d 34, 41 (3d Cir. 2001) (internal quotation omitted).
Otherwise, the reviewing court is unable to tell if probative evidence was ignored or not credited.
See Burnett, 220 F.2d at 121; see also Cotter, 642 F.2d at 706–07 (“Since it is apparent that the ALJ
cannot reject evidence for no reason or for the wrong reason, an explanation from the ALJ of the
reason why probative evidence has been rejected is required so that a reviewing court can determine
whether the reasons for rejection were improper.”).
Here, the ALJ’s discussion of Plaintiff’s alleged hand impairments was limited to a single
statement in which she recognized that Plaintiff “discussed some issues with his hands,” but
concluded that “it did not appear that there was any medical evidence to support any limitations
regarding the use of his hands.” AR 16. The Commissioner argues that the ALJ was relying on the
conclusion of Dr. Fechner, and she very well may have done so. However, there was medical
evidence to support Plaintiff’s testimony regarding the pain he felt when he used his hands. For
example, Dr. Sloan evaluation Plaintiff in January 2008 and found diminished sensation at the C5C6 and C6-C7 dermatomes distribution of the upper extremities, as well as deep tendon reflexes
revealing 1/4 weakness in the right biceps and brachioradialis. Dr. Haidri found that Plaintiff had a
slight decreased grip strength in his right hand, that he had numbness in both hands, and that Tinel’s
25

sign was positive over the median nerve of both wrists. Dr. Haidri also diagnosed Plaintiff with
bilateral carpal tunnel syndrome. There were also an MRI that revealed moderate
teniopathy/tenditits of the spraspinatus tendon. Dr. Lawler, Plaintiff’s treating physician, had noted
that Plaintiff had 1/4 reflexes in his right upper extremity, and noted that Plaintiff was “jittery” and
“shaky.” Dr. Paolino concluded that Plaintiff was limited in his ability to reach, handle, and finger.
In fact, during the administrative hearing, Dr. Fechner agreed that there was diminished sensory
findings in at least the right hand and that this neurological finding supported a finding of limitation
as to Plaintiff’s right hand.
The Court finds that the ALJ’s failure to mention and explain this contradictory medical
evidence was error. See Burnett, 220 F.3d at 122; Cotter, 642 F.2d at 707. This is particular true in
light of the vocational expert’s testimony that a modification of the ALJ’s hypothetical to include
limitations on reaching, handling, and fingering would essentially eliminate any sedentary job.
Accordingly, on remand, the ALJ must review all of the pertinent medical evidence on this point
and explain her rejections and conciliations.
2.

Plaintiff’s Subjective Complaints and Pain Medications

Plaintiff also argues that substantial evidential does not support the ALJ’s RFC
determination because the ALJ failed to adequately acknowledge Plaintiff’s need for narcotic pain
medication, as well as the adverse effects of this medication. Plaintiff also contends that the ALJ
did not properly consider Plaintiff’s subjective complaints of pain.
In evaluating symptoms, the ALJ must consider “all your symptoms, including pain, and the
extent to which your symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence.” 20 C.F.R. § 404.1529(a); see Hartranft, 181 F.3d at 362
(“Allegations of pain and other subjective symptoms must be supported by objective medical
evidence.”). The ALJ is required to “evaluate the intensity and persistence of your symptoms so
26

that [the ALJ] can consider how your symptoms limits your capacity for work.” 20 C.F.R. §
404.1529(c); see also Hartranft, 181 F.3d at 362 (“Once an ALJ concludes that a medical
impairment that could reasonably cause the alleged symptoms exists, he or she must evaluate the
intensity and persistence of the pain or symptom, and the extent to which it affects the individual's
ability to work.”). Because pain can “suggest a greater severity of impairment than can be shown
by objective medical evidence alone,” the ALJ must consider other evidence submitted about the
claimant’s pain or symptoms, such as “what may precipitate or aggravate your symptoms, what
medications, treatments or other methods you use to alleviate them, and how the symptoms may
affect your pattern of daily living.” 20 C.F.R. § 404.1529(c)(3). Overall, the ALJ is tasked with
“determin[ing] the extent to which a claimant is accurately stating the degree of pain or the extent to
which he or she is disabled by it.” Hartranft, 181 F.3d 362.
An ALJ must give “serious consideration” to a claimant's subjective complaints. Burns v.
Barnhart, 312 F.3d 113, 129 (3d Cir. 2002). In light of the medical record and other evidence, the
ALJ can “evaluate the credibility of a claimant and . . . arrive at an independent judgment, in light
of [the] medical findings and other evidence, regarding the true extent of the pain alleged.” Cerrato
v. Comm'r of Soc. Sec., 386 F. App'x 283, 286 (3d Cir. 2010) (internal citations omitted). An ALJ's
credibility determination is a finding of fact, which a court is bound by if the finding is “supported
by substantial evidence in the record.” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000) (citation
omitted). Like any other aspect of the decision, the ALJ “cannot reject evidence for no reason or
for the wrong reason.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005). The Third
Circuit mandates:
(1) that subjective complaints of pain be seriously considered, even where not fully
confirmed by objective medical evidence; (2) that subjective pain may support a claim
for disability benefits and may be disabling; (3) that when such complaints are
supported by medical evidence, they should be given great weight; and finally (4) that
where a claimant's testimony as to pain is reasonably supported by medical evidence,
the ALJ may not discount claimant’s pain without contrary medical evidence.
27

Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (internal quotations and citations
omitted).
Here, the ALJ stated that “the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are inconsistent with the
above [RFC].” After careful review and consideration of the ALJ’s decision, the Court finds that
the ALJ’s findings did not include satisfactory analysis regarding Plaintiff’s subjective complaints
about his pain, particularly in light of the type and dosage of narcotic pain medications that Plaintiff
was taking to alleviate said pain. The ALJ did not sufficiently analyze and explain the weight he
afforded to the medications that Plaintiff was taking, or his subjective complaints of pain, fatigue,
and the other limiting effects of Plaintiff’s alleged symptoms. The ALJ has an obligation to
“consider the subjective pain and specify his reasons for rejecting these claims and support his
conclusion with medical evidence in the record.” Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir.
1990); see also SSR 96-7p, 1996 SSR LEXIS 4 (“The determination or decision must contain
specific reasons for the finding on credibility, supported by the evidence in the case record, and
must be sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual's statements and the reasons for that weight.”); Cotter,
642 F.2d at 705–06 (explaining that the ALJ must indicate the basis for concluding that testimony is
not credible).
In her decision, however, the ALJ’s analysis consists almost entirely of a recitation of the
evidence in the record, without any accompanying explanation of how each piece of evidence—
particularly Plaintiff’s subjective complaints and his treatments—factored into the ultimate RFC
determination. The Court agrees with Plaintiff that the decision does not adequately analyze the
factors listed under 20 C.F.R. § 404.1529(c)(3), including Plaintiff’s limited daily activities, any
precipitating and aggravating factors; the type and dosage of medications taken by Plaintiff;
28

measures that Plaintiff takes to relieve his pain; and other factors concerning Plaintiff’s functional
limitations. See also SSR 96-8p, 1996 SSR LEXIS 5 (stating that an RFC assessment should be
based on all relevant case evidence, including “[t]he effects of treatment, including limitations or
restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration,
disruption to routine, side effects of medication)”). Without such explanation, the Court is not able
to perform a meaningful review to whether and to what degree the ALJ considered Plaintiff’s
subjective complaints, or to whether it considered the medications that Plaintiff was taking to be
indicative of Plaintiff’s alleged pain disorder. Accordingly, the ALJ’s RFC determination does not
provide this Court with a clear and satisfactory explication of its reasoning and will be remanded on
this point.
B.

The ALJ’s Discussion of the Medical Opinion of Dr. Lawler

Plaintiff next argues that the ALJ failed to accord the appropriate amount of weight to the
opinion of Dr. Lawler, Plaintiff’s treating physician. Specifically, Plaintiff argues that the ALJ
ignored Dr. Lawler’s belief that Plaintiff was disabled and should not return to work. Considering,
however, that this matter is being remanded, and the ALJ may reach different conclusions as to the
impact of Dr. Lawler’s treatment notes, there is no need at this point to analyze the ALJ’s
consideration of the findings of Dr. Lawler.
C.

Testimony of the Vocational Expert

Finally, Plaintiff argues that the Commissioner failed to carry her burden at step five
because the testimony of the vocational expert is unreliable. After the ALJ concluded that Plaintiff
could not return to his past relevant work, the ALJ proceeded to step five of the sequential
evaluation, where the Commissioner has the burden of determining whether, based upon the
claimant’s RFC and vocational profile, the claimant can perform other work in the national
economy. See 20 C.F.R. § 404.1560(c). Because Plaintiff’s impairments resulted in non-exertional
29

limitations, the ALJ obtained and relied upon the testimony of the vocational expert to determine
the extent to which Plaintiff’s non-exertional limitations reduced the job base otherwise available at
the sedentary exertional level. See AR 16 (referring to AR 65–67); see also Sykes, 228 F.3d at 273
(holding that an ALJ must use the testimony of a vocational expert or other similar evidence to
establish the step five burden).
Here, in response to a hypothetical question posed by the ALJ, the vocational expert
responded that an individual with the limitations described in the hypothetical could perform:
Such jobs as a table worker, 739.687-081. It’s sedentary with an SVP of 2. A dial
marker, 729.684-018. It’s sedentary with an SVP of 2. A preparer, 700.687-082,
sedentary with an SVP of 2, are samples of such jobs.
AR 66. The vocational expert told the ALJ that such jobs existed in numbers of approximately 750
in the Northern New Jersey/metro New York area, and existed in numbers of excess of 20,000 on a
national basis. Taking into account the Medical-Vocational Rule 201.28, as set forth at 20 C.F.R.
Part 404, Subpart P, App. 2, as a framework, and based on the testimony of the vocational expert
and Plaintiff’s RFC, the ALJ concluded that Plaintiff was capable of making a successful
adjustment to the other work that exists in significant numbers in the national economy and was not
disabled. See AR 18. Plaintiff argues that the Dictionary of Occupational Titles (DOT) does not
contain the code for the table worker position cited by the vocational expert. While there are other
jobs titled “title worker,” such as “Title Worker (fabrication)” at 739.687-182, “Table Worker
(leather products)” at 783.687-030, and “Table Worker (boot and shoe)” at 739.687-142. As
Plaintiff points out, two of these table worker positions are performed at the light level; accordingly,
he asserts that it is unclear what table worker job the vocational expert had in mind when he
responded to the ALJ’s hypothetical question. See Pl.’s Br. at 29.
Considering that this case is being remanded, it is not entirely necessary for the Court to
analyze the reliability of the vocational expert’s conclusion. However, the Court finds that
30

Plaintiff’s argument lacks merit. While it is true that the vocational expert cited an incorrect job
code for the position, the vocational expert clearly testified that the table worker position he had in
mind was a sedentary position with a specific vocational preparation (SVP) level of 2. See AR 66.
The only table worker position in the DOT that is performed at the sedentary exertional level, with a
SVP of 2, is that which the ALJ correctly identified as table worker, DOT Code 739.687-182. See
AR 18; see also Dictionary of Occupational Titles, located at Pl.’s Br. Ex A. The substantive
characteristics of this job, DOT Code 739.687-182, are identical to the substantive characteristics of
the job identified by the vocational expert, DOT Code 739.688-081, unlike any of the other “table
worker” jobs contained within the DOT. Considering that the job codes are simply off by the last
three digits and that the one Dictionary entry he meant to mention does not conflict with his
description of it, the only reasonable interpretation is that the vocational expert “misremembered
and, consequently, misspoke the job titles and codes in question.” Fisher v. Barnhart, 181 F. App’x
359, 367 (4th Cir. 2006) (finding that a misstatement of a DOT code is not reversible error). The
ALJ, in her decision, correctly clarified the expert’s error.
“Absent a showing of prejudice, an inaccurate citation by a vocational expert to the DOT
does not constitute a basis in itself for invalidating otherwise valid testimony.” Briscoe v. Astrue,
892 F. Supp. 2d 567, 583 (S.D.N.Y. 2012) (citing Williams v. Astrue, 11-CV-023S, 2012 U.S. Dist.
LEXIS 46248, at *7-8 (W.D.N.Y. Mar. 30, 2012)). Plaintiff has not provided more than mere
speculation as to how the citation to the wrong provision in the DOT has prejudiced him—nor does
the Court believe that it actually did, as explained above. Overall, the testimony of the vocational
expert is not rendered unreliable or otherwise invalided simply because it included a reference to the
wrong DOT code. Accordingly, the Court finds that Plaintiff’s argument fails.

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VI.

Conclusion
For the reasons set forth above, the case is remanded for further proceedings consistent with

this Opinion. An appropriate Order accompanies this Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO, U.S.D.J.
Dated: February 13, 2015

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